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Heard v Addison

9-4-2013 Oklahoma:

Heard v Addison

David Glen Heard pled guilty to two counts of “knowingly and intentionally . . .[l]ook[ing] upon . . . the body or private parts of [a] child under sixteen . . . in [a] lewd and lascivious manner,” in violation of Oklahoma’s lewd molestation statute, Okla. Stat. tit. 21, § 1123(A)(2). In pleading guilty, Heard admitted that he positioned himself in a Tulsa Wal-Mart store so as to be able to “look under [their] clothes at [their] bod[ies] and at [their] undergarments.” Aplt. App. Supp. Vol. I at 12, 15. Pursuant to the terms of the plea agreement, the prosecutor recommended that Heard receive concurrent twenty-fiveyear prison terms, and the court sentenced Heard accordingly.

Soon after he was sentenced, Heard discovered an unpublished case out of the Oklahoma Court of Criminal Appeals (“OCCA”), Robinson v. State, No. F-98-724 (Okla.Crim. App. July 29, 1999), which cast doubt upon whether Heard’s conduct fell within the ambit of § 1123(A)(2). We agree with Heard that his attorney provided ineffective assistance in failing to advise him of viable defenses to the charges against him, and the record is clear that, but for counsel’s deficient performance, Heard would not have pled guilty to these offenses. Therefore, having jurisdiction under 28 U.S.C. §§ 1291 and 2253(a),

we REVERSE the district court’s denial of Heard’s habeas petition and REMAND for further proceedings consistent with this opinion.

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