Case 3:05-cv-00879 Document 80 Filed 08/08/13 Page 1 of 26 PageID #: 1711
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`IN THE UNITED STATES DISTRICT COURT FOR
`THE SOUTHERN DISTRICT OF WEST VIRGINIA
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`HUNTINGTON DIVISION
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`GREGORY BRENT CHRISTIAN,
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`Petitioner,
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`CIVIL ACTION NO. 3:05-0879
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`v.
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`DAVID BALLARD, Warden,
`Mount Olive Correctional Complex,
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`Respondent.
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`MEMORANDUM OPINION AND ORDER
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`Pending before the Court are Petitioner Gregory Brent Christian’s pro se Petition for a
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`Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 39); Respondent’s motion for
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`summary judgment (ECF No. 54); Petitioner’s cross-motion for summary judgment (ECF No.
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`60); and two discovery motions filed by Petitioner (ECF Nos. 58 and 59). This petition was
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`referred to U.S. Magistrate Judge Cheryl A. Eifert for submission of proposed findings of fact
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`and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate
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`judge entered proposed findings and recommendations (“PF&R”) (ECF No. 78) and Petitioner
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`has filed objections thereto (ECF No. 79). For the following reasons, the Court ADOPTS the
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`PF&R, as modified, and DENIES Christian’s petition.
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`A.
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`Factual Background and Procedural History
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`I.
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`BACKGROUND
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`On September 2, 2003, Christian pleaded guilty in the Circuit Court of Cabell County,
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`West Virginia, to two counts of first-degree robbery and one count of malicious assault on a
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`police officer. Resp’t’s Mot. Summ. J. Ex. 2, ECF No. 54-1. These charges stemmed from the
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`armed robbery of a Pizza Hut restaurant and a Marathon gas station in Huntington, West
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`Virginia, which occurred in early June 2002. When investigating officers arrived at the
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`residence where Christian was located, Christian and the police officers exchanged gunshots.
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`One of Christian’s shots struck Officer Joe Combs, of the Huntington Police Department.
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`Christian was then taken into custody. Before accepting Christian’s guilty plea, the circuit judge
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`made several findings, including that Christian “is totally satisfied with the representations and
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`advice he has received from [ ] counsel” and that Christian understood his constitutional rights.
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`Id. at 2-3. Christian was sentenced to 25 years’ imprisonment on the robbery counts, to run
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`concurrently with each other but consecutively to a federal sentence, and three to fifteen years on
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`the malicious assault count, to run consecutively to all other terms of imprisonment. Id. at 3-4.
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`On November 4, 2005, Christian filed a petition for a writ of habeas corpus pursuant to
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`28 U.S.C. § 2254, in this Court. ECF No. 2. U.S. Magistrate Judge Maurice G. Taylor, Jr.
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`recommended that the petition be denied without prejudice and that the action be placed on the
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`inactive docket pending exhaustion of state remedies.1 ECF No. 33. This Court adopted the
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`magistrate’s recommendations on July 11, 2007, and ordered Christian to file a habeas petition in
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`the Circuit Court of Cabell County within thirty days. ECF No. 35.
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`Christian filed a habeas petition in the Circuit Court of Cabell County on July 6, 2007.2
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`Resp’t’s Mot. Summ. J. Ex. 4, ECF No. 54-1. He amended his petition on April 1, 2008. Id. Ex.
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`1 Christian filed three habeas petitions with the Supreme Court of Appeals of West Virginia, on
`October 6, 2003, May 26, 2004, and February 18, 2005. See Resp’t’s Mot. Summ J. Ex. 3, ECF
`No. 54-1. Because these petitions were summarily refused, the exhaustion requirement was not
`satisfied. See ECF No. 33 at 1 n.2.
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` Christian evidently filed the petition after seeing the magistrate’s proposed findings and before
`this Court formally adopted them.
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` 2
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`2
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`5, ECF No. 54-2. After conducting an omnibus hearing, the circuit court entered a 22-page order
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`denying Christian’s petition on February 11, 2011. Id. Ex. 7, ECF No. 54-4. Christian appealed
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`to the Supreme Court of Appeals of West Virginia, which affirmed the circuit court’s ruling on
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`June 29, 2012. Id. Ex. 10, ECF No. 54-4. On July 12, 2012, Christian renewed his federal
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`habeas petition and filed a motion to lift the stay and abeyance order previously entered in that
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`case.3 ECF Nos. 39, 40, 41. Christian’s motion to lift the stay was granted and Respondent was
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`ordered to answer the petition within thirty days. ECF No. 38. Thereafter, both parties moved
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`for summary judgment. ECF No. 54 (Respondent’s motion); ECF No. 60 (Petitioner’s motion).
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`Christian’s petition identifies four grounds4 for relief. First, Christian claims he received
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`ineffective assistance of counsel. According to Christian, his trial counsel refused to investigate
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`Christian’s claims of innocence; failed to file certain pretrial motions; and induced Christian to
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`plead guilty by coercion. Second, Christian claims prosecutorial misconduct, alleging that the
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`prosecution withheld exculpatory and impeachment evidence. Such evidence included witness
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`statements and ballistics reports allegedly proving that the bullet that struck Officer Combs was
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`fired from his partner’s weapon. Third, Christian claims that his guilty plea was not knowing
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`and voluntary because he was coerced into pleading guilty by promises that upon such a plea, he
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`would be transferred out of a local jail where he alleged he suffered abuse at the hands of
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`correctional officers. Fourth, Christian claims that he is actually innocent of the crimes to which
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`he pleaded guilty. According to Christian, the evidence shows that two other individuals
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`3 Christian’s renewed petition was assigned a new case number, 3:12-cv-03084. Upon granting
`Christian’s motion to lift the stay, the magistrate judge ordered that the case proceed under the
`case number 3:05-cv-00879, and that the new case number be terminated. ECF No. 38.
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` 4
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` The petition enumerates three grounds for relief, but the magistrate judge, affording the petition
`the liberal construction required for pro se petitions, identified four grounds.
`3
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`committed the armed robberies, and that Officer Combs was actually shot by his partner, rather
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`than by Christian.
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`B.
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`The Magistrate Judge’s Proposed Findings and Recommendations
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`The magistrate judge issued detailed proposed findings and recommendations, which
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`thoroughly analyzed each of Christian’s claims. ECF No. 78. The magistrate judge first found
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`that Christian failed to satisfy the requisite legal standard to prevail regarding each of the
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`following alleged deficiencies in trial counsel’s representation: (1) failure to notify the trial court
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`of a conflict; (2) failure to investigate exculpatory evidence related to both the robberies and the
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`malicious wounding; (3) failure to file pretrial motions; (4) rendering incorrect legal advice
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`regarding the applicability of recidivist laws to Christian’s potential sentence; and (5) the
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`collective impact of these alleged errors amounted to an egregious case of ineffective assistance.
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`Next, the magistrate judge addressed Christian’s claim of prosecutorial misconduct. The
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`magistrate judge concurred with the state habeas court’s finding that Christian “failed to
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`establish [that] any particular evidence was allegedly suppressed or not disclosed by law
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`enforcement” and “failed to establish by a preponderance of the evidence that the prosecutor’s
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`office failed to disclose or suppressed any evidence.” ECF No. 78 at 40 (quoting Order Denying
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`Pet. for Habeas Corpus, at 12 (Cir. Ct. Cabell Cnty. Feb. 11, 2011), Ex. 7, ECF No. 54-4). The
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`magistrate judge found that the evidence Christian claims was wrongfully withheld was either
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`immaterial or not exculpatory. Consequently, the magistrate judge concluded that the state
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`habeas court did not err in finding that Christian failed to establish that the State withheld or
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`suppressed evidence in violation of its Brady obligations.
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`The magistrate judge rejected each of Christian’s five grounds upon which he argued that
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`his guilty plea was unknowing and involuntary. The magistrate found that: (1) Christian was
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`4
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`adequately advised of the constitutional rights he waived by pleading guilty; (2) the prosecutor’s
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`alleged statements to Christian outside the presence of his attorney did not prejudice him, nor
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`render the guilty plea involuntary; (3) Christian was not incorrectly advised on the applicability
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`of the element of malice in the malicious wounding charge; (4) it was not unreasonable for the
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`state court to reject Christian’s claim that his guilty plea was coerced by abuse he suffered in
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`prison, especially in light of Christian’s sworn testimony at the plea hearing and the limited
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`evidence he produced in support of his claim; and (5) the state court did not err in its duty to
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`consider the totality of circumstances in assessing the voluntariness of Christian’s guilty plea.
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`Finally, the magistrate judge found that Christian’s claims of actual innocence do not constitute a
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`valid basis for habeas relief.
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`Accordingly, the magistrate judge recommended that Christian’s petition and his motion
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`for summary judgment be denied and Respondent’s motion for summary judgment be granted.
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`Additionally, the magistrate recommended that Christian’s discovery motions be denied and that
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`the entire action be dismissed with prejudice. Christian has filed objections to portions of the
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`PF&R. The Court now turns to those objections.
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`II.
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`ANALYSIS
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`A.
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`Legal Standards
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`This Court conducts a de novo review of those portions of the magistrate judge’s
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`proposed findings and recommendations to which Petitioner objects. 28 U.S.C. § 636(b)(1)(C)
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`(“A judge of the court shall make a de novo determination of those portions of the report or
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`specified proposed findings or recommendations to which objection is made. A judge of the
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`court may accept, reject, or modify, in whole or in part, the findings or recommendations made
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`by the magistrate.”). The Court, however, is not required to review, under a de novo or any other
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`standard, the factual or legal conclusions of the magistrate judge as to those portions of the
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`findings or recommendations to which no objections are made. Thomas v. Arn, 474 U.S. 140,
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`150 (1985).
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`The instant petition is before the Court pursuant to 28 U.S.C. § 2254. That statute
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`authorizes a federal district court to entertain an application for a writ of habeas corpus from a
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`person in custody pursuant to a state court judgment, “only on the ground that he is in custody in
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`violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). With
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`respect to a claim that was adjudicated on the merits in state court proceedings, an application
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`shall not be granted unless the state adjudication:
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`(1) resulted in a decision that was contrary to, or involved an unreasonable
`application of, clearly established Federal law, as determined by the Supreme
`Court of the United States; or
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`(2) resulted in a decision that was based on an unreasonable determination of the
`facts in light of the evidence presented in the State court proceeding.
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`28 U.S.C. § 2254(d). “When a federal claim has been presented to a state court and the state
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`court has denied relief, it may be presumed that the state court adjudicated the claim on the
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`merits in the absence of any indication or state-law procedural principles to the contrary.”
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`Harrington v. Richter, 131 S. Ct. 770, 784-85 (2011). A state court is not required to explain its
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`reasons in a written opinion; even a summary ruling constitutes an adjudication on the merits so
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`long as it is a “decision” which results from an “adjudication.” Id. at 784. A state court decision
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`is contrary to U.S. Supreme Court precedent “if the state court arrives at a conclusion opposite to
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`that reached by this Court on a question of law,” or “if the state court confronts facts that are
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`materially indistinguishable from a relevant Supreme Court precedent and arrives at a result
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`opposite to [the Court’s].” Williams v. Taylor, 529 U.S. 362, 405 (2000). “A state court
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`unreasonably applies federal law when it ‘identifies the correct governing legal rule from th[e]
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`Court’s cases but unreasonably applies it to the facts of the particular . . . case.’” Lewis v.
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`Wheeler, 609 F.3d 291, 300-01 (4th Cir. 2010) (quoting Williams, 529 U.S. at 407). The state
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`court’s determination of a factual issue is presumed correct; the petitioner bears the burden of
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`rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
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`In this case, the state court denied Christian’s petition for the writ after an adjudication on
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`the same claims Christian presents to this Court.5 See Christian v. Waid, No. 07-C-572, 2012
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`WL 3045680 (W. Va. June 29, 2012). Accordingly, this Court’s review of the petition is limited
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`to the reasonableness of the state court’s determination. Mere disagreement with the state
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`court’s decision, therefore, is not a sufficient basis to grant the requested relief. A federal habeas
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`court may not issue a writ “simply because that court concludes in its independent judgment that
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`the relevant state-court decision applied clearly established federal law erroneously or
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`incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 411.
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`Thus, this Court’s review is “highly deferential,” as mandated by 28 U.S.C. § 2254(d).
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`DeCastro v. Branker, 642 F.3d 442, 449 (4th Cir. 2011).
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`Both parties have moved for summary judgment. To obtain summary judgment, the
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`moving party must show that there is no genuine issue as to any material fact and that the
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`moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In considering a
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`motion for summary judgment, the Court will not “weigh the evidence and determine the truth of
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`the matter[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead, the Court will
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`draw any permissible inference from the underlying facts in the light most favorable to the
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`5 Christian filed an addendum in support of his § 2254 petition that, according to him, “is an
`identical copy” of the brief Christian filed in the Supreme Court of Appeals of West Virginia, in
`support of his state habeas petition. ECF No. 40.
`7
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`Case 3:05-cv-00879 Document 80 Filed 08/08/13 Page 8 of 26 PageID #: 1718
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`nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88
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`(1986).
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`Although the Court will view all underlying facts and inferences in the light most
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`favorable to the nonmoving party, the nonmoving party nonetheless must offer some “concrete
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`evidence from which a reasonable juror could return a verdict in his [or her] favor[.]” Anderson,
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`477 U.S. at 256. Summary judgment is appropriate when the nonmoving party has the burden of
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`proof on an essential element of his or her case and does not make, after adequate time for
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`discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317,
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`322-23 (1986). The nonmoving party must satisfy this burden of proof by offering more than a
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`mere “scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252.
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`B.
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`Christian’s Objections
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`Christian, acting pro se, timely filed objections to the PF&R. Christian objects to the
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`magistrate’s findings regarding only one of his stated grounds for relief: ineffective assistance of
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`counsel. Christian’s objections to certain portions of the PF&R are specific and the Court will
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`therefore review those portions de novo. The Court need not review the magistrate’s findings on
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`the remaining grounds, to which Christian does not object.
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`Petitioner argues that his attorney’s performance during plea negotiations fell below the
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`constitutional standard for effective assistance. See Strickland, 466 U.S. 668, 686 (1984). The
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`Sixth Amendment guarantees that in “all criminal prosecutions, the accused shall enjoy the right
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`. . . to have the Assistance of Counsel for his defense.” U.S. Const. amend. VI. If an attorney’s
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`performance falls below a certain minimum level of professional competence, it may violate an
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`accused’s right to effective representation. See Strickland, 466 U.S. at 685.
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`The Supreme Court continues to endorse the familiar two-part Strickland test for
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`determining when an attorney’s performance violates an individual’s Sixth Amendment right to
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`effective representation. See id. at 687. The first prong of Strickland requires the petitioner to
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`show that his attorney committed an error that fell below a reasonable standard for professional
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`competence. See id. The reasonableness standard is an objective inquiry, which contemplates a
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`wide range of acceptable and professional representation. Id. at 689. The second prong of the
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`test requires the petitioner to show that, “but for counsel’s unprofessional errors, the result of the
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`proceeding would have been different.” Id. at 694. To establish prejudice where the petitioner
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`entered a guilty plea, the petitioner must show that there is a reasonable probability that, but for
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`counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.
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`Hill v. Lockhart, 474 U.S. 52, 59 (1985). In all cases, however, “[j]udicial scrutiny of counsel’s
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`performance must be highly deferential” and courts must try to avoid retrospectively critical
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`evaluations of counsel’s decisions. Strickland, 466 U.S. at 689.
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`In § 2254 proceedings, the inquiry is even less exacting, as the federal court need only
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`inquire as to whether the state court’s application of Strickland to the facts was objectively
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`unreasonable. See Bell v. Cone, 535 U.S. 685, 695-96 (2002). “[T]he question is not whether
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`counsel’s actions were reasonable. The question is whether there is any reasonable argument that
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`counsel satisfied Strickland’s deferential standard.” Harrington, 131 S. Ct. at 788. “The
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`standards created by Strickland and § 2254(d) are both highly deferential,” and “when the two
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`apply in tandem, review is doubly so.” Id. (citations omitted). Federal habeas courts must bear
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`this important distinction in mind when reviewing a § 2254 petition. See id. The federal habeas
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`court “must determine what arguments or theories supported or . . . could have supported, the
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`state court’s decision; and then it must ask whether it is possible fairminded jurists could
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`disagree that those arguments or theories are inconsistent with the holding in a prior decision of
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`[the Supreme] Court.” Id. at 786. Christian enumerated several objections to the magistrate
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`judge’s findings. The Court will address each in turn.
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`1.
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`Counsel’s advice regarding applicability of the recidivist laws
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`Christian claims that trial counsel misadvised him regarding the applicability of the
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`state’s recidivist laws to any sentence he may receive. According to Christian, he told his
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`counsel on the day of the plea hearing that instead of pleading to all charges in the indictment, he
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`desired to plead guilty only to malicious assault of a police officer. Counsel advised him that if
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`Christian did not plead to all counts in the indictment, as the parties had contemplated when
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`negotiating the plea agreement, the state could seek to enhance his sentence under West
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`Virginia’s recidivist statute.6 ECF No. 40 at 46. Christian believed that he would therefore be
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`subject to a mandatory life sentence, ECF No. 40 at 46, and relied on counsel’s advice in making
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`the decision to plead guilty to all charges against him, as he originally planned. Christian now
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`claims that the recidivist statute would not have applied to enhance his sentence, and he would
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`not have pleaded guilty to all charges absent counsel’s erroneous advice. He claims that counsel
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`rendered ineffective assistance by failing to investigate his criminal history to learn the
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`circumstances of his previous convictions and whether they would in fact qualify him for the
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`recidivist enhancement. He objects to the magistrate’s finding that counsel appropriately advised
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`Christian that the state may seek to enhance his sentence under the recidivist statute and that in
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`any event, Christian did qualify for a life sentence under the recidivist laws.
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`West Virginia’s recidivist statute is codified at W. Va. Code § 61-11-18 and provides that
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`upon a second felony conviction, the court shall “add five years to the time for which the person
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`6 One of the terms of the plea agreement was that the State would not seek a recidivist
`enhancement.
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`is or otherwise be sentenced,” or if the court imposes an indeterminate sentence, it shall impose a
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`minimum that is twice the number of years otherwise provided for under such sentence. W. Va.
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`Code § 61-11-18(a). For a third felony offense, “the person shall be sentenced to be confined in
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`the state correctional facility for life.” Id. § 61-11-18(c). For purposes of applicable convictions,
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`when two felony convictions are returned on the same day, West Virginia courts consider them
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`“as a single prior felony conviction within the meaning of the recidivist statute.” West Virginia
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`ex rel. Hill v. Boles, 143 S.E.2d 467, 780-81 (W. Va. 1965).
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`At some point during the course of counsel’s representation and before Christian entered
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`the guilty plea, counsel asked Christian whether he had any prior convictions. Christian “advised
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`his counsel that he had two prior felonies, without any further detail.” ECF No. 40 at 46.
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`Christian was convicted of two felonies on March 5, 1990, in the Circuit Court of Cabell County,
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`West Virginia.7 He does not dispute that these convictions, counted as one for purposes of the
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`recidivist statute, would have subjected him to the enhanced penalty specified by § 61-11-18(a).
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`Christian’s criminal history includes two additional felonies, but he claims that these do not
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`qualify for the recidivist enhancement. On or about September 21, 1988, while he was a
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`juvenile, Christian entered a guilty plea to grand larceny in the Circuit Court of Cabell County.
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`The Supreme Court of Appeals, however, granted Christian’s petition for a writ of habeas corpus
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`based on that conviction, because the “State confessed error with regard to both relator’s transfer
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`to the criminal jurisdiction of the circuit court [from its civil juvenile jurisdiction] and relator’s
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`subsequent plea of guilty.” Greg C. v. Gregory, 375 S.E.2d 822, 1988 W. Va. LEXIS 246 (W.
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`Va. Dec. 20, 1988). The matter was reversed and remanded with instructions to the circuit court
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`and there is no evidence that Christian was ever convicted of the charge upon remand to the
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`7 Christian was previously convicted of burglary, in violation of W. Va. Code § 61-3-11, and
`grand larceny, in violation of W. Va. Code § 61-3-13.
`11
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`circuit court. It appears to the Court, therefore, that this conviction could not have provided a
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`basis for any recidivist enhancement.
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`The Court also concludes that Christian’s federal conviction in case number 3:02-cr-
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`00202 in this district would not have subjected him to the third-strike life imprisonment of
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`Section 61-11-18(c). In that case, the two-count indictment charged Christian with possession of
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`an unregistered firearm on or about May 27, 2002, and also for possession of a firearm by a
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`convicted felon, on or about June 4, 2002. This second charge stemmed from the shooting of
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`Officer Combs—the same basis for the state charge of malicious assault of a police officer.
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`Christian entered a guilty plea to the federal charges on February 11, 2003, and was sentenced on
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`May 27, 2003. Although Christian had already been convicted and sentenced on the federal
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`charges at the time he pleaded guilty to the state charges, both indictments stemmed from acts
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`that were committed nearly simultaneously.
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`The West Virginia Supreme Court of Appeals has held that before a trial court may
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`impose a more severe sentence under the recidivist statute, the State must prove that “the
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`defendant committed the principal offense after having been convicted and sentenced once
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`before for the commission of a penitentiary offense.” West Virginia v. McMannis, 242 S.E.2d
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`571, 575 (1978) (emphasis added). Likewise, before the mandatory life sentence can be imposed
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`for a recidivist, the State must prove that “the prior convictions, except the first offense and
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`conviction, were for offenses committed after each preceding conviction and sentence.” Id.
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`Here, Christian committed the state offense after being convicted and sentenced on the March
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`1990 felonies, which qualified him for the five-year enhancement, but he had not yet been
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`convicted and sentenced on the federal firearms charges at the time he committed the robberies
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`and malicious assault, on or about June 3-4, 2002. The Court therefore concludes, based on the
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`12
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`record before it, that Christian would not have been subject to the mandatory life sentence
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`required by the recidivist statute. Accordingly, the Court GRANTS Christian’s objections to
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`those portions of the PF&R finding that he was eligible for the mandatory life sentence upon
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`conviction of the state charges.
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`The Court, however, DENIES Christian’s objection to the magistrate’s conclusion that
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`Christian is not entitled to habeas relief on this ground. It was not an unreasonable interpretation
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`of the facts, nor was it contrary to Supreme Court precedent, for the state court to find that
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`counsel’s advice regarding the recidivist enhancement was not constitutionally deficient.
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`Christian admits that counsel asked him whether he had prior felony convictions, to learn of the
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`possible sentences he might face as a result of conviction. It is also clear that counsel
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`specifically negotiated with the prosecution to have them agree not to pursue any recidivist
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`enhancement. Although Christian persists that counsel should have investigated further into the
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`two felonies Christian reported to him, his failure to do so at the pretrial stage was not
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`constitutionally deficient under Supreme Court precedent.8 The Supreme Court has stated that
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`counsel “has a duty to make reasonable investigations or to make a reasonable decision that
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`makes particular investigations unnecessary. In any ineffectiveness case, a particular decision
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`not to investigate must be directly assessed for reasonableness in all the circumstances, applying
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`8 The Supreme Court has ruled upon counsel’s duty to investigate a defendant’s prior conviction,
`but in a much different context than the circumstances presented here. In Rompilla v. Beard, 545
`U.S. 374 (2005), the Court held that defense counsel’s failure to examine the file on a
`defendant’s prior conviction at the sentencing phase of a capital murder trial fell below the level
`of reasonable performance. In that case, defense counsel failed to review the prior conviction
`file despite knowing that the prosecution intended to introduce the defendant’s prior conviction
`in its pursuit of the death penalty, and even after being twice warned by the prosecution that it
`would use that prior conviction. The Court found that counsel’s performance was not
`reasonable, especially where a review of the file could lead to the discovery of “any mitigating
`evidence the Commonwealth would downplay,” and allow counsel “to anticipate the details of
`the aggravating evidence the Commonwealth would emphasize.” Id. at 385-86.
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`Case 3:05-cv-00879 Document 80 Filed 08/08/13 Page 14 of 26 PageID #: 1724
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`a heavy measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 691. Moreover,
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`“when a defendant has given counsel reason to believe that pursuing certain investigations would
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`be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be
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`challenged as unreasonable.” Id. In this case, counsel’s pretrial interview of Christian revealed
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`that he was eligible for a recidivist sentencing enhancement. The state habeas court also credited
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`testimony of trial counsel that Christian admitted to him that Christian had committed the
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`robberies.9 In light of these facts, it was not constitutionally deficient representation for counsel
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`to choose not to investigate the details of Christian’s prior felony convictions, and instead
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`concentrate his efforts on negotiating a plea in which the State would not seek a recidivist
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`enhancement.
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`Moreover, Christian pleaded guilty to the crime, after having been fully apprised of his
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`rights and the penalties he faced by pleading guilty. Christian demonstrated his full knowledge
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`of the consequences of his plea agreement in the questionnaire he completed and signed in state
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`court. Questions Relative to Entry of Plea of Guilty, App’x 395-400, ECF No. 39-2. One of the
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`questions inquired as to the terms of any plea agreements. Christian stated that his understanding
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`of the agreement was that he faced a sentence of 25 years’ imprisonment on the robbery counts,
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`to run concurrently with each other and consecutive to the sentence for his federal offense; and 3
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`to 15 years’ imprisonment on the malicious assault charge, to run consecutive to these other
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`sentences. Id. at 399. The state court sentenced Christian precisely in accordance with this
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`agreement, Ex. 2 at 3-4, ECF No. 54-1; Christian received the exact sentence he anticipated
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`before entering his guilty plea.
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`9 For the reasons stated in Part II.B.6, infra, the Court does not find that this was an unreasonable
`interpretation of the facts as presented in the evidence in the state habeas proceeding.
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`Case 3:05-cv-00879 Document 80 Filed 08/08/13 Page 15 of 26 PageID #: 1725
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`Accordingly, this Court finds no deficiency in the State habeas adjudication on this claim
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`of ineffective assistance.
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`2.
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`Counsel’s failure to notify the court of a conflict with Christian
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`Christian next claims that a conflict existed between him and his counsel, of which
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`counsel had an obligation to notify the court. According to Christian, the conflict was that he
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`wanted to proceed to trial, but his counsel wanted him to enter a guilty plea. He asserts that
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`counsel’s failure to notify the trial court of this disagreement constituted ineffective assistance of
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`counsel.
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`After a de novo review, the Court agrees with the magistrate judge’s findings and
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`DENIES Christian’s objections. Because the magistrate’s analysis was sufficient, the Court will
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`only briefly discuss its reasons here. Christian correctly recited the rule that “[d]efense counsel
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`have an ethical obligation to avoid conflicting representations and to advise the court promptly
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`when a conflict of interest arises during the course of trial.” Cuyler v. Sullivan, 446 U.S. 335,
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`346 (1980). That rule, however, does not apply in this case. The duty described in Cuyler
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`applies specifically to attorneys who have a conflict of interest. See id. at 348. A conflict of
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`interest is some outsi