Blackford v. Oregon Board of Parole & Post-Prison Supervision , 584 F. App'x 756 ( 2014 )

FILED
NOT FOR PUBLICATION SEP 09 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM C. BLACKFORD, No. 13-35079
Petitioner - Appellant, D.C. No. 3:09-cv-00120-AC
v.
MEMORANDUM*
OREGON BOARD OF PAROLE AND
POST-PRISON SUPERVISION,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, Senior District Judge, Presiding
Argued and Submitted August 27, 2014
Seattle, Washington
Before: NOONAN, GRABER, and CHRISTEN, Circuit Judges.
William C. Blackford appeals the district court’s denial of his petition for a
writ of habeas corpus. Our review is de novo, Babb v. Lozowsky, 719 F.3d 1019,
1025-26 (9th Cir.), cert. denied, 134 S. Ct. 526 (2013), and 28 U.S.C. § 2253confers our jurisdiction.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. As an initial matter, there is no procedural bar to our consideration of
Blackford’s ineffectiveness claim in its entirety. At all stages of state
postconviction review, Blackford alleged that his trial counsel had been
constitutionally ineffective for failing to inform him of the “consequences” of his
guilty plea. Before the Oregon Court of Appeals in particular, Blackford’s brief
referred to several of the release conditions, explaining that trial counsel “did not
tell [Blackford] that he would have to give up hunting, give up alcohol, and have
no contact with minors.” Blackford’s ineffectiveness claim, therefore, was “fairly
presented to the state courts.” Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir.
2013) (internal quotation marks omitted).
2. Blackford cannot show that the Oregon state court’s 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).
At the time when the state postconviction trial court rendered its decision,
the Supreme Court had not clearly established that Strickland v. Washington, 466
U.S. 668 (1984), even applies where counsel fails to inform his client of collateral
consequences of conviction, such as sex offender registration and post-prison
conditions. See Cullen v. Pinholster, 131 S. Ct. 1388, 1399 (2011) (“State-court
2
decisions are measured against [the Supreme] Court’s precedents as of the time the
state court renders its decision.” (internal quotation marks omitted)). It was not
until Padilla v. Kentucky, 559 U.S. 356, 365-66 (2010), decided more than three
years after the state court’s decision in this case, that the Court held for the first
time that counsel could be constitutionally ineffective for failing to inform his
client of a non-criminal consequence of conviction—there, deportation. See
Chaidez v. United States, 133 S. Ct. 1103, 1111 (2013) (holding that the Court in
Padilla “announced a ‘new rule’”); id. at 1108 n.5 (noting that “sex offender
registration” is “commonly viewed as collateral”).
Blackford’s claim fails for this reason alone. See Brewer v. Hall, 378 F.3d
952, 955 (9th Cir. 2004) (“If no Supreme Court precedent creates clearly
established federal law relating to the legal issue the habeas petitioner raised in
state court, the state court’s decision cannot be contrary to or an unreasonable
application of clearly established federal law.”).
Even if Strickland were to apply, Blackford’s petition would fail under
Strickland’s prejudice prong. See Strickland, 466 U.S. at 692 (“[A]ny deficiencies
in counsel’s performance must be prejudicial to the defense in order to constitute
ineffective assistance under the Constitution.”). To establish prejudice, a petitioner
“must show that there is a reasonable probability that, but for counsel’s errors, he
3
would have pleaded not guilty and would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985). Here, Blackford’s overriding concern was
avoiding the risk of “doing a decade or more in prison.” Thus, the state court’s
finding that “the evidence shows that [Blackford] was making a difficult choice,
but one that was rational under the circumstances,” was not unreasonable, and
Blackford’s Strickland argument fails under the prejudice prong.
AFFIRMED.
4