*1 1998). quali Because he would not have 1998 DEPORTATION THE C. 212(h) waiver, § for a he was not fied 1998, Jimenez-Borja con In prejudiced by failure to be advised of to right his deportation, waived sented INS, Shooshtary its existence. See v. He now argues deported. and was appeal, Cir.1994). 1049, 1051(9th F.3d deportation process violated due that his because, depor consent to procuring AFFIRMED. immigra appeal, and waiver of tation him possi failed of his judge to advise tion of deportation. for a waiver eligibility
ble 212(h) 1998, Immigration allowed for Act waiver
Naturalization “ex would cause
deportation deportation par hardship” spouse, the alien’s
treme citizen or child who is a United States
ent SOPHANTHAVONG, Somphalavanh permanent resident. Jimenez or lawful Petitioner-Appellant, relatives, qualifying and was Borja had eligible for such relief. We therefore court that the immi district agree with PALMATEER, Superintendent, Joan judge’s failure advise Jimenez gration Respondent-Appellee. 212(h) relief Borja eligibility deporta his consent to procuring prior No. 02-35922. Jimenez-Borja’s process due tion violated of Appeals, United States Court deportation An consent to rights. alien’s Ninth Circuit. right appeal must be and waiver intelligent,” “considered and and Jimenez Nov. Argued and 2003. Submitted Arrieta, Borja’s States v. was not. United Filed 2004. April (9th Cir.2000). 1076, 1079 224 F.3d Aug. Amended However, agree also with we Jimenez-Borja not court that district defect, he could
prejudiced this because depor that his plausibly
not demonstrate hardship to a
tation would cause extreme relative, specifically his wife
qualifying found that Jime
child. The district court
nez-Borja in and prison had been out of shortly marriage and had
since after his (except nearly all of his married life
spent months) four He
for two to behind bars. limited
had had visitation his wife
child, support and did financial provide facts, family. these
for the On Jimenez
Borja able to make would not have been hardship “be
plausible showing of extreme
yond deporta the common results of the Arce- States v.
tion of convict.” United 564(9th
Hernandez, Cir. 163 F.3d *2 contends denying
the district court erred that he was denied effective assis- claim counsel in violation of the Sixth tance of *3 Amendments when his tri- and Fourteenth (1) applica- misrepresented al counsel Look” statute to bility Oregon’s “Second (2) sentence; that his explain failed stipulate him to a plea required guilty greater pre- than the departure sentence (3) sentence; erroneously and sumptive him that he could be convicted advised and face a sentence of aggravated murder thirty years. affirm Sophanthavong because
We that the state court’s prove failed to has contrary or an unreason- decision law, ©r on based application able federal the facts determination of an unreasonable presented. light of the evidence I sixteen, age at the August On in a participated bur- Sophanthavong Creel, Federal L. Assistant Barbara burglary robbery. During the and glary OR, Defender, Portland, Public The victim was killed. robbery, and petitioner-appellant. ag- charged Mr. State Attor- Sylwester, Assistant Timothy murder, A. murder, first-degree gravated General, Salem, OR, respon- for the ney burglary. The first-degree robbery, and dent-appellee. requesting a motion filed State jurisdiction over Mr.
juvenile court waive him to the transfer and an trial as circuit court to stand state adult. juvenile court hear- outset of the
At the FERGUSON, ALARCÓN, and Before counsel made Sophanthavong’s ing, Mr. RAWLINSON, Judges. Circuit admission: followingjudicial sophistication client is of sufficient my Alarcon; Dissent by Judge Opinion the conduct maturity appreciate and Judge Ferguson think the I don’t his behavior. ALARCÓN, Judge. Circuit any anything from going to hear Court’s actually know [Mr. people appeals Somphalavanh Sophanthavong counselor, Pati his court Sophanthavong] for a writ of petition the denial of his from Bolstad, who Archuleta, Dr. Orin to 28 U.S.C. corpus pursuant habeas (d) evaluation in this did an case—that The previous history of youth, anything suggest otherwise. including: there’s fact, the Court will hear what from (A) Prior treatment efforts and out-of- is that we have an individual Dr. Bolstad placements; home average intelligence, who has who’s of (B) The physical, emotional and mental major psychological no issues that will youth; health of the treatment, certainly impair suggest (e) youth’s prior record of acts the sufficient maturity that he lacks which would be crimes if committed sophistication. adult; statute force at the time (f) loss, The gravity of the damage or *4 juvenile hearing of court set forth the four injury caused or attempted during the in waiving youth factors to consider to an offense; adult court: (g) The prosecutive merit of the case (1) years youth age The is 15 of or older against youth; the and time of the the commission of the (h) desirability The disposing of of all offense; alleged cases in one trial if there were adult co- (2) youth, except pro- The as otherwise offenders. C.370, vided ORS 491C.364 and 419 is (2001). Or.Rev.Stat. 419C.349 alleged to have committed a criminal constituting: offense During evidentiary the hearing, the (a)Murder under any ORS 163.115 or court heard testimony the of James thereof; aggravated form Bridges, the principal assistant at David
Douglas High
Bridges
School. Mr.
testi-
fied that Mr. Sophanthavong was one of
(3)
youth at
The
the time of the alleged
his students.
Bridges
Mr.
stated that Mr.
of
sophistication
offense was
sufficient
Sophanthavong “was an honor roll student
maturity
and
to appreciate the nature
GPA,
his
year,
freshman
3.5
which
a B-
involved;
quality
and
of the conduct
and
plus average.”
(4)
court,
juvenile
The
considering
after
criteria,
following
the
determines
junior
year, however,
because of
preponderance of the evidence that
“strings
absenteeism,”
re-
of
grades plum-
jurisdiction
taining
will not serve the
Ultimately,
meted.
he withdrew from the
youth
society
best interests
and of
school.
Bridges
Mr.
referred Mr. Sophan-
justified:
and
is not
therefore
thavong to an
high
alternative
school be-
cause of
(a)
his numerous absences and behav-
amenability
The
youth
to
problems.
ior
letter,
In the referral
Mr.
treatment and
given
rehabilitation
the
Bridges described him
“[v]ery
as a
bright
techniques,
personnel
facilities and
young man who needs a new direction.”
rehabilitation available to
juvenile
the
cross-examination,
On
Mr. Bridges testi-
court and to the criminal court which
fied that Mr. Sophanthavong “has the in-
jurisdiction
transfer;
would have
after
tellectual skills to be able to exist in a
(b)
protection
The
required by the com-
structured educational environment.”
munity, given the seriousness of the of-
alleged;
fense
evidence,
After the close of
Sophan-
Mr.
(c)
violent,
aggressive,
premeditat-
thavong’s counsel stated: “Sophistication
ed or willful manner in which the
maturity.
offense
The Court heard the evi-
was alleged
committed;
to have been
dence.
I’m not going
argue
to
that point.”
Instead,
County, Oregon
fice of Multnomah
argued that the
counsel
defense
plead guilty
felony murder on the
condi-
proving,
meet its burden
State failed to
tion
the sentence would
fourth
required under the
factor set
as
He
(2001),
represented
Gary
months.
B.
re-
419C.349
forth
ORS
also
agreed
Bertoni. Mr.
juvenile
jurisdiction was not
taining
court
testify against
his co-defendants in ex-
of his client. The
in the
interest
best
change for a
of the five remain-
dismissal
motion
juvenile
State’s
granted
court
ing charges.
Sophanthavong person-
juvenile
jurisdiction.
to waive
court
ally signed
agreement,
submitted
the order
Sophanthavong appealed
t'o
to the
petition
plead guilty
circuit
juvenile
granting
court
State’s
court.
jurisdiction.
juvenile
motion waive
A
plea hearing
originally
change
only
appeal
in the
issue raised
It
set for June
1995. was rescheduled
finding
court erred in
juvenile
whether the
following
give
Sophan-
for the
week
child
it
in the best interest
that was
thavong
to consider his plea.
more time
juvenile
court waive
society
Sophanthavong ap-
On June
jurisdiction and transfer
child to
its
peared
guilty.
court to enter his
Sophanthavong’s
adult criminal court.
*5
Sophanthavong
the
When
court asked
the
this case
child did
“[i]n
brief noted that
voluntarily
plea
if the
made
and if
was
dispute
the first three elements
that
guilty,
anyone
plead
forced him to
were met.”
419C.349]
[of Or.Rev.Stat.
“No, it was
Sophanthavong replied,
made
of
Appeals
The Court of
State
stated,
voluntarily,
The court then
sir.”
juvenile
Oregon
the
court’s order
affirmed
you
to do it.
“You know
don’t have
You
Supreme
of
Court
opinion.
without
you
trial?” Mr.
go
Sophan-
know
can
to
Sophan-
denied Mr.
the State of
responded,
thavong
“Yes.”
thavong’s
opin-
for review without
petition
Thereafter,
court advised Mr.
the
So-
ion.
rights
constitutional
he
phanthavong of the
Sophanthavong
was indicted on De-
giving up by pleading guilty.
charged
an adult and
cember
1994 as
stated:
murder,
two
of
aggravated
counts
with
jury
a
of
give
You
a trial
twelve
up
murder,
murder,
felony
intentional
rob-
judge.
or
You can
people,
a trial with
bery
degree,
burglary
the first
up
jury
to a
trial and have
give
right
first degree.
the
if he
judge
the case
or she
try
the
in-
At the time Mr.
was
right
the
to cross-
give up
wishes. You
dicted,
Felony Sentencing Guide-
Oregon’s
questions
examine. That means ask
prescribed
presumptive
lines
sentence
state,
the
the
called
all
witnesses
to
and a maximum sen-
121 months
doctors,
officers,
anybody.
police
felony
of 242 months for
murder.
tence
call
give up
right
You
the
to
witnesses of
offense,
capital
Aggravated murder was
own,
them, require
your
subpoena
them
mi-
Sophanthavong was a
but because Mr.
you give
testify,
up
to come in and
nor,
prescribed sentence for a convic-
the
You
right
testify yourself.
the
don’t
to
impris-
murder was life
tion
trial,
don’t,
you
and if
testify
have to
at a
thirty
sentence
onment with a minimum
you.
against
it won’t be held
years.
trial,
Now,
and the
judge
if
is a
there
mistake, you have
attorneys
the
make a
entered into an
trial,
No
no mis-
right
appeal.
the
to
Attorney’s Of-
agreement with the District
takes,
basically give
you
up
right
proceed-
so
the
The court then conducted further
everything except
ings
that
the
to
appeal
Sophanthavong’s
confirm that Mr.
illegal guilty plea
knowing
voluntary.
sentence is too harsh or it’s an
sentence, beyond
The court
power
Sophanthavong:
stated to Mr.
Court,
job
something
“[M]y
plea
like that. You can
is to see that this
was made
voluntarily, and what I want to
appeal
still
that.
know from
you
you
you
go
is
can
know
Sophan-
The court further advised Mr.
to,
you
you
trial on this if
want
but
decided
thavong regarding
plea
duties under the
trial;
thing
the best
to do
not to go
is
is
agreement:
right?”
Mr. Sophanthavong respond-
Let’s assume that the other individuals]
ed, “Yes, Your Honor.”
process
who have been indicted or
July
On
sentencing
indicted,
this,
I don’t
being
know on
hearing,
imposed
the court
fifteen-year
you say,
come to trial and
“I am not
stipulated
sentence
to under
case,
In
going
testify.”
the State
agreement, noting that it
an upward
bring up
charges
can
all of the other
departure
presumptive
from the
sentence
words,
again against you....
other
of 120 to 121
felony
months for
murder as
you’re doing
giving up
what
what we
prescribed by
Oregon Sentencing
jeopardy right,
you
call double
but
are
Guidelines.
giving up
right
say,
already
“You
tried me on those cases.”
Mr. Sophanthavong
ap-
filed a notice of
any
questions
When asked
he had
about
peal
judgment
from the
of conviction. He
rights
constitutional
would be waiv-
represented
on appeal
David E.
*6
ing,
Groom,
Sophanthavong responded,
Mr.
“No.”
attorney
an
with the State Public
Defender’s Office. Mr. Groom filed a
hearing,
Later in the
Mr. Sophantha-
23,1996,
brief.1 On December
the
Balfour
vong’s trial counsel advised the court:
Oregon
Appeals
Court of
affirmed the
respect to
voluntariness of
[W]ith
[the]
judgment
opinion.
without
Mr. Sophan-
plea,
this
it is a
that
spent
matter
he has
thavong
petition
did not
Oregon
the
Su-
many
dealing
point
hours
with to the
preme Court for review.
research;
where he has done his own
family
Thereafter,
that he has conferred with his
Mr. Sophanthavong filed a
out,
pointed
pro
members. As the court
it’s
petition
post-conviction
se
for
relief in
extremely
Later,
been
difficult for him.
Grefenson,
When
state court.
Noel
you
voluntariness,
in
talk
terms of
attorney in private practice,
filed an
no,
promises,
threats or
petition
there hasn’t
amended
post
for
conviction relief
Yes,
any
promises.
been
threats or
[sic]
which he alleged that Mr. Sophantha-
it
voluntary.
He made
vong
the decision.
was denied effective assistance of
It is his choice.
trial
counsel
violation of the Sixth and
1. A
equivalent
brief is the
lacks
withdrawing
repre-
merit without
from
Balfour
briefing system
the
Supreme
set
appellant.
forth
sentation of the
Id. at 1078-79. A
California,
Court in Anders v.
386 U.S.
87
brief
parts:
contains two
Part A is
Balfour
(1967).
S.Ct.
der (ORS seq.), petitioner would 420A.200 et thoroughly investigated The case was of his sentence for reduction eligible decided to before prison.... of 60 months period to a guilty Felony Murder. plead We explain peti- failed to Trial counsel knew that someone else fired the shot sentence for presumptive tioner that [Borisch], actually killed but there petitioner’s crimi- felony murder under any no viable defense to months, but history nal score was charges. was ad- up- to an petitioner stipulating options of all his and the status of vised of 240 months.... departure ward plead he decided to the case before improperly peti- advised Trial counsel guilty guilty. plead The decision to ag- convicted of tioner that he could be his. a life sen- murder and receive gravated post-conviction court denied The state to trial. tence he went petition. claims, Sophan- support In of these following findings: made the deposition testimo-
thavong submitted for the eligible Petitioner is not “Second mother, father, from his ny and affidavits 420A.203, provisions Look” of ORS govern- opposition, and brother. petition him to which would allow Ber- an affidavit from Mr. presented ment after he had court to reduce his sentence toni, trial counsel. Sophanthavong’s served half his sentence. affidavit, stated that In his Mr. Bertoni petitioner did not tell before Counsel potential applicability he had discussed pled guilty that he would be petitioner statute, Or. Oregon’s “Second Look” Rather, Look.” eligible “Second (“Second Look § 420A.203 stat- Rev.Stat. it was un- petitioner counsel told ute”), sentence Sophanthavong’s petitioner time whether clear at Sophantha- for one of Mr. with counsel *7 Look,” eligible for “Second and would be co-defendants, and an individual vong’s guarantee peti- was no there Authority. Based Oregon Youth eligible. tioner would discussions, Mr. Bertoni believed on those guilty, petitioner knew pled Before he apply Look statute Second [fifteen]-year sen- he would receive sentencing if his took Sophanthavong tence for the conviction. 30, prosecutor 1995. The place after June plea negotiations, in the participated who of and under- Petitioner was advised however, Look the Second opined rights he was stood the constitutional Sophantha- not to Mr. apply statute would Felony by guilty to waiving pleading vong’s sentence. Murder, understood and he knew and pleading guilty. of consequences
Mr. Bertoni further stated: testimony that he would of Petitioner’s Sophanthavong I about both told Mr. taken pled guilty and would have were made have guarantees views. No these him to trial if counsel had told the case eligible that he would be “Second eligible for Look” is him he was not “Second I it clear to that the Look.” made and not credible. litigated, have to be question would 866 petitioner that him stipulate greater did not advise he to a sentence than
Counsel (3) sentence; Aggravated presumptive not be convicted of could he however, Murder; petitioner presented could be convicted of murder petitioner evidence that thirty years. no credible and face sentence of differently anything that, would have done Sophanthavong argues but for Mr. advice, than he did counsel had so advised Bertoni’s misleading erroneous and him. pled guilty. he would not have Thus, weighing credibility after of We review de novo a district court’s counsel, trial his § denial of a petition. 2254 Williams v. court the state dismissed 684(9th Cir.2002). 665, Woodford, 306 F.3d it concluded that petition because Mr. Findings by of fact made the district court Mr. Sophan- Bertoni had not misadvised McNeely are reviewed for clear error. thavong, knowingly and that and volun- Blanas, (9th Cir.2003). 822, 336 F.3d of tarily pled guilty. Appeals Court The Antiterrorism and Effective Death post- affirmed the the State (“AEDPA”) Penalty Act of 1996 applies to judgment opin- court’s without conviction Sophanthavong’s § petition be- Thereafter, August on ion. cause it was filed after AEDPA’s effective Oregon Supreme Court denied Mr. So- April date of Ayers, Gill v. phanthavong’s petition for review without (9th Cir.2003). F.3d AEDPA re- opinion. quires us to deny petition for writ of filed a petition for a corpus habeas unless the state court’s ad- corpus pursuant of habeas to 28 writ judication: in federal district U.S.C. court on (1) resulted in a decision that was con- petition, 2000. In his he as- October to, trary or involved an unreasonable one constitutional claim: “that he serted of, application clearly established Feder- was denied effective assistance counsel law, al as Supreme determined attorney’s misleading on his based er- States; Court the United regarding guilty plea. roneous advice” (2) resulted in a decision that was based The district court determined that in view on an unreasonable determination of the finding of the state court’s that Mr. Berto- light facts in presented the evidence credible, testimony ni’s representa- in the state court proceeding. tion did not fall below the standard of competency. The district denied the 2254(d). Furthermore, 28 U.S.C. under petition August habeas on 2002. This AEDPA, “a determination of a factual is- timely appeal followed. sue made a state pre- court shall be sumed to be correct.” A petitioner has the
II rebutting burden of presumption this by appeal, Sophanthavong In this Mr. as- convincing clear and evidence. 28 U.S.C. 2254(e)(1). guilty plea § serts that his was not knowing Clear and convincing evi- voluntary he because was denied requires greater proof effec- dence prepon- than tive assistance of trial counsel in violation derance of the evidence. To meet this standard, Sixth Fourteenth higher Amendments. a party present must suf- Specifically, Sophanthavong Mr. claims ficient to produce evidence “in the ultimate (1) that his trial counsel misadvised him factfinder an abiding conviction that the that the apply Second Look statutes would truth of its factual contentions are [sic] (2) sentence; to his that the required highly probable.” Colorado v. New Mexi-
867
fact,
316,
2433,
In
the
310,
proceedings.
104
81 viction
state
S.Ct.
467 U.S.
co,
(1984).
post-conviction
court conducted a
eviden-
L.Ed.2d 247
2, 1997,
hearing
tiary
pursu-
on December
A.
§
Sophan-
ant to
138.620.Mr.
Or.Rev.Stat.
2254(e)(1), Mr. Sophan-
Under Section
thavong
post-conviction
the
testified
rebutting
of
the
thavong
the burden
has
introduced
proceeding.
State
Mr.
court’s
that a state
determi-
presumption
Bertoni’s
in which he set forth
affidavit
by
factual issues
correct
nation of the
Sophan-
the
client. Mr.
gave
advice
convincing evidence. Mr. So-
clear and
thavong’s
post-conviction
counsel at
that the state court’s
phanthavong asserts
objection
hearing stated he had no
to the
clearly
In
findings
fact are
erroneous.
of
receipt of Mr. Bertoni’s affidavit and for-
contention, Mr.
support
Sophantha-
this
right
feited his
client’s
cross-examine
deposition
vong
that in the
he sub-
argues
observing
his trial
counsel. After
So-
post-conviction
mitted
the state
during
witness,
phanthavong’s demeanor as
that
trial
he testified
proceedings,
expressly
post-conviction
state
court
found
that
guaranteed
counsel had
Second that he was not a credible witness.
to him. He further
applied
Look statute
Recently,
held in Nunes
we
v.
was informed that he
testified that he
Cir.2003)
1045(9th
Mueller, 350 F.3d
that
mur-
could not
convicted
grant
a state
when
court refuses
an
also contends
Sophanthavong
der. Mr.
evidentiary hearing
petitioner
to a
who
gone
that he
have
trial had his
would
relief,
files for
“we need
trial
advised him. Addi-
properly
counsel
not of course defer to the state court’s
tionally,
Sophanthavong relies on the
Here,
findings.”
factual
Id. at 1055.
be
family
challenging
members
affidavits of
cause the
court conducted
eviden
state
findings.
affida-
the state court’s
these
tiary hearing in
Mr. Sophanthavong
which
vits,
alleged
they
affiants
encour-
testified, we
to defer to
required
are
plead
aged
guilty
credibility findings.
state
court’s
See
based on his counsel’s advice.
v.
459
Lonberger,
Marshall
U.S.
by Mr.
presented
Sophan-
The evidence
(hold
(1983)
103 S.Ct.
state (9th Calderon, 787, 138 F.3d 790 S.Ct. 2052. worth v. 1223).
Cir.1998),
at 152
amended
F.3d
To
a claim of
establish
ineffective
alleged
assistance of counsel based on
er
B.
regarding
plea,
roneous advice
guilty
AEDPA,
adjudi
“a
Under
decision
than
petitioner must demonstrate more
in a
cated on the merits
state
prediction.”
“mere inaccurate
Iaea v.
factual determination will not
based on a
Cir.1986).
Sunn,
(9th
861,
800 F.2d
865
grounds
on factual
unless
be overturned
predictions regarding a
“[E]rroneous
sen
light
unreasonable in
objectively
only
they
tence are deficient
constitute
pro
the state-court
presented
evidence
‘gross
likely
mischaracterization of the
out
Cockrell,
v.
537
ceeding.” Miller-El
U.S.
a plea bargain
come’ of
‘combined with ...
1029,
322, 340,
154
123 S.Ct.
L.Ed.2d 931
probable
erroneous advice on the
effects
(2003).
adjudicated
The state court
”
Keller,
going to trial.’ United States v.
claim of ineffective assis
Sophanthavong’s
(9th Cir.1990)
1391,
(quoting
902 F.2d
1394
tance under the test articulated
Strick
864-65).
Iaea,
869
(2002).
276,
238,
280-81
Mr. So-
39 P.3d
on an unrea-
not based
was
Look statute
the
was well below
phanthavong’s sentence
the facts.
of
determination
sonable
felony murder of
maximum sentence for
further
con
Sophanthavong
Thus,
advice
242
Mr. Bertoni’s
months.
explain
failed to
trial counsel
that his
tends
of the
gross
not a
mischaracterization
to a
stipulate
him to
required
the
that
Sophanthavong
possible
sentence
pre
than the
greater
that
sentence
rejected
if he had
the
would have faced
murder.
felony
sumptive
sentence
plea bargain.
histo
criminal
Sophanthavong’s
Given Mr.
Sophanthavong
argues,
also
felony
sentence for
presumptive
ry,
the
however,
that his trial counsel “misad
Sentencing
Oregon
the
under
murder
convicted of
him that he could be
months. Or. vised”
was 120-21
Grid
Guidelines
Grid,
murder because the evidence
aggravated
1-2.
apps.
Sentencing Guidelines
shoot the
personally
shows that he did
plea agree
in the
sentence
stipulated
The
that,
contends
presumptive
victim.
months. The
ment was 180
law,
found
Oregon
he could not be
Oregon
under
in the
Sentenc
set forth
sentences
felony
under
however,
aggravated
of
murder
Guidelines,
binding
guilty
are not
ing
163.095(2)(d)
Re
Oregon
of the
authorized
Section
statutorily
subject
are
and
(2)(d)”).2
(“Subsection
Dilts,
Or.App.
vised Statutes
State v.
departures.
conceal the com-
the
in an effort to
argues
person
cannot be
homicide
2. The dissent
crime,
identity
or the
of the
Ore-
mission of a
aggravated murder under
of
convicted
not before the
perpetrator.
the homi-
That issue was
gon
the
show that
law when
facts
Contrary
participant
Oregon.
in
to the
by
Supreme Court of
committed
another
cide was
Sophantha-
argument,
the commission of
whether Mr.
to conceal
dissent's
an effort
crime,
identity
perpe-
possible
vong
the
faced a
conviction
or to conceal
would have
Cohen,
163.095(2)(e)
v.
pursuant
relies on State
to ORS
trator. The dissent
for murder
(1979)
by any appellate
for this
Or.App.
mission of only objectively advice under reasonable of a crime.” ty perpetrator norms. 466 prevailing professional U.S. “aggravated 163.095 defines Section was not re- 104 S.Ct. Counsel meaning “murder” within the murder” as accurately how the quired predict Ore- 163.115(l)(b) 163.115. Section of Section gon question courts would resolve the criminal “murder” as homicide defines legally whether the evidence was sufficient by a act- person, it is committed [w]hen support aggravated a conviction for alone or with one or more ing either if gone murder the matter had to trial. attempts commits or persons, who Accordingly, holding that the state court’s [burglary robbery or in the first commit Sophanthavong Mr. did not receive ineffec- and in the course of and degree] regard charge tive assistance with to the person of the crime the furtherance murder was not based on an commit, committing attempting or objectively unreasonable determination of therefrom, flight immediate during the the facts. participant or another person, any, per- causes the death of there be C. participants, than one son other trial added). showing addition to (emphasis ineffective, counsel’s assistance was Mr. coconspira- and his Sophanthavong Mr. that, Sophanthavong must show but for Alcazar, tor, Danny charged were Count advice, trial counsel’s he would have indictment with 1 of the pled guilty. Sophanthavong claims intentionally, in unlawfully and an effort knowingly that his was not and volun identity perpetrator to conceal tarily made because of his trial counsel’s Robbery in of the crime of the First inadequate post-con assistance. The state Burglary in the First De- Degree and court, however, viction found that Mr. So cause the death of another human gree, phanthavong was advised of the constitu BORISCH, being, to wit: JOAN con- rights waiving tional he was and presented trary to the Statutes such cases made pled no evidence that he would not have against peace provided guilty differently. had counsel advised him Oregon. dignity of State 163.115(l)(b)’s Thus, combining undisputed Section It is that Mr. Sophanthavong definition of “murder” with Subsection knew he was to a stipulating sentence of essary prove gross violation of Or.Rev.Stat. of that statute was a mischaracteriza- 163.095(e) will, someday, prove to be inac- existing Oregon tion of case law. The Oregon appellate curate based on a future Supreme Court’s decisions in Cohen and Wille court’s construction of Or.Rev.Stat. support Sophanthavong's do not claim of 163.095(e), Sophanthavong has failed ineffectiveness of counsel. reading to demonstrate his trial counsel’s rights constitutional years. fifteen *12 waiving by pleading guilty, to the was other counts addition Mr. Berto- facing five ni stated: charge felony pled murder to which he
guilty. exchange plea, In for his the State Sophanthavong] [Mr. wanted the court charges against all of the other dismissed to really know his mind this was him. substantial evidence that There was only choice potential because of the con- and executed Sophanthavong planned Mr. sequences and risks were involved robbery burglary, and and that he if he were to take the matter to trial. the murder victim before she ways assaulted He feels in some that diminishes Thus, Sophanthavong was shot. Mr. faced the voluntariness because there weren’t years many higher options a much sentence than fifteen available. There wer- choices, pled guilty gone many had he not and to trial. en’t that but there is no my doubt in mind that this is a knowing Moreover, although Sophanthavong Mr. decision on part. his initially plead indicated his reluctance to Sophanthavong appears Mr. thus guilty, stated on three raise a new argument constitutional in his separate plea that his volun- occasions was brief, reply namely that deprived he was tary, and that he understood the constitu- process rights his due under the Fifth and rights tional waiving. he was The state Fourteenth Amendments the trial post-conviction court found that Mr. So- acceptance court’s guilty plea of his be phanthavong’s statement that he would not cause it not knowingly voluntarily was pled guilty have had his trial prop- counsel States, Brady See v. United made. him In erly advised was not credible. U.S. 90 S.Ct. 25 L.Ed.2d addition, during the trial court indicated (1970) (stating that the Fifth Amend sentencing proceedings that the 180- requires ment that waiver of a defendant’s upward month sentence was in essence an right jury voluntary trial be and know departure from presumptive sentence. ing). Accordingly, Mr. in- Sophanthavong was
formed that he facing upward de- however, Sophanthavong, did not parture prior being sentenced. He did claim in petition post- his amended plea being not move to set aside his after conviction relief in the state court that his informed he would receive sentence plea knowing voluntary was not be- departed upward. We hold that the state juvenile cause he was a pled when he finding court’s that Mr. So- brief, guilty. opening In his Sophan- phanthavong pled guilty would still have to thavong petition notes that the amended felony the crime of murder and sen- only “raised issues of ineffectiveness assis- objectively tence of months tance trial counsel” based on erroneous unreasonable. regarding punishment advice he would
face and whether he could be convicted of D. aggravated murder the case went trial. Appellant’s Opening Brief at 7. brief, In reply Sophantha his vong asserts that Mr. Bertoni’s statement Sophanthavong did not raise due regard process capacity the voluntariness of his claim based on a lack of given great weight by knowing voluntary should be this court to make a waiver of juvenile rights because he was a at the time of his federal constitutional because he plea. change plea hearing juvenile his At the was a before the district court judge before the trial explained opening had his brief before this court. FERGUSON, Judge, dissenting. fact, opening Sophantha- brief Mr. Circuit in his petition vong stated felony murder, pled guilty to When he claim single of ineffective- “to limited do, him to lawyer Somphala- as advised Appel- presented here.” of counsel ness years vanh was seventeen at 9. Brief Opening lant’s knowing old. was neither guilty plea That court will not consider appellate “[A]n voluntary. majority nor Because the raised the dis- properly before issues not juvenile treats defendant as though this *13 Furthermore, appeal, argu- on trict court. maturity the an adult in its had of evalua- by party opening in its raised ments not guilty plea, tion of the voluntariness of his deemed waived.” Smith brief are I dissent. 1052(9th Cir.1999). 1045, Marsh, F.3d 194 of such tactic is obvious. The unfairness Somphalavanh’s guilty plea was not denied opportunity the Opposing counsel knowing voluntary or he de- because record show that the new to the point nied assistance of counsel when effective legal support. or factual Be- theory lacks (1) him lawyer his trial misadvised that he Sophanthavong raised his due cause Mr. aggravated could be of convicted murder first in process reply claim for the time (2) thirty years; face a sentence of it. brief, to reach we decline lawyer him that the misadvised Second sentence; apply Look to his statutes would CONCLUSION (3) stipulated unknowingly he to a 2254(d)(1) AEDPA, of § a habeas Under sentence than the greater presumptive granted cannot be unless corpus petition sentence. adjudication claim court’s the state contrary in a decision that was “resulted
to, application an unreasonable or involved Aggravated 1. murder law, of, clearly established Federal as de- that, majority under Oregon writes Supreme termined Court law, “an can be individual convicted of 2254(d)(1). § United States.” U.S.C. aggravated murder when he or she partici- Here, post-conviction the state court cor- robbery in pated burglary that result- clearly rectly applied Supreme established in a considering in ed criminal homicide that was precedent Court Mr. So- commit- phanthavong’s claim denied in ted an effort to conceal the commission Therefore, of effective assistance counsel. crime, though of a even accused did Sophantha- court’s denial Mr. the state not commit the homicide.” This is simply for vong’s petition relief Cohen, not true. 42 Or.App. In State v. an applica- on was not based unreasonable (1979), 600 P.2d the Oregon clearly established federal law. tion of that, Court of in Appeals held contrast to required presume murder, felony We are correct- no “there is vicarious liabil- finding state court’s ness of the factual ity Only for murder. aggravated per- did not that Mr. Bertoni misadvise Mr. actually son who committed the homicide 2254(e)(1). pursuant § in flight the furtherance of or from has failed to this rebut felony aggravated has committed murder. convincing clear and presumption evi- murder, An aggravated indictment dence. therefore, allege that the must defendant
AFFIRMED.
the homicide.”1
personally committed
Cohen,
(Or.1980),
Oregon
Ap-
1. State v.
289 Or.
P.2d
reversed the
Court
Wille,
recently,
aggravated
More
State v.
317 Or. offense of
murder.”
Id. at
(1993),
Oregon
personally alleged 163.115(l)(a) had committed the homi- 2. Section defines criminal However, decision, cide. in that as “[w]hen homicide murder it is committed subsection, Supreme specifically agreed intentionally." Court with the next 163.115(l)(b), Appeals aggravated felony felony Court of mur- defines murder. requesting. make so In re Somphala- concluded a motion See
sonably have
Gault,
an
39 n.
have risked
387 U.S.
87 S.Ct.
vanh
(1967) (“The
informal
by going to trial.
mony. suggests that Somphalavanh The record
Moreover, intelligence: support above-average evidence exists to is of he earned in Somphalavanh’s average year high contention that he would a B + his freshman of school, However, trial if advised. At for instance. in the case gone properly have entered, juveniles, intelligence maturity Somphalavanh’s plea the time was of and are factors, lawyer Somphalavanh trial said that distinct and it is critical to under- his in an adolescent criminal defen- “wanted the Court to know his mind this stand where Q: you? apparently What did he tell 4. The state court did believe that get Aggravated A: convicted of Somphalavanh telling I could the truth in his answers, Murder. first two in-court since the court Q: you legally you he had told If petitioner found that “Counsel did not advise Aggravated could not be convicted of Aggravated that he could not be convicted of Murder, you still have entered a Murder.” plea charge Felony to the of Murder? No. A: more judged by cannot be Marty race. He level. developmental a is on
dant maturity.” The Compe- & of Immaturity, Culpability exacting standards Beyer, Cases, Study firmly A in made even more Galle- point was tence in Juveniles: of 27; Just., Colorado, Youth in 82 S.Ct. Summer 370 U.S. gos Crim. System: (1962): Guidelines Justice the Criminal L.Ed.2d 325 Practitioners 2001 and Policymakers youth and says that the prosecution 7, 39-40. Just. Sec. A.B.A.Crim. ... are ir- immaturity petitioner Bolstad, who Orin psychologist Clinical posi- ... But we took relevant. said that Som- Somphalavanh, examined deference, tion, would, it with all of immatu- a fair amount “has phalavanh boy’s of this constitu- disregard callous young- that “he’s a commented rity” rights. compared He cannot be tional development, delayed his ster who possession adult in full of his with an catching up.” that is youngster and he’s of the conse- knowledge senses and much of that devel- attributed Dr. Bolstad of his admissions. He would quences Somphala- fact that delay to the opmental the conse- way knowing have no what languages three try to learn vanh had without quences of his confession were five as well as to the age prior to rights. advice as to his Somphalavanh that, early fact childhood, made with Both of these statements were very long malaria for a was sick ju- interrogations of a regard to custodial time, delaying walking period here, the context is a police; venile social interactions. age-appropriate other However, is no mean- guilty plea. there Somphalavanh’s also said Dr. Bolstad involve likely ingful oc- difference: both situations adjustment most difficulties rights At juvenile much of his life.5 waiver of constitutional through curred Somphalavanh signifi- plea, through an admission to state authorities. time of typical contexts, mature than adolescents cantly importance less In both intelligence. age of similar is presence competent legal counsel heightened making where the individual long has held Supreme Court U.S. juvenile. Al- the admission con- juvenile defendant waives that when duty though inquire a court itself has a the child’s diminished ca- rights, stitutional personally voluntary into the and knowl- into ac- age must be taken pacity due guilty plea by a crimi- edgeable nature of determining whether the waiver count in defendant, “primary nal burden ex- Ohio, Haley v. 332 U.S. was valid.6 *17 plaining implications guilty plea of a 302, (1948), 599, 224 596, 92 L.Ed. 68 S.Ct. youth attorney, should on the defense “when, instance, said that as the Court communicating in who should be trained easy victim here, child—an a mere effectively youthful us, clients.” Youth special care in scrutiniz- law—-is before System in the Criminal Justice at 18. Age must be used. 15 is record ing the age boy any adequacy for a of counsel cannot be mea- difficult tender right adjustment a ... waiver of a constitutional testified that these whether 5. Dr. Bolstad Hickman, Somphalavanh carry voluntary.” had led 316 difficulties Alvarado v. anxiety de- 841, (9th amount of and some Cir.2003) considerable (holding 848 F.3d gree depression. petition- failing to take the state court erred in analyzing juvenile in er's status into account process Supreme Court's due 6. “Under the custody petitioner was in for Mi- whether age jurisprudence, a criminal defendant's has purposes). randa determining long been a relevant factor in 877 taking exactly sured without into account the di- niles in the same manner they are maturity applied Baird, minished of the child. to adults. Bellotti v. 3035, U.S. 99 S.Ct. 61 L.Ed.2d developmental psychology Modern indi- (1979). case, In this post- state that, adults, cates relative to adolescents courts, conviction as well as the majority, group as a make “decisions as defendants erred they because took no account of the legal process in the cogni- [which] reflect fact that Somphalavanh was a seventeen- psychological immaturity.” tive and Eliza- year-old boy of maturity diminished when Grisso, beth & Thomas S. Scott The Evo- pled guilty to felony murder. I re- A Developmental lution Adolescence: spectfully dissent. Perspective Reform, on Juvenile Justice 137, Criminology 88 J.Crim. L. &
(1997). example, For in- “adolescents use effectively,
formation less and tend to ex- independent thinking
hibit less in their making,
decision than adults.” Kim Tay-
lor-Thompson, States Mind/States 143, L.
Development,
Pol’y
Stan. &
Rev.
(2003).
capa-
Adolescents are also less
than
“generat[ing]
ble
adults of
alternative
America,
UNITED STATES of
possibilities” when faced with a decision.
Plaintiff-Appellee,
Marty Beyer, Recognizing the Child in the
v.
J.,
Delinquent, Ky. Child. Rts.
Summer
1999, at 17.
immaturity,
Because of this
NUNEZ-RODELO,
Ramon
juveniles’ ability to participate in various
Defendant-Appellant.
(such
activities
operating
as
automobiles
No. 03-10660.
serving
jury)
on a
or to make decisions for
themselves
(regarding matters
such as
United
Appeals,
States Court of
marriage or undergoing
proce-
medical
Ninth Circuit.
dures)
are restricted
law. See Stanford
361,
Kentucky,
492 U.S.
109 S.Ct.
Argued
July
and Submitted
2004.
(1989) (“minors
from communal experience juveniles
as a class have not the level of maturation responsibility presume we
adults and consider par- desirable for full
ticipation rights and duties of mod- life”) (Brennan, J.,
ern dissenting). *18 juveniles’
Because of “inability to make informed,
critical in an decisions mature (in conjunction
manner” “pecu- with their vulnerability”
liar importance and “the parental rearing”), role child
Supreme Court has held that constitutional
principles applied juve- should not be