McCutcheon v. DiCarlo

135 F. App'x 995

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 27, 2005
• Docket: No. 03-57240; D.C. No. CV-02-00773-R
• Status: Published

Opinion

MEMORANDUM

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Even if Petitioner’s attorneys never communicated his precise maximum sentence exposure from proceeding to trial, they did let him know he had a prior strike, and they did advise him that his exposure was “horrible.” E.R. at 211. As the Superior Court judge noted, Petitioner was not inexperienced in criminal matters and could be expected to understand the. implications of the prior strike on the felony charges he was facing. E.R. at 234. In these circumstances, counsel’s reference to “a horrible exposure” should have alerted Petitioner that he would be facing many years in prison if convicted. Counsel’s assistance was not ineffective because it did not amount to a “gross mischaracterization of the likely outcome presented in the case.” Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir.1986).

AFFIRMED.

REINHARDT, Circuit Judge.

Given the facts and the circumstances of this case, I conclude that counsel was ineffective when he faded, as the state court found, to advise the defendant of the minimum and maximum sentences he faced. I also conclude, given those facts and circumstances, that it was objectively unreasonable for the state court to determine that the defendant was not amenable to a plea. The record to the contrary is quite compelling.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.