Jeffrey Welton Nunes v. G.A. Mueller, Warden

350 F.3d 1045 Jeffrey Welton NUNES, Petitioner-Appellee, v. G.A. MUELLER, Warden, Respondent-Appellant. No. 03-15509. United States Court of Appeals, Ninth Circuit. Argued and Submitted August 13, 2003 — San Francisco, California. Filed December 1, 2003. 1 COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Morris Beatus, Deputy Attorney General, San Francisco, California, argued the case for the respondent-appellant and was on the briefs. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General and Peggy S. Ruffra, Supervising Deputy Attorney General were also on the briefs. 2 Daniel J. Broderick, Chief Assistant Federal Defender, San Francisco, California, argued the case for the petitioner-appellee and was on the brief. Quin Denvir, Federal Defender, Sacramento, California, was also on the brief. 3 Appeal from the United States District Court for the Northern District of California; Laurence K. Karlton, District Judge, Presiding. D.C. No. CVS-98-0106-LLK. 4 Before: REINHARDT and GRABER, Circuit Judges, and SHADUR, * District Judge. 5 Opinion by Judge SHADUR; Dissent by Judge GRABER. OPINION…

Opinion by Judge SHADUR; Dissent by Judge GRABER.

Folsom State Prison Warden Glenn A. Mueller (“Mueller”) appeals the district court’s order granting habeas corpus relief under 28 U.S.C. § 2254 1 to Folsom prisoner Jeffrey Welton Nunes (“Nunes”). That relief was predicated on Nunes’ claim that he had received ineffective assistance of counsel during the plea bargaining process, and it resulted in a direction to the state (1) to vacate Nunes’ conviction for second degree murder and (2) to reinstate its plea offer of voluntary manslaughter. We agree with the district court that Nunes’ counsel failed to provide constitutionally adequate assistance, but we find that the relief granted should be modified: We remand to the district court for the entry of an order releasing Nunes unless the state offers him the same terms that he would have received under the original plea offer, and then for the conduct of further proceedings consistent with this opinion.

Background

On August 28, 1989 Nunes was charged with one count of murder and three counts of assault with a firearm for the 1988 shooting of a man he found sleeping in his estranged wife’s bedroom. In Nunes’ first trial in 1989 the…

dissenting:

I respectfully dissent.

Federal habeas corpus relief is available to Petitioner only if the state court’s “adjudication of [his] claim resulted in a decision that was contrary to,[ 1 ] or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254 (d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” id. § 2254(d)(2). In this case, the facts on which the state court relied to hold that Petitioner failed to make out a prima facie case of prejudice *1006 are supported by the record, and the prejudice analysis that the state court ap plied — In re Alvernaz, 2 Cal.4th 924 , 8 Cal.Rptr.2d 713 , 830 P.2d 747, 756 (1992)— is consistent with Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Therefore, we may grant relief only if the state court’s application of Alvemaz to the facts before it was objectively unreasonable. It was not.

Petitioner claims ineffective assistance of counsel in failing to communicate a plea bargain accurately. 2 The majority properly identifies…