Petition for Writ of Certiorari — Jeffrey Kinzle, Petitioner v. Eric Jackson

No. ___ – ________

In the Supreme Court of the United States

JEFFREY KINZLE,

Petitioner,

v.

ERIC JACKSON,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

ANN K. WAGNER

Assistant Federal Public Defender

Counsel of Record

Mohammad Hamoudi

Assistant Federal Public Defender

Federal Public Defender’s Office

1601 Fifth Avenue, Suite 700

Seattle, Washington 98101

(206) 553-1100

Ann_Wagner@fd.org

Counsel for Petitioner

QUESTION PRESENTED

Whether, under § 2254(d), a federal court may “look through” to review the

decision of an inferior court when the high court offers additional reasoning

explaining the court’s decision on the relevant claim.

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................... iv

QUESTION PRESENTED ............................................................................................ ii

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS AND ORDERS BELOW............................................................................. 1

JURISDICTION............................................................................................................. 1

STATUTORY PROVISION INVOLVED ...................................................................... 1

INTRODUCTION AND SUMMARY OF ARGUMENT ............................................... 2

STATEMENT OF THE CASE....................................................................................... 4

A.

During the Plea Process, Mr. Kinzle Received Inadequate and Irregular

Medication in Custody While His Attorney Ignored His Request to Obtain

His Mental Health Records. ......................................................................... 5

B.

In Postconviction Proceedings, the Washington Court of Appeals Rejects

Mr. Kinzle’s Personal Restraint Petition, and the Washington Supreme

Court Denies Review, Agreeing with the Court of Appeals But Adding

Additional Reasoning. .................................................................................. 9

C.

The Federal Courts, Following Ninth Circuit Precedent, Look Through

the Reasoned Washington Supreme Court Opinion to the Decision of the

Inferior Court. ............................................................................................. 10

REASONS FOR GRANTING THE PETITION .......................................................... 11

I.

The Ninth Circuit’s Doctrine Extending the Look-Through Doctrine to

Explained Decisions of the Washington Supreme Court Contravenes

Wilson v. Sellers and Conflicts With the Rule in Two Other Circuit

Courts. ......................................................................................................... 11

II.

The Decision Below Was Wrong. ............................................................... 12

CONCLUSION............................................................................................................. 17

iii

INDEX TO APPENDIX

Appendix A: Memorandum Opinion, Jeffrey Kinzle v. Eric Jackson,

No. 20-35747 (9th Cir. Feb. 25, 2022) .............................................................. 1a

Appendix B: Order Adopting Report and Recommendation, Jeffrey Kinzle v. Mike

Obenland, No. 14-cv-0703 (W.D. Wash. Aug. 21, 2020) .................................. 5a

Appendix C: Report and Recommendation, Jeffrey Kinzle v. Mike Obenland,

No. 14-cv-0703 (W.D. Wash., Oct. 9, 2019) .................................................... 17a

TABLE OF AUTHORITIES

Federal Cases

Barker v. Fleming, 423 F.3d 1085 (9th Cir. 2005) .......................................... 2, 10, 11

Barton v. Warden, Southern Ohio Correctional Facility, 786 F.3d 450 (6th Cir. 2015)

..................................................................................................................................... 12

Bond v. Beard, 539 F.3d 256 (3rd Cir. 2008) ............................................................ 12

Brumfield v. Cain, 576 U.S. 305 (2015) .................................................................... 11

Cooper v. Lafler, 376 F. App’x 563 (6th Cir. 2010) ............................................. 15, 16

Crace v. Herzog, 798 F.3d 840 (9th Cir. 2015) .......................................................... 13

Edwards v. Lamarque, 475 F.3d 1121 (9th Cir. 2007) ......................................... 2, 11

Lafler v. Cooper, 566 U.S. 156 (2012) .............................................................. 3, 12–16

Lambert v. Blodgett, 393 F.3d 943 (9th Cir. 2004) ................................................... 11

Lewis v. Lewis, 321 F.3d 824 (9th Cir. 2003) ............................................................ 11

Porter v. McCollum, 558 U.S. 30 (2009) .................................................................... 13

Strickland v. Washington, 466 U.S. 668 (1984) .......................................................... 3

Williams v. Taylor, 529 U.S. 362 (2000) ................................................................... 15

Wilson v. Sellers, 138 S. Ct. 1188 (2018) ..................................................... 2, 4, 10–13

Ylist v. Nunnemaker, 501 U.S. 797 (1991) ............................................................ 2, 11

Federal Statutes

28 U.S.C. § 1254 ........................................................................................................... 1

28 U.S.C. § 2254 ................................................................................................. 1, 4, 15

State Cases

In re Pers. Restraint of Crace, 174 Wn.2d 835 (2012) ............................................... 13

iv

PETITION FOR A WRIT OF CERTIORARI

Petitioner Jeffrey Kinzle respectfully petitions this Court for a writ of

certiorari to review the judgment of the United States Court of Appeals for the

Ninth Circuit.

OPINIONS AND ORDERS BELOW

The opinion of the court of appeals (Pet. App. A) is unreported but is

available at 2022 WL 576017.

JURISDICTION

The judgment of the court of appeals was entered February 25, 2022. The

jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

28 U.S.C. § 2254(d)(1) provides:

(d) An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not be

granted with respect to any claim that was adjudicated on the

merits in State court proceedings unless the adjudication of the

claim-(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….

1

INTRODUCTION AND SUMMARY OF ARGUMENT

In Wilson v. Sellers, this Court made clear that the “look-through” procedure

first announced in Ylist v. Nunnemaker, 501 U.S. 797 (1991), continued to apply in

habeas cases where the last decision by a state court “does not come accompanied

with [ ] reasons.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). When “the last

state court to decide a prisoner’s federal claim explains its decision on the merits in

a reasoned opinion,” in contrast, “[t]his is a straightforward inquiry.” Id. The

reviewing court “simply reviews the specific reasons given by the state court and

defers to those reasons if they are reasonable.” Id; see also Wilson v. Sellers, 138 S.

Ct. 1188, 1198 (2018) (Gorsuch, J., dissenting) (citation omitted) (“As the text and

our precedent make clear, a federal habeas court must focus its review on the final

state court decision on the merits, not any preceding decision by an inferior state

court.”).

In the wake of Wilson, however, the Ninth Circuit continues to adhere to a

doctrine that allows it to look through reasoned decisions when the higher court

“adopts” the reasoning of the lower court. Barker v. Fleming, 423 F.3d 1085, 1093

(9th Cir. 2005); Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007). In some

cases, this may be harmless—there may be no other reasoning. But in Mr. Kinzle’s

case, this doctrine allowed the Ninth Circuit panel to ignore specific reasoning from

the Deputy Supreme Court Commissioner that was “contrary to” Lafler v. Cooper

and Strickland v. Washington in favor of arguably better reasoning from the

Washington Court of Appeals.

2

Mr. Kinzle’s federal habeas petition concerned his attorney’s failure to

investigate his uncontrolled mental illness and the erratic and insufficient

medication he was receiving in custody as compared to his preexisting medication

protocol. As Mr. Kinzle’s bipolar disorder raged, his trial attorney’s failure to follow

up on pleas to look into his mental health records led him to reject a favorable plea

offer. Once his medications were renewed and his mental illness was stabilized, he

declared that had his attorney assisted him to regain proper and consistent

medications so his mental illness was controlled during the plea process, he would

have accepted the offer.

The Ninth Circuit failed entirely to address the concluding reason given by

the Deputy Commissioner, and the basis for the certificate of appealability awarded

by a two-judge motions panel for that Court: that Mr. Kinzle could not prove the

prejudice prong of his ineffective assistance claim because Mr. Kinzle “fail[ed] to

show that under the circumstances of this case the choice to make the State prove

the charges at trial was one that a person in a stable mental condition could not

have reasonably made.” 1-ER-19 (emphasis added).” This standard was contrary to

the clearly established Lafler/Strickland inquiry because it substituted an objective

inquiry for the subjective question whether the petitioner would have accepted the

plea under the counterfactual and raised the prejudice bar far beyond “a reasonable

probability” of that result. See Lafler v. Cooper, 566 U.S. 156, 164 (2012); Strickland

v. Washington, 466 U.S. 668, 694 (1984).

3

Instead, the Ninth Circuit panel noted that the Deputy Commissioner had

initially recited the correct standard (“a reasonable probability the outcome would

have been different”). Pet. App. A at 3a; see 1-ER-19. The panel went on to

emphasize the point on which the Deputy Commissioner purportedly “incorporated”

the opinion of the Court of Appeals: that the chain of causation from seeking

treatment for Mr. Kinzle’s documented mental illness to him recovering a mental

state in which he would have pleaded guilty was “too speculative.” Pet. App. A at

3a. But it failed to note that this statement was immediately followed by the abovereferenced conclusion, directly conflicting with Lafler and Strickland, which

indicated the Deputy Commissioner had been testing the connection between the

trial attorney’s deficiency and Mr. Kinzle’s failure to plead guilty according to a

much more stringent test than the one supplied by Supreme Court precedent. 1-ER19.

Under Wilson, the Ninth Circuit should have this reviewed this conclusion

and tested it against the § 2254(d) thresholds. 138 S. Ct. at 1192. Because it

overlooked this reasoning in favor of the conclusions of the inferior court, defying a

recent decision of this Court, certiorari should be granted.

STATEMENT OF THE CASE

Mr. Kinzle presented a claim of ineffective assistance of counsel during the

plea process to the Washington Court of Appeals and the Washington Supreme

Court, which adjudicated his claim on the merits. His claim was based upon

counsel’s failure to investigate his mental state during this process.

4

The facts presented in that proceeding demonstrate that Mr. Kinzle suffered from

serious mental illness, which was not properly or regularly medicated by the

Snohomish County Jail, and which directly led to rejection of two favorable plea

offers by the state. Mr. Kinzle also established, through expert testimony, his own

declaration, and other evidence, that if he had been properly medicated, he would

have accepted the offers.

A.

During the Plea Process, Mr. Kinzle Received Inadequate and

Irregular Medication in Custody While His Attorney Ignored His

Request to Obtain His Mental Health Records.

Mr. Kinzle was charged in Snohomish County, Washington, with indecent

liberties, failure to register as a sex offender, and molestation. 2-ER-110; 2-ER-112;

2-ER-114. The Snohomish County Public Defender, through assistant public

defender Cassie Trueblood, was appointed to represent Mr. Kinzle in all three cases.

2-ER-172–77.

After his arrest, Mr. Kinzle informed jail staff that he had prescriptions for

Lithium, Efexor, Trazodone, Dexedrine, and Lorazepam. 2-ER-132. But throughout

the period between his arrest and two plea offers, he received inadequate and

irregular medication for conditions that required continuous medication and

monitoring. 2-ER-27; 2-ER-149–167; see, e.g., 2-ER-134 (written request for jail

“Medication Assistance” dated April 21, 2011: “Problem: I have been waiting since

the day I was arrested [] to get at least some of my medications the ones that are

most important are my lithium my bipolar is acting up real bad I am cycling verry

[sic] quickly and am not sleeping verry [sic] well or regularly….”). An expert

declaration in the state proceeding established that Mr. Kinzle’s bipolar disorder

5

required continuous treatment with lithium, whose dosage must be “carefully

titrated, i.e., measured, so that the dose is not toxic and is clinically effective.

Titration requires systematic blood workups to determine the patient’s lithium

level.” Decl. of Dr. Breen, 2-ER-124. Mr. Kinzle’s blood lithium levels were not even

measured until November 16, 2011, after he had already rejected the two plea

offers. 2-ER-166. As a result of this inadequate medication and monitoring, the

expert found that during the time that Mr. Kinzle first came in contact with his

defense counsel, Cassie Trueblood, he was experiencing signs of mania and likely

depression. 2-ER-121.

Although Ms. Trueblood had in her file a pretrial interview with Mr. Kinzle

indicating he suffered from bipolar disorder, and Mr. Kinzle specifically requested

that she obtain his “mental helth [sic] records from Anchorage Jail anchorage AK –

2010 – palmer correctional center – palmer AK – Mat-Sue – pretrial – palmer AK, Mat-Sue – behavioral helth [sic] – Wasilla AK – bolth 2004-2005 records and 20102009,” 2-ER-190, she never made an attempt to obtain these records or further

investigate his mental health.

On April 7, 2011, the State made a plea offer to Mr. Kinzle which encompassed

all three of his cases; Ms. Trueblood received the offer on April 26, 2011. 2-ER-304.

If Mr. Kinzle pled guilty to both the indecent liberties and child molestation

charges, he could expect a standard guideline range suggesting a minimum of

between 108 and 144 months of imprisonment to life, and the prosecutor would

recommend the low-end standard-range sentence of a minimum of 108 months to

6

life for both convictions. The prosecutor would also dismiss the failure-to-registeras-a-sex-offender charge. 2-ER-304. Ms. Trueblood conveyed this offer to Mr. Kinzle.

2-ER-71.

When the prosecutor’s deadline to accept the offer passed on May 20, 2011, the

State amended the information on June 10, 2011, adding a second count of child

molestation. 2-ER-3–14.

In late June of 2011, Mr. Kinzle made a counter offer through Ms.

Trueblood to plead to a single sex offense. 2-ER-316–32. The prosecutor responded

with some hesitation about “get[ting] the emotional roller coaster going,” but

ultimately, on June 28, 2011, agreed to drop the indecent liberties charge and have

him plead to child molestation and a non-sex related assault—which would have

resulted in a range of 108 to 144 months. 2-ER-334. Mr. Kinzle rejected this offer. 2ER-337.

On July 6, 2011, Ms. Trueblood wrote the prosecutor informing him that

Mr. Kinzle had reconsidered his opinion on the June 28, 2011 offer he had

rejected. 2-ER-339. She added “he indicates he would accept it and plea ASAP.

Any chance that’s still open?” Id.

Immediately following this query, Mr. Kinzle’s medication was abruptly

discontinued: he did not receive any medication from July 7–31, 2011. 2-ER-151. On

July 8, 2011, the prosecutor, after checking with the victims, responded

7

“[r]e Kinzle, I am inclined to do it…Will he really pull the trigger? I don’t want to

waste their time and emotions if he is not committed.” 2-ER-342. Ms. Trueblood

reassured him, and they scheduled a change of plea hearing for July 21, 2011. Id.

On July 21, 2011, after two weeks of receiving no psychiatric medication

whatsoever, Mr. Kinzle appeared before the Honorable Eric Z. Lucas. 1-ER-33–38.

The prosecutor informed the court that if Mr. Kinzle did not accept the offer, he

would never see this offer again. 1-ER-35. Ms. Trueblood responded that the case

should be set over for the following day so Mr. Kinzle could move to replace her

because there had been a severe breakdown in communications. 1-ER-35–36. Judge

Lucas inquired with Mr. Kinzle directly. 1-ER-36–38. Mr. Kinzle rejected the plea

offer; acknowledged that his request to have Ms. Trueblood replaced would disrupt

the interview process of two witnesses; and announced his intention to have Ms.

Trueblood replaced. Id.

Mr. Kinzle proceeded to trial (with Ms. Trueblood as counsel) and was

convicted. By rejecting the plea offers, Mr. Kinzle exposed himself to both a higher

sentence range and consecutive sentencing on the three separate cases. Had he

accepted the original offer, under Washington State’s mandatory sentencing

guideline scheme his minimum term for all three cases could be no greater than 144

months and, given the prosecutor’s recommendation, could be as low as 108 months.

After going to trial, Mr. Kinzle received a total minimum term of 273 months. 2-ER75, 2-ER-93.

8

Once he was stabilized, Mr. Kinzle stated in his declaration that had he been

mentally stable and been able to trust Ms. Trueblood’s advice, he would have

accepted the offer and not gone to trial on any of his cases. 2-ER-68–70.

B.

In Postconviction Proceedings, the Washington Court of Appeals

Rejects Mr. Kinzle’s Personal Restraint Petition, and the

Washington Supreme Court Denies Review, Agreeing with the

Court of Appeals But Adding Additional Reasoning.

Mr. Kinzle brought his IAC claim in a personal restraint petition in the

Washington Court of Appeals. While he alleged that Ms. Trueblood’s failure to

investigate his inadequate and irregular medication at the jail led directly to his

manic decision to decline the two plea favorable offers, the Washington Court of

Appeals ruled that this link was “speculative and tenuous,” and that he therefore

had not shown a reasonable probability that he would have pled guilty absent Ms.

Trueblood’s deficient performance. 1-ER-31–32.

The Washington Supreme Court then issued a “reasoned” opinion denying

review of the petition. Although it agreed with the Court of Appeals that the link

was “tenuous,” the Deputy Supreme Court Commissioner also offered his own

reasoning, indicating that he had measured this causal claim under a much higher

standard than that required by Strickland and Lafler: “He fails to show that under

the circumstances of this case the choice to make the State prove the charges at

trial was one that a person in a stable mental condition could not have reasonably

made.” 1-ER-19. This standard was not only higher than a “reasonable probability”

of pleading guilty, but also turned the subjective question of whether this petitioner

9

would have accepted the plea into whether any objective “reasonable person” could

have made the same decision the petitioner did.

C.

The Federal Courts, Following Ninth Circuit Precedent, Look

Through the Reasoned Washington Supreme Court Opinion to the

Decision of the Inferior Court.

In assessing Mr. Kinzle’s IAC claim, the federal district court analyzed not

the Washington Supreme Court opinion, but the decision of the lower court: “[T]he

Court is assured by the Commissioner’s report that the Court of Appeals’ decision

resolved Petitioner’s claim on the merits and applied the appropriate constitutional

standard.” Pet. App. B at 10a.

The Ninth Circuit ignored this Court’s holding in Wilson, then invoked Ninth

Circuit precedent allowing the federal court to look through the last reasoned

decision if that decision “adopted or substantially incorporated the reasoning from a

previous decision.” Pet. App. A at 3a (quoting Barker, 423 F.3d at 1093). Reviewing

the decisions in tandem, the Court held that the Court of Appeals and Deputy

Supreme Court Commissioner had reasonably reasoned that the “logical chain

necessary” to demonstrate prejudice was too “speculative.” Pet. App. A at 3a–4a. It

did not quote or discuss the wildly incorrect prejudice standard that the Deputy

Commissioner had used to measure this argument—the issue on which the

certificate of appealability and the briefing had been based.

//

10

REASONS FOR GRANTING THE PETITION

I.

The Ninth Circuit’s Doctrine Extending the Look-Through

Doctrine to Explained Decisions of the Washington Supreme

Court Contravenes Wilson v. Sellers and Conflicts With the Rule

in Two Other Circuit Courts.

This Court has emphasized multiple times that the look-through doctrine is a

limited exception to the general rule that federal courts review the last decision of a

state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Wilson v. Sellers, 138

S. Ct. 1188 (2018); Brumfield v. Cain, 576 U.S. 305, 313 (2015). It applies only to

“an unexplained order (by which we mean an order whose text or accompanying

opinion does not disclose the reason for the judgment).” Ylst, 501 U.S. at 802. In

contrast, “when the last state court to decide a prisoner’s federal claim explains its

decision on the merits in a reasoned opinion […] a federal habeas court simply

reviews the specific reasons given by the state court and defers to those reasons if

they are reasonable. We have affirmed this approach time and again.” Wilson, 138

S. Ct. at 1192; see also Wilson, 138 S. Ct. at 1198 (Gorsuch, J., dissenting) (“As the

text and our precedent make clear, a federal habeas court must focus its review on

the final state court decision on the merits, not any preceding decision by an inferior

state court.”).

The Ninth Circuit’s pre-Wilson court-made exception to this doctrine when an

opinion “adopted or substantially incorporated the reasoning from a previous

decision,” violates this rule. Barker, 423 F.3d at 1093 (9th Cir. 2005) (citing Lambert

v. Blodgett, 393 F.3d 943, 970 n.17 (9th Cir. 2004); Lewis v. Lewis, 321 F.3d 824, 829

(9th Cir. 2003)); see also Edwards, 475 F.3d at 1126. If a higher court offers its own

11

reasons in addition to its approval of the lower court opinion, the latter decision is

“reasoned” and the federal court must assess those reasons, not those of the inferior

court.

The Ninth Circuit exception conflicts with the Third Circuit, in which the

lower court decision is only consulted when it “has not been supplemented in a

meaningful way by the higher state court.” Bond v. Beard, 539 F.3d 256, 289 (3rd

Cir. 2008). It also conflicts with the Sixth Circuit, which holds,

[W]e must [ ] defer to the last reasoned state-court opinion, rather

than try to string together a series of state opinions piecemeal for

each claim. As the Supreme Court made clear in Ylst, the core

purpose of this rule is to improve “administrability” and “accuracy”

amongst the lower federal courts . . . These objectives are

contravened when a court attempts to combine various state-court

decisions together for purposes of reviewing a single claim.

Barton v. Warden, Southern Ohio Correctional Facility, 786 F.3d 450, 463 (6th Cir.

2015). In either of these Circuits, Mr. Kinzle’s claim would be assessed solely on

review of the Deputy Commissioner’s reasoned decision, including the concluding

sentence, which was contrary to the prejudice standard in Strickland and Lafler.

II.

The Decision Below Was Wrong.

The panel decision ignored the concluding sentence in the last reasoned

opinion showing that the Deputy Commissioner had applied a prejudice standard

contrary to Strickland and Lafler, while deferring to an amalgamation of the bestreasoned portions of the inferior court and higher court decisions. Pet. App. A at 3a.

This was error, because under Wilson, a federal court’s task is to identify a single,

final decision that explains the court’s reasoning: “[W]hen the last state court to

decide a prisoner’s federal claim explains its decision on the merits in a reasoned

12

opinion[,] a federal habeas court simply reviews the specific reasons given by the

state court and defers to those reasons if they are reasonable.” Wilson, 138 S. Ct. at

1192 (emphasis added). Here, the last state court to decide Mr. Kinzle’s ineffective

assistance claim was the Washington Supreme Court, through its Deputy

Commissioner, and that court supplied its decision on the merits in a reasoned

opinion.

The decision of the Washington Supreme Court Deputy Commissioner was

“contrary to” or “an unreasonable application of” Lafler and Strickland because it

substituted an objective prejudice standard for Lafler’s subjective one, and thereby

distorted the Strickland query into the existence of a “reasonable probability of a

different result.” It also found evidence of Mr. Kinzle’s subjective probability of

accepting the plea offer “speculative,” even though Lafler endorsed the Sixth

Circuit’s finding of prejudice based on the same kind of evidence. Finally, it imposed

a higher prejudice standard than that found in either Lafler or Strickland.

Because the Deputy Commissioner did not address whether counsel was

deficient under Strickland, the deficiency prong is subject to de novo review.

Porter v. McCollum, 558 U.S. 30, 39 (2009). As to prejudice, the Deputy

Commissioner at first correctly framed the rule under Strickland: “Mr. Kinzle does

not show, as he must, that there is a reasonable probability the outcome would have

been different in the absence of the deficient performance.” 1-ER-19. 1 But when it

1 Notably, however, the authority the Deputy Commissioner cited for this standard

was a Washington case, In re Pers. Restraint of Crace, 174 Wn.2d 835, 842 (2012),

13

came to explaining how this rule applied to the specific plea argument controlled by

Lafler, the Deputy Commissioner neither cited this Court’s opinion in Lafler nor

stated the correct rule from Lafler. Lafler makes clear that Mr. Kinzle’s burden was

to demonstrate that but for his attorney’s deficiency in failing to investigate his

mental state, there was “a reasonable probability that . . . the defendant would have

accepted the plea . . . and that the conviction or sentence, or both, under the offer’s

terms would have been less severe than under the judgment and sentence that in

fact were imposed.” Lafler, 566 U.S. at 164. But the Deputy Commissioner stated

this burden very differently:

[H]ow Mr. Kinzle may have judged a plea offer under a different

mental state is wholly speculative, despite Mr. Kinzle’s assertion.

He fails to show that under the circumstances of this case the choice

to make the State prove the charges at trial was one that a person in

a stable mental condition could not have reasonably made.

Id. (emphasis added). Rather than being asked to show a reasonable probability

that he, the defendant, would have accepted the plea, the Deputy Commissioner

required him to show that an objectively reasonable person in his position would

necessarily have accepted the plea. The declaration was not the only piece of

evidence provided. Mr. Kinzle accepted responsibility for his actions at sentencing

after his medication had been increased. 2-ER-293; see Lafler at 171 (“[A] court may

take account of a defendant’s earlier expressed willingness, or unwillingness, to

accept responsibility for his or her actions.”).

that was later held to be an unreasonable application of Strickland’s prejudice

analysis by the Ninth Circuit. See Crace v. Herzog, 798 F.3d 840 (9th Cir. 2015).

14

The Lafler standard specifically asks for subjective evidence of what the

defendant himself would have done. See Lafler, 566 U.S. at 167 (“He maintains

that, absent ineffective counsel, he would have accepted a plea offer for a sentence

the prosecution evidently deemed consistent with the sound administration of

criminal justice.”). Indeed, the Lafler Court agreed that “respondent ha[d] shown”

prejudice in the record before the Sixth Circuit, which consisted of the petitioner’s

own testimony on the question of what he would have done under the

counterfactual. See id. at 174 (citing Cooper v. Lafler, 376 F. App’x. 563, 571–72

(6th Cir. 2010)).

By changing the subjective prejudice test from Lafler to an objective test, the

Deputy Commissioner’s decision was “contrary to” Lafler because it “applie[d] a rule

that contradicts the governing law set forth in our case[ ],” Williams v. Taylor, 529

U.S. 362, 405 (2000). This alteration of the required test for prejudice is quite

similar to the “contrary to” example discussed in Williams itself. Id. at 405–06

(substituting a preponderance-of-the-evidence standard for Strickland’s “reasonable

probability of a different result” standard would be “contrary to” Strickland). The §

2254(d) standard is met for this reason alone.

Second, the Deputy Commissioner’s decision rejected Mr. Kinzle’s own

“assertion” of what he would have done if properly medicated as “merely

speculative,” despite the fact that this Court had endorsed a similar counterfactual

showing before the lower courts in Lafler. Specifically, at the precise pin cite where

the this Court had endorsed the prejudice showing of the Lafler petitioner, the Sixth

15

Circuit had rejected the state’s argument that the petitioner’s own statement was

insufficient to demonstrate he would have accepted the guilty plea:

He testified that, had he known that a conviction for assault with

intent to commit murder was possible, he would have accepted the

state’s offer. Nevertheless, although this evidence is uncontradicted,

the state suggests that petitioner cannot show prejudice with his

“own self-serving statement.” Appellant’s Br. at 27. There is no legal

basis for us to impose a requirement that habeas petitioners provide

additional evidence, and we have declined to create this rule in the

past. To do so would contradict the Supreme Court’s holdings that

petitioner need only establish a “reasonable probability” that the

result would have been different. See Hill [v. Lockhart], 474 U.S.

[52,] 59, 106 S. Ct. 366.

Cooper, 376 F. App’x at 571–72 (non-Supreme Court citations omitted). Mr. Kinzle’s

showing that he would have accepted the plea bargain offered absent his attorney’s

failure to consider, investigate, and evaluate his mental state, was precisely the

same kind of evidence; and dismissing it as “merely speculative” was therefore

contrary to or an “unreasonable application” of the Strickland/Lafler standard.

Finally, the Washington Deputy Commissioner invented a likelihood

requirement out of whole cloth: that Mr. Kinzle prove that a reasonable person in

his position would never have rejected the plea offer. 1-ER-19 (“He fails to show

that under the circumstances of this case the choice to make the State prove the

charges at trial was one that a person in a stable mental condition could not have

reasonably made.”). The Lafler standard, like the general Strickland standard it is

derived from, requires something less than a preponderance. See Strickland, 466

U.S. at 694. The question Lafler poses is the existence of “a reasonable probability

that . . . the defendant would have accepted the plea . . .”, Lafler, 566 U.S. at 164, so

requiring Mr. Kinzle to prove that any reasonable person in his position would have

16

taken the plea offer improperly raised the standard, in addition to displacing the

analysis from his subjective mental state onto that of a reasonable person. Because

the Commissioner applied the wrong legal standard, the prejudice prong is subject

to de novo review.

CONCLUSION

For the foregoing reasons, this Court should grant the Petition for a Writ of

Certiorari.

Respectfully submitted this 26th day of May, 2022.

s/ Ann K. Wagner

Counsel of Record

Assistant Federal Public Defender

s/ Mohammad Hamoudi

Assistant Federal Public Defender

Counsel for Petitioner

17