Hoyt Crace v. Robert Herzog

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HOYT CRACE, No. 13-35650 Petitioner-Appellee, D.C. No. v. 3:12-cv-05672-RBL

ROBERT HERZOG,

Respondent-Appellant. OPINION

Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding

Argued and Submitted October 7, 2014—Seattle, Washington

Filed August 14, 2015

Before: Richard A. Paez, Jay S. Bybee, and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Bybee; Dissent by Judge Callahan SUMMARY*

Habeas Corpus

The panel affirmed the district court’s judgment granting a habeas corpus petition brought by a Washington state prisoner who was convicted by a jury of two misdemeanor offenses and one count of attempted second degree assault, a felony, and received a life sentence without the possibility of parole under Washington’s three-strikes law.

Petitioner claimed that his trial counsel was deficient for failing to request a jury instruction on “unlawful display of a weapon,” a lesser included offense of second degree assault, because, had he been…

Opinion by Judge BYBEE; Dissent by Judge CALLAHAN

*843 OPINION

In 2004, a Washington jury convicted Hoyt Crace of two misdemeanor offenses and one count of attempted second-degree assault — a felony — stemming from an incident in which he brandished a sword at a police officer. The attempted assault conviction constituted Crace’s third strike under Washington’s three-strikes law, and he received a life sentence without the possibility of parole.

After Crace’s conviction became final, he brought a claim for postconviction relief under Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), arguing that his trial counsel was deficient for failing to request a jury instruction on “unlawful display of a weapon,” a lesser included offense of second degree assault. Had Crace been convicted of unlawful display of a weapon, rather than attempted second-degree assault, he would have avoided a third strike.

The Washington Supreme Court rejected Crace’s Strickland claim. The court held that, because Crace’s jury had found him guilty beyond a reasonable doubt of attempted second-degree assault, Strickland required a reviewing court to presume that the jury would…

dissenting:

The Washington Supreme Court had to decide what effect, if any, defense counsel’s failure to request a jury instruction on a lesser included offense had on Crace’s conviction for attempted assault. The Washington Supreme Court held that because sufficient evidence supported Crace’s conviction for attempted assault, the presence of a second lesser included offense instruction would not have changed the outcome of his trial. My review of the applicable Supreme Court law and the conflicting decisions by other courts on this issue compels me to conclude that the Washington Supreme Court’s decision was not contrary to or an unreasonable application of clearly established Supreme Court law. See 28 U.S.C. § 2254 (d)(1). Therefore, as AEDPA compels us to defer to the state court, I respectfully dissent.

I

Robert Crace is a persistent offender in Washington. His rap sheet discloses a burglary in 1981, robbery in 1981, two counts of robbery in 1988, robbery in 1991, burglary and possession of stolen property in 1995, burglary in 1999, and attempting to elude a police officer in 2002. The robberies in 1988 and 1991 were violent crimes that constituted “strikes” under…