Hoyt Crace v. Robert Herzog, 2015 U.S. App. LEXIS 14295

Background

In 2004 a Washington jury convicted Hoyt Crace of attempted second-degree assault (felony) and two misdemeanors after he ran toward a deputy with a sword; the attempted-assault conviction produced a life sentence under Washington’s three-strikes law.
Crace argued postconviction that trial counsel was ineffective under Strickland for failing to request a jury instruction on unlawful display of a weapon (a lesser included misdemeanor that would not trigger a third strike).
The Washington Court of Appeals granted relief, finding counsel deficient and prejudice probable; the Washington Supreme Court reversed on prejudice grounds, applying State v. Grier and reasoning that a jury verdict supported by sufficient evidence forecloses a finding that a lesser-offense instruction would have changed the result.
The federal district court granted habeas relief; the Ninth Circuit (majority) affirmed, holding the Washington Supreme Court unreasonably applied Strickland and, on de novo review, found both deficient performance and Strickland prejudice.
The Ninth Circuit majority relied on Keeble and Strickland to explain that a jury presented additional lesser-offense options might rationally convict only on the lesser offense; the dissent argued AEDPA deference required affirming the state court because fairminded jurists could disagree.

Issues

Issue	Plaintiff's Argument (Crace)	Defendant's Argument (State)	Held
Whether the Washington Supreme Court unreasonably applied Strickland’s prejudice prong under AEDPA	Failure to request unlawful-display instruction prejudiced Crace because a reasonable probability existed the jury would have convicted only of that misdemeanor	State: sufficiency of evidence for attempted assault shows no reasonable probability the outcome would differ; state court reasonably read Strickland to bar speculation	Held: Yes — state court’s approach was an unreasonable application of Strickland; AEDPA deference removed on this point
Whether, on de novo review, Crace showed Strickland prejudice	Argues evidence (testimony and expert) supported reasonable probability jury would have convicted only of unlawful display	State: jury convicted on greater offense so could not have rationally chosen only the lesser if instructed	Held: De novo — prejudice satisfied; additional instruction could have led to conviction only of the misdemeanor
Whether counsel’s failure to request the unlawful-display instruction was deficient performance	Counsel admitted he did not consider requesting it; given stakes (third strike) failing to request was not strategic	State: omission could be strategic or reasonable; no prejudice in any event	Held: De novo — performance objectively unreasonable; not within range of reasonable strategy
Whether AEDPA requires affirming the state-court decision	State: fairminded jurists could reasonably reconcile Strickland and Keeble and thus the Washington Supreme Court’s ruling is reasonable	Crace: state court misapplied Strickland by converting prejudice inquiry into a sufficiency inquiry	Held: AEDPA deference removed for prejudice prong because application was objectively unreasonable; Ninth Circuit grants habeas relief on de novo review

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (establishes two-prong ineffective-assistance test: deficient performance and prejudice)
Keeble v. United States, 412 U.S. 205 (1973) (lesser-included-offense instructions can prevent juries from resolving reasonable doubts by convicting on the greater offense when a lesser fits)
Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency of the evidence review — rational trier of fact could find guilt beyond a reasonable doubt)
Beck v. Alabama, 447 U.S. 625 (1980) (in capital cases, due process may require lesser-included-offense instructions to avoid all-or-nothing coercion)
Schad v. Arizona, 501 U.S. 624 (1991) (one lesser-included instruction can suffice to avoid Beck problems; no automatic right to every lesser instruction)
Breakiron v. Horn, 642 F.3d 126 (3d Cir. 2011) (rejecting state-court rule that sufficiency alone forecloses prejudice in lesser-instruction Strickland claims)
Harrington v. Richter, 562 U.S. 86 (2011) (AEDPA requires deference to state-court decisions unless their application of clearly established law is objectively unreasonable)
Williams v. Taylor, 529 U.S. 362 (2000) (Strickland prejudice inquiry focuses on whether counsel’s errors rendered the proceeding unreliable)