NOT FOR PUBLICATION FILED
JUL 15 2015
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESSICA HOLMES, No. 14-15530
Petitioner-Appellant, D.C. No. 2:11-cv-02710-JKS
v.
MEMORANDUM*
DEBORAH JOHNSON,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
James K. Singleton, Senior District Judge, Presiding
Argued and Submitted June 11, 2015
San Francisco, California
Before: CHRISTEN and WATFORD, Circuit Judges, and ROTHSTEIN, Senior
District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Barbara Jacobs Rothstein, Senior District Judge for the U.S.
District Court for the Western District of Washington, sitting by designation.
Petitioner Jessica Holmes, a state prisoner serving a life-without-possibility-
of-parole sentence, appeals the U.S. District Court for the Eastern District of
California’s order denying her habeas corpus petition.1 We have jurisdiction over
this matter under 28 U.S.C. § 2253.
This Court may grant relief on a “claim that was adjudicated on the merits”
in state court if the state court’s decision was: “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court;” or based on “an unreasonable determination of the facts in light
of the evidence presented in the State court proceedings.” 28 U.S.C. § 2254 (d).
A decision is contrary to federal law if the state court applies a rule that
contradicts controlling Supreme Court authority or “if the state court confronts a
set of facts that are materially indistinguishable from a decision” of the Court but
arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000). The
state court’s factual findings are presumed to be correct unless the petitioner rebuts
this presumption by clear and convincing evidence. Miller-El v. Cockrell, 537
U.S. 322, 340 (2003). However, a state court’s determination of the facts made
without an evidentiary hearing may create a “presumption of unreasonableness.”
See Perez v. Rosario, 459 F.3d 943, 950 (9th Cir. 2006).
Petitioner presents two issues on appeal. First, Petitioner asserts that the
1
The parties are familiar with all relevant facts. Therefore, we need not set
out the facts here.
2
state court’s ruling that she impliedly waived her right to silence and to an attorney
is contrary to well-established federal law. In demonstrating implicit waiver, the
prosecution bears the “heavy burden”2 of showing the waiver was: (1) “voluntary
in the sense that it was the product of a free and deliberate choice rather than
intimidation, coercion, or deception;” and (2) “made with a full awareness of both
the nature of the right being abandoned and the consequences of the decision to
abandon it.” Moran v. Burbine, 475 U.S. 412, 421 (1986).
Petitioner contends that she did not waive her Miranda rights because the
detectives did not give her enough time to invoke these rights. According to
Petitioner, a waiver cannot occur unless the interrogating officer waits a certain
period of time after he reads the Miranda warning and receives affirmation that the
defendant understands her rights before beginning the interrogation. Respondent
counters that no previous Supreme Court decision has inquired into the amount of
time between a Miranda warning and interrogation when examining waiver. See
Berghuis v. Thompkins, 560 U.S. 370, 388-89 (2010) (holding that “a suspect who
has received and understood the Miranda warnings, and has not invoked his
Miranda rights, waives the right to remain silent by making an uncoerced
statement to the police”). We agree with Respondent. Petitioner fails to provide
2
“This ‘heavy burden’ is not more than the burden to establish waiver by a
preponderance of the evidence.” Berghuis v. Thompkins, 560 U.S. 370, 384
(2010).
3
any controlling Supreme Court authority for the proposition that no waiver can
occur in the circumstances presented here.
Petitioner also argues that any waiver was involuntary. In determining
whether a waiver is voluntary and knowing, courts must consider the totality of the
circumstances, including: the defendant’s age, experience, education, background,
and intelligence; the length and duration of questioning; and evidence of deceit,
trickery, cajoling, or physical coercion. See Fare v. Michael C., 442 U.S. 707,
725-26 (1979); Miranda v. Arizona, 384 U.S. 436, 476 (1966).
Petitioner concedes that the state court considered her age and the
circumstances of the interrogation. However, she argues that the court erred by
“fail[ing] to consider her lack of experience with law enforcement, her confusion
during questioning and … the duplicitous and overbearing manner in which the
questioning was conducted.” According to Petitioner, this failing was significant
because the detectives deceived her by describing the advisement as a
“technicality,” not informing her that she was a suspect, and stating that her
statements “can” be used against her. Respondent counters that the court
reasonably concluded that “[t]he detectives did not misrepresent the significance of
Holmes’s rights.” Respondent further argues that well-established federal law does
not require detectives to say “will;” the phrase “can” is sufficient. See Dickerson v.
United States, 530 U.S. 428, 435 (2000) (“anything he says can be used against
4
him in a court of law”). We agree with Respondent; the state court’s finding of
voluntary waiver is supported by the record and does not violate well-established
federal law. Accordingly, Petitioner is not entitled to relief on her Miranda claim.
Second, Petitioner asserts that she is entitled to an evidentiary hearing
regarding her claim that she suffered ineffective assistance of counsel in the course
of plea negotiations.
Respondent counters that a hearing is unnecessary. According to
Respondent, Petitioner is ineligible for relief because her ineffective assistance
claim relies on a “new rule.” Before a state prisoner may upset her state conviction
or sentence on federal collateral review, she must demonstrate that the court-made
rule of which she seeks the benefit is not “new.” Teague v. Lane, 489 U.S. 288,
304-05 (1989). A holding announces a new rule if “it breaks new ground or
imposes a new obligation” on the government, or if “the result was not dictated by
precedent existing at the time the defendant's conviction became final.” Id. at 301.
Conversely, a holding does not “announce a new rule, [when] it ‘[is] merely an
application of the principle that governed’” a prior decision to a different set of
facts. Id. at 307 (quoting Yates v. Aiken, 484 U.S. 211, 217-18 (1988)).
Petitioner’s claim relies on the Supreme Court’s rulings in Frye and Lafler,
which held that the right to effective assistance extends to the consideration of plea
bargains. See Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012) (failure to
5
communicate content of plea offer gives rise to ineffective assistance claim); Lafler
v. Cooper, 132 S. Ct. 1376, 1384 (2012) (improper advice to reject plea).
Respondent asserts that these holdings set out a new rule because neither case
began with a general application of the familiar Strickland analysis. Instead, the
Supreme Court’s opinions began by explaining whether the right to counsel
includes the consideration of plea offers.3 Petitioner counters that, even though
Frye and Lafler explained the scope of the right to effective assistance of counsel,
both cases merely applied the familiar Strickland analysis to a new set of facts and,
therefore, did not break new ground.
We agree with Petitioner. Neither case set forth a new rule for the purposes
of Teague. See Frye, 132 S. Ct. at 1409 (“[t]his application of Strickland to the
instances of an uncommunicated, lapsed plea does nothing to alter the standard laid
out in Hill”); Lafler, 132 S. Ct. at 1384 (the “question for this Court is how to
apply Strickland's prejudice test where ineffective assistance results in a rejection
3
Respondent further contends the Court’s approach in these cases mirrored
that used in another case that did announce a new rule—Padilla v. Kentucky, 559
U.S. 356 (2010). Respondent finds it significant that, like in Padilla, the opinions
in Frye and Lafler do not begin with a general application of Strickland, but rather
discuss the scope of the right. Implicit in this argument is the notion that a case that
fails to begin with a general application of established law is necessarily new.
Justice Kennedy has explained in concurrence that “[w]here the beginning point”
of the analysis is a rule of “general application, a rule designed for the specific
purpose of evaluating a myriad of factual contexts, it will be the infrequent case
that yields a result so novel that it forges a new rule, one not dictated by
precedent.” Wright v. West, 505 U.S. 277, 309 (1992) (concurring in judgment).
However, Respondent has not demonstrated that the inverse is true.
6
of the plea offer and the defendant is convicted at the ensuing trial.”). In holding
that Frye and Lafler did not break new ground, we concur with the reasoning of
another Ninth Circuit panel employed in the context of a second or successive
motion:
[N]either Frye nor Lafler . . . decided a new rule of constitutional
law. The Supreme Court in both cases merely applied the Sixth
Amendment right to effective assistance of counsel according to
the test articulated in Strickland v. Washington, 466 U.S. 668,
686 (1984), and established in the plea-bargaining context in Hill
v. Lockhart, 474 U.S. 52, 106 (1985) . . . Because the Court in
Frye and Lafler repeatedly noted its application of an established
rule to the underlying facts, these cases did not break new ground
or impose a new obligation on the State or Federal Government.
Buenrostro v. United States, 697 F.3d 1137, 1140 (9th Cir. 2012).4
Respondent further argues that Petitioner is not entitled to an evidentiary
hearing because her habeas petition did not set forth a colorable claim for relief.
Generally, where a habeas petitioner is unable to develop the factual basis of her
claim, “an evidentiary hearing is required if (1) the petitioner has shown her
entitlement to an evidentiary hearing pursuant to Townsend v. Sain, 372 U.S. 293,
313 (1963), and (2) the allegations, if true, would entitle [her] to relief.” Hurles v.
Ryan, 752 F.3d 768, 791 (9th Cir. 2014) cert. denied, 135 S. Ct. 710 (2014).
Under Townsend, a federal district court must grant an evidentiary hearing in
4
We also join our sister circuits in this reasoning. See, e.g., Pagan-San
Miguel v. United States, 736 F.3d 44, 45 (1st Cir. 2013); In re Liddell, 722 F.3d
737, 738 (6th Cir. 2013); In re Graham, 714 F.3d 1181, 1183 (10th Cir. 2013);
Hare v. United States, 688 F.3d 878, 879 (7th Cir. 2012).
7
the present situation: The state court resolved the merits of material factual
disputes without affording Petitioner a full and fair hearing or otherwise
developing the factual record. See Townsend, 372 U.S. at 313; see also Hurles,
752 F.3d at 791.
The only remaining question is whether the ineffective assistance of counsel
allegations Petitioner presented in her initial habeas petition, if proven true, entitle
her to relief.5 To state a claim for ineffective assistance of counsel, a petitioner
must establish deficient performance and prejudice caused by this performance.
Strickland, 466 U.S. at 687-88.
An attorney’s performance is deficient if it falls “below an objective
standard of reasonableness” judged “under prevailing professional norms.” Id.
Petitioner’s initial habeas petition alleged that her trial counsel advised her that the
sentence imposed under the plea—sixteen years to life in prison with the
possibility of parole—was functionally the same as the sentence imposed if she
were convicted—mandatory life in prison with no possibility of parole.
Unquestionably, this advice, if given, was incorrect. The life sentence following
conviction was not only mandatory but was also imposed without the possibility of
5
Ostensibly, the state court also based its decision on Petitioner’s “fail[ure]
to attach any reasonably available documentary evidence.” However, Respondent
did not properly raise any argument regarding procedural default.
8
parole.6
Respondent counters that, regardless of the advice Petitioner may have
received from counsel, the record shows that she was aware of the risks associated
with going to trial versus taking the plea deal. Respondent points to statements
made by the prosecutor in Petitioner’s presence regarding the danger of going to
trial and being “convicted of life without parole.” Petitioner counters that the
prosecutor’s comments could not have cured the effect of the improper advice
because they do not convey the mandatory nature of the sentence. Respondent
also cites Petitioner’s comments, which indicated that she had spoken with trial
counsel regarding the plea and thought she understood the offer. Petitioner
counters that her statements do not reveal the content of that advice and, therefore,
do not show that she properly understood the plea offer. We agree with Petitioner.
The record before the state court did not conclusively show that Petitioner
understood the advantages of the plea.
Petitioner also contends that she demonstrated prejudice. Where a plea offer
is rejected based on erroneous advice, the petitioner must show prejudice in the
following way: (1) a “reasonable probability” that she would have accepted the
6
Petitioner also alleges that counsel’s strategy during trial amounted to
ineffective assistance of counsel because counsel had a flawed understanding of
the case. However, this claim, discussed for the first time in her Traverse, is
entirely new and unexhausted. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507
(9th Cir. 1994) (“a ground for relief is not properly raised in a Traverse”).
9
plea offer; (2) that the plea would have been entered without the prosecutor
canceling it or the trial court refusing to accept it; and (3) that the offer was more
favorable than the sentence actually imposed. See Frye, 132 S. Ct. at 1409; Lafler,
132 S. Ct. at 1385-86. In her initial state petition, Petitioner stated that she had
originally planned to accept the plea but “decided to take her case to trial” because
of trial counsel’s advice. Respondent contends that Petitioner’s statement is
insufficient because she does not specifically allege that she would have taken the
plea offer “but for” the improper advice. We disagree. Petitioner, who was pro se
at the time she filed the petition, demonstrated a colorable claim for relief.
Accordingly, we remand to the district court so that it may conduct an
evidentiary hearing regarding the ineffective assistance of counsel claim Petitioner
raised in her pro se petition in the California Superior Court, i.e. that counsel did
not inform her that she faced a mandatory life sentence without the possibility of
parole.
Appellee shall bear costs on appeal.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
10