U.S. v. Howard, 02-16228.

Citation381 F.3d 873
Decision Date25 August 2004
Docket NumberNo. 02-16228.,02-16228.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Dean HOWARD, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

David B. Koch, Neilsen, Broman & Koch, PLLC, Seattle, WA, for the defendant-appellant.

Helen J. Brunner, Assistant United States Attorney, Seattle, WA, for the plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington; Jack E. Tanner, Senior Judge, Presiding. D.C. Nos. CV-01-05153-JET, CR-98-05442-JET.

Before: D.W. NELSON, KLEINFELD and FISHER, Circuit Judges.

FISHER, Circuit Judge:

When Jeffrey Dean Howard pled guilty in federal district court, he was under the influence of a prescribed narcotic painkiller due to severe leg injuries from a motorcycle accident and consequently, he claims, did not fully understand the nature and consequences of his plea agreement. Howard appeals the district court's denial of his 28 U.S.C. § 2255 habeas petition, arguing that his counsel's performance was constitutionally ineffective in permitting him, while incompetent, to acquiesce in a plea agreement he had seen for the first time just before he agreed to plead guilty.

Because there is no dispute that Howard was taking powerful narcotic drugs that could have dulled his mental faculties and because he has alleged specific, credible facts in support of his ineffective assistance of counsel claim, we conclude that the district court should have permitted Howard to develop these claims more fully in an evidentiary hearing. We have jurisdiction under 28 U.S.C. § 2253, and we reverse and remand.

Factual and Procedural Background

In October 1998, Pierce County Sheriff's deputies discovered a clandestine methamphetamine-manufacturing laboratory at a house Howard shared with his co-defendant Michael Higgs in Puyallup, Washington. Officers found Howard inside a crawl space under the house, along with a cooler containing methamphetamine and cocaine.

Howard was charged on December 10, 1998 with five counts by a superseding indictment: (1) conspiring to manufacture methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846; (2) establishing a drug manufacturing operation in violation of 21 U.S.C. § 856(a)(1), (b); (3) manufacturing methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A); (4) possessing a listed chemical with intent to manufacture methamphetamine in violation of 21 U.S.C. § 841(c)(1); and (5) possessing methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C).

On February 4, 1999, the district court heard Howard's motion to suppress evidence, during which Howard and two government witnesses testified.1 The district court denied the motion.

Howard's trial was set to begin on February 8. That morning, Howard's attorney presented him with a plea bargain, which Howard claims not to have seen until then and under which he would plead guilty to counts 1, 2, 3 and 5 of the superseding indictment. The plea was expressly conditioned on Howard's right to appeal from the district court's denial of Howard's motion to suppress. The jury was waiting in case Howard declined the government's offer. At the time, Howard was experiencing pain as a result of a leg injury, for which he had undergone several surgical procedures and was taking a prescribed narcotic pain killer. Howard's use of the narcotic drug surfaced during the colloquy at the plea hearing:

COURT: As you sit here this morning, are you under the influence of or affected in any way by any alcoholic beverage or narcotic drug of any kind?

HOWARD: No.

COURT: You kind of hesitated.

HOWARD: Well, I am under a narcotic drug, but that's for my pain medication.

COURT: What do you take?

HOWARD: Percocet.

COURT: Doctor's order?

HOWARD: Yes.

COURT: That's pretty tough stuff; isn't it?

HOWARD: The pain I am going through is pretty tough.

COURT: That's why you are getting Percodan; isn't it? Other than that, any others?

HOWARD: No, sir.2

The district court did not inquire further regarding the drug or its effects and accepted Howard's plea. On June 18, 1999, the district court sentenced Howard to 292 months of imprisonment. Howard later appealed the denial of his motion to suppress, and we affirmed. See United States v. Howard, No. 99-30233, 2000 WL 728234 (9th Cir. May 22, 2000) (unpublished).

On March 23, 2001, Howard filed a pro se § 2255 habeas petition, raising several grounds, including his present ineffective assistance of counsel claim. On August 27, 2001, Howard sought an evidentiary hearing on the ineffective assistance of counsel claim. The district court denied the § 2255 petition without holding an evidentiary hearing and denied a certificate of appealability in May 2002.

Howard thereafter filed a timely notice of appeal. We granted a certificate of appealability on the ineffective assistance of counsel claim and appointed counsel for Howard.

Discussion
I.

Howard seeks an evidentiary hearing on his claim that his counsel was ineffective in permitting him to plead guilty while Howard was under the adverse effect of Percocet/Percodan, a narcotic drug.3 To demonstrate that the district court erred in not granting an evidentiary hearing, (1) Howard must allege specific facts which, if true, would entitle him to relief; and (2) the petition, files and record of the case cannot conclusively show that he is entitled to no relief. 28 U.S.C. § 2255;4 see also United States v. Rodrigues, 347 F.3d 818, 824 (9th Cir.2003). A claim must be "so palpably incredible or patently frivolous as to warrant summary dismissal" in order to justify the refusal of an evidentiary hearing. United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir.2003) (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.1984)).

Howard must therefore have alleged that counsel's permitting Howard to plead guilty was outside the wide range of professionally competent assistance and that there is a reasonable probability that but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 690, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Further, the petition, files and record must not conclusively foreclose such a claim. The district court denied Howard's claim because it found that "the record clearly shows that the defendant was competent to plead guilty and that his counsel advocated appropriately on his behalf at sentencing." The district court thus made findings regarding (1) Howard's competency to plead and (2) his counsel's professional performance. We address each in turn.5

A. Howard's Competency to Plead Guilty

To establish that his counsel provided ineffective assistance in light of Howard's alleged incompetency, Howard must first demonstrate that he was indeed incompetent to plead guilty. See Sandgathe v. Maass, 314 F.3d 371, 379 (9th Cir.2002) (affirming district court's denial of defendant's ineffective assistance of counsel claim because defendant had offered no evidence for his asserted incompetence to plead guilty as a result of taking psychotropic drugs).

Competence is defined as the ability to understand the proceedings and to assist counsel in preparing a defense. See Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam); see also Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). "When analyzing competence to plead guilty, we look to whether a defendant has `the ability to make a reasoned choice among the alternatives presented to him.'" Miles v. Stainer, 108 F.3d 1109, 1112 (9th Cir.1997) (quoting Chavez v. United States, 656 F.2d 512, 518 (9th Cir.1981)). This standard is no higher than the Dusky standard for competence to stand trial. Id. (citing Godinez, 509 U.S. at 402, 113 S.Ct. 2680).

Howard argues that the Percocet/Percodan rendered him incompetent to make a reasoned judgment about whether to accept the guilty plea offer, and his lawyer should not have allowed him to do so. In evaluating whether Howard has set forth enough to warrant an evidentiary hearing on his claim and whether the record rebuts his claim, we are guided by several cases in which § 2255 petitioners moved to set aside their convictions on voluntariness grounds, claiming incompetence due to the ingestion of drugs before pleading guilty. See, e.g., Sasser v. United States, 452 F.2d 1104, 1106 (9th Cir.1972) (affirming district court's denial of § 2255 petition without holding a hearing); Lopez v. United States, 439 F.2d 997, 999-1000 (9th Cir.1971) (reversing and remanding for evidentiary hearing). Although these cases involved the direct issue of competence to plead guilty rather than an indirect claim of ineffective assistance of counsel, they are instructive as to what Howard must allege to establish that he was incompetent, a predicate to demonstrating that his counsel was ineffective.

In Lopez, the petitioner alleged that the prison authorities had given him a prescribed chemical cocktail consisting of phenobarbitol, dilantin and musline on the day of the plea. 439 F.2d at 999. He claimed that consequently he was "docile and more prone to the suggestions put to" him by counsel, felt "numb and stuporous" and was "unable to fully appreciate" his acts. Id. The district court denied this claim without hearing, relying on a psychiatrist's report, the transcript of the plea hearing at which the defendant was examined "with great care," an affidavit from trial counsel stating his belief that Lopez was competent and the trial judge's personal observations of the petitioner at the time of the plea. Id. at 998. We reversed and remanded for an evidentiary hearing, concluding:

Neither the psychiatrist's report, nor counsel's affidavit, nor the...

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