Somphalavanh Sophanthavong v. Joan Palmateer, Superintendent

378 F.3d 859 Somphalavanh SOPHANTHAVONG, Petitioner-Appellant, v. Joan PALMATEER, Superintendent, Respondent-Appellee. No. 02-35922. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 3, 2003. Filed April 12, 2004. Amended August 3, 2004. COPYRIGHT MATERIAL OMITTED Barbara L. Creel, Assistant Federal Public Defender, Portland, OR, for the petitioner-appellant. Timothy A. Sylwester, Assistant Attorney General, Salem, OR, for the respondent-appellee. Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, District Judge, Presiding. D.C. No. CV-00-01430-MRH. Before ALARCÓN, FERGUSON, and RAWLINSON, Circuit Judges. Opinion by Judge Alarcón; Dissent by Judge Ferguson ALARCÓN, Circuit Judge. 1 Somphalavanh Sophanthavong appeals from the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 . Mr. Sophanthavong contends that the district court erred in denying his claim that he was denied effective assistance of counsel in violation of the Sixth and Fourteenth Amendments when his trial counsel (1) misrepresented the applicability of Oregon's "Second Look" statute to his sentence; (2)…

Opinion by Judge Alarcon; Dissent by Judge Ferguson

Somphalavanh Sophanthavong appeals from the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 . Mr. Sophanthavong contends that the district court erred in denying his claim that he was denied effective assistance of counsel in violation of the Sixth and Fourteenth Amendments when his trial counsel (1) misrepresented the applicability of Oregon’s “Second Look” statute to his sentence; (2) failed to explain that his guilty plea required him to stipulate to a departure sentence greater than the presumptive sentence; and (3) erroneously advised him that he could be convicted of aggravated murder and face a sentence of thirty years.

We affirm because Mr. Sophanthavong has failed to prove that the state court’s decision was contrary to or an unreasonable application of federal law, ©r based on an unreasonable determination of the facts in light of the evidence presented.

I

On August 1, 1994, at the age of sixteen, Mr. Sophanthavong participated in a burglary and robbery. During the burglary and robbery, the victim was killed. The State charged Mr. Sophanthavong with aggravated murder, murder,…

dissenting.

When he pled guilty to felony murder, as his lawyer advised him to do, Somphala-vanh Sophanthavong was seventeen years old. That guilty plea was neither knowing nor voluntary. Because the majority treats this juvenile defendant as though he had the maturity of an adult in its evaluation of the voluntariness of his guilty plea, I dissent.

Somphalavanh’s guilty plea was not knowing or voluntary because he was denied effective assistance of counsel when (1) his trial lawyer misadvised him that he could be convicted of aggravated murder and face a sentence of thirty years; (2) his lawyer misadvised him that the Second Look statutes would apply to his sentence; and (3) he unknowingly stipulated to a sentence greater than the presumptive sentence.

1. Aggravated murder

The majority writes that, under Oregon law, “an individual can be convicted of aggravated murder when he or she participated in a burglary or robbery that resulted in a criminal homicide that was committed in an effort to conceal the commission of a crime, even though the accused did not commit the homicide.” This is simply not true. In State v. Cohen, 42 Or.App. 297 , 600 P.2d 892, 894 (1979), the Oregon…