Gomez v. Sullivan

Background

Elroy P. Gomez filed this self-represented petition under 28 U.S.C. § 2254, challenging his California conviction for attempted premeditated murder and related offenses. The jury also found that he personally inflicted great bodily injury and personally used a deadly or dangerous weapon. The trial court imposed a total sentence of 24 years and four months to life.

Gomez’s sole federal claim was that his appointed trial lawyer provided ineffective assistance during plea negotiations. Gomez asserted that the prosecution offered a nine-year sentence and that counsel failed to advise and encourage him to accept it. According to Gomez, counsel should have explained that conviction for assault with a deadly weapon was certain or highly likely, that an attempted-murder conviction was reasonably possible, and that the sentence after trial could be substantially longer. Gomez declared that he would have accepted the offer if counsel had explained those matters.

The state appellate courts denied relief. The California Court of Appeal rejected the claim on direct appeal under a rule limiting review of claims requiring evidence outside the appellate record. The California Court of Appeal and California Supreme Court later summarily denied Gomez’s state habeas petitions, which included supporting declarations.

Federal Habeas Standard

Because the state courts had adjudicated the federal claim, the court applied the deferential standard in the Antiterrorism and Effective Death Penalty Act. Under that standard, federal relief was available only if the state court’s decision contradicted clearly established United States Supreme Court law, unreasonably applied that law, or rested on an unreasonable determination of the facts.

The court applied the two-part test for ineffective assistance of counsel. Gomez had to show both that counsel’s performance fell below reasonable professional standards and that the deficient performance caused prejudice. For a rejected plea offer, prejudice required a reasonable probability that Gomez would have accepted the offer, that the court would have accepted its terms, and that the resulting conviction or sentence would have been less severe than the judgment actually imposed.

The Nine-Year Offer

The court rejected the argument that the state court could reasonably have denied relief solely because no nine-year offer existed. Although the record was unclear about which offers were made, when they were made, and by whom, the record included support for the conclusion that a nine-year offer was extended at or before the first trial in September 2015. The record included recollections from the trial court and Gomez, as well as notes attributed to a prosecutor’s predecessor. A supervising prosecutor did not remember making the offer but acknowledged that it might have been made.

The court noted that the state court reasonably could have found that the offer was not renewed in February 2016. That finding alone, however, would not resolve the claim because the court analyzed whether counsel was ineffective regarding the offer made in September 2015.

Deficient Performance

The court concluded that the California Supreme Court reasonably could have found that Gomez failed to prove deficient performance. The record did not corroborate Gomez’s assertions that counsel failed to explain the listed sentencing facts or told him that he would “beat” the case. Instead, counsel had acknowledged at two points that an assault conviction was possible or likely. The court also noted that Gomez did not state that counsel failed to tell him about the offer or the maximum sentence, did not describe what he told counsel when the offer was made, and did not identify what counsel actually discussed with him beyond the statement that they would beat the case.

The record also indicated that Gomez had wanted a drug-treatment program instead of prison and rejected a plea involving prison time. The court further noted that Gomez later offered to accept a 14-year deal after plea negotiations ended. On the record presented, the state court reasonably could have applied the presumption that counsel acted within the range of reasonable professional assistance.

The court also explained that counsel was not constitutionally required to predict with certainty what a jury would decide. Gomez had defenses to the attempted-murder and assault charges because the prosecution had to prove those charges beyond a reasonable doubt. The defense challenged the victim’s credibility and argued that the injuries resulted from a fight connected to a dispute about drugs. The court concluded that conviction and a sentence of nine years or more were not guaranteed if Gomez went to trial.

Prejudice

The court also concluded that the California Supreme Court reasonably could have found no prejudice. The difference between the nine-year offer and Gomez’s actual sentence was not, by itself, enough. The relevant comparison was between the offer and the probable consequences of trial as viewed when the offer was made, rather than between the offer and the worst possible or actual outcome.

The court reasoned that the probable trial sentence could have been roughly 12 to 16 years if Gomez were convicted of the assault charge and related enhancements, while an attempted-murder conviction appeared less likely based on counsel’s statements and the defense’s view of the evidence. The difference between nine years and that probable range provided some support for Gomez’s claim, but the victim’s credibility problems, the lack of evidence that counsel failed to communicate the offer, and Gomez’s stated preference for treatment over prison supported the state court’s conclusion that Gomez had not established prejudice.

Disposition

The court denied Gomez’s habeas petition on the merits. It ordered the Clerk to close the file and denied a certificate of appealability, stating that reasonable jurists would not find the court’s assessment of the constitutional claims debatable.