Washington v. Lambert ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN WASHINGTON,  No. 04-35381
Petitioner-Appellant,
v.  D.C. No.
CV 00-1632 KI
ROBERT O. LAMPERT,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Argued and Submitted
May 3, 2005—Portland, Oregon
Filed September 6, 2005
Before: Procter Hug, Jr., A. Wallace Tashima, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Tashima
12301
12304 WASHINGTON v. LAMPERT
COUNSEL
Christine Stebbens Dahl, Assistant Federal Public Defender,
Portland, Oregon, for the petitioner-appellant.
Jennifer S. Lloyd, Office of the Attorney General, Salem,
Oregon, for the respondent-appellee.
WASHINGTON v. LAMPERT 12305
OPINION
TASHIMA, Circuit Judge:
Kevin Washington, a state prisoner convicted of aggravated
murder and other offenses, appeals the district court’s denial
of his petition for a writ of habeas corpus. In his habeas peti-
tion, Washington asserts a claim of ineffective assistance of
counsel (“IAC”) in the negotiation and execution of his sen-
tencing stipulation, which waived his right to appeal in
exchange for a stipulated sentence of life imprisonment with
the possibility of parole.
While a district court has habeas jurisdiction under 28
U.S.C. §§ 2241 and 2254, whether the district court here had
jurisdiction turns on whether Washington’s waiver of his right
to file a federal habeas petition is enforceable with respect to
an IAC claim that challenges the validity of the waiver itself.
We have jurisdiction pursuant to 28 U.S.C. § 2253, and we
affirm.
BACKGROUND
I. State Court Trial
In December 1994, during the course of a robbery, Kevin
Washington (“Washington”) murdered James Loupe
(“Loupe”) in the presence of Loupe’s children. Washington
was found guilty of two counts of aggravated murder, first
degree robbery, first degree burglary, and second degree
assault.
Before the sentencing phase of trial, the State and Washing-
ton negotiated an agreement stipulating to a sentence of “life
imprisonment with the possibility of parole under ORS
163.105(1)(c) and 36 months to run consecutively.” The stip-
ulation further stated:
12306 WASHINGTON v. LAMPERT
Having been fully informed by his attorneys of the
sentencing options available in this case and having
been fully informed of possible legal and constitu-
tional challenges to both the jury verdict and the pos-
sible sentences, the defendant specifically waives
any legal or constitutional objections to pretrial pro-
ceedings, rulings by the court, his trial, the jury ver-
dict, his conviction, and to the sentence he will
receive based on this stipulation. This waiver is
intended to eliminate the possibility of any future lit-
igation regarding the defendant’s pretrial motions,
his trial, conviction, entry into this agreement, or
sentencing. It includes all existing or future claims,
known or unknown, and all types of judicial or other
review, including but not limited to all claims for
post-conviction relief or federal habeas corpus relief.
The stipulation also stated that “[t]he defendant expressly
acknowledges and agrees that he is fully and completely satis-
fied with the advice and representation he has received from
his attorneys.”
The trial court explained the terms of the stipulation to
Washington, stating:
Last Thursday the jury found you guilty of various
things. As you know, the next step is to determine
the sentence.
And the Aggravated Murder, the jury determines the
sentence, okay, and their choices are . . . the death
penalty, life without parole, called true life, and life
with the possibility of parole after 30 years, but you
can request it, you can start requesting parole after
20, and they can turn you down, okay?
It also explained that, in return for Washington’s waiver, “the
state is agreeing not to seek . . . the death sentence or the life
WASHINGTON v. LAMPERT 12307
without the possibility of parole.” The court then engaged
Washington in the following exchange:
Court: And I guess what I want to know from
you is you understand what that is,
what you’re doing there?
Defendant: Yes.
Court: Okay, why don’t you repeat to me
what you’re doing. . . .
Defendant: If I sign this, by signing this agreement
I give up my rights for all appeals.
Court: All appeals. And what we call post-
conviction.
Defendant: Yeah, post-conviction.
Court: Post-conviction, you can go and say
my attorney didn’t do a good job for
me, they were a bunch of clucks, et
cetera. You also give up the right to
that. You understand?
Defendant: Uh-huh.
The court then questioned Washington about whether he was
satisfied with the representation provided by his attorneys
Gareld Gedrose and Ed Jones:
Court: Now, you’ve — Mr. Gedrose and Mr.
Jones have been representing you from
the very — from the beginning here.
Any complaints?
Defendant: No.
12308 WASHINGTON v. LAMPERT
Court: I mean, obviously they didn’t win,
that’s a complaint, but any other things
that they could have done that you felt
they should have done or anything like
that?
Defendant: No.
Pursuant to the stipulation, the trial court sentenced Wash-
ington to a term of life with the possibility of parole, with the
minimum sentence set at 30 years, as well as a term of 36
months imprisonment, to be served consecutively. Washing-
ton did not file a direct appeal.
II. State Court Post-Conviction Proceedings
In 1997, Washington filed a Petition for Post-Conviction
Relief in state court. He stated the following claims for relief:
“prosecutorial & judicial misconduct — ineffective assistance
of counsel — denial of due process & equal protection of the
laws.” The petition alleged, in relevant part:
After the guilty verdicts, my court-appointed lawyers
actively pressured me into accepting a 30 year to life
sentence and give up my appellate rights to cover-up
their outrageaous [sic] conduct which deprived me
of an unbiased, unprejudiced, independent and
informed trial jury, a fair trial, and due process of
law.
The State moved for summary judgment, arguing that the
court should enforce Washington’s voluntary and knowing
waiver of his right to post-conviction relief. The motion was
supported by one of Washington’s trial attorneys, Gareld
Gedrose (“Gedrose”). Gedrose’s affidavit stated:
I made a point of spending a considerable amount
of time discussing the options available to Mr.
WASHINGTON v. LAMPERT 12309
Washington regarding the State’s offer. We dis-
cussed at length the options available to the jury at
this particular stage of the proceedings. I explained
to him that there was a possibility of him receiving
the death penalty. I expressed my feeling that while
I did not think he was a strong candidate for the
death sentence, the circumstances surrounding the
shooting, the fact that it happened in front of the vic-
tim’s young children, the fact that it occurred at
christmas [sic] and the body was recovered under the
Christmas tree, would all allow a jury to reach a dif-
ferent conclusion and impose the death sentence.
***
During the course of our conversations, Mr.
Washington expressed a distaste for all the options
available to him but recognized that, at this stage in
the proceedings, it simply was not going to get any
better, and while the death penalty was somewhat
remote, it was a real possibility and the possibility of
a true life sentence was certainly a reality. The
opportunity to receive a sentence which included the
possibility of parole was his best option and certainly
in his best interest.
Gedrose concluded: “I do believe that Mr. Washington did
accept and agree to the stipulation with his eyes open and did
realize what he was receiving in return. It was a rational deci-
sion based on his understanding of the facts and the law as
best I could explain them to him.”
In his opposition to the State’s motion for summary judg-
ment, Washington cited to both state and federal cases dis-
cussing the nature of valid, voluntary, and intelligent waivers.
He did not cite to Strickland v. Washington, 466 U.S. 668
(1984).
12310 WASHINGTON v. LAMPERT
At the hearing on the State’s motion for summary judg-
ment, Washington testified that he did not understand the
nature of post-conviction relief and that he did not fully
understand the waiver of his right to appeal: “I really didn’t
know much about it until I was, until I got down here I really
didn’t know what it was.” He also testified that he simply fol-
lowed his attorneys’ instructions and didn’t fully understand
what his attorney was explaining to him.
The state court granted the State’s motion for summary
judgment and Washington appealed to the Oregon Court of
Appeals. On appeal, Washington argued that the trial court
“erred when it found no genuine issue of material fact regard-
ing whether [he] knowingly and voluntarily waived his rights
to direct appeal and post-conviction relief.” Washington also
asserted that the court erred “when it determined that [he]
presented no genuine issue of material fact in his application
for post-conviction relief based upon the claim of inadequate
assistance of trial counsel under the Oregon and Federal Con-
stitutions because of counsel’s failure to explain the conse-
quences of the stipulated sentencing agreement.” In support of
his IAC argument, Washington cited to and discussed both the
Sixth Amendment and federal cases, including Strickland.
Washington filed an affidavit in support of his appeal, stating:
“I believe I was coerced into taking a Plea agreement without
being fully aware of what I was giving up. . . . I don’t think
anyone given the proper legal advice would have given up
what I did, in return for the sentence I received.”
Addressing Washington’s IAC claim, the Oregon Court of
Appeals concluded that Washington had not shown prejudice.
The court explained:
petitioner offered no evidence that, had he under-
stood the terms of the stipulation, he would have
risked the imposition of the death penalty for an
opportunity to pursue post-conviction relief. Like-
wise, on appeal, petitioner makes no claim that the
WASHINGTON v. LAMPERT 12311
lack of a more thorough explanation of the terms of
the stipulation prejudiced him in any way.
The state court of appeals affirmed the trial court’s grant of
summary judgment.
Washington then filed a petition for review with the Ore-
gon Supreme Court. He again raised the claim that his trial
counsel’s failure to explain the consequences of the stipulated
sentencing agreement amounted to constitutionally defective
assistance of counsel. The Oregon Supreme Court summarily
denied the petition for review, without opinion.
III. Federal Habeas Corpus Proceedings
Washington then filed a federal petition for a writ of habeas
corpus. He asserted eight grounds for relief, many of which
cited to the Sixth Amendment and alleged that he received
ineffective assistance of counsel in entering into the sentenc-
ing stipulation waiving his right to appeal. Washington
alleged that his trial counsel was ineffective because counsel
“actively pressured his client into accepting a life sentence
with a thirty (30) minimum.” He also alleged that “[t]rial
counsel was ineffective and defendant was denied due process
of law where counsel coerced his client into waiving his con-
stitutional right to appeal his trial and judgment of conviction
plus his collateral attack of post-conviction relief.” Finally,
Washington asserted that his trial counsel failed to inform him
of the consequences of his accepting the terms of the stipula-
tion and “used false promises and inaccurate predictions to
get his client to agree to the state’s stipulated sentencing
offer.”
In its response to the petition, the State explained that “Pe-
titioner killed James Loupe in front of his two children,
underneath their Christmas tree. Before killing Loupe, peti-
tioner told the children to ‘tell your father goodbye.’ ” The
State argued that the petition should be dismissed because
12312 WASHINGTON v. LAMPERT
Washington validly waived his right to appeal or collaterally
attack his conviction and sentence.
The district court reasoned that, “[i]n order to proceed with
this case, petitioner must first show that he is entitled to bring
this action despite waiving his federal habeas corpus remedy.”
It noted that Washington asserted that his waiver was invalid
because he was given ineffective assistance of counsel. The
district court found no actual conflict of interest and no preju-
dice, and therefore concluded that Washington’s waiver of his
right to file a federal habeas corpus petition was valid, and
denied the petition. Washington filed a timely notice of appeal
and the district court granted a certificate of appealability.
STANDARD OF REVIEW
We review de novo the district court’s decision to grant or
deny a 28 U.S.C. § 2254 habeas petition. Leavitt v. Arave, 383
F.3d 809, 815 (9th Cir. 2004). We may affirm on any ground
supported by the record even if it differs from the rationale of
the district court. Ramirez v. Castro, 365 F.3d 755, 762 (9th
Cir. 2004). We review findings of fact made by the district
court for clear error. See Riley v. Payne, 352 F.3d 1313, 1317
(9th Cir. 2003).
Under the Antiterrorism and Effective Death Penalty Act of
1996, a petitioner must demonstrate that the state court’s adju-
dication of the merits resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly estab-
lished federal law, as determined by the Supreme Court of the
United States, or resulted in a decision that was based on an
unreasonable determination of the facts. 28 U.S.C. § 2254(d);
Lockyer v. Andrade, 538 U.S. 63, 70-73 (2003). State court
findings of fact are presumed correct unless the petitioner
rebuts the presumption with clear and convincing evidence.
28 U.S.C. § 2254(e)(1); McClure v. Thompson, 323 F.3d
1233, 1241 (9th Cir. 2003).
WASHINGTON v. LAMPERT 12313
DISCUSSION
I. Jurisdiction — Waiver of the Right to Appeal
Before we proceed to the merits of Washington’s claim, we
must first determine whether Washington’s waiver of the right
to file a federal habeas petition was valid because, if it was,
then the district court lacked jurisdiction to hear the case.
Washington argues that the sentencing stipulation’s waiver of
the right to appeal is unenforceable with respect to an IAC
claim challenging the validity of the waiver itself.
[1] Neither the Supreme Court nor this court has addressed
the issue of whether a waiver of the right to file a collateral
challenge is unenforceable with respect to an IAC claim
implicating the voluntariness of the waiver itself. We have,
however, observed that other circuits have barred waivers of
IAC claims associated with the negotiation of plea agree-
ments, and explained that “[c]laims of ineffective assistance
of counsel . . . challenge the voluntary and intelligent nature
of the plea agreement.” United States v. Ruiz, 241 F.3d 1157,
1164 (9th Cir. 2001), overruled on other grounds, 536 U.S.
622 (2002).
Further, we have expressed “doubt” that such a waiver
could be enforceable. In United States v. Pruitt, 32 F.3d 431
(9th Cir. 1994), the petitioner previously had directly
appealed from his judgment of conviction and sentence, con-
tending that he had received ineffective assistance of counsel.
Id. at 432. We concluded that Pruitt, through his plea agree-
ment, had waived his right to appeal. Id. at 432-33. Pruitt then
filed a collateral challenge pursuant to 28 U.S.C. § 2255,
which the district court denied. Id. at 433. We observed that
the plea agreement did not waive the right to bring a § 2255
motion, reached the merits of the IAC claim, and affirmed the
district court’s denial of the § 2255 motion. We explained that
“[w]e doubt that a plea agreement could waive a claim of
ineffective assistance of counsel based on counsel’s errone-
12314 WASHINGTON v. LAMPERT
ously unprofessional inducement of the defendant to plead
guilty or accept a particular plea bargain.” Id. Because the
issue was not squarely presented, however, we concluded that
“we need not face this issue here.” Id.
Similarly, in United States v. Jeronimo, 398 F.3d 1149 (9th
Cir. 2005), the defendant filed a direct appeal of the district
court’s rejection of his request to withdraw his guilty plea. Id.
at 1153. Jeronimo’s plea agreement provided that Jeronimo
waived his right to appeal and to file a petition pursuant to 28
U.S.C. § 2255. Id. at 1154. On appeal, Jeronimo argued that
“his attorney’s failure to advise him of all the possible conse-
quences of a guilty plea deprived him of the information nec-
essary to render his plea — and the waiver of appeal
contained therein — truly knowing and voluntary.” Id. at
1155. We observed that IAC claims ordinarily are not
reviewed on direct appeal. Id. We then explained:
We leave open the possibility that Jeronimo might
raise his ineffective assistance argument on federal
habeas procedure, through a § 2255 motion, notwith-
standing that Jeronimo’s appeal waiver covered “all
his waivable statutory rights to file a petition pursu-
ant to 28 U.S.C. § 2255 challenging the length of his
sentence.”
...
[B]ecause the issue is not squarely presented in this
case on direct appeal, we leave for another day our
assessment of whether a waiver such as made by
Jeronimo can be challenged through a § 2255 motion
questioning the validity of the waiver.
Id. at 1156 n.4. We concluded that Jeronimo’s waiver was
valid and enforceable because the waiver was unambiguous
and the record failed to demonstrate that it was not knowingly
and voluntarily made. Id. at 1157. See also United States v.
WASHINGTON v. LAMPERT 12315
Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993) (explaining that,
“[w]hile we do not hold that Abarca’s waiver categorically
forecloses him from bringing any section 2255 proceeding,
such as a claim of ineffective assistance of counsel or invol-
untariness of waiver,” Abarca’s challenge to his degree of cul-
pability was clearly foreclosed by the waiver).
[2] We note that a number of other circuits have explicitly
held, in the context of § 2255 challenges brought by federal
prisoners, that waivers cannot bar IAC claims associated with
the negotiation of plea agreements. See United States v.
White, 307 F.3d 336, 341 (5th Cir. 2002) (“[A] waiver of
appeal may not be enforced against a section 2255 petitioner
who claims that ineffective assistance of counsel rendered that
waiver unknowing or involuntary.”); United States v. Cock-
erham, 237 F.3d 1179, 1187 (10th Cir. 2001) (“[W]e hold that
a plea agreement waiver of postconviction rights does not
waive the right to bring a § 2255 petition based on ineffective
assistance of counsel claims challenging the validity of the
plea or the waiver.”); DeRoo v. United States, 223 F.3d 919,
924 (8th Cir. 2000) (“A defendant’s plea agreement waiver of
the right to seek section 2255 post-conviction relief does not
waive defendant’s right to argue, pursuant to that section, that
the decision to enter into the plea was not knowing and volun-
tary because it was the result of ineffective assistance of coun-
sel.”).
[3] For example, in Jones v. United States, 167 F.3d 1142
(7th Cir. 1999), the Seventh Circuit held that a plea agreement
or post-conviction cooperation agreement that waives the
right to file a petition under § 2255 is unenforceable with
respect to an IAC claim that challenges the voluntariness of
the waiver. Id. at 1145. The Seventh Circuit reasoned that
[j]ustice dictates that a claim of ineffective assis-
tance of counsel in connection with the negotiation
of a cooperation agreement cannot be barred by the
agreement itself — the very product of the alleged
12316 WASHINGTON v. LAMPERT
ineffectiveness. To hold otherwise would deprive a
defendant of an opportunity to assert his Sixth
Amendment right to counsel where he had accepted
the waiver in reliance on delinquent representation.
Id. The court then observed that, “[o]rdinarily we would
remand to the district court for a determination whether Jones
was in fact denied effective assistance of counsel or whether
the agreement was involuntary.” Id. at 1145-46. The court
noted that Jones, however, “merely advances the naked asser-
tions that he was denied effective assistance of counsel” with-
out identifying the substance of the claim. Id. Therefore, the
court reached the merits of the claim and rejected it. Id.
[4] The Seventh Circuit’s reasoning in Jones applies with
equal force here, in the context of a state prisoner’s federal
habeas petition pursuant to § 2254. Indeed, the state acceded
as much at oral argument. We therefore hold that a plea agree-
ment that waives the right to file a federal habeas petition pur-
suant to 28 U.S.C. § 2254 is unenforceable with respect to an
IAC claim that challenges the voluntariness of the waiver.
[5] Because Washington’s waiver is unenforceable with
respect to the claim he asserts in his federal habeas petition,
the district court had jurisdiction over the petition pursuant to
28 U.S.C. §§ 2241 and 2254.
II. Exhaustion
The State argues that Washington failed to exhaust his IAC
claim. Before a federal court may grant habeas relief to a state
prisoner, the prisoner must exhaust his remedies in state court
by giving the state courts an opportunity to correct the alleged
constitutional violation. 28 U.S.C. § 2254(b)(1)(A);
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Neverthe-
less, “[a]n application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the appli-
cant to exhaust the remedies available in the courts of the
WASHINGTON v. LAMPERT 12317
State.” 28 U.S.C. § 2254(b)(2). Whether Washington
exhausted the claim he raises here presents a close question.
It is, however, a question that we need not resolve, because
we deny Washington’s claims on the merits.
III. Ineffective Assistance of Counsel
Washington argues that his attorneys’ representation during
the negotiation and execution of the sentencing stipulation
constituted an actual conflict of interest that warrants a pre-
sumption of prejudice. First, Washington asserts that his
counsel “could not ethically advise him on whether to waive
his right to pursue an ineffective assistance of counsel claim
against them.” Washington cites to Oregon Bar Disciplinary
Rule 6-102(A), which provides that “[a] lawyer shall not
make an agreement prospectively limiting the lawyer’s liabil-
ity to a client for malpractice unless permitted by law and the
client is independently represented in making the agreement.”
Second, Washington asserts that, because prejudice should be
presumed based on the existence of an actual conflict, he need
not demonstrate adverse effect. Third, Washington asserts that
the sentencing stipulation was based on “false promises and
inaccurate predictions” and coercion by his attorneys and
therefore was not voluntary and intelligent.
To prove an IAC claim premised on an alleged conflict of
interest, a petitioner must “establish that an actual conflict of
interest adversely affected his lawyer’s performance.” Cuyler
v. Sullivan, 446 U.S. 335, 350 (1980). “While ‘a defendant
who shows that a conflict of interest actually affected the ade-
quacy of his representation need not demonstrate prejudice in
order to obtain relief,’ the Supreme Court also clarified in
Cuyler that ‘until a defendant shows that his counsel actively
represented conflicting interests, he has not established the
constitutional predicate for his claim of ineffective assis-
tance.’ ” Garcia v. Bunnell, 33 F.3d 1193, 1198 (9th Cir.
1994) (quoting Cuyler, 446 U.S. at 349-50). “The client must
demonstrate that his attorney made a choice between possible
12318 WASHINGTON v. LAMPERT
alternative courses of action that impermissibly favored an
interest in competition with those of the client.” McClure, 323
F.3d at 1248.
For example, in Williams v. Calderon, 52 F.3d 1465 (9th
Cir. 1995), we rejected the petitioner’s argument that an
actual conflict of interest existed because “the fact that pay-
ment for any investigation or psychiatric services could have
come from counsel’s pocket forced counsel to choose
between Williams’ interests and his own.” Id. at 1473. We
reasoned that “[a]ll Williams alleges is the same theoretical
conflict that exists between an attorney’s personal fisc and his
client’s interests in any pro bono or underfunded appointment
case. Such arrangements, without more, do not require Sixth
Amendment scrutiny.” Id.
As for the effect of state bar disciplinary rules,
The [Supreme] Court has yet to “define with greater
precision the weight to be given to recognized can-
ons of ethics, the standards established by the state
in statutes or professional codes, and the Sixth
Amendment” in defining the proper scope of and
limits on attorney conduct for Strickland purposes. It
has, however, suggested that when “virtually all of
[those] sources speak with one voice” as to what
constitutes reasonable attorney performance, depar-
ture from ethical canons and ABA guidelines
“make[s] out a deprivation of the Sixth Amendment
right to counsel.”
McClure, 323 F.3d at 1242 (quoting Nix v. Whiteside, 475
U.S. 157, 165-66 (1986)).
[6] The Supreme Court has, however, articulated a specific
test for IAC claims challenging guilty pleas, which are analo-
gous to the sentencing stipulation challenged here. In Hill v.
Lockhart, 474 U.S. 52 (1985), the Supreme Court held that
WASHINGTON v. LAMPERT 12319
the Strickland test for evaluating IAC claims applies to guilty
plea challenges based on ineffective assistance of counsel. Id.
at 58. The Court reasoned that a defendant who pleads guilty
upon the advice of counsel may attack the voluntary and intel-
ligent character of the guilty plea by showing that the advice
he received from counsel was not within the range of compe-
tence demanded of attorneys in criminal cases. Id. at 56 (cit-
ing McMann v. Richardson, 397 U.S. 759, 771 (1970), and
Tollett v. Henderson, 411 U.S. 258, 267 (1973)). Thus, to pre-
vail, the petitioner must show that (1) counsel’s representation
fell below the range of competence demanded of attorneys in
criminal cases, and (2) “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.” Id. at 58-59.
[7] Here, Washington fails to satisfy either of the tests set
forth in Cuyler and Hill. Washington points to no evidence
that “demonstrate[s] that his attorney made a choice between
possible alternative courses of action that impermissibly
favored an interest in competition with those of the client.”
McClure, 323 F.3d at 1248. Rather, the evidence shows that
Washington’s counsel wisely negotiated a bargain that
allowed Washington the lightest possible sentence, thus
avoiding imposition of either the death penalty or life impris-
onment without the possibility of parole — sentences that
appeared likely, given the circumstances of the murder.
[8] Further, even if we consider Oregon Bar Disciplinary
Rule 6-102(A) in determining whether an actual conflict of
interest existed, it appears that, similar to the petitioner in Wil-
liams, all that Washington alleges is the same theoretical con-
flict that exists between an attorney’s interests and his client’s
interests in most plea agreement negotiations involving a
waiver of the right to appeal. See Williams, 52 F.3d at 1473.
Washington points to no evidence demonstrating that any
conflict, actual or theoretical, adversely affected his attorneys’
performance. Further, Washington points to no evidence indi-
cating that, had his attorneys performed differently, he would
12320 WASHINGTON v. LAMPERT
have rejected the sentencing stipulation and insisted on pro-
ceeding with the sentencing phase of trial. See Hill, 474 U.S.
at 60 (rejecting IAC claim because petitioner did not allege
that, “had counsel correctly informed him about his parole eli-
gibility date, he would have pleaded not guilty and insisted on
going to trial”).
[9] Finally, Washington points to no evidence demonstrat-
ing that his agreement to enter into the sentencing stipulation
was not voluntary, knowing, or intelligent. The transcript of
the colloquy shows that the court meticulously explained the
rights that Washington was agreeing to waive, including post-
conviction proceedings and IAC claims, and that Washington
understood the nature of the waiver. In sum, Washington fails
to demonstrate that the state courts’ rejection of his IAC claim
was contrary to, or an unreasonable application of, clearly
established federal law. See 28 U.S.C. § 2254(d).
The district court’s denial of Washington’s petition for writ
of habeas corpus is therefore
AFFIRMED.