Habeas Petitioner Gets Remand for Evidentiary Hearing on IAC Claim

Milton v. Miller, 2014 WL 892890 (3/7/14) (Okl.) (Published) - A habeas petitioner gets a remand for an evidentiary hearing on an ineffective assistance (IA) of counsel claim regarding plea bargaining. The petitioner asserted that his appellate counsel should have raised trial counsel's incompetence for failing to tell him about a plea deal for 23 or 25 years when he ended up going to trial and getting a couple of life sentences, one of them without parole. At a pretrial hearing the judge mentioned that Mr. Milton had been offered a 23-year sentence prior to the preliminary hearing and had turned it down. Mr. Milton told his lawyer, who was different from the preliminary hearing lawyer, that he never heard about that offer. The prosecutor had notes which corroborated that an offer of 25 years had been made. The defense lawyer mentioned that to the judge who said: "well, that's water under the bridge now because the offer is now 40 years," which Mr. Milton didn't accept. In post-conviction proceedings, the state filed an affidavit from the preliminary-hearing lawyer who insisted he had communicated the offer and Mr. Milton had rejected it.
The Oklahoma Court of Criminal Appeals (OCCA) applied the wrong appellate IA standard, saying failing to recognize an issue regardless of merit is not enough to obtain relief. The 10th held that standard was contrary to clearly established Supreme Court law. No test that ignores the merits of an omitted claim comports with federal law. Because the OCCA screwed up, de novo review, rather than stringent AEDPA deference, applied. This was true with respect to the OCCA's ruling regarding the prejudice prong because it was tainted by its performance prong error. The federal d. ct. had rejected Mr. Milton's claim based on the lawyer's affidavit. The 10th rules that Mr. Milton met the performance prong because there was clear state law saying defense lawyers must communicate plea offers to their clients. So appellate counsel should have raised that issue in light of the record indicating Mr. Milton didn't hear about the offer. As for the prejudice prong, it was wrong for the d. ct. to simply accept the lawyer's word. There was a dispute of fact that had to be resolved at an evidentiary hearing. If Mr. Milton was believed, he would be entitled to relief because he alleged he would have accepted the offer had he heard about it and so would have prevailed on appeal after an evidentiary hearing in state court. The 10th holds Cullen v. Pinholster, 131 S. Ct. 1388 (2011), which requires federal habeas courts to only look at evidence before the state courts, does not apply here. Mr. Milton sought evidentiary hearings in state court but was denied based on reasoning that was contrary to S. Ct. law. So the d. ct. could consider new evidence.