                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 22 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



BRIAN RITCHIE,                                   No. 08-35923

             Petitioner - Appellee,              D.C. No. 3:05-cv-01110-HA

  v.
                                                 MEMORANDUM *
SHARON BLACKETTER,

             Respondent - Appellant.



BRIAN RITCHIE,                                   No. 08-35924

             Petitioner - Appellee,              D.C. No. 3:05-cv-00963-HA

  v.

SHARON BLACKETTER,

             Respondent - Appellant.



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

                     Argued and Submitted December 8, 2009
                                Portland, Oregon

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.

      The Superintendent of the Eastern Oregon Correctional Institution appeals

the district court’s grant of a conditional writ of habeas corpus to Brian Ritchie.

We affirm.

      We agree with the district court that trial counsel’s performance was

deficient and that the deficiency prejudiced Ritchie’s defense. See Strickland v.

Washington, 466 U.S. 668, 687 (1984). Trial counsel did not explain to Ritchie the

elements of the offense of compelling prostitution. O R. R EV. S TAT. §

167.017(1)(b). Specifically, trial counsel could not answer the question whether

the statute proscribes paying for sex with a minor with oneself, or whether it

applies only to a person who induces or causes a minor to engage in paid-for sex

with some third party. If Oregon case law indeed provided no guidance on that

question, then counsel’s advice to plead guilty because the elements of the offense

were a “gray area” might have been appropriate.

      In fact, however, as the district court assumed, Oregon law is clear enough

on this question that competent counsel would have advised Ritchie that the statute

applies only to remunerated sex with a third party. In State v. Leach, 487 P.2d 114

(Or. Ct. App. 1971), the Oregon Court of Appeals interpreted an earlier version of

Oregon’s adult promoting prostitution statute, former O R. R EV. S TAT. § 167.125


                                           2
(1969), which contained language similar to the statute at issue here.1 Reversing

the defendant’s conviction under O R. R EV. S TAT. § 167.125 for offering to pay a

woman for sex, the court held that “pandering statutes are not violated when, as

here, one merely obtains or attempts to obtain sexual favors for himself.” 487 P.2d

at 115.2

      Trial counsel’s failure to tell Ritchie that an Oregon court had held that

pandering statutes do not apply to prostitution customers prevented him from

making an informed decision about whether to go to trial, because he did not know


      1
       O R. R EV. S TAT. § 167.125 (1969) provided in relevant part:
             Any person who knowingly persuades, induces, entices or coerces
      or causes to be persuaded, induced, enticed, or coerced, or aids or assists
      in persuading, inducing, enticing, or coercing any person to engage in the
      practice of prostitution or to go from one place to another in this state for
      the purpose of prostitution, or who with the intent and purpose that such
      person shall engage in the practice of prostitution, whether with or
      without his consent, and who thereby knowingly causes or aids or assists
      in causing such person to be carried or transported as a passenger upon
      the line or route of any common carrier in this state, shall be punished
      upon conviction by a fine of not less than $100 nor more than $5,000, or
      by imprisonment in the penitentiary for not more than five years.
      2
         The Superintendent’s briefing in this case was less than forthcoming
regarding Leach. The reply brief cited a treatise for the proposition that some state
courts have interpreted prostitution pandering statutes similar to the one in this
case as inapplicable to defendants who procure sex for themselves, but terminated
the citation with “Footnotes omitted.” The implication was that Oregon had no
such case law. But the “[f]ootnote[] omitted” with regard to the point mentioned
above cited only Leach, an Oregon case. This omission, whether intentional or
sloppy, does not exhibit the care we expect from counsel.

                                           3
whether he could be convicted of compelling prostitution on his version of the

facts. Counsel’s deficient performance thus precluded Ritchie from entering a

knowing, voluntary, and intelligent plea. As the district court held, counsel’s

errors were compounded by the conduct of the trial judge, who made no inquiry

into either the elements of compelling prostitution or the factual basis for Ritchie’s

guilty pleas as to those counts during the plea colloquy.

      Ritchie has shown that “there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial,” Hill v. Lockhart, 474 U.S. 52, 59 (1985): He affirmatively

attempted to withdraw his pleas and to go to trial, but the trial court would not

permit him to do so. We therefore agree with the district court that Ritchie was

deprived of effective assistance of counsel and that it was unreasonable of the state

court to hold otherwise.

      AFFIRMED.




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