McCurdy v. Davey

Background

James C. McCurdy filed a petition under 28 U.S.C. § 2254 challenging the revocation of his probation. In 2011, he pleaded no contest to felony transportation of a controlled substance, received a seven-year suspended sentence, and was placed on five years of probation. In June 2014, the state court revoked his probation and committed him to prison for seven years.

McCurdy did not appeal the probation revocation. He instead filed state-court petitions, all of which were denied. He later filed this federal petition. The court previously dismissed three of his four claims as untimely and ordered him to proceed only on his claim that counsel had provided ineffective assistance during the probation-revocation proceedings. The court stayed the case so McCurdy could exhaust that claim in state court, then later reopened the case.

Claim and legal standard

McCurdy argued that his lawyer was ineffective by advising him to admit that he violated probation and by failing to negotiate with the Sonoma County Superior Court. To prove ineffective assistance of counsel, McCurdy had to show both that counsel’s performance fell below an objectively reasonable standard and that counsel’s errors probably affected the outcome. The court applied the deferential federal standard for reviewing a claim that was adjudicated by a state court.

Court’s analysis

The court found that the record contradicted McCurdy’s assertion that counsel had not tried to negotiate. At the first probation hearing, counsel requested and received more time for settlement discussions. At the second hearing, counsel said that he and the prosecution needed to continue their discussions. McCurdy himself said that he agreed to the extension because they were trying to compromise. The court therefore concluded that counsel had attempted to negotiate, although the effort was unsuccessful.

The court also rejected any claim based on counsel’s failure to secure a plea deal or predict the result of the proceedings. It stated that a defendant has no right to receive a plea offer or to have a judge accept one, and that an attorney’s incorrect prediction about a likely sentence does not by itself establish ineffective assistance.

The court separately held that McCurdy had not shown prejudice from admitting that he violated probation. McCurdy conceded that he had violated probation, and public court records showed that he had been convicted of at least one misdemeanor while on probation. The court concluded that his admission mainly saved the prosecution from having to introduce those records. It also found that McCurdy had not shown how admitting to two violations, rather than one, would have changed the outcome. The state court had treated his admission as relating to the misdemeanor conviction alone.

Disposition

The court denied the operative petition. It also denied a certificate of appealability because McCurdy had not made the required showing that a constitutional right was denied or that reasonable judges could debate the court’s assessment of his claims. The court entered judgment for the respondent, directed the clerk to terminate pending motions, and closed the file.