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Smith v. McKinney

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

March 31, 2015

LEE ANDREW SMITH, Petitioner,
v.
JAMES McKINNEY, Respondent.

MEMORANDUM OPINION AND ORDER REGARDING OBJECTIONS TO MAGISTRATE JUDGE'S RECOMMENDED DISPOSITION OF STATE PRISONER'S HABEAS PETITION

MARK W. BENNETT, District Judge.

Petitioner Lee Andrew Smith's (Smith) Petition For Writ of Habeas Corpus Under 28 U.S.C. § 2254 is before me pursuant to a Report and Recommendation (R&R) of United States Magistrate Judge Leonard T. Strand recommending that the petition be denied. Judge Strand's R&R was filed on November 7, 2014 (docket no. 88). Smith filed objections to the R&R on November 14, 2014 (docket no. 89). The Respondent, James McKinney, the warden of Fort Dodge Correctional Facility, did not file any objections to the R&R. In this Memorandum Opinion and Order, I must conduct a de novo review of those parts of Judge Strand's R&R to which the respondent has objected. In doing so, I consider whether to accept, reject, or modify Judge Strand's R&R.

I. INTRODUCTION AND BACKGROUND

A. Factual Background

Absent rebuttal by clear and convincing evidence, I must presume that any factual determinations made by a state court in a state prisoner's criminal and postconviction relief cases 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 to be incorrect by clear and convincing evidence). The Iowa Court of Appeals summarized the facts underlying Smith's conviction, as follows:

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 postconviction 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, *1-*2 (Iowa Ct. App. 2010) (unpublished table decision). In further summarizing the procedural history below, I refer to the record, the applicable decisions of the Iowa district courts, Iowa Court of Appeals, and Iowa Supreme Court, Judge Strand's R&R, and the parties' briefs. In order to provide a complete picture of the procedural history, some of the facts discussed above are repeated below. I will also discuss additional facts where relevant.

B. Procedural Background

1. State proceedings

On April 13, 2006, the State charged Smith with first-degree burglary (Count I); sexual abuse in the third-degree as a habitual offender (Count II); and domestic abuse assault causing injury as a habitual offender (Count III).[1] Prior to the first and second days of trial, Smith rejected the State's offered plea bargains, which would have resulted in a twenty-five year prison term.[2] Tr. at 53. The parties proceeded to trial, and Smith was represented by Andrea Dryer (Dryer). Id. 55-56.

On June 27, 2006, Smith's trial commenced, and a jury was selected. The following morning, on June 28, 2006, the presentation of evidence began. The first witness to testify was the victim of the crimes Smith committed, Murna Wynter. Id. 56-57. According to the record, Smith decided he wanted to plead guilty during the victim's testimony. Id. 121-122. More specifically, he "whispered loudly [to Dryer] that he wanted this to stop' and didn't want the victim to go through this anymore.'" Smith, 2010 WL 4867384 at *1. A ten minute recess was held prior to the end of Wynter's direct examination. After that recess, Smith entered pleas of guilty to the three charged offenses, and he requested immediate sentencing by the district court. At that time, Smith's counsel informed the court that part of the plea deal was that "there would be no first degree kidnapping charge filed." Tr. 123.

By requesting immediate sentencing, the district court advised Smith that he waived his right to file a motion in arrest of judgment. Tr. at 133-134. The district court accepted Smith's guilty plea to all three counts, and Smith was sentenced that same day. Smith was sentenced to prison for twenty-five years on the burglary conviction; fifteen years in prison on the sexual abuse as a habitual offender conviction; and fifteen years in prison on the assault causing bodily injury as a habitual offender conviction. Id. at 136-138. Smith's sentences on Counts II and III were set to run concurrent to each other but consecutive to the sentence on Count I. Thus, Smith was sentenced to a total term of forty years imprisonment.

On October 31, 2006, Chief Judge Alan L. Pearson of the First Judicial District issued an administrative order finding that Smith's sentence did not comply with Iowa Code § 903B.1.[3] Accordingly, Chief Judge Pearson ordered the presiding judge, Judge Stephen C. Clarke of the First Judicial District of Iowa, to "promptly review the case with the parties and either enter a corrected sentence or schedule it for resentencing, whichever is appropriate." Respondent's Merits Brief at 7 (quoting Order (10-31-06)). The sentencing order was set aside and a hearing regarding the resentencing of Smith was held on December 18, 2006. At that hearing, Smith requested that his guilty plea be withdrawn. The district court continued the resentencing hearing until January 16, 2007.

On January 11, 2007, Smith filed a Combined Motion In Arrest Of Judgment And Application To Withdraw Guilty Plea. Report at 6-7. Smith sought to withdraw his guilty plea because he was not informed that he would be subject to the mandatory lifetime supervision requirement of Iowa Code § 903B.1 due to the sex abuse conviction. On March 27, 2007, Judge Stephen C. Clarke of the First Judicial District of Iowa granted Smith a new trial on three bases: (1) Smith's sentence was illegal as the sentence did not include the mandatory lifetime supervision requirement of § 903B.1 and it could be corrected at any time; (2) Smith's plea was unknowing because he was not informed of a direct consequence of his plea-that is, the mandatory lifetime supervision; and (3) Smith's entire plea agreement was invalidated, not just the plea to the sexual assault, because the plea was improper. See Order Granting New Trial (docket no. 52-1), 4-6; see also Smith, 2010 WL 4867384 at *3. The State appealed the district court's decision on April 13, 2007, to the Iowa Supreme Court. Id. at 8.

a. Direct Appeal

On July 25, 2008, in an opinion authored by Justice David S. Wiggins, Iowa's Supreme Court reversed the district court's decision. State v. Smith, 753 N.W.2d 562, 565 (Iowa 2008). Iowa's highest court held that the district court erred and abused its discretion by considering Smith's motion in arrest of judgment. Id. at 564. This is because "Smith's voluntary wavier of his right to file a motion in arrest of judgment [at his initial sentencing] continues to apply at the time of his resentencing." Id. For that reason, Iowa's Supreme Court reversed the district court's judgment granting Smith a new trial and remanded Smith's case for the sole purpose of resentencing him. Iowa's Supreme Court preserved Smith's right to file an application for postconviction relief to challenge his guilty plea. Id. at 565. On remand, the district court sentenced Smith to forty years imprisonment and added the lifetime parole term required by Iowa Code § 903B.1. Smith's filing of his postconviction relief application followed.

b. Postconviction Relief Proceedings

i. Iowa District Court Decision

On September 28, 2009, Smith filed a postconviction relief application in Black Hawk County, Iowa. In his application for postconviction relief, Smith made two primary contentions as to why he received ineffective assistance of counsel at trial: (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 supervision under § 903B.1. See Ruling On Application For Post-Conviction Relief at 12-13; see also Smith, 2010 WL 4867384 at *2; Report at 7. An evidentiary hearing was held during which Smith and Dryer testified.

The next day, Judge George L. Stigler for the First Judicial District of Iowa, ruled on Smith's application for postconviction relief. See Ruling On Application For Post-Conviction Relief at 11-15. On the one hand, the district court rejected the claim that Smith was coerced into pleading guilty. Id. at 14-15. "[Smith's attorney] testified that she at no time indicated a lack of faith in defendant's case, nor did she say to him, contrary as to defendant assertions, that he should plead guilty, " wrote the district court. Id. at 14. Smith also indicated during his plea colloquy and sentencing that he was not threatened or coerced to plead guilty. Id. The district court "reject[ed] Mr. Smith's credibility and [found] that his guilty pleas were freely, voluntarily and intelligently made without any coercion of any type, by trial defense counsel or the state." Id.

On the other hand, the district court found in Smith's favor on his other ineffective-assistance-of-counsel claim because Smith's counsel breached an essential duty by not informing Smith that he faced mandatory lifetime parole. In the district court's view, there was also sufficient prejudice to require Smith's plea to Count II to be vacated:

The court is not able to accept the state's argument that had Mr. Smith been so informed, it would not have mattered and he would have entered his guilty plea to Count II [sexual abuse]. The court accepts Mr. Smith's testimony that had he been aware of the applicability of section 903B.1, he would not have entered a plea of guilty to Count II.

Id. at 13; Smith, 2010 WL 4867384 at *3. Based on the district court's stated rationale, it vacated Smith's plea as to Count II. However, the district court declined to vacate Smith's guilty pleas and sentences on the other counts (Counts I and III) because the section 903B.1 requirement only applies to the sexual abuse count (Count II). See Ruling On Application For Post-Conviction Relief at 15. In closing, the district court found that the State, if it so decided, "may retry defendant on Count II." Id.

ii. Iowa Appellate Court Decision

Smith appealed the district court's decision arguing that, once the district court found ineffective assistance of counsel, the district court should have vacated all the convictions and sentences. Smith, 2010 WL 4867384 at *4. The State cross-appealed. The State contended that Smith's entire application should have been denied because Smith did not establish prejudice, "i.e., that there was a reasonable probability he would not have pled guilty had he been informed of the section 903B.1 sentence."[4] Id. On November 24, 2010, the Iowa Court of Appeals issued its opinion on that appeal, and the opinion was authored by Justice, then Judge, Edward M. Mansfield.[5] In that opinion, the Iowa Court of Appeals agreed with the State. Thus, the appellate court reversed the district court's decision and affirmed Smith's judgment and sentence in all respects.

In reaching that decision, the appellate court reasoned, in pertinent part, as follows:

It seems implausible to us that the lifetime special parole term would have been a dealbreaker, had Smith been told about it. Smith's own testimony at the postconviction relief hearing indicates his real concern had to do with the possibility of being charged with first-degree kidnapping, which would carry a lifetime sentence without parole[.]

Id. at *5. The appellate court continued by quoting Smith's testimony at his postconviction relief hearing, which illustrates that his real concern was the possibility of a lifetime sentence. Although Smith's testimony at his postconviction relief hearing is recited by the Iowa Court of Appeals and Judge Strand's R&R, I include his testimony here, again, for the reader's ease of locating it:

Q. If you had known that there was a special sentencing provision that required you to be on lifetime parole, would you still have pled guilty at the time you did?
A. No, maam. I wouldn't have pled guilty to that. I didn't even really want to plead guilty to the 40 years.
Q. But you did [plead guilty] because?
A. Because I was being told I was going to get a life sentence for the First Degree Kidnapping. Said I was making a mistake for going to trial.
Q. And you're saying Ms. Dryer told you that during [the victim's] testimony?
A. Those are her exact words.
Q.... you must have thought [the victim] was doing a very good job because you were concerned about being convicted of Kidnapping in the First Degree and serving life, so you took the plea.
A. I did not commit a Kidnapping First Degree. If I did, give it to me then. Where is it at?
Q. At the time she was testifying, you were the only one that interrupted the proceedings and wanted to enter a plea; correct?
A. That's wrong. My lawyer was telling me if I didn't take the deal, that I was going to get a First Degree Kidnapping and I have been through the law book and I haven't committed to First Degree Kidnapping. The only thing you can charge me with is false imprisonment.
Q. Do you recall during the plea colloquy with the judge at the time of your plea that you told him the reason you were pleading and the reason you took the plea offer is because you didn't was [sic] any life sentence so you were asking the court to accept you [sic] plea offer?
A. Yeah. I do recall that. Anybody in their right mind would accept the plea bargain if they thought they were going to get First Degree Kidnapping. They were illiterate to the law as I was at that time. I'm not illiterate to the law anymore. I know my constitutional rights now.
Q. So you were taking this [plea deal] regardless [of] whether anybody told you about lifetime parole or not. That didn't even matter to you, did it?
A. My lawyer hadn't told me the truth in trial. I wouldn't have-she had let me went on the trial, I would have pursued going to trial.
Q. What are you saying she didn't tell you the truth about?
A. What do I think she didn't tell me the truth about? She knew there wasn't never no First Degree Kidnapping I had committed anyway. You know that-I know that as of ...

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