Decided: July 8, 2015
In this post-conviction relief case, the Fourth Circuit found that the district court had reasonably determined Gregory Christian’s trial attorney did not render ineffective assistance of counsel regarding West Virginia’s recidivist statute. On this basis, the Fourth Circuit affirmed the district court’s denial of federal habeas corpus relief to Christian.
In June, 2002, a Huntington, West Virginia restaurant and gas station were robbed at gunpoint. The responding officers were told that the suspects might be in a particular apartment. Upon arriving at the apartment, the officers found the suspect vehicle parked in front. When officers entered the apartment, Christian who was hiding inside, began shooting. One of the officers suffered a gunshot wound to the chest, and Christian subsequently surrendered.
Public defender Gerald Henderson was appointed to defend Christian. Christian and Richard Adams, who was also in the apartment, were indicted under West Virginia law for two counts of first-degree robbery involving use of a firearm, and Christian was also indicted for malicious assault on a police officer. In addition, Christian was indicted separately under federal law for possession of a Molotov cocktail, and possession of a firearm by a convicted felon. West Virginia law provides for lengthening of a sentence for a second felony conviction, and for a sentence of life in prison without parole eligibility for 15 years for a third felony conviction. Under West Virginia rules, Christian had one prior felony, and thus his sentences for the robberies and the malicious assault could have been lengthened.
Early in the plea negotiations, Christian made it clear that, due to his declining health, he wished to serve as much of his time as possible in the federal penitentiary, where he felt conditions were better. The state prosecutor was willing to consider a plea where state time was served concurrent to federal time, but not until the federal sentence was actually received. In May, 2003, after pleading guilty to the federal charges, Christian received a federal sentence of only 63 months, some 1/3 of the sentence the federal public defender expected, which meant that Christian would be unable to serve the majority of his sentence in federal prison. In August of 2003, Christian agreed to a plea deal in which the state would recommend 25 year sentences for each robbery, served concurrently, and with credit for time already served, and 3-15 years for malicious assault, all state time to be served after the federal time. The state also agreed to various conditions, including that there would “‘BE NO RECIDIVIST’” filed.
On September 3, 2003, Christian appeared in state court for his guilty plea hearing. At first, it appeared he would plead guilty only to malicious assault, but he ultimately entered a guilty plea on all counts after confirming to the court his understanding of the possible penalty range for each offense, and confirming that he was pleased with his attorney’s representation. The trial court explained the consequences for any future third felony violation. The court then sentenced Christian in line with the plea agreement. Christian did not appeal.On September 3, 2003, Christian appeared in state court for his guilty plea hearing. At first, it appeared he would plead guilty only to malicious assault, but he ultimately entered a guilty plea on all counts after confirming to the court his understanding of the possible penalty range for each offense, and confirming that he was pleased with his attorney’s representation. The trial court explained the consequences for any future third felony violation. The court then sentenced Christian in line with the plea agreement. Christian did not appeal.
In July of 2007, Christian filed a habeas corpus petition in state court in which he denied nearly all the factual representations he had made at his plea hearing. The state court denied Christian’s petition in its entirety, largely due to lack of credibility and lack of proof. Christian appealed this denial to the Supreme Court of Appeals of West Virginia, raising for the first time an ineffective assistance of counsel claim based on incorrect advice about the applicability of the recidivist statute. Christian claimed that he had told Henderson that he had two prior felonies, but that Henderson did not investigate, and that on the day of his plea, Henderson told him that the state would enhance his sentence under the recidivist statute if he pleaded guilty only to malicious assault. Christian claimed to believe this meant that the state court would sentence him to a mandatory life sentence if he pleaded guilty only to malicious assault. The appellate court affirmed the state court. Christian then filed a federal habeas petition to the district court on identical grounds, and added an additional claim that Henderson effectively advised him that he would get a life sentence if he pleaded guilty only to malicious assault, and did not refer to the lengthened sentence under the recidivist statute. The district court denied the petition, finding Henderson did not violate the constitution by not investigating Christian’s prior felonies. The district court granted a certificate of appealability on the issue of whether Henderson rendered ineffective assistance of counsel in advising Christian on the applicability of the West Virginia recidivist law.
The Fourth Circuit first held that Christian had exhausted his state court remedies before appealing to the West Virginia Supreme Court of Appeals. Though Christian raised the ineffective assistance of counsel claim for the first time to that court, he had offered testimony on this point at the state court. Further, the appellate court noted that it had considered all of the arguments in Christian’s briefs.
The Fourth Circuit next summarized Christian’s basic claim as being that Henderson failed to investigate Christian’s prior felonies, and incorrectly advised Christian that conviction on any of the three counts against him in federal court would lead to a mandatory sentence of life in prison with no parole eligibility for 15 years. The Fourth Circuit found that while Christian may have interpreted Henderson’s advice prior to the plea hearing as meaning a mandatory life sentence would be imposed if he pleaded guilty to only malicious assault, there was no evidence that Christian communicated this interpretation to Henderson. Therefore, the Fourth Circuit reviewed the state court denial of habeas only to see whether it was an unreasonable finding based on the standards for ineffective assistance of counsel.
The Fourth Circuit then held that the appellate court did not err in denying Christian’s habeas petition based on his ineffective assistance of counsel claim. The Court first found that there is no duty for counsel to investigate a prior felony record during plea negotiations. Case law does not support such a duty, and there was no evidence that Henderson believed a life sentence based on the recidivist statute was involved in this case. Further, even if Henderson failed by not investigating Christian’s prior felonies, the Court found that he would still have needed to include the “‘no recidivist’” language in the plea deal to avoid a possible lengthened sentence for a second felony.
The Fourth Circuit next found that Henderson did not violate the constitution by failing to look into Christian’s felony record the morning of the plea hearing. Based on the record, the Court reasoned that, at most, Henderson properly advised Christian that if he had two prior usable felonies, he might be subject to a recidivist sentence of life in prison. Such truthful advice did not meet the standard for constitutional deficiency.
The Fourth Circuit also found that the appellate court could reasonably have rejected Christian’s claim that he believed he was subject to a life sentence under the recidivist statute. Christian’s testimony to this effect was conclusory, self-serving, and vague, or did not refer to Henderson’s advice about the recidivist statute, or to the morning of the plea hearing. Henderson’s own testimony, which more strongly supported Christian’s claim, was not strong enough to overcome the benefit of the doubt accorded to counsel’s representation, and the state court’s view on evidence. Further, Christian’s behavior in the months leading up to the plea hearing undercut his claim that he believed pleading guilty to only one of the three counts would lead to a mandatory life sentence. Christian confirmed at the hearing that he understood the court believed him to have only one prior felony, and in a subsequent letter to Christian, Henderson noted that the state would not file a recidivist based on Christian’s previous felony.
Finally, the Fourth Circuit held that the appellate court could reasonably have believed that any errors on the part of Henderson were not the but-for cause of Christian pleading guilty rather than going to trial. Christian never claimed that if not for the alleged ineffective assistance, he would have pleaded not guilty and gone to trial. Even if he had made such a claim, the court could have found it not credible. Further, going to trial on the robbery counts would not have been a rational choice given the evidence of Christian’s guilt, and the likely sentence.
On the above basis, the Fourth Circuit affirmed the Supreme Court of Appeals of West Virginia’s denial of Christian’s habeas corpus petition.
Judge Gregory dissented from the Court’s opinion. In his dissent, Judge Gregory argued that Henderson gave bad legal advice about the effect of the recidivist statute on Christian’s sentence, and Christian relied on that advice in agreeing to plead guilty.
Katherine H. Flynn