Crace v. Herzog, No. 13-35650 [August 14, 2015]
Crace’s claimed that trial counsel was ineffective in failing to request a jury instruction on unlawful display of a weapon a lesser included offense of second-degree assault, for which, under Washington’s three-strikes law, he received a life without possibility of parole sentence. The Washington Supreme Court denied his claim on the grounds he failed to show prejudice. Affirming the district court’s grant of the petition the court found the decision was an unreasonable application of clearly establish federal law and, on de novo review the ineffective assistance claim warranted relief. The Washington Supreme Court applied two presumptions: first, presuming that the jury must have found that each of the elements of attempted second-degree assault had been proved beyond a reasonable doubt when it convicted him and second, because the evidence was sufficient to support the verdict it was presumed that and instruction on the lesser included offense would have made no difference to the outcome of the trial. The court found that this “methodology is a patently unreasonable application of Strickland, and its decision in this case is thus unworthy of deference under AEDPA.” “[I]n ineffective-assistance cases involving the failure to request a lesser-included-offense instruction, Strickland requires a reviewing court to assess the likelihood that the defendant’s jury would have convicted only on the lesser offense.” Under Washington’s approach a defendant can only show Strickland prejudice when the evidence is insufficient to support the jury’s verdict – a circumstance in which the defendant does not need to rely on Strickland at all because Jackson already provides a basis for relief. Based on the evidence here “a jury could rationally choose to convict Crace only of unlawful display of a weapon.” Reviewing the deficient performance de novo as the Washington Supreme Court declined to reach that issue the Court found the attorney’s performance was clearly deficient. “A trial attorney’s failure to request a jury instruction receives no deference, however, when it is based on ‘a misunderstanding of the law’ rather than ‘a strategic decision to forgo one defense in favor of another.” Here, it was neither strategic nor deliberate and, therefore, upheld the granting of his petition.