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UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Neal Arthur Herrell,

Petitioner

-vsJames O'Neil, et al.,

Respondents.

CV-15-2416-PHX-DJH (JFM)

Report & Recommendation

on Petition for Writ of Habeas Corpus

I. MATTER UNDER CONSIDERATION

Petitioner, presently incarcerated in the Arizona State Prison Complex at 

Kingman, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 

2254 on November 25, 2015 (Doc. 1). On February 29, 2016 Respondents filed their 

Response (Doc. 13). Petitioner has not replied.

The Petitioner's Petition is now ripe for consideration. Accordingly, the 

undersigned makes the following proposed findings of fact, report, and recommendation 

pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules 

of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil 

Procedure. 

II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

A. FACTUAL BACKGROUND

In disposing of Petitioner’s first direct appeal, the Arizona Court of Appeals 

summarized the facts as follows:

On August 15, 20.08, a Phoenix Police Department Special 

Assignments Unit ("SWAT team") as well as several squads of the 

Phoenix Police Department Neighborhood Enforcement Team 

arrived at Defendant' s house in Phoenix to serve Defendant with a 

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search warrant and execute a search on the residence. The officers 

had knowledge ahead of time that there were surveillance cameras 

posted on the outside of the residence that monitored the street; 

accordingly, they took tactical precautions when approaching the 

house. 

The SWAT team did a "knock and announce" at the front 

door of the house, stating "Phoenix Police Department, search 

warrant." When no one inside the house responded, the SWAT team 

breached an outer black security door at the front entrance. 

Employing a four-foot battering ram, the officers next attempted to 

ram through the deadlock on the wooden front double doors, but 

were unable to do so after eleven attempts because the door was 

heavily reinforced with steel strips. 

The wooden doors were eventually opened by John Woodruf, 

who rented a trailer in Defendant's backyard. Woodruf and 

Defendant were the only two occupants in the western portion of the 

house when the SWAT team entered. 

Once inside the house, the officers observed an activated 

video surveillance monitor. The house had two bedrooms, one on 

the south and one on the north side. The south bedroom had a child's 

crib in it and appeared to be largely unused. The officers located no 

evidence in it.

The north bedr0om, however, contained a bed and a desk, 

and appeared to the officers to be occupied by Defendant. The room 

was full of "clutter" and had “bunch[es] of bandanas hanging from 

the ceiling, stuff [lying] out on the floor, [and] soda cans and stuff 

on the desk." The bedroom, which was not very large, was almost 

entirely filled by the bed. Defendant's cell phone and keys were 

1ocated on the bed. On the desk immediately next to the bed was a 

traffic citation made out to Defendant along with a fully-loaded .45 

caliber revolver, scales, a small bag of marijuana, a wooden box: 

containing rolling papers and baggies, additional packaging 

material, and approximately $225 in cash. Inside a closet in the 

bedroom, officers located a .22 caliber Ruger rifle and magazine 

and a .22 caliber Remington rifle, as well as a tin containing ten 

small bags of marijuana and a pill bottle filled with marijuana. On a 

gun rack affixed to the wall just outside the north bedroom, officers

located "five boxes of ammunition for various caliber guns, 

including a .45 caliber gun, a . 22 caliber gun, and a .38 caliber 

gun." 

On the day he was arrested, Defendant told the officers that 

he owned the residence and that he and his wife were living there 

and, specifically, staying in the north bedroom. In all, the officers 

recovered approximate1y 130 grams, or slightly less than five 

ounces of marijuana from Defendant’s residence. To the officers, 

the amount of drugs and the amount and type of drug paraphernalia 

involved, as well as the cameras, the weapons, and the cash located

at the house indicated that the owner intended to sell the drugs.

(Exhibit K, Mem. Dec. 5/26/11 at 2-5.) (Exhibits to the Answer, Doc. 13, are referenced 

herein as “Exhibit ___.”) 

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B. PROCEEDINGS AT TRIAL

On August 19, 2008, Petitioner was charged in Maricopa County Superior Court 

on one count of possession of marijuana for sale, two counts of misconduct involving 

weapons (one related to the simultaneous marijuana possession and the other related to 

Petitioner’s status as a prohibited possessor), and one count of drug paraphernalia. 

(Exhibit A, Complaint; Exhibit P, Mem. Dec. 1/8/13 at 2.) 

In disposing of Petitioner’s second direct appeal, the Arizona Court of Appeals 

described plea negotiations as follows:

At the settlement conference, the prosecutor agreed with 

defense counsel that she did not "think" the sentences could be 

consecutive, and defense counsel accordingly explained to Herrell 

that, if convicted, his presumptive sentence would be ten years, and 

his maximum sentence fifteen years. Herrell rejected the State's plea 

offer of a stipulated four-and-a-half year sentence, believing "the 

plea offer [was] ridiculous and explaining that he believed that he 

would be successful on a motion to suppress or at trial. At a later 

hearing on Herrell's request that he be allowed to waive counsel and 

represent himself, the prosecutor reiterated that she "believe [d)" the 

sentences on the counts "would run concurrent."

(Exhibit P, Mem. Dec. 1/8/13 at 2.)

Petitioner proceeded to trial, was convicted of all charges, and sentenced to 3.75 

years on the paraphernalia charge, and ten years on each of the other three charges. The 

trial court directed that two of the ten years sentences be consecutive, and the remainder 

be concurrent, an effective sentence of 20 years.1 (Exhibit K, Mem. Dec. 5/26/11 at 6.)

C. PROCEEDINGS ON FIRST DIRECT APPEAL

Petitioner filed a direct appeal, raising claims of improper enhancement with prior 

felonies, improper use of an eight person jury, and equitable estoppel from the 

imposition of consecutive sentences. 

The Arizona Court of Appeals rejected the first two claims, and sidestepped the 

estoppel issue, but granted relief on the consecutive sentencing, noting the State 

 

1

The Arizona Court of Appeals described all the sentences as being consecutive to each 

other. (Exhibit K, Mem.Dec. 5/26/11 at 2.) However, that court also described the 

sentence as being an effective “twenty year sentence.” (Id. at 15.) 

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conceded it was error to impose consecutive sentences on the marijuana charge and the 

related weapons charge. Accordingly, the court affirmed Petitioner’s convictions, but 

vacated his sentences and remanded for resentencing. (Exhibit K, Mem. Dec. 5/26/11.) 

Petitioner sought review from the Arizona Supreme Court, who denied review on 

November 9, 2011. The Arizona Court of Appeals issued its mandate on December 12, 

2011. (Exhibit K, Mandate.)

D. RESENTENCING

On February 2, 2012, Petitioner was again sentenced to 3.75 years on the 

paraphernalia charge, and ten years on each of the other three charges, but this time the 

court ordered that the sentence on the marijuana charge and prohibited possessor 

weapons charge be served consecutively, and the remainder of the charges to be 

concurrent to the marijuana charge. (Exhibit L, Sentence 2/2/13. See also Exhibit P, 

Mem. Dec. 1/8/13 at 3.)

E. PROCEEDINGS ON SECOND DIRECT APPEAL

Petitioner then filed a second direct appeal (Exhibit M, Opening Brief), again 

arguing the estoppel issue regarding consecutive sentences, and that he should have 

received credit for time served toward both of the consecutive sentences. The Arizona 

Court of Appeals rejected both arguments and affirmed his sentences. (Exhibit P, Mem. 

Dec. 1/8/13.) Petitioner did not seek reconsideration or review, and the Arizona Court of 

Appeals issued its mandate on February 19, 2013. (Exhibit P, Mandate.)

F. PROCEEDINGS ON POST-CONVICTION RELIEF

On April 27, 2012, during the pendency of his second direct appeal, Petitioner 

filed through counsel a Notice of Post Conviction Relief (Exhibit Q). Petitioner filed an 

original Petition for Post-Conviction Relief on July 5, 2012 (Exhibit R), but filed an 

Amended Petition on August 16, 2012 (Exhibit S). Petitioner’s Amended Petition 

asserted an ineffective assistance claim under Missouri v. Frye, 566 U.S. ____, 132 S.Ct. 

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1399 (2012), based upon misrepresentations to Petitioner by counsel, the court, and 

prosecutors, that at trial Petitioner would face only concurrent sentencing. The state 

responded that Petitioner could not show prejudice because he was determined to seek 

acquittal to preserve a relationship with a 22 month old daughter, who would otherwise 

be placed into the foster care system. (Exhibit T, PCR Response.)

On January 9, 2013, the PCR court dismissed the petition, concluding “Defendant 

fails to make any colorable claim for post-conviction relief for the reasons given in the 

State’s Response.” (Exhibit V, M.E. 1/9/13.)

Petitioner sought review by the Arizona Court of Appeals, which granted review, 

similarly concluded that Petitioner failed to show prejudice (albeit based on Petitioner’s 

expectations of success, rather than his motivation to avoid any sentence) and denied 

relief. (Exhibit W, Mem. Dec. 10/21/14.) 

Petitioner then sought review by the Arizona Supreme Court, which was denied 

on March 19, 2015. The Arizona Court of Appeals issued its mandate on May 4, 2015. 

(Exhibit W, Mandate.)

G. PRESENT FEDERAL HABEAS PROCEEDINGS

Petition - Petitioner commenced the current case by filing his Petition for Writ of 

Habeas Corpus pursuant to 28 U.S.C. § 2254 on November 25, 2015 (Doc. 1). 

“Petitioner raises one ground for relief, arguing that his trial counsel was ineffective 

because she advised him that, if convicted, his sentences would run concurrently. 

Petitioner states that he would have accepted the plea he was offered had he known that 

he could be sentenced consecutively.” (Order 12/11/15, Doc. 3 at 1.) 

Response - On February 29, 2016, Respondents filed their Response (“Answer”) 

(Doc. 13). Respondents argue Petitioner’s claim is without merit, and the Arizona Court 

of Appeals properly adjudicated it to be so.

Reply – The Court’s service Order filed December 11, 2015 (Doc. 3) gave 

Petitioner 30 days from service of the Answer to reply in support of the Petition. That 

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time has passed and Petitioner has not replied in support of his Petition.

III. APPLICATION OF LAW TO FACTS

A. GROUND ONE – INEFFECTIVE ASSISTANCE

1. Parties Arguments

In his sole ground for relief, Petitioner argues that he received ineffective 

assistance of counsel when counsel failed to correct erroneous representations that if 

convicted at trial, all sentences would be concurrent. (Petition, Doc. 1 at 6.) 

2. Standard for Relief

Standard Applicable on Habeas - While the purpose of a federal habeas 

proceeding is to search for violations of federal law, in the context of a prisoner “in 

custody pursuant to the judgment a State court,” 28 U.S.C. § 2254(d) and (e), not every 

error justifies relief. 

Errors of Law - “[A] federal habeas court may not issue the writ simply because 

that court concludes in its independent judgment that the state-court decision applied [the 

law] incorrectly.” Woodford v. Visciotti, 537 U. S. 19, 24– 25 (2002) (per curiam). To 

justify habeas relief, a state court’s decision must be “contrary to, or an unreasonable 

application of, clearly established Federal law, as determined by the Supreme Court of 

the United States” before relief may be granted. 28 U.S.C. §2254(d)(1).

Errors of Fact - Federal courts are further authorized to grant habeas relief in 

cases where the state-court decision “was based on an unreasonable determination of the 

facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 

2254(d)(2). "Or, to put it conversely, a federal court may not second-guess a state court's 

fact-finding process unless, after review of the state-court record, it determines that the 

state court was not merely wrong, but actually unreasonable." Taylor v. Maddox, 366 

F.3d 992, 999 (9th Cir. 2004). 

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Moreover, a state prisoner is not free to attempt to retry his case in the federal 

courts by presenting new evidence. There is a well-established presumption of 

correctness of state court findings of fact. This presumption has been codified at 28 

U.S.C. § 2254(e)(1), which states that "a determination of a factual issue made by a State 

court shall be presumed to be correct" and the petitioner has the burden of proof to rebut 

the presumption by "clear and convincing evidence." 

Applicable Decisions – In evaluating state court decisions, the federal habeas 

court looks through summary opinions to the last reasoned decision. Robinson v. 

Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). 

3. Standard for Ineffective Assistance

Applicable Standard on Ineffective Assistance Claims – Generally, claims of 

ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 

U.S. 668 (1984). In order to prevail on such a claim, Petitioner must show: (1) deficient 

performance - counsel’s representation fell below the objective standard for 

reasonableness; and (2) prejudice - there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been different. 

Id. at 687-88. Although the petitioner must prove both elements, a court may reject his 

claim upon finding either that counsel's performance was reasonable or that the claimed 

error was not prejudicial. Id. at 697.

There is a strong presumption counsel’s conduct falls within the wide range of 

reasonable professional assistance and that, under the circumstances, the challenged 

action might be considered sound trial strategy. U.S. v. Quinterro-Barraza, 78 F.3d 

1344, 1348 (9th Cir. 1995), cert. denied, 519 U.S. 848 (1996); U.S. v. Molina, 934 F.2d 

1440, 1447 (9th Cir. 1991). The court should “presume that the attorneys made 

reasonable judgments and decline to second guess strategic choices.” U.S. v. Pregler, 

233 F.3d 1005, 1009 (7th Cir. 2000).

An objective standard applies to proving such deficient performance, and requires 

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a petitioner to demonstrate that counsel’s actions were “outside the wide range of 

professionally competent assistance, and that the deficient performance prejudiced the 

defense.” United States v. Houtcens, 926 F.2d 824, 828 (9th Cir. 1991) (quoting 

Strickland, 466 U.S. at 687-90). The reasonableness of counsel’s actions is judged 

from counsel’s perspective at the time of the alleged error in light of all the 

circumstances. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986); Strickland, 466 U.S. 

at 689. 

In the context of a rejected plea offer, “a defendant must show that but for the 

ineffective advice of counsel there is a reasonable probability that the plea offer would 

have been presented to the court (i.e., that the defendant would have accepted the plea 

and the prosecution would not have withdrawn it in light of intervening circumstances), 

that the court would have accepted its terms, and that the conviction or sentence, or both, 

under the offer's terms would have been less severe than under the judgment and 

sentence that in fact were imposed.” Lafler v. Cooper, 132 S.Ct. 1376, 1385 (2012). 

4. Factual Background

Petitioner appeared for a settlement conference on May 29, 2009. The following 

transpired:

THE COURT: All right. This is the time set for settlement 

conference. I'm sure your lawyer has talked to you about what we 

do here, we talk about your case, talk about the plea offer, find out 

what kind of a resolution you're looking for. 

THE DEFENDANT: Well, I didn't find out until Wednesday 

before last that she wasn't going to file a motion to suppress, which 

I've been trying to get filed since the beginning of this case because 

I have had three opinions saying that that's the avenue I need to go. 

It looked like we were going that way and then I find five working 

days ago that she wasn't going to do it and I had to come up with a 

decision on Friday of whether to take the plea agreement or not.

Well, I feel like since I only came to know that she wasn't 

going to file the suppression motion five working days ago, that I 

should be allowed to either go pro per or the trial date be vacated 

and I be given more time, to either file this motion to suppress on 

my own, or to be able to get an attorney that will file the motion to 

suppress. I've had three opinions from separate lawyers that they say 

I have good issues for the suppression. 

THE COURT: Okay. Well, certainly you can hire a lawyer 

and they can file it. It doesn't mean the judge is going to grant it. 

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Have you, yourself -- I guess you talked to those lawyers, the 

problem is this, when you file a motion then you don't have an 

opportunity to take advantage of the plea. 

THE DEFENDANT: Right. 

MS. HALSTENRUD [prosecutor]: And if you lose, you don't 

get a plea. 

THE COURT: Yeah, there's no plea.

(Exhibit B, R.T. 5/29/9 at 3-4.) The court pressed Petitioner on his plan for trial:

THE DEFENDANT: My plan is to file a motion to suppress 

and if it doesn't go, then I plan to go to trial. 

THE COURT: Right, so what's your plan at trial? 

THE DEFENDANT: To plead not guilty.

THE COURT: Right, how are you going to defend your 

case? How is your lawyer going to defend your case? 

THE DEFENDANT: How is my lawyer going to defend my 

case? Everything they found in the house, I was either not aware of 

or it didn't belong to me. 

THE COURT: Was it your house? 

THE DEFENDANT: My house. 

THE COURT: How do you think that's going to go over with 

the jury? 

THE DEFENDANT: I think it will go over well, especially if 

the person comes forward and says I knew nothing about it, it was 

theirs. 

THE COURT: So in your house, the marijuana, the guns, the 

paraphernalia, you're going to say you knew nothing about it? 

THE DEFENDANT: That's right. 

THE COURT: So you're going to have to take the stand, 

you're going to be impeached with your prior convictions, right, so 

they're going to know you have a prior felony, correct, and that you 

were living in a house with all these items and you don't know 

anything about them, that's your defense? 

THE DEFENDANT: That's right. 

THE COURT: It's not a strong defense, you know that. I'm 

not telling you anything you don't know, right?

THE DEFENDANT: I didn't know about the guns being 

there. I didn't know about the marijuana being there. 

THE COURT: Whether you did or whether you didn't, I'm 

just going to tell you that I don't think a jury is going to find that 

credible. First of all, you're going to have to testify to get your side 

of the story out, all right, so you're going to be subject to crossexamination. I don't think it's a tricky cross, I think that the State is 

just going to put out there and argue that that's completely 

ridiculous that you were living in a house with guns and marijuana 

and scales and have no knowledge of it. 

THE DEFENDANT: The guns came to my house the night 

before when I was gone.

THE COURT: You said you didn't know they were even 

there. 

THE DEFENDANT: Well, after the fact I did, in hindsight I 

did. 

THE COURT: Well, I'm just telling you that I don't think it's 

a good defense. I don't think it's a credible story for a jury to believe 

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that you had all this merchandise in your house and you didn't know 

about it.

MS. HALSTENRUD: On top of that, whoever is going to 

come in and take responsibility for the marijuana that came into 

your house the night before, they're going to need a lawyer and their 

lawyer is probably going to tell them not to take the stand and say 

that. 

THE COURT: Or you're going to rely on someone who 

might incriminate themself. So it's going to be police officer after 

police officer after police officer and then you saying, "I lived there, 

but I didn't know that the stuff was in the house, and yeah, I've been 

convicted before of felonies, but I still didn't know." 

THE DEFENDANT: I knew about the pistol, it belonged to 

my wife. We have a bill of sale, she bought it over a year before, I 

knew about that. I knew there were some scales in the house. But as 

far as the marijuana goes, or the two rifles they found, I was not 

aware of them. 

THE COURT: You know you're a prohibited possessor, 

correct, and you're not allowed to possess weapons? 

MS. HALSTENRUD: Well, you knowing about the pistol is 

enough. All you have to have is access to it in order to be found 

guilty under the law in Arizona. So that's not much of a defense, just 

so you know. 

THE COURT: I'll tell you, Mr. Herrell, I'm not here to try to 

ram a plea agreement down your throat. I mean, if you want to go to 

trial, that's fine. I just want you to have a realistic picture, the whole 

picture. You are kind of zeroed in on this suppression issue and you 

obviously have blinders on as to everything else that's going on with 

your case and you need to take a step back and look at the whole 

picture, because I'll tell you, there's a small percentage of motions, 

suppression motions, and I can't give you a number that are granted, 

but for the most part, you know, they're just not.

(Id. at 5-9.)

Petitioner was also advised that counsel did not believe there was a viable motion 

to suppress:

MS. HINDMARCH [defense counsel]: Your Honor, for the 

record, I have had an opportunity to interview the officer that was 

the affiant to the search warrant and Mr. Herrell has had an 

opportunity to listen to that tape. 

THE DEFENDANT: I have not had an opportunity to listen 

to it. 

MS. HINDMARCH: It's been provided to him. I informed 

Mr. Herrell that I don't believe I have a basis to file a motion to 

suppress for the filing of the search warrant and I won't be filing 

that motion.

(Id. at 10.) The court also reviewed with Petitioner the terms of the plea and Petitioners’ 

exposure at trial:

THE COURT: Mr. Herrell, the offer, as you know, is four 

and a half. Mr. Herrell, on this case, a Class 4 with two priors, each 

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count -- well, I should say three counts, are a minimum of well, the 

presumptive in your case realistically would be the minimum, is ten 

years. So even if you got concurrent sentences, you're less than half 

of your exposure with the plea. You're putting all your eggs in this 

suppression basket, and I'll tell you what, it doesn't seem like that 

that's necessarily the best decision.

(Id. at 11.) 

Despite all the dire warnings, Petitioner remained determined when the court 

inquired about Petitioner’s resistance to the plea offer:

THE COURT: Mr. Herrell, what's the main block in your 

case? 

THE DEFENDANT: Well, for one thing the plea offer is 

ridiculous. I have a daughter that I've been in compliance with CPS 

for over a year and the judge is waiting for this to conclude, to 

either give me back my custody of her or for her to remain where 

she's at. I will do anything I can to get custody of my daughter. I've 

been in compliance and he's waiting for this to be adjudicated. 

THE COURT: How old is your daughter? 

THE DEFENDANT: She's 22 months. · 

THE COURT: So if you go to trial and you lose, she'll be a 

teenager. If you take the plea agreement, you may have the 

opportunity to be there for part of her childhood. 

THE DEFENDANT: No, because my rights will be severed 

and she'll be in foster care. 

THE COURT: Well, then you know what, that's a path that 

started long ago, you know what I mean? 

THE DEFENDANT: It may have started long ago, but I 

didn't start it.

THE COURT: You need to stay focused on this case, 

because even if you go trial and you win this case, the judge could 

still decide against you. There's no promises. So I know that's a 

difficult situation, but don't let it be determinative in how you 

handle your case, you know what I mean? 

THE DEFENDANT: It's got to be. 

THE COURT: Well, then you can see your daughter in four 

and a half years or you can see your daughter in ten plus years. 

THE DEFENDANT: Or I can see her maybe by the end of 

this trial or by the time the motion to suppress is ruled on if I get it 

in, if I'm given at least a reasonable time. I mean, I was given five 

working days to know it wasn't going to be filed and I don't think 

that's reasonable at all.

(Id. at 13-15.) The court then again compared the plea offer with the exposure at trial.

MS. HINDMARCH [defense counsel]: And just to make sure 

we're on the same page with the State, I don't believe that any of the 

counts could be stacked; do you agree with that? 

MS. HALSTENRUD [prosecutor]: I don't think they could. 

MS. HINDMARCH: So then, just so Mr. Herrell is clear, he's 

facing a presumptive of ten years with a maximum of 15 and a 

super-minimum of six and the plea offer is for a stipulated four and 

a half. Am I correct that you want to reject that plea? 

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THE DEFENDANT: Yeah.

(Id. at 15-16.)

At a hearing on Petitioner’s motion to represent himself, the court again reviewed 

Petitioner’s exposure at trial:

THE COURT: Okay. For a Class 4 felony -- and you've been 

charged with three Class 4 felonies with two allegeable prior felony 

convictions -- the presumptive sentence is 10 years in the 

Department of Corrections, the maximum sentence is 12 years, the 

aggravated sentence is 15 years, the minimum sentence is eight 

years, and the mitigated sentence is six. 

For a Class 6 felony with two prior felony convictions, the 

presumptive sentence is 3.75 years, the maximum is 4.5, the 

aggravated is 5.75, the minimum sentence is three years, and the 

mitigated sentence is 2.25 years. 

Can those sentences be run consecutively, or do they have to 

reason [sic] concurrent? 

MS. HALSTENRUD [prosecutor]: I believe they would run 

concurrent. 

THE COURT: Okay. So the maximum time that you could 

do, if you get the presumptive sentence, would be 10 years. The 

maximum could be 15, if you got an aggravated sentence. 

So you understand that? And you would not be eligible for 

release until the prison sentence is served. You could receive release 

credits for one day for every six days served. 

Do you understand that? 

THE DEFENDANT: Yes, ma'am.

(Exhibit C, R.T. 8/10/9 at 6-7.) 

5. State Court Decision

Here the relevant, last reasoned decision on Petitioner’s claim is that of the 

Arizona Court of Appeals on review of Petitioner’s PCR Petition. The Arizona Court of 

Appeals quoted the companion to Lafler:

"To show prejudice from ineffective assistance of counsel where a 

plea offer has lapsed or been rejected because of counsel's deficient 

performance, defendants must demonstrate a reasonable probability 

they would have accepted the earlier plea offer had they been 

afforded effective assistance of counsel." Missouri v. Frye, 132 S. 

Ct. 1399, 1409 (2012).

(Exhibit W, Mem. Dec. at ¶ 4.) The court found:

We have already determined on two previous occasions that there is 

no reasonable probability Herrell would have accepted the plea offer 

if anyone had told him he was exposed to consecutive sentences...

The record reflects that Herrell rejected the plea offer because he 

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believed he would be successful in a motion to suppress or at trial, 

and he believed the offer ‘ridiculous.’ ”

(Exhibit W, Mem. Dec. at ¶¶ 5, 8.) Based on those findings, the court rejected 

Petitioner’s claim. 

6. Application of Law to Facts

a. Deficient Performance

Respondents do not address deficient performance. The Arizona Court of 

Appeals did not either. The undersigned finds no basis for a finding of deficient 

performance.

Here, at both the settlement conference and at the hearing on the motion for selfrepresentation, trial counsel solicited and obtained representations from the prosecution 

that Petitioner’s sentences would not be concurrent at trial. Trial counsel was silent in 

the face of representations by the court that Petitioner’s maximum exposure at trial was 

15 years. 

Instead, after re-sentencing, he received an effective sentence of 20 years.

In U.S. vs. Garcia, 909 F.2d 1346 (9th Cir. 1990) the Ninth Circuit held that an 

erroneous prediction of a sentence by a defense attorney did not rise to the level of 

constitutional deficient representation, and thus did not render a plea based upon such 

erroneous prediction involuntary. Cases both prior to and since Garcia have 

differentiated between simple errors in predictions and a gross mischaracterization of the 

likely outcome. For example, in U.S. vs. Michlin, 34 F.3d 896 (9th Cir. 1994) the Ninth 

Circuit recognized that the court has “held that ‘an erroneous prediction by defense 

attorney concerning sentencing does not entitle a defendant to challenge his guilty plea,’ 

although an exception might be made in a case of ‘gross mischaracterization of the likely 

outcome.’” Michlin, 34 F.3d at 899 (citations omitted). 

In Iaea vs. Sunn, 800 F.2d 861(9th Cir. 1986) defense counsel represented to the 

defendant that a guilty plea would give him a chance to receive probation. That advice 

was defective because of mandatory minimum sentences which resulted in his receiving 

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life sentences. The court found that such a gross mischaracterization (probation v. life 

sentences) established defective performance by counsel and remanded the case for a 

determination on the prejudice component of the ineffective assistance claim. Id. at 865-

66. See also Doganiere v. United States, 914 F.2d 165, 168 (9th Cir. 1990), cert. 

denied, 499 U.S. 940 (1991)(no ineffectiveness where actual sentence was three years 

longer than attorney predicted). 

In contrast, in Womack v. Del Papa, 487 F.3d 998 (9th Cir. 2007), counsel had 

predicted a sentence upon pleading guilty of 30 to 40 years, and instead the defendant 

received eight life terms without parole. The Ninth Circuit distinguished Iaea, and found 

the plea nonetheless voluntary.

Here, the effective prediction by trial counsel of Petitioner’s sentencing exposure 

at trial was “a presumptive of ten years with a maximum of 15 and a super-minimum of 

six.” (Exhibit B, R.T. 5/29/9 at 15-16.)

Instead, Petitioner received a combined sentence of 20 years. Whether compared 

to the “super-minimum” of 6 or the maximum of 15, the difference between counsel’s 

prediction and reality did not amount to the kind of gross mischaracterization that the 

courts have been willing to deem defective performance.

b. Prejudice

Even if Petitioner could establish defective performance, he fails to show that the 

conclusion of the Arizona Court of Appeals (that he failed to show prejudice and that his

claim was therefore without merit) was contrary to or an unreasonable application of 

Supreme Court law, or an unreasonable determination of the facts. 

The Supreme Court has instructed that a state court decision is “contrary to” 

clearly established federal law “if the state court applies a rule that contradicts the 

governing law set forth in [Supreme Court] cases or if the state court confronts a set of 

facts that are materially indistinguishable from a decision of [the Supreme] Court and 

nevertheless arrives at a result different from [its] precedent.” Lockyer v. Andrade, 538 

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U.S. 63, 73 (2003) (internal quotation marks omitted).

Here, the Arizona court identified the correct standard, as laid out in the 

companion cases Lafler and Frye, i.e. that Petitioner was required to show a reasonable 

probability that had he been properly advised he would have proceeded with the plea. 

Moreover, Petitioner does not point to any factually indistinguishable Supreme Court 

case reaching a contrary result, and the undersigned has found none. Thus, their decision 

was not contrary to Supreme Court law.

“[A] federal habeas court making the ‘unreasonable application’ inquiry should 

ask whether the state court's application of clearly established federal law was 

objectively unreasonable." Williams v. Taylor, 529 U.S. 362, 409 (2000). Distinguishing 

between an unreasonable and an incorrect application of federal law, the Williams Court 

clarified that even if the federal habeas court concludes that the state court decision 

applied clearly established federal law incorrectly, relief is appropriate only if that 

application is also objectively unreasonable. Id. at 410-411.

Petitioner proffers nothing to show that the Arizona court unreasonably applied 

Lafler and Frye (or any other applicable standard) to the facts of his case.

Finally, Petitioner proffers nothing to suggest that the Arizona court made an 

error in determining the historical facts. Petitioner was plainly focused on the potential 

of winning his motion to suppress or a trial, and on his contention that the offer was 

ridiculous.

Even if this Court could find some factual error, "a federal court may not secondguess a state court’s fact-finding process unless, after review of the state-court record, it 

determines that the state court was not merely wrong, but actually unreasonable." 

Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). Petitioner does not suggest how

any fact-finding was unreasonable.

Moreover, given Petitioner’s rejection of the guaranteed 4.5 years under the plea, 

in the face of what was represented to be a potential 15 year maximum sentence, the 

undersigned cannot find a reasonable probability that Petitioner would have altered 

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course and accepted the plea if he had been advised he could receive a 20 year sentence. 

To the contrary, Petitioner’s explicit motivation in rejecting the plea was to secure 

custody of his daughter which he believed only possible by an immediate release after 

victory, either through the motion to suppress or at trial. Under Petitioner’s perception 

of his circumstances any sentence, whether of 4.5 or 6 or 10 or 15 or 20 years, would 

have resulted in the loss of custody of his daughter. 

In light of that motivation, and in light of Petitioner’s confidence in his ultimate 

success, the undersigned cannot find a reasonable probability that Petitioner would have 

accepted the plea offer had counsel advised him of the potential for consecutive 

sentences.

7. Summary

Based upon the forgoing, the undersigned concludes that Petitioner’s claim in 

Ground 1 is without merit. Accordingly, Petitioner’s Petition must be denied.

IV. CERTIFICATE OF APPEALABILITY

Ruling Required - Rule 11(a), Rules Governing Section 2254 Cases, requires 

that in habeas cases the “district court must issue or deny a certificate of appealability 

when it enters a final order adverse to the applicant.” Such certificates are required in 

cases concerning detention arising “out of process issued by a State court”, or in a 

proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28

U.S.C. § 2253(c)(1). 

Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges 

detention pursuant to a State court judgment. The recommendations if accepted will 

result in Petitioner’s Petition being resolved adversely to Petitioner. Accordingly, a 

decision on a certificate of appealability is required. 

Applicable Standards - The standard for issuing a certificate of appealability 

(“COA”) is whether the applicant has “made a substantial showing of the denial of a 

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constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the 

constitutional claims on the merits, the showing required to satisfy § 2253(c) is 

straightforward: The petitioner must demonstrate that reasonable jurists would find the 

district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 

McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition 

on procedural grounds without reaching the prisoner’s underlying constitutional claim, a 

COA should issue when the prisoner shows, at least, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional right 

and that jurists of reason would find it debatable whether the district court was correct in 

its procedural ruling.” Id.

Standard Not Met - Assuming the recommendations herein are followed in the 

district court’s judgment, that decision will be on the merits. Under the reasoning set 

forth herein, jurists of reason would not find the district court’s assessment of the 

constitutional claims debatable or wrong. 

Accordingly, to the extent that the Court adopts this Report & Recommendation 

as to the Petition, a certificate of appealability should be denied.

V. RECOMMENDATION

IT IS THEREFORE RECOMMENDED that the Petitioner's Petition for Writ 

of Habeas Corpus, filed November 25, 2015 (Doc. 1) be DENIED.

IT IS FURTHER RECOMMENDED that, to the extent the foregoing findings 

and recommendations are adopted in the District Court’s order, a Certificate of 

Appealability be DENIED.

VI. EFFECT OF RECOMMENDATION

This recommendation is not an order that is immediately appealable to the Ninth 

Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules 

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of Appellate Procedure, should not be filed until entry of the district court's judgment. 

However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties 

shall have fourteen (14) days from the date of service of a copy of this recommendation 

within which to file specific written objections with the Court. See also Rule 8(b), Rules 

Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days 

within which to file a response to the objections. Failure to timely file objections to any 

findings or recommendations of the Magistrate Judge will be considered a waiver of a 

party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 

328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's 

right to appellate review of the findings of fact in an order or judgment entered pursuant 

to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-

47 (9th Cir. 2007). 

Dated: June 27, 2016

15-2416r RR 16 06 10 on HC.docx

James F. Metcalf

United States Magistrate Judge

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