Iaea v. Sunn

• Citation: 800 F.2d 861
• Decision Date: 22 September 1986
• Docket Number: No. 84-2196,84-2196
• Parties: Jonah IAEA, Petitioner-Appellant, v. Franklin SUNN, Director of the Department of Social Services, State of Hawaii, et al., Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 861

800 F.2d 861

Jonah IAEA, Petitioner-Appellant, v. Franklin SUNN, Director of the Department of Social Services, State of Hawaii, et al., Respondents-Appellees.

No. 84-2196.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 14, 1985.

Decided Sept. 22, 1986.

Michael R. Levine, Federal Public Defender, Honolulu, Hawaii, for petitioner-appellant.

Michael Lilly, Atty. Gen., Charles F. Marsland, Jr. and Shirley Smith, Honolulu, Hawaii, for respondents-appellees.

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

Before FLETCHER, BOOCHEVER and NORRIS, Circuit Judges.

FLETCHER, Circuit Judge:

Petition for rehearing is granted. The opinion filed October 28, 1985 is withdrawn.

Jonah Iaea filed a federal habeas corpus petition to challenge the validity of his guilty plea in Hawaii state court. He claims that he entered the plea without effective assistance of counsel and that he did not enter it voluntarily or intelligently. The district court denied the petition. Because we find that the performance of Iaea's counsel was deficient we remand for a determination as to whether Iaea was prejudiced. We also remand for further findings on claimed coercion that might affect the voluntariness of Iaea's plea.

FACTS ¹

Iaea was charged with six class A drug promotion felonies, four class B drug promotion felonies, one class C firearm possession felony, and one petty misdemeanor marijuana count. Iaea testified that he dismissed his first attorney because the attorney did not wish to try the case. At Defense counsel initiated plea bargain discussions with the prosecution and eventually agreed that Iaea would plead guilty to three of the class A felonies, two of the class B felonies, and the class C felony. The prosecution agreed to dismiss all remaining charges and to stipulate that Hawaii's minimum sentencing law did not apply to Iaea. The prosecutor made clear to defense counsel that he still planned to move for imposition of a sentence for an extended term.

his request, the court appointed defense counsel, a state public defender, to represent him. Iaea maintained that he was not guilty because he had arranged the drug transactions for a friend rather than on his own initiative. He told defense counsel of two possible witnesses to support his theory. After doing research, defense counsel concluded that Iaea's suggested defense was unavailable and that the witnesses' testimony would not be helpful. She also concluded that a jury would be unlikely to believe an entrapment defense.

Iaea was reluctant to plead guilty. To convince him to accept the plea bargain, defense counsel told him that she thought his chances of acquittal if he went to trial were slight and that if he was convicted, he would be subject to Hawaii's minimum sentencing law. Although she never guaranteed that he would receive probation, she told him, his wife and his brother on several occasions that there was a good chance of his getting probation if he accepted the plea bargain. Defense counsel also told Iaea that the chance of his getting an extended sentence was "almost zero" and that he "could almost not consider it," but informed him that sentencing was in the discretion of the judge.

Defense counsel testified that when Iaea still did not appear receptive to the plea bargain, she threatened to withdraw from his case:

Here's what I threatened in Jonah's case. I said that I took pride in myself as an attorney and that I would never allow a client to hurt himself. And it was my feeling that, if he had gone to trial and I had allowed him to go to trial, I would have done him a disservice so that if he insisted on going to trial that another attorney would handle it because it would be against my conscience to a client not to take a deal and go through a trial, get convicted, and face the extended term.

Defense counsel also communicated her strong belief that Iaea should accept the plea bargain through Iaea's brother Christopher because she knew that Iaea relied on his brother for help and guidance. Both Iaea and his brother testified that Christopher threatened to withdraw the bail which he had posted if Iaea did not plead guilty.

Ultimately, Iaea pled guilty to three class A, two class B and one class C felonies. On the guilty plea form, defense counsel, pursuant to Iaea's request, crossed out the words, "I believe myself to be guilty," and replaced them with, "I do not wish to go to trial." In the subsequent plea proceeding, the state judge informed Iaea, before accepting his plea, that he could receive life imprisonment. The judge sentenced Iaea to life sentences on the A felony counts, twenty-year sentences on the B felony counts and a ten-year sentence on the C felony.

Iaea brought a motion to reconsider the sentence, which was denied. He then brought a motion for post-conviction relief. After a hearing, the state court denied that motion as well. The court found that defense counsel had not guaranteed probation and that the judge had advised him of the possible sentences and found that Iaea had entered his plea knowingly. The court specifically found that Milks had threatened to withdraw, but held that the plea was voluntary.

After Iaea's appeal was rejected by the Hawaii Supreme Court, he filed this habeas petition. The district court found that defense counsel's belief that Hawaii's mandatory minimum sentencing law applied to Iaea was erroneous. However, it held that neither her sentencing advice nor her failure to pursue the two witnesses constituted ineffective assistance. It also rejected Iaea's contentions that his plea was not entered intelligently and voluntarily and denied the petition. Iaea timely appeals.

DISCUSSION

I. Standard of Review

We review de novo a district court's decision on a habeas petition. Reiger v. Christensen, 789 F.2d 1425, 1427 (9th Cir.1986); Tatum v. Christensen, 786 F.2d 959, 963 (9th Cir.1986) (per curiam). In a habeas proceeding, we give deference to a state court's findings of fact, 28 U.S.C. s12245(d) (1982); Adamson v. Ricketts, 789 F.2d 722, 728 n. 5 (9th Cir.1986) (en banc), but not to its determinations of mixed questions of law and fact or purely legal questions, Adamson, 789 F.2d at 729 n. 5; Hayes v. Kincheloe, 784 F.2d 1434, 1437 (9th Cir.1986).

The effectiveness of counsel is a mixed question of law and fact, reviewed de novo. See Reiger, 789 F.2d at 1427, 1428. The voluntariness of a guilty plea is a question of law not subject to deferential review. Marshall v. Lonberger, 459 U.S. 422, 431, 103 S.Ct. 843, 849, 74 L.Ed.2d 646 (1983); Hayes, 784 F.2d at 1436; see Adamson, 789 F.2d at 727 n. 5 (whether actions constitute waiver of constitutional rights is question of federal law). We recognize that recent cases in this circuit have stated that findings as to the voluntariness of a guilty plea are reviewed under the clearly erroneous standard. United States v. Read, 778 F.2d 1437, 1440 (9th Cir.1985); Chua Han Mow v. United States, 730 F.2d 1308, 1310 (9th Cir.1984), cert. denied, 470 U.S. 1031, 105 S.Ct. 1403, 84 L.Ed.2d 790 (1985). In these cases, however, we primarily focused on the underlying factual issue of whether the defendant subjectively understood the consequences of the guilty plea. See Read, 778 F.2d at 1439; Chua Han Mow, 730 F.2d at 1310-11. Findings of historical facts underlying a court's conclusion of voluntariness are given deference in a habeas proceeding, see Marshall, 459 U.S. at 431-32, 103 S.Ct. at 849, and are reviewed for clear error on direct appeal, Hayes, 784 F.2d at 1436. To the extent Read and Chua Han Mow hold that the ultimate determination of voluntariness is a question of fact, they are inconsistent with Marshall, which controls. See Hayes, 784 F.2d at 1436.

II. Ineffective Assistance of Counsel

To demonstrate ineffective assistance of counsel, a convicted defendant must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The two-part Strickland test "applies to challenges to guilty pleas based on ineffective assistance of counsel." Hill v. Lockhart, --- U.S. ---, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).

A deficient performance is one in which counsel made errors so serious that she was not functioning as the counsel guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Iaea must show that defense counsel's representation was not within the range of competence demanded of attorneys in criminal cases. Hill, 106 S.Ct. at 369.

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance....

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

In this case, counsel advised Iaea that he was subject to Hawaii's minimum sentencing law, that there was almost no chance of his receiving an extended or life sentence, and that he had a chance to receive probation if he pled guilty. We find that counsel's performance was deficient.

Defense counsel made a serious error in informing Iaea that he was subject to Hawaii's minimum sentencing statute, Hawaii Rev.Stat. Sec. 706-606.5. The statute was amended in 1979. The prior version of the minimum sentencing provision (effective at Because a guilty plea is a waiver of the Fifth Amendment's protection against compulsory self-incrimination, the right to a jury trial and the right to confront one's accusers, Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969); McCarthy v. United States, 394 U.S. 459, 466,...