Weaver v. Palmateer

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RONALD R. WEAVER,  No. 04-36009
Petitioner-Appellee,
v.  D.C. No.
CV-99-01045-GMK
JOAN PALMATEER,
Respondent-Appellant.


RONALD R. WEAVER,  No. 04-36020
Petitioner-Appellee,
v.  D.C. No.
CV-99-01150-JMS
JOAN PALMATEER,
OPINION
Respondent-Appellant.

Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding

Argued and Submitted
December 7, 2005—Portland, Oregon

Filed July 17, 2006

Before: James R. Browning, Dorothy W. Nelson, and
Diarmuid F. O’Scannlain, Circuit Judges.

Opinion by Judge O’Scannlain

7871
 WEAVER v. PALMATEER 7875

COUNSEL

Janet A. Klapstein, Assistant Attorney General, Salem, Ore-
gon, argued the cause for the respondent-appellant; Hardy
Myers, Attorney General, and Mary H. Williams, Solicitor
General, were on the briefs.

Anthony D. Bornstein, Assistant Federal Public Defender,
Portland, Oregon, argued the cause for the petitioner-appellee.

OPINION

O’SCANNLAIN, Circuit Judge:

In this case we must decide whether an Oregon state pris-
oner is entitled to a writ of habeas corpus on the basis of inef-
fective assistance of counsel in connection with his rape and
sodomy convictions in 1983.

I

On August 30, 1982, authorities in Clackamas County,
Oregon arrested Petitioner Ronald Weaver on suspicion that
he had committed some 20 to 30 rapes between December
1981 and August 1982. Weaver was accused of being the “T-
Shirt Rapist,” a serial offender whose distinctive modus ope-
randi was to target lone women, to break into their homes,
and to commit sexual assault under threat of violence while
covering his head with a T-shirt or other article of clothing.
The assailant would then force the victims to lie face down;
he would cover them with a blanket and then flee the scene.
7876 WEAVER v. PALMATEER
The police identified Weaver as the culprit when, in an
aborted rape attempt, the intended victim followed the assail-
ant out of the house and wrote down the license plate number
of his departing vehicle. The plates were registered to Wea-
ver’s sister. Subsequently, police determined that fingerprints
left on one victim’s sliding glass door belonged to Weaver.

Weaver retained Nick Chaivoe, an experienced criminal
defense attorney, as trial counsel.1

A

Police investigators arranged for two pretrial lineups. The
first was a photographic lineup, at which none of the wit-
nesses could identify Weaver as the culprit. The second was
a live lineup, which the authorities initially postponed because
a local newspaper had published Weaver’s photograph and
identified him as a suspect in the sexual assaults. At the res-
cheduled lineup, Chaivoe questioned each of the witnesses as
to whether their ability to identify the culprit had been influ-
enced by the newspaper publication. Only one had seen the
photograph, and she denied any taint or compromise. At least
four of the victims then identified Weaver as their rapist.

During a pretrial psychological interview, Weaver admitted
to raping “a number of women in a variety of fashions.” Ini-
tially, Chaivoe considered the possibility of a defense based
on “mental disease or defect.” Chaivoe’s investigation of this
possibility took into account evaluations by several medical
professionals: Drs. Henry Dixon, Norman M. Janzer, Robert
A. Maricle, and Kenneth Paltrow, all psychiatrists, and Peter
V. Okulitch, a clinical psychologist.

According to Chaivoe, Weaver ultimately directed him “to
1
At an early point in the representation, Weaver found himself no longer
able to pay for Chaivoe’s services. However, Chaivoe continued as coun-
sel on the basis of a court appointment.
 WEAVER v. PALMATEER 7877
negotiate a plea with the district attorneys to get him the best
deal possible.” Chaivoe negotiated an agreement, and on Jan-
uary 11, 1983, Weaver pled guilty in Clackamas County to
one count of first-degree rape and one count of first-degree
sodomy. On January 20, 1983, he pled guilty in Multnomah
County, Oregon, to one count of first-degree rape and one
count of first-degree attempted sodomy. The plea bargain
included the agreement of prosecutors in the two Oregon
counties and two counties in the State of Washington to
forego any other charges against Weaver. In total, there were
at least 19 other known victims upon whose testimony the
authorities might have prosecuted Weaver.

B

On January 24, 1983, the Oregon State Hospital (“OSH”)
Mental Health Division admitted Weaver for evaluation for
sexual dangerousness and a recommendation of treatment.

The OSH evaluation disclosed Weaver’s repeated admis-
sion that he had committed about 30 rapes. The report’s con-
clusion was that Weaver “poses an extreme sexual danger to
the community without intensive treatment in a highly struc-
tured environment.” However, the report acknowledged that
“[b]ecause of the seriousness of his multiple charges, it is
unlikely that probationary treatment . . . will be deemed feasi-
ble.”

The state circuit courts received the report on March, 17,
1983. The next day, according to the presentence report, Wea-
ver “made the decision to fire his attorney, withdraw his plea
and [was] considering entering pleas of not guilty by reason
of insanity.” Weaver filed a motion to discharge Chaivoe as
counsel on March 22. Before withdrawing, Chaivoe filed
motions on Weaver’s behalf seeking to withdraw his guilty
pleas or continue sentencing.2
2
Chaivoe served as Weaver’s attorney from late 1982 until April 1983.
He died on September 23, 2000.
7878 WEAVER v. PALMATEER
C

Michael Clancy was then substituted as Weaver’s counsel.
On May 24, 1983, Clancy filed an amended motion on behalf
of Weaver to withdraw his guilty pleas on the ground that
Chaivoe’s representation was constitutionally inadequate.

The Clackamas County Circuit Court plea-withdrawal hear-
ing took place on May 27, 1983, before Judge Patrick Gilroy.
Weaver argued that Chaivoe coerced his original plea by
threatening that otherwise Weaver would be prosecuted for all
of the suspected rapes and would receive “a minimum of
eighty years in the penitentiary.” Chaivoe described the steps
he took while representing Weaver, and he indicated that he
spent an unusually large amount of time on Weaver’s case
“because of the nature and complexity of the problems that
were involved.” Chaivoe claimed that he did not recommend,
much less coerce, Weaver’s guilty pleas.

Judge Gilroy denied the motion to withdraw the guilty plea.
Given that Weaver could have been charged with many more
counts of rape, the judge held, inter alia, that the result
obtained in the case evidenced the adequacy of Chaivoe’s rep-
resentation.

D

Clancy also filed a motion to withdraw Weaver’s guilty
plea in the Multnomah County Circuit Court. On June 30,
1983, Judge Robert P. Jones presided over a hearing on the
motion. Weaver offered testimony from Patrick Birmingham
and Robert R. Selander, two local defense attorneys, who sug-
gested that Chaivoe’s representation of Weaver had been
inadequate in several respects.

Judge Jones denied Weaver’s motion to withdraw the guilty
plea. The judge concluded that Chaivoe’s assistance was not
ineffective because he was following Weaver’s directions. In
 WEAVER v. PALMATEER 7879
so finding, he credited the out-of-court statements offered by
the State’s attorney and Chaivoe’s Clackamas County testi-
mony with respect to the facts of his representation of Wea-
ver.

E

On July 7, 1983, the Clackamas County court sentenced
Weaver to two consecutive 20-year sentences with 10-year
minimums for the rape and sodomy counts. On August 1,
1983, the Multnomah County court sentenced Weaver to 20
years for the first-degree rape count and 10 years for the first-
degree attempted rape count. The counts carried minimums of
10 and 5 years, respectively. The sentence for attempted rape
was to run concurrently with a 10-year sentence for first-
degree attempted sodomy.

The Multnomah County court decreed that its sentence
would run consecutively to the Clackamas County sentence.
Thus, the total sentence imposed was 70 years imprisonment
with a minimum of 35 years.

F

In 1984, Weaver directly appealed both sentences. The
Oregon Court of Appeals affirmed the trial court judgments
without opinion. See State v. Weaver, 67 Or. App. 536, 678
P.2d 782 (1984). Weaver did not pursue an appeal to the Ore-
gon Supreme Court. The convictions thus became final on
May 3, 1984. See Or. R. App. P. 10.05 (1984).

In 1991, Weaver filed a petition for post-conviction relief
in the Circuit Court of Marion County, Oregon.3 Before Judge
Pamela L. Abernethy, Weaver argued that Chaivoe provided
3
The petition was initially dismissed as untimely, but the State conceded
this was error and the Court of Appeals remanded the petition for trial.
State v. Weaver, 116 Or. App. 54, 838 P.2d 647 (1992).
7880 WEAVER v. PALMATEER
ineffective assistance; that his guilty pleas were not knowing
or voluntary; that the terms of the plea agreement had been
violated; and that the district attorney had engaged in miscon-
duct.

Judge Abernethy denied Weaver’s petition on August 29,
1996. She noted that Judges Gilroy and Jones, many years
earlier, had heard much of the same evidence then before her.
The judge concluded that Judge Gilroy’s reasoning was per-
suasive and that Weaver had failed to meet his burden of
proving ineffective assistance of counsel.

The Oregon Court of Appeals affirmed without opinion and
the Oregon Supreme Court denied review. See Weaver v.
Maass, 157 Or. App. 600, 972 P.2d 1231 (1998), rev. denied
328 Or. 365, 987 P.2d 511 (1999).

G

Weaver filed these petitions for writs of habeas corpus in
the District of Oregon on July 23, 1999, challenging his guilty
pleas in both the Clackamas and Multnomah County convic-
tions.4 He alleged the denial of adequate assistance of counsel
on several grounds, as well as other claims not relevant here.5

On July 28, 2003, United States Magistrate Judge Janice M.
Stewart issued her Findings and Recommendation that Wea-
ver’s petitions be granted and that he be retried. Subsequently,
4
The State does not raise the statute of limitations bar on AEDPA filings
made beyond one year of a petitioner’s conviction in state court. See 28
U.S.C. § 2244(d)(1). We note that Weaver’s convictions became final in
1984 and these petitions were not filed until July 23, 1999. We assume,
without deciding, that Weaver’s post-conviction relief filings in various
state courts tolled, equitably or otherwise, the statute sufficiently to permit
a timely filing under AEDPA.
5
Weaver does not argue on appeal all of the issues raised in his habeas
petition—namely, the claims of error by the trial court and misconduct by
the prosecutor. We consider such claims to have been waived.
 WEAVER v. PALMATEER 7881
District Court Judge Garr M. King entered orders granting
habeas relief based on the Magistrate’s Findings and Recom-
mendation in both cases, ordering the State “to take Weaver
to trial within 180 days or release him from custody.” The
State filed timely notices of appeal and we consolidated both
cases for argument and disposition.6
6
We review de novo the district court’s grant of habeas relief. Leavitt
v. Arave, 383 F.3d 809, 815 (9th Cir. 2004) (citation omitted). Of course,
our review of the petition is guided by the Antiterrorism and Effective
Death Penalty Act (“AEDPA”) and its prescription of deference to the
final judgments of the state courts. See, e.g., Lounsbury v. Thompson, 374
F.3d 785, 787 (9th Cir. 2004). Under AEDPA, a federal court may over-
turn a state conviction on a question of law or mixed question of law and
fact only where the state court’s decision was “contrary to, or involved an
unreasonable application of, clearly established federal law as determined
by the Supreme Court.” 28 U.S.C. § 2254(d)(1); see Williams v. Taylor,
529 U.S. 362, 407-09 (2000).
As to questions of historical fact, habeas relief is inappropriate unless
the state court 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). We apply subsection (d)(2) because it pertains to
an “intrinsic analysis” of the state court’s fact-finding process, i.e., “where
petitioner challenges the state court’s findings based entirely on the state
record.” Taylor v. Maddox, 366 F.3d 992, 999-1000 (9th Cir. 2004). In
Taylor v. Maddox, we observed that what § 2254(d)(2) “teaches us is that,
in conducting this kind of intrinsic review of a state court’s processes, we
must be particularly deferential to our state-court colleagues.” Id. at
999-1000 (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); accord
Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004).
The burden of proof rests with the petitioner. Woodford v. Visciotti, 537
U.S. 19, 24 (2002). In assessing Weaver’s habeas claims, we analyze the
last reasoned state decision. Ylst v. Nunnemaker, 501 U.S. 797, 803
(1991); Barker v. Fleming, 423 F.3d 1085, 1090 (9th Cir. 2005). Ordinar-
ily, AEDPA contemplates review of a single state court opinion. However,
Judge Abernethy’s 1996 decision substantially adopted the reasoning
employed by Judges Gilroy and Jones in their 1983 decisions denying
Weaver’s motions for withdrawal of the guilty pleas. Thus, we also con-
sider those decisions to the extent they illuminate the basis for the 1996
decision. See Barker, 423 F.3d at 1093.
7882 WEAVER v. PALMATEER
II

Before considering the parties’ contentions, we take a
closer look at the record developed in the Oregon court pro-
ceedings. There are many instances in the record in which a
statement by Weaver flatly contradicts one by Chaivoe. Given
such contradictory testimony and the nature of the accusations
made by Weaver, the fact that the state courts, three times,
rejected Weaver’s claim that Chaivoe’s representation was
ineffective strongly indicates these courts found Chaivoe
credible and Weaver not. See Marshall v. Lonberger, 459
U.S. 422, 433-34 (1983) (“[B]ecause it was clear under the
applicable federal law that the trial court would have granted
the relief sought by the defendant had it believed the defen-
dant’s testimony, its failure to grant relief was tantamount to
an express finding against the credibility of the defendant.”
(citing Lavallee v. Delle Rose, 410 U.S. 690 (1973))); accord
Knaubert v. Goldsmith, 791 F.2d 722, 727 (9th Cir. 1986)
(“[N]ot every finding of fact need be stated on the record in
infinite detail and clarity. In certain circumstances we will
recognize that a factual determination is implicit in the actions
taken by a state court.”).7
7
Though perhaps not an explicit credibility determination, we note fur-
ther support for an implicit one in Judge Gilroy’s conclusion that Weaver
simply came to regret the plea bargain after realizing his sentence would
not be what he had hoped. The judge stated:
I find it difficult for me to believe that there is a great deal of sub-
stance in a Johnny-come-lately complaint about Mr. Chaivoe,
after the presentence report has been received and you’re aware
now that the presentence writers are recommending incarceration,
as to the competency of Mr. Chaivoe. . . . And to blacken the
name of a veteran attorney in an effort to avoid what you now
may feel is a potential imprisonment, I think that speaks little of
your character.
Transcript of Proceedings, Motion to Withdraw, State v. Weaver, Nos. 82-
688, 82-801, at 111 (Cir. Ct. Clackamas Co. May 27, 1983).
It is true that Judge Gilroy expressed disapproval that Weaver had
waited to file the motion until after the presentence report was received,
 WEAVER v. PALMATEER 7883
Although we are empowered to overturn a state court’s
credibility determination, see Taylor, 366 F.3d at 1000 (citing
Miller-El v. Cockrell, 537 U.S. 322 (2003)), we see no need
to do so here. Weaver has pointed to nothing in the record that
would indicate the state courts’ acceptance of Chaivoe’s testi-
mony was erroneous, much less that it was objectively unrea-
sonable. See Rice v. Collins, 126 S. Ct. 969, 976 (2006)
(“Reasonable minds reviewing the record might disagree
about the prosecutor’s credibility, but on habeas review that
does not suffice to supersede the trial court’s credibility deter-
mination.”).

An important aspect of Chaivoe’s credible testimony was
his account of Weaver’s decision to plead guilty. Chaivoe
reported that Weaver’s plea was motivated, in substantial part,
by his strongly held personal desire to avoid the publicity,
trauma, and sentencing exposure of multiple rape trials. See,
e.g., Transcript of Proceedings, Motion to Withdraw, State v.
Weaver, Nos. 82-10-37650, 82-10-37682, at 131-33 (Cir. Ct.
Multnomah Co. June 30, 1983) (quoting Chaivoe’s testimony,
which was that Weaver’s “primary reason” for pleading guilty
was “that he did not want the victims to be exposed to the
publicity of trial. . . . He acknowledged responsibility to me
[and] . . . he just felt that the whole thing should be dropped.”).8
We discuss this evidence and its relevance further below.

but, as the magistrate judge pointed out, “[t]he presentence report, itself,
notes that petitioner had already decided to withdraw his guilty pleas at the
time that report was drafted.” But this was of no consequence. The OSH
report acknowledged the improbability of probationary treatment, thus
informing Weaver that he would not get the sentence for which he was
allegedly hoping. Weaver knew what was in the report because, according
to the record evidence, the doctors disclosed its contents to him. Judge
Gilroy correctly posited that someone had recommended against proba-
tion; it hardly matters that he named the wrong report.
8
Certainly Weaver had other concerns, such as the length of incarcera-
tion to which he would be resigning himself. It is also not surprising that
Weaver would have at least inquired about possible defenses before then
deciding to plead guilty. As Chaivoe reported, “after considering all of the
factors involved, it was [Weaver’s] own decision to enter a plea of guilty.”
Transcript of Proceedings, Clackamas County Motion to Withdraw, at 45.
7884 WEAVER v. PALMATEER
III

In general, the State argues that Weaver failed to meet his
burden of showing constitutionally inadequate counsel prior
to entry of the guilty pleas. Weaver alleges various deficien-
cies in Chaivoe’s counsel.

[1] The Supreme Court set forth the standards for deciding
a claim of ineffective assistance of counsel in Strickland v.
Washington, 466 U.S. 668 (1984). Weaver must show (1) that
Chaivoe’s conduct was not “the result of reasonable profes-
sional judgment”; and (2) that Chaivoe’s “deficient perfor-
mance prejudiced the defense.” Id. at 687-90.9

A

Weaver’s first allegation is that Chaivoe rendered ineffec-
tive assistance by failing to ensure that the guilty pleas were
9
The first Strickland prong requires the petitioner to show that counsel’s
advice was not within “the wide range of professionally competent assis-
tance,” id. at 690, and instead “ ‘fell below an objective standard of rea-
sonableness,’ ” Hill v. Lockhart, 474 U.S. 52, 56-57 (1985) (quoting
McMann v. Richardson, 397 U.S. 759, 771 (1970)). There is a strong pre-
sumption that counsel rendered adequate assistance and made all signifi-
cant decisions in the exercise of reasonable professional judgment.
Strickland, 466 U.S. at 690.
The second prong requires a showing that “there is a reasonable proba-
bility that but for counsel’s unprofessional errors, the result of the pro-
ceeding would have been different.” Id. at 694. “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Id.
Where the alleged errors involve counsel’s advice resulting in a guilty
plea, “the defendant 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.
Under AEDPA, we review for objective unreasonableness the state
court’s conclusions as to whether counsel’s performance was deficient or
resulted in prejudice. Lambert, 393 F.3d at 978. We review the underlying
factual determinations for unreasonableness in light of the record evi-
dence. Id.
 WEAVER v. PALMATEER 7885
knowingly and voluntarily entered. In these habeas petitions,
Weaver asserted two specific reasons why his guilty pleas did
not comport with due process: Chaivoe allegedly suggested to
him that he could be sentenced to probation; and he allegedly
told Weaver that his Multnomah County sentence would run
concurrently with the Clackamas County sentence.10

Even if Chaivoe were to have erred in advising Weaver that
he could receive probation and, at worst, would receive a con-
current sentence in Multnomah County, we “must ask if the
defendant has met the burden of showing that the decision
reached would reasonably likely have been different absent
the errors.” Strickland, 466 U.S. at 696. We are well-advised
to bypass scrutinizing a criminal-defense attorney’s represen-
tation if the defendant cannot show that he was prejudiced by
it. See id. at 697.
10
Weaver also contends that Chaivoe coerced his guilty plea and there-
fore it was involuntary. Specifically, he alleges that his attorney coerced
the pleas by suggesting that otherwise he would “do a minium of eighty
years” and would “be treated like the I-5 Bandit.” (Randall Brent Wood-
field, known as “the I-5 Bandit,” was sentenced in 1981 to life in prison
for the murder of a Salem, Oregon woman.) But Chaivoe explained that
the comment was simply relayed from the district attorney’s office and
was meant to express the fervor with which the State was likely to prose-
cute Weaver should he decline their plea offer. The case had already gen-
erated some press coverage and Chaivoe made the assessment that the
State would not “pull any punches.”
Moreover, in response to a question as to whether Chaivoe told Weaver
that he “had no chance and that he should agree to enter into the . . . plea
offers,” Chaivoe pointedly explained that he would have never recom-
mended to Weaver, or any client, that he plead guilty. He stated, “I feel
that the determination of entering a plea of guilty must be the accused’s,
not the attorney’s. . . . I did not recommend to Mr. Weaver that he enter
a plea of guilty. I did tell him what the options were.” Transcript of Pro-
ceedings, Clackamas County Motion to Withdraw, at 41-42 (emphasis
added).
Given the state court’s reasonable credibility determination, Weaver
cannot show that Chaivoe’s counsel coerced his decision to plead guilty.
7886 WEAVER v. PALMATEER
1

[2] In assessing prejudice, we do not ask what a defendant
might have done had he benefitted from clairvoyant counsel.
See id. at 689; see also Campbell v. Wood, 18 F.3d 662, 673
(9th Cir. 1994) (“Our review of counsel’s performance is
highly deferential. . . . We will neither second-guess counsel’s
decisions, nor apply the fabled twenty-twenty vision of hind-
sight.”). As such, we disagree with the magistrate judge’s rea-
soning that Weaver was prejudiced because “it turned out”
that the Multnomah County judge imposed a prison sentence
consecutive to the one already given in Clackamas County.
Instead, we consider whether there is a reasonable probability
that Weaver would have proceeded to trial had he been given
proper advice from counsel. See Hill, 474 U.S. at 60. The
prejudice inquiry is therefore not divorced from the content of
minimally competent advice.

[3] The most prudent advice in this case was precisely that
which Chaivoe alleged he gave: (1) a probationary sentence
was technically possible but not at all probable;11 and (2) a
11
In testimony before the Clackamas County Circuit Court, Chaivoe
acknowledged that he advised Weaver that, as a matter of legal technical-
ity, it was possible that Weaver could receive a probation term in lieu of
incarceration. His mentioning probation conveyed that there was some
remote possibility, given the discretionary nature of sentencing in Oregon
at that time, see OR. REV. STAT. § 137.010 (1981), that a court would find
fit to ensure Weaver’s receipt of psychological treatment “because of his
problem.” But this suggestion came with a clearly worded disclaimer.
Chaivoe testified, “I told him . . . the Court might give him probation
. . . but on the other hand the Court probably would not.” Transcript of
Proceedings, Clackamas County Motion to Withdraw, at 63 (emphasis
added); see also id. at 99 (“I told him [probation] was not too reason-
able.”). Chaivoe further advised Weaver that “Multnomah County wanted
the maximum from Clackamas County.” Id. at 63.
See Iaea v. Sunn, 800 F.2d 861, 863-65 (9th Cir. 1986) (finding ineffec-
tive assistance of counsel where an attorney grossly mischaracterized the
probable sentence by suggesting, on several occasions, that the defendant
had “a good chance” of receiving probation and that the chance of an
extended sentence was “almost zero,” and yet the defendant received a life
sentence).
 WEAVER v. PALMATEER 7887
concurrent sentence was probable in light of the plea agree-
ment but ultimately dependent upon the sentencing judge’s dis-
cretion.12 We must assess in that light whether the record
evidence suggests a reasonable probability that Weaver would
otherwise have proceeded to trial.

2

[4] We note first that the prejudice requirement of Strick-
land and Hill requires Weaver to show that but for Chaivoe’s
alleged errors Weaver would have rejected the State’s plea
offer and insisted on facing trial on the four charged rapes in
addition to perhaps 19 others. Clearly, absent the plea bargain,
Weaver faced the possibility of a prison sentence considerably
12
Chaivoe acknowledged telling Weaver that, according to the terms of
the plea agreement, if Clackamas County sentenced him to the maximum
term then Multnomah County would do the same, and that the sentences
would run concurrently. Contrary to Weaver’s assertion on appeal, how-
ever, Chaivoe also cautioned Weaver that he “could not guarantee any-
thing.” Transcript of Proceedings, Clackamas County Motion to
Withdraw, at 45; see also id. (“I did my best to advise him on what the
probability would be . . . .” (emphasis added)). In addition to indicating
the probabilities, Chaivoe counseled Weaver as to what was possible.
Weaver’s own affidavit (submitted to the Marion County Circuit Court)
acknowledges that “Mr. Chaivoe told me the sentence could be seventy
years and that Clackamas County wanted minimums totaling twenty
years.”
Moreover, Chaivoe had ample reason to advise Weaver, in terms of a
probability, that he would receive a concurrent sentence in Multnomah
County. Chaivoe’s advice was consistent with the terms of the plea agree-
ment he had negotiated at Weaver’s behest. The agreement stated, “If
Clackamas County Circuit Court sentences me to 2 consecutive 20 year
terms with 10 year minimum on each, for a total of 40 years w/ minimum
of 20 years, Multnomah County will recommend concurrent sentences on
these charges.”
See Iaea, 800 F.2d at 865 (holding that ineffective assistance occurs
only when the attorney grossly mischaracterizes the likely outcome of sen-
tencing, not merely when, after the fact, the actual outcome reveals his
prediction to have been inaccurate).
7888 WEAVER v. PALMATEER
longer than the 20-year minimum term the plea bargain sug-
gested he would probably receive.

The record also indicates that Weaver had “his own reasons
for pleading guilty wholly aside from the strength of the case
against him.” Cf. McMann, 397 U.S. at 767. Weaver told his
psychiatrist, Dr. Maricle, that he intended to plead guilty to
the rapes to avoid causing trauma to his parents, wife, and
children, and that he would “attempt to avoid a trial” so that
his family “wouldn’t have to go through this.” He admitted to
Dr. Janzer that he “thought about rape ‘for a long time’ before
first doing it in 1978,” and that he had thought about commit-
ting suicide in order to “spare his family adverse publicity.”
Dr. Janzer, reporting these facts to Chaivoe in a letter dated
October 13, 1982, said that Weaver “repeatedly” expressed
his desire to avoid the publicity of a trial. To Dr. Okulitch,
Weaver indicated his “refus[al] to participate in any kind of
trial procedure” so as to avoid causing his family pain. Dr.
Okulitch reported these facts to Chaivoe in a letter dated
November 8, 1982.

Weaver’s intentions were no different when expressed
directly to his attorney. According to Chaivoe, while out on
bail pending trial, Weaver admitted to him that he “had com-
mitted all of the crimes alleged except for one.” At the Clack-
amas County plea withdrawal hearing, Chaivoe reported that
Weaver had acknowledged responsibility for the crimes and
clearly “did not want the victims to be exposed to the public-
ity of trial. He did not want to put them through the trauma
of trial.” In addition, Chaivoe reported “that in view of the
fact that there were all these other cases involved that would
be dropped, including any chance of being tried in the State
of Washington,” Weaver preferred to plead guilty.

[5] In sum, the record indicates Weaver’s desire to avoid
multiple trials, confrontation by his many victims, public
shame, and immeasurable harm to his family—and nothing in
the record required the state court to have found otherwise.
 WEAVER v. PALMATEER 7889
See Langford v. Day, 110 F.3d 1380, 1387 (9th Cir. 1997)
(“Langford’s dogged insistence on pleading guilty most cer-
tainly has an effect on the determination whether different
advice from [counsel] would have led to a plea of not
guilty.”). Thus, as in Langford, “[t]he fact that overshadows
this case is that [the petitioner] strongly and repeatedly
insisted on pleading guilty,” id. at 1386, and we do not think
that the state court was required to conclude that the proper
advice noted above—reflecting the probability of Weaver’s
receiving a prison sentence with a 20-year minimum term—
would have shaken Weaver’s determination to avoid the diffi-
culties of multiple public trials. Compare Lambert, 393 F.3d
at 880 (noting that it was unlikely that counsel could have dis-
suaded the defendant from pleading guilty because he “chose
to plead guilty on his own accord and for his own reasons”),
with Iaea, 800 F.2d at 861 (noting a record “replete with evi-
dence that Iaea was very reluctant to plead guilty and that
defense counsel and Iaea’s brother had a great deal of trouble
convincing him to do so”).

3

[6] In addition, we note that the trial courts warned Weaver
that his sentencing may result in lengthy terms of imprison-
ment. Notwithstanding the plea agreement’s recommendation
of concurrent sentences, the Multnomah County judge stated,
among other things, “I’m not prepared to indicate what I may
do by way of penalty. But you understand that you may be
sentenced to jail for as much time as is permissible under the
law. Do you understand that?” Transcript of Proceedings, Plea
Hearing, State v. Weaver, Nos. C82-10-37650, C82-10-37682,
at 7 (Cir. Ct. Multnomah Co. Jan. 20, 1983). The trial courts
also confirmed that Weaver had not been told what sentence
the court would give him. See Transcript of Proceedings, Plea
Hearing, State v. Weaver, Nos. 82-688, 82-801, at 6-7 (Cir.
Ct. Clackamas Co. Jan. 11, 1983); Transcript of Proceedings,
Multnomah County Plea Hearing, at 4-5, 8. Weaver thus
“cannot establish prejudice from any bad advice he received,
7890 WEAVER v. PALMATEER
because the judge told him point blank that he could not har-
bor any particular expectations about the sentence.” United
States v. Rice, 116 F.3d 267, 269 (7th Cir. 1997); see also
United States v. Boniface, 601 F.2d 390, 393 (9th Cir. 1979)
(holding that a defendant was not prejudiced by counsel’s
alleged misstatements because the court informed the defen-
dant that it was not bound by the plea agreement).

[7] Because Weaver cannot establish prejudice in light of
proper advice from counsel, the state court’s rejection of his
argument that the pleas were rendered unknowing by defec-
tive counsel was not an objectively unreasonable application
of federal law.

B

Weaver’s next claim is that Chaivoe rendered ineffective
assistance in failing to advise him as to the strengths and
weaknesses of the prosecution’s case or any defenses that he
might validly assert.

1

In contesting Weaver’s allegations, Chaivoe testified that
he fully apprised Weaver of the merits of the cases against
him. Chaivoe reported that he “[t]old [Weaver] that he had a
chance,” and further stated, “I would try the case, that was my
job, if he wanted me to try the case, I would.” Chaivoe also
testified that he “told [Weaver he] could not recommend his
entering a plea of guilty, [and] that [they] could put on a
defense.” As a result of this testimony, the state courts deter-
mined that Chaivoe fully apprised Weaver of his options.

As to the physical evidence such as blood, saliva, and
semen potentially linking Weaver to at least one crime scene,
Weaver made the rather startling allegation that Chaivoe bla-
tantly lied, telling Weaver that the tests resulted in positive
matches in order to coerce him into the guilty plea. In con-
 WEAVER v. PALMATEER 7891
trast, Chaivoe averred that he truthfully explained to Weaver
the results of the relevant tests. He testified that he reported
that the tests “were not conclusive of anything”—an accurate
characterization—and that he thought that “they were not
good identifications.” Deposition of Nick Chaivoe, Weaver v.
State Penitentiary, Nos. 150,784, 150,785, at 18-19 (Cir. Ct.
Marion Co. Mar. 7, 1986).

[8] As we have already stated, the state court resolved these
contradictions by rendering a credibility determination in
favor of Chaivoe. On this record we find no basis on which
we could possibly overturn that determination, it being due
proper deference under AEDPA’s § 2254(d)(2).

2

At the 1996 post-conviction proceedings in Marion County,
Weaver submitted one new item of evidence: a telephonic
deposition of Toni Lane, the former legal secretary to Chaivoe.13
In general, Lane’s opinion was that Chaivoe’s negative atti-
tude toward the court appointment, for which he was paid a
below-market rate, resulted in poor representation of Weaver.

[9] Lane’s testimony was entirely unhelpful to an assess-
ment of Weaver’s ineffective assistance claims, as she offered
no testimony suggesting that Weaver had considered entering
a plea of not guilty. We conclude that, in the context of the
13
In these habeas petitions, Weaver argued that Judge Abernethy failed
to consider Lane’s testimony. But we think Judge Abernethy clearly con-
sidered the testimony offered by Lane, even “applaud[ing] her coming for-
ward to testify in this case.” Thus, although the failure to consider a key
aspect of the record may result in an “unreasonable determination of the
facts,” Taylor, 366 F.3d at 1008, that Judge Abernethy did not find Lane’s
testimony “new and compelling” negates the very suggestion that she
failed to consider it. There was no defect in the fact-finding process
because the judge “discussed what light this testimony cast on the striking
differences in the descriptions of the [representation] given by [Weaver]
and [Chaivoe].” Id.
7892 WEAVER v. PALMATEER
full record, Lane’s testimony is neither “highly probative
[nor] central to petitioner’s claim,” Taylor, 366 F.3d at 1001,
because it in no way augmented his ability to prove he was
prejudiced by any alleged errors by counsel.

3

Weaver also claims that Chaivoe failed to advise him that
the witness identifications could be challenged at trial as unre-
liable or weak. Initially, we note that Weaver’s citations to the
record pertain to Chaivoe’s belief that there was no legal basis
to exclude the lineup identifications.14

[10] As we have already discussed, Weaver faced the possi-
bility of rape charges in relation to as many as 19 additional
victims, and he had a desire to avoid public trials for reasons
largely independent of the merits of the cases against him. We
are persuaded that Weaver has not shown prejudice as to this
claim. There is no reasonable probability that a stronger sug-
gestion by Chaivoe that the lineup identifications could be
questioned would have inspired Weaver to face the full wrath
of the States of Oregon and Washington in multiple rape tri-
als. It was therefore not objectively unreasonable for the state
court to reject this ineffective-assistance claim.
14
We consider the issue of exclusion at infra Section III.E. There is no
evidence that Chaivoe failed to perceive an available avenue of impeach-
ment and, in any event, Weaver’s decision to plead guilty precluded
Chaivoe from pursuing those avenues. Although this decision and Wea-
ver’s corresponding directions to his attorney to negotiate a plea agree-
ment “[do] not mean that [Weaver] loses his right to effective assistance
of counsel,” Langford, 110 F.3d at 1386, they appropriately and dramati-
cally influenced the course of the defense. See id.; accord United States
v. Leonti, 326 F.3d 1111, 1117 (9th Cir. 2003) (noting an attorney should
not “fail to advise a client to enter a plea bargain when it is clearly in the
client’s best interest”).
 WEAVER v. PALMATEER 7893
C

Weaver’s next claim was that Chaivoe rendered ineffective
assistance of counsel by failing properly to investigate a
defense based on a mental disease or defect. Weaver also
alleged that Chaivoe lacked an accurate understanding of the
Oregon insanity defense.15

Again, even if Chaivoe’s counsel had been inadequate with
respect to the mental-defect defense, Weaver must establish
that he was prejudiced by the deficiency. As the Supreme
Court explained in Hill, “where the alleged error of counsel
is a failure to advise the defendant of a potential affirmative
defense to the crime charged, the resolution of the ‘prejudice’
inquiry will depend largely on whether the affirmative
defense likely would have succeeded at trial.” 474 U.S. at 59
(citation omitted); accord Lambert, 393 F.3d at 984.

[11] Where, as here, there is direct testimony from one or
more examining medical professionals that the insanity
defense would have been unlikely to succeed,16 we are hard-
15
At the relevant time, the statute setting forth Oregon’s insanity
defense stated as follows:
A person is not responsible for criminal conduct if, at the time of
such conduct, as a result of mental disease or defect he lacked
substantial capacity either to appreciate the criminality of his
conduct or to conform his conduct to the requirements of the law.
OR. REV. STAT. § 161.295(1) (1981).
16
In a 1986 deposition, Dr. Dixon explained that he did not recall having
any expectation that he would testify at trial as to Weaver’s mental condi-
tion. He stated, “I don’t really recall — whether I would go to court or not
on it. It would seem unlikely. It’s not — it’s not very much to hang a
defense on, in any sense.” (Emphasis added.) Additionally, Dr. Paltrow
opined that Weaver suffered from depression and a personality disorder,
“but not to the extent that he lacked substantial capacity either to appreci-
ate the criminality of his conduct, or to conform his conduct to the require-
ments of the law.” During an exchange between Dr. Paltrow and Chaivoe,
the latter directly posed the question of an insanity defense, and Dr. Pal-
trow responded that “there wasn’t enough there for [a not guilty by reason
of insanity] defense.”
7894 WEAVER v. PALMATEER
pressed to find objectively unreasonable the state court’s
holding that no prejudice resulted from Chaivoe’s failure fur-
ther to develop or more strongly to recommend the defense.

Moreover, as the State suggests, there are additional rea-
sons that an insanity defense was unlikely to supplant the plea
bargain. First, the defense may have been subject to impeach-
ment based on Weaver’s previously having fabricated a sei-
zure disorder in order to escape arrest for rape. See OR. REV.
STAT. § 40.170(2)-(3) (1981). Second, an insanity defense
would have had to overcome a statutory hurdle: the Oregon
law provided that “the terms ‘mental disease or defect’ do not
include abnormality manifested only by repeated criminal or
otherwise antisocial conduct.” Id. § 161.295(2). Third, the
prospect of trial was unattractive because Weaver may have
been subject to a “dangerous offender” statute, increasing the
maximum penalty on each rape charge to 30 years. Id.
§§ 161.725, 161.735. Finally, as already noted, the opportu-
nity to escape prosecution and full-blown public trials on per-
haps 19 additional charges of rape was a particularly strong
inducement for the plea agreement.

Thus, for lack of prejudice, we conclude that the state court
was not objectively unreasonable in rejecting this ineffective-
assistance claim.

D

Next, Weaver alleges that Chaivoe’s counsel was inade-
quate because he failed to investigate the fingerprint evidence
found on a sliding glass door which linked Weaver to the
crimes. Weaver emphasizes that the fingerprint evidence was
the only physical evidence at the prosecution’s disposal.

Once again, even if Chaivoe’s performance was constitu-
tionally deficient, Weaver must show prejudice to warrant
habeas relief. We again look to Hill for guidance:
 WEAVER v. PALMATEER 7895
[W]here the alleged error of counsel is a failure to
investigate or discover potentially exculpatory evi-
dence, the determination whether the error “preju-
diced” the defendant by causing him to plead guilty
rather than go to trial will depend on the likelihood
that discovery of the evidence would have led coun-
sel to change his recommendation as to the plea.
This assessment, in turn, will depend in large part on
a prediction whether the evidence likely would have
changed the outcome of a trial.

474 U.S. at 59 (emphasis added); accord Hamilton v.
Vasquez, 17 F.3d 1149, 1157 (9th Cir. 1994) (citing Strick-
land, 466 U.S. at 694). In other words, where a petitioner can-
not even make an unsubstantiated suggestion as to what the
results of further testing would have been, there is no basis on
which a reviewing court can find prejudice.

[12] Here the record provides no indication that further
testing of the fingerprints would have yielded a different
result, thereby inducing Chaivoe to alter his advice or shaking
Weaver’s decision to plead guilty. See Langford, 110 F.3d at
1386-87; see also United States v. Berry, 814 F.2d 1406, 1409
(9th Cir. 1987) (“Berry’s second contention, that he was not
allowed to call out-of-state witnesses, is also meritless. He
offers no indication of what these witnesses would have testi-
fied to, or how their testimony might have changed the out-
come of the hearing.”). Indeed, it seems that further testing
would have confirmed, rather than disproved, that the finger-
prints belonged to Weaver. The police report indicated a
match; Chaivoe could note five to seven points of identifica-
tion by viewing the copy in his possession; and Weaver
admitted to Chaivoe that he had touched the door from which
the fingerprints were lifted.

We are satisfied that the state court’s rejection of this
ineffective-assistance claim was not objectively unreasonable.
7896 WEAVER v. PALMATEER
E

Finally, Weaver claims that Chaivoe’s counsel was consti-
tutionally deficient because of his failure to file a motion to
exclude the lineup identifications prior to Weaver’s entry of
the guilty plea. As noted, four or five of the victims in this
case identified Weaver in a live pre-trial lineup, which
occurred after Weaver’s picture had been published in the
newspaper indicating that he was suspected of the crimes.

We note that even prior to the lineup in question, Chaivoe
obtained an injunction prohibiting the media from publishing
photographs of Weaver until after the completion of the line-
ups. At the lineup, Chaivoe ensured that the police rearranged
the participants and dressed Weaver in similar clothing. See
Moore v. Illinois, 434 U.S. 220, 225 (1977) (noting that an
attorney “can serve both his client’s and the prosecution’s
interests by objecting to suggestive features of a procedure
before they influence a witness’ identification”). Chaivoe then
questioned each of the victims who identified Weaver as to
whether her identification may have been prejudiced by the
published photograph.

Chaivoe stopped there, however, because, in part, he did
not want to upend plea negotiations. Even Robert R. Selander,
one of Weaver’s expert witnesses, agreed with the State’s
suggestion that an attorney would not file a motion to sup-
press if it were in the client’s best interests to negotiate the
most favorable plea bargain possible. See Transcript of Pro-
ceedings, Multnomah County Motion to Withdraw, at 94
(agreeing with the suggestion that “you don’t [file a motion]
to suppress evidence, especially line-ups or identification evi-
dence that you don’t in essence get your cake and eat it, too?
You don’t get to try and suppress to see if it works, then get
the same plea negotiation?”). Thus, in light of Weaver’s
desire to plead guilty and avoid multiple public trials, we con-
sider this the kind of “strategic choice” that is “virtually
unchallengeable.” Strickland, 466 U.S. at 690; cf. also Lang-
 WEAVER v. PALMATEER 7897
ford, 110 F.3d at 1387 (noting that the attorney’s conduct
must be “viewed in the context of [the defendant’s] insistence,
at the time, that he wanted no motions to suppress or other
types of delay to interfere with his intended plea of guilty”).

[13] Chaivoe chose a reasonable approach to the lineup
identifications: he attempted to prevent a prejudicial identifi-
cation without filing an exclusionary motion that would likely
have impaired Weaver’s prospects for a favorable plea agree-
ment. Thus, in rejecting this ineffective-assistance claim, the
state court did not render an objectively unreasonable applica-
tion of federal constitutional law.

IV

[14] We conclude that the state court’s application of the
Supreme Court’s ineffective-assistance standards was, at the
very least, not objectively unreasonable. Weaver has therefore
failed to establish that he is entitled to a writ of habeas corpus.

The district court’s grant of the writ is REVERSED and
the case is REMANDED with instructions to dismiss the
petition.