Appeal from the United States District Court for the District of Oregon Anna J. Brown, District Judge, Presiding D.C. No. 3:06-cv-00209-AC
The opinion of the court was delivered by: Tallman, Circuit Judge
Argued and Submitted May 8, 2012 Portland, Oregon
Before: TASHIMA, TALLMAN, and IKUTA, Circuit Judges.
Matthew Ryan Sexton ("Sexton" or "Petitioner"), an Oregon state prisoner, appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition. He argues that trial counsel's advice regarding his guilty plea was constitutionally inadequate, thereby rendering his plea unknowing or involuntary. Sexton also seeks a limited remand under the Supreme Court's recent decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012), to allow the district court to review the merits of two new claims for ineffective assistance of trial counsel that he raised for the first time in his federal habeas petition, but that the district court ruled were procedurally defaulted.
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we deny Sexton's motion for a limited remand and affirm the denial of his § 2254 habeas petition.
We review the dismissal of a habeas petition and questions regarding procedural default de novo. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003); Sivak v. Hardison, 658 F.3d 898, 906 (9th Cir. 2011). If the state prisoner's claim was adjudicated on the merits in state court, we may grant habeas relief only if the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or if the state court decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," 28 U.S.C. § 2254(d)(2).
The pertinent facts regarding Sexton's involvement in the murders and the procedural history, as summarized by the district court, are as follows:
In 1998, when Petitioner was seventeen, he was indicted on four counts of Aggravated Murder with a Firearm in the deaths of his father and mother. Petitioner confessed to shooting his parents and he led police to the locations where he had left the bodies. He later recanted, claiming his younger brother shot his parents and that his confession was to protect his brother. Following Petitioner's recantation, counsel arranged for Petitioner to take a polygraph, but Petitioner failed it. Despite counsel informing Petitioner the polygraph was not admissible and his recantation was a plausible defense, Petitioner confessed anew during the defense's psychological evaluation.
Plea negotiations led to the Aggravated Murder charges being reduced and Petitioner pleading guilty to two counts of intentional Murder, with the issue of consecutive versus concurrent sentencing reserved for the court following argument. Counsel hired a nationally known expert on parricide who recommended Petitioner's allegations of abuse by his father be presented as a mitigating factor supporting concurrent terms of imprisonment. Counsel also met with the family on several occasions and understood them to support concurrent sentencing, until the issue of abuse as a mitigating factor was raised. At the sentencing hearing, a number of family members spoke in favor of consecutive sentencing, possibly in response to Petitioner's allegations of abuse. The sentencing court imposed two consecutive life terms of imprisonment under Ballot Measure 11, with a minimum of twenty-five years each without the possibility of parole.
Petitioner filed a direct appeal, challenging the constitutionality of consecutive sentencing under Ballot Measure 11, as applied to him. The Oregon Court of Appeals affirmed the sentencing court without opinion, and the Oregon Supreme Court denied review.
Petitioner filed for post-conviction relief ("PCR"), raising seven claims of ineffective assistance of counsel, and two claims alleging his pleas of guilty were not knowingly, intelligently and voluntarily made. He contended he pled guilty to the murders to make his family happy and to protect his younger brother, whom he alleged committed the murders. The PCR trial court denied relief, issuing extensive written findings. Petitioner appealed, but the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review.
Sexton v. Cozner, No. 06-CV-209-AC, 2009 WL 5173714, at *1--2 (D. Or. Dec. 21, 2009) (internal citations omitted).
Relevant here, the state PCR court rejected Sexton's claim that his trial counsel was constitutionally ineffective in representing to Sexton that his family members would support concurrent sentences, thereby rendering his guilty plea unknowing and involuntary. The court found that the plea agreement and transcript of the plea hearing showed that Sexton understood that it was within the discretion of the trial judge to impose consecutive sentences, and he did not actually believe that he would get concurrent treatment based upon trial counsel's representation as to the anticipated family recommendation. Further, the court held that Sexton would have pleaded guilty in any event, and was not credible to the extent he claimed otherwise.
Sexton was represented by appointed counsel in both the direct appeal and in the PCR habeas proceeding before the Oregon courts. At trial and on direct appeal, he was represented by attorney Kenneth Hadley. In the state PCR proceeding, he was represented by David Kuhns.
Sexton, however, filed a pro se federal habeas petition on February 14, 2006, where he raised a number of issues. First, Sexton argued, as he had in the state PCR court, that trial counsel was ineffective because he failed to inform Sexton that his family would likely support the prosecution's position that his sentences should be consecutive and that, as a result, his guilty plea was unknowing and involuntary. Sexton also raised two new claims of ineffective assistance of trial counsel that were not adjudicated in state court. Specifically, he argued that trial counsel was ineffective because he (1) arranged for Sexton to take a polygraph conducted by a law enforcement examiner, and (2) provided to the District Attorney ("D.A.") a full written account prepared by Sexton in which he recanted his earlier confession to the murders and claimed that his younger brother, Brian Sexton, killed his parents.
On November 3, 2008, Sexton filed a Memorandum in Support of the Federal Habeas Petition, where he argued he received ineffective assistance of counsel because his attorney: (1) violated the attorney-client privilege by disclosing the confidential recantation letter he received from Sexton; (2) agreed to a non-confidential polygraph examination, which Sexton failed and the results of which the judge relied on at sentencing; and (3) misled Sexton into entering a guilty plea by leading him to ...