Gregory Christian v. David Ballard , 792 F.3d 427 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7333
GREGORY BRENT CHRISTIAN,
Petitioner - Appellant,
v.
DAVID BALLARD,
Respondent – Appellee,
and
MARK A. BEZY, Warden, U.S. Penitentiary, Terre Haute; STATE
OF WEST VIRGINIA; DARRELL MCGRAW; TERESA WAID, Warden,
Huttonsville Correctional Center,
Respondents.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:05-cv-00879)
Argued: December 9, 2014 Decided: July 8, 2015
Before TRAXLER, Chief Judge, and GREGORY and AGEE, Circuit
Judges.
Affirmed by published opinion. Chief Judge Traxler wrote the
majority opinion, in which Judge Agee joined. Judge Gregory
wrote a separate dissenting opinion.
ARGUED: Matthew Nis Leerberg, SMITH MOORE LEATHERWOOD, LLP,
Raleigh, North Carolina, for Appellant. Elbert Lin, OFFICE OF
THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West
Virginia, for Appellee. ON BRIEF: Patrick Morrisey, Attorney
General, Christopher S. Dodrill, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston,
West Virginia, for Appellee.
2
TRAXLER, Chief Judge:
In September 2003, petitioner Gregory Brent Christian
(“Christian”) pled guilty in West Virginia state court to two
counts of first-degree armed robbery, and to one count of
malicious assault arising out of his shooting of a police
officer who was investigating the robberies. Pursuant to a plea
agreement, Christian was sentenced to concurrent terms of 25
years imprisonment on the robbery counts, and to a consecutive
term of 3-15 years imprisonment on the malicious assault count.
In addition, the plea agreement allowed Christian to transfer
immediately into federal custody and to serve his state
sentences consecutively to the 5-year federal prison sentence
that he had received for possession of a destructive device and
possession of a firearm by a convicted felon.
In state post-conviction proceedings, Christian asserted
that he was innocent of the armed robberies and that, while he
did shoot at the police officer, the officer had instead been
shot by another officer at the scene. Among other things,
Christian claimed that his trial counsel failed to investigate
the crimes and prepare for trial, that the prosecutor withheld
exculpatory evidence, and that his guilty plea was involuntarily
coerced by counsel, the prosecutor, and the conditions of the
state court jail. Following an evidentiary hearing, the state
court denied relief.
3
Christian next petitioned the district court for federal
habeas relief under 28 U.S.C. § 2254. The district court denied
relief but granted a certificate of appealability on the issue
of whether trial counsel had rendered ineffective assistance in
advising Christian regarding the applicability of the West
Virginia recidivist statute. Because Christian has failed to
demonstrate that the West Virginia state court’s rejection of
this claim resulted from an unreasonable factual or legal
determination, based upon the conflicting evidence presented to
it, we affirm.
I.
During the late evening and early morning hours of June 3
and 4, 2002, a Pizza Hut restaurant and a Marathon gas station,
located in Huntington, West Virginia, were robbed at gunpoint.
Officer Joe Combs and two other police officers responded to the
robberies and were advised that the suspects might be at the
apartment of Tammy Maynard. A car matching the description of
the suspect vehicle was parked in front of Maynard’s apartment.
When the officers knocked on Maynard’s door, she assured them
that no one was inside and allowed them to enter. As the
officers entered the apartment, however, Christian, who was
hiding in the shadows of the hallway, began shooting at them.
Officer Combs suffered a gunshot wound to the chest. Following
an exchange of gunfire, Christian surrendered.
4
Gerald Henderson, a public defender, was appointed to
represent Christian. Christian admitted to the police that he
shot Officer Combs, but claimed that he thought he was shooting
at “a black drug dealer that [he had] just robbed.” J.A. 383.
Christian admitted to Henderson “in their initial interview that
[he] had committed the robberies.” J.A. 255.
Henderson reviewed the discovery provided by the state,
including pictures, an FBI report, Christian’s taped statement,
and the statements of the police officers. He also participated
in several preliminary hearings. Among other incriminating
evidence were the statements of Richard Adams, who was also in
Maynard’s residence when Officer Combs was shot, and those of
Maynard. Adams confessed to the two armed robberies and
identified Christian as his accomplice. Maynard received money
from one of the robberies and believed that Christian knew he
was shooting at a police officer. At least one robbery
eyewitness identified Christian from a photo line-up. Although
Christian did not specifically confess to the police that he
robbed the Marathon or Pizza Hut, one of the police officers
stated that Christian later admitted that he “figured it was the
police [coming into the apartment] because [he] had just robbed
a place.” J.A. 374 (emphasis added).
5
A.
Christian and Adams were subsequently indicted in the
Circuit Court of Cabell County, West Virginia, for two counts of
first-degree robbery involving the use of a firearm (Counts I
and II). See W. Va. Code § 61-2-12(a)(1). Christian was also
indicted for malicious assault on a police officer (Count III).
See W. Va. Code § 61-2-10b(b). In a separate federal
indictment, Christian was charged with possession of a Molotov
Cocktail, in violation of 26 U.S.C. §§ 5861(d), 5845, and
possession of a firearm by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2).
Under West Virginia law, first-degree armed robbery is
punishable by a determinate term of imprisonment of not less
than ten years, but “which may be any number of years from ten
to life.” State ex rel. Faircloth v. Catlett, 267 S.E.2d 736,
737 (W. Va. 1980); see W. Va. Code § 61-2-12(a)(1). Henderson
testified that the maximum penalty that had been upheld by the
West Virginia Supreme Court “was 231 years on one count of armed
robbery” and that “the last three trials here on armed robbery
each individual got between 60 and 80 years.” J.A. 450.
Malicious assault of a police officer is punishable by an
indeterminate term of imprisonment of “not less than three nor
more than fifteen years.” W. Va. Code § 61-2-10b(b). Good-time
credits allow a prisoner the opportunity to cut his total
6
sentence in half, but are not applicable to a life sentence.
See W. Va. Code § 28-5-27(c), (d). 1
Under West Virginia’s recidivist statute, a defendant
convicted of a second felony offense will have five years added
to his determinate sentence. See W. Va. Code § 61-11-18(a). If
the court imposes an indeterminate sentence, the minimum term is
doubled. See id. A defendant convicted of a third felony
offense shall be sentenced to life in prison, without
eligibility for parole for 15 years. See W. Va. Code §§ 61-11-
18(c), 62-12-13(c). The prosecuting attorney must give
information of prior felony offenses to the trial court
“immediately upon conviction and before sentence.” W. Va. Code
§ 61-11-19. A separate recidivist proceeding is then held, in
which a factual determination must be made, either by admission
or by jury, that the defendant is the same person. See id.As relevant to his sentencing in this case, Christian had
two qualifying felony convictions. However, because these prior
convictions were returned on the same day, they would only have
1 “[F]or good conduct in accordance with” West Virginia’s
state statute, inmates “shall be granted one day good time for
each day he or she is incarcerated, including any and all days
in jail awaiting sentence which are credited by the sentencing
court to his or her sentence.” W. Va. Code § 28-5-27(a), (c).
The good-time credits are “deducted from the maximum term of
indeterminate sentences or from the fixed term of determinate
sentences.” W. Va. Code § 28-5-27(b).
7
counted as a single felony for purposes of the recidivist
statute. See State ex rel. Hill v. Boles, 143 S.E.2d 467, 468
(W. Va. 1965). 2 Thus, Christian had one strike against him and,
if convicted of the 2002 state charges, he was subject to a
recidivist information that could have raised his minimum
determinate sentence for one robbery to 15 years, and his
minimum indeterminate sentence for the malicious assault to 6-15
years.
B.
In order to properly evaluate whether Christian’s trial
counsel rendered deficient advice regarding Christian’s exposure
to an enhanced sentence under the West Virginia recidivist
statute, it is necessary to recount in some detail the
circumstances of counsel’s representation and the plea
negotiations that took place.
As noted above, Christian admitted to Henderson in their
initial interview that he committed the armed robberies, for
which he faced unlimited determinate state prison sentences from
2Christian was convicted in March 1990 of burglary and of
grand larceny, in violation of W. Va. Code § 61-3-11 and § 61-
3-13, respectively. Christian had also pled guilty to an
additional grand larceny charge in September 1988. All three
convictions were included as prior felonies in the federal
indictment. However, the district court below determined that
Christian had been granted state habeas relief from his 1988
conviction and could find no indication that he was retried on
that charge.
8
10 years to life imprisonment, and that he shot Officer Combs,
for which he faced a 3-15 year indeterminate prison sentence,
without regard to any recidivist exposure. In addition,
Christian was facing federal prison sentences for his
destructive device and firearm charges. Christian “directed
[Henderson] to engage in plea negotiations from the onset of
counsel’s representation,” J.A. 255, and this was done in
cooperation with his federal public defender (“FPD”).
As early as December 2002, Christian was willing to accept
a 25-year sentence for both robberies, plus the 3-15 year
sentence for the malicious assault, provided the time he
received for the robberies was “concurrent with any time he
receive[d] on his pending Federal charges.” J.A. 594.
Christian “suffers from Hepatitis C and substantial liver
damage,” id., and he wanted to serve as much of his time as
possible in the federal penitentiary, where he felt the
conditions were better. At the time, Christian’s FPD expected
Christian’s federal sentence to be 188 months. Under this
circumstance, Christian would be able to serve most if not all
of his state sentence on the robbery charges in federal prison
(with application of the state good time credits), leaving him
to serve only the 3-15 years on the malicious assault charge in
state prison. Christian would also be eligible for parole from
the malicious assault conviction in three years, once he began
9
serving that sentence, although counsel acknowledged that there
was a good chance that Christian would not survive that long in
light of his poor health.
The state prosecutor was willing to consider Christian’s
proposal if Christian supplied proof of his medical problems,
but he would not agree to a concurrent sentencing recommendation
until Christian actually received his federal sentence.
Christian’s FPD also advised Christian that the federal charges
would have to be resolved first to achieve a concurrent sentence
with the state charges, and he “agreed to pay for a physician to
examine Mr. Christian and report on his current condition and
life expectancy.” J.A. 594.
Christian pled guilty to the federal charges on February
11, 2003. On May 27, 2003, however, he was unexpectedly
sentenced to a term of only 63 months in federal prison, with a
recommendation that he be medically evaluated for Hepatitis C
and any other serious medical conditions. Plea negotiations
continued on the state charges, but it was clear that Christian
would not be able to serve the bulk of his expected state time
in federal prison as he had hoped.
On July 23, 2003, Henderson advised the prosecutor that
Christian was willing to plead guilty to the malicious assault
count only, provided the 3-15 year sentence ran concurrently
with his federal sentence. This proposal would have allowed
10
Christian to serve out the bulk of his state sentence on this
single count in federal prison first, and it appears that
Henderson and Christian agreed that it would be best to sever
the officer-shooting charge from the armed robberies, due to its
high-profile nature.
The state prosecutor responded with a plea offer of 40
years on the robberies, concurrent with the federal sentence,
plus the consecutive 3-15 years on the malicious assault.
Christian countered with a request for 30 years on the robberies
instead. No mention was made during these negotiations of
Christian’s exposure to a recidivist proceeding or sentence.
On August 29, 2003, Christian agreed to the terms of the
final plea agreement with the state. Under the agreement, the
prosecutor would recommend a 25-year sentence for each robbery,
to be served concurrently with each other and with credit for
the time Christian had already served in the Cabell County jail,
plus 3-15 years for the shooting of Officer Combs, all to be
served after Christian exhausted his 5-year federal sentence.
The prosecutor also agreed to a number of specific conditions
that Christian had requested:
(1) Christian’s time served in the Cabell County Jail
would be applied to the first-degree robbery
sentences, and the malicious assault sentence would be
served consecutive to it;
11
(2) Christian would be allowed to waive the
presentence investigation and be immediately sentenced
on his plea date;
(3) The prosecutor and defense counsel would “state
on the record that [they] both waive this right and
that it is clearly [Christian’s] desire and in his
best interests to be returned immediately to Federal
custody;”
(4) The prosecutor would immediately “call the
Federal Marshall . . . and make the necessary
arrangements” to transfer custody;
(5) There would “be absolutely no mention[] . . . of
Mr. Christian’s Hepatitis C condition” by “anyone
associated with th[e] case;”
(6) The prosecutor would take steps to have all of
the court costs waived, in the pending case and any
others involving Christian, so that Christian “at
least could apply for a driver’s license” if released;
and
(7) There would “BE NO RECIDIVIST” filed against
Christian after he pled guilty.
J.A. 597, 267. Under this arrangement, Christian would still be
able to serve his 5-year federal sentence first, and there would
be no delay in his ability to be immediately transferred to
federal custody. Upon his release from federal prison,
Christian would be eligible for parole from his state sentence
in approximately 11 years. If parole were denied, Christian
would be able to exhaust his entire state sentence in
approximately 19 years. Christian was 32 years old at the time.
C.
On September 2, 2003, Christian arrived in state court to
enter his guilty plea. At the beginning of the plea hearing,
12
however, the trial court conveyed its understanding that
Christian had decided to enter a partial plea instead of the
full plea. Counsel then informed the court that Christian
“[ha]s changed his mind and has rethought it and he’s decided
it’s the best thing just to go through with the original plea.”
J.A. 265.
In the plea questionnaire, Christian confirmed that he
understood the minimum penalty (“10 years”) and maximum penalty
(“unlimited”) for each robbery charge, as well as the mandatory
3-15 year penalty for the officer shooting. J.A. 605.
Christian denied having “me[t] at any time with the prosecutor .
. . concerning [his] plea of guilty when [his] counsel was not
present.” J.A. 606. Christian further represented that he was
“satisfied with the representation [he] received from [his]
lawyer.” J.A. 268.
Christian admitted on the record: “I robbed a Marathon
station and a Pizza Hut restaurant” with a firearm, J.A. 269,
and “I shot the police officer with the firearm,” J.A. 270. The
trial court then explained to Christian the potential recidivist
consequences if he were to go through with the current plea and
commit a third felony in the future:
Q: Do you understand that under [West Virginia’s]
three strikes law, these will count as another strike
against you, and that in the future if you’re found
guilty or plead guilty to any felonies, the fact that
these are on your record could be used to increase
13
your penalties, and in your case, could give you life
in prison because it would be strike three.
A: Yes, sir.
J.A. 270 (emphasis added).
When given an opportunity to speak in support of his
request, Christian made the following additional representation:
I would just like to apologize to the police officer
for what happened that morning. I did a drug that
I’ve never done before in my lifetime. I did some
crack cocaine and my life just changed just like that.
It’s a powerful drug. I mean, it’s a horrible drug.
There’s – I don’t use that as no excuse. I mean, I
accept the responsibility for what’s happened. But I
never done a drug like that before, and just all of a
sudden I do this drug and out of money and I go rob a
store and . . . rob a Pizza Hut.
J.A. 274. Henderson told the court that Christian had also
written a letter to Officer Combs apologizing for these “very
serious and very horrible crimes,” and that they were “very
fortunate” that Officer Combs was present to speak to the court.
J.A. 275. Officer Combs described his investigation and the
shooting incident, and essentially spoke in support of
Christian’s sentencing request. He confirmed that Christian had
apologized to him, and also added that Christian had told him
that “he wanted to get involved in a restitution program . . .
in prison.” J.A. 277. Officer Combs told Christian, “What I’ll
take from you is the time the Judge is going to sentence you to.
I’ll take that. And hopefully you can do something productive
with that time.” J.A. 277.
14
At the conclusion of the hearing, the court sentenced
Christian in accordance with the recommended plea agreement, and
Christian was transferred into federal custody the following
day, as promised. He did not appeal.
II.
Nearly four years later, in July of 2007, Christian filed a
pro se habeas petition in the state circuit court seeking relief
from his state court convictions. 3 In his petition, Christian
refuted virtually every factual representation that he made at
his guilty plea hearing. He claimed that he was actually
innocent of the crimes and had been coerced into pleading guilty
by his counsel, the prosecutor, and the conditions of his
confinement in the Cabell County Jail. With regard to the armed
robberies, Christian claimed “that his identity was mistaken for
someone else and that the co-defendant, Richard Adams,
wrongfully accused [him of being his accomplice] in exchange for
the police ending a possible homicide investigation against Mr.
Adams.” J.A. 243. With regard to the shooting of Officer
Combs, Christian claimed that Officer Combs did not announce
himself at the apartment and that he thought he was shooting at
an intruder (but not, as he admitted having told the police
3
Between 2003 and 2007, Christian filed three petitions for
a writ of habeas corpus in the original jurisdiction of the
state supreme court, which were summarily refused.
15
earlier, a drug dealer that he had just robbed). In addition,
Christian claimed that the ballistics report would have shown
that Officer Combs was likely shot by his own partner and not by
Christian.
A.
The majority of Christian’s habeas claims fell into three
categories. First, Christian alleged that his Sixth Amendment
right to effective assistance of counsel was violated in seven
separate respects, all revolving around his claim that counsel
ignored his claims of innocence, refused to prepare for trial,
refused to file motions on his behalf, and “pressured [him] into
pleading guilty rather than honoring [his] requests for a jury
trial. Essentially, Christian [claimed that] his guilty plea
was brought about because trial counsel only divulged to [him]
the evidence that tended to prove [his] guilt rather than any
evidence that may have tended to exonerate [him].” J.A. 254.
Second, Christian claimed that the prosecutor withheld
favorable evidence that would have supported his claims of
innocence, including the ballistics evidence that he claimed
might have exonerated him from the shooting of Officer Combs.
In an amended petition, Christian additionally claimed, again
contrary to the representation he made at the time of his plea,
that when the state prosecutor learned of Christian’s last-
minute decision to reject the plea agreement and to plead guilty
16
to just the malicious assault charge on the morning of his plea,
the prosecutor improperly approached Christian outside the
presence of his counsel about his decision. Specifically,
Christian claimed:
the state’s prosecutor approached the petitioner
without the presence of his counsel and stated “this
is a shocker, are you sure you know what you[’re]
doing?”. The petitioner responded “can you get my
attorney?”. The petitioner believes that the exchange
triggered a chain reaction, which led the petitioner
to plead guilty to all counts of the indictment. . . .
Counsel then informed the petitioner that the
prosecution would seek enhancement under the
Recidivist Statute if the petitioner persisted with
pleading guilty to [the single count] of the
indictment. As a result of the prosecutor’s position,
the petitioner pled guilty to all three counts of the
indictment with the prosecutor agreeing not to request
that recidivist proceedings be pursued against the
petitioner.
J.A. 209 (emphasis added); see also S.J.A. 12 (alleging that
“the Prosecutor threatened that he would pursue recidivist
proceedings against Petitioner (interpreted by Petitioner as
meaning a life sentence), if he elected to plead to only count
III, rather than all counts”); S.J.A. 13 (alleging “that the
prosecution used the threat of recidivist proceedings to inspire
Mr. Christian’s guilty plea”).
Finally, Christian claimed that his guilty plea was
involuntarily coerced by the conditions at the Cabell County
Jail. Christian alleged that he was subjected to ongoing
“beatings and death threats,” and that counsel ignored his
17
requests to file a motion for alternative confinement and
“exploited [this abuse] to compel him to plead guilty.” J.A.
182. According to Christian, his counsel “negotiated a plea
agreement to where, upon pleading guilty to all counts, Mr.
Christian would immediately be sentenced and expeditiously
removed from the Cabell County Jail (from the reach of his
assailants) and relocated to a federal facility,” J.A. 182, and
“often indicated that [Christian] could quickly escape the life
threatening danger that overshadowed him at the Cabell County
Jail, if he would only plead guilty to all of the charged
violations,” J.A. 182. Christian similarly alleged that “[o]n
the [day of his plea], Counsel . . . vigorously emphasized that
unless Mr. Christian pled guilty to all counts, he would not
receive the plea agreement, and would therefore remain at the
Cabell County Jail.” J.A. 183.
Christian did not allege an ineffective-assistance-of-
counsel claim based on counsel’s advice as to the applicability
of the recidivist statute. However, in connection with his
involuntary plea claim, Christian made the following pro se
allegation:
In contrast to the ballistics laboratory report .
. ., Counsel coer[c]ed Mr. Christian into believing
that a jury trial would be utterly hopeless on the
shooting incident. Counsel thereafter slovenly
advised Mr. Christian that if he pled guilty to only
the shooting incident, there would be no plea
agreement, and that the Prosecution would seek a
18
sentence in accordance with West Virginia’s recidivist
laws, [interpreted by Mr. Christian as meaning a
mandatory life sentence]. However, after pleading
guilty Mr. Christian learned that West Virginia’s
recidivist laws could not have lawfully applied to
him.
J.A. 183 (emphasis added). After state habeas counsel was
appointed to represent Christian, an amended petition was filed
on his behalf. Although the amended petition refined
Christian’s claims that counsel was constitutionally deficient
in numerous respects, it also did not allege that counsel’s
recidivist advice was constitutionally deficient or that, but
for this advice, Christian would not have pled guilty. With
regard to the involuntary plea claim, the amended petition
stated as follows:
The petitioner further avers that his lawyer coerced
him into believing that a jury trial would be utterly
hopeless regarding the charge of maliciously wounding
a police officer. His counsel advised the petitioner
that if he pled guilty to only the shooting incident
there w[ould] be no plea agreement and that the
prosecution would then seek a sentence under West
Virginia’s recidivist laws. Trial counsel made the
petitioner believe that the plea agreement was in the
petitioner’s best interest even though the agreement
required the petitioner to plead guilty to all counts
of the indictment. The petitioner asserts that his
lawyer emphasized that unless the petitioner pled
guilty to all counts, the petitioner would then remain
at the horrid conditions of Cabell County Jail.
J.A. 210. Thus, the amended petition repeated Christian’s prior
pro se claim that counsel “coerced him into believing” that he
could not defeat the officer-shooting charge, but did not allege
19
that counsel’s recidivist advice was incorrect or
constitutionally deficient. Moreover, the amended petition
omitted Christian’s prior pro se claim that he “interpreted”
counsel’s statement about the prosecutor’s intent as “meaning a
mandatory life sentence,” as well as his incorrect assertion
that “West Virginia’s recidivist laws could not have lawfully
applied to him.” J.A. 183.
B.
On November 30, 2010, the state habeas court conducted an
omnibus evidentiary hearing to address Christian’s claims. Both
Henderson and Christian testified at the hearing and gave
markedly different accounts of the events in question.
Ultimately, the state court denied Christian’s habeas petition
in its entirety, based primarily on credibility determinations
and a failure of factual proof. 4
The bulk of Christian’s testimony revolved around his claim
that he was innocent, that he told counsel that he was innocent,
and that he told counsel that he did not think he actually shot
Officer Combs. He testified that he begged counsel to
4
During state post-conviction proceedings, Christian was
intermittently appointed counsel and allowed to proceed pro se,
at his request. Ultimately, the state court appointed state
habeas counsel to act as co-counsel with Christian at the
evidentiary hearing. Under the odd arrangement, Christian’s
habeas counsel questioned Christian, and Christian was allowed
to personally question Henderson.
20
investigate the crimes and file motions on his behalf, but that
counsel refused to do so and pressured him to plead guilty
instead. According to Christian:
[counsel] would come in and tell me all the negative,
you know, you’ve got to, you know, you’re caught red-
handed with a smoking gun, you’ve got people that
identified you out of a photo lineup, you got Adams
who has implicated you, you’ve got Sergeant Johnson
who has testified to this, and he would mention things
like you’re going to get 100 years in prison. And
quite frankly, I know as odd as this may sound, I told
him that I did not care if I got 2 or 300 years, I
wanted a trial.
J.A. 563; see also J.A. 548 (“I remember one time him yelling,
You’re going to get 100 years in prison just for one robbery
like the other guy did. And . . . I looked at him and I said, I
do not care if I get 300 years in prison, I want a trial.”).
Christian testified that he “lied to the court” at the plea
hearing and that “[w]ithin a few hours . . . of entering the
plea,” he regretted the decision and unsuccessfully attempted to
contact counsel to see if “the judge would have allowed [him] to
withdraw it.” J.A. 569. He testified that he had “buyer’s
remorse” and felt that “it just wasn’t the package [he]
bargained for.” J.A. 555. However, Christian admitted that it
was not the state court bargain that he failed to realize, but
rather the benefits of the plea to the federal charges that
“didn’t pan out” as he had hoped. J.A. 566. According to
Christian, he felt “tricked” into pleading guilty to the federal
21
counts on the promise that his state sentence would “run with
this mandatory time . . . in federal court.” J.A. 558. After
he pled guilty to the federal charges, however, his federal
sentence “plummet[ed] down to 63 months.” J.A. 559. Christian
testified that, “I agreed to a plea because I thought I was
facing a mandatory federal sentence, and of course later we
found it was less than we thought, but at the time it was my
request that [counsel] conduct . . . the investigations, file
the motions and continuously prepare my case for trial, and
that’s just something he wasn’t willing to do.” J.A. 553.
In sum, while Christian did obtain the benefit of serving
his federal time first, he complained that he did not get enough
time in federal prison and had counted on more when he entered
his guilty plea to the federal charges. And Christian thought
“that it should have been only fair that that 40 years was ran
concurrent being that I moved to my detriment and pled . . . to
the federal counts as they had asked me to do.” J.A. 560.
With regard to Christian’s allegations regarding the state
prosecutor’s “threat” of recidivist proceedings on the morning
of his plea, and counsel’s alleged advice in response thereto,
Christian briefly testified as follows:
Q: At the time you pled, did you believe you were
eligible for [a] recidivist life sentence?
A: Absolutely, yes.
22
Q: That was based on Mr. Henderson advising you of
that?
A: Absolutely. We discussed it right there in that
room. He told me, . . . Greg, you’re going to walk in
that courtroom and you’re going to plead guilty to
malicious assault on a police officer. You’ve got
them two prior felonies. He said, Hate to be the one
to tell you, but what they’re going to do – you’re
entering this guilty plea. It wasn’t a plea, I was
just pleading outright. I was just trying to get rid
of that charge, that was the idea. It wasn’t a plea
agreement or an arrangement. I’m going to walk in and
just plead guilty to this malicious assault, let them
have that so I can go to trial on the robberies I did
not commit.
And that’s when . . . he left and comes back and
said, I’ve got some bad news. And that’s when he
describes to me what would happen if I did just plead
to the malicious assault, and we had some concerns
about that.
Matter of fact, even with that, though, even with
that I was still not going to – I still did not
waiver. What happened was he left, [the prosecutor]
come in there and he said, You sure you know what
you’re doing. And then after that [the prosecutor]
went and got Henderson and they both come back, and
when they come back that’s when the deal was re-
brokered back into the original thing.
J.A. 553-54 (emphasis added).
Henderson had little memory of the specifics of his
representation of Christian, which by that time had occurred
over seven years prior, but he was able to testify in part from
his case files and the plea negotiation letters. See J.A. 391
(“I can’t recall any specific conversations.”); J.A. 392 (“I
can’t recall a specific conversation that many years ago.”).
23
Henderson testified that Christian admitted his guilt from
the outset, as reflected in his initial interview notes, and
that Christian did not tell him that he “felt as if none of
[his] rounds had struck Officer Combs.” J.A. 514. He testified
that Christian also instructed him to negotiate a plea deal from
the outset, with the goal of allowing him to serve as much of
his state time as possible in the federal penitentiary, where
Christian felt the conditions were better. Henderson denied
that Christian told him that he was being subjected to ongoing
abuse at the hands of his jailers, and testified that he
“wouldn’t have told [Christian] to plead simply to escape” the
“conditions of [his] confinement.” J.A. 479.
Henderson was also unable to recall the events that
occurred on the morning of Christian’s plea hearing, nor did he
even recall Christian changing his mind about the plea
agreement. See J.A. 454 (testimony that “if you were thinking
about changing your mind [about the plea], I would have said,
Well, the judge wants to know what you want to do and either way
is fine,” but “I don’t recall it; it was eight years ago.”).
Henderson likewise did not recall the specifics of any
discussions about the prosecutor’s intent to file a recidivist
information if Christian rejected the plea agreement. Henderson
testified as follows:
24
Q: Okay. Now, when I was positioned to plead guilty
to just the malicious assault charge, . . . did you
not . . . say to me, Greg, you have two prior
felonies, that if you plead guilty to this charge then
the state will implement recidivist proceedings
against me?
A: I note in the letter that I made reference to
recidivist, and I know you advised me you had two
prior felonies. And . . . I know I put in the final
offer to [the prosecutor] there will be no recidivist.
But my recollection, when I asked your record, do you
have any prior felonies, that you advised me you had
two.
Q: Right. . . . That was in the original plea where
it was presumed I would plead to all three counts the
week before, there would be no recidivist filed.
A: Correct.
Q: But when we got to court and . . . I changed
everything and went to enter just the malicious
assault, did you advise me that, Greg, hey, if you do
that, . . . the state will pursue recidivist
proceedings against you . . . because you’ve got two
prior felonies, do you recall that?
A: Yeah. Now, I would have told you, yes, if you
enter a plea to a felony with no agreement that the
state won’t recidivist, then they have every right to
file their recidivist petition.
Q: Right. And . . I ended up taking the other plea
instead because if I had pled to the one count of the
malicious assault with the two prior felonies, . . .
the state would have moved, the way we understood it
at the time, would move for a life sentence in prison;
correct?
A: If you have two prior independent felonies . . .,
then, yes, they can file a recidivist. And if you had
told me you had two prior, I would have explained to
you doing a blanket plea without an agreement, they
would have that right.
25
Q: And do you recall that? You said, Hey, if you do
that, you’re going to receive, the state will pursue
recidivist proceedings; correct?
A: I don’t recall what I told you, but I would have
in every other case told my client if they had two
priors that could be used, then the state could do a
recidivist, and under West Virginia two usable priors
would result in a life without eligibility for 15
years.
Q: Okay. . . . [A]fter that exchange, was that not
when we said . . . it would not be a good move for me
to plead just to one count, that I should take the
whole deal and plead to the 40 years, the way it ended
up happening; is that correct?
A: No, I would have told you that pleading to one
count, if you have two usable felonies, which you told
me, then of course that’s not in your best interest
for them to give you life without eligibility if they
can prove those priors. . . . That being the case.
Now, in a different situation it might be different.
Q: . . . . If we just entered a plea to the one
count, then the state would pursue the recidivist
proceedings, and you’re exposing yourself to life,
that’s the way we understood it; correct?
A: I . . . would have explained to you that you
understand that if you enter a plea to this charge and
you have two felonies, as you told me you did, that
they could file a petition, and if they prove those
felonies that are usable felonies under law, that you
could get life without eligibility for 15 years. I
would have advised you of that.
Q: . . . . Are you now aware . . . those two prior
felonies need to be like in . . . a separate
indictment or a separate occurrence?
A: . . . . You can’t have a guilty finding on two
felonies on the same day, same time and that count as
two. That would only be one felony. . . .
Q: Are you now aware that my two prior felonies were
contained in one single indictment, that I never could
have been exposed actually to a life sentence?
26
A: I saw something in one of your pleadings, but I
was unaware that there were separate at the time.
When I asked you do you have a prior felony, you said
you had two felonies.
J.A. 515-20 (emphasis added).
C.
The state habeas court denied Christian’s petition in its
entirety. The court found that Christian told Henderson in
their initial interview that he had committed the robberies and
shot Officer Combs, which was supported by “[n]otes made by
trial counsel contemporaneous with the interview and entered
into the files of the Public Defender’s office.” J.A. 255. The
state court also found that Christian “directed counsel to
engage in plea negotiations from the onset of counsel’s
representation.” J.A. 255. The court rejected Christian’s
claim that counsel’s investigation was constitutionally
deficient, as well as his claims that the prosecutor suppressed
exculpatory evidence and engaged in prejudicial misconduct by
speaking to Christian outside the presence of his counsel on the
day of his plea.
The state court also rejected Christian’s claim that his
guilty plea was coerced by his alleged mistreatment at the
Cabell County jail, noting that there were “[n]o photographs, no
medical records, and no affidavits of witnesses . . . attached,
nor was any evidence adduced at the hearing to support
27
[Christian’s] claims of beatings and threats (other than [his
own] testimony to this effect).” J.A. 247.
Finally, the state court rejected Christian’s claims that
he was pressured by counsel to take the plea because Christian
“could not articulate any specific factor of pressure that had
its origins in the words or testimony of [his state trial]
counsel [and he] did not state with even a modicum of
specificity any instance where counsel pressured [him] to enter
into a plea.” J.A. 257. The state court also found that
Christian failed to “establish by a preponderance of the
evidence that his trial counsel acted incompetently, . . . or
that [his] guilty plea was motivated by an alleged act of
counsel’s incompetency.” J.A. 249.
D.
Christian thereafter filed a pro se appeal from the denial
of habeas relief to the Supreme Court of Appeals of West
Virginia (“the West Virginia Supreme Court”). In this appeal,
Christian raised for the first time an ineffective-assistance-
of-counsel claim based upon trial counsel’s alleged misadvice as
to his recidivist exposure.
Relying primarily upon Henderson’s testimony, Christian
argued that he had told Henderson that he had two prior
felonies, but that counsel “made no additional inquiries into
the circumstances of [Christian’s] prior felonies.” S.J.A. 24.
28
Christian additionally argued that, on the day of the plea,
“counsel notified [him] that the State would seek to enhance his
sentence under the recidivist statute if he persisted with
pleading to count-3 only,” and that he “interpreted counsel’s
assertion as meaning ‘a mandatory life sentence.’” S.J.A. 24
(emphasis added). The supreme court summarily affirmed the
decision of the state circuit court.
The district court thereafter denied Christian’s pro se
federal habeas petition, which raised the identical claims that
counsel did not inquire into the circumstances of Christian’s
prior felony record and that Christian “interpreted counsel’s
assertion as meaning ‘mandatory life sentence.’” J.A. 83
(emphasis added). Before the district court, Christian
additionally argued that his “counsel effectively advised him
that he would receive a ‘life’ sentence if he persisted with
only pleading to the malicious assault charge, without any
reference to a 5-year enhancement under W. Va. Code § 61-11-
18(a).” J.A. 709 (emphasis in original). The district court
held that “it was not constitutionally deficient representation
for counsel to choose not to investigate the details of
Christian’s prior felony convictions, and instead concentrate
his efforts on negotiating a plea in which the State would not
seek a recidivist enhancement.” J.A. 752. However, the
district court granted a certificate of appealability on the
29
limited issue of “whether counsel rendered ineffective
assistance in advising Christian of the applicability of the
West Virginia recidivist law to his case.” J.A. 763.
III.
Before we address the merits of Christian’s Sixth Amendment
recidivist-advice claim, we briefly consider the state’s
argument that Christian failed to exhaust this claim in state
court under 28 U.S.C. § 2254(b)(1)(A) because he did not fairly
present the operative facts and controlling legal principles to
the state circuit court. See Anderson v. Harless, 459 U.S. 4, 6
(1982); Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004).
The state admits that Christian raised the claim in his appeal
to the West Virginia Supreme Court but contends that this too
was insufficient because that court routinely refuses to
consider grounds for habeas relief that were raised for the
first time on appeal. See State ex rel. Wine v. Bordenkircher,
230 S.E.2d 747, 751 (W. Va. 1976).
While it is true that Christian did not raise a separate
Sixth Amendment claim in the state circuit court based on
counsel’s recidivist advice, or allege there that it was
counsel’s recidivist advice that rendered his plea involuntary,
he did present testimony about the recidivist discussions that
he alleges took place on the morning of his plea. See State ex
rel. Humphries v. McBride, 647 S.E.2d 798, 803 (W. Va. 2007)
30
(per curiam). More importantly, however, the West Virginia
Supreme Court stated that it had “carefully considered the
merits of each of petitioner’s arguments as set forth in his
brief and in his reply brief” and “f[ound] no error in the
denial of habeas corpus relief.” J.A. 240. Although we
understand the state’s frustration with Christian’s evolving
allegations, we have no reason to believe that the West Virginia
Supreme Court did not mean what it said. Accordingly, we find
that Christian exhausted his claim before the state court.
IV.
A.
Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), we may grant habeas relief only when a state
court’s adjudication of a claim on the merits “resulted in a
decision” that (1) “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States,” 28 U.S.C. §
2254(d)(1), or (2) “was based on an unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding,” 28 U.S.C. § 2254(d)(2); see also Harrington
v. Richter, 562 U.S. 86, 100 (2011). The AEDPA standard “serves
important interests of federalism and comity” and it “is
intentionally difficult to meet.” Woods v. Donald, 135 S. Ct.
1372, 1376 (2015) (per curiam) (internal quotation marks
31
omitted). To obtain relief “from a federal court, a state
prisoner must show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement.” Harrington, 562 U.S. at 103.
To prevail on his Sixth Amendment claim of ineffective
assistance of counsel, Christian was required to show that (1)
his counsel’s performance “fell below an objective standard of
reasonableness” measured by “prevailing professional norms,”
Strickland v. Washington, 466 U.S. 668, 688 (1984), and that
counsel’s “deficient performance prejudiced” him, id. at 687.
The court must “evaluate the conduct from counsel’s perspective
at the time,” id. at 689, and “apply a strong presumption that
counsel’s representation was within the wide range of reasonable
professional assistance,” Harrington, 562 U.S. at 104 (internal
quotation marks omitted), in order “to eliminate the distorting
effects of hindsight,” Strickland, 466 U.S. at 689. In all
cases, the petitioner’s “burden is to show that counsel made
errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Harrington, 562 U.S. at 104 (internal quotation marks omitted).
To show prejudice in the guilty-plea context, the petitioner
must “demonstrate ‘a reasonable probability that, but for
32
counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.’” Premo v. Moore, 562 U.S.
115, 129 (2011) (quoting Hill v. Lockhart, 474 U.S. 52, 59
(1985)).
Even without § 2254’s deference, the Strickland standard
“is a most deferential one.” Harrington, 562 U.S. at 105.
“Unlike a later reviewing court, the attorney observed the
relevant proceedings, knew of materials outside the record, and
interacted with the client, with opposing counsel, and with the
judge” and “[i]t is all too tempting to second-guess counsel’s
assistance after conviction or adverse sentence.” Id. (internal
quotation marks omitted). When Strickland’s deferential
standard for evaluating the Sixth Amendment claim is viewed
under the extra layer of deference that § 2254 demands, the
“review must be doubly deferential in order to afford both the
state court and the defense attorney the benefit of the doubt.”
Woods, 135 S. Ct. at 1376 (emphasis added) (internal quotation
marks omitted). “[F]ederal judges are required to afford state
courts due respect by overturning their decisions only when
there could be no reasonable dispute that they were wrong.” Id.Moreover, “special difficulties” arise when federal judges
are called upon to evaluate trial counsel’s actions in the
context of a state court guilty plea, where “the record . . . is
never as full as it is after a trial,” and “the potential for
33
the distortions and imbalance that can inhere in a hindsight
perspective may become all too real.” Premo, 562 U.S. at 125.
“[T]he guilty plea and the often concomitant plea bargain
are important components of this country’s criminal justice
system,” Blackledge v. Allison, 431 U.S. 63, 71 (1977), and the
advantages that they provide to all concerned “can be secured .
. . only if dispositions by guilty plea are accorded a great
measure of finality.” Id. “[R]epresentations of the defendant,
his lawyer, and the prosecutor at such a hearing, as well as any
findings made by the judge accepting the plea, constitute a
formidable barrier in any subsequent collateral proceedings.”
Id. at 73-74. Such “[s]olemn declarations in open court carry a
strong presumption of verity” and “subsequent presentation of
conclusory allegations unsupported by specifics is subject to
summary dismissal, as are contentions that in the face of the
record are wholly incredible.” Id. at 74. “More often than not
a prisoner has everything to gain and nothing to lose from
filing a collateral attack upon his guilty plea,” because “[i]f
he succeeds in vacating the judgment of conviction, retrial may
be difficult.” Blackledge, 431 U.S. at 71. “These
considerations make strict adherence to the Strickland standard
all the more essential when reviewing the choices an attorney
made at the plea bargain stage.” Premo, 562 U.S. at 125.
34
B.
Finally, a determination of whether the West Virginia
Supreme Court’s rejection of Christian’s recidivist-advice claim
“resulted from an unreasonable legal or factual conclusion”
beyond any fairminded disagreement “does not require that there
be an opinion from the state court explaining the state court’s
reasoning.” Harrington, 562 U.S. at 98. Where the “state
court’s decision is unaccompanied by an explanation, the habeas
petitioner’s burden still must be met by showing there was no
reasonable basis for the state court to deny relief.” Id. And
before we can overcome the formidable barriers to relief and
upset the finality of a guilty plea, we “must determine what
arguments or theories supported or, as here, could have
supported, the state court’s decision; and then [we] must ask
whether it is possible fairminded jurists could disagree that
those arguments or theories are inconsistent with the holding in
a prior decision of [the Supreme] Court.” Id. at 786.
Because the state supreme court did not specify whether it
rejected Christian’s claim “because there was no deficient
performance under Strickland or because [he] suffered no
Strickland prejudice, or both,” Premo, 562 U.S. at 123, we
cannot “overcome the limitation imposed by § 2254(d)” unless
“both findings would have involved an unreasonable application
of clearly established federal law as determined by the Supreme
35
Court, id. (emphasis added), or “an unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding,” 28 U.S.C. § 2254(d).
V.
In order to properly determine whether the West Virginia
state court’s rejection of Christian’s recidivist-advice claim
“resulted from an unreasonable legal or factual conclusion,”
Harrington, 562 U.S. 98, we must first define the claim -- a
task that has been made unusually difficult here by the evolving
nature of Christian’s claim as he has progressed through the
state and federal post-conviction process.
On appeal to this court, Christian argues that the state
court’s rejection of his recidivist-advice claim was “contrary
to or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court” in
Rompilla v. Beard, 545 U.S. 374 (2005). The factual premise of
this claim, however, is Christian’s new assertion that trial
counsel failed to investigate his prior felony record and
incorrectly “advised Christian that, if convicted of any one of
the three counts against him, Christian would be sentenced to
mandatory life in prison without eligibility for parole for
fifteen years.” Appellant’s Brief at 6 (emphasis added); id. at
17 (asserting that on the morning of the plea, when Christian
“had second thoughts” about the plea agreement, “[h]is counsel
36
again advised him that pleading guilty to even one of the counts
would subject him to a mandatory life sentence”) (emphasis
added).
This argument was not made to the state court. Christian
did not allege or argue that trial counsel incorrectly advised
him that he would be sentenced to mandatory life in prison
without eligibility for parole for fifteen years if he were
convicted of any of the three counts pending against him. Nor
did Christian or Henderson testify to this effect. Rather,
Christian alleged only that, on the morning of his plea, when he
expressed a desire to plead guilty to just the malicious assault
charge, counsel told him that the state prosecutor could “seek a
sentence in accordance with West Virginia’s recidivist laws.”
Christian represented that he “interpreted [this] as meaning a
mandatory life sentence,” but nothing in the record supports the
conclusion that Christian ever communicated this alleged
“interpretation” to Henderson. J.A. 183 (emphasis added);
S.J.A. 24. At best, Christian only summarily testified that he
“believed” he was subject to a recidivist life sentence, based
upon counsel’s advice, but provided no specifics in support.
Consequently, we do not consider whether trial counsel
would have been constitutionally deficient if he had incorrectly
advised Christian that he would be sentenced to mandatory life
in prison if he pled guilty or was convicted of any of the three
37
charges pending against him. Rather, we only consider whether
the state court’s rejection of the claim Christian presented to
it represents an unreasonable interpretation of the facts, based
on the evidence presented to it, and an unreasonable application
of the “clearly established” principles of Strickland and
Rompilla, “beyond any possibility for fairminded disagreement.”
Harrington, 562 U.S. at 103. We have no trouble concluding that
it was neither.
A.
In Strickland, the Supreme Court held that competent
counsel “has a duty to make reasonable investigations or to make
a reasonable decision that makes particular investigations
unnecessary.” 466 U.S. at 691. In Rompilla, the Court applied
this requirement in the context of defense counsel’s failure to
examine Rompilla’s prior conviction file in advance of the
death-penalty phase of his capital trial. See Rompilla, 545
U.S. at 383. The Supreme Court held that defense counsel’s
failure to do so was deficient performance because counsel knew
that the prosecution “intended to seek the death penalty by
proving that Rompilla had a significant history of felony
convictions.” Id.
1.
Christian argues that because Henderson knew that the
prosecution could rely upon Christian’s prior felony record to
38
pursue a recidivist sentence against him if he were convicted,
Rompilla clearly established a duty upon his counsel from the
outset to investigate his felony record. We disagree.
Neither Strickland nor Rompilla clearly establishes a duty
upon counsel to investigate a defendant’s prior felony record
during the course of plea negotiations, regardless of the
circumstances. On the contrary, “[i]n any ineffectiveness case,
a particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying a
heavy measure of deference to counsel’s judgments.” Strickland,
466 U.S. at 691.
The circumstances in Rompilla at the time of Rompilla’s
death-penalty trial are markedly different from the
circumstances present at the time of Christian’s guilty plea.
Christian told his counsel from the outset that he was guilty of
the offenses and instructed him to negotiate a plea agreement
that would allow him to serve as much of his expected state
prison time as possible concurrently with his federal time.
Christian never went to trial, no recidivist information was
filed against him, and no recidivist proceedings were held.
Even if we were to extend Rompilla to circumstances where
counsel grossly misinforms his client about his sentencing
exposure, and negotiates and recommends a plea deal based upon
the error, this too is not the situation at hand. Cf. United
39
States v. Lewis, 477 Fed. Appx. 79, 82 (4th Cir. 2012)
(unpublished) (finding deficient performance where it was
undisputed that counsel “gave legal advice predicated on a
plainly false interpretation of federal law” pertaining to the
defendant’s prior felony convictions, and “gross[ly]
misinform[ed]” him that that “he would receive a mandatory life
sentence” if he rejected the plea agreement and was convicted)
(quoting Ostrander v. Green, 46 F.3d 347, 355 (4th Cir. 1995)).
As noted above, the record belies Christian’s new claim
that counsel affirmatively misadvised him that he would receive
a mandatory recidivist life sentence if he were convicted of any
of the three felonies. Nothing in the record supports a
conclusion that any part of Henderson’s interactions with
Christian, the prosecutor, or the state court were based in any
way on a belief that a mandatory life sentence under the
recidivist statute was involved in this case. On the contrary,
Christian’s exposure to a recidivist enhancement was not
mentioned in the plea negotiation letters and the suggested
sentencing scenarios were at all times well below the non-
recidivist sentences that counsel testified had been imposed
following trials in similar cases. It appears that during the
negotiations between the prosecutor and defense counsel, the use
of the recidivism statute was taken off the table, so to speak.
It also appears that the overriding concern was Christian’s
40
desire to go to federal prison first and serve as much of his
time there as possible.
To the extent that Christian relies upon the fact that
counsel specified in the final plea letter that “NO RECIDIVIST”
information would be filed, this too does not compel a finding
that the plea negotiations were premised upon counsel’s belief
that Christian actually faced a recidivist life sentence.
It is undisputed that Christian was subject to having a
recidivist information filed against him based upon his prior
felony convictions, and any recidivist proceeding would have
postponed Christian’s primary goal of transferring immediately
into federal custody. Fully consistent with the record in this
case, Christian could have been subject to a recidivist
enhancement under the applicable West Virginia statute because
it is undisputed that his prior felony conviction would have
made his convictions on any of the pending charges a second
felony offense. This point was made explicitly clear to
Christian by the state court judge prior to engaging in the
guilty plea proceeding as more fully discussed below. Thus, the
determinant sentence of ten years on the robbery convictions
could be increased by five years or the indeterminate sentence
for the malicious assault of a police officer could be doubled.
It is entirely reasonable to conclude any effort by Henderson to
eliminate a recidivist enhancement through the plea agreement
41
was based on the uncontested fact that Christian could have been
subject to the foregoing five-year or double-sentence
enhancements in any event. Even if we were to assume Henderson
made a cognizable error in failing to investigate Christian’s
prior felonies for purposes of the three-strike felony
enhancement, he would have still needed to negotiate the same
“no recidivist” covenant in order to eliminate the second felony
enhancement: a factor in which Christian expressed no interest
and chooses to ignore on appeal.
Moreover, the state prosecutor would not have been
precluded from filing such an information, even though the
guilty plea was to be entered pursuant to a plea agreement that
set forth the applicable non-recidivist sentence, unless the
prosecutor expressly agreed “to waive a recidivist action in
exchange for petitioner’s plea,” or the defendant could
thereafter show that the state “led him to believe that it would
not file a recidivist information against him.” Gardner v.
Ballard, 2014 WL 5546202, *2 (W. Va. 2014) (unpublished). Thus,
the state court could have reasonably found that counsel’s
insistence on the no-recidivist term reflected not deficient
performance at all, but rather his good efforts to ensure that
his client was not subjected to a separate recidivist two-strike
enhancement under § 61-11-18(a) after he pled guilty, or to the
42
accompanying delay a recidivist proceeding would have had upon
Christian’s ability to quickly transfer into federal custody.
Accordingly, the state court could have reasonably
concluded that it was not constitutionally deficient
representation for counsel to choose not to investigate the
details of Christian’s prior felony convictions, and instead
concentrate on negotiating a reasonable, non-recidivist plea
agreement that accomplished Christian’s non-sentencing goals as
well.
2.
We likewise cannot say that Christian established, beyond
any possibility of fairminded disagreement, that counsel was
constitutionally deficient under Rompilla for failing to
investigate Christian’s felony record on the morning of the
plea.
Under Christian’s version of the events, after Christian
informed counsel of his decision to plead guilty to the
malicious assault charge and to go to trial on the armed robbery
charges, counsel informed the court and then came “back and . .
. describe[d] to [Christian] what would happen . . ., and we had
some concerns about that.” J.A. 554. However, Christian
provided no specifics about these concerns and instead testified
that the discussions did not change his decision. Rather, he
testified that he only decided to go through with “the original
43
deal” after further, and again unspecified, discussions with the
prosecutor and his counsel.
Christian was aware that he faced sentences up to and
including two terms of life imprisonment if he were convicted of
the armed robberies at trial, plus the 3-15 years for the
police-officer shooting, without regard to any recidivist
sentencing. Christian was also made aware of the likely
sentences he faced based upon counsel’s knowledge of similar
trials and his experience with the particular trial judge.
Under a generous reading of the record, the most that can be
said is that counsel correctly advised Christian that he might
also be subject to a recidivist sentence of life in prison, if
he had two usable felonies that the prosecutor could prove in
that proceeding. And, of course, any recidivist proceeding
would trigger the need for a presentence investigation and an
accompanying delay in his primary quest to be immediately
transferred to federal prison. But that accurate advice is a
far cry from the “gross misinformation” that this court has
found constituted deficient performance.
Given the severity of the crimes, the non-recidivist
sentencing exposure that Christian faced, and the
representations made immediately after the alleged recidivist
conversations, we think the state court could have reasonably
concluded that Christian had failed to prove that counsel was
44
constitutionally deficient for failing to immediately
investigate the status of Christian’s felonies in the wake of
his last-minute decision to back out of the plea agreement.
Indeed, it seems much more likely that Christian was instead
reminded of the reasons why he had agreed to the plea agreement
in the first place. There was overwhelming evidence against
him, he already faced the prospect of two life sentences without
regard to any recidivist enhancement, his determinate sentencing
exposure was practically unlimited, and rejecting the agreement
would cause him to lose the benefit of the bargain that allowed
him to be immediately transferred into federal custody and serve
his time there first. Certainly, we think the state court could
have reasonably found, in light of all of the circumstances,
that “counsel’s representation was within the wide range of
reasonable professional assistance.” Harrington, 562 U.S. at
104.
B.
We also think the state court could have simply and
reasonably rejected the factual premise of Christian’s claim
that he believed, at the time he entered his plea, that he was
subject to a recidivist life sentence. See Blackledge, 431 U.S.
at 74 (In the post-conviction proceedings seeking to overturn a
guilty plea, “conclusory allegations unsupported by specifics is
45
subject to summary dismissal, as are contentions that in the
fact of the record are wholly incredible.”).
Setting aside Christian’s evolving factual and legal
allegations during the post-conviction process, Christian’s
testimony at best consisted of his self-serving and conclusory
statement that he “believe[d]” he would be subject to a
recidivist sentence of life imprisonment based on counsel’s
“advising [him] of that.” J.A. 553. Although Christian also
testified that counsel discussed with him “what would happen”
and the “concerns [they had] about that,” he provided no
specifics about this and, at times, appears to have been
intentionally vague. J.A. 554.
In contrast, when testifying in support of his claim that
he pled guilty because counsel refused to prepare for trial and
pressured him to plead guilty instead, Christian testified with
much specificity regarding counsel’s advice as to the
determinate terms of imprisonment that he would face if he were
convicted of the robbery offenses. According to Christian, his
counsel:
would come in and tell me all the negative, you know,
you’ve got to, you know, you’re caught red-handed with
a smoking gun, you’ve got people that identified you
out of a photo lineup, you got Adams who implicated
you, you’ve got Sergeant Johnson who has testified to
this, and he would mention things like you’re going to
get 100 years in prison. And quite frankly, I know as
odd as this may sound, I told him that I did not care
if I got 2 or 300 years, I wanted a trial.
46
J.A. 563 (emphasis added); see also J.A. 548 (“I remember one
time him yelling, You’re going to get 100 years in prison just
for one robbery like the other guy did. And . . . I said, I do
not care if I get 300 years in prison, I want a trial.”)
(emphasis added).
When Christian first raised his recidivist-advice claim
before the state supreme court, he pointed to this same
“determinate sentence” testimony in support of his alleged
recidivist belief, arguing that:
[c]ontemporaneously with counsel’s reference to the
state’s recidivist laws, counsel would also make
reference to lengthy prison sentences such as “You’re
going to end up spending the rest of your life in
prison,” and “You’re going to get a 100-years.”
Consequently, Petitioner interpreted counsel’s
assertions as meaning “a mandatory life sentence.”
S.J.A. 26 n.6 (quoting hearing transcript at J.A. 563).
Unfortunately for Christian, however, the referenced testimony
does not pertain to events that occurred on the morning of his
guilty plea, or to counsel’s recidivist advice. Moreover,
Christian altered his alleged testimony to support his post hoc
attempt to call into question counsel’s advice as to his
recidivist exposure. Although Christian did testify that
counsel told him that he was “going to get 100 years in prison”
if convicted of the robberies based upon the evidence against
him, J.A. 563; see also J.A. 548 (testifying that counsel told
him he was “going to get 100 years in prison just for one
47
robbery like the other guy did”), the testimony did not include
the language that he was “going to end up spending the rest of
[his] life in prison.’” S.J.A. 26 n.6. While perhaps true,
given his non-recidivist exposure and poor health, Christian’s
misrepresentation to the state supreme court strikes another
blow to his credibility.
Henderson’s testimony actually offers more support for
Christian’s claim than Christian’s own testimony does, but it is
simply too speculative and qualified to cast aside the “benefit
of the doubt” that AEDPA demands we give to both the state
court’s view of the evidence and to counsel’s representation of
his client. Woods, 135 S. Ct. at 1376 (internal quotation marks
omitted). Counsel made it clear throughout his testimony that
he did not recall the specifics of any conversations that
occurred during his representation, nor did he testify that he
told Christian that he would receive a recidivist sentence of
life imprisonment if he pled guilty to just the malicious
assault charge. As noted above, counsel testified that,
although he did not recall the conversation, he would have
correctly explained to Christian that, if he entered a plea to
the single charge and had two prior felonies that the
prosecution could prove were “usable” felonies under the
recidivist statute, he would be subject to a recidivist life
sentence.
48
Given the evidence closer in time to the actual events, the
state court could also have reasonably found all of this
testimony insufficient to satisfy Christian’s burden. Just one
month prior to Christian’s guilty plea, Christian offered to
plead guilty to just the malicious assault charge and go to
trial on the robberies, with the sole proviso that the 3-15 year
sentence would be served concurrent with his 5-year federal
sentence. Clearly, no one believed at that time that Christian
would be signing up for a mandatory, recidivist sentence of life
in prison by pleading guilty to the single count and going to
trial on the remaining two counts.
Immediately after the alleged recidivist conversation took
place between Henderson and Christian, the state trial court
informed Christian that the crimes to which he was pleading
guilty would count as the second strike against him and, if he
were to be found guilty of a felony in the future, could be used
to increase his penalty to “life in prison because it would be
strike three.” J.A. 270 (emphasis added). Thus, the trial
court was made aware that Christian had one prior felony, and
Christian confirmed his understanding of the situation.
Christian did not inform the court, in response to this
statement, that he had just been led to believe that he already
had two strikes and already qualified for a recidivist life-in-
prison sentence.
49
Finally, in a letter to Christian dated December 6, 2004,
Henderson set forth the specific terms of the plea agreement as
including the proviso that “[n]o recidivist [would be] filed by
the State for your previous felony.” J.A. 599 (emphasis added).
Consequently, counsel pointed out, “no recidivist was filed
against you, you were allowed to waive your PSI and were
sentenced on the date of your plea, there was no mention of your
Hepatitis C condition as a factor in the plea agreement and the
prosecutor did call federal authorities to speed up your
transfer to federal custody.” J.A. 599-600.
VI.
Finally, Christian is not entitled to federal habeas relief
because the state court could have reasonably concluded that
there is no “reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted
on going to trial.’” Premo, 562 U.S. at 129 (quoting Hill, 474
U.S. at 59). Put another way, even if we assume Christian’s
counsel rendered deficient performance, he has no cognizable
claim that “deficient performance” prejudiced him.
A.
Throughout the state post-conviction proceedings, Christian
has been opportunistic as to the circumstance that he alleged
“coerced” him to plead guilty. For example, Christian claimed
he would not have pled guilty if he had been aware of certain
50
exculpatory evidence that was withheld from him or downplayed by
counsel. He claimed the trial court’s failure to go over the
plea questionnaire with him, and to adequately explain his
constitutional rights, affected his decision. He claimed that
he pled guilty because he was denied a speedy trial and because
he did not believe he would be given a public trial. He also
claimed that he pled guilty because counsel refused to
investigate his claims of innocence and prepare for trial.
But Christian’s most vociferous “involuntary-plea” claim,
and really the only one that was alleged with any specificity in
the state habeas pleadings and proceedings, was that he was
coerced into pleading guilty in order to escape the abuse he was
being subjected to at the Cabell County Jail. Christian
testified that he was assaulted and threatened by the
correctional officers, that he “was thrown in solitary
confinement for no reason,” that he was constantly exposed to
secondary smoke that made his eyes water, as well as to
temperatures in excess of 100 degrees, and that he was forced to
sleep on the floor. J.A. 556-57. Christian testified that
these “[h]orrific” jail conditions “[a]bsolutely” influenced his
guilty plea,” J.A. 556-57, and “alone . . . could have propelled
an individual to plead guilty just to get away from th[em].”
J.A. 556 (emphasis added); see also J.A. 577 (“I was a rag doll
and they beat the hell out of me” and “I come in here and plead
51
guilty to crimes I didn’t want to plead guilty to.”); J.A. 581
(“[T]hey tortured the living daylights out of me for months that
I can’t describe to you.”).
Christian repeatedly claimed that, but for these alleged
deficiencies on the part of his counsel and the court, and the
conditions of his confinement, he would not have pled guilty.
However, Christian never claimed that “had counsel correctly
informed him about his [recidivist exposure], he would have
pleaded not guilty and insisted on going to trial.” Hill, 474
U.S. at 60. On the contrary, Christian testified that, even
though he believed he was facing a recidivist life sentence if
he went to trial, he “still did not [waver]” and only changed
his mind after further, unspecified conversations were had with
the prosecutor and counsel. J.A. 554.
Even if he had made the factual claim that he would not
have pled guilty but for counsel’s recidivist advice, the state
supreme court could have reasonably rejected it as “wholly
incredible.” Blackledge, 431 U.S. at 74”); see also Merzbacher
v. Shearin, 706 F.3d 356, 366-67 (4th Cir. 2013) (“[I]t is
entirely clear that to demonstrate a reasonable probability that
he would have accepted a plea, a petitioner’s testimony that he
would have done so must be credible.”). After all, the state
court rejected Christian’s testimony in every way that mattered
to the claims that he raised, including testimony that he had
52
constantly maintained his innocence, did not direct counsel to
negotiate a plea deal, and always wanted to go to trial. The
state court also rejected Christian’s self-serving testimony
that he was being abused at the jail, and that counsel exploited
this alleged abuse to force him to plead guilty. The state
court further rejected Christian’s testimony that counsel
pressured him into pleading guilty, finding that he had failed
to “articulate any specific factor of pressure that had its
origins in the words or testimony of [his] counsel” and “did not
state with even a modicum of specificity any instance where
counsel pressured [him] to enter a plea.” J.A. 256. And the
state court found that Christian had failed to establish “that
[his] guilty plea was motivated by an alleged act of counsel’s
incompetency.” J.A. 249.
While the state court did not elaborate upon these more
general findings, we note that Christian’s own testimony
contradicts his claim. Christian now claims that he pled guilty
under the terms of the plea agreement because counsel led him to
believe that he would receive a recidivist sentence of life
imprisonment if he were convicted of any of the three charges.
However, when testifying in support of his overarching claim
that he was actually innocent and that counsel pressured him
into pleading guilty, Christian testified that he developed
“buyer’s remorse” after the plea and that, within hours of his
53
guilty plea, he tried to withdraw it. However, Christian did
not testify that he wanted to withdraw it because in the course
of those few hours he had discovered that he was not subject to
a mandatory recidivist life sentence.
In addition, the state court record includes numerous other
indications that Christian admittedly would lie about factual
matters if he believed it might benefit him to do so. For
example, Christian told the police and his counsel, immediately
after the shooting, that he thought Officer Combs was a “black
drug dealer that [he had] just robbed.” J.A. 383. In state
habeas proceedings, Christian did not dispute that he made this
statement. Rather, he claimed that he “made[]up” the story, and
that counsel was ineffective in failing to move to suppress this
incriminating statement prior to his entering his plea. J.A.
374, 574-75, 577. Similarly, Christian told the state trial
judge (and Officer Combs) that he only committed the crimes
because he was a first-time drug user under the influence of
crack cocaine. At the state habeas proceeding, however,
Christian vehemently denied using drugs, and claimed that this
additional, prejudicial “admission” to the crimes before the
state trial court was nothing more than a “false claim before
the court that my actions were the result of first time drug
usage so that I could later file [a] reconsideration motion[]”
for an alternative sentence. J.A. 457. Of course, Christian
54
claimed that he lied at the guilty plea hearing about most
everything else as well, including his representations that he
was guilty of the offenses, that he was totally satisfied with
his trial counsel, and that the prosecutor had never talked to
him about his plea outside the presence of his counsel.
In light of this record, the state court could also have
reasonably rejected, as wholly incredible, Christian’s self-
serving, conclusory, and belated assertion that, but for
counsel’s failure to investigate his prior felony record and
counsel’s recidivist advice on the morning of his plea, he would
not have pled guilty and would have insisted on going to trial
on the robbery charges.
B.
The state court could also have reasonably rejected
Christian’s claim of prejudice because his decision to reject
the plea agreement and proceed to trial on the robbery counts
would not have been a rational one. See Padilla v. Kentucky,
559 U.S. 356, 372 (2010).
When evaluating objective reasonableness under the
prejudice prong of Strickland, “[t]he challenger’s subjective
preferences . . . are not dispositive; what matters is whether
proceeding to trial would have been objectively reasonable in
light of all of the facts.” United States v. Fugit, 703 F.3d
248, 260 (4th Cir. 2012). The challenger “cannot make that
55
showing merely by telling [the court] now that [he] would have
gone to trial then if [he] had gotten different advice.” Pilla
v. United States, 668 F.3d 368, 372 (6th Cir. 2012). In other
words, to obtain relief from a guilty plea, the defendant must
do more than allege he would have insisted on going to trial if
counsel had not misadvised him as to the consequences of that
decision. The “petitioner must convince the court that a
decision to reject the plea bargain would have been rational
under the circumstances.” Padilla, 559 U.S. at 372; see also
Roe v. Flores-Ortega, 528 U.S. 470, 486 (2000).
Here, the record evidence of Christian’s guilt was
overwhelming. An eyewitness to one of the armed robberies
pointed the police officers to Maynard’s apartment. The car
matching the description of the robbery get-away car was parked
in front of the apartment. Christian ambushed Officer Combs as
soon as he walked into the apartment, and even he does not
dispute that he was “caught red-handed with a smoking gun.”
J.A. 563. Adams was also present in the apartment, confessed to
the robberies, and implicated Christian as his accomplice. At
least one of the robbery victims identified Christian out of a
photo lineup. And another investigating police officer
testified that Christian admitted that he “figured it was the
police” coming into Maynard’s apartment “because [he] had just
robbed a place.” J.A. 374.
56
Christian faced a non-recidivist sentence of up to life in
prison if convicted of either robbery, and a single life
sentence would have disqualified him from an early release based
on good-time credits. In the event that Christian received a
determinate term-of-years sentence proportionate to the 60 to 80
years that counsel testified had been upheld by the state
supreme court in similar cases for a single armed robbery,
Christian -- who was charged with two armed robberies and the
shooting of an investigating police officer -- faced determinate
sentences that carried parole eligibility provisions worse than
those applicable to even a recidivist life sentence, and far
worse than he faced under his plea agreement. Christian does
not contend that counsel misled him or incorrectly advised him
as to this non-recidivist exposure, nor does he dispute the
accuracy of counsel’s representation that he would likely get a
sentence of 100 years irrespective of any recidivist
enhancement. 5
5Christian now seeks to paint his plea agreement as one
imposing an onerous 40-year sentence that he would have agreed
to only if he believed he was facing a mandatory recidivist
sentence of life imprisonment, and he claims that he would have
instead only faced a minimum sentence of 10 years imprisonment
for the robberies and the malicious assault. This is a rosy
picture to say the least. This scenario would have required the
trial court to impose the minimum sentences for both armed
robberies (10 years each), and the malicious assault (3-15
years), and order all three sentences to be served concurrently,
which the record indicates was never a realistic possibility.
(Continued)
57
Under the circumstances, we have no trouble concluding that
the Supreme Court of Appeals of West Virginia could have
reasonably found that Christian had little hope of prevailing at
trial on the charges and was “lucky to receive the deal that he
did.” Fugit, 703 F.3d at 260. The state court could also have
reasonably found that Christian’s decision to reject a plea
agreement that allowed him parole eligibility from his state
sentence in less than 11 years, the opportunity to exhaust his
state sentence in less than 20 years, and the ability to
transfer immediately into federal custody, which everyone agreed
at the time and on the record was in his best interest, would
have been an objectively unreasonable one. See Premo, 562 U.S.
at 129 (rejecting claim because “[t]he state court . . .
reasonably could have determined that [petitioner] would have
accepted the plea agreement” despite counsel’s alleged
deficiencies because “the [s]tate’s case was already
formidable,” the petitioner “faced grave punishments,” and
It would also have required the trial court to impose the
mandatory recidivist sentence to the malicious assault sentence,
instead of to a robbery sentence. In other words, the trial
court would have had to impose a mandatory recidivist sentence
that would not have increased the defendant’s sentence at all.
In light of the severity of the charges, the high-profile nature
of the officer shooting, and the evidence of the victims’
involvement in the prosecution of the charges, the state supreme
court could have reasonably evaluated the likelihood of that
occurring as miniscule at best.
58
“[t]he bargain counsel struck was . . . a favorable one”); cf.
Pilla, 668 F.3d at 373 (concluding that proceeding to trial
would have been irrational where defendant “faced overwhelming
evidence of her guilt” and “had no rational defense, would have
been convicted and would have faced a longer term of
incarceration”) (internal quotation marks omitted).
VII.
This case squarely presents the “special difficulties” that
arise when federal judges are called upon to evaluate trial
counsel’s representation in the plea context, where “the record
. . . is never as full as it is after a trial,” “the potential
for the distortions and imbalance that can inhere in a hindsight
perspective may become all too real,” Premo, 562 U.S. at 125,
and the petitioner “has everything to gain and nothing to lose
from filing a collateral attack upon his guilty plea.”
Blackledge, 431 U.S. at 71.
Here, abundant evidence exists to support a factual finding
that Christian’s guilty plea was driven not by his sentencing
exposure at all, which everyone agrees was onerous, but rather
by his recognition from the outset that he had little hope of
defeating either the federal or state charges against him, or of
living long enough to get out of prison at all, and by his
desire to spend as much of his remaining life as possible in
federal prison. Christian may well have developed “buyer’s
59
remorse.” J.A. 555. However, a defendant’s decision to plead
“guilty generally involves a conscious decision to accept both
the benefits and burdens of a bargain [and] [t]hat decision
[should] not be lightly undone by buyer’s remorse on the part of
one who has reaped advantage from the purchase.” Fugit, 703
F.3d at 260.
In cases such as this, “strict adherence to the Strickland
standard [is] all the more essential,” Premo, 562 U.S. at 125,
and we cannot say that the state court’s application of the
Strickland standard, in light of the evidence presented to it in
the state court proceedings, was unreasonable. Accordingly, we
hold that Christian has failed to demonstrate that he is
entitled to federal habeas relief from his plea of guilty to the
state charges.
AFFIRMED
60
GREGORY, Circuit Judge, dissenting:
The majority goes to great lengths to disguise the simple
truths of this case: Counsel gave bad advice to a client, and
the client relied on the advice in deciding to plead guilty and
forgo his constitutional right to a trial. I respectfully
dissent.
I.
On the morning of September 2, 2003, Gregory Christian
considered whether to plead guilty in state court to two counts
of first degree robbery and one count of malicious assault on a
police officer. In negotiations with the government, Christian
had been mindful of the impact his two prior felony convictions
could have on any sentence imposed under the state’s recidivism
laws. Indeed, Christian had gone so far as to condition his
tentative plea agreement on the demand that “NO RECIDIVIST [BE]
FILED!” J.A. 597.
As became clear on the morning of the plea hearing,
Christian’s attorney, Gerald Henderson, assumed that the prior
felonies could trigger a mandatory minimum life sentence if
Christian was convicted of any of the new charges. That
assumption was plainly false. Because Christian’s two felonies
were entered on the same day, they only counted as one strike
under the West Virginia’s recidivism scheme. Henderson,
61
however, had failed to investigate his client’s criminal record
after being told of the existence of the two felonies.
At the hearing, Christian told Henderson that he wanted to
plead guilty to only the malicious assault charge, and proceed
to trial on the robbery charges. Henderson warned Christian
that “if you enter a plea to a felony with no agreement that the
state won’t recidivist, then they have every right to file their
recidivist petition.” J.A. 516-17. As Henderson further
recalled:
I would have told you that pleading to the one count,
if you have two usable felonies, which you told me,
then of course that’s not in your best interest for
them to give you life without eligibility if they can
prove those priors. . . .
I explained to you, would have explained to you that
you understand that if you enter a plea to this charge
and you have two felonies, as you told me you did,
that they could file a petition, and if they prove
those felonies that are usable felonies under law,
that you could get life without eligibility for 15
years. I would have advised you of that.
J.A. 518-19.
Despite the thin veneer of ‘hypotheticals’, Henderson’s
testimony clearly establishes that (1) Christian told him of the
two prior felony convictions; (2) Henderson did no further
investigation to determine the date or nature of the prior
felonies; (3) on the basis of Christian’s disclosure, Henderson
advised him that he faced a possible mandatory minimum life
sentence if convicted of any of the new charges; and (4) the
62
advice Henderson gave was incorrect because under no
circumstances did Christian face such a sentence if convicted.
II.
Against that factual backdrop, the question we face is
simply whether the state court’s rejection of Christian’s habeas
petition involved an unreasonable application of Strickland v.
Washington, 466 U.S. 668 (1984), and its progeny. Specifically,
would it have been unreasonable for the state court to believe
that defense counsel’s performance was adequate and, if so,
would it have also been unreasonable to believe that Christian
suffered no prejudice as a result of the deficient performance?
A.
Regarding the objective reasonableness of counsel’s
performance, the pivotal question is this: did Henderson breach
an established duty to investigate and provide sound advice
about whether Christian’s prior felonies counted as separate for
recidivism purposes in West Virginia? The answer is clearly
yes. As Strickland established, “counsel has a duty to make
reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary.” 466 U.S. at 691.
Building on that precedent, both the Supreme Court and this
Court have consistently held that an attorney has a duty to
investigate a client’s criminal record, in addition to other
63
aspects of a client’s background, when the record has a bearing
on the current proceedings. In Rompilla v. Beard, for instance,
the Supreme Court held that “lawyers were deficient in failing
to examine the court file on [a defendant’s] prior conviction”
when the lawyers knew the government intended to rely on the
prior conviction during sentencing. 545 U.S. 374, 383 (2005).
Similarly, in United States v. Russell, 221 F.3d 615, 621 (4th
Cir. 2000), this Court concluded that defense counsel was
ineffective for failing to adequately scrutinize and contest
evidence of a defendant’s three prior felony convictions that
the government sought to introduce for impeachment. As we
observed: “When representing a criminal client, the obligation
to conduct an adequate investigation will often include
verifying the status of the client’s criminal record, and the
failure to do so may support a finding of ineffective assistance
of counsel.” Id. at 621. *
*
Still more on point, this Court more recently held in an
unpublished decision that bad advice about the applicability of
a recidivism statute can constitute ineffective assistance.
United States v. Lewis, 477 F. App’x 79, 82 (4th Cir. 2012). In
Lewis, counsel advised a defendant during plea negotiations that
he faced a mandatory life sentence and was a career offender
under the Federal Sentencing Guidelines because of two prior
convictions. Id. at 80. The defendant, after some hesitancy,
accepted the government’s plea bargain. Id. But under Ohio
law, the prior convictions did not trigger a mandatory life
sentence or career-offender status. Id. at 81-82. This Court
found counsel’s contrary advice to be “plainly deficient under
Strickland.” Id. at 82. As we observed, “[h]ad [counsel]
(Continued)
64
Here, Henderson failed to investigate his client’s criminal
record – either by asking more questions or pulling a file –
when accurate information was critical to the client’s ability
to make an informed, intelligent choice about whether to accept
a plea deal. Indeed, Christian made clear during plea
negotiations that his desire to avoid a recidivism enhancement
was a significant motivating factor for accepting a deal – as
revealed by the letter Henderson wrote to the government
expressing Christian’s demand that “THERE WILL BE NO RECIDIVIST
FILED”. J.A. 597. Doing a minimally sufficient investigation
into Christian’s record would have involved very little effort,
requiring a simple examination of the dates of the two prior
felony convictions. And the reward would have been significant,
fundamentally changing Christian’s calculus in deciding whether
to forgo his Sixth Amendment right to a trial.
Of course, “when a defendant has given counsel reason to
believe that pursuing certain investigations would be fruitless
or even harmful, counsel’s failure to pursue those
investigations may not later be challenged as unreasonable.”
simply read the applicable federal statutes and correctly
applied them to the facts of this case, they would have
discovered their error.” Id.; see also Hammond v. United
States, 528 F.2d 15, 17-18 (4th Cir. 1975) (observing, before
Strickland, that counsel’s incorrect advice about possible
sentences constituted ineffective assistance).
65
Strickland, 466 U.S. at 691. But there is no showing in this
record that Christian told Henderson that the convictions at
issue were entered on different days, or that he otherwise
dissuaded further investigation. The record thus supports the
conclusion that it would have been an unreasonable application
of clearly established law for the state court to find
Henderson’s performance objectively reasonable.
B.
The question of prejudice hinges on whether Christian has
shown “a reasonable probability that, but for counsel’s errors,
he would not have pleaded guilty and would have insisted on
going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Again, the record provides a rather conspicuous answer.
According to Henderson’s erroneous advice, Christian faced a
mandatory life sentence, with the possibility of parole after 15
years, if convicted of any of the three counts against him. In
reality, Christian faced a mandatory minimum sentence of 10
years (if the sentences ran concurrently), even if convicted of
all counts. He pled guilty to a sentence of 28 to 40 years
imprisonment without the possibility of parole for approximately
11 years.
Christian’s conduct reveals just how central Henderson’s
erroneous advice was in his decision-making. As previously
described, Christian expressly stated during plea negotiations
66
the conditions under which he would accept a deal, as reflected
in a letter written by Henderson to the government. The letter
provided:
[Christian] is willing to enter a plea under the
following terms: . . . (h) THERE WILL BE NO
RECIDIVIST FILED!!!
J.A. 597. By the letter’s own terms, Christian was acutely
aware of and concerned with the impact his two prior felonies
could have on any sentence. More telling, Christian actually
decided to reject the plea agreement on the morning of trial,
and only accepted it a short time after he was erroneously
reminded by Henderson that he faced the possibility of a
mandatory life sentence if convicted of one of the counts.
Of course, as the majority points out, it is possible that
Christian would have received a lengthy sentence if he had
chosen to go to trial. But the Sixth Amendment right to a
public trial does not exist solely when a trial would be in a
defendant’s best interests. The record here compels a
conclusion that it is reasonably probable Christian would have
exercised this constitutional right if he received accurate
advice.
I respectfully dissent.
67