Habeas Petitioner's Counsel Should Have Known About State Cases That Helped Petitioner

Heard v. Addison, 2013 WL 4734085 (9/4/13) (Okl.) (Published) - A nice § 2254 ineffective-assistance-of-counsel ("IA") win, although it's unclear whether it will help the client in the long run. The petitioner positioned himself in a Wal-Mart to be able to look under the dresses of two girls who were wearing undergarments. He pleaded guilty to a violation of a statute that prohibited "looking upon the body or private parts of a child under 16 in a lewd and lascivious manner." His attorney did not inform him before he pleaded guilty that the Oklahoma Court of Criminal Appeals ("OCCA") had issued two unpublished decisions interpreting the statute to include only looking at naked private parts. The 10th accepted this as true because the petitioner filed an affidavit to that effect and the state never disputed it. He received a 25-year sentence as called for by the plea agreement. A month later the petitioner heard about one of the favorable decisions. He sought habeas relief in state court on IA grounds but the OCCA ruled the statute covered looking at clothed body parts as well. The 10th holds the OCCA's decision was contrary to Strickland because it assessed counsel's performance in light of its post-conviction determination that the petitioner's acts violated the statute. Strickland requires review as of the time of counsel's performance. At that time counsel had a duty to find the unpublished cases and tell the petitioner about them no matter how good the plea offer or at least figure out the likely statutory interpretation or constitutional defense in light of the statute's language. The 10th points out the OCCA's interpretation would extend to, for example, dance recitals and community pools "with only an officer's personal judgment as to the lewdness of a glance as the limiting principle". Oklahoma lawyers had easy access to unpublished decisions. And there was prejudice. At the time of the plea it would have been rational for the petitioner to reject the plea offer of 25 years, given all the good arguments counsel could have made pretrial and for jury instructions during trial and the harsh, almost-life, sentence for a 48 year-old man that the state offered. And petitioner's swift actions once he learned of the unpublished decisions shows he would have rejected the plea offer. For the same reasons, counsel acted unreasonably in failing to advise the petitioner to appeal. Unfortunately, now that his plea will be vacated, the petitioner is still faced with charges under the horrible OCCA interpretation of the statute.