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Smith v. McKinney

United States District Court, N.D. Iowa, Central Division

November 7, 2014

LEE ANDREW SMITH, Petitioner,
v.
JAMES MCKINNEY, Warden, Fort Dodge Correctional Facility, Respondent.

REPORT AND RECOMMEDATION ON PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254

LEONARD T. STRAND, Magistrate Judge.

I. INTRODUCTION

On June 28, 2006, Lee Andrew Smith plead guilty in the Iowa District Court for Black Hawk County to three felony charges. He was sentenced to prison for up to forty years, a sentence agreed to by the parties during plea negotiations. Smith later challenged his guilty plea through various state court proceedings. The Iowa District Court granted, in part, his application for postconviction relief (PCR), but the Iowa Court of Appeals reversed that ruling and denied the application in its entirety.

On June 28, 2011, Smith filed a pro se petition (Doc. No. 7) for writ of habeas corpus in this court pursuant to 28 U.S.C. § 2254. This action was stayed (Doc. No. 18) for a lengthy period of time, at Smith's request, because a related state court motion remained pending. After the stay was lifted, Smith filed a merits brief (Doc. No. 51) on April 9, 2013. Respondent James McKinney (Respondent) filed his merits brief (Doc. No. 52) on June 7, 2013. Smith filed a supplemental memorandum (Doc. No. 85) on May 22, 2014, and Respondent filed a response (Doc. No. 86) on June 25, 2014. The petition is fully submitted and ready for decision. The Honorable Mark W. Bennett, United States District Judge, has referred the petition to me for preparation of a report and recommended disposition.

A. Factual Background

The Iowa Court of Appeals summarized the factual background of Smith's trial, guilty plea and motion in arrest of judgment in its opinion on Smith's PCR appeal. Absent rebuttal by clear and convincing evidence, I must presume that any factual determinations made by the Iowa courts were correct. 28 U.S.C. § 2254(e)(1); see Bell v. Norris, 586 F.3d 624, 630 (8th Cir. 2009) (a federal court must deem factual findings by the state court to be presumptively correct, subject to disturbance only if proven incorrect by clear and convincing evidence). Smith has made no effort to rebut any factual findings made by the Iowa courts.[1] As such, I adopt all factual findings made by the Iowa Court of Appeals. Those include the following background and procedural facts:

In April 2006, Smith entered his ex-girlfriend's home, armed with a knife, and physically and sexually assaulted her. On April 16, 2006, the State charged Smith with first-degree burglary in violation of Iowa Code sections 713.1 and 713.3 (2005) (Count I), third-degree sexual abuse, enhanced as a habitual offender, in violation of sections 709.1, 709.4, 902.8, and 902.9(2) (Count II), and domestic abuse assault causing bodily injury, enhanced as a habitual offender, in violation of sections 708.2A(4), 902.8, and 902.9(2) (Count III).
Before trial, the State offered Smith a plea deal that would have resulted in a twenty-five year prison sentence. The State also indicated that if Smith did not take the deal, it might file a first-degree kidnapping charge against him. Smith's trial attorney, Andrea Dryer, informed Smith of the State's offer and the possibility of a first-degree kidnapping charge, but also told Smith she did not believe the State would have a strong kidnapping case.
Smith declined the plea offer, and the case proceeded to trial on June 27, 2006. During the victim's testimony, Smith leaned over to Dryer and whispered loudly that he "wanted this to stop" and didn't want the victim to "go through this anymore." Smith then repeated himself, speaking loudly enough that Dryer believed some of the jurors had heard. Dryer told the trial judge that she and her client needed a break. A recess was called, after which the State and Smith negotiated a plea bargain. Pursuant to the plea agreement, Smith pled guilty to all three counts, and the State recommended a sentence of twenty-five years on Count I, fifteen years on Count II, and fifteen years on Count III, with the sentences on Counts II and III to run concurrent to each other but consecutive to the sentence on Count I.
During the required Iowa R.Crim. P. 2.8(2)(b) colloquy, Smith stated he was forty-nine years of age, had a high school education, and understood the charges against him. He further indicated that he was pleading guilty in order to avoid a first-degree kidnapping charge and the lifetime prison sentence that would result if he were convicted thereon. The judge informed Smith that he would have to take a batterer's education class, register as a sex offender, and pay a civil penalty. Smith was not told he would be subject to mandatory lifetime supervision under Iowa Code section 903B.1 (Supp.2005). The district court accepted Smith's plea.
Smith requested immediate sentencing. The judge advised Smith that if he was sentenced immediately, he would waive his right to file a motion in arrest of judgment and could not challenge any defects in the plea proceedings. The colloquy indicates Smith understood he was waiving that right. The court then sentenced Smith to the forty-year sentence recommended by the prosecution, consisting of twenty-five years on Count I plus fifteen years each on Counts II and III, the sentences on the latter two counts running concurrently. The sentence imposed by the court did not include the mandatory section 903B.1 lifetime parole term.
Later, the district court entered an order finding that Smith's sentence did not comply with section 903B.1, set it aside, and scheduled a resentencing hearing for December 18, 2006. At that time, Smith asked to withdraw his guilty plea, and the hearing was continued to January 16, 2007. Five days before the scheduled resentencing hearing, Smith filed a motion in arrest of judgment and a formal application to withdraw his guilty plea. The district court then entered an order granting Smith a new trial, holding that: (1) the omission of the section 903B.1 lifetime parole term was an illegal sentence that could be corrected at any time; (2) Smith was not informed of the section 903B.1 sentence, causing his plea to be unknowing; and (3) the improper plea invalidated the entire agreement and not just the sexual assault plea. The State appealed. On appeal, the supreme court found Smith had waived his right to file a motion in arrest of judgment and remanded the case for resentencing, but stated that Smith could bring a post-conviction relief action challenging his guilty plea following resentencing. State v. Smith, 753 N.W.2d 562, 565 (Iowa 2008).
After procedendo issued, the district court resentenced Smith as before to forty years' imprisonment, consisting of twenty-five years on the burglary charge, and fifteen years on the sexual abuse and domestic abuse assault charges to be served concurrently. The court added the lifetime parole term required by section 903B.1.

Smith v. State, 791 N.W.2d 712, 2010 WL 4867384, at *1-2 (Iowa Ct. App. 2010) (unpublished table decision) (hereafter the PCR Appeal Decision) [footnote omitted]. Additional factual findings made by the Iowa Court of Appeals will be discussed, as necessary, infra.

B. Procedural Background

1. State Court Proceedings

Smith was charged with first-degree burglary (Count I), third-degree sexual assault, enhanced as a habitual offender (Count II) and domestic abuse assault causing bodily injury, enhanced as a habitual offender (Count III). He rejected a plea offer before trial. The case proceeded to trial, during which Smith was represented by Andrea Dryer. While the first witness was testifying, Smith interrupted the trial and, after conferring with his attorney, announced he wanted to plead guilty. On June 28, 2006, he plead guilty to all three charges. The plea agreement included a recommended sentence of twenty-five years on Count I, fifteen years on Count II and fifteen years on Count III, with the sentences on Counts II and III running concurrently but consecutively to Count I, for a total of forty years imprisonment.

After the district court accepted his guilty plea, Smith requested immediate sentencing. The trial judge explained that by accepting immediate sentencing, Smith would give up his right to file a motion in arrest of judgment. Smith indicated he understood he waived that right and was then sentenced in accordance with the parties' recommendation. The court did not inform Smith that pursuant to Iowa Code § 903B.1, [2] he would be subject to a mandatory lifetime term of parole supervision as a result of his guilty plea to Count II - the sexual assault charge. Nor did the court impose that sentence.

On October 31, 2006, the Chief Judge of the First Judicial District, sua sponte, entered an order finding Smith's sentence did not comply with section 903B.1 and requiring that Smith be resentenced in compliance with the law. On November 15, 2006, the Iowa District Court entered an order setting aside Smith's original sentence and scheduled resentencing for December 18, 2006. During that hearing, Smith requested to withdraw his guilty plea based on the failure to inform him of the mandatory lifetime supervision requirement. The court continued resentencing to January 16, 2007. On January 11, 2007, Smith filed a motion in arrest of judgment and application to withdraw his guilty plea. The court granted his motion, finding that the lifetime parole term was a direct consequence of his plea and the failure to inform him of that direct consequence rendered his plea unknowing and illegal. The court ordered a new trial on all counts, finding that this defect invalidated the entire plea.

a. Direct Appeal

The State appealed the district court's order, arguing that the court improperly considered Smith's motion in arrest of judgment because Smith had waived the right to file such a motion during the original sentencing. On July 25, 2008, the Iowa Supreme Court reversed the district court's judgment. State v. Smith, 753 N.W.2d 562 (Iowa 2008). The Court held that Smith waived his right to file a motion in arrest of judgment and that this waiver continued to apply at the time of his resentencing. The Court remanded the case for the sole purpose of resentencing Smith. Id. at 565. The Court noted that Smith could then challenge his guilty plea through a PCR action. Id. On remand, the district court resentenced Smith as before, imposing imprisonment of up to forty years, and added the lifetime parole term in accordance with section 903B.1.

b. Postconviction Relief Proceedings

i. Iowa District Court Decision

Smith filed his PCR application in the Iowa District Court on September 28, 2009. He argued that he received ineffective assistance of counsel in that (1) he was coerced into pleading guilty and (2) his counsel failed to file a motion in arrest of judgment raising the district court's failure to advise him of the mandatory lifetime parole requirement. The district court held an evidentiary hearing on September 28, 2009, and ruled on September 29, 2009. The court rejected Smith's claim that he was coerced into pleading guilty, noting that during the victim's trial testimony Smith told Dryer - in a voice loud enough for jurors to hear - that he did not want to put the victim through the stress of testifying and wanted to plead guilty. The court credited Dryer's testimony that at no time did she indicate a lack of faith in Smith's case or tell Smith that he should plead guilty.

The district court found for Smith on his second ineffective assistance of counsel claim, finding it was a breach of duty for his counsel to not inform him that he would be subject to mandatory lifetime parole. The court further found there was sufficient prejudice to require vacating Smith's plea with regard to Count II, stating:

The court is not able to accept the State's argument that had Smith been so informed, it would not have mattered and he would have entered a guilty plea to Count II [sexual abuse]. The court accepts Smith's testimony that had he been aware of the applicability of ...

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