Crace v. Herzog

• Citation: 798 F.3d 840
• Decision Date: 14 August 2015
• Docket Number: No. 13–35650.,13–35650.
• Parties: Hoyt CRACE, Petitioner–Appellee, v. Robert HERZOG, Respondent–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

798 F.3d 840

Hoyt CRACE, Petitioner–Appellee

v.Robert HERZOG, Respondent–Appellant.

No. 13–35650.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 7, 2014.

Filed Aug. 14, 2015.

Robert W. Ferguson, Attorney General, Paul D. Weisser (argued), Senior Counsel, Attorney General's Office, Corrections Division, Olympia, WA, for Respondent–Appellant.

Jeffrey Erwin Ellis (argued), Law Offices of Alsept & Ellis, Portland, OR, for Petitioner–Appellee.

Appeal from the United States District Court for the Western District of Washington, Ronald B. Leighton, District Judge, Presiding. D.C. No. 3:12–cv–05672–RBL.

Before: RICHARD A. PAEZ, JAY S. BYBEE, and CONSUELO M. CALLAHAN, Circuit Judges.

Opinion by Judge BYBEE

; Dissent by Judge CALLAHAN

OPINION

BYBEE, Circuit Judge:

In 2004, a Washington jury convicted Hoyt Crace of two misdemeanor offenses and one count of attempted second-degree assault—a felony—stemming from an incident in which he brandished a sword at a police officer. The attempted assault conviction constituted Crace's third strike under Washington's three-strikes law, and he received a life sentence without the possibility of parole.

After Crace's conviction became final, he brought a claim for postconviction relief under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), arguing that his trial counsel was deficient for failing to request a jury instruction on “unlawful display of a weapon,” a lesser included offense of second degree assault. Had Crace been convicted of unlawful display of a weapon, rather than attempted second-degree assault, he would have avoided a third strike.

The Washington Supreme Court rejected Crace's Strickland claim. The court held that, because Crace's jury had found him guilty beyond a reasonable doubt of attempted second-degree assault, Strickland required a reviewing court to presume that the jury would have reached the same verdict even if instructed on a lesser offense. In light of that presumption, the court concluded that defense counsel's failure to request a lesser-included-offense instruction caused no prejudice to Crace.

We hold that the Washington Supreme Court's decision was an unreasonable application of clearly established federal law under AEDPA and, on de novo review, we conclude that Crace's claim of ineffective assistance of counsel warrants relief. We therefore affirm the district court's judgment granting Crace's petition for a writ of habeas corpus.

I

Hoyt Crace spent the morning of August 16, 2003, doing repairs to the windows of a mobile home owned by an acquaintance of his in Tacoma, Washington.¹ Crace was living in this trailer while its owner was away. Sometime around ten in the morning, a neighbor who lived in the same trailer park came by and asked Crace if he ever “g[o]t high”; Crace, who has a history of drug use, responded that he did. The two began drinking together and, over the next several hours, Crace consumed eight to ten alcoholic coolers, roughly a gram of cocaine, two painkillers, and a “quarter piece” of heroin. Around one or two in the afternoon, the neighbor departed. Crace lay down to watch a video and soon fell asleep.

Crace awoke around 2:00 a.m. in a panicked state. He was “hearing voices and seeing things” and felt that someone or something was “going to brutally murder” him and that he needed to escape. He left the trailer where he was staying in an attempt to locate the trailer of two women whom he knew, where he hoped to find “safe haven” from his pursuers.

Crace mistakenly entered the trailer of a neighbor, Rita Whitten. After screaming and then rifling through Whitten's kitchen cabinets, he ran back outside. Crace eventually made his way back to the trailer where he was staying; he went inside, grabbed a sword off of the wall, and began running down the street, screaming for help.

Theron Hardesty, a Pierce County sheriff's deputy, arrived at the trailer park around 2:30 a.m. after receiving a call regarding a potential burglary. A resident informed Hardesty that a man armed with a sword was at large in the trailer park. Hardesty quickly located Crace, who was jumping up and down in the middle of the street and screaming.

Crace saw Hardesty's flashlight beam and, although he could not tell who was holding the flashlight, began running towards it, “trying to find somebody to be around” for protection. As Crace approached, Hardesty drew his handgun and ordered Crace to drop the sword. Crace did not comply immediately, but when he got within about 50 feet away from Hardesty, he realized Hardesty was a police officer and dropped the sword.

Hardesty then ordered Crace to get down on the ground. Crace continued to run toward Hardesty, however, because he feared that if he were to lie down in the middle of the street, he would be killed. Crace ran until he was about seven feet from Hardesty, at which point he complied with Hardesty's orders and got down on the ground.

Hardesty put Crace in handcuffs, placed him in the back of his patrol car, and went to interview Rita Whitten. During the interview, Hardesty heard bystanders “screaming” in the parking lot, and he returned to find that Crace had kicked out the left rear window of the car. Crace was terrified at having been left alone and had kicked out the window in a desperate attempt to get Hardesty to return. Several additional deputies arrived soon afterwards and helped restrain Crace. Hardesty read Crace his Miranda rights, and Crace told him that he had been chased by “four or five” pursuers. Hardesty determined that Crace was “obviously on some type of street drug.”

Crace was subsequently charged with first-degree criminal trespass, second-degree malicious mischief, and second-degree assault. The trial court ordered an evaluation of Crace's competency to stand trial, and two psychologists—one employed by the state and one by the defense—examined Crace. The court found Crace competent, and the case proceeded to trial. Crace's theory of defense at trial was that he suffered from diminished capacity on the night of August 16 due to the influence of the alcohol and drugs he had consumed, leaving him unable to form the intent required for any of the charged offenses.

After the close of the evidence, the trial court instructed the jury on the three charged offenses and on attempted second-degree assault, a lesser included offense of second-degree assault. The jury deadlocked on the second-degree assault charge, but it convicted Crace of attempted second-degree assault. It also convicted on first-degree criminal trespass and second-degree malicious mischief. The latter two offenses are misdemeanors, but the attempted second-degree assault conviction—a felony—counted as Crace's third strike under Washington's three-strikes law. Crace received a life sentence without the possibility of parole for that offense.

After the Washington courts affirmed his conviction on direct appeal, Crace filed a “personal restraint petition” with the Washington Court of Appeals, alleging, among other things, that his trial attorney was ineffective for failing to request a jury instruction on “unlawful display of a weapon,” which is another lesser included offense of second-degree assault.² A conviction for unlawful display of a weapon, which is a misdemeanor, would not have resulted in Crace's receiving a third strike.

The Court of Appeals initially denied Crace's personal restraint petition in an unpublished opinion. Crace moved for reconsideration, and the court, in a divided opinion, granted that motion and subsequently issued a new decision granting Crace's petition. In re Crace, 157 Wash.App. 81, 236 P.3d 914 (2010), rev'd, 174 Wash.2d 835, 280 P.3d 1102 (2012). The court applied Strickland's test for ineffective assistance of counsel and held that Crace had satisfied both prongs of that test. First, the court held that Crace's trial counsel had performed deficiently by failing to request an instruction on unlawful display of a weapon, given that a conviction for that offense rather than for attempted assault would have saved Crace from a third strike and a life sentence. Id. at 930–31. Second, it held that Crace had shown that he was prejudiced by his counsel's failure because, under Washington law, Crace would have been entitled to an instruction on the offense of unlawful display of a weapon if his attorney had requested it, and there was a reasonable probability that the outcome of the trial would have been different if that additional instruction had been given. Id. at 931–33.

The state appealed, and the Washington Supreme Court reversed by a vote of 7–2. In re Crace, 280 P.3d at 1102. The high court did not decide whether Crace's attorney's performance was deficient because it determined that Crace could not satisfy Strickland's prejudice prong. The court explained that, when reviewing a claim of ineffective assistance of counsel, it was required to “assume that the jury would not have convicted the defendant unless the State had met its burden of proof” and that “the availability of a compromise verdict [thus] would not have changed the outcome of the trial.” Id. at 1109. The court determined that, “in light of” these presumptions and of the fact that there was sufficient evidence to support the jury's verdict, it could not “say in all reasonable probability that counsel's error ... contributed to Crace's conviction on attempted second degree assault.” Id.

Crace next filed a habeas corpus petition in the Western District of Washington. A magistrate judge of that court recommended granting Crace's petition. The magistrate judge agreed with the Washington Court of Appeals' conclusion that Crace's attorney's performance had been deficient. Turning to the issue of prejudice, she explained that the Washington Supreme Court's prejudice analysis involved an “incomplete and unreasonable application of Strickland. ” She explained that the Washington Supreme Court had “completely...