Lewis Price, III v. Leroy Kirkegard

FILED
NOT FOR PUBLICATION MAY 19 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEWIS PRICE, III, No. 13-35155
Petitioner - Appellant, D.C. No. 1:12-cv-00022-CSO
v.
MEMORANDUM*
LEROY KIRKEGARD; TIMOTHY C.
FOX, Attorney General,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Montana
Carolyn S. Ostby, Magistrate Judge, Presiding
Submitted May 4, 2015**
Seattle, Washington
Before: KLEINFELD, GOULD, and CHRISTEN, Circuit Judges.
Price argues that the prosecution breached the plea agreement in this case by
submitting letters to the sentencing judge that were written by the victim and by a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
witness.1 He relies on Santobello v. New York, 404 U.S. 257 (1971). Price urges
us to adopt his understanding of the plea agreement, which he contends precluded
the prosecution from presenting any evidence other than live testimony from the
probation officer and the victim. We do not adopt Price’s reading of the plea
agreement or agree that the prosecution breached it. The prosecution
recommended the agreed-upon sentence at sentencing, and nothing in the plea
agreement’s plain language restricted submission of the victim’s and witness’s
letters. Montana law allows victims to present statements either in writing or under
oath during sentencing, and the parties’ plea agreement expressly contemplated
that the parties would present evidence at sentencing. Mont. Code. Ann. § 46-18-
115; Plea Agreement ¶ 2 (“The parties agree that at the sentencing hearing, the
State and the Defendant may present and argue evidence in support of the plea
agreement.”). Price’s Santobello claim fails.
Price further argues that his counsel was ineffective for failing to object to
the letters’ submission at sentencing. We disagree. There is a “doubly deferential”
standard that federal courts apply to state court decisions when the Anti-Terrorism
1
The government argues that Price’s breach of plea agreement claim is
procedurally defaulted. We need not reach this issue, because this claim “clearly
fails on the merits.” Flournoy v. Small, 681 F.3d 1000, 1004 n.1 (9th Cir. 2012);
see also Lambrix v. Singletary, 520 U.S. 518, 525 (1997).
2
and Effective Death Penalty Act (AEDPA) applies to a § 2254 petitioner’s
Strickland claim. Price has not shown that there is no “reasonable argument that
counsel satisfied Strickland’s deferential standard.” Harrington v. Richter, 562
U.S. 86, 89 (2011); see generally Strickland v. Washington, 466 U.S. 668 (1984).
Trial counsel did not object to the letters’ submission generally, but he did contest
parts of them. There is no reasonable argument that Price’s counsel’s decision not
to object to the letters’ submission at sentencing fell outside “the wide range of
reasonable professional assistance” that the Sixth Amendment requires.
Strickland, 466 U.S. at 689. Also, upon any objection to the prosecutor submitting
the letters of witness and victim, it is reasonable to think that such objection would
have been overruled and the letters considered at sentencing. The state appeals
court reasonably could have concluded that neither the deficient lawyer nor the
prejudice element of ineffective assistance of counsel under Strickland was
satisfied. Price’s ineffective assistance of counsel claim fails.
AFFIRMED.
3