FILED
NOT FOR PUBLICATION JUL 23 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HAL ELKINS, No. 09-35034
Petitioner - Appellant, D.C. No. 3:06-cv-01180-MA
v.
MEMORANDUM *
BRIAN BELLEQUE, Superintendent,
Oregon State Penitentiary,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, District Judge, Presiding
Argued and Submitted June 9, 2010
Portland, Oregon
Before: HALL, THOMPSON, and McKEOWN, Circuit Judges.
Hal Elkins appeals the denial of a habeas corpus petition challenging his
state court conviction of the murder of his then girlfriend, Kathryn Linn, the
attempted murder of Linn’s former boyfriend, Marvin Eugene Mayer, and two
counts of first degree assault of Mayer with a firearm. At trial, Elkins mounted an
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
unsuccessful defense of extreme emotional disturbance, claiming he was drunk,
despondent, and suicidal when he confronted and shot Linn and Mayer as the two
of them were having dinner at a Salem, Oregon restaurant.
Elkins was sentenced to 33 years in state prison—including a determinate
sentence of 25 years for the murder pursuant to Oregon Revised Statutes section
163.115(3)(c) (1993), 60 months for the merged assault counts, and 36 months for
the attempted murder. In this appeal, Elkins contends that the state courts erred in
rejecting his claim that his trial counsel was ineffective in advising him about a
plea offer under which he would have pled guilty to murder and attempted murder,
and accepted responsibility for the criminal episode, in exchange for dismissal of
the assault counts and a recommended sentence of 13 years pursuant to the 1993
Oregon sentencing guidelines—including 120 months for the murder and 36
months for the attempted murder, which was the “presumptive” sentence under
Oregon’s sentencing guidelines at the time.
Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), federal habeas relief is available if the state court’s adjudication of the
merits of the habeas claim “resulted in a decision that 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). The Supreme
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Court has held that Strickland v. Washington, 466 U.S. 668 (1984), is the “clearly
established” federal law governing habeas claims of ineffective assistance of
counsel under AEDPA. Williams v. Taylor, 529 U.S. 362, 391 (2000). Under
Strickland, to establish ineffective assistance of counsel under the Sixth
Amendment, the petitioner must demonstrate that counsel’s performance “fell
below an objective standard of reasonableness … under prevailing professional
norms,” 466 U.S. at 688, and that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different,” id. at 694. In order to satisfy Strickland’s prejudice prong in the context
of the plea bargaining process, the petitioner must show “that there is a reasonable
probability that, but for counsel’s errors,” he would have accepted the plea offer,
rather than insisting on going to trial. See Hill v. Lockhart, 474 U.S. 52, 58-59
(1985); Weaver v. Palmateer, 455 F.3d 958, 966 (9th Cir. 2006).
Trial counsel admitted that he did not specifically advise Elkins about the
Oregon Supreme Court’s decision in State v. Morgan, 316 Or. 553 (Or. 1993),
which was decided before the prosecutor’s plea offer was set to expire. Morgan
confirmed that, notwithstanding the adoption of the state’s sentencing guidelines, a
determinate sentence of up to 25 years was still authorized for murder pursuant to
former section 163.115(3)(c) of the Oregon Revised Statutes. Id. at 558.
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However, Elkins’s trial counsel credibly testified that he thoroughly discussed the
plea offer with his client, including: the sentencing ranges for murder, attempted
murder, and first degree assault with a firearm under the Oregon sentencing
guidelines; the possibility of upward departures if he went to trial and was
convicted on all counts; and the possibility of consecutive sentences because there
were two direct victims. As the Oregon Attorney General explains, a departure
sentence for murder under the 1993 Oregon sentencing guidelines could have more
than doubled the recommended sentence in the plea offer, and could have exceeded
the 25-year sentence imposed after trial. Nevertheless, Elkins contends that trial
counsel’s performance was constitutionally deficient because he did not explain the
significance of the Morgan decision.
We need not decide whether trial counsel’s performance fell below an
objective standard of reasonableness under prevailing professional norms, because
even if it did, Elkins has not established that he was prejudiced by counsel’s failure
to advise him about the Morgan decision. See Strickland, 466 U.S. at 697 (courts
may consider either prong of the Strickland test first and need not address both
prongs if defendant fails on one); Weaver, 455 F.3d at 966 (“We are well-advised
to bypass scrutinizing a criminal-defense attorney’s representation if the defendant
cannot show that he was prejudiced by it.”).
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As the state court found in the post-conviction relief proceedings, Elkins
decided to reject the plea offer, knowing he might face a significantly longer
sentence after trial, because he was adamant that he was not guilty of and would
never plead guilty to murder, and that he wanted to present his “extreme emotional
disturbance” theory to the jury. Moreover, Elkins presented no actual evidence
that, had he been advised about the meaning of Morgan, he would have accepted
the plea offer rather than insisting on going to trial. As Elkins’s counsel in the
state post-conviction appeal candidly acknowledged, although the unverified
petition alleged that Elkins would have “accepted the plea bargain” if he had been
aware of the Morgan decision, Elkins never “directly testif[ied] that he would have
taken the plea agreement had he realized the amount of time he actually faced as a
consequence of rejecting the plea offer.” On appeal to this court, Elkins has not
proven otherwise. He has, thus, failed to establish prejudice under the second
prong of Strickland—i.e., that there is a reasonable probability he would have
accepted the plea bargain if he had been advised of his exposure to a determinate
sentence of up to 25 years for the murder of Linn. 466 U.S. at 694; see also
Weaver, 455 F.3d at 966.
The judgment of the district court is AFFIRMED.
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