Doe v. Woodford

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOHN DOE, 
Petitioner-Appellant,
v.
No. 06-16154
JEANNE S. WOODFORD, in
her capacity as Director of the  D.C. No.
CV-04-04157-MJJ
California Department of
Corrections; JOSEPH L. MCGRATH, OPINION
Warden, in his capacity as
Warden, Pelican Bay State Prison,
Respondents-Appellees.

Appeal from the United States District Court
for the Northern District of California
Martin J. Jenkins, District Judge, Presiding

Argued and Submitted
February 15, 2007—San Francisco, California

Filed November 27, 2007

Before: J. Clifford Wallace, Richard D. Cudahy,* and
M. Margaret McKeown, Circuit Judges.

Opinion by Judge Cudahy

*The Honorable Richard D. Cudahy, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.

15171
15174 DOE v. WOODFORD

COUNSEL

Donald L. Lipmanson, Ukiah, California, for the petitioner-
appellant.

Dorian Jung, Office of the Attorney General, State of Califor-
nia, San Francisco, California, for the respondents-appellees.

OPINION

CUDAHY, Circuit Judge:

In 1998, the petitioner, John Doe, pleaded guilty to first
degree murder. Doe filed a petition for writ of habeas corpus
in the California state trial court alleging ineffective assis-
tance of counsel and that his plea was not voluntary and intel-
ligent. After holding a three-day evidentiary hearing, the state
court denied the petition without opinion. The California
Court of Appeal and the California Supreme Court also sum-
marily denied the petition. Doe then filed the present petition
in the Northern District of California. The district court
 DOE v. WOODFORD 15175
denied the petition but issued a certificate of appealability as
to the voluntariness of the plea given the length of time the
petitioner had to consider the proposed plea agreement. The
petitioner appeals the denial of the petition and raises uncerti-
fied issues concerning ineffective assistance of counsel as
well. We decline to expand the certificate of appealability and
affirm the denial of the petition as to the certified issue.

FACTUAL AND PROCEDURAL BACKGROUND

On the morning of February 2, 1997, Petitioner John Doe
was allegedly angry with George Steven Wilson because Wil-
son had moved out of the petitioner’s family ranch.1 Doe told
a number of people that he had decided to kill Wilson. Wilson
was last seen alive that evening with Doe and Doe’s compan-
ions, Donovan Williams and Dillon Bacon. When Doe, Wil-
liams and Bacon were seen later that evening without Wilson,
they reported that his truck had become stuck in the mud and
that Wilson had stayed behind with it.

Wilson was later found dead near his truck with three bullet
wounds in his head. Doe had previously identified the place
where Wilson’s body was found as a good place to carry out
a murder. Doe was subsequently taken into custody. While
incarcerated, a jailhouse informant reported that Doe had told
him where Doe had hidden the murder weapon. A gun was
subsequently recovered at that location, and ballistics tests
confirmed that it had been used in the killing.

On May 12, 1997, the Lake County District Attorney filed
an information charging Doe with first degree murder pursu-
ant to California Penal Code § 187(a). The information also
included enhancements for: personal use of a firearm in the
commission of the first degree murder charge pursuant to Cal-
1
The facts are derived from the decision of the California Court of
Appeal, First Appellate Division, denying Doe’s direct appeal. Case No.
A083099 (filed Oct. 12, 1999). These facts are not disputed.
15176 DOE v. WOODFORD
ifornia Penal Code § 1203.06(a)(1)(A); being armed in the
commission of the charged felony pursuant to California
Penal Code § 12022.5(a); and personal infliction of great bod-
ily injury pursuant to California Penal Code § 1203.075(a)(1).

Doe’s trial began with jury selection on March 17, 1998.
On that same day, Doe gave a statement to police detectives
from the Lake County Sheriff’s Office. In the statement, Doe
reported that he witnessed Donovan Williams, one of the
other individuals with Wilson the night of his murder, shoot
Wilson in the head three times. He further reported that Wil-
liams had given him the murder weapon to dispose of.

On March 19, 1998, after the jury had been empaneled,
Doe’s trial counsel and the prosecutor asked the court to delay
opening arguments to allow them time to discuss a plea
arrangement. (See Petitioner’s ER at 63-64.) The court agreed
and allowed a two-hour recess until 4:30 that afternoon.
Shortly before 5:00 p.m., Doe’s trial counsel informed the
court that they had reached a resolution. Doe then entered a
negotiated plea of guilty to a charge of first degree murder
pursuant to People v. West.2 Pursuant to the plea agreement,
the enhancements were dismissed, a case against Doe con-
cerning an unrelated drug charge was also dismissed and the
prosecution agreed to not pursue a possible burglary charge
involving the suspected murder weapon or any perjury
charges against Doe’s girlfriend. On April 13, 1998, Doe was
sentenced to prison for an indeterminate term of 25 years to
life.

On March 30, 2000, Doe filed a petition for habeas corpus
in the Superior Court of Lake County. In May of 2001, the
court held a three-day evidentiary hearing on the habeas peti-
tion. On June 6, 2001, the court denied the petition without
2
People v. West, 477 P.2d 409 (Cal. 1970) does not require an admis-
sion of guilt and is the California equivalent of an Alford plea. See North
Carolina v. Alford, 400 U.S. 25 (1970).
 DOE v. WOODFORD 15177
opinion. The petition was also summarily denied by the Cali-
fornia Court of Appeal, First Appellate District Division and
by the California Supreme Court. On September 30, 2004,
Doe filed the present federal petition for writ of habeas cor-
pus. The district court denied the petition but granted a certifi-
cate of appealability as to one issue: whether the petitioner’s
plea agreement was involuntary in light of the fact he was
allowed only two hours to accept or reject it.

STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) governs our review of Doe’s petition for writ of
habeas corpus. Relevant for this review, a federal court can
grant a state prisoner’s petition for a writ of habeas corpus if
the state court’s decision: 1.) was “contrary to . . . clearly
established Federal law, as determined by the Supreme Court
of the United States”; or 2.) “involved an unreasonable appli-
cation of . . . clearly established Federal law, as determined
by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1).

A state court’s decision is “contrary to” clearly established
federal law “if the state court arrives at a conclusion opposite
to that reached by [the Supreme Court] on a question of law
or if the state court decides a case differently than [the
Supreme Court] has on a set of materially indistinguishable
facts.” Williams v. Taylor, 529 U.S. 362, 412 13 (2000). As
for “unreasonable application,” a federal court may grant
relief “if the state court identifies the correct governing legal
principle from [the Supreme Court’s] decisions but unreason-
ably applies that principle to the facts of the prisoner’s case.”
Id. at 413. When a claim falls under the “unreasonable appli-
cation” clause, the state court’s application of the Supreme
Court precedent must be “objectively unreasonable,” not just
incorrect. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003).

Lacking a reasoned opinion from the state court, we review
the record independently to determine whether the state court
15178 DOE v. WOODFORD
decision was objectively unreasonable. Reynoso v. Giurbino,
462 F.3d 1099, 1109 (9th Cir. 2006) (citing Pham v. Terhune,
400 F.3d 740 (9th Cir. 2005) (per curiam)).

DISCUSSION

I. Scope of Certificate of Appealability

[1] The district court certified only the issue whether Doe’s
plea was involuntary in light of the fact he was allowed only
two hours to accept or reject it. In his opening brief, the peti-
tioner also raised the other issue in his habeas petition under
the heading of “Uncertified Issue.” We construe this inclusion
and designation as a motion to expand the Certificate of
Appealability (“COA”). 9th Cir. R. 22-1(e).

[2] “The required showing for originally obtaining a COA
on a claim remains the standard by which this court reviews
the broadening of a COA. A habeas petitioner’s assertion of
a claim must make a “ ‘substantial showing of the denial of
a constitutional right.’ ” Hivala v. Wood, 195 F.3d 1098, 1104
(9th Cir. 1999) (quoting 28 U.S.C. § 2253(c)(2)). In order to
make this showing, a petitioner “must demonstrate that the
issues are debatable among jurists of reason; that a court
could resolve the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to proceed
further.” Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)
(alteration in original, internal quotation marks omitted);
accord Slack v. McDaniel, 529 U.S. 473 (2000).

The uncertified issue here involves ineffective assistance of
counsel. Doe posits two grounds for the appeal of this issue.
First, Doe argues that his attorneys were deficient in failing
to investigate potential mental defenses. Second, Doe con-
tends that his attorneys’ decision to allow him to be inter-
viewed by the Lake County Sheriff’s Office constitutes
ineffective assistance of counsel. He further argues that he
was prejudiced by the ineffectiveness of counsel since he
 DOE v. WOODFORD 15179
would have gone to trial rather than plead guilty. The district
court denied relief as to the petitioner’s ineffective assistance
of counsel argument and also declined to certify this issue.
We agree with the district court that the petitioner has failed
to “make a substantial showing of the denial of a constitu-
tional right” (see 28 U.S.C. § 2253(c)(2)) and therefore
decline to expand the COA to consider the merits of this
issue.

To show ineffective assistance of counsel, Doe must dem-
onstrate (1) that the defense attorney’s representation “fell
below an objective standard of reasonableness” and (2) that
the attorney’s deficient performance prejudiced the defendant
such that “there is a reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland v. Washington, 466 U.S. 668,
668, 694 (1984). In a guilty-plea case, like the present case,
“in order to satisfy the ‘prejudice’ requirement, 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 v. Lockhart, 474 U.S. 52,
59 (1985).3

[3] Petitioner’s argument that his trial counsel was deficient
for failing to investigate mental state defenses is a far fetch.
“Trial counsel has a duty to investigate a defendant’s mental
state if there is evidence to suggest that the defendant is
impaired.” Douglas v. Woodford, 316 F.3d 1079, 1085 (9th
Cir. 2003). In the present case, there was no evidence to sug-
gest that the petitioner was impaired. The two pre-trial psychi-
atric evaluations of Doe by Drs. Drury and Rossoff not only
3
The district court, at times in its opinion, does not rely on the correct
standard for demonstrating prejudice in a plea bargain case. However, the
district court found, and we agree, that Doe has failed to demonstrate that
his trial counsel’s performance “fell below an objective standard of rea-
sonableness” — the first prong of the Strickland test — and therefore, this
apparent error is harmless.
15180 DOE v. WOODFORD
determined that he was competent to stand trial, but also con-
cluded that the petitioner did not suffer from mental disorders.
Doe points to the psychiatric evaluation of Dr. Drury, who
examined Doe prior to trial. (Petitioner’s ER at 1-6.) That
evaluation describes Doe’s prior medical history, including
his suicidal thoughts as a young teenager, his abuse of
methamphetamines and prescription drugs for several years
before the crime and head injuries Doe suffered in an auto
accident in early 1996 and a motorcycle accident in December
1996. (Id. at 4.) After considering this and the other informa-
tion contained in his evaluation, Dr. Drury concluded that
“[b]ased upon personal information, it is my opinion that he
is essentially free of major signs of mental disorder, mental
diseases or psychiatric disease.” (Id. at 6.) In addition, Dr.
Thomson — the expert psychiatrist who testified at the evi-
dentiary hearing on Doe’s state court habeas petition —
agreed that he had no doubt that Doe was competent to stand
trial. (Respondent’s ER at 141.) Although Dr. Thomson testi-
fied that Doe experienced some symptoms of “classical drug
induced paranoia” as a result of his prior substance abuse (id.
at 73) and that he thought Doe may have suffered from some
form of organic brain injury due to his prior head injuries (id.
at 135 38, 144-45), he testified that Doe did not possess any
“major” or “full blown” mental illness or mental disorder (id.
at 74-75, 89).

[4] The petitioner draws a distinction between competency
evaluations and investigating mental defenses, arguing that a
psychiatric evaluation that concludes that an individual is
competent to stand trial is not the same as investigating men-
tal defenses. Although this might be true, the duty to investi-
gate mental defenses is only triggered “if there is evidence to
suggest the defendant is impaired.” Douglas, 316 F.3d at
1085. The defendant fails to point to any credible evidence of
mental incapacity which would have triggered a duty on the
part of his counsel to investigate for possible defenses. More-
over, petitioner’s trial counsel made a reasonable strategic
choice to rely on petitioner’s claims of innocence and decided
 DOE v. WOODFORD 15181
not to pursue further investigations into petitioner’s mental
state since he testified that a mental state defense “would have
been inconsistent” with the theory of the case. (Petitioner’s
ER at 167.) See Siripongs v. Calderon, 133 F.3d 732, 734 (9th
Cir. 1998) (holding that “[w]here the attorney has consciously
decided not to conduct further investigation because of rea-
sonable tactical evaluations, the attorney’s performance is not
constitutionally deficient”). Therefore, Doe has failed to make
a substantial showing of the denial of a constitutional right
based on his trial counsel’s performance.

[5] Doe also fails to show that his trial counsel’s decision
to allow him to make a statement to police detectives on
March 17 fell below an objective standard of reasonableness.
The record supports a finding that the decision was strategic.
As his counsel explained at the evidentiary hearing, without
the statement, there would have been no reason for the prose-
cutor to participate in further plea bargain negotiations. (See
Respondent’s ER at 324.) Moreover, the present case is dis-
tinguishable from Harris ex rel. Ramseyer v. Wood, 64 F.3d
1432, 1436 (9th Cir. 1995), a case relied on by the petitioner,
in which we found the trial counsel’s performance to be defi-
cient in allowing the defendant to give a statement to police.
Importantly, unlike the statement in Harris ex rel. Ramseyer,
here, there were certain restrictions placed on the use of Doe’s
statement. Namely, it could not be used in the prosecutor’s
case-in-chief. (See Petitioner’s ER at 9.) And, perhaps even
more importantly, Doe’s statement was also not directly
incriminating since he did not confess to murdering the vic-
tim; rather, he explained that Donovan Williams killed the
victim.

[6] Because the ineffective assistance of counsel claims
raised by the petitioner are not “debatable among jurists of
reason,” we decline to expand the COA and, therefore, dis-
miss the petitioner’s uncertified issue for lack of jurisdiction.
15182 DOE v. WOODFORD
II. Voluntariness of plea

We now turn to the certified issue. The petitioner argues
that the voluntariness of his plea was undermined by the short
period of time — two hours — that he had to consider the
plea agreement.4 Doe further argues that the limited length of
time, in combination with his mental defects, rendered his
plea involuntary.

[7] The test for determining whether a plea is valid is
“whether the plea represents a voluntary and intelligent choice
among the alternative courses of action open to the defen-
dant.” Hill, 474 U.S. at 56 (quoting Alford, 400 U.S. at 31)
(quotation marks omitted); Boykin v. Alabama, 395 U.S. 238,
242-43 (1969). “[T]he record must affirmatively disclose that
a defendant who pleaded guilty entered his plea understand-
ingly and voluntarily.” Brady v. United States, 397 U.S. 642,
747 n.4 (1970). A guilty plea is coerced where a defendant is
“induced by promises or threats which deprive [the plea] of
the nature of a voluntary act.” Iaea v. Sunn, 800 F.2d 861, 866
(9th Cir. 1986) (quotation marks and citation omitted). To
determine the voluntariness of the plea, we look to the totality
of the circumstances, examining both the defendant’s “subjec-
tive state of mind” and the “constitutional acceptability of the
external forces inducing the guilty plea.” Id.

[8] The case law on this issue is quite limited.5 However,
4
The total amount of time the petitioner had to consider the plea is in
dispute. The transcript reflects that the trial proceedings were suspended
for a little more than two hours before Doe informed the trial court that
he had accepted a plea agreement. However, the respondent argues that
the petitioner had more time than those two hours to consider the plea. His
trial counsel testified that the plea negotiations happened over a couple of
days. Even the petitioner acknowledges that the “proposed disposition was
identical to an offer that Doe had rejected shortly after arraignment fol-
lowing his arrest.” (Petitioner’s Opening Br. at 12.)
5
This court has held that nine days to consider a plea bargain was not
inadequate. United States v. Estrada-Plata, 57 F.3d 757, 760-61 (9th Cir.
1995).
 DOE v. WOODFORD 15183
the amount of time Doe had to consider the plea is only rele-
vant if it somehow rendered his plea coerced, and therefore
involuntary. Recall that the jury had already been empaneled
and that the court had delayed opening arguments until the
following morning in order to provide Doe’s counsel and the
prosecution an opportunity to reconsider a plea bargain.
Therefore, there was a plausible reason for the arguably short
two hours Doe had to consider the proposed plea agreement.
With this in mind, the proper question for review is whether
the state court decision was contrary to, or involved an unrea-
sonable application of, clearly established federal law, as
determined by the Supreme Court. We conclude that it was
not.

In accepting Doe’s plea, the state trial court conducted a
thorough plea colloquy. As the district court noted, the tran-
script of the plea colloquy covers sixteen pages. As is evi-
denced from the following exchange, the state trial court
specifically addressed the adequacy of the length of time the
defendant had to discuss the plea agreement with his counsel.

The Court: Now, have you talked about this
case with your lawyers?

[Petitioner]: Yes.

The Court: And you believe you’ve had
enough time to talk with them
about your case?

[Petitioner]: I guess.

The Court: Well, is that a yes or a no?

[Counsel]: Maybe you could ask the next
question first and maybe then he’ll
be able to answer this question.
15184 DOE v. WOODFORD
The Court: Have you told your attorneys all
the facts and circumstances that are
known to you about your case?

[Petitioner]: Yes.

The Court: You’ve had enough time to talk
with them about your case?

[Petitioner]: Yeah.

The Court: Is that a yes? I just need to be sure.

[Petitioner]: Yes.

The Court: Okay. Are you pleading guilty
freely and voluntarily?

[Petitioner]: Yes.

(Respondent’s ER at 30.) Based in part on this exchange, the
trial court found that the petitioner “understands the conse-
quences to him of his plea of guilty. His plea of guilty is
freely and voluntarily given, and there’s a factual basis for his
plea of guilty.” (Id. at 36.)

[9] In Blackledge v. Allison, 431 U.S. 63 (1977), the
Supreme Court held that findings made by the judge accept-
ing the plea “constitute a formidable barrier in any subsequent
collateral proceedings. Solemn declarations in open court
carry a strong presumption of verity.” Id. at 74; cf. Chizen v.
Hunter, 809 F.2d 560, 562 (9th Cir. 1986) (holding that the
defendant overcame statements made at his plea colloquy and
showed his plea was involuntary where the plea was induced
by misrepresentations by the defendant’s counsel as to what
the defendant’s sentence would in fact be under the plea
agreement). In a case where the defendant decided to plead
guilty after trial had begun, the Tenth Circuit rejected the
 DOE v. WOODFORD 15185
defendant’s claim that the limitations on time for him to con-
sider a plea bargain rendered it involuntary, relying in part on
the defendant’s “participat[ion] in a [plea] colloquy that
leaves little doubt that his plea was knowing and voluntary.”
United States v. Graham, 466 F.3d 1234, 1239 (10th Cir. 2006).6

The petitioner contends that the court should have ques-
tioned the voluntariness of his plea in light of Doe’s “I guess”
response, instead of “shoehorn[ing]” Doe’s answer in a way
that masked his grave doubts about whether to plead.” (Peti-
tioner’s Opening Br. at 13.) The trial court, however, did
respond to Doe’s “I guess” answer. The court again asked if
he had enough time to talk to his attorneys about the plea.
(Respondent’s ER at 30.) When Doe responded “Yeah,” the
court asked Doe to clarify, “Is that a yes?” Id. Moreover, ear-
lier in the exchange when Doe did not understand a question,
he had clearly answered “No.” (See id. at 27.)

[10] Doe argues that the limited time he had to consider the
plea agreement must be considered in light of his “mental
state.” The petitioner relies on the testimony of Dr. Thomson
offered at the evidentiary hearing. Dr. Thomson testified to
certain “factors,” namely immaturity, history of brain head-
injury accidents, history of methamphetamine use and limited
education, which impacted the defendant’s mental state at the
time he considered the plea agreement. (Petitioner’s ER at
75.) When pressed, however, Dr. Thomson admitted that there
was no evidence to support a “major mental illness diagno-
sis.” (Id. at 80-81.) Moreover, Dr. Drury, who provided a
competency evaluation prior to trial, found Doe to be “essen-
tially free of major signs of mental disorder, mental disease
or psychiatric disease” and concluded that he was competent
6
Although Graham involved a direct appeal from a plea to a federal
offense and the plea was taken pursuant to Federal Rule of Criminal Pro-
cedure 11, the plea colloquy demonstrated voluntariness under the same
constitutional standard applicable in this case. See Alford, 400 U.S. at 31;
Brady, 397 U.S. at 784.
15186 DOE v. WOODFORD
to stand trial. (Id. at 6.) The competency standard to plead
guilty is the same as that to stand trial. Miles v. Stainer, 108
F.3d 1109, 1112 (9th Cir. 1997) (citing Godinez v. Moran,
509 U.S. 389, 402 (1993)). Any evidence of mental deficien-
cies did not undermine the voluntariness of Doe’s plea even
in light of the alleged limitation to two hours he claims he had
to consider the proposed plea agreement.

[11] Doe’s testimony at the evidentiary hearing describes
the difficulty he had in making the decision to plead guilty.
(Respondent’s ER at 136-41.) Recall, however, that Doe was
offered identical terms shortly after he was arrested, more
than a year before he pleaded guilty. We have no doubt that
the decision to plead guilty is a difficult one for many defen-
dants, but the fact that one struggles with the decision, and
might later even come to regret it, does not render it coerced.
See United States v. Johnson, 539 F.2d 1241, 1243 (9th Cir.
1976). Here, Doe participated in a thorough plea colloquy, in
which he answered in the affirmative that his plea was volun-
tary under the circumstances and, specifically answered in the
affirmative when asked if he had had enough time to discuss
the plea with his attorneys. We conclude that the California
Supreme Court was not objectively unreasonable in its appli-
cation of controlling federal law by determining that Doe’s
plea was voluntary. See Lockyer v. Andrade, 538 U.S. 63
(2003).

AFFIRMED.