                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                                FEB 16 2010

                                                                             MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS

DAVID BOYLEN MANLEY,                              No. 08-36011

              Petitioner - Appellee,              D.C. No. 3:07-cv-00009-JE

  v.
                                                  MEMORANDUM *
BRIAN BELLEQUE, Superintendent,
Oregon State Penitentiary,

              Respondent - Appellant.


                  Appeal from the United States District Court
                            for the District of Oregon
                Ancer L. Haggerty, Senior District Judge, Presiding

                      Argued and Submitted February 2, 2010
                               Seattle, Washington

Before: RYMER, GOULD and BYBEE, Circuit Judges.

       The State appeals the district court’s grant of a petition for a writ of habeas

corpus to David Boylen Manley. Because the state court’s resolution of Manley’s

claims was not an unreasonable application of clearly established federal law, we




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
reverse the judgment of the district court.1 Manley presents three claims on

appeal.2

      1. Manley’s first claim is that his plea counsel provided ineffective

assistance of counsel because he failed to warn Manley that the State would seek a

hearing in aggravation and the maximum sentence (through consecutive and

departure sentences). We are unpersuaded.

      Plea counsel informed Manley of the maximum possible sentence if he went

to trial (around fifty years) and if he pleaded guilty (around thirty-five years).

Counsel told Manley that the State could seek consecutive sentences and departure

sentences.3 The two discussed the “sentencing consequences,” including the worst

case scenario and the best case scenario. It is true that counsel did not tell Manley


      1
        See 28 U.S.C. § 2254(d)(1)-(2). State court findings of fact are presumed
correct unless rebutted by clear and convincing evidence. See 28 U.S.C. §
2254(e)(1). We consider Manley’s arguments in light of these standards.
      2
       In light of the State’s admission at oral argument that in this case there is
not a meaningful difference between departure sentences and consecutive
sentences, we conclude that Manley has properly exhausted his claims.
      3
        While we recognize that there are slight inconsistencies in the record
concerning whether counsel advised Manley about the possibility of departure
sentences, we defer to the state post-conviction court’s reasonable factual finding
that counsel was credible when counsel testified in his post-conviction affidavit
and in his post-conviction deposition that he advised Manley of the potential for
departure sentences. See Wood v. Allen, --- U.S. ---, No. 08-9156, 2010 WL
173369, at *6–7 (Jan. 20, 2010).

                                           2
that the State would seek a hearing in aggravation or that the State would seek the

maximum sentence, but these omissions did not render counsel’s performance

ineffective.

      When counseling a guilty plea, “it is the responsibility of defense counsel to

inform a defendant of the advantages and disadvantages of a plea agreement.”

Libretti v. United States, 516 U.S. 29, 50 (1995). At the same time, “[w]aiving

trial entails the inherent risk that the good-faith evaluations of a reasonably

competent attorney will turn out to be mistaken.” McMann v. Richardson, 397

U.S. 759, 770 (1970). As an initial matter, nothing in the record suggests that

Manley’s counsel knew that the State would seek a hearing in aggravation. Nor is

there evidence that counsel knew that the State would seek the maximum sentence.

This is reason enough to reject Manley’s argument. We do not see how Manley’s

counsel could be expected to tell Manley something of which counsel himself was

not aware. At the time, Manley’s counsel faced a difficult situation. Manley was

not a sympathetic defendant. Significant evidence (including the testimony of the

victim, Manley’s wife) portrayed him as an abusive husband who had, among other

things, raped his wife in front of his children. Counsel’s decision, in the face of

two less-than-ideal options, to highlight Manley’s prospects for leniency did not

make his representation ineffective. At the very least, it was not unreasonable for


                                           3
the state court to so hold. 28 U.S.C. § 2254(d)(1); see Williams v. Taylor, 529 U.S.

362, 407 (2000).

      Viewed more charitably, Manley’s claim is that his counsel should have

placed greater emphasis on the possibility that the State would seek a hearing in

aggravation and the maximum sentence. We disagree. In hindsight, counsel

undoubtedly could have done some things differently. But in reviewing counsel’s

representation, we must make “every effort . . . to eliminate the distorting effects of

hindsight . . . and to evaluate the conduct from counsel’s perspective at the time.”

Strickland v. Washington, 466 U.S. 668, 689 (1984).

       2. Manley’s second claim is that his plea counsel was ineffective for

advising Manley to do a “straight up guilty plea” even though Manley had always

maintained his innocence. Once again, we disagree.

      Manley’s guilty plea undermines his argument that he had always

maintained his innocence. As part of pleading guilty, Manley told the judge in

open court that he did, in fact, commit the crimes with which he was charged. As a

general matter, “[s]olemn declarations in open court carry a strong presumption of

verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).

      Moreover, it is not entirely clear what more Manley wanted his counsel to

do in this respect. Manley’s counsel could not have recommended that Manley


                                          4
offer an Alford plea because the State would not agree to a plea bargain if Manley

insisted on entering an Alford plea.4 As a result, Manley’s only two options were

to plead guilty or to go to trial. Manley’s counsel told Manley that he believed that

Manley faced greater exposure if he went to trial, and that there was a possibility

for leniency if he pleaded guilty. Cf. 1 ABA STANDARDS OF CRIMINAL JUSTICE 14-

3.2 (3d ed. 1999) (“[D]efense counsel . . . should advise the defendant of the

alternatives available . . . .”). If Manley wished to continue to maintain his

innocence, he was free to refuse the State’s offer. Nothing in counsel’s advice

rendered Manley’s guilty plea unknowing or involuntary. Because we conclude

that plea counsel’s performance “f[ell] within the wide range of reasonable

professional assistance,” Strickland, 466 U.S. at 689, we need not address the

question of prejudice.

      3. Manley’s last claim is that his sentencing counsel was ineffective for

failing to move for recusal of the sentencing judge. We disagree. The record

supports the state post-conviction court’s determination that “[s]entencing counsel

had no basis to file a motion to recuse the sentencing court,” and that the

sentencing court “afforded petitioner a fair and impartial hearing.”

      4
       An Alford plea is a guilty plea accompanied by the defendant’s claim of
innocence. Edwards v. Carpenter, 529 U.S. 446, 448 (2000) (citing North
Carolina v. Alford, 400 U.S. 25 (1970)).

                                          5
REVERSED.




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