Creech v. Arave, 86-3983

• Decision Date: 16 October 1991
• Docket Number: No. 86-3983,86-3983
• Citation: 947 F.2d 873
• Parties: Thomas E. CREECH, Petitioner-Appellant, v. A.J. ARAVE, Warden, Idaho State Penitentiary; Al Murphy, Director, Idaho State Board of Corrections; Jim Jones, Attorney General, State of Idaho, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 873

947 F.2d 873

Thomas E. CREECH, Petitioner-Appellant, v. A.J. ARAVE, Warden, Idaho State Penitentiary; Al Murphy Director, Idaho State Board of Corrections; Jim Jones, Attorney General, State of Idaho Respondents-Appellees.

No. 86-3983.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 6, 1988.

Submission Deferred Aug. 25, 1988.

Resubmitted July 12, 1990.

Decided March 27, 1991.

As Amended on Denial of Rehearing

and Rehearing En Banc Oct. 16, 1991.

Cliff Gardner, Fiedler & Gardner, San Francisco, Cal., for petitioner-appellant.

Lynn E. Thomas, Sol. Gen. for the State of Idaho, Boise, Idaho, for respondents-appellees.

Appeal from the United States District Court for the District of Idaho.

Before BEEZER, HALL and WIGGINS, Circuit Judges.

ORDER

The opinion filed on March 27, 1991, 928 F.2d 1481, is hereby amended as follows:

In 928 F.2d at 1487, the following is deleted: "Creech has not pointed to any evidence to support his claim. The only 'evidence' purported to buttress his claim of incompetency contains no citations to the record."

The following is inserted in lieu thereof:

"Contrary to Creech's assertion, Dr. Heyrend did not conclude that Creech could not appreciate the consequences of decisions such as waiving legal rights. When asked, "Do you have any information or evidence to indicate to your satisfaction that at the time of the defendant's plea in this case, that he did not intend to plead guilty or did not recognize the consequences of that legal act?," Dr. Heyrend replied, "I really have no information in that area." While Dr. Stoner was more supportive of Creech's position, even he admitted, "I think there's room to be more certain than I am in this case." Creech failed to show that he was incompetent to plead guilty."

In 928 F.2d at 1491, at the end of the third full paragraph, add the following footnote after the citation to Osborn, 631 P.2d at 201:

"The Idaho Supreme Court also noted that,

To properly define [the "utter disregard"] circumstance, it is important to note the other aggravating circumstances with which this provision overlaps. The second aggravating circumstance, I.C. § 19-2515(f)(2), that the defendant committed another murder at the time this murder was committed, obviously could show an utter disregard for human life, as could the third aggravating circumstance, I.C. § 19-2515(f)(3), that the defendant knowingly created a great risk of death to many persons. The same can be said for the fourth aggravating circumstance, I.C. § 19-2515(f)(4), that the murder was committed for remuneration. Since we will not presume that the legislative intent was to duplicate any already enumerated circumstance, thus making I.C. § 19-2515(f)(6) mere surplusage ..., we hold that the phrase "utter disregard" must be viewed in reference to acts other than those set forth in I.C. §§ 19-2515(f)(2), (3), and (4).

Rather than explaining what "utter disregard for human life" means, this passage merely recognizes that the legislature must have meant it to mean something other than the preexisting aggravating circumstances. Since none of these aggravating circumstances are at issue, this language does not help us to determine the meaning of "utter disregard."

In 928 F.2d at 1492, at the end of subsection C, the words ", as applied to Creech, to have been" are deleted and the word "is" is inserted in lieu thereof.

In 928 F.2d at 1492, the second paragraph of footnote 16 is deleted.

The panel has voted to deny appellant's petition for rehearing and to reject the suggestion for rehearing en banc.

The full court was advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed.R.App.P. 35.

With these amendments the petition for rehearing from the appellant and the petition for rehearing from the appellees are DENIED and both suggestions for rehearing en banc are REJECTED.

OPINION

CYNTHIA HOLCOMB HALL, Circuit Judge:

Petitioner Thomas E. Creech appeals from the district court's denial of his petition for a writ of habeas corpus. Creech is currently incarcerated at the Idaho State Correctional Institution ("ISCI") on the basis of three Idaho murder convictions. The conviction which gives rise to this appeal is based on Creech's 1981 murder of David Jensen, a fellow inmate at ISCI. Creech pleaded guilty to first degree murder and was sentenced to death.

I

The facts and proceedings in this case are adequately described in opinions rendered by the Idaho Supreme Court after Creech's direct appeal, State v. Creech, 105 Idaho 362, 670 P.2d 463, 465-66 (1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1327, 79 L.Ed.2d 722 (1984) ("Creech I "), and after his efforts to obtain post-conviction relief, State v. Creech, 109 Idaho 592, 710 P.2d 502, 502-07 (1985) ("Creech II "). Additional facts will be discussed where relevant to the issues we must decide in this appeal.

II

We review de novo the district court's denial of a petition for habeas corpus. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986), cert. denied, 484 U.S. 870, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987). We review any factual findings made by the district court for clear error. Hayes v. Kincheloe, 784 F.2d 1434, 1436 (9th Cir.1986), cert. denied, 484 U.S. 871, 108 S.Ct. 198, 98 L.Ed.2d 150 (1987).

III

Creech initially contends that he should be allowed to withdraw his guilty plea. This contention rests upon two arguments. First, Creech argues that he was denied effective assistance of counsel because his attorney failed to provide him with certain information prior to the making of his guilty plea. Second, Creech argues that in the absence of such information, his plea was not "voluntary and intelligent" and therefore cannot be allowed to stand. We find these arguments differ merely in form, not in substance, Evans v. Meyer, 742 F.2d 371, 375 (7th Cir.1984), and therefore we will discuss them together.

A guilty plea must represent "a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970). "The assistance of counsel received by a defendant is relevant to the question of whether a defendant's guilty plea was knowing and intelligent insofar as it affects the defendant's knowledge and understanding." United States v. Frye, 738 F.2d 196, 199 (7th Cir.1984).

Although the Supreme Court has found that ineffective assistance of counsel can apply to guilty pleas, Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985), most cases that have dealt with such challenges have involved attorney recommendations that the defendant plead guilty. Here, however, Creech's attorney, Rolf Kehne, told the court in Creech's presence that he believed Creech should continue to plead not guilty. Creech himself acknowledged that "my attorney advised me not to plead." Thus, the alleged error is not that Kehne misled Creech by recommending the wrong plea, but that he failed to provide Creech with certain information. Specifically, Creech claims Kehne failed adequately to discuss the elements of the crime or possible defenses with him before he pleaded guilty.

To establish that he received ineffective assistance of counsel, Creech must show: (1) his attorney's representation fell below an objective standard of reasonableness, and (2) that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In reviewing alleged deficiencies in representation, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065.

Creech pleaded not guilty at his initial arraignment on June 19, 1981 before Judge Newhouse of the Idaho state district court. On August 28, 1981, Judge Newhouse convened a plea hearing in response to a letter from Creech stating that he wished to plead guilty. Kehne stated by way of affidavit that he had "absolutely no advance notice" that Creech was going to change his plea, and he was allowed "less than fifteen minutes" to attempt to change his client's mind.

The district court found "as a matter of fact" that Kehne did not discuss with Creech the "specific elements of the offense with which he was charged or possible defenses to these charges." Nevertheless, the district court reviewed counsel's performance throughout the state court proceedings and held that "[Kehne's] representation did not fall below an objective standard of reasonableness."

To establish that Kehne's representation fell below an objective standard of reasonableness, Creech must show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In support of his claim that Kehne's failure to inform him of the elements of the crime and possible defenses were omissions which fell below this standard, Creech relies on Brown v. Butler, 811 F.2d 938 (5th Cir.1987), and United States v. Bigman, 906 F.2d 392 (9th Cir.1990). In Brown, the Fifth Circuit held that counsel's failure to inform the defendant of a venue defense prior to his guilty plea rendered counsel's performance below the objective standard of reasonableness. Because of this omission, the court believed the defendant was unable to make an informed and conscious choice with respect to his plea. Brown, 811 F.2d at 942. In Bigman, this circuit required remand for an evidentiary hearing due to uncertainty whether the defendant had been apprised of the intent element of the crime to which he pleaded guilty.

Unlike Brown and Bigman, however, any omission on Kehne's part...