Joseph Anderson v. Dwight Neven ( 2019 )

FILED
NOT FOR PUBLICATION
DEC 19 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH D. ANDERSON, No. 18-16502
Petitioner-Appellee, D.C. No. 2:14 cv-2015 JAD
v.
MEMORANDUM*
DWIGHT NEVEN, Warden; ATTORNEY
GENERAL FOR THE STATE OF
NEVADA,
Respondents-Appellants.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Argued and Submitted November 13, 2019
San Francisco, California
Before: THOMAS, Chief Judge, TASHIMA and WARDLAW, Circuit
Judges.
The State of Nevada appeals the district court’s grant of Joseph D.
Anderson’s 28 U.S.C. § 2254 petition for a writ of habeas corpus on the ground of
ineffective assistance of counsel. We have jurisdiction under 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
§ 2253(c)(1)(A). We review de novo, see Baeta v. Sonchik, 273 F.3d 1261, 1263
(9th Cir. 2001), and we affirm.
Anderson was involved in a fatal automobile accident. He initially was
charged with and convicted of misdemeanor failure to yield. See Nev. Rev. Stat.
§ 484B.257. He was later charged with felony driving under the influence (DUI)
causing death, which has as an element proof that the defendant “does any act or
neglects any duty imposed by law.” Id. § 484C.430(1). To satisfy this element,
the information relied on Anderson’s previous failure-to-yield offense, charging
that Anderson “did neglect his duty imposed by law to yield from a stop sign to
oncoming traffic,” proximately causing death to another. Anderson moved to
dismiss the indictment on double jeopardy grounds, but the state trial court denied
the motion. The trial court made clear, however, that it would dismiss the DUI
prosecution on double jeopardy grounds if, at trial, the state relied on the failure to
yield as the predicate offense to establish the DUI offense.
Anderson’s counsel then advised Anderson to plead guilty, and he did so,
although reserving his right to appeal the denial of his motion to dismiss the
indictment on double jeopardy grounds. The Nevada Supreme Court rejected the
double jeopardy claim on direct appeal. Anderson’s trial counsel later apologized
for having advised Anderson to plead guilty, writing that Anderson’s “jeopardy
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claim may well have succeeded” if Anderson had disregarded counsel’s advice and
taken the matter to trial.
Anderson subsequently sought postconviction relief in state court, arguing
that his trial counsel provided ineffective assistance of counsel by advising him to
plead guilty. He argued that, if he had gone to trial, the prosecution would have
relied on his failure-to-yield conviction to satisfy the “does any act or neglects any
duty imposed by law” element of § 484C.430(1); hence, that he would have had a
valid double jeopardy claim. The Nevada Supreme Court rejected this claim, but
the federal district court accepted it and granted Anderson habeas relief. The State
now appeals.
“A convicted defendant’s claim that counsel’s assistance was so defective as
to require reversal of a conviction . . . has two components.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). “First, the defendant must show that
counsel’s performance was deficient.” Id. “Second, the defendant must show that
the deficient performance prejudiced the defense.” Id. In order to satisfy the
prejudice requirement where, as here, a defendant argues that his trial counsel
performed deficiently by advising him to plead guilty, “the defendant must show
that there is a reasonable probability that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart,
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474 U.S. 52, 59 (1985). “[W]here the alleged error of counsel is a failure to advise
the defendant of a potential affirmative defense to the crime charged, the resolution
of the ‘prejudice’ inquiry will depend largely on whether the affirmative defense
likely would have succeeded at trial.” Id.
Here, in denying Anderson’s motion to dismiss the information on double
jeopardy grounds, the state trial court made clear that it would dismiss the case if,
at trial, the state relied on the failure-to-yield offense as the predicate to establish
the “does any act or neglects any duty imposed by law” element of the DUI
offense. Anderson’s trial counsel nonetheless advised Anderson to plead guilty.
The district court concluded that “[n]o reasonable attorney would have advised
Anderson” in this manner, noting that, “had Anderson gone to trial, there is a high
likelihood that he would have been able to raise the double-jeopardy defense
successfully.” We agree.
The State suggests that Anderson cannot establish prejudice because, had the
case proceeded to trial, the State could have established the “does any act or
neglects any duty imposed by law” element of the DUI offense through some
predicate other than the failure-to-yield offense for which Anderson had already
been convicted. The information, however, relied solely on failure to yield as the
predicate offense and, as the district court recognized, the record is devoid of any
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evidence regarding any other theory upon which the State could have satisfied this
element at trial. The mere possibility that the State may have been able to rely on
an alternative predicate offense does not negate Anderson’s showing of likely
success.
In sum, because Anderson’s double jeopardy defense likely would have
succeeded at trial, the district court correctly concluded that Anderson has
established both deficient performance and prejudice under Strickland and Hill.
The district court therefore did not err by granting habeas relief.
This conclusion is not undermined by the Nevada Supreme Court’s
conclusion on direct appeal that “[f]ailure to yield is not a lesser-included offense
of DUI causing death because each requires proof of an element the other does
not.” Although we defer to the Nevada Supreme Court’s conclusion that, as a
matter of state law, failure to yield is not always a lesser included offense of DUI
causing death, this is not the end of the federal constitutional inquiry. The state
court failed to recognize that:
an offense need not always be a lesser included offense of
the other in order for the two to be treated as the “same”
offense under Blockburger [v. United States, 284 U.S. 299
(1932)]. If one offense, among many possibilities, serves
in a particular case as the predicate for a greater offense
like felony murder, then the defendant cannot be prosecuted
or punished twice for both offenses, because the greater
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offense in that case necessarily requires proof of the lesser,
and the two are in that sense one crime.
United States v. Hatchett, 245 F.3d 625, 637 (7th Cir. 2001) (emphases added). 1
Although failure to yield is not always a lesser included offense of DUI causing
death, it was a lesser included offense in Anderson’s particular case because it was
specifically charged in the information.
Finally, although the State does not distinctly challenge the district court’s
conclusion that the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) is satisfied here, we reach the question sua sponte, see Hernandez v.
Holland, 750 F.3d 843, 856 (9th Cir. 2014) (“[E]ven if the Warden by silence
conceded that AEDPA does not bar issuance of the writ, such concession cannot
bind us.”), and hold that 28 U.S.C. § 2254(d) is satisfied for the reasons stated by
the district court.
AFFIRMED.
1
Hatchett, in turn, relied on a trio of Supreme Court cases, United
States v. Dixon, 509 U.S. 688, 698, 707 (1993) (Scalia, J., announcing the
judgment of the Court); id. at 717 (Rehnquist, C.J., concurring in part and
dissenting in part); Whalen v. United States, 445 U.S. 684, 693–94 (1980); Harris
v. Oklahoma, 433 U.S. 682, 682–83 (1977) (per curiam).
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