Womack v. Del Papa ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JARAMIE D. WOMACK, 
Petitioner-Appellant, No. 06-15069
v.
 D.C. No.
CV-02-00374-HDM
FRANKIE SUE DEL PAPA; E. K.
MCDANIEL, OPINION
Respondents-Appellees.

Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Argued and Submitted
June 11, 2007—San Francisco, California
Filed August 13, 2007
Before: Alfred T. Goodwin, Jay S. Bybee, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
9771
WOMACK v. DEL PAPA 9773
COUNSEL
Linda Marie Bell, Federal Public Defender, Las Vegas,
Nevada, for the petitioner-appellant.
Robert E. Wieland, Deputy Attorney General, Reno, Nevada,
for the respondents-appellees.
OPINION
MILAN D. SMITH, JR., Circuit Judge:
Jaramie D. Womack, a Nevada prisoner, appeals the denial
of his federal habeas petition. He asserts that he entered an
Alford guilty plea to several crimes that was not knowing,
voluntary and intelligent because he was deprived of effective
assistance of counsel in violation of the Sixth and Fourteenth
Amendments. He alleges that even though his trial attorney
advised him that a guilty plea was his “best chance” the trial
judge would impose the minimum sentence for each count in
his indictment, thereby making him eligible for parole in
thirty to forty years, the trial judge instead determined that
Womack is a habitual criminal and sentenced him to eight life
9774 WOMACK v. DEL PAPA
terms without the possibility of parole. We hold that Womack
did not receive ineffective assistance of counsel, and we
affirm the district court’s denial of his petition for habeas cor-
pus.
FACTS AND PROCEDURAL HISTORY
Womack shared an apartment with Kathryn Reeder, her
seven and thirteen year-old sons, and her twelve year-old
daughter. On October 4, 1999, while Reeder was at work,
Womack stabbed the thirteen year-old boy in the neck, chest
and shoulder, cut the seven year-old boy across his neck and
chest, and locked all three children in the bathroom. After
stealing several items, Womack fled the apartment. Reeder’s
daughter escaped from the bathroom, ran to Reeder’s work-
place, and informed her mother what Womack had done.
Reeder and her daughter returned to her apartment and Reeder
called 911 when she saw the extent of her sons’ injuries.
Womack was arrested the following day when he attempted
to cash a forged check.
A grand jury indicted Womack on two counts of attempted
murder with use of a deadly weapon, three counts of first
degree kidnapping of a minor with use of a deadly weapon
with substantial bodily harm, three counts of robbery with use
of a deadly weapon, and one count each of burglary, forgery,
and possession of credit or debit card without cardholder con-
sent. Following a plea negotiation, the state of Nevada filed
an amended indictment charging Womack with two counts of
attempted murder with use of a deadly weapon, two counts of
first degree kidnapping of a minor with use of a deadly
weapon with substantial bodily harm, one count of first
degree kidnapping of a minor with use of a deadly weapon,
and one count of forgery.
On March 8, 2000, in an Alford1 plea, Womack agreed to
1
North Carolina v. Alford, 400 U.S. 25 (1970).
WOMACK v. DEL PAPA 9775
plead guilty to the charges contained in the amended indict-
ment. The Nevada state district court conducted a plea can-
vass with Womack in which the judge reviewed the terms and
conditions of the plea agreement. The court sought and
received assurances from Womack that he had read and
understood the plea agreement and that he had signed it freely
and voluntarily. Crucially, the court further inquired if
Womack understood that he could be adjudicated as a habit-
ual criminal and that he could be sentenced to life without
parole on each count. Womack replied, “Yes.”2
At sentencing, Womack was found to be a habitual criminal
and sentenced to eight terms of life without the possibility of
parole. Womack filed a petition for a writ of habeas corpus in
state court challenging the validity of his guilty plea and
asserting multiple violations of his constitutional rights,
including ineffective assistance of counsel. The court denied
2
The transcript of the plea colloquy provides, in part:
The Court: All right. So is it your decision, sir, to plead
guilty today by way of the Alford decision?
The Defendant: Yes, sir.
The Court: Okay. Did you read this plea agreement before
you signed it?
The Defendant: Yes, sir.
The Court: Did you understand it before you signed it?
The Defendant: Yes.
...
The Court: Did you sign it freely and voluntarily?
The Defendant: Yes.
...
The Court: If you are adjudicated and sentenced as a habit-
ual criminal, you could be sentenced to life
without parole on each count and that is also
non-probationable. Do you understand that?
The Defendant: Yes, sir.
9776 WOMACK v. DEL PAPA
Womack’s petition, finding, among other things, that his plea
was knowing and voluntary and that he had failed to provide
any evidence that his trial counsel was ineffective under the
standards of Strickland v. Washington, 466 U.S. 668 (1984).
Womack then filed a second petition for a writ of habeas cor-
pus in the same court in which he re-asserted the claims he
made in his first petition, but also requested an evidentiary
hearing. The state district court denied Womack’s second
petition on the grounds that he did not request permission
from the district court to have his petition reconsidered prior
to the filing of his second petition and that he had not shown
good cause for a rehearing. Womack appealed the denial of
both his petitions to the Nevada Supreme Court. The Nevada
Supreme Court consolidated Womack’s appeals and then
denied them after finding that his guilty plea was knowing
and voluntary and that he had failed to demonstrate that he
received ineffective assistance of counsel under Strickland.
Following the exhaustion of his state habeas procedures,
Womack initiated a federal habeas action in the United States
District Court for the District of Nevada pursuant to 28 U.S.C.
§ 2254. In an amended federal habeas petition, Womack
claimed that: (1) his guilty plea was not entered knowingly,
intelligently, and voluntarily in violation of his right to due
process under the Fifth and Fourteenth Amendments because
the trial court’s plea canvass was insufficient; (2) he received
ineffective assistance of counsel in violation of the Sixth
Amendment because his attorney failed to review discovery,
to investigate, and to adequately advise him of the evidence
and the consequences of his guilty plea; and (3) he was
deprived of effective assistance of counsel, as guaranteed by
the Sixth and Fourteenth Amendments, because his trial coun-
sel failed to inform him of his right to appeal and failed to file
an appeal on his behalf. The district court denied Womack’s
petition, finding that his due process rights were not violated
and that he did not receive ineffective assistance of counsel.
Womack filed a timely appeal from the district court’s
denial of his habeas corpus claims. We granted his request for
WOMACK v. DEL PAPA 9777
a certificate of appealability on two issues: (1) whether
Womack received ineffective assistance when his counsel rec-
ommended that he accept the plea agreement; and (2) whether
the trial court’s plea canvass was sufficient to support a guilty
plea.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 2253. We
review de novo a district court’s decision to deny a 28 U.S.C.
§ 2254 habeas petition. McQuillion v. Duncan, 306 F.3d 895,
899 (9th Cir. 2002). Because Womack filed his petition after
April 24, 1996, it is governed by the Antiterrorism and Effec-
tive Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d).
AEDPA establishes a “highly deferential standard for evaluat-
ing state-court rulings, which demands that state-court deci-
sions be given the benefit of the doubt.” Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (internal cita-
tions and quotations omitted). Under § 2254(d), a federal
court may not grant a habeas petition “with respect to any
claim that was adjudicated on the merits in State court pro-
ceedings” unless the state court’s decision was either (1)
“contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States;” or (2) “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). A state
court’s decision is an unreasonable application of federal law
if it correctly identifies the governing rule, but then applies it
to a new set of facts in an objectively unreasonable way, or
if it extends a clearly established legal principle from the
United States Supreme Court in a way that is objectively
unreasonable. Hernandez v. Small, 282 F.3d 1132, 1142 (9th
Cir. 2002). In conducting our analysis under AEDPA, we look
“to the last reasoned decision of the state court as the basis of
the state court’s judgment.” Franklin v. Johnson, 290 F.3d
1223, 1233 n.3 (9th Cir. 2002). Claims of ineffective assis-
tance of counsel are mixed questions of law and fact, and are
9778 WOMACK v. DEL PAPA
also reviewed de novo. See Reynoso v. Giurbino, 462 F.3d
1099, 1109 (9th Cir. 2006).
DISCUSSION
I.
The “clearly established Federal law, as determined by the
Supreme Court of the United States” at issue in this case is the
test for ineffective assistance of counsel claims set forth in
Strickland v. Washington, 466 U.S. 668 (1984), and in Hill v.
Lockhart, 474 U.S. 52 (1985). Under Strickland, to establish
a claim of ineffective assistance of counsel, the petitioner
must show (1) grossly deficient performance by his counsel,
and (2) resultant prejudice. 466 U.S. at 687. In Hill, the
Supreme Court adapted the two-part Strickland standard to
challenges of guilty pleas based on ineffective assistance of
counsel, holding that a defendant seeking to challenge the
validity of his guilty plea on the ground of ineffective assis-
tance of counsel must show that (1) his “counsel’s representa-
tion fell below an objective standard of reasonableness,” and
(2) “there is a reasonable probability that, but for [his] coun-
sel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.” 474 U.S. at 57-59.
The Nevada Supreme Court and district court found that,
under Strickland and Hill, Womack failed to establish ineffec-
tive assistance of counsel. In his federal habeas petition,
Womack contends that the Nevada Supreme Court unreason-
ably applied Strickland and Hill because his trial counsel did
not adequately advise him of the consequences of his guilty
plea. Specifically, he argues that he only agreed to plead
guilty because his attorney told him that an Alford plea was
his “best chance” that the judge would impose the minimum
sentences, thereby making him eligible for parole in thirty to
forty years. Citing this court’s opinion in Iaea v. Sunn, 800
F.2d 861 (9th Cir. 1986), Womack asserts that because he was
ultimately sentenced to eight life terms without the possibility
WOMACK v. DEL PAPA 9779
of parole his attorney’s sentencing prediction was a “gross
mischaracterization of the likely outcome” that fell below the
level of competence required of defense attorneys. Id. at 865.
Womack’s habeas petition also alleges that his plea was not
voluntary and intelligent because his attorney failed to advise
him of the potential defenses that could have been raised at
trial. He claims that, but for his attorney’s erroneous sentenc-
ing prediction and his failure to inform him of potential
defenses, he would have rejected the plea and elected to stand
trial.
A.
We first consider Womack’s claim that his attorney failed
to adequately advise him of the consequences of his guilty
plea. Womack relies heavily on Iaea v. Sunn to support his
claim that his attorney’s erroneous sentencing prediction con-
stituted ineffective assistance of counsel. In Iaea, this court
adjudicated a case in which a defendant was reluctant to plead
guilty to multiple counts of drug promotion felonies and one
firearm possession felony and only agreed to do so because
his attorney advised him that “his chances of acquittal if he
went to trial were slight and that if he was convicted, he
would be subject to Hawaii’s minimum sentencing law,” that
“there was a good chance of his getting probation if he
accepted the plea bargain,” and “that the chance of his getting
an extended sentence was ‘almost zero.’ ” 800 F.2d at 863.
Relying on this advice, Iaea accepted the plea, and the state
court judge subsequently sentenced him to life for his class A
drug promotion felonies, twenty years for his class B drug
promotion felonies, and ten years for possession of a firearm.
[1] We held that Iaea’s counsel’s performance was defi-
cient because his errors were so numerous and serious. Id. at
864. First, Iaea’s counsel seriously erred in informing Iaea
that he could escape Hawaii’s minimum sentencing statute
only if he pleads guilty because the relevant version of
Hawaii’s minimum sentencing statute did not apply to Iaea.
9780 WOMACK v. DEL PAPA
Id. at 864-65. Second, Iaea’s “[c]ounsel’s advice that the like-
lihood of Iaea’s receiving an extended or a life sentence was
practically non-existent and that he might receive probation
was also faulty.” Id. at 865. We noted that Iaea’s counsel was
well aware of the fact that the prosecutor would request
extended sentencing. Id. We also found that “[t]hough a mere
inaccurate prediction, standing alone, would not constitute
ineffective assistance, the gross mischaracterization of the
likely outcome presented in this case, combined with the erro-
neous advice on the possible effects of going to trial, falls
below the level of competence required of defense attorneys.”
Id. (internal citations omitted).
[2] In arguing that his counsel rendered ineffective assis-
tance, Womack claims two similarities between his situation
and that in Iaea: (1) he claims that, like Iaea, he was reluctant
to plead guilty; and (2) his counsel’s advice that his guilty
plea was his “best chance” of him receiving thirty to forty
years was a “gross mischaracterization of the likely outcome,”
given the fact that he was sentenced to eight terms of life
without parole. This analogy fails. Womack’s claim that he
was reluctant to plead guilty is wholly unsupported by the
record and clearly discredited by the district court. More
importantly, there is no other evidence in the record that
would elevate Womack’s attorney’s prediction to the level of
Iaea’s counsel’s patently erroneous advice.
[3] Even if Womack’s counsel’s performance were some-
how deemed ineffective, Womack was not prejudiced by his
counsel’s prediction because the plea agreement and the state
district court’s plea canvass alerted Womack to the potential
consequences of his guilty plea. See Doganiere v. United
States, 914 F.2d 165, 168 (9th Cir. 1990) (holding that the
petitioner “suffered no prejudice from his attorney’s predic-
tion because, prior to accepting his guilty plea, the court
explained that the discretion as to what the sentence would be
remained entirely with the court”). Womack’s written guilty
plea agreement unambiguously informed him that the state
WOMACK v. DEL PAPA 9781
retained the right to argue for a sentence of life without parole
with respect to the two kidnapping charges and the habitual
criminal designation. Moreover, at the guilty plea hearing, the
state court judge informed Womack that he could be “adjudi-
cated and sentenced as a habitual criminal” and that he “could
be sentenced to life without parole on each count and that is
also non-probationable.” Womack stated on the record that he
understood this. We find that because Womack was clearly
informed of the potential for life sentences and the unavaila-
bility of parole, he cannot demonstrate that he was prejudiced
by his attorney’s prediction. See, e.g., United States v. Garcia,
909 F.2d 1346, 1348 (9th Cir. 1990) (explaining that an erro-
neous sentence prediction “does not entitle a defendant to
challenge his guilty plea”); Shah v. United States, 878 F.2d
1156, 1162 (9th Cir. 1989) (finding that an inaccurate sen-
tence prediction was not prejudicial); United States v. Turner,
881 F.2d 684, 687 (9th Cir. 1989) (finding that an inaccurate
prediction does not constitute ineffective assistance), over-
ruled on other grounds, United States v. Rodriguez-Razo, 962
F.2d 1418 (9th Cir. 1992).
We conclude that it was reasonable for the Nevada
Supreme Court and the Nevada district court to reject
Womack’s claim that his plea was not knowingly, voluntarily
or intelligently entered. Womack’s allegation is belied by his
statements in open court and the contents of his signed plea
agreement. Furthermore, applying the Strickland/Hill stan-
dard, the Nevada courts held that Womack failed to offer any
evidence that his counsel’s performance was deficient and he
has not established that, but for his attorney’s advice, he
would have changed his guilty plea and insisted on going to
trial.
B.
[4] We next review Womack’s allegation that he received
ineffective assistance when his counsel neglected to discuss
potential defenses that he could have raised at trial, and we
9782 WOMACK v. DEL PAPA
conclude that this allegation is without merit. Other than
Womack’s own self-serving statement, there is no evidence
that his attorney failed to discuss potential defenses with him.
Moreover, his assertion is completely contrary to his state-
ment in the plea agreement that “I have discussed with my
attorney any possible defenses, defense strategies and circum-
stances which might be in my favor.” See United States v.
Rubalcaba, 811 F.2d 491, 494 (9th Cir. 1987) (“Solemn dec-
larations in open court carry a strong presumption of verity.”
(quotation omitted)); United States v. Rivera-Ramirez, 715
F.2d 453, 458 (9th Cir. 1983) (allowing the court to credit
defendant’s sworn statements at his plea hearing over subse-
quent contradictory assertions). Additionally, Womack has
not shown that he suffered prejudice for any such error
because there is neither factual nor legal support for his claim
that he could have raised a defense to the kidnapping charge
or that he could have challenged his habitual criminal desig-
nation. Given Womack’s inability to make a successful claim
of ineffective assistance of counsel on federal habeas review,
we cannot conclude that the Nevada court’s application of
Strickland and Hill to the facts of this case was objectively
unreasonable.
II.
Although we granted Womack’s request for a certificate of
appealability on the issue of whether the trial court’s plea can-
vass was sufficient to support his guilty plea, he neglected to
address this issue in his opening or reply briefs. Conse-
quently, Womack has waived this claim. See United States v.
Nunez, 223 F.3d 956, 958-59 (9th Cir. 2000); Jones v. Wood,
207 F.3d 557, 562 n.2 (9th Cir. 2000) (“[F]ailure to argue an
issue in the opening brief does constitute waiver.”).
CONCLUSION
[5] We hold that the Nevada Supreme Court’s conclusion
that Womack did not receive ineffective assistance of counsel
WOMACK v. DEL PAPA 9783
is not contrary to, nor 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). We therefore
affirm the district court’s decision denying Womack’s petition
for a writ of habeas corpus.
AFFIRMED.