United States v. Adam Shepherd

Citation: 880 F.3d 734Docket: 15-50991

Court: Court of Appeals for the Fifth Circuit; January 25, 2018; Federal Appellate Court

Original Court Document: View Document

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Adam Shepherd appeals the denial of his 28 U.S.C. § 2255 motion, arguing that his guilty plea was involuntary due to ineffective assistance of counsel. In 2002, he was charged in Arizona with indecent exposure to a minor and public sexual indecency to a minor. Under a plea agreement, he pleaded guilty to an amended charge, described as "Attempted Public Sexual Indecency," classified as a class 6 felony. There is a dispute regarding the nature of this amended charge and whether it required registration as a sex offender.

Shepherd received a suspended sentence and lifetime probation but violated his probation in 2006, leading to a non-extraditable arrest warrant. Although he agreed to register as a sex offender as part of the plea, Arizona law would not have mandated registration without prior convictions for similar offenses. After moving to Nevada, Shepherd was charged again for indecent exposure in 2006 and sentenced in 2007, also requiring him to register as a sex offender.

He later moved to Texas in 2011 but failed to register, leading to his arrest in 2012 for violating the Sex Offender Registration and Notification Act. The case emphasizes the complexities surrounding the classification of offenses and registration requirements across different jurisdictions. The court ultimately reverses the lower court's decision and grants Shepherd's motion based on the ineffective assistance of counsel.

Shepherd has resided in Texas since 2011 and initially did not register as a sex offender, believing he was not required to do so under Texas law. He pleaded 'not guilty' and filed an 'Unopposed Motion to Continue,' citing the need for additional time to review discovery and consult with the Assistant United States Attorney, which the court granted. Later, Shepherd pleaded guilty, acknowledging his prior convictions for indecent exposure in Arizona and Nevada, which the government asserted qualified him as a sex offender under the Sex Offender Registration and Notification Act. The government indicated it would prove that Shepherd failed to register in Texas. 

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 appealed the supervised release, which was affirmed by the Fifth Circuit. After his release, Shepherd sought to register as a sex offender in Texas but was informed by the Department of Public Safety (DPS) that he had no duty to register based on his convictions. In October 2014, he filed a motion to vacate his sentence under 28 U.S.C. § 2255, claiming he was never legally obligated to register and that his attorney was ineffective for not raising this defense.

Shepherd submitted a letter from Randy Ortega, the managing attorney for the crime records service at DPS, stating that after reviewing Shepherd's convictions, he found no duty to register as the offenses were not substantially similar to reportable Texas offenses. Ortega explained that prior to a 2012 court decision, DPS considered the facts of out-of-state offenses, but the current standard only requires comparing the elements of the offenses. He noted that while Shepherd might have had a prior duty to register under the old method, he does not under the new one, as his Arizona conviction is not classified as a reportable offense in Texas. Ortega indicated that the ambiguity in the plea document regarding the offense led him to conclude Shepherd should not have to register.

The district court denied Shepherd's 2255 motion, rejecting the magistrate judge's recommendation, and concluded that the Department of Public Safety (DPS) was incorrect in its January 2015 determination that Shepherd was not required to register as a sex offender, citing the similarity between Arizona and Texas laws. The court granted a certificate of appealability on two issues: whether Shepherd's plea was involuntary due to his lack of knowledge regarding the DPS's position and whether he was actually innocent of the federal offense. Under the Sex Offender Registration and Notification Act (SORNA), individuals must register in jurisdictions where they reside, and failing to do so after traveling interstate constitutes a federal crime. The criteria for SORNA applicability include having a state law sex offense requiring registration, traveling interstate, and failing to register as mandated. Texas law requires out-of-state sex offenders to register if their offenses are deemed substantially similar to Texas offenses, as determined by the DPS.

Shepherd raises claims of actual innocence and challenges the validity of his guilty plea. However, freestanding claims of actual innocence are not recognized, so the focus is on the plea's validity. The standard for a valid guilty plea requires it to be a voluntary and intelligent choice, with the defendant understanding the charges and constitutional rights waived, as well as having competent legal counsel. Shepherd contends his plea was involuntary due to ineffective assistance of counsel (IAC) and the lack of awareness about registration requirements. The court agrees with Shepherd on the IAC claim, thus not addressing the registration issue. The voluntariness of a plea hinges on whether counsel's advice met the competence standards set forth in Strickland v. Washington, requiring a showing of both deficient performance and resulting prejudice.

The standard for attorney performance is reasonably effective assistance, requiring a showing that counsel’s representation fell below an objective standard of reasonableness. Judicial review of counsel's performance is highly deferential, with a presumption that counsel's conduct is within a wide range of reasonable professional assistance. Evaluations must eliminate hindsight bias and consider the circumstances at the time of the conduct. Strategic choices by counsel are generally upheld if based on thorough investigation, while those made with limited investigation must still align with reasonable professional judgments.

In Shepherd's case, his court-appointed counsel only compared the Arizona and Texas statutes before recommending a guilty plea, neglecting to read case law or investigate the basis for the registration requirement under Texas law. This lack of inquiry, especially regarding how the registration decision was made, constitutes ineffective assistance of counsel (IAC). Counsel should have at least conducted a cursory search for relevant case law or consulted the determining agency. Previous decisions upheld counsel’s performance when there was a clear defensive strategy or insufficient evidence for a more thorough investigation, neither of which applies here.

Counsel’s failure to provide adequate legal understanding undermines the informed nature of Shepherd's plea. The American Bar Association standards suggest that adequate preparation includes reviewing documents, conducting legal research, and contacting relevant individuals. Shepherd's counsel did not meet these standards. To demonstrate prejudice, Shepherd must show a reasonable probability that he would not have pleaded guilty and would have chosen to go to trial but for counsel’s errors.

Determining whether Shepherd would have benefited from going to trial involves assessing the likelihood that the discovery of exculpatory evidence would have influenced his counsel's advice regarding a guilty plea. Shepherd must show a reasonable chance of a more favorable outcome had he gone to trial. The totality of circumstances is considered in this assessment. Counsel's failure to investigate potentially exculpatory evidence, specifically regarding "Anonymous Adult," is critical. Testimony indicates that had the attorney been aware of this evidence, he would have pursued a motion to dismiss and advised Shepherd to go to trial, suggesting that the outcome could have been different.

Factors from United States v. Kayode are relevant to the prejudice determination, including Shepherd's claims about his willingness to go to trial, his chances of success, and the risks involved. The parties agreed that Shepherd would have opted for trial if informed about Anonymous Adult. Ambiguities surrounding Shepherd's prior conviction and DPS policies support the notion that he had plausible defenses.

The district court's lack of awareness of Anonymous Adult and its implications means that Shepherd's plea may not have been fully informed. There are causation issues since the Anonymous Adult decision occurred during the attorney's representation. Although thorough investigation could have revealed this evidence, the attorney did not conduct such an investigation. A motion filed shortly after the decision indicates that he was still gathering information, implying he had not yet advised a guilty plea. Although the government argues that Shepherd was required to register before the Anonymous Adult ruling, the retroactive application of that decision remains an unresolved issue that Shepherd could have raised at trial.

The district court's analysis incorrectly equated Arizona's 'Public Sexual Indecency' statute with Texas's 'Indecency with a Child' statute, despite key differences; notably, the Texas statute specifically requires the involvement of a child under 17, while the Arizona statute does not. Although Arizona has a separate 'Public Sexual Indecency to a Minor' statute that may align more closely with the Texas offense, ambiguity exists regarding whether Shepherd's guilty plea pertained to the general 'Public Sexual Indecency' or the specific offense involving a minor, as the plea document lacks mention of a minor. The principle established in Anonymous Adult restricts consideration of underlying facts when assessing the similarity of offenses, a matter that remains contentious for future proceedings. The court concluded that Shepherd's plea was involuntary due to ineffective assistance of counsel, specifically the failure to identify relevant case law that could have impacted his registration requirements as a sex offender in Texas. The majority reversed the denial of Shepherd’s 2255 motion, granting it instead, while dissenting Judge Edith H. Jones argued that Shepherd's conviction was substantially similar to the Texas statute, thus challenging the majority's conclusion about the plea’s involuntariness.

Shepherd's plea document is clear, stating he pled guilty to "Attempted Public Sexual Indecency," a class 6 designated felony under Arizona law. Although the document does not explicitly mention that Shepherd acted towards a minor, Arizona statutes clarify that his plea indicates an attempt involving a minor. Under A.R.S. § 13-1403, public sexual indecency towards a minor is classified as a class 5 felony, while general public sexual indecency is a class 1 misdemeanor. The definition of attempt under A.R.S. § 13-1001 indicates that an attempt to commit a class 5 felony is a class 6 felony. Therefore, since Shepherd's plea is classified as a class 6 felony, it must pertain to an attempted public sexual indecency with a minor. This interpretation does not require examination of the specifics of Shepherd's conviction. Additionally, the Department of Public Safety (DPS) could have mandated Shepherd to register, regardless of the retroactive application of Anonymous Adult to his failure to register before August 30, 2012. The Federal Public Defender's failure to identify Anonymous Adult, even if seen as defective representation, did not harm Shepherd's case. Consequently, the district court's denial of Section 2255 relief should be upheld.