Smithson v. Hall , 383 F. App'x 680 ( 2010 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                            JUN 14 2010
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    BRANDON S. SMITHSON,                              No. 07-36071
    Petitioner - Appellant,           D.C. No. CV-05-00467-JMST
    v.
    MEMORANDUM *
    GUY HALL,
    Respondent - Appellee.
    Appeal from the United States District Court
    for the District of Oregon
    Michael W. Mosman, United States District Judge, Presiding
    Submitted June 11, 2010 **
    Portland, Oregon
    Before: THOMPSON and McKEOWN, Circuit Judges, and TIMLIN, Senior
    District Judge.***
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    ***
    The Honorable Robert J. Timlin, United States District Judge for the
    Central District of California, sitting by designation.
    Brandon S. Smithson, an Oregon state prisoner, appeals the denial of his 
    28 U.S.C. § 2254
     habeas petition challenging his conviction by guilty plea and
    sentence to 320 months imprisonment for the rape, sodomy, sexual abuse, and
    attempted aggravated murder of two girls he was baby-sitting. Smithson argues
    that trial counsel rendered ineffective assistance by failing to attend or cancel his
    psychosexual evaluation when Smithson told him that he intended to make
    incriminating statements to the psychologist. We have jurisdiction under 
    28 U.S.C. § 1291
     and § 2253 and affirm.
    As an initial matter, the State argues that Smithson failed to exhaust his
    ineffective assistance claim and that it is now procedurally defaulted. We do not
    reach this issue, but resolve this case on the merits of Smithson’s ineffective
    assistance claim. See 
    28 U.S.C. § 2254
    (b)(2).
    The state post-conviction court’s denial of Smithson’s post-conviction
    petition was not “contrary to, or an unreasonable application of” the standard for
    effective assistance claims established in Strickland v. Washington, 
    466 U.S. 668
    (1984). 
    28 U.S.C. § 2254
    (d)(1). As the district court found, trial counsel’s advice
    that Smithson undergo the evaluation but not disclose to the psychologist or an
    attendant polygrapher any information regarding uncharged criminal conduct by
    him was not deficient. If Smithson had followed counsel’s advice, he would have
    2
    received a sentence of no more than 275 months, even if the district attorney made
    no concession based on Smithson’s plea. Had he received a favorable evaluation,
    he might have been able to negotiate a better plea offer. It was therefore entirely
    reasonable for counsel to advise Smithson to submit to the evaluation but withhold
    information regarding his other crimes. In addition, as the district court found,
    “[i]t was not counsel’s advice that caused prejudice to [Smithson]; instead, it was
    petitioner’s voluntary confession which occurred despite counsel’s advice.”
    The attorney’s decision not to cancel the evaluation was a strategy call, and
    not objectively deficient performance. See Strickland, 
    466 U.S. at 689
     (requiring
    “a strong presumption that counsel’s conduct falls within the wide range of
    reasonable professional assistance”). And even assuming that counsel’s failure to
    be present with Smithson at the evaluation was objectively unreasonable, his
    absence did not cause Smithson prejudice. As the district court found, given that
    Smithson’s confession was voluntary, “[w]hether counsel’s attendance at the
    psychosexual evaluation would have resulted in no confession is pure speculation.”
    AFFIRMED.
    3
    

Document Info

Docket Number: 07-36071

Citation Numbers: 383 F. App'x 680

Judges: Thompson, McKeown, Timlin

Filed Date: 6/14/2010

Precedential Status: Non-Precedential

Modified Date: 11/5/2024