Heard v. Addison
2013 U.S. App. LEXIS 18356
10th Cir.2013Background
- David Glen Heard pleaded guilty in Oklahoma to two counts under the lewd-molestation statute, Okla. Stat. tit. 21, § 1123(A)(2), admitting he positioned himself in a Wal-Mart to look under dresses at two girls’ undergarments. He was sentenced to concurrent 25-year terms pursuant to a plea bargain.
- Weeks after sentencing Heard learned of unpublished OCCA decisions (Robinson; Terry) suggesting the statute, as applied to “looking upon” clothed minors, required something more (e.g., nudity), and that his conduct might fall outside § 1123(A)(2).
- Heard filed state post-conviction relief arguing due process and ineffective assistance of counsel (IAC); the OCCA rejected relief, expressly disapproving Robinson and Terry and construing the statute to cover Heard’s conduct.
- Heard then filed a federal habeas petition under 28 U.S.C. § 2254; the district court denied relief and the Tenth Circuit granted a COA on due process and IAC issues.
- The Tenth Circuit held the OCCA’s post-plea reliance on its contemporaneous construction of the statute amounted to impermissible hindsight under Strickland, applied de novo review to the IAC claim, and concluded Heard’s counsel rendered constitutionally deficient performance and that prejudice was established.
- Remedy: The Tenth Circuit reversed the district court, granted habeas relief, and remanded with instructions to allow Heard to withdraw his guilty pleas unless the state permits withdrawal within a reasonable time.
Issues
| Issue | Heard's Argument | State's Argument | Held |
|---|---|---|---|
| Whether Heard’s guilty pleas lacked sufficient factual basis / violated due process because his admissions did not meet § 1123(A)(2) as a matter of state law | Heard: plea admissions (looking at undergarments) did not satisfy the statute absent a requirement of more (e.g., nudity) | State: OCCA’s plain-wording construction encompassed Heard’s conduct; state-law issue insulated from federal habeas review | Court: State-law interpretation is binding; federal due-process challenge not reached because Heard did not raise the "arbitrary or capricious" federal claim below |
| Whether OCCA’s post-conviction construction of § 1123(A)(2) was so arbitrary or capricious as to violate due process | Heard: OCCA’s change undermines fairness and due process | State: OCCA’s interpretation is correct and governs | Court: This federal due-process theory was not presented below, so waived on appeal; not reached |
| Whether counsel was ineffective for failing to discover/discuss Robinson/Terry and other viable defenses before plea (pre-plea IAC) | Heard: counsel failed to research applicable law and did not inform him of strong defenses; would have declined plea | State: Evidence and risk from prior convictions made plea rational; OCCA later held conduct criminal so IAC lacked merit | Court: Counsel’s failure was constitutionally deficient; OCCA’s post-plea reliance on hindsight violated Strickland’s "as of the time" rule; prejudice shown (reasonable probability Heard would have proceeded to trial) |
| Whether counsel was ineffective for failing to consult about appeal (post-plea IAC) | Heard: counsel did not advise about appeal rights/options in light of viable nonfrivolous issues | State: argued abandonment or insufficient showing | Court: Given nonfrivolous grounds and Flores-Ortega, counsel had duty to consult; reasonable probability Heard would have appealed; relieved on this ground as well (mooted by plea-vacatur remedy) |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-part test for ineffective assistance of counsel)
- Hill v. Lockhart, 474 U.S. 52 (prejudice standard for challenges to guilty pleas)
- Padilla v. Kentucky, 559 U.S. 356 (reasonableness measured by prevailing professional norms; plea-deal rationality lens)
- Roe v. Flores-Ortega, 528 U.S. 470 (counsel’s duty to consult about appeal when nonfrivolous issues exist)
- Kolender v. Lawson, 461 U.S. 352 (void-for-vagueness analysis relevant to policing discretion)
- Bouie v. City of Columbia, 378 U.S. 347 (due-process constraint on retroactive judicial enlargement of criminal statutes)
- Cullen v. Pinholster, 563 U.S. 170 (deference principles under AEDPA when state courts adjudicate on merits)