United States v. Adam Shepherd
Opinion of the Court
Adam Shepherd appeals the denial of his
I.
Shepherd exposed himself to two minor girls in Arizona in 2002. Arizona charged him with one count of indecent exposure to a minor (Count 1—a class six felony) and one count of public sexual indecency to a minor (Count 2—a class five felony). Under a plea agreement, Count 1 was dismissed, and Shepherd pleaded guilty to an amended Count 2.
The exact nature of the amended charge is disputed. Shepherd was originally charged with the class five felony of “[p]ublic sexual indecency to a minor.” See
Shepherd moved to Texas in 2011 but did not register as a sex offender. In 2012, Nicholas Rose, a Deputy U.S. Marshal Criminal Investigator, was notified by police that Shepherd was an unregistered sex offender.
Shepherd was arrested in June 2012
Shepherd entered a plea of “not guilty” and filed an “Unopposed Motion to Continue.” Counsel indicated that he had “recently received discovery” and needed “[additional time .. so that [he] may review discovery with Mr. Shepherd as well as confer with Assistant United States Attorney Tracy Thompson.” The court granted the motion in September 2012, and later that month Shepherd pleaded guilty.
At the plea hearing, the magistrate judge requested the government provide the factual basis for the offense. The government responded that “[i]f this case proceeded to trial ... the .Government would prove” that Shepherd was convicted in Arizona and Nevada for indecent exposure and that “[b]oth of those convictions qualify Mr. Shepherd as a sex offender under the Sex Offender Registration and Notification Act.” Further, the government claimed it would prove that “at no time did Mr. Shepherd register as a sex offender anywhere in the' state of Texas.” When questioned, Shepherd stated that he understood and agreed with the government’s factual basis.
On December 19, 2012, the district court sentenced Shepherd to twenty-four months of imprisonment, thirty years of' supervised release, and a $100 special assessment. Shepherd challenged the supervised release on appeal, and we affirmed. See United States v. Shepherd,
Upon request to show cause by the magistrate judge, Shepherd submitted a letter dated January 6, 2015, from Randy Ortega, the managing attorney for the crime records service department of DPS. Ortega stated that he reviewed the Arizona and Nevada convictions, and “[he] do[es] not see that [Shepherd] has a duty to register as a sex offender for either case, as the elements of these offenses as disposed are not substantially similar to a Texas Reportable Conviction .... ” Ortega testified that “[he is] the attorney currently who makes the determinations” concerning sex offender registration.
Ortega then explained that before August 30, 2012, DPS utilized a different method to determine whether an out-of-state offense was substantially similar to a reportable Texas offense.
In regard to Shepherd’s Arizona conviction, Ortega explained that DPS originally reviewed the underlying facts and determined “the facts ... [were] substantially similar to behavior that would otherwise be qualified as a reportable conviction.” So “there may have , been a prior duty” to register under the old method, but under the current method, where the facts cannot be considered, Shepherd is not required to register. Ortega viewed the Arizona conviction , as “attempted public sexual indecency,” which’does-not correlate to any reportable Texas' offense. He agreed that - “because the offense [Shepherd] pled to removed the word ‘minor’ from the conviction title,” "Shepherd “no longer would have to register.” The ambiguity of the plea document in regard to the offense caused him to “err[] on the side of caution” and “g[i]ve the defendant the benefit of the doubt.” Further, Ortega testified that if asked on August 31, 2012, whether Shepherd had a duty to register, he likely would have said no.
II.
The Sex Offender Registration and Notification Act (“SORNA”), Title I of the Adam Walsh Child Protection & Safety Act, requires “[a] sex offender [to] register, and keep the registration current, in each jurisdiction where the offender resides ...."
An out-of-state sex offender is required to register in Texas if his offense falls within the requirements of Texas Code of Criminal Procedure Chapter 62. The DPS determines whether an out-of-state offense is substantially similar to a reportable Texas offense so as to require the out-of-state offender to register.
III.
Shepherd both raises a freestanding claim of actual innocence and challenges the validity of his guilty-plea. “[O]ur case-law does not recognize freestanding actual innocence claims,” United States v. Fields,
On appeal of the denial of a § 2255 motion, we review the district court’s factual findings for clear error and its legal conclusions de novo. United States v. Underwood,
A.
“The longstanding test for determining the validity of a guilty plea is ‘whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.’”
B.
“Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice ‘was within the range of competence demanded of attorneys in criminal cases.’ ”
1.
“[T]he proper standard for attorney performance is that of reasonably effective assistance.”
“Judicial scrutiny of counsel’s performance must be highly deferential,]” and “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”
Shepherd’s court-appointed counsel testified that he performed only one task before recommending that Shepherd plead guilty: He “compared the Arizona statute with the Texas statute.” He “did not read any case law because at the time [he] thought in [his] analysis it was clear.” He “ha[s] no memory of’ “learning] that DPS had determined that the defendant, [his] client, was required to register as a sex
Under' these facts, counsel’s lack of inquiry beyond comparing 'the two statutes is IAC.
Where we have held defense counsel effective despite lackluster investigation, we “found either that counsel’s decision not to investigate was .part of a clearly developed defensive strategy, or that the defendant could point to no specific evidence that would have been uncovered by a more thorough investigation.” Nealy, 764 F.2d at 1178. Counsel offered, no strategic reason not to perform at least a cursory caselaw search, and Shepherd can point to specific evidence—Anonymous Adult. “[A] lawyer’s duty is to provide the client an understanding of the law and to give competent advice, and [ ] if the lawyer is unfamiliar with the relevant facts and law, the client’s guilty plea cannot be knowingly and voluntarily made because it will not represent an informed choice.”
Furthermore, “[w]e long have recognized that ‘[prevailing norms of practice as reflected in American Bar Association standards ... are guides to determining what is reasonable ... .’”
2.
Shepherd must next show prejudice, such that “counsel’s constitutionally ineffective performance affected the outcome of the plea process.” Hill, 474 U.S. at 59,
This determination depends on assessments such as “the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea[,]” which “depend[s] in large part on a prediction whether the evidence likely would have changed the outcome of a trial.”
“If the petitioner claims that counsel erred by failing to' investigate or discover certain exculpatory evidence, 'the prejudice determination will depend upon whether the discovery of such evidence would have influenced counsel to change his advice' regarding the guilty plea,”
a non-exhaustive list of potentially relevant factors, including: (1) the defendant’s “evidence to support his assertion” that he would have gone to trial had he known the [the relevant circumstances]; (2) “his likelihood of success at trial”; (3) “the risks [he] woúld have faced at trial”; (4) his “representations about his desire to retract his plea”; ... and (6) “the district court’s admonishments.”[28 ]
The Kayode factors support a finding of prejudice. The parties stipulated that Shepherd would have gone to trial if he knew about Anonymous Adult. Shepherd’s lawyer testified he would have moved to dismiss and counseled Shepherd to go to trial had he known about it. Shepherd likely had colorable theories at trial because of the ambiguities surrounding his Arizona conviction and the erroneous DPS comparison policy. Thus, we cannot presume that he would necessarily accept a plea if offered.
There is, however, an issue of causation. Anonymous Adult was decided in the middle of Shepherd’s attorney’s representation, so talking to DPS or conducting caselaw research, as Shepherd’s court-appointed attorney stated, “would’ve just been fortuity in timing.” It is true that had the attorney undertaken thorough investigation between June 15 and August 30, 2012, he would not have uncovered Anonymous Adult, and the prejudice inquiry would be more difficult. But that is not the circumstance before us now.
He conducted no such investigation. Instead, on August 31, 2012, he successfully filed an “Unopposed Motion to Continue” in which he stated, “Counsel recently received discovery in this case. Additional time, is requested so that counsel may review discovery with Mr. Shepherd as well as to confer with Assistant United States Attorney Tracy Thompson.” According to that motion, the lawyer was still in the midst of his “inyestigation” as of August 31, 2012, such that he does not yet appear to have advised his client to plead guilty. An attorney in his position would have discovered Anonymous Adult had he been performing the sort of reasonable investigation that his motion suggests he would be undertaking. Thus, “fortuitous”, timing does not bar a finding of prejudice.
The government responds that even if Shepherd is not currently required to register, he was required to do so before August 30, 2012, such that Anonymous Adult has no effect on this case.
Moreover, the district court’s substantially-similar analysis comes up short.
On.the other hand, Arizona’s “Public Sexual Indecency to a Minor” statute may be substantially similar.
Given the totality of the circumstances, Shepherd was prejudiced by IAC, thereby rendering his plea involuntary. The order denying the § 2255 motion is REVERSED, and an order granting it is RENDERED.
. The indictment stated that Shepherd "intentionally or knowingly engaged in an act of sexual contact and was reckless about whether a minor under the age of fifteen years was present, in violation of A.R.S. § 13-1403 .. The Court Information Sheet specified, "COUNT 2: PUBLIC SEXUAL INDECENCY TO A MINOR, A CLASS 5 FELONY."
. The Arizona order suspending Shepherd’s sentence also states, "OFFENSE: Amended Count II: Attempted Public Sexual Indecency Class 6 Felony .... ”
. After Shepherd violated his probation, Arizona moved to revoke it in 2006, and a non-extraditable arrest warrant was issued.
. It appears that but for Shepherd's agreeing to register as a sex offender as part of his plea agreement, Arizona law would not have required him to register, regardless of which crime formed the basis of his plea. For public-sexual-indecency violations, Arizona law requires registration when the offender has been convicted either three times for general public sexual indecency or twice for public sexual indecency to a minor. See
.Nevada prosecutes "indecent or obscene exposure” as a "gross misdemeanor” for the first offense. But subsequent offenses (including comparable out-of-state offenses) and offenses involving minors under the age of 18 are prosecuted as a category D felony.
. Rose indicated he “do[es]n’t know how the detective cáme about knowing [Shepherd] was here.”
. That is also the date he was appointed counsel—an Assistant Federal Public Defender.
. Though Shepherd served his twenty-four months in prison, the thirty years of supervised release remains in effect.
. Ortega, however, was not the attorney who handled the 2012 , inquiry about Shepherd’s registration status. Though Ortega was the managing attorney at that time, “one of [his] staff” handled the 2012 inquiry.
. Ortega also explained that the governing authority on how to determine whether a crime is substantially similar to a Texas reportable offense is Prudholm v. State,
.The facts can be reviewed only where the out-of-state offense is broader than the reportable Texas offense. In that case, DPS may consider the facts of the out-of-state conviction to determine whether the perpetrator would have committed an offense under Texas’s narrower statute. See Anonymous Adult,
. United States v. Bass,
. Hill v. Lockhart,
. United States v. Washington,
. Hill,
. The court-appointed attorney also testified, “I don’t remember ever seeing that” DPS' ruled he had to report.
. The attorney also stated, "If I had read the [Anonymous Adult] opinion, but I didn’t—I didn’t review. I missed it.”
. See Nealy v. Cabana,
. See United States v. Juarez,
. Juarez,
. Id. at 388 (quoting Padilla v. Kentucky,
. ABA Standard for Criminal Justice 4-4.6 (4th ed. 2015); see also id. at 4-4.1 (“Defense counsel’s investigation of the merits of the criminal charges should include efforts to secure relevant information in the possession of the prosecution, law enforcement authorities, and others, as well as independent investigation.”).
. United States v. Batamula,
. United States v. Kayode,
. Mangum v. Hargett,
. Shepherd’s attorney also testified as follows;
"And if I had become aware of the fact that the state of Texas no longer considered that particular set of facts sufficient to require that the defendant reports, then -it would be my opinion that he would not be guilty of the federal offense ...”
"Because- if- it’s not criminal now and it’s always been not criminal, then there’s not a basis for conviction.”
“[I would have] challenge^] the charging document .., [and informed the judge that he was] about to sentence this person, for something thafis no longer criminal.”
“I would have asked to withdraw the plea, yes.”
. See Juarez,
. Batamula,
. See also Lee v. United States, — U.S. —,
. See United States v. Williamson,
. The government claims that DPS is the final arbiter of whether someone must regis
Further, the government contends that Anonymous Adult introduced a new rule for determining whether someone must register. Shepherd responds that Anonymous Adult is not a new rule, because it merely applies Texas Department of Public Safety v. Garcia,
. The district court also hints that DPS made no registration determination; the court said that "a DPS attorney opined” on whether Shepherd must register. That is a mischar-acterization, DPS informed Shepherd that he was not required to register when he attempted to register following his release from prison. On request of the magistrate judge that Shepherd provide cause to show that he did not have to register, Shepherd submitted a letter from Ortega—then managing attorney of DPS's crime records service department— confirming that Shepherd did not need to register in Texas. That letter is printed on official DPS letterhead, and Ortega testified that only "[a] district'court in Travis County could” override any determination he made.
Additionally, though neither party discusses it; that there is ambiguity over whether a defendant can challenge a DPS registration decision in the context of a criminal appeal. See Crabtree,
. Compare
. In fact, Ortega testified that "21.07 of the Texas Penal Code, public lewdness, has elements that are substantially similar,, if not almost exact to the Arizona offense of public sexual indecency.” Ortega explained that public lewdness is not a reportable offense. See Tex. Code Crim. Proc. Ann. § 62.001(5) (defining reportable offenses).
. See
.Proving that a defendant was convicted of the offense that DPS finds substantially similar is an element of proving failure to register in Texas. Crabtree,
Dissenting Opinion
dissenting:
The majority today reverses the district court’s denial of Adam' Shepherd’s § 2255 motion and then grants .his motion. With due respect, this is an unnecessary ruling because Shepherd’s Arizona conviction documents show he was convicted of a crime that is substantially similar to Texas’s “Indecency with a Child” statute. I respectfully dissent.
The majority finds that Shepherd’s guilty plea was involuntary due to ineffective assistance of counsel.The alleged deficiency by Shepherd’s defense counsel was his failure to find a Texas Third Court of Appeals decision, Texas. Department of Public Safety v. Anonymous Adult Texas Resident, which was issued, but did not become a final decision, during Shepherd’s prosecution proceedings. Anonymous Adult changed the method by which the Department of Public Safety (“DPS”) determines whether someone was required to register as a sex offender in Texas for out-of-state offenses.
As the majority ’ explains, Anonymous Adult directs the DPS to compare only the elements of an out-of-state offense with the elemerits of a Texas reportable offense
Despite the majority’s conclusion, Shepherd’s plea document is not ambiguous. The document states that Shepherd agrees to plead guilty to “Attempted Public Sexual Indecency, a class 6 designated felony, in violation of A.R.S. 13-1403 ... 13-1001 ... committed on August 28, 2002.” ROA. 162. While this document does not explicitly state Shepherd acted toward a minor, Arizona law makes clear that Shepherd agreed to plead guilty to attempted public sexual indecency involving a minor. Section 13-1403, titled “Public sexual indecency; public sexual indecency to a minor; classification,” states that “[p]ublic sexual indecency is a class 1 misdemeanor and “public sexual indecency to a minor is a class 5 felony.”
Shepherd’s plea document makes clear that his offense is a “class 6 felony.” Arizona’s attempt classification thus tells us that the crime Shepherd attempted-is a class 5 felony when completed. Public sexual indecency to a minor is a class 5 felony. See
. Section 13-1001 contains no provision allowing for classification of an attempted misdemeanor as a felony.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Adam Daniel SHEPHERD, Defendant-Appellant
- Cited By
- 23 cases
- Status
- Published