Sjoberg v. Henley

[1] 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 THOMAS JUSTIN SJOBERG, Case No. 3:20-cv-00322-ART-CLB 5 Petitioner, ORDER v. [6] JOHN HENLEY,1 [7] Respondents. [8] 9 Petitioner Thomas Justin Sjoberg (“Petitioner” or “Sjoberg”), who entered 10 an Alford2 plea to lewdness with a child under the age of 14 years and was 11 sentenced to ten years to life in prison, filed a petition for writ of habeas corpus 12 under 28 U.S.C. § 2254 . (See ECF Nos. 1; 17-7.) This matter is before this court 13 for adjudication of the merits of the remaining ground3 in Sjoberg’s petition, 14 which alleges that his counsel was ineffective in advising him to enter an Alford 15 plea rather than filing a motion to suppress his law enforcement interview. (ECF 16 No. 1 at 25.) Given that Sjoberg was subjected to a custodial interrogation without 17 a valid waiver of his Miranda rights, this court grants the petition. 18 I. BACKGROUND 19 The State filed a criminal complaint in state justice court charging Sjoberg 20 with various counts regarding his alleged conduct towards his stepdaughter, 21 A.L.4: sexual assault on a child under the age of 16 years; lewdness with a child [22] 1 The state corrections department’s inmate locator page states that Sjoberg is incarcerated at Northern Nevada Correctional Center. John Henley is the current warden for that facility. At the [23] end of this order, this court directs the clerk to substitute John Henley as a respondent for Respondent Isidro Baca. See Fed. R. Civ. P. 25(d). 24 2 See North Carolina v. Alford, 400 U.S. 25 , 37–38 (1970) (holding that a defendant can enter a valid guilty plea while still maintaining his innocence where there is a factual basis for the plea 25 and the plea is voluntary, knowing, and intelligent). 3 This court previously dismissed ground 1 based on Tollett v. Henderson, 411 U.S. 258 (1973). 26 (See ECF No. 28 at 3–4.) 4 The Local Rules of Practice state that “[p]arties must refrain from including—or must partially 27 redact, where inclusion is necessary—[certain] personal-data identifiers from all documents filed with the court, including exhibits, whether filed electronically or in paper, unless the court orders [28] 1 under the age of 14 years; abuse, neglect, and/or endangerment of a child; 2 battery with intent to commit sexual assault; and open or gross lewdness. (ECF 3 No. 16-1 at 11–13.) Sjoberg conditionally waived his preliminary hearing “for the 4 purpose of obtaining a competency evaluation.” (Id. at 18.) Sjoberg’s case was 5 transferred to the state district court. (Id. at 2.) 6 Following a request by Sjoberg’s counsel who represented him through his 7 arraignment (hereinafter “arraignment counsel”), the state district court issued 8 an order for competency, ordering Sjoberg to be evaluated at Lake’s Crossing to 9 determine his “ability to assist his counsel in presenting a defense with a 10 reasonable degree of rational understanding.” (ECF No. 16-5 at 3.) Sjoberg’s 11 competency evaluation was conducted and indicated that Sjoberg was competent, 12 so the state district court remanded the case to the state justice court for a 13 preliminary hearing. (ECF No. 16-7 at 4–7.) Sjoberg waived that hearing, and his 14 case was transferred back to the state district court. (ECF No. 16-9 at 27–28.) A 15 week later, the State filed a new information amending Sjoberg’s charges to a 16 single count of lewdness with a child under the age of 14 years. (ECF No. 16-10.) 17 Sjoberg entered an Alford plea to the single charge in return for the State agreeing 18 to dismiss the other original charges. (ECF Nos. 16-12 at 10; 16-13 at 2.) 19 Prior to sentencing, Sjoberg received new counsel (hereinafter “post20 arraignment counsel”) and moved for a new trial, which the state district court 21 construed as moving to withdraw his plea. (ECF Nos. 16-16; 16-18 at 4.) After an 22 evidentiary hearing, the state district court denied the motion. (ECF Nos. 17-1; 23 17-2.) Sjoberg was sentenced to ten years to life in prison. (ECF No. 17-7.) Sjoberg 24 appealed, and the Nevada Court of Appeals affirmed. (ECF No. 18-5.) 25 Sjoberg filed a post-conviction habeas corpus petition in state court. (ECF 26 No. 18-7.) An evidentiary hearing was held on Sjoberg’s petition, and Sjoberg’s [27] otherwise.” LR IA 6-1(a). This includes the names of minor children, so this court only uses the 28 victim’s initials. 1 arraignment counsel, among others, testified. (ECF No. 21-1.) The state district 2 court denied the petition. (ECF No. 22-1.) Sjoberg appealed, and the Nevada Court 3 of Appeals affirmed. (ECF No. 23-4.) Sjoberg then filed the instant federal habeas 4 corpus petition. (ECF No. 1.) 5 II. GOVERNING STANDARDS OF REVIEW 6 A. Antiterrorism and Effective Death Penalty Act (“AEDPA”) [7] 28 U.S.C. § 2254 (d) sets forth the standard of review generally applicable 8 in habeas corpus cases under AEDPA: [9] An application for a writ of habeas corpus on behalf of a person in 10 custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits 11 in State court proceedings unless the adjudication of the claim – 12 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as [13] determined by the Supreme Court of the United States; or [14] (2) resulted in a decision that was based on an unreasonable 15 determination of the facts in light of the evidence presented in the State court proceeding. [17] A state court decision is contrary to clearly established Supreme Court precedent, [18] within the meaning of 28 U.S.C. § 2254 , when “the state court applies a rule that [19] contradicts the governing law set forth in [the Supreme Court’s] cases” or “the [20] state court confronts a set of facts that are materially indistinguishable from a 21 decision of [the Supreme] Court.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) 22 (quoting Williams v. Taylor, 529 U.S. 362 , 405–06 (2000), and citing Bell v. Cone, [23] 535 U.S. 685, 694 (2002)). A state court decision is an unreasonable application [24] of clearly established Supreme Court precedent within the meaning of 28 U.S.C. [25] § 2254(d) when “the state court identifies the correct governing legal principle [26] from [the Supreme] Court’s decisions but unreasonably applies that principle to 27 the facts of the prisoner’s case.” Id. at 75 (quoting Williams, 529 U.S. at 413 ). [28] 1 B. Standard for effective-assistance-of-counsel claims 2 In Strickland v. Washington, the Supreme Court propounded a two-prong 3 test for analysis of claims of ineffective assistance of counsel requiring the 4 petitioner to demonstrate (1) that the attorney’s “representation fell below an 5 objective standard of reasonableness,” and (2) that the attorney’s deficient 6 performance prejudiced the defendant such that “there is a reasonable 7 probability that, but for counsel’s unprofessional errors, the result of the 8 proceeding would have been different.” 466 U.S. 668, 688, 694 (1984). 9 When the ineffective assistance of counsel claim is based on a challenge to 10 a guilty plea, the Strickland prejudice prong requires the petitioner to 11 demonstrate “that there is a reasonable probability that, but for counsel’s errors, 12 he would not have pleaded guilty and would have insisted on going to trial.” Hill 13 v. Lockhart, 474 U.S. 52, 59 (1985); see also Lafler v. Cooper, 566 U.S. 156 , 163 14 (2012) (“In the context of pleas a defendant must show the outcome of the plea 15 process would have been different with competent advice.”). 16 III. DISCUSSION 17 In ground 2, Sjoberg’s sole remaining ground for relief, he argues that his 18 arraignment counsel provided ineffective assistance in advising him to enter an 19 Alford plead rather than filing a motion to suppress his law enforcement interview 20 in violation of his Fourth, Sixth, and Fourteenth Amendment rights to effective 21 assistance of counsel, freedom from involuntary seizure, and due process. (ECF 22 No. 1 at 25.) Specifically, Sjoberg argues that his arraignment counsel should 23 have moved to suppress the interview because he was in custody and his waiver 24 of his Miranda rights was not voluntary. (Id. at 25–30.) 25 A. Background information 26 1. Law enforcement interview 27 On May 6, 2015, Lyon County Deputy Sheriff Wayne Hawley (“Deputy 28 Hawley”) “took a walk-in report at the Fernley sub-station of a juvenile sexual 1 assault.” (ECF No. 16-1 at 3.) Jennifer Sjoberg, Sjoberg’s wife, and A.L., who was 2 16-years old at the time, alleged that Sjoberg had touched A.L. inappropriately. 3 That same day, Deputy Hawley located Sjoberg at the Fernley Wal-Mart and, 4 allegedly, asked him to participate in a voluntary law enforcement interview. (Id.) 5 According to Deputy Hawley, Sjoberg agreed even though he was forced to ride in 6 the back of Deputy Hawley’s vehicle because he did not have his own 7 transportation. (Id.) 8 During the interview,5 which took place in an enclosed interrogation room 9 within the police station, Sjoberg told Deputy Hawley about his various 10 conditions affecting both his physical and cognitive abilities: he has detrimental 11 hearing loss, suffers from cerebral palsy, and is affected by significant brain 12 damage. (ECF No. 17-6 at 5, 7, 17.) In response to Deputy Hawley’s questions, 13 Sjoberg stated that he never intentionally touched A.L. inappropriately, 14 explaining, as best as he was able, that he had only touched her breasts 15 accidently while hugging her. (Id. at 14–15.) 16 Deputy Hawley challenged Sjoberg on why he did not deny the sexual 17 assault accusations when his wife texted him prior to the interrogation. (Id. at 18 21.) Sjoberg explained that his wife was obstinate and arguing with her was futile. 19 (Id. at 20.) Deputy Hawley argued that he did not believe Sjoberg. (Id. at 22.) 20 Deputy Hawley questioned Sjoberg about making A.L. urinate on his hand. 21 (Id. at 22.) Sjoberg indicated that on one occasion he brought A.L. toilet paper 22 while she was sitting on the toilet, and “[w]hen she was leaning over[,] . . . 23 something from the counter dropped in to the toilet and [he] went to grab it.” (Id. 24 at 22–23.) Following this response, Deputy Hawley informed Sjoberg of his 25 Miranda rights.6 (Id. at 23.) Deputy Hawley asked Sjoberg if he understood, but [26] 5 A transcript and a video of this interview were both provided to, and reviewed by, this court. [27] (See ECF Nos. 15; 17-7.) 6 The taped interview demonstrates that Deputy Hawley gave Sjoberg his Miranda rights 28 approximately twenty-six minutes into the hour-and-ten-minute interview. (ECF No. 15.) 1 Sjoberg only responded nonverbally, nodding his head. (Id. at 23–24.) Deputy 2 Hawley continued his interrogation, asking Sjoberg to explain “that part again 3 how [he] got urine on [his] hand.” (Id. at 24.) Sjoberg declined to repeat his 4 statement, so Deputy Hawley repeated it to Sjoberg. (Id. at 24.) Sjoberg, rather 5 unconvincingly, agreed. (Id.) 6 Later, Deputy Hawley asked Sjoberg if his body made him go into the 7 bathroom and touch A.L., and Sjoberg vaguely answered, “[s]ometimes.” (Id. at 8 55.) Sjoberg also stated that he “accidentally touched her under the underwear . 9 . . [a] few times maybe.” (Id.) Deputy Hawley then reiterated the question, asking 10 “sometimes you go, when she’s in the bathroom, you go in there and your hand 11 goes in to her underwear.” (Id. at 56.) Sjoberg again vaguely responded, “[r]ight.” 12 (Id.) 13 2. Motion to withdraw guilty plea 14 Sjoberg’s post-arraignment counsel moved to withdraw his plea, arguing 15 that Sjoberg’s arraignment counsel was ineffective in failing to move to suppress 16 his law enforcement interview. (ECF No. 16-16.) An evidentiary hearing was held 17 on the motion. (ECF No. 17-1.) 18 At the evidentiary hearing, Sjoberg’s adoptive father, James Sjoberg, 19 testified that Sjoberg suffers from cerebral palsy and “fairly severe” hearing loss, 20 necessitating the need for a hearing aid. (Id. at 5–6.) James Sjoberg also testified 21 that Sjoberg is “pretty good at reading lips” but “may answer inappropriately 22 sometimes” in an attempt to be cooperative and “kind of cover[ ] up the hearing 23 loss.” (Id. at 6–8.) Terry Jacobson, Sjoberg’s stepmother, confirmed that Sjoberg 24 is “mostly deaf.” (Id. at 11–12.) Jacobson testified that she watched Sjoberg’s law 25 enforcement interview, and “[i]t was [her] opinion that [Sjoberg] didn’t understand 26 anything that was going on, that he was very confused.” (Id. at 13.) Jacobson also 27 testified that Sjoberg “probably would not admit to having a hearing deficit” to a 28 stranger. (Id. at 16.) 1 Deputy Hawley testified that Sjoberg was not in custody at the time of the 2 interrogation and came in voluntarily. (Id. at 34.) Deputy Hawley also testified 3 that Sjoberg “seem[ed] to understand the question [he was] asking him.” Deputy 4 Hawley placed Sjoberg under arrest at the conclusion of the interview. (Id. at 37.) 5 The state district court denied Sjoberg’s motion to withdraw his plea, 6 finding that “it’s unlikely a motion to suppress would have been granted or will 7 be granted or could be granted in this particular . . . case.” (Id. at 49.) 8 3. Post-conviction evidentiary hearing 9 At the post-conviction evidentiary hearing, Dr. Theodore Young, a clinical 10 neuropsychologist, testified that he reviewed Sjoberg’s previous psychological 11 reports and various court proceeding transcripts, conducted a clinical interview 12 of Sjoberg at Northern Nevada Correctional Center, and performed a “battery of 13 neuropsychological tests” on Sjoberg. (ECF No. 21-1 at 11, 13–17.) Dr. Young 14 found, inter alia, that (1) Sjoberg’s verbal comprehension index was “in the ninth 15 percentile for age match peers,” meaning he was “in that borderline range,” (2) 16 Sjoberg’s nonverbal aspects of intellectual activity were “quite strong,” (3) 17 Sjoberg’s overall I.Q. was in the seventh percentile, (4) Sjoberg’s “general 18 intellectual deficits” were “probably a manifestation of [his] congenital brain 19 injury,” (5) Sjoberg “would be specifically at a disadvantage” in a confrontational 20 interview, and (6) “the give and take of a quick paced conversation would just go 21 over [Sjoberg’s] head.” (Id. at 18–19, 21, 25, 28, 46.) 22 Sjoberg’s arraignment counsel testified she was aware that Sjoberg suffered 23 from cerebral palsy, deafness, and brain damage and that he was under the 24 influence of prescription medications at the time of his law enforcement interview. 25 (ECF No. 21-1 at 131.) However, Sjoberg’s arraignment counsel decided not to 26 move to suppress the interrogation because: (1) she “felt like it would be 27 unsuccessful because [Sjoberg] was not in custody at the time that he was being 28 interviewed” since he “walked into the room freely, [and] he was not in handcuffs,” 1 (2) “the manner in which [Deputy Hawley] interviewed [Sjoberg] was lawful,” (3) 2 “the admissions that [Sjoberg] made [during the interview] were not necessarily 3 that extraordinary” because they were “in the context of him saying it was an 4 accident” and “only covered the lewdness charge,” (4) she not recall Sjoberg ever 5 conveying to her that he “wasn’t able to understand what [Detective Hawley] was 6 saying” during the interview, (5) “there was an exchange of information and 7 communication back and forth [between Detective Hawley and Sjoberg],” and 8 Sjoberg gave “appropriate responses to Deputy Hawley,” and (6) “the video wasn’t 9 that important to the prosecution’s case” because she believed “the State could 10 still get a conviction . . . on the case because . . . [A.L.] was very credible.” (Id. at 11 88, 91–92, 94–96, 102, 105.) 12 Sjoberg testified that Deputy Hawley contacted him outside his place of 13 employment after he got off work and “demanded [Sjoberg] to get in the police 14 car,” telling Sjoberg he was “going to the station.” (Id. at 167.) Sjoberg testified 15 that he asked Deputy Hawley “before [he] got in the car if [he] could use the 16 bathroom,” and Deputy Hawley responded by “brandish[ing] his gun at [Sjoberg] 17 and [telling him] to stay in the car.” (Id. at 174.) Sjoberg sat in the back of Deputy 18 Hawley’s police car, and Deputy Hawley indicated to Sjoberg that he was “not 19 going to put handcuffs on [him] because [he was] a disability [sic].” (Id. at 167– 20 68.) Sjoberg did not have his hearing aids, but he told Deputy Hawley about his 21 hearing issues. (Id. at 166.) Sjoberg testified that he had taken Vicodin, Percocet, 22 Oxycontin, and Oxycodone earlier that day. (Id. at 168.) 23 Turning to the interview itself, Sjoberg testified that (1) Deputy Hawley 24 never gave him his Miranda rights in a written document, (2) he was never asked 25 to sign a waiver of his rights, (3) he did not understand when Deputy Hawley 26 verbally gave him his Miranda rights in the middle of the interview, (4) he did not 27 believe he was free to leave the interview, (5) the door to the interview room was 28 closed, (6) Deputy Hawley was in a police uniform, (7) he was not offered any 1 water, and (8) he felt intimidated by Deputy Hawley. (Id. at 168–69, 173–74.) 2 B. Standard for custodial interrogation 3 “[T]he prosecution may not use statements, whether exculpatory or 4 inculpatory, stemming from custodial interrogation of the defendant unless it 5 demonstrates the use of procedural safeguards effective to secure the privilege 6 against self-incrimination.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). 7 Custodial interrogation “mean[s] questioning initiated by law enforcement officers 8 after a person has been taken into custody or otherwise deprived of his freedom 9 of action in any significant way.” Id. “[T]he term ‘interrogation’ under Miranda 10 refers not only to express questioning, but also to any words or actions on the 11 part of the police (other than those normally attendant to arrest and custody) that 12 the police should know are reasonably likely to elicit an incriminating response 13 from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980). 14 “[T]he ultimate inquiry” of whether someone is in custody “is simply 15 whether there is a formal arrest or restraint on freedom of movement of the degree 16 associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983) 17 (internal quotation marks omitted). There are “[t]wo discrete inquiries” to 18 determine whether an individual is in custody: “first, what were the 19 circumstances surrounding the interrogation; and second, given those 20 circumstances, would a reasonable person have felt he or she was not at liberty 21 to terminate the interrogation and leave.” Thompson v. Keohane, 516 U.S. 99 , 112 22 (1995). Relevant factors in ascertaining how an individual would assess his 23 freedom of movement “include the location of the questioning, its duration, 24 statements made during the interview, the presence or absence of physical 25 restraints during the questioning, and the release of the interviewee at the end of 26 the questioning.” Howes v. Fields, 565 U.S. 499, 509 (2012) (internal citations 27 omitted). The “determination of custody depends on the objective circumstances 28 of the interrogation, not on the subjective views harbored by either the 1 interrogating officers or the person being questioned.” Stansbury v. California, [2] 511 U.S. 318, 323 (1994). 3 C. State court determination 4 In affirming the denial of Sjoberg’s state postconviction petition for a writ 5 of habeas corpus, the Nevada Court of Appeals held: [6] Second, Sjoberg argued his counsel was ineffective for failing 7 to move to suppress his statement to the police. Sjoberg contended that counsel should have investigated his mental difficulties and 8 hearing loss, and then asserted that those issues caused his statement to have been taken in violation of Miranda v. Arizona, 384 9 U.S. 436 (1966), NRS 171.1526, and NRS 171.1538. [10] At the evidentiary hearing, Sjoberg’s counsel testified that she 11 was aware Sjoberg had cerebral palsy and hearing loss. However, she testified that she had no trouble communicating with him and he 12 had not indicated to her that he had been unable to understand the deputy during the interview. Counsel also testified that based upon [13] her review of the interview, she concluded that Sjoberg had not 14 undergone a custodial interrogation and, therefore, Miranda did not apply. She stated she did not file a motion to suppress because she 15 concluded that it would not have been successful. Counsel also testified that she did not believe that Sjoberg’s statements to the [16] deputy were significant and concluded that Sjoberg would have likely 17 been convicted based upon the victim’s statements even if his own had been suppressed. [18] The district court found that counsel’s decisions with respect 19 to Sjoberg’s interview were reasonable under the circumstances in this case. Substantial evidence supports the district court’s decision. [20] See Ford v. State, 105 Nev. 850, 853 , 784 P.2d 951, 953 (1989). The 21 district court also found that the video recording depicting the interview demonstrated that the deputy advised Sjoberg of his 22 Miranda rights and Sjoberg nodded in response, indicating he understood those rights. Because Sjoberg indicated he understood [23] his rights and continued to talk to the deputy, the district court 24 found Sjoberg failed to demonstrate a reasonable probability he would have refused to enter an Alford plea and would have insisted 25 on proceeding to trial had counsel moved to suppress his statement based upon Miranda. [26] 27 In addition, the district court found Sjoberg failed to demonstrate a reasonable probability he would have refused to enter 28 an Alford plea and would have insisted on proceeding to trial had 1 and NRS 171.1538. The district court found Sjoberg was not under 2 arrest when the interview took place. Therefore, the district court determined NRS 171.1536 and NRS 171.1538 did not apply to 3 Sjoberg’s interview because those statutes discuss actions to be taken after a person with a communications disability or other 4 disability has been arrested. Substantial evidence supports the district court’s findings. Therefore, we conclude the district court did [5] not err by denying this claim. [6] (ECF No. 23-4 at 4–6.) [7] D. Analysis [8] Sjoberg’s arraignment counsel testified that she did not move to suppress [9] his law enforcement interview, in part, because Sjoberg was not in custody at the [10] time of the interrogation. For the reasons discussed below, this court finds (1) [11] this conclusion by Sjoberg’s arraignment counsel was objectively unreasonable, [12] and (2) the Nevada Court of Appeals’ finding that substantial evidence supported [13] the state court’s decision that Sjoberg’s arraignment counsel did not act [14] deficiently in strategically deciding not to pursue a motion to suppress amounted [15] to an unreasonable application of Strickland. See Wiggins v Smith, 539 U.S. 510 , [16] 533 (2003) (explaining that strategic choices are reasonable only to the extent [17] that they are based on reasonable professional judgment). Accordingly, because [18] there is no reasonable argument that Sjoberg’s arraignment counsel satisfied [19] Strickland’s deferential standard regarding her conclusion that Sjoberg was not [20] in custody, deference is not owed to Sjoberg’s arraignment counsel nor to the [21] Nevada Court of Appeals’ denial of relief. Accordingly, having overcome the double [22] level of deference present in this ground, Sjoberg demonstrates that de novo [23] review is warranted. See Panetti v. Quarterman, 551 U.S. 930, 948 (2007) (“As a [24] result of [the state court’s] error, our review of petitioner’s underlying . . . claim [25] is unencumbered by the deference AEDPA normally requires”). [26] There are a multitude of factors indicating, objectively, that a reasonable [27] person in Sjoberg’s position would not have felt that he or she was at liberty to [28] 1 terminate the interrogation7 and leave: Deputy Hawley publicly confronted 2 Sjoberg outside his place of employment, Deputy Hawley was in uniform and had 3 a weapon on his person when he requested that Sjoberg come to the police station 4 for an interview, Deputy Hawley allegedly indicated that he would have 5 handcuffed Sjoberg if not for his physical disabilities, Deputy Hawley transported 6 Sjoberg in the back seat of his law enforcement vehicle like a criminal, the 7 interrogation took place in an enclosed interrogation room within the police 8 station, Deputy Hawley sat on an adjacent side of the table so that he was 9 between Sjoberg and the door, Sjoberg was not able to leave the police station 10 unassisted since he did not have transportation, Sjoberg was obviously the 11 target—not merely a witness—of Deputy Hawley’s investigation, Deputy Hawley 12 confronted Sjoberg with evidence of his guilt, Deputy Hawley’s tone throughout 13 the interview was hostile, Deputy Hawley stated numerous times that he did not 14 believe Sjoberg, Deputy Hawley denied Sjoberg’s request to use the restroom, the 15 interrogation lasted a prolonged period of time (over an hour), and Deputy Hawley 16 arrested Sjoberg at the end of the interrogation. These factors fit squarely within 17 the Supreme Court’s matrix of determining that a suspect is in custody for 18 purposes of Miranda. See, e.g., Yarborough v. Alvarado, 541 U.S. 652 , 664–65 19 (2004) (concluding that the defendant was not in custody since he was not 20 transported by the police to the station, the police did not suggest that he would 21 be placed under arrest, his parents remained in the lobby during the interview, 22 he was asked twice if he wanted to take a break, and he was allowed to go home 23 following the interview); California v. Beheler, 463 U.S. 1121, 1125 (1983) 24 (concluding that it takes more than the police interview taking place at the police 25 station and the defendant being a suspect to find that the defendant was in 26 custody for purposes of Miranda); Oregon v. Mathiason, 429 U.S. 492, 495 (1977) [27] 28 7 There is no dispute that the interview amounted to an interrogation. 1 (concluding that the defendant was not in custody because “[h]e came voluntarily 2 to the police station, . . . he was immediately informed that he was not under 3 arrest,” the interview only lasted thirty minutes, and he was allowed to go home 4 at the end of the interview). Sjoberg’s arraignment counsel testified that she based 5 her custody determination on only the fact that Sjoberg “walked into the room 6 freely, [and] he was not in handcuffs.” Sjoberg’s arraignment counsel’s focus on 7 these two factors—while ignoring or failing to give proper consideration to the 8 myriad of other relevant factors at play here—was erroneous and fell below an 9 objective standard of reasonableness. 10 Turning to prejudice, Sjoberg must demonstrate the following (1) a motion 11 to suppress would have been meritorious, and (2) he would not have pleaded 12 guilty pursuant to Alford if his interrogation had been suppressed. 13 First, a fruitful motion to suppress requires a demonstration of either an 14 improper giving of Miranda warnings or an invalid waiver of that warning. See 15 Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) (explaining that in alleging that 16 counsel failed to file a pretrial motion to suppress evidence, the petitioner must 17 establish, in part, a reasonable probability that the evidence would have been 18 suppressed). Sjoberg can demonstrate both.8 19 Deputy Hawley delayed reciting the Miranda warning until after Sjoberg 20 made admissions. This violates Missouri v. Seibert. 542 U.S. 600, 617 (2004) 21 (determining that midstream Miranda warnings “could [not] have served their 22 purpose” and ruling that post-warning statements are inadmissible). 23 Alternatively, and more significantly, Sjoberg demonstrates that his waiver of his 24 Miranda rights was unknowing and/or unintelligent. See Maryland v. Shatzer, [25] 559 U.S. 98, 104 (2010) (“To establish a valid waiver [of one’s right to remain [26] 8 Notably, even though the state court denied Sjoberg’s motion to withdraw his plea because it [27] would not have granted a motion to suppress had one been filed, this court must look to what an “[o]bjective decisionmaker” would do, ignoring the “idiosyncrasies of the particular 28 decisionmaker.” Strickland, 466 U.S. at 695 . 1 silent and right to the presence of an attorney] was knowing, intelligent, and 2 voluntary.”). Because Sjoberg suffered from a hearing disability and was subject 3 to a custodial interrogation, Nevada law required that an interpreter be provided. 4 See NRS §§ 171.1536, 171.1538. Because Deputy Hawley did not provide Sjoberg 5 with the option of reading his Miranda rights from a prepared card,9 Deputy 6 Hawley’s failure to provide Sjoberg with an interpreter as required under Nevada 7 law was especially egregious. These failures, in combination with Sjoberg’s 8 ambiguous confirmation of receipt of the information—a mere unreliable head 9 nod—resulted in Sjoberg being unable to properly hear and thus waive his rights. 10 Moreover, in addition to Sjoberg’s physical disabilities preventing him from 11 understanding the Miranda warning from an auditory standpoint, Sjoberg also 12 suffered from acute mental disabilities, including a congenital brain injury. Based 13 on the totality of these circumstances, the court finds that Sjoberg’s disabilities 14 prevented him from knowingly and intelligently hearing and waiving his Miranda 15 rights. 16 Second, Sjoberg demonstrates that he would have insisted on going to trial 17 absent his trial counsel’s failure to file a motion to suppress given that he moved 18 to withdraw his plea prior to sentencing. Indeed, in that motion, Sjoberg stated 19 that his arraignment counsel’s “failure to file the motion to suppress was the crux 20 of the entire guilty plea agreement.” (ECF No. 16-16 at 5.) Additionally, Sjoberg’s 21 Alford plea, which amounts to a lack of acceptance of guilt, supports a finding 22 that Sjoberg would have insisted on going to trial. In sum, because Sjoberg’s 23 arraignment counsel was deficient and Sjoberg suffered prejudice as a result, he 24 is entitled to federal habeas relief. [26] 9 See United States v. Venegas, 594 Fed.Appx. 822, 828 (5th Cir.) (“[A] hearing-impaired suspect may validly waive his or her Miranda rights even when the interrogating officer does not employ [27] a sign-language interpreter at all, but instead administers a written warning alone.”); People v. Brannon, 486 N.W.2d 83, 88 (Mich. App. 1992) (“The use of a written form becomes more palatable [28] in a case involving a defendant who is hearing-impaired.”). V. CONCLUSION 2 It is therefore ordered that the petition for a writ of habeas corpus pursuant 3 || to 28 U.S.C. § 2254 (ECF No. 1) is granted. Petitioner Thomas Sjoberg’s judgment 4 || of conviction filed on May 5, 2016, in case number 15-CR-00677, in the Third 5 || Judicial District Court for the State of Nevada in and for the County of Lyon is 6 || vacated. Sjoberg’s Alford plea is also vacated. Within 30 days!° of the later of (1) 7 || the conclusion of any proceedings seeking appellate or certiorari review of this 8 || court’s judgment, if affirmed, or (2) the expiration for seeking such appeal or 9 || review, the state court must hold a status hearing in this matter to determine 10 || whether the State plans to try Sjoberg. 11 It is further ordered that the Clerk of the Court is directed to (1) substitute 12 |} John Henley for Respondent Isidro Baca, (2) enter judgment accordingly, (3) 13 || provide a copy of this Order and the judgment to the Clerk of the Third Judicial 14 || District Court for the State of Nevada in connection with that court’s case number 15 || 15-CR-00677, and (4) close this case. 16 Dated this 10th day of February. [17] 18 Apa padi [19] 20 UNITED STATES DISTRICT JUDGE [27] 28 || 10 Reasonable requests for modification of this time may be made by either party.