Paige v. Schriro

648 F. Supp. 2d 1151 (2009)

Robert Stanley PAIGE, Petitioner,
v.
Dora B. SCHRIRO, Director of the Arizona Department of Corrections; and Terry Goddard, Attorney General of the State of Arizona, Respondents.

No. CV 07-8089-PCT-EHC (LOA).

United States District Court, D. Arizona.

August 10, 2009.

Thomas Andrew Gorman, Thomas A. Gorman, Sedona, AZ, for Petitioner.

Lacey Stover Gard, Office of the Attorney General, Tucson, AZ, for Respondents.

ORDER

EARL H. CARROLL, District Judge.

Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court, having reviewed the record de novo, adopts in full the Magistrate Judge's Report and Recommendation (Dkt. 15) and incorporates the same as a part of this Order.^[1]

Accordingly,

IT IS ORDERED adopting the Report and Recommendation (Dkt. 15).

IT IS FURTHER ORDERED that Petitioner's Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, (Dkt. 1) is granted and the matter is remanded to the state court to determine the specific relief Petitioner is afforded.

REPORT AND RECOMMENDATION

LAWRENCE O. ANDERSON, United States Magistrate Judge.

This matter arises on Petitioner's Petition for Writ of Habeas Corpus. (docket # 1) Respondents^[1] have filed an Answer (docket # 11) to which Petitioner has not replied and the deadline has passed.

As an initial matter, the Court will address Petitioner's request that the Court order the Arizona Superior Court or the State Attorney General to transfer their files to Petitioner. (docket # 1 at 9) Such an order is unnecessary. Respondents have submitted the relevant portions of the record in support of their Answer and have provided Petitioner with a copy of their Answer and exhibits. (dockets # 11, # 14) Additionally, because Petitioner was afforded an evidentiary hearing in his post-conviction proceeding in State court, this matter is suitable for resolution on the pleadings. 28 U.S.C. § 2254(e)(2); Schriro v. Landrigan, 550 U.S. 465, 127 S. Ct. 1933, 167 L. Ed. 2d 836 (2007).

After careful review of the record, the Court concludes that trial counsel rendered ineffective assistance and that the state court's resolution of Petitioner's claim of ineffective assistance of counsel rests on an unreasonable determination of the facts and is an unreasonable application of Supreme Court precedent to the facts of this case. See 28 U.S.C. § 2254.

I. Factual and Procedural Background

On June 6, 2002, Petitioner was indicted in the Superior Court of Arizona, Yavapai County, on eight counts of dangerous crimes against children based on alleged sexual activities with a minor. (docket # 1 at 11-12; Respondents' Exh. A at 21-23) Petitioner initially pled not guilty, rejected several plea offers, and proceeded to trial on January 14, 2004 before Judge David L. Mackey. (docket # 1 at 12; Exh. J, Tr. 5/24/05 at 124-26) Petitioner's defense at trial was guilty but insane. The trial ended in a mistrial on February 12, 2004 when the jury was unable to reach a verdict. (docket # 1 at 16, Tr. 2/12/04 at 22-23) Thereafter, the parties negotiated a plea agreement. (docket # 1; Respondents' Exh. C, Tr. 7/16/04 at 54-56; docket # 14) Judge Mackey, and later Judge Kiger, participated in the plea negotiations. (docket # 1 at 14) The plea agreement provided that Petitioner would plead guilty to Counts I and VIII of the indictment, and that the State would dismiss the remaining counts. (docket # 14) Specifically, Petitioner would plead guilty to attempted sexual conduct with a minor (Count I), and to sexual abuse (Count VIII), both class 3 felonies. (docket # 14) The written plea agreement provided that Count I carried "a presumptive sentence of 10 years; a minimum sentence of 5 years; and a maximum sentence of 15 years." (docket # 14) (emphasis in original) The plea agreement also provided that Count VIII carries "a presumptive sentence of 5 years; a minimum sentence of 2.5 years; and a maximum sentence of 7.5 years." (docket # 14) (emphasis in original).

In a section entitled "Special conditions regarding sentence, parole, or commutation, if any," the written plea agreement specified that, "[p]ursuant to A.R.S. § 13-902(E), the Court may, in lieu of prison, order that the Defendant be supervised on probation for any term from five years up to the rest of Defendant's life." (docket # 14) That same section also stated that "DEFENDANT SHALL BE SENTENCED TO THE DEPARTMENT OF CORRECTIONS WITH REFERENCE TO COUNT VIII OF THE INDICTMENT FOR A TERM OF NOT LESS THAN 5 YEARS." (docket # 14) (emphasis in original). The "Special Conditions" section also enumerated 17 specific conditions that the court would impose if Petitioner were placed on probation. (docket # 14) Finally, the written plea agreement specified that "it is the Court's duty to impose sentence upon the Defendant and that any sentence either stipulated to or recommended herein . . . is not binding upon the Court. . . ." (docket # 14)

On April 30, 2004, the trial court^[2] conducted a change of plea hearing. At the commencement of that hearing, the written plea agreement was not yet signed and authorized by the State of Arizona through the Yavapai County Attorney because the county attorney "would not sign an agreement that is not approved by the people whose lives were . . . greatly impacted by this conduct. . . ." (Respondents' Exh. A at 3) The court explained "that's the State's prerogative to determine under which circumstances they're (sic) going to offer a plea agreement." (Respondents' Exh. A at 3)

After noting that the State had not yet signed the plea agreement because it was awaiting approval from the victim's family, the trial court addressed the victim and her mother in court, in Petitioner's presence, and explained the plea agreement's sentencing range:

The plea agreement that I have in front of me indicates that [Petitioner] would plead guilty to an attempted sexual conduct with a minor, a class three felony, and a sexual abuse, a class three felony. The range of sentences available to the Court, based upon this plea agreement, would be a minimum ofâ a stipulated minimum of five years in the Arizona Department of Corrections. . . .

The maximum term that would be available to the Court for a sentence under this plea agreement would be 22― years in the Arizona Department of Corrections. And there would be some possibilities of a prison term and lifetime probation within those ranges.

And, as I read this plea agreement, it would allow the Court to impose a 7― year prison term, up to a 7― year prison term, followed by lifetime probation. That lifetime probation could begin with one year in the Yavapai County Jail.

(Respondents' Exh. A, Tr. 4/30/04 at 3-4)

Judge Mackey explained that he wanted to give both sides an opportunity to ask [the court] any questions they might have or see whether there's any misunderstanding. Because right nowâ and I'm not in a position to tell anybody that they have to agree to thisâ this is an agreement that would only take place if everyone is in agreement.

(Respondents' Exh. A at 5)

The victim's mother stated that "with the plea that's written up todayâ or the plea, I'm sorry, that was offered yesterday would put a cap on [Petitioner's prison term] and tie [the court's] hands to give him a maximum of seven and a half years. . . ." (Respondents' Exh. A at 5) The victim's mother also expressed concern that Petitioner could be released from prison after a few years and, if not placed on probation, re-offend. (Respondents' Exh. A at 6-7) The court responded that a 7― year sentence plus lifetime probation was one possible sentence available under the agreement, and that the court also had the option of sentencing Petitioner to over 22 years imprisonment:

This plea agreement would allow up to a 22― year prison term without lifetime probation and still require [Petitioner] to submit his DNA into a databank with the U.S. Department of Safety; Would require him to register as a sex offender for the rest of his life.

And while the probation would provide some monitoring by a probation officer, it would not prevent [Petitioner] from, if that was his predilection, [finding] ways to have contact with young people. It would be a violation of his probation and it would probably be a new crime, depending upon what that contact was, for which he would face consequences.

I'm just concerned that you're seeing the lifetime probation as a greater protection than those of us who are, unfortunately, involved in this system recognize that it is. It's an important feature and it may be one that, under this plea agreement, I decide is appropriate after a prison term or after a prison term followed by some jail term as well. But this plea agreement, also, given [Petitioner's] age [52], gives this Court the authority to put him in custody today, if it's entered into today, and ensure that he would not be out in the public again for 22― years less credit for time served.

(Respondents' Exh. A at 7-8, 12) (emphasis added).

After a short recess, the victim and her mother consented to the plea agreement and the prosecutor signed it. (Id. at 11) The trial court then engaged Petitioner in a plea colloquy to determine whether he understood the agreement and if it contained all the terms to which he had agreed. The court also inquired whether Petitioner had consumed any drugs, alcohol, or medication before the hearing, and how such drugs affected him:

Q. Have you had any drugs, alcohol or medicine in the last twenty-four hours?

A. Yes.

Q. And what is that?

A. Remeron, Lorazepam, and Paxil.^[3]

Q. And how long have you been taking all three of those medications?

A. Oh, pretty much the year and a half since I've been out.

Q. Are those medications acting normally for you today?

A. Yes.

Q. You're not experiencing any different reaction to those medications?

A. No.

Q. Do you understand what we're talking about today?

A. Yes.

(Respondents' Exh. A at 16-17) The court also asked Petitioner about his understanding of the plea agreement and whether it reflected all of the agreements related to his plea:

Q. Have you read this plea agreement?

A. Yes.

Q. Has your attorney had the opportunity to explain it all to you?

A. Yes.

Q. Do you understand it?

A. Yes.

Q. Do you agree with everything that's in it?

A. Yes.

Q. Do you have any agreements with the State that are not included in this plea agreement?

A. Not that I know of.

* * *

Q. Now, you indicated that there wasn't any other agreement that you knew of. I want to make sure that you understand that once we go through this plea agreement, that is the document I'll be relying upon that sets forth any agreement that you have with the State of Arizona about what's going to happen to you. Any agreements that your attorney might have told you about all have to be in here in writing.

Is this the complete agreement with respect to what's going to happen to you?

A. I assume so. There was (sic) some intentions that weren'tâ

Mr. Griffen: Judge, can we stop for a second?

The Court: Yes.

Mr. Griffen: Judge, because of some of the things that have been bandied about this morning, there was some concern something was changed. We're clear it's the same agreement as yesterday.

The Defendant: Right.

Q. [the Court]: [Petitioner], I want you to understand, while there has been a lot of discussion back and forth this morning and a lot of discussion back and forth before today, I want you to take a moment with your attorney, glance through the pagesâ Mr. Griffen, let me hand this one to you; this is the one I'm working off ofâ look at each page and make sure you see that there have been no other changes.

A. Yes, it appears to be the same.

Q. That plea agreement sets forth all the agreements that you have about what's going to happen to you?

A. (Nodding.)

Q. Yes?

A. Yes.

(Respondents' Exh. A at 12-14) (emphasis added)

The court emphasized that Petitioner had "an absolute right" to plead not guilty and "proceed with the jury trial that's set next week." (Respondents' Exh. A at 14) Petitioner indicated that he understood that right and chose to forego his right to a jury trial and the related rights. (Respondents' Exh. A at 14-15) The court further explained Petitioner's sentencing exposure, and Petitioner stated that he understood he could face over 22 years in prison:

Q. [T]he plea agreement tells me you're going to plead guilty to an attempted sexual conduct with a minor, a class three felony, as well as sexual abuse, a class three felony.

Do you understand that a class three felony, attempted sexual conduct with a minor, carries a presumptive term in the Arizona Department of Corrections of ten years, a minimum term of five years, and a maximum term of fifteen years?

A. Okay.

Q. Yes?

A. Yes.

Q. And do you understand that the sexual abuse, a class three felony, carries a presumptive term in the Arizona Department of Corrections of five years, minimum term of two and a half years, and a maximum of seven and a half years?

A. Yes.

Q. Now, the plea agreement tells me you've agreed that probation is available on the attempted sexual conduct with a minor. Is that in fact your agreement?

A. Yes.

Q. Do you understand that that agreement is not binding upon the Court but that I can determine whether to give a prison term or a lifetime probation term on that count?

A. Yes.

Q. And that if I were to give you a probationary term on that count, that probationary term could be and likely would be for the rest of your life. Do you understand that?

A. Yes, sir.

* * *

Q. Now, with respect to the other count, there's a stipulation that your sentence would not be any less than five years. Is that in fact your agreement?

A. Yes.

* * *

Q. Do you understand that you need to consider that the prison terms you could receive on these offenses would be for as much as 22― years and that you may have to serve all of that 22―, less credit for the approximately six months that you've served in the Yavapai County Jail? Do you understand that?

A. Yes.

(Respondents' Exh. A at 17-20) (emphasis added)

The Court further questioned defense counsel, Bruce Griffen, regarding Petitioner's ability to understand the proceedings and enter the plea:

Q. Mr. Griffen, you've had an opportunity to meet with your client today and on prior occasions. Do you believe that medication is affecting his ability to understand what's going on today?

A. No, it's positive help to him and it's the same as he's represented. I think he's thinking clearly. I've had extensive negotiations with Rob over the last week and over the last day and today and there's been no indication of any problems with his thought process. It's solid.

I've also consulted with his treating psychologist who has represented to me that he has performed well over the last several weeks, despite the various pressures that are ongoing, and that they see no change in his mental ability.

(Respondents' Exh. A at 17) Before accepting Petitioner's plea, the court again inquired whether counsel had "any questions as to the voluntariness of the plea" (Respondents' Exh. A at 23) Petitioner's counsel indicated that he had no questions regarding the voluntariness of the plea. (Respondents' Exh. A at 23) The court then asked if "either counsel [was] aware of anything the Court has left out." (Respondents' Exh. A at 23) Counsel responded that he was not aware of "anything the Court [had] left out." (Respondents' Exh. A at 23)

The court specifically asked Petitioner "based upon the discussions we had in court, do you have any other questions for [the court] with respect to what will happen to you based upon this plea." (Respondents' Exh. A at 24) Petitioner replied, "No. I(sic) just wait for the next legal happening." (Respondents' Exh. A at 24) The trial court then found that Petitioner had knowingly, intelligently, and voluntarily entered a plea of guilty to the offenses set forth in the plea agreement (Counts I and VIII of the Indictment) and accepted his plea. (Respondents' Exh. A at 24)

An aggravation/mitigation hearing took place before Judge Mackey on July 15, 2004. (Respondents' Exh. B) At the beginning of the hearing, Petitioner and the State agreed to amend the plea agreement to include a waiver of Petitioner's right to a jury trial on aggravating factors pursuant to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). (Respondents' Exh. B, Tr. 7/15/04 at 2-3) Before accepting the amendment to the plea agreement, the court again ensured that Petitioner understood the sentencing range.

Q. The plea agreement that you've entered into provided for a range of prison from down as low as five years plus lifetime probation, to as much as 22― years. You remember that?

A. Yes.

(Respondents' Exh. B at 3)

Following a two-day aggravation/mitigation hearing, on July 16, 2004, the trial court sentenced Petitioner to an aggravated term of 15 years imprisonment on Count 1 (attempted sexual conduct with a minor), and a consecutive presumptive term of 5 years imprisonment on Count VIII (sexual abuse). (Respondents' Exh. B, Exh. C at 54-58; Exh. D at 1-2) The remaining six counts of the indictment were dismissed on the State's motion. (Respondents' Exh. C at 59)

On October 12, 2004, Petitioner, through counsel, timely filed a notice of post-conviction relief. (Respondents' Exh. F) On December 22, 2004, Petitioner filed a petition for post-conviction relief, claiming his guilty plea was involuntary because: (1) the sentencing judge, the Honorable David Mackey, suggested during plea negotiations that he would sentence Petitioner to between 2.5 and 7.5 years imprisonment on Count 1 and suspend imposition of sentence on Count 2^[4] and place Petitioner on lifetime probation, and Petitioner pled guilty in reliance on those assurances; and (2) Petitioner was "under the influence of psychotropic medication [anti-anxiety drug Lorazepam at the time of his guilty plea to an extent that made him unable to make a voluntary decision." (Respondents' Exh. F) Petitioner further argued that defense counsel, Mr. Griffen, was ineffective in advising him that Judge Mackey would impose between 2.5 and 7.5 years imprisonment on Count 1 and place Petitioner on lifetime probation on Count 2, and that such ineffective assistance induced him to plead guilty. (Respondents' Exh. F at 8)

Because Judge Mackey was a potential witness, the case was transferred to Judge Janis Sterling who conducted an evidentiary hearing. (Respondents' Exh. H) Petitioner also moved to disqualify the Yavapai County Deputy Attorney, Thomas Thurston, who prosecuted the case because he, too, was a potential witness. (Respondents' Exh. I) The court denied Petitioner's motion to disqualify Thurston. (Respondents' Exh. H)

At the post-conviction hearing, Petitioner presented Judge Mackey, who testified that he did not recall advising the parties that he was inclined to impose any particular sentence. (Respondents' Exh. J, Tr. 5/24/05 at 17-20, 26-27, 46) Likewise, Terry Gray, a paralegal with the Yavapai County Attorney's office who attended the plea negotiations, testified that she did not recall Judge Mackey making a promise to impose a particular sentence. (Respondents' Exh. K, Tr. 6/7/05 at 33, 36, 46) Judge Mackey did not have a detailed recollection of the plea negotiations. He admitted that he often held off-the-record conversations with counsel and that, if Petitioner was not present, there would be no court reporter. (Respondents' Exh. J, Tr. 5/24/05 at 8, 14-19, 23-27, 32, 40, 45) He testified that one settlement conference had occurred before a different judge, Judge Kiger.

Judge Mackey testified that he informed the parties that he "would have a much easier time" accepting a plea agreement that included the option of lifetime probation on the sexual abuse count, if the plea agreement provided for a stipulated sentence on the attempted sexual conduct count. (Respondents' Exh. J, Tr. 5/24/05 at 7, 13-14, 25) Judge Mackey also testified that he told the parties he would "consider" imposing a sentence of 5 to 7.5 years imprisonment followed by lifetime probation. (Respondents' Exh. J at 23) Judge Mackey testified that if he had been inclined to impose a particular sentence, he would have said so on the record. He also specifically recalled discussing the available sentencing range with the victim's mother in court in Petitioner's presence. (Respondents' Exh. J at 41-43)

Judge Mackey further testified that he was aware of Petitioner's history of mental illness and recalled inquiring whether his medications were affecting him differently than usual the day of the change-of-plea hearing. (Respondents' Exh. J at 28-31, 38-40) He recalled that Petitioner had responded negatively. Judge Mackey testified that he observed nothing during the change-of-plea hearing which suggested that Petitioner did not understand the change-of-plea proceedings. (Respondents' Exh. J at 27-29, 38-40) Similarly, Petitioner's trial counsel, Mr. Griffen, testified at the post-conviction hearing that Petitioner did not appear impaired during the change-of-plea hearing. (Respondents' Exh. J at 38-40)

Griffen also testified about the plea negotiations. (Respondents' Exh. J at 59-81, 91) He testified that he tried to negotiate a plea agreement with a sentencing range of 2.5 to 7.5 years imprisonment followed by lifetime probation. (Respondents' Exh. J at 66-67) He testified that Judge Mackey indicated several times, but not in Petitioner's presence, that if Petitioner entered the plea agreement, the appropriate sentence would be prison between 2.5 to 7.5 years, followed by lifetime probation. (Respondents' Exh. J at 67-83) Griffen testified that Judge Mackey gave him the impression that he would impose a sentence of 5 to 7.5 years imprisonment followed by lifetime probation. (Respondents' Exh. J at 71-80, 84) Griffen opined that Judge Mackey wanted the option of imposing probation. (Respondents' Exh. J at 109-11) Griffen testified that he advised Petitioner to accept the plea offer because, based on his 25 years of experience, a judgeâ including Judge Mackeyâ would not "backtrack" on his representations regarding sentencing. (Respondents' Exh. J at 80-81) Griffen testified that he "made sure [Petitioner] understood there was no guarantee (as to the sentence the Judge would impose), and that [he didn't] think [Petitioner] misunderstood that." (Respondents' Exh. J at 81-82, 96, 99, 117-19) Griffen further testified that he "also told [Petitioner], quite strongly, that in [his] opinion, . . . every indication was . . . that the judge was championing, he was the leader, . . . trying to pursue a plea that gave probationary discretion, and that [Griffen believed] that was [the judge's] intention. . . ." (Respondents' Exh. J at 81) Griffen testified that Petitioner would not have accepted the plea offer absent his advice. (Respondents' Exh. J at 54, 80) Griffen further opined that Petitioner was competent to plead guilty the day of the change-of-plea hearing and that he was not impaired. (Respondents' Exh. J at 106-08)

Petitioner also testified at the post-conviction hearing. He testified that Griffen told him that Judge Mackey would impose five years imprisonment on Count 1 and suspend sentence on Count 2 and sentence Petitioner to lifetime probation. (Respondents' Exh. J at 125-27) He testified that Griffen told him that the written plea agreement would "say . . . that you can get [prison time on count 2], but . . . what they are telling you when they put probation eligible," is that the judge will impose probation. (Respondents' Exh. J at 127) Petitioner further testified that Griffen told him that Judge Mackey had indicated that he would impose probation and that, based on Griffen's 25 years in practice, judges do not "go back" on their word. (Respondents' Exh. J at 128, 130-31, 145) Petitioner also testified that Griffen explained to him that the written plea agreement did include a specific sentence because judges in Yavapai county would not "stipulate to an exact sentence." (Id. at 127) However, Griffen also told Petitioner that Judge Mackey's representation during plea negotiations that he would impose lifetime probation on count 2 was "as close as you're going to get to a guarantee around here." (Respondents' Exh. J at 128) Petitioner testified that, when Judge Mackey asked during the change of plea hearing if the written plea agreement was "the complete agreement," he attempted to discuss the alleged promise regarding sentencing, but Griffen dissuaded him from doing so. (Respondents' Exh. J at 138-39; Exh. A at 12-14) Petitioner testified that Griffen said, "answer this right." (Respondents' Exh. Tr. 138-39)

Petitioner further testified that he had practiced as a registered nurse for twenty-five years and is familiar with medications. (Respondents' Exh. J at 120-21) He stated that he ingested six times his usual dose of Lorazepam, which he took to control panic attacks, before the change-of-plea hearing because he was extremely nervous. (Respondents' Exh. J at 122-23, 136-38) As a result, Petitioner testified that he was "unconscious" during the change-of-plea hearing, and that counsel had to wake him up to sign the plea agreement. (Respondents' Exh. J at 138-39) He also claimed that, because of the large dose of Lorazepam, he did not remember the court discussing the sentencing range at the change-of-plea hearing. (Respondents' Exh. J at 146)

Petitioner's ex-wife testified that he appeared "passive" at the change-of-plea hearing, appeared to not understand the proceeding, and did not remember the proceeding. (Respondents' Exh. J at 161-64) Petitioner's friend Dr. Julia Williams, an emergency room physician, testified that the quantity of Lorazepam that Petitioner allegedly consumed would have made him sleepy, confused, and vulnerable to suggestion. (Respondents' Exh. K at 19-20, 28-30) Williams also testified that "even a lay person," like Judge Mackey, likely would have noticed if Petitioner was excessively sedated. (Respondents' Exh. K at 28-29)

The victim's mother, a registered nurse who had known Petitioner socially for four years and had worked with him in the ambulatory surgery department at the Verde Valley Medical Center, testified that she did not observe Petitioner fall asleep or appear confused during the change-of-plea hearing. (Respondents' Exh. K at 58-65)

The trial court rejected Petitioner's claims and concluded that under "the totality of the circumstances and the facts as noted in [the court's] findings, this Court concludes, as a matter of law, that Defendant/Petitioner knowingly, intelligently, and voluntarily entered into a plea agreement with the State of Arizona." (Respondents' Exh. L at 6)

On September 30, 2005, Petitioner filed a petition for review with the Arizona Court of Appeals. (Respondents' Exh. M) Petitioner argued that the trial court erred in rejecting his claims that (1) Judge Mackey's off-the-record representations to the parties regarding sentence induced him to plead guilty; (2) counsel's ineffectiveness and erroneous advice regarding sentence rendered his pleas involuntary; and (3) Petitioner's consumption of a large dose of Lorazepam and resulting impairment rendered his plea involuntary. (Id.) The Court of Appeals summarily denied review on August 4, 2006. (Respondents' Exh. O)

On August 29, 2006, Petitioner filed a petition for review in the Arizona Supreme Court, arguing that his plea was involuntary due to Judge Mackey's off-the-record promises and trial counsel's "incompetent statements and assurances that reinforced the false promise." (Respondents' Exh. P) On November 11, 2006, the Arizona Supreme Court denied review. (Respondents' Exh. Q)

Thereafter, Petitioner filed a timely Petition for Writ of Habeas Corpus in this Court raising the following claims:

1. Petitioner's guilty plea was involuntary because:

a. He relied on Judge Mackey's representations regarding sentencing;

b. He was "over-medicated" with prescription drugs during the plea negotiations and during the change-of-plea hearing; and

c. He relied on trial counsel's "avowals" in deciding to plead guilty.

2. Counsel was ineffective in advising Petitioner that the trial court would sentence Petitioner to five years' imprisonment on Count 1, and suspend sentence on Count 2 and place Petitioner on lifetime probation.

(docket # 1 at 10-41) After discussing the law regarding exhaustion and the applicable standard of review, the Court will consider Petitioner's claims that are properly before it.

II. Exhaustion and Procedural Bar

A federal court may not grant a petition for writ of habeas corpus unless the petitioner has exhausted the state remedies available to him. 28 U.S.C. § 2254(b). When seeking habeas relief, petitioner bears the burden of showing that he has properly exhausted each claim. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir.1981) (per curiam). The exhaustion inquiry focuses on the availability of state remedies at the time the petition for writ of habeas corpus is filed in federal court. O'Sullivan v. Boerckel, 526 U.S. 838, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999). The prisoner "shall not be deemed to have exhausted . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). In other words, proper exhaustion requires the prisoner to "give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan, 526 U.S. at 845, 119 S. Ct. 1728. "One complete round" includes filing a "petition[] for discretionary review when that review is part of the ordinary appellate review procedure in the State." Id. State prisoners may skip a procedure occasionally employed by a state's courts to provide relief only if a state law or rule precludes use of the procedure, or the "State has identified the procedure as outside the standard review process and has plainly said that it need not be sought for purposes of exhaustion." Id. at 848, 850, 119 S. Ct. 1728.

In this case, Respondents argue that because Petitioner did not present Ground 1(b) to the Arizona Supreme Court, that claim is unexhausted. (docket # 11 at 15-18) As discussed below, Petitioner was not required to present his claim to the Arizona Supreme Court to satisfy the exhaustion requirement of § 2254(b).

To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by "fairly presenting" them to the state's "highest" court in a procedurally appropriate manner. Castille v. Peoples, 489 U.S. 346, 349, 109 S. Ct. 1056, 103 L. Ed. 2d 380 (1989); Baldwin v. Reese, 541 U.S. 27, 29, 124 S. Ct. 1347, 158 L. Ed. 2d 64 (2004) (stating that "[t]o provide the State with the necessary `opportunity,' the prisoner must "fairly present" her claim in each appropriate state court. . . thereby alerting the court to the federal nature of the claim."). Contrary to Respondents' assertion, in Arizona, unless a prisoner has been sentenced to death, the "highest court" requirement is satisfied if the petitioner has presented his federal claim to the Arizona Court of Appeals either on direct appeal or in a petition for post-conviction relief. Crowell v. Knowles, 483 F. Supp. 2d 925 (D.Ariz.2007) (discussing Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir.1999)).

Relying on Swoopes v. Sublett, 196 F.3d 1008 (9th Cir.1999) and Baldwin v. Reese, 541 U.S. 27, 124 S. Ct. 1347, 158 L. Ed. 2d 64 (2004), Respondents argue that to properly exhaust federal claims, a petitioner is required to present those claims to the Arizona Supreme Court. (docket # 11 at 15-18) Swoopes does not support this assertion. Although less than a life sentence had been imposed in Swoopes, the Ninth Circuit broadly stated that "Arizona state prisoners need not appeal an Arizona Court of Appeals' denial of post-conviction relief to the Arizona Supreme Court in order to exhaust their state remedies for federal habeas corpus purposes, except in capital cases or cases involving the imposition of a life sentence." 196 F.3d at 1008. In support of this conclusion, Swoopes included undated citations to A.R.S. §§ 12-120.21(A)(1), 12-120.24, and 13-4031, and citations to Ariz.R.Crim.P. 31, State v. Shattuck, 140 Ariz. 582, 684 P.2d 154 (1984), State v. Sandon, 161 Ariz. 157, 777 P.2d 220 (1989), and Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1989). Swoopes, 196 F.3d at 1009-10. As the court noted in Crowell v. Knowles, 483 F. Supp. 2d 925, 930 (D.Ariz.2007), "none of those authoritiesâ either at the time of Swoopes or nowâ support the proposition that Arizona Supreme Court review remains part of the standard review process necessary for exhaustion in cases carrying life sentences." Id. (emphasis in original). Rather, to the extent those authorities mentioned life imprisonment, it was in reference to outdated versions of A.R.S. § 12-120.21(A)(1) and 13-4031. In 1989, years before Swoopes was decided, A.R.S. § 12-120.21(A)(1) and § 13-4031 were amended to omit the phrase, "or life imprisonment." "The effect of this change was to give the Arizona Court of Appeals jurisdiction over criminal convictions carrying life sentences and eliminate the [Arizona] Supreme Court's exclusive and mandatory jurisdiction." Crowell, 483 F.Supp.2d at 928.

The erroneous statement of the law included in dictum in Swoopes was repeated in dictum in Castillo v. McFadden, 399 F.3d 993 (9th Cir.2005) and several district cases. See, Crowell, 483 F.Supp.2d at 930 and n. 4 (compiling cases). These cases, however, "present a tale of zombie precedent. A rule definitively extinguished by statutory amendment in 1989 continues to prowl, repeatedly re-animated by mistaken citation and dicta." Id. at 931.

Accordingly, in Crowell, the court found that "[s]ince 1989, the Arizona Supreme Court has not had exclusive appellate jurisdiction over cases carrying life sentences, and petitioners who have received a life sentence have not had a right to State Supreme Court review." Id. The court went on to hold that:

In sum, the language of Swoopes on life sentences was dictum unnecessary for the correct disposition of that case. The subsequent repetition of that dictum as dictum in other cases does not change its character. Nor do any of the dicta undercut the clarity of the pronouncement by the Arizona Supreme Court, together with the 1989 enactments of the Arizona Legislature, that discretionary review in non-capital cases is `unavailable' for purposes of federal habeas exhaustion.

Id. at 933. The Crowell court found that petitioner, who had received a life sentence, had exhausted his federal claims by presenting them to the Arizona Court of Appeals. Id. The court further noted that the Swoopes decision supported its conclusion. Id. The court explained that, "[a]pplying O'Sullivan, Swoopes held that `Arizona has declared that its complete round [of appellate review] does not include discretionary review before the Arizona Supreme Court.'" 483 F. Supp. 2d at 933 (quoting Swoopes, 196 F.3d at 1010. The Crowell court concluded that "there is no longer any basis for distinguishing among non capital sentences under 28 U.S.C. § 2254(c) in light of the 1989 amendments to A.R.S. § 12-120.21(A)(1) and 13-4031." Crowell, 483 F.Supp.2d at 933.

In accordance with Arizona law and the thorough discussion in Crowell, to properly exhaust his federal claims, Petitioner was not required to present his claims to the Arizona Supreme Court. Rather, the "highest court" requirement is satisfied by fair presentation to the Arizona Court of Appeals.

The Supreme Court's decision in Baldwin v. Reese, 541 U.S. 27, 29, 124 S. Ct. 1347, 158 L. Ed. 2d 64 (2004) does not require a different conclusion. Respondents argue that pursuant to Baldwin, non-capital defendants must exhaust their claims in the Arizona Supreme Court. Respondents' argument hinges on the following language in Baldwin, "[t]o provide the State with the necessary `opportunity,' [to rule on his claims] the prisoner must `fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim." Baldwin, 541 U.S. at 29, 124 S. Ct. 1347 (emphasis added) (citations omitted). Respondents latch onto a single phrase, "including a state supreme court with powers of discretionary review," to support their argument and ignore the basis for this statement. In O'Sullivan, the Supreme Court explained that proper exhaustion requires the prisoner to "give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan, 526 U.S. at 845. "One complete round" includes filing a "petition[] for discretionary review when that review is part of the ordinary appellate review procedure in the State." Id. (emphasis added).

As previously stated, "Arizona has declared that its complete round [of appellate review] does not include discretionary review before the Arizona Supreme Court." Swoopes, 196 F.3d at 1010. Thus, contrary to Respondents' assertion, Baldwin does not require a non-capital prisoner, such as Petitioner, to present his claims to the Arizona Supreme Court.

In summary, Petitioner properly exhausted all of his federal claims raised in the pending Petition for Writ of Habeas Corpus by fairly presenting those claims to the Arizona Court of Appeals.

III. Standard of Review

In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA") which "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under the law." Bell v. Cone, 535 U.S. 685, 693, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002).

Under the AEDPA, a federal court may not grant a habeas petition "with respect to any claim that was adjudicated on the merits in state court" unless the state court's decision was either (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) "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)(1), (2); Carey v. Musladin, 549 U.S. 70, 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006); Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003); Mancebo v. Adams, 435 F.3d 977, 978 (9th Cir.2006). To determine whether a state court ruling was "contrary to" or involved an "unreasonable application" of federal law, courts look exclusively to the holdings of the Supreme Court which existed at the time of the state court's decision. Mitchell v. Esparza, 540 U.S. 12, 15-15, 124 S. Ct. 7, 157 L. Ed. 2d 263 (2003); Yarborough v. Gentry, 540 U.S. 1, 5, 124 S. Ct. 1, 157 L. Ed. 2d 1 (2003). When no decision of the Supreme Court "squarely addresses" an issue or provides a "categorical answer" to the question before the state court, § 2254(d)(1) bars relief. Moses v. Payne, 543 F.3d 1090 (9th Cir.2008). Accordingly, the Ninth Circuit has acknowledged that it cannot reverse a state court decision merely because that decision conflicts with Ninth Circuit precedent on a federal constitutional issue. Brewer v. Hall, 378 F.3d 952, 957 (9th Cir.2004); Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.2003).

Even if the state court neither explained its ruling nor cites United States Supreme Court authority, the reviewing federal court must nevertheless examine Supreme Court precedent to determine whether the state court reasonably applied federal law. Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2003). The United States Supreme Court has expressly held that citation to federal law is not required and that compliance with the habeas statute "does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Id.

A state court's decision is "contrary to" federal law if it applies a rule of law "that contradicts the governing law set forth in [Supreme Court] cases or if it confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent." Mitchell v. Esparza, 540 U.S. 12, 14, 124 S. Ct. 7, 157 L. Ed. 2d 263 (2003) (citations omitted); Williams v. Taylor, 529 U.S. 362, 411, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).

A state court decision is an "unreasonable application of federal law if the court identifies the correct legal rule, but unreasonably applies that rule to the facts of a particular case. Williams, 529 U.S. at 405, 120 S. Ct. 1495; Brown v. Payton, 544 U.S. 133, 141, 125 S. Ct. 1432, 161 L. Ed. 2d 334 (2005). An incorrect application of federal law does not satisfy this standard. Yarborough v. Alvarado, 541 U.S. 652, 665-66, 124 S. Ct. 2140, 158 L. Ed. 2d 938 (2004) (stating that "[r]elief is available under § 2254(d)(1) only if the state court's decision is objectively unreasonable.") "It is not enough that a federal habeas court, in its independent review of the legal question," is left with the "firm conviction" that the state court ruling was "erroneous." Id.; Andrade, 538 U.S. at 75, 123 S. Ct. 1166. Rather, the petitioner must establish that the state court decision is "objectively unreasonable." Middleton v. McNeil, 541 U.S. 433, 124 S. Ct. 1830, 158 L. Ed. 2d 701 (2004); Andrade, 538 U.S. at 76, 123 S. Ct. 1166.

In conducting an analysis under the AEDPA, the habeas court considers the last reasoned state court decision addressing the claim. Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991). Additionally, the habeas court presumes that the state court's factual determinations are correct and petitioner bears the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1) (stating that "a determination of factual issues made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."); Williams v. Rhoades, 354 F.3d 1101, 1106 (9th Cir.2004).

Where a state court decision is deemed "contrary to" or an "unreasonable application of" clearly established federal law, the reviewing court must next determine whether it resulted in constitutional error. Benn v. Lambert, 283 F.3d 1040, 1052 n. 6 (9th Cir.2002). On habeas review, the court assesses the prejudicial impact of most constitutional errors by determining whether they "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946)); see also Fry v. Pliler, 551 U.S. 112, 127 S. Ct. 2321, 168 L. Ed. 2d 16 (2007) (Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness). The Brecht harmless error analysis also applies to habeas review of a sentencing error. The test is whether such error had a "substantial and injurious effect" on the sentence. Calderon v. Coleman, 525 U.S. 141, 145-47, 119 S. Ct. 500, 142 L. Ed. 2d 521 (1998) (holding that for habeas relief to be granted based on constitutional error in capital penalty phase, error must have had substantial and injurious effect on the jury's verdict in the penalty phase.); Hernandez v. LaMarque, 2006 WL 2411441 (N.D.Cal., Aug. 18, 2006) (finding that even if the evidence of three of petitioner's prior convictions was insufficient, petitioner was not prejudiced by the court's consideration of those convictions because the trial court found four other prior convictions which would have supported petitioner's sentence.) However, some constitutional errors do not require that the petitioner demonstrate prejudice. Musladin v. Lamarque, 555 F.3d 830, 834-35 (9th Cir.2009) (citing Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991); United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984)). Furthermore, where a habeas petition governed by AEDPA alleges ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the court applies Strickland's prejudice standard and does not engage in a separate analysis applying the Brecht standard. Id. (citing Avila v. Galaza, 297 F.3d 911, 918 n. 7 (2002)). The Court will review Petitioner's claims under the applicable standard of review.

IV. Deference Owed Factual Findings

As an initial matter, the Court will address Petitioner's blanket assertion that none of the state court's factual findings are entitled to the presumption of correctness which they are normally afforded under 28 U.S.C. § 2254(e)(1). (docket # 1 at 42, 44) The AEDPA's presumption of correctness applies to the state court's factual findings. Petitioner bears the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). Petitioner generally argues that the "circumstances surrounding the [post-conviction] hearing and the voluntariness of the plea," the "actions of the state prosecutor and the trial court," and the fact that the post-conviction hearing was conducted in Yavapai County, render the trial court's factual findings incorrect. (docket # 1 at 42-44) These conclusory allegations are not sufficient to overcome the AEDPA's presumption of correctness. Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir.2001) (finding conclusory allegations insufficient to satisfy clear and convincing error standard.) Additionally, Petitioner cannot rebut the presumption of correctness by arguing that the state court evidentiary hearing was inadequate because an evidentiary hearing is not required for AEDPA deference to the state court's factual findings. Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004) ("We decline to accept [the petitioner's] proposal to inject an `evidentiary hearing' requirement as a prerequisite to AEDPA deference.").

Petitioner further argues that none of the State court's factual findings are entitled to a presumption of correctness because neither the Arizona Court of Appeals nor the Arizona Supreme Court made "individual separate factual findings." (docket # 1 at 42-44) This argument does not rebut the AEDPA's presumption of correctness because "[t]here is no requirement that fact findings by a state trial court be reviewed on the merits by an appellate court in order to be afforded the [AEDPA's] presumption [of correctness]." Wallace v. Price, 265 F. Supp. 2d 545, 567 (W.D.Pa.2003).

Petitioner further argues that the presumption of correctness does not apply to the state court's resolution of his claims of ineffective assistance of counsel. (docket # 1 at 42, 44) Petitioner is correct that the ultimate question of whether counsel was ineffective is a mixed question of law and fact to which the AEDPA presumption of correctness does not apply. However, the presumption of correctness does apply to "state court findings of fact made in the course of resolving claims of ineffective assistance of counsel." Lambert, 393 F.3d at 977. Similarly, although the voluntariness of a guilty plea is a question of law not subject to deferential review, Marshall v. Lonberger, 459 U.S. 422, 431, 103 S. Ct. 843, 74 L. Ed. 2d 646 (1983), findings of historical fact underlying a court's determination of voluntariness are entitled to deference. Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir.1986) ("Findings of historical facts underlying a court's conclusion of [a guilty plea's] voluntariness are given deference in a habeas proceeding.")

Petitioner has not shown by clear and convincing evidence that none of the State court's findings of fact are entitled to the AEDPA's presumption of correctness. However, the Court's finding regarding Petitioner's global challenge to the state court's factual findings does not preclude the Court from finding that several of the state court's specific factual findings may not be entitled to deference.

V. Analysis

A. Voluntariness of Plea

Petitioner claims his guilty plea was involuntary because: (a) he relied on Judge Mackey's promises to impose a particular sentence; (b) he was under the influence of a large dose of Lorazepam during the change-of-plea hearing; and (c) he relied on counsel's avowals that Judge Mackey would impose a particular sentence. (docket # 1 at 7-8, 17, 20-23, 30-32, 34-36)

The United States Supreme Court law governing the voluntariness of a guilty plea is Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970) and its progeny. The Supreme Court has held that "the Constitution insists, among other things, that the defendant enter a guilty plea that is `voluntary' and that the defendant must make related waivers `knowing[ly], intelligent[y], [and] with sufficient awareness of the relevant circumstances and likely consequences.'" United States v. Ruiz, 536 U.S. 622, 629, 122 S. Ct. 2450, 153 L. Ed. 2d 586 (2002) (quoting Brady, 397 U.S. at 748, 90 S. Ct. 1463). A guilty plea is valid if it is entered voluntarily and intelligently considering the totality of the circumstances. Brady, 397 U.S. at 749, 90 S. Ct. 1463; Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). The central question is "`whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Hill v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970)). Although it is fundamental that a guilty plea must be voluntary and intelligent, Boykin, 395 U.S. at 242-44, 89 S. Ct. 1709, a plea is not involuntary "simply because it is induced by the promise of a recommendation of a lenient sentence, and thus by the fear of a greater penalty upon conviction after a trial." Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978). However, a guilty plea may be involuntary where it is induced by threats, misrepresentations, or promises "that are by their nature improper." Mabry v. Johnson, 467 U.S. 504, 509, 104 S. Ct. 2543, 81 L. Ed. 2d 437 (1984).

1. Judge Mackey's Representations

Petitioner first argues that his plea was involuntary because Judge Mackey participated in the plea negotiations and represented that he would impose a particular sentence if Petitioner pled guilty. (docket # 1)

Federal Rule of Criminal Procedure 11 prohibits federal judges from participating in plea negotiations because the "judge's participation in plea negotiations is inherently coercive." United States v. Barrett, 982 F.2d 193, 194 (6th Cir.1992); Fed.R.Crim.P. 11(e)(1). Rule 11 does not apply to state court judges and is not constitutionally mandated. See Frank v. Blackburn, 646 F.2d 873, 882 (5th Cir. 1980); Toler v. Wyrick, 563 F.2d 372, 374 (8th Cir.1977); Waddy v. Heer, 383 F.2d 789, 794-95 (6th Cir.1967). A federal court, however, may set aside a state court plea bargain if persuaded that the trial judge's participation denied the defendant the due process of law by causing him not to understand the nature of the charges against him or the consequences of a guilty plea, or if the judge's participation coerced the defendant to enter into a plea involuntarily. See Frank v. Blackburn, 646 F.2d 873, 882 (5th Cir.1980).

Here, the state court's conclusion that Petitioner's guilty plea was not rendered involuntary due to the trial judge's statements is neither contrary to, nor an unreasonable application of, Supreme Court law. 28 U.S.C. § 2254(d). Judge Mackey engaged in off-the-record plea negotiations with counsel. Petitioner did not participate in the negotiations with Judge Mackey. There is no evidence in the record that Judge Mackey threatened or coerced Petitioner into pleading guilty. The trial judge's statements regarding sentencing were not made in Petitioner's presence, but were conveyed to Petitioner through counsel. There is no evidence that Judge Mackey used coercive language or made any threats. See Longval v. Meachum, 651 F.2d 818 (1st Cir.1981), vacated and remanded, 458 U.S. 1102, 102 S. Ct. 3475, 73 L. Ed. 2d 1362 (1982) (trial judges' "plea-or-else" language was coercive and rendered plea involuntary); Damiano v. Gaughan, 592 F. Supp. 1222 (D.Mass.1984) (rejecting claim that guilty plea was involuntary where trial judge told petitioner's counsel that he would consider a reduced sentence if petitioner cooperated with police).

During plea negotiations, outside of Petitioner's presence, Judge Mackey `expressed his view that the State should be willing to make an offer that included prison time on count one and probation on count two. (docket # 1 at 17, Tr. at 5/24/05 at 67-83) Judge Mackey did not promise to impose that particular sentence, however, and repeatedly reminded Petitioner during the change of plea hearing that he could receive a sentence of up to 22.5 years. (Respondents' Exh. A at Tr. 4/30/04 at 3-4, 7-8, 17-20)

Before accepting Petitioner's guilty plea, Judge Mackey engaged in a plea colloquy during which Petitioner stated that he understood the sentencing range he would face and the rights he would waive by pleading guilty. (Respondents' Exh. A at 12-20) Petitioner stated that the plea agreement contained all the terms he expected, and that he had not received any additional promises that were not contained in the agreement. (Respondents' Exh. A at 12-20)

Judge Mackey's alleged promise to impose a particular sentence did not render Petitioner's guilty plea involuntary. On post-conviction review, the trial court conducted an evidentiary hearing where it observed several witnesses testify and was able to assess their credibility. Based on the state court record and the testimony adduced at the evidentiary hearing, the trial court found no support for Petitioner's claim that Judge Mackey had promised to impose a particular sentence. (Respondents' Exh. L at 1-4) This finding is supported by Judge Mackey's testimony that he made no such promises (Respondents' Exh. J at 17-20, 26-27, 46), Terry Gray's testimony that she did not hear Judge Mackey make such promises during plea negotiations (Respondents' Exh. K at 36, 46), and Judge Mackey's statements during the change-of-plea hearing advising the victim and her mother that Petitioner could be receive over 22 years imprisonment under the plea agreement. (Respondents' Exh. A at 3-10, 17-20; Exh. B at 3)

On habeas corpus review, this Court defers to the state court's factual findings which were based on an assessment of witness credibility. Aiken v. Blodgett, 921 F.2d 214, 217 (9th Cir.1990) ("Section 2254(d) `gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court.'") (quoting Marshall v. Lonberger, 459 U.S. 422, 434, 103 S. Ct. 843, 74 L. Ed. 2d 646 (1983)). The Court concludes that the State court's determination that Judge Mackey did not promise to impose a particular sentence is not an unreasonable determination of the facts in light of the record before the court on post-conviction review. 28 U.S.C. § 2254(e)(1). Because the trial court found that Judge Mackey did not promise to impose a particular sentence, its conclusion that Petitioner did not involuntarily plead guilty in reliance on such a promise is neither contrary to nor an unreasonable application of federal law. See 28 U.S.C. § 2254(d).

2. Medicated State

Petitioner next argues that his plea was involuntary because of his "mental condition based on the fact that he was over medicated with prescribed drugs during the plea negotiations and during the change of plea hearing." (docket # 1 at 7-8, 34) The state court rejected this claim on post-conviction review. (Respondents' Exh. L)

The Court finds that the state court's conclusion that Petitioner's Lorazepam consumption did not render his plea involuntary is neither contrary to, nor an unreasonable application of, federal law or based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d). The trial court conducted an evidentiary hearing during which several witnesses testified regarding Petitioner's demeanor during the change-of-plea hearing. Dr. Williams, a friend of Petitioner, and the victim's mother both testified that Petitioner did not appear confused or sleepy during the change-of-plea hearing. Likewise, Petitioner's defense counsel testified that Petitioner's mental ability was not impaired during the change-of-plea hearing. (Respondents' Exh. J at 38-40) And, during the change-of-plea hearing itself, Petitioner stated that the medications were "acting normally" for him. (Respondents' Exh. J at 16-17) Based on the foregoing testimony, the state court concluded that Petitioner was not impaired during the change-of-plea hearing. (Respondents' Exh. L)

Although contrary evidence was also presented at the hearing by Petitioner's ex-wife who testified that Petitioner appeared "passive" and did not remember the change-of-plea hearing (Respondents' Exh. J at 161-64), and by Petitioner who testified that he was "unconscious" during the change-of-plea hearing (Respondents' Exh. J at 138-39), this Court defers to the State court's factual findings and cannot reassess the credibility determinations made by the state court which observed the testimony. 28 U.S.C. § 2254(e)(1).

The Court concludes that Petitioner has not shown that the state court's decision that "[a]t the time of the entry of the plea, [Petitioner] was not under the influence of medications to the extent is his plea is not voluntary," is contrary to federal law, rests on an unreasonable application of federal law, or is based on an unreasonable determination of the facts. 28 U.S.C. § 2254(e). Accordingly, Petitioner is not entitled to relief on this ground.

3. Representations of Counsel

Petitioner further argues that his plea was involuntary because of his "absolute reliance on his lawyer who provided erroneous advice." (docket # 1 at 8, 31) Although the habeas petition casts the arguments challenging the voluntariness of Petitioner's guilty plea and those challenging Griffen's representation in connection with the plea as two separate theories, Petitioner's guilty plea limits the grounds upon which he can subsequently challenge his detention. The Supreme Court has explained that "[w]here, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases. . . . [A] defendant who pleads guilty upon the advice of counsel `may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was [ineffective].'" Hill v. Lockhart, 474 U.S. 52, 56-57, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) (quoting Tollett, 411 U.S. at 267, 93 S. Ct. 1602) (internal quotation marks and citation omitted). Because Petitioner pled guilty upon the advice of counsel, he is limited to challenging his plea by demonstrating that counsel's advice did not constitute effective representation. See also Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978) ("Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion. . . ."); Worthen v. Meachum, 842 F.2d 1179, 1184 (10th Cir.1988), overruled on other grounds by Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991) (stating that "[w]hen an involuntariness claim rests on the faulty legal decisions or predictions of defense counsel, the plea will be deemed constitutionally involuntary only when the attorney is held to have been constitutionally ineffective."). See also Iaea v. Sunn, 800 F.2d 861, 866 (9th Cir.1986) (noting that to the extent that petitioner argued that his plea was involuntary due to counsel's erroneous advice, his claim was foreclosed by Hill unless he could establish prejudice). Accordingly, the Court will consider Petitioner's claim of ineffective assistance.

B. Ineffective Assistance of Trial Counsel

In Ground 2, Petitioner asserts that trial counsel was ineffective for advising him that Judge Mackey intended to impose a sentence of five years, followed by lifetime probation. (docket # 1 at 8, 11, 17-20, 28, 35, 41) He further argues that his reliance on counsel's erroneous advice renders his plea involuntary. As discussed below, Petitioner is entitled to habeas corpus relief based on this claim.

1. Controlling Law

The "clearly established" Supreme Court law governing claims of ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To establish ineffective assistance, petitioner must show both that his counsel's performance was deficient and that counsel's deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S. Ct. 2052. The two-part Strickland test "applies to challenges to guilty pleas based on ineffectiveness of counsel." Hill v. Lockhart, 474 U.S. 52, 56-58, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) (stating that the Strickland standard applies equally to a defendant who has been "represented by counsel during the plea process and enters his plea upon the advice of counsel. . . .").

To be deficient, counsel's performance must fall "outside the wide range of professionally competent assistance" demanded in criminal cases. Strickland, 466 U.S. at 690, 104 S. Ct. 2052. When reviewing counsel's performance, the court engages a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment. Strickland, 466 U.S. at 690, 104 S. Ct. 2052. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689, 104 S. Ct. 2052. Review of counsel's performance is "extremely limited." Coleman v. Calderon, 150 F.3d 1105, 1113 (9th Cir. 1998), rev'd on other grounds, 525 U.S. 141, 119 S. Ct. 500, 142 L. Ed. 2d 521 (1998). Acts or omissions that "might be considered sound trial strategy" do not constitute ineffective assistance of counsel. Strickland, 466 U.S. at 689, 104 S. Ct. 2052.

To establish a Sixth Amendment violation, petitioner must also establish that he suffered prejudice as a result of counsel's deficient performance. Strickland, 466 U.S. at 691-92, 104 S. Ct. 2052; United States v. Gonzalez-Lopez, 548 U.S. 140, 147, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006) (stating that "a violation of the Sixth Amendment right to effective representation is not `complete' until the defendant is prejudiced.") To show prejudice, petitioner must demonstrate a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S. Ct. 2052; Hart v. Gomez, 174 F.3d 1067, 1069 (9th Cir. 1999); Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir.1998). In the context of a guilty plea, a petitioner "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 57-59, 106 S. Ct. 366. Petitioner bears the burden of proving prejudice, the mere possibility that he suffered prejudice is insufficient to satisfy Strickland's prejudice prong. Cooper v. Calderon, 255 F.3d 1104, 1109 (9th Cir. 2001). The court may proceed directly to the prejudice prong. Jackson v. Calderon, 211 F.3d 1148, 1155 n. 3 (9th Cir.2000) (citing Strickland, 466 U.S. at 697, 104 S. Ct. 2052). The court, however, may not assume prejudice solely from counsel's allegedly deficient performance. Jackson, 211 F.3d at 1155.

On habeas review, the court must give "substantial weight" to the state court's analysis of a claim of ineffective assistance. Dows v. Wood, 211 F.3d 480, 487 (9th Cir.2000). The habeas court considers whether the state court applied Strickland unreasonably:

For [a petitioner] to succeed [on an ineffective assistance of counsel claim], . . . he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. Rather, he must show that the [state court] applied Strickland to the facts of the case in an objectively unreasonable manner.

Bell v. Cone, 535 U.S. 685, 698-99, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002) (citation omitted). See also Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S. Ct. 357, 154 L. Ed. 2d 279 (2002) ("Under § 2254(d)'s `unreasonable application' clause, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied Strickland incorrectly. Rather, it is the habeas petitioner's burden to show that the state court applied Strickland to the facts of his case in an objectively unreasonable manner.") (citations omitted). See also Price v. Vincent, 538 U.S. 634, 640, 123 S. Ct. 1848, 155 L. Ed. 2d 877 (2003) (stating that the burden is on the habeas petitioner to show the state court applied Supreme Court precedent in an unreasonable manner).

2. Analysis of Petitioner's claim

On post-conviction review, the state court concluded that Petitioner "failed to establish Defense counsel performed deficiently under prevailing professional norms." (Respondents' Exh. L) The state court's conclusion was based on its factual findings and legal conclusions that:

1. Defense counsel promptly advised [Petitioner], and his family, of the plea offer, and fully explained the terms of the plea, including the statutory sentencing requirements and possibilities. (Respondents' Exh. L)

2. Defense counsel made it clear, and [Petitioner] understood, there were "no guarantees" as to sentencing.

3. Defense counsel advised Defendant sufficiently to permit Defendant to make a reasonably informed decision whether to accept or reject the plea offer.

4. Defense counsel complied with the American Bar Association Standards for Criminal Justice.

5. Counsel did not "recklessly misinform" [Petitioner] of the contents or effects of the plea.

6. At the time of the entry of the plea, the Court made specific inquiry of [Petitioner] whether had his attorney told him of other agreements as to what was going to happen to him, and [Petitioner] advised the Court that there were no other agreements.

7. Defense counsel's honest, but inaccurate assessment of the Judge's unexpressed sentencing intentions did not constitute ineffective assistance of counsel.

(Respondents' Exh. L) The court finds that paragraph numbers 1, 2 and 6 are factual findings and the remaining paragraphs are legal conclusions.

The ultimate question of whether counsel was ineffective is a mixed question of law and fact to which the AEDPA presumption of correctness does not apply. 28 U.S.C. § 2254(e)(1). "Consequently, federal court reviewing a state court conclusion on a mixed issue involving questions both of fact and law must first separate the legal conclusions from the factual determinations that underlie it." Lambert v. Blodgett, 393 F.3d 943, 978 (9th Cir.2004). The Court finds that paragraph numbers 1, 2 and 6 are factual findings and the remaining paragraphs are legal conclusions.

Thus, the state court's legal conclusions that (1) "Defense counsel advised Defendant sufficiently to permit Defendant to make a reasonably informed decision whether to accept or reject the plea offer;" (2) "Defense counsel complied with the American Bar Association Standards for Criminal Justice;" (3) Counsel did not "recklessly misinform" [Petitioner] of the contents or effects of the plea;" (4) "Defense counsel's honest, but inaccurate assessment of the Judge's unexpressed sentencing intentions did not constitute ineffective assistance of counsel;" (5) "Petitioner has failed to established Defense counsel performed deficiently under prevailing professional norms," and (6) "Petitioner knowingly, intelligently, and voluntarily entered into the plea agreement with the State of Arizona, may be overturned only if they are contrary to, or involve an unreasonable application of, clearly established Supreme Court precedent.

As discussed below, the Court finds that the state court's denial of Petitioner's claim of ineffective assistance of counsel was based on an unreasonable determination of the facts in light of the evidence presented. Federal courts may not grant habeas relief based upon an error in a state court factual determination, unless the state decision "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). "Or, to put it conversely, a federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable." Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir.2004). A state court decision is based on an unreasonable determination of the facts if "an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding[s][are] supported by the record." See Taylor, 366 F.3d at 1000. Once a state court's fact-finding process survives an "unreasonable determination" challenge, the state court's findings of fact are presumed to be correct. Id.; 28 U.S.C. § 2254(e)(1). To overcome this presumption, a habeas petitioner must show by clear and convincing evidence that the state court's factual findings were in error. See 28 U.S.C. § 2254(e)(1); Taylor, 366 F.3d at 1000 ("State-court fact-finding may be overturned based on new evidence presented for the first time in federal court only if such new evidence amounts to clear and convincing proof that the state-court finding is in error.").

As discussed below, the state court's factual findings (paragraphs 1, 2 and 6 of the "Ineffective Assistance" discussion, Exh. L at 7) are based on a selective review of the record and the testimony presented during the post-conviction hearing, and ignore significant evidence which supports Petitioner's claim of ineffective assistance. "[A]n appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding[s] [are] supported by the record." See Taylor, 366 F.3d at 1000. Thus, those findings are not entitled to deference under 2254(d).

a. Counsel's Performance

"In the context of a guilty plea, the ineffectiveness inquiry probes whether the alleged ineffective assistance impinged on the defendant's ability to enter an intelligent, knowing and voluntary plea of guilty." Lambert, 393 F.3d at 980. To prevail on such a claim, the petitioner must show that counsel's assistance was not within the range of competence demanded of counsel in criminal cases and that the defendant suffered actual prejudice as a result. Hill, 474 U.S. at 59, 106 S. Ct. 366. A deficient performance is one in which counsel made errors so serious that he was not functioning as the counsel guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S. Ct. 2052.

Because a guilty plea waives a criminal defendant's Fifth Amendment protections against compulsory self-incrimination, the right to a jury trial, and the right to confront one's accusers, . . . it must be a knowing, intelligent act "done with sufficient awareness of the relevant circumstances and likely consequences." Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986) (quoting Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970)) (internal citations omitted). "Because `an intelligent assessment of the relative advantages of pleading guilty is frequently impossible without the assistance of an attorney,'. . . counsel have a duty to supply criminal defendants with necessary and accurate information." Iaea, 800 F.2d at 865. "A defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of the plea by showing that the advice he received from counsel was not within the range of competence demanded of attorneys in criminal cases." United States v. Signori, 844 F.2d 635, 638 (9th Cir.1988) (citing Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973); McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970)).

Petitioner's claim of ineffective assistance of counsel rests on his allegation that counsel led him to believe that the court would "impose a sentence of [five] years on count one and life time probation on count two." (docket # 1 at 37) A guilty plea cannot be "induced by . . . misrepresentation." Brady, 397 U.S. at 755, 90 S. Ct. 1463. Although a mere inaccurate prediction of a defendant's sentence, standing alone, would not constitute ineffective assistance, see McMann v. Richardson, 397 U.S. 759, 770, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970); Doganiere v. United States, 914 F.2d 165, 168 (9th Cir.1990), "the gross mischaracterization of the likely outcome [of the plea], combined with the erroneous advice on the possible effect of going to trial, falls below the level of competence required of defense attorneys." See Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir.1986) and Chacon v. Wood, 36 F.3d 1459, 1464 (9th Cir.1994), overruled on other grounds by statute, 28 U.S.C. § 2253(c). Likewise, "counsel's misrepresentations as to what [a defendant's] sentence in fact would be" may render a defendant's plea involuntary. Chizen v. Hunter, 809 F.2d 560, 562 (9th Cir.1986); Mayes v. Pickett, 537 F.2d 1080, 1083-84 (9th Cir.1976) (holding that even an exemplary Rule 11 record in a federal plea proceeding was inadequate to determine the appellant's claims of involuntariness where he asserted that his attorney made promises regarding his sentence.)

In this case, during the post-conviction hearing, Petitioner's trial counsel testified that he explained the plea agreement to Petitioner and emphasized that it did not guarantee a particular sentence. (Respondents' Exh. J at 81, 96, 99, 117-19) The state court found that Petitioner's "counsel made it clear . . . there were `no guarantees' as to sentencing." (docket # 11-12 at 7, Respondents' Exh. L) The state court, however, ignored Griffen's other statements regarding the sentence which Petitioner could expect if he pled guilty, Petitioner's lack of experience with the criminal justice system, and Petitioner's extreme reluctance to accept a plea which exposed him to a sentence greater than 7.5 years.

During the evidentiary hearing, Griffen testified that he could not point to any specific statements that Judge Mackey made that would have led him to believe that Judge Mackey was going to give Petitioner a sentence of five to seven and a half years, followed by lifetime probation. (Respondents' Exh. J at 73) Rather, he testified that "the constant theme [of the off-the-record negotiations] was, "why isn't this a fair disposition. Why isn't a two count, some prison followed by probation [an] available deal where I can give him up to the maximum term in the first count, year in the county jail on the second count, with consecutive probation?" (Respondents' Exh. J at 73-74) Griffen testified that Judge Mackey gave him the impression that, if Petitioner accepted the plea, he would impose a sentence of 5 to 7.5 years imprisonment followed by lifetime probation. (Respondents' Exh. J at 71-80, 84) The relevant plea offer provided that Petitioner would plead guilty to one count of attempted sexual conduct with a minor, and to one count of sexual abuse. (docket # 14) Griffen testified that he advised Petitioner to accept the plea offer because, based on his 25 years of experience, a judgeâ including Judge Mackeyâ would not "backtrack" on his representations regarding sentencing. (Respondents' Exh. J at 80-81)

Griffen testified that he thought that Judge Mackey had "agreed" to sentence Petitioner to a mandatory prison term on the sexual abuse count, followed by lifetime probation on the attempted sexual conduct countâ which Griffen described as a sentence of "mandatory prison, five to seven and a half, plus a consecutive probationary term on the attempted count." (Respondents' Exh. J at 95) Griffen admitted that the written plea agreement did not reflect that sentence, "[b]ecause there wasn't an agreement with [the County Attorney's] office to that extent." (Respondents' Exh. J at 95) Counsel reiterated that "there was no agreement between [the County Attorney's] office and [defense counsel's] office that" Petitioner would be sentenced to a prison term of 5 to 7.5 years, followed by lifetime probation. (Respondents' Exh. J at 95-96) Griffen also admitted that he was aware that Judge Mackey "insisted" on having "adequate discretion in any plea agreement to do what he thought was appropriate." (Respondents' Exh. J at 96-97)

Despite having only an "impression" that Judge Mackey would impose lifetime probation on count 2, his knowledge that Judge Mackey insisted on having sentencing discretion, and his knowledge that the County Attorney had not agreed to a sentence which included a prison term of 5 to 7.5 years followed by lifetime probation, Griffen conveyed to Petitioner that Judge Mackey had given "every . . . indication" that he would sentence Petitioner "somewhere between five and seven and a half [years imprisonment], followed by lifetime [probation.]" (Respondents' Exh. J at 80)

Griffen also testified that he did not specifically advise Petitioner of the potential consequences of his pleaâ the potential prison sentence he could face under the plea agreement. See Iaea, 800 F.2d at 864-65 (finding counsel ineffective and plea involuntary where counsel inaccurately predicted the sentence and misinformed petitioner about the consequences of going to trial). Rather than specifically advising Petitioner "[that he could] get prison on Count I with the range of five, ten, 15 [years imprisonment]," (Respondents' Exh. J at 99), Griffen testified that it is "more likely" he would have simply told Petitioner "there is no guarantee. It could go either way." (Respondents' Exh. J at 99) In view of the foregoing, the state court's finding that counsel "fully explained the terms of the plea including the statutory sentencing requirements and possibilities" is an unreasonable determination of the facts. (Respondents' Exh. L)

Further, although counsel told Petitioner that there was "no guarantee" as to the specific sentence the judge would impose, he diluted that statement by also advising Petitioner that Judge Mackey would not back track on his wordâ in other words, he told Petitioner that there was a guarantee. Griffen testified that he told Petitioner "two things . . . One, I made sure he understood there was no guarantee, and I don't think he misunderstood that, but I also told him, quite strongly, that in my opinion, that every indication was from the judge that the judge was championing, he was the leader at this point trying to pursue a plea that gave probationary discretion, and I believe that was his intention by reasons of his negotiations, close door session." (Respondents' Exh. J at 81) (emphasis added). Griffen further testified that he "told [Petitioner] that in [his]. . . 25 years of experience, [he] was confident that based upon discussions that had occurred among the parties in chambers, that Judge Mackey was absolutely inclined to afford [Petitioner] probation.". . . "I conveyed that to [Petitioner] and conveyed to him that I believe that no judge would do that, and then change course with out fair warning. . . ." (Respondents' Exh. J at 81)

The post-conviction court isolated counsel's statement to Petitioner that there was "no guarantee" about sentencing, but ignored counsel's self-described "strong" statements to Petitioner that Judge Mackey had given his word that he would impose lifetime probation on count 2, and that in counsel's 25 years of experience, a trial judge would never go back on his word without warning. Thus, on the one hand, counsel said "no guarantees," but then he said, a judge would not go back on his wordâ which essentially constitutes a guarantee. Defense counsel's representations to Petitioner that "Judge Mackey was absolutely inclined to afford [Petitioner] probation" combined with counsel's statement that, in his 25 years of experience, a judge would not go back on his word negated counsel's warning that there was "no guarantee" about sentencing.

Petitioner was ultimately sentenced to 15 years' imprisonment on the attempted sexual conduct with a minor count, and to a consecutive presumptive term of five years imprisonment on the sexual abuse count. (Respondents' Exh. C at 54-58) Counsel advised Petitioner that Judge Mackey would sentence him to five year's imprisonment on the attempted sexual conduct count, and to lifetime probation on the sexual abuse count. In so doing, counsel did more than inaccurately predict Petitioner's ultimate sentence. But see United States v. Martinez, 169 F.3d 1049, 1053 (7th Cir.1999) (stating that "an attorney's mere inaccurate prediction of a sentence does not demonstrate the deficiency component of an ineffective assistance of counsel claim."); United States v. Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993) ("A miscalculation or erroneous sentence estimation by defense counsel is not a constitutionally deficient performance rising to the level of ineffective assistance of counsel.") Rather, counsel affirmatively misrepresented to Petitioner that Judge Mackey had given his word that he would impose lifetime probation and that, even though that promise was not reflected in the plea agreement and Judge Mackey wanted to retain sentencing discretion, Judge Mackey would not go back on his word. See Chizen v. Hunter, 809 F.2d 560 (9th Cir.1986) (finding that counsel's misrepresentation that the judge had agreed to the specific sentence in the plea agreement constituted ineffective assistance and rendered the plea involuntary and that defense counsel's misrepresentation was sufficient to surmount the imposing barrier imposed by petitioner's statements during the plea hearing.).

In addition to ignoring the foregoing circumstances, the post-conviction court ignored a critical event that took place during the change-of-plea hearing. During the change-of-plea hearing, when Judge Mackey was addressing Petitioner, he interjected about certain "intentions" that he had been promised. (Tr. 4/30/04 at 13) Counsel, however, interrupted Petitioner and told him that further discussion would result in the court rejecting the plea. (Tr. 7/16/04 at 55-56; Tr. 5/24/05 at 130, 135, 136, 139) Thereafter, the trial court inquired whether the "plea agreement sets forth all the agreements you have about what's going to happen to you?" (Tr. 4/30/04 at 14) Petitioner "nodd[ed]" which the court interpreted as "yes," and Petitioner confirmed "Yes." (Tr. 4/30/04 at 14)

On post-conviction review, the trial court ignored Petitioner's interjection at the change-of-plea hearing. (docket # 11-12) The post-conviction court concluded that "[a]t the time of the entry of the plea, the Court made specific inquiry of [Petitioner] whether had his attorney told him of any other agreements as to what was going to happen to him, and [Petitioner] advised the Court there were no other agreements." (Respondents' Exh. L) The state court, however, failed to discuss the portion of the plea hearing where Petitioner balked at the mention of a 22 year sentence and mentioned that there were other "intentions."

In view of the foregoing, the Court finds that the state court's decision is based on an unreasonable determination of the facts. The record reflects that counsel's performance was deficient in the manner described above.

b. Prejudice

Having found counsel's performance deficient, the Court will consider whether Petitioner establishes that he was prejudiced thereby. To satisfy the prejudice prong in the context of a guilty plea, Petitioner "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59, 106 S. Ct. 366. As set forth below, "[t]he record is replete with evidence that [Petitioner] was very reluctant to plead guilty." See Iaea v. Sunn, 800 F.2d at 865 (remanding to district court to determine whether petitioner established prejudice where record indicated that petitioner was reluctant to plead guilty). Additionally, the "special circumstances" in this case indicate that Petitioner placed particular reliance on counsel's advice in deciding whether to plead guilty. Hill, 106 S.Ct. at 371.

On June 6, 2002, Petitioner was indicted on eight counts of dangerous crimes against children. He had no prior experience with the criminal justice system. (Tr. 7/16/04 at 44; Tr. 5/24/05 at 9. 38, 56, 120, 121, 152; Tr. 6/7/05 at 11, 12, 21) Petitioner had a history of mental illness, and several days after the indictment was filed, he requested an examination pursuant to Ariz.R.Crim.P. 11. (Id.) Before his arrest, Petitioner was treated by several mental health professionals and after his arrest, he was treated at an in-patient facility in Maricopa County. (Tr. 5/24/05 at 152-53; Tr. 6/7/05 at 11)

Petitioner initially pled not guilty. The State made numerous plea offers which Petitioner rejected. For example, one pretrial plea offer proposed "prison with a range of 10 to 24, with three other counts eligible for probation. . . ." (Respondents' Exh. J at 60) Defense counsel testified that such a possible sentence was not "a realistic possibility for Mr. Paige." (Respondents' Exh. J at 60) Counsel explained that if Petitioner proceeded to trial, and prevailed on his defense of guilty but insane, he would "not [have] been subjected to prison but to treatment through the mental health system [the state mental hospital]." (Respondents' Exh. J at 60) Petitioner confirmed that he rejected the pre-trial plea offers because he was mentally ill, and he and his family wanted to make sure that he could receive mental health treatment. (Tr. 5/24/05 at 124-26, 155) Petitioner, who was 52 at the time of his arrest and pre-trial proceedings, did not feel that life imprisonment was an option. (Tr. 4/30/04; Tr. 5/24/05 at 124-26, 155) Because the State did not offer a plea which provided for a short prison termâ approximately five yearsâ and probation, Petitioner proceeded to trial before a jury. During post-conviction proceedings, defense counsel testified that Petitioner "was not prepared to accept a significant prison term, period." (Respondents' Exh. J at 54, Tr. 5/24/05 at 54)

The jury trial began on January 14, 2004. Petitioner's defense was guilty but insane. (Respondents' Exh. J, Tr. 5/24/05 at 9, 38, 53-56, 93-94, 123, 125, 155) After ten-days of trial, the jury was unable to reach a verdict and the court declared a mistrial. (Tr. 2/14/04 at 22-23) After his trial ended in a mistrial, Petitioner "remained desirous of going to trial." (Respondents' Exh. J at 56-57) Petitioner's family was prepared to proceed to a second trial and had the finances to cover the trial. (Respondents' Exh. J at 69) A second trial was scheduled for April 7, 2004, and plea negotiations resumed. (Respondents' Exh. J at 66) Petitioner again refused to consider any plea offers that included extensive prison time. Petitioner felt that there was no benefit to serving the rest of his life in prison with minimal mental health treatment. Thus, the only realistic plea offer to Petitioner was one that would result in a short prison term followed by probation. (Tr. 5/24/05 at 69, 124-26, 155) Petitioner rejected all of the pre-trial and post-trial plea offers that exposed him to a prison term that was much longer than five years. (Id.; Respondents' Exh. J, Tr. 5/24/05 at 53-54, 120-26) During post-conviction proceedings, defense counsel testified that Petitioner would not have taken a plea if he "knew that he was going to be exposed to perhaps more than seven and a half years ...." (Respondents' Exh. J, Tr. 5/24/05 at 54)

Petitioner ultimately accepted a plea offer pursuant to which he believed he would receive between 2.5 and 7.5 years imprisonment on the first count, followed by lifetime probation on the second count. Petitioner accepted this plea in reliance on counsel's representation that Judge Mackey had promised that he would impose a 5 year sentence on count one and probation on count two. (Tr. 5/24/05 at 76, 77, 80-82, 103, 127, 145, 151, 157). Counsel testified during post-conviction proceedings, that Petitioner "relied on [his] expertise." (Respondents' Exh. J at 58) Defense counsel further testified that if "there had been any other statement from [counsel] along the lines that [Petitioner] could face more than seven and a half years in prison," Petitioner would not have taken the plea. (Respondents' Exh. J at 72) Counsel testified that he told Petitioner that "in discussing this with Judge Mackey, that every . . . indication was, he was going to wind up somewhere between five and seven and a half, followed by lifetime [probation.]" (Respondents' Exh. J at 80) Counsel testified that "but for that representation, [Petitioner] wouldn't have" taken the plea." (Respondents' Exh. J at 80)

During post-conviction proceedings, Petitioner testified consistently with defense counsel that he relied on counsel's advice and would not have accepted the plea absent his advice. (Tr. 5/24/05 at 58, 80, 103) He testified that, if he had believed he would be exposed to more than five years imprisonment, he "wouldn't have gone for" the plea. I mean I hadn't before. I wouldn't now. I felt we were stronger going back to trial the second time." (Respondents' Exh. J at 141-42) In assessing Petitioner's claims, the post-conviction court disregarded Petitioner's subjective state of mind which is relevant to determining the voluntariness of a guilty plea. Iaea, 800 F.2d at 866 (stating that to determine the voluntariness of the plea, the court looks to the totality of the circumstances, examining both the defendant's "subjective state of mind" and the "constitutional acceptability of the external forces inducing the guilty plea.").

In view of the Petitioner' rejection of numerous plea offers both before and after his trial, which ended in a mistrial, Petitioner's consistent preference for proceeding to trial rather than accepting a plea that exposed him to more than five years imprisonment, and his numerous statements during the post-conviction proceedings that if he had believed the plea agreement exposed him to a sentence of over five years, he would have rejected it, there is a reasonable probability that but for counsel's deficient performance, Petitioner would not have pled guilty and would have proceeded to trial.

In view of the foregoing, the Court finds that the state court's application of Strickland was objectively unreasonable. See Wiggins v. Smith, 539 U.S. 510, 520-21, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003). Knowing that the trial judge wanted to retain sentencing discretion and would not stipulate to a particular sentence, defense counsel advised Petitioner that the trial judge had "given his word" that he would impose a sentence of five years imprisonment followed by lifetime probation. Counsel also told Petitioner that, although that agreement was not reflected in the written plea agreement, the trial judge would not "backtrack" from his word, which was "as good of a guarantee" as Petitioner would get in this case. Petitioner, who had no prior experience with the judicial system, was entitled to credit defense counsel's representation that an agreement existed with Judge Mackey, and to rely on it. The record reflects that Petitioner's guilty plea was induced by such a representation. Contrary to Respondents' assertion, the plea colloquy does not cure any defects that may have occurred due to counsel's misrepresentations. During the plea colloquy, Petitioner tried to express to the court that there were other "intentions" regarding sentencing that were not reflected in the written plea agreement. However, Petitioner was prevented from voicing his views by counsel and the plea proceeded. Petitioner again relied on counsel's assurances that an agreement had been reached regarding sentencing and that he should accept the plea. Due to the circumstances surrounding Petitioner's plea, Petitioner has overcome the "imposing barrier" of his representations made during the plea hearing. See Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977).

In conclusion, the Court finds that the state court's resolution of Petitioner's claim of ineffective assistance of counsel is based on an unreasonable determination of the facts, which led to an unreasonable application of Strickland. Petitioner is entitled to habeas corpus relief on his claim of ineffective assistance of counsel. Because the court finds that Petitioner is entitled to habeas relief based on his allegation of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the Court need only apply Strickland's prejudice standard and does not engage in a separate analysis applying the Brecht standard. Musladin v. Lamarque, 555 F.3d 830, 834-35 (9th Cir.2009) (citing Avila v. Galaza, 297 F.3d 911, 918 n. 7 (2002)).

Accordingly,

IT IS HEREBY RECOMMENDED that Petitioner's Petition for Writ of Habeas Corpus (docket # 1) be GRANTED and that the state court has the discretion to determine the specific relief Petitioner is afforded. For example, the court may give Petitioner the sentence for which he thought he had bargained, or permit him to withdraw his guilty plea and proceed to trial.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment. The parties shall have ten days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See, 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(e), Federal Rules of Civil Procedure. Thereafter, the parties have ten days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003). Failure to file timely objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See, Rule 72, Federal Rules of Civil Procedure.

DATED this 24th day of February, 2009.

NOTES

[1] The sentence at page 12, lines 24 through 26, of the Report and Recommendation should read, "Petitioner also testified that Griffen explained to him that the written plea agreement did not include a specific sentence because judges in Yavapai county would not "stipulate to an exact sentence."

[1] Petitioner named Dora B. Schriro as a respondent in this matter. Charles Ryan, the current director of the Arizona Department of Corrections, is automatically substituted for Dora Schriro pursuant to Fed.R.Civ.P. 25(d).

[2] The Honorable David L. Mackey presided.

[3] Remeron is a specific brand of Mirtazapine which is used to treat depression. Mirtazapine is classified as an antidepressant. It works by increasing certain types of activity in the brain to maintain mental balance.

Paxil is a specific brand of Paroxetine which is used to treat depression, panic disorder (sudden, unexpected attacks of extreme fear and worry about these attacks), and social anxiety disorder (extreme fear of interacting with others or performing in front of others that interferes with normal life).

Lorazepam is used to relieve anxiety. (See, www.nlm.nih.gov/medlineplus/ druginfo/)

[4] Because the parties refer to "Count 1 and 2", rather than the specific counts of the Indictment to which Petitioner plead guilty (Count Iâ attempted sexual conduct, and Count VIIIâ sexual abuse), the record is a bit confusing. The parties seem to refer to the attempted sexual conduct charge as Count 1 and to the sexual abuse charge as Count 2, thus, the Court will use this same manner of identification.