Davis v. Grigas

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHNNY LEE DAVIS,  No. 05-15211

Petitioner-Appellant,

v.  D.C. No.

CV-00-00949-JCM

GEORGE GRIGAS,

OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted

February 13, 2006—San Francisco, California

Filed April 10, 2006

Before: Cynthia Holcomb Hall, Barry G. Silverman, and

Susan P. Graber, Circuit Judges.

Opinion by Judge Hall;

Concurrence by Judge Graber

3965

DAVIS v. GRIGAS 3967

COUNSEL

Jason F. Carr, Assistant Federal Public Defender, Las Vegas,

Nevada, for the appellant.

Victor-Hugo Schulze, II, Senior Deputy Attorney General,

Las Vegas, Nevada, for the appellee.

OPINION

HALL, Senior Circuit Judge:

Johnny Lee Davis appeals the district court’s denial of his

28 U.S.C. § 2254 habeas corpus petition. Davis pleaded guilty

to attempted murder with the use of a deadly weapon and was

sentenced to two consecutive fifteen-year prison terms. He

argues that his trial counsel’s failure to investigate and present

3968 DAVIS v. GRIGAS

mitigating evidence at his sentencing hearing was constitu-

tionally ineffective assistance of counsel. The Nevada state

courts and the district court denied his habeas petition. We

have jurisdiction pursuant to 28 U.S.C. § 2253. We reverse

and remand.

I. Facts and Procedural History

On September 10, 1997, Davis lured the mother of his two

children to the desert outside of Las Vegas, Nevada, shot her

six times, and left her for dead. Ultimately she did not die, but

was instead paralyzed from the waist down. Davis was

arrested a short time later and charged with attempted murder

with a deadly weapon, and with being an ex-felon in posses-

sion of a firearm.

At the request of his trial counsel, Jennifer Haight, Davis

underwent a psychiatric evaluation to determine his compe-

tency to stand trial. The evaluator concluded that Davis was

competent to stand trial. However, the evaluation report noted

that Davis reported a rough past. He claimed to have begun

using drugs and alcohol at the age of fourteen, and at the time

of the evaluation admitted to still using both. Davis also

reported two prior suicide attempts, stating that he had been

“messed up in the head” since an accident that left him with

severe head trauma at the age of two. He reportedly experi-

enced auditory hallucinations for several years prior to the

shooting, with voices telling him to kill and hurt people.

On March 4, 1998, Davis pleaded guilty, pursuant to a writ-

ten plea agreement, to attempted murder with the use of a

deadly weapon. The plea agreement specified a sentencing

cap of six to fifteen years for attempted murder, with a sepa-

rate but equal sentencing cap of six to fifteen years for the use

of a deadly weapon enhancement.

Davis’s sentencing hearing was held on April 22, 1998.

The government argued that Davis should be sentenced to two

DAVIS v. GRIGAS 3969

fifteen-year terms, the high end of the sentencing cap stipu-

lated to in the plea agreement. Davis’s counsel, Haight, erro-

neously told the court that Davis had stipulated to two fifteen-

year terms, when in fact he had only stipulated to what was

in the written plea agreement: two six- to fifteen-year sentenc-

ing caps. Haight made no argument for a lower sentence and

presented no mitigating evidence. The judge sentenced Davis

to two consecutive fifteen-year terms.

After an untimely direct appeal was dismissed for lack of

jurisdiction, and after Haight withdrew as his counsel, Davis

filed a petition for habeas corpus in Nevada state court, alleg-

ing ineffective assistance of counsel and “manifest injustice

involving the tribunal.” Davis argued that Haight was ineffec-

tive because she failed to investigate his psychological prob-

lems and failed to present mitigating evidence at sentencing.

The state district court denied Davis’s petition.

Davis appealed to the Nevada Supreme Court where, in

addition to the ineffective assistance of counsel claim, he

argued that the district court erred in denying his petition

without conducting an evidentiary hearing to allow him to

present the relevant mitigating evidence. The court dismissed

Davis’s appeal, holding that he failed to allege specific facts

that would entitle him to relief. In its opinion, the Nevada

Supreme Court also misstated the plea bargain—just as

Haight had at Davis’s sentencing hearing—stating that Davis

had stipulated to two six- to fifteen-year sentences, when in

fact Davis had only stipulated to two six- to fifteen-year sen-

tencing caps.

On November 9, 2001, Davis filed his first amended peti-

tion for habeas corpus in federal district court. He alleged

only one ground for relief: that Haight rendered ineffective

assistance at sentencing because she did not investigate or

present mitigating evidence. The magistrate judge’s report

recommended that Davis’s petition be denied on the merits

because he could not show that prejudice resulted from

3970 DAVIS v. GRIGAS

Haight’s deficient performance. The district court adopted the

magistrate judge’s report and recommendation, and denied

Davis’s petition.

II. Discussion

We review de novo the district court’s decision to deny a

28 U.S.C. § 2254 petition. Cooper-Smith v. Palmateer, 397

F.3d 1236, 1242 (9th Cir.), cert. denied, 126 S. Ct. 442

(2005). In conducting that review, we look to “the last rea-

soned state-court decision.” Van Lynn v. Farmon, 347 F.3d

735, 738 (9th Cir. 2003). We may grant a writ of habeas cor-

pus only if the state court proceedings

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of

the evidence presented . . . .

28 U.S.C. § 2254(d).

A. Section 2254(d)(1): Clearly Established Supreme

Court Precedent

To establish a basis for relief on this ground, Davis must

first show that there is “clearly established Federal law, as

determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d)(1). He must then show that the state court

decision was contrary to, or involved an unreasonable appli-

cation of, that Supreme Court precedent. Id. In their briefing,

both Davis and the government assume that Strickland v.

Washington, 466 U.S. 668 (1984), is the clearly established

Supreme Court precedent controlling ineffective assistance of

counsel claims.

DAVIS v. GRIGAS 3971

[1] However, as we have previously recognized, the Strick-

land Court “expressly declined to ‘consider the role of coun-

sel in an ordinary sentencing, which . . . may require a

different approach to the definition of constitutionally effec-

tive assistance.’ ” Cooper-Smith, 397 F.3d at 1244 (quoting

Strickland, 466 U.S. at 686). Moreover, since Strickland, the

Supreme Court has not delineated a standard which should

apply to ineffective assistance of counsel claims in noncapital

sentencing cases. Id. Therefore, as we said in Cooper-Smith,

there is no clearly established federal law as determined by

the Supreme Court in this context. Id.

[2] We note that, even though the Strickland standard does

not by necessity apply to the noncapital sentencing context,

the Nevada courts were nonetheless free to adopt that stan-

dard for use in this context, as they appear to have done. Id.

However, because there is no clearly established Supreme

Court precedent that applies to this context, we are unable to

grant Davis habeas relief on this ground.

B. Section 2254(d)(2): Unreasonable Determination of

the Facts

“[A] decision adjudicated on the merits in a state court and

based on a factual determination will not be overturned on

factual grounds unless objectively unreasonable in light of the

evidence presented in the state-court proceeding.” Miller-El v.

Cockrell, 537 U.S. 322, 340 (2003). Davis argues that the

Nevada Supreme Court based its decision, in part, on its erro-

neous understanding that he stipulated to the sentence he

received.

[3] In his written plea agreement, Davis stipulated to two

six- to fifteen-year sentencing caps. However, at his sentenc-

ing hearing, Davis’s attorney erroneously told the court that

he had stipulated to two fifteen-year terms. This error was not

only adopted by the Nevada Supreme Court, but also provided

part of the basis for its denial of Davis’s habeas petition.

3972 DAVIS v. GRIGAS

Therefore, the Nevada Supreme Court’s decision was based,

at least in part, on an unreasonable determination of the facts,

and so Davis may be entitled to relief under § 2254(d)(2). On

this basis we reverse the district court’s denial of Davis’s

habeas petition, and remand to the district court for an eviden-

tiary hearing to allow Davis to present the mitigating evidence

that his attorney failed to present at sentencing.

III. Conclusion

Davis does not qualify for habeas relief under § 2254(d)(1)

because there is no clearly established Supreme Court prece-

dent governing ineffective assistance of counsel claims in the

noncapital sentencing context. However, he may be entitled to

relief under § 2254(d)(2) because the Nevada Supreme Court

based its decision on an erroneous understanding that Davis

stipulated to the sentence he received. Therefore, we

REVERSE and REMAND to the district court to hold an

evidentiary hearing.

GRABER, Circuit Judge, concurring:

I concur fully in the majority’s opinion. I write separately

only to question whether Cooper-Smith v. Palmateer, 397

F.3d 1236, 1244 (9th Cir.), cert. denied, 126 S. Ct. 442

(2005), was correct in holding broadly that the Supreme Court

has failed to explain what standard applies to claims of inef-

fective assistance of counsel in the context of a noncapital

sentence.

In Glover v. United States, 531 U.S. 198 (2001), the Court

applied Strickland v. Washington, 466 U.S. 668 (1984), to a

noncapital sentencing proceeding in which the defendant

received a term of imprisonment. In a unanimous opinion, the

Court held that a 6- to 21-month increase in the defendant’s

sentence fulfilled the “prejudice” prong at the second step of

DAVIS v. GRIGAS 3973

the Strickland test. Glover, 531 U.S. at 202-04. Indeed, “any

amount of actual jail time has Sixth Amendment signifi-

cance.” Id. at 203. Because the Seventh Circuit had bypassed

the first analytical step of Strickland, id. at 202, Glover’s case

was remanded for reconsideration of, among other issues,

whether Glover’s counsel was deficient for failing to argue

for grouping of the money laundering counts under the Sen-

tencing Guidelines, id. at 205.

Additionally, I read Strickland itself simply to be discuss-

ing the way in which professional competence is to be judged

in an informal setting, rather than to be suggesting that the

usual two-part test does not apply. “For purposes of describ-

ing counsel’s duties,” 466 U.S. at 687, the Court said that the

usual criteria for an adversarial trial apply with respect to cap-

ital sentencing because of its trial-like nature. What the Court

did not have to consider was only “the role of counsel in an

ordinary sentencing, which may involve informal proceedings

and standardless discretion in the sentencer, and hence may

require a different approach to the definition of constitution-

ally effective assistance.” Id. at 686. The Court did not sug-

gest, though, that the basic Sixth Amendment principles

embodied in its decision do not apply to noncapital sentencing

proceedings. Rather, it left open a specific description of

counsel’s duties in an “informal” setting where “standardless

discretion” prevails.

In my view, the best way to read the Supreme Court’s two

cases together is to say that Strickland applies to a noncapital

sentencing that is “formal” and that involves findings or con-

clusions that provide a standard for the imposition of sen-

tence. I disagree with Cooper-Smith to the extent that it

considers the foregoing principle not to be clearly established

federal law as determined by the Supreme Court, 28 U.S.C.

§ 2254(d)(1).