Creech v. Arave, 86-3983

• Decision Date: 27 March 1991
• Docket Number: No. 86-3983,86-3983
• 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, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1481

928 F.2d 1481

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,

Defendants-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.

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

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

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

Before BEEZER, HALL and WIGGINS, Circuit Judges.

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 was not the result of his incompetence as counsel. Creech simply did not allow his counsel to inform him of the elements of the offense or possible defenses. The transcript of the August 28 plea hearing shows that Kehne explicitly told the court in Creech's presence that the guilty plea was against his advice. As the district court properly noted, "a defendant may not be forced to abide by the advice of counsel." ¹ Furthermore, at that hearing Creech told the court that he had discussed the plea with counsel, that he believed he had sufficient time to discuss his plea with counsel, that he was satisfied with his attorney's representation, and that he understood that by pleading guilty he was giving up any defense to the charge.

Kehne told Creech that his advice was to not change the plea. He also told Creech that he needed more time. Nevertheless, Creech informed the court that he wished to proceed and plead guilty. We cannot now accept the claim that Creech was therefore unfairly deprived of the assistance of counsel. Kehne's actions were reasonable under the circumstances.

Creech has also failed to show that he was prejudiced. In Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985), the Supreme Court held that requiring a showing of prejudice serves "the fundamental interest in the finality of guilty pleas." The Court noted that,

Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice. The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions result from such pleas. Moreover, the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea.

Id. (quoting United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979)). ²

First, with respect to Creech's claim that he did not understand the elements of the offense of first degree murder, Creech contends that the "malice" element was not adequately explained to him. The Supreme Court has stated that a plea may be involuntary "because [the defendant] has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt." Henderson v. Morgan, 426 U.S. 637, 645 n. 13, 96 S.Ct. 2253, 2257 n. 13, 49 L.Ed.2d 108 (1976). "Without ... proof that [the defendant] in fact understood the charge, the plea cannot be voluntary ..." Id.

The district court correctly rejected Creech's argument that his ignorance of the elements of first degree murder should invalidate his plea. It found that "Creech understood that malice or intent was an element of first degree murder at the time he pled guilty."

The state trial judge's colloquy with Creech at his August 28, 1981 plea hearing supports the district court's decision. In particular, the trial court asked Creech the following:

Q (by the Court): What, as you understand it, does a person have to do to be guilty of the charge of first degree murder? What does it mean to you?

A: He has got to think about doing it.

Q: And killing someone.

A: And killing someone.

Moreover, shortly after this exchange, the prosecution inquired...