Feil v. State of Oregon
Filing
31
Findings & Recommendation: Petitioner's Petition for Writ of Habeas Corpus 2254 2 should be denied, and judgment should enter dismissing this case with prejudice. Objections to the Findings and Recommendation are due by 2/9/2009. Response to Objections to the Findings and Recommendation are due by 2/23/2009. Signed on 1/26/09 by Judge Paul Papak. (gm)
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IN THE UNITED STATES D I S T R I C T COURT FOR THE D I S T R I C T OF OREGON BRIAN F E l L , Petitioner,
v.
) )
)
C i v i l No. 07-832-PK
)
)
STATE OF OREGON, Respondent. Brian Feil 8 5 8 E. H a r b o r S t . #4 Warrenton, Oregon 97146 P e t i t i o n e r Pro Se
) ) ) )
FINDINGS AND RECOMMENDATION
John Kroger Attorney General Jacqueline Sadker Assistant Attorney General Department of Justice 1 1 6 2 C o u r t S t r e e t NE Salem, Oregon 97301 Attorneys for Respondent
III
1 - FINDINGS AND RECOMMENDATION
PAPAK, M a g i s t r a t e J u d g e . Petitioner Brian
§
Feil
brings
this
habeas
corpus
action
pursuant t o 28 U.S.C. Abuse and Rape.
2254 and challenges convictions for Sexual
For the reasons set forth below, the Petition for
Writ of Habeas Corpus (#2) should be denied, and Judgment should be entered dismissing this action with prejudice.
BACKGROUND
On J u l y 2 8 , 2 0 0 0 , t h e C l a t s o p C o u n t y G r a n d J u r y r e t u r n e d a n indictment charging Feil with one count of Rape in the First
Degree, two counts of Sexual Abuse in the F i r s t Degree, and one count of Rape in the Second Degree. In a bench t r i a l , the court found Respondent's Exhibit 102. Feil g u i l t y on one count of
Sexual Abuse in the F i r s t Degree and one count of Rape in the Second Degree. He was acquitted on the remaining charges.
Respondent's Exhibit 101, p. 3.
The court imposed concurrent 75-
month sentences on each g u i l t y count as well as a 45 month term of post-prison supervision. Id. l
Feil directly appealed his sentence, but the Oregon Court of Appeals affirmed the t r i a l court without a written opinion, and the Oregon Supreme Court denied review. State v. F e i l , 190 Or. App.
IAlthough F e i l was not incarcerated a t the time he f i l e d h i s P e t i t i o n , since he was s u b j e c t t o p o s t - p r i s o n supervision he was " i n custody" for purposes o f 28 U.S.C. § 2254(a). Accordingly, this court has jurisdiction to review his Petition. 2 - FINDINGS AND RECOMMENDATION
398,
79 P.3d 917
(2003),
rev. denied,
336 Or.
3 7 6 , 84 P . 3 d 1080
(2004); Respondent's Exhibits 103-107. F e i l next f i l e d f o r post-conviction r e l i e f ("PCR") court. T h e PCR t r i a l c o u r t d e n i e d r e l i e f . CV04-068l. in state
Feil v. Gower, Umatilla On a p p e a l , the Oregon
C o u n t y C i r c u i t C o u r t C a s e No.
C o u r t o f A p p e a l s a f f i r m e d t h e PCR t r i a l c o u r t w i t h o u t a w r i t t e n opinion, and the Oregon Supreme Court denied review. Feil v.
Gower, 211 Or. App. 250, 154 P.3d 786 (2007), rev. denied, 342 Or. 644, 158 P.3d 507 (2007); Respondent's Exhibits 122-126. On J u n e 5 , 2007, Feil filed this action. His grounds for
r e l i e f can be summarized as follows: 1. Ground One: F e i l ' s conviction was obtained i n v i o l a t i o n of his right to a f a i r t r i a l under the Eleventh and Fourteenth Amendments because he was unable t o present exculpatory evidence through his expert witness (a psychologist) . Supporting Facts: The t r i a l court erred in finding Feil violated the discovery rules and in ordering exclusion of his expert witness as a sanction. Defense counsel provided the State with all of the information in his possession regarding the expert's testimony within a r e a s o n a b l e t i m e a f t e r r e c e i v i n g t h i s i n f o r m a t i o n (ORS 135.835) . Regardless, even assuming Feil violated a discovery r u l e , the court abused i t s d i s c r e t i o n when i t excluded the defense witness. 2. G r o u n d Two: F e i l ' s conviction was based on an unlawful arrest and statements taken in violation of F e i l ' s rights under the Fourth and Fifth Amendments. Supporting Facts: Defense counsel should have gotten F e i l ' s statements to police suppressed because they were taken without Miranda warnings. The fact t h a t the audio tape was erased i n the beginning proves t h i s point.
3 - FINDINGS AND RECOMMENDATION
3.
Ground Three: trial counsel.
Feil was denied e f f e c t i v e a s s i s t a n c e of
Supporting Facts: Counsel failed to prepare the case, s u b m i t p a p e r s f o r w i t n e s s e s , p r e s e n t i m p o r t a n t DNA evidence, explain waiver of Feil's right to a jury t r i a l , subpoena witnesses, argue evidence at t r i a l , object, and adequately investigate the case. C o u n s e l a l s o f a i l e d t o b r i n g u p DNA a t t r i a l . T h i s w o u l d have made an enormous v e r d i c t d i f f e r e n c e . There was no DNA m a t c h a n d n o p h y s i c a l e v i d e n c e . This would have proved Feil's point. 4. Ground Four: F e i l ' s r i g h t to a f a i r t r i a l was v i o l a t e d because his waiver of h i s r i g h t t o a jury t r i a l was not knowingly, voluntarily, or i n t e l l i g e n t l y made. Supporting Facts: F e i l thought he was signing a paper that would recuse certain jurors--not a l l of them. He w a n t e d a j u r y t r i a l b e c a u s e h e f e l t t h a t w i t h t h e evidence a t hand and his testimony the jury would side with him. He d i d n o t w a n t h i s f a t e i n t h e h a n d s o f o n e person. Counsel constantly wanted him to waive his right to a jury t r i a l and Feil did not. Finally, counsel told him the paper he was signing would be to waive c e r t a i n jurors. 5. Ground Five: The District Attorney committed prosecutorial misconduct and violated F e i l ' s due process r i g h t s when he denied F e i l of h i s r i g h t t o present a defense. Supporting Facts: Even though the D i s t r i c t Attorney was aware of and had the phone numbers of the psychologist Feil wanted to call at t r i a l , he stated at t r i a l that he had never heard of this doctor or received paperwork relating to the doctor's testimony. 6. Ground Six: D e n i a l o f DNA e v i d e n c e a t a p p e a l violated Feil's right to a fair trial. level
Supporting Facts: DNA t h a t c o u l d h a v e b e e n o f f e r e d a t t r i a l would have affected the judgment of F e i l ' s case, especially in a jury t r i a l , but in a bench t r i a l as well. P u r s u a n t t o t h e R u l e o f L a w , t h e PCR t r i a l c o u r t s h o u l d h a v e g r a n t e d F e i l a new t r i a l b e c a u s e a s s u p p o r t e d b y t h e DNA e v i d e n c e , t h e l a c k o f p h y s i c a l e v i d e n c e o n t h e 4 - FINDINGS AND RECOMMENDATION
victim, e t c . , c o u p l e d w i t h t h e d e n i a l o f t h e p s y c h o l o g i s t is devastating. Respondent asks because: (1) the court to deny r e l i e f on the Petition
Feil has procedurally defaulted a l l of his claims
except for the subpart of Ground Three a l l e g i n g t r i a l counsel was i n e f f e c t i v e f o r f a i l i n g t o p r e s e n t i m p o r t a n t DNA e v i d e n c e a t t r i a l ; and (2) t h i s subpart was c o r r e c t l y denied on the merits i n a s t a t e court decision entitled to deference. 2
DISCUSSION I. Exhaustion and Procedural Default A. Standards.
A habeas petitioner must exhaust his claims by presenting them to the state's highest court, either through a direct appeal or
collateral proceedings, before a federal court will consider the merits of those claims. "As a general by rule, fairly a Rose v. Lundy, 455 U.S. 509, 519 (1982). petitioner presenting satisfies the federal the exhaustion to the
requirement
claim
appropriate state courts courts, thereby 'affording
in the manner required by the s t a t e the state courts a meaningful Casey v.
o p p o r t u n i t y t o c o n s i d e r a l l e g a t i o n s o f l e g a l e r r o r . '" Moore 386 F.3d 896, 915-916 (9th Cir. (1986)). 2004)
(quoting Vasquez v.
H i l l e r y , 474 U.S. 254, 257,
If a habeas litigant failed
2Feil asserts t r i a l counsel should have introduced at t r i a l t h e r e s u l t s o f DNA t e s t i n g c o n d u c t e d o n b e d s h e e t s t a k e n f r o m t h e bed where the victim indicated the abuse occurred. 5 - FINDINGS AND RECOMMENDATION
to p r e s e n t h i s c l a i m s t o t h e s t a t e c o u r t s i n a p r o c e d u r a l c o n t e x t in which the merits of the claims were considered, the claims have not been fairly presented to the state courts and are therefore not eligible for federal habeas corpus review. 4 8 9 u. S . 3 4 6 , 3 5 1 ( 1 9 8 9 ) . A p e t i t i o n e r i s deemed t o have "procedurally defaulted" his claim i f he failed to comply with a state procedural· rule, or Castille v. Peoples,
failed to raise the claim at the state level at all. Carpenter, 529 722, 750
Edwards v.
u.s.
446, 451 (2000); Coleman v. Thompson, 501
u.s.
(1991).
If a petitioner has procedurally defaulted a a federal court will not review the claim for the failure
claim in state court,
unless the p e t i t i o n e r shows "cause and prejudice"
to present the constitutional issue to the s t a t e court, or makes a colorable showing of actual innocence. Gray v. Netherland, 518
u.s.
152, 162 (1996); Sawyer v. Whitley, 505
u.s.
333, 337 (1992);
Murray v. C a r r i e r , 477 U.S. 478, 485 (1986). B. Analysis
The court f i r s t considers whether Feil exhausted the claim s e t f o r t h i n Ground One o f h i s P e t i t i o n (claim a l l e g i n g the t r i a l c o u r t v i o l a t e d F e i l ' s Eleventh and Fourteenth Amendment r i g h t s when i t found he committed a discovery violation and t h a t the court abused i t s d i s c r e t i o n when i t excluded testimony from F e i l ' s psychologist as a sanction) Feil raised a nearly i d e n t i c a l claim on d i r e c t "[t]he trial court erred in
appeal to the Oregon Court of Appeals:
6 - FINDINGS AND RECOMMENDATION
finding a d i s c o v e r y v i o l a t i o n a n d i n o r d e r i n g e x c l u s i o n o f t h e testimony of defendant's expert 2. witness as a sanction. "
Respondent's Exhibit 1103, p. raised on direct appeal. The court has
This was the only claim Feil
carefully reviewed the briefing related to
Feil's direct appellate claim and notes that the arguments for and against relief were based exclusively on Oregon's discovery
statute, Oregon case law,
and briefly,
the Oregon Constitution.
Respondent's Exhibits 1103 & 1104.
Feil did not once mention or In the
refer to the United States Constitution or federal law.
Ninth Circuit, a petitioner has not fairly presented his federal claim to a s t a t e court unless he "specifically indicated to that court that those claims were based on federal Crawford, 232 F.3d 666, 904 (9th C i r . 2001). 668 law." Lyons v.
(9th Cir. 2000), amended by 247 F.3d
The federal claim must be apparent from the Baldwin v. Reese, 541
appellate briefs or similar papers. 32 ( 2 0 0 4 ) .
u.s.
27,
A c c o r d i n g l y , r e s p o n d e n t ' s c o n t e n t i o n t h a t G r o u n d One i s Feil never challenged the
procedurally defaulted is well taken.
trial court's finding of a discovery violation or its exclusion of expert testimony on federal constitutional or statutory grounds in the Oregon courts. With regard to the remaining claims ( G r o u n d s Two, most of
Three, Four, Five and Six) the court notes that in addition to the one claim raised on direct appeal, Feil raised one claim on appeal
7 - FINDINGS AND RECOMMENDATION
from t h e PCR c o u r t ' s d e n i a l o f r e l i e f :
he alleged that t r i a l
counsel rendered i n e f f e c t i v e a s s i s t a n c e of counsel when he f a i l e d t o i n t r o d u c e r e s u l t s o f DNA t e s t i n g a t t r i a l (subpart to Ground
Three which respondent concedes was f a i r l y presented t o the Oregon Supreme Court). Respondent's Exhibits #103 & #122. In response to
the State's contention that most of his claims are procedurally defaulted, Feil argues that at every stage his hands were tied by certain unspecified Reply state (#30), evidentiary pp. 1-2. and procedural rules.
Peti tioner' s
I t i s apparent from Feil' s
Reply that he mistakenly believes that the Oregon courts cannot address claims alleging violations Id. of the United States
Constitution or federal law. however, what
at 2-3.
As discussed above,
fair presentation of these federal claims is precisely petitioner pursuing relief in the
§
is required prior to a courts. 28 U.S.C.
federal
2254(b)(1)(A).
The
exhaustion
requirement r e f l e c t s , among other values, the federal government's interest in giving state courts the opportunity to correct their own m i s t a k e s .
(1999) .
See
O'Sullivan v.
Boerckel,
526 U.S.
838,
845
Feil also argues that should this court determine that he failed to f a i r l y present his claims to the Oregon courts, he i s s t i l l entitled to r e l i e f because such finding would support his Ground Three ineffective assistance of counsel claim and would prove his direct appellate attorney and post-conviction attorney erred. Petitioner's Reply (#30), pp. 2-3. 8 - FINDINGS AND RECOMMENDATION The court disagrees.
Feil i s r e q u i r e d t o e x h a u s t a l l c l a i m s p r i o r t o f e d e r a l r e v i e w , including claims of ineffective assistance of t r i a l and direct appellate counsel. Moreover, since the constitutionally protected
right to counsel does not extend to post-conviction proceedings, Feil i s not e n t i t l e d to habeas r e l i e f based on any failure of his PCR t r i a l o r a p p e l l a t e c o u n s e l t o r a i s e c e r t a i n c l a i m s o n a p p e a l . See Coleman v. Thompson, 501 U.S. 722, 752-54 (1991). Accordingly,
t h e c l a i m s s e t f o r t h i n G r o u n d s O n e , Two, m o s t o f T h r e e , F o u r , F i v e and Six are procedurally defaulted. Petitioner does not attempt to or making a
excuse his default by proving cause or prejudice, colorable showing of actual innocence.
II. Merits A. Standard of Review
An a p p l i c a t i o n f o r w r i t o f h a b e a s c o r p u s s h a l l n o t b e g r a n t e d unless adj udication of the claim in state court resulted in a decision that was: (1) "contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "based on an
unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C.
§
2254(d).
A
state court's findings of fact are presumed correct and petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C.
§
2254 (e) (1).
9 - FINDINGS AND RECOMMENDATION
A
state
court
decision if the
is
"contrary court
to applies a
clearly rule that
established precedent
state
contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different 362, from [that] (2000).
precedent."
Williams v.
Taylor,
529 U.S.
405-06
Under the "unreasonable application" clause, a federal habeas court may grant r e l i e f " i f t h e s t a t e court i d e n t i f i e s the c o r r e c t l e g a l principle from [the Supreme Court's] decisions, but unreasonably applies Id. that principle to the facts of the prisoner's case."
a t 413. court
The "unreasonable application" decision to be more than
clause requires the or erroneous.
state
incorrect
Id. a t 410.
The s t a t e c o u r t ' s application of c l e a r l y established Id. at 409.
law must be objectively unreasonable.
The Supreme Court has established a two-part t e s t to determine whether counsel. a petitioner First, the has received ineffective show that assistance his of
petitioner
must
lawyer's
performance f e l l below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 686-687 (1984). difficulties in evaluating counsel's performance, Due t o t h e courts must
indulge a strong presumption that the conduct falls within the "wide range of reasonable professional assistance." Id at 689.
Second, the p e t i t i o n e r must show t h a t h i s lawyer's performance prejudiced the defense. The appropriate t e s t for prejudice i s
1 0 - FINDINGS AND RECOMMENDATION
whether
the
defendant but
can for
show
"that
there
is
a
reasonable errors, the
probability that,
counsel's
unprofessional
result of the proceeding would have been different."
Id at 694.
A reasonable probability i s one which i s sufficient to undermine confidence in the outcome of the t r i a l . Id at 696.
B.
Analysis
In Ground Three Feil contends his t r i a l counsel rendered i n e f f e c t i v e a s s i s t a n c e w h e n h e f a i l e d t o p r e s e n t t h e r e s u l t s o f DNA testing at trial. failure to present Feil argues he was prej udiced by counsel's these results since there was no physical
e v i d e n c e a n d n o DNA m a t c h .
Petition (#2), p. 6.
He a s s e r t s t h a t
a s a r e s u l t t h e DNA e v i d e n c e w o u l d h a v e m a d e a n e n o r m o u s d i f f e r e n c e in the verdict. Id. The court disagrees.
Though F e i l contends t h e r e was no physical evidence, the t r i a l court s p e c i f i c a l l y noted t h a t t h i s was not a case i n which i t was the c h i l d ' s word against the defendant's with no physical evidence to corroborate any of the testimony. 644-45. Instead the judge found Transcript, Volume IV, pp. that "in this case there's
credible evidence and I indicates [the victim]
think substantial medical evidence that had sexual intercourse." Id. The judge
also made d e t a i l e d , on the record, c r e d i b i l i t y findings regarding the victim and F e i l ' s versions of events. Id. at 647-49.
III III
1 1 - FINDINGS AND RECOMMENDATION
During PCR p r o c e e d i n g s ,
Feil's trial counsel
submitted an
a f f i d a v i t t o t h e PCR t r i a l c o u r t a t t e s t i n g a s f o l l o w s :
Re: a l l e g e d f a i l u r e t o c a p i t a l i z e o n DNA e v i d e n c e ( o r lack thereof). As I r e c a l l I q u e s t i o n e d t h e o f f i c e r s a b o u t why t h e y h a d f a i l e d t o s e i z e t h e b e d s h e e t s a s e v i d e n c e . I h a d a DNA t e s t r u n o n a s h e e t f r o m t h e b e d , but the t e s t r e s u l t was inconclusive. The problem was that the sheet had been washed a t least once between the alleged incident and the test. It wasn't a piece of evidence that the police had taken and we'd had tested. T h e b o t t o m l i n e w a s t h a t t h e i n c o n c l u s i v e DNA t e s t w a s o f absolutely no value to us. I f the t e s t result had been of value, I would have brought i t up.
Respondent's Exhibit 119, p. 3. I n o t e t h a t a t h i s PCR h e a r i n g ,
Feil disputed counsel's assertion that the sheet had been washed. Respondent's Exhibit 120, p. 18. In considering Strickland's prejudice prong, I presume that
h a d c o u n s e l i n t r o d u c e d t h e i n c o n c l u s i v e DNA e v i d e n c e a t t r i a l , t h e S t a t e would have made the very arguments i t makes here; namely, t h a t the t e s t r e s u l t s had no probative value because: sheets had been washed; and (2) (1) the
t h e r e was no evidence t h a t the
victim bled on the sheets.
Response to Petition (#25), pp. 8-9.
For this reason, as I consider the totality of the evidence that w a s b e f o r e t h e f a c t f i n d e r , I am u n a b l e t o c o n c l u d e t h a t t h e r e i s a reasonable probability that had counsel presented the DNA
evidence the result of the proceeding would have been different. According 1 y, determination Feil that cannot trial demonstrate counsel did that not the render PCR court's
ineffective
a s s i s t a n c e was contrary t o , or involved an unreasonable application
1 2 - FINDINGS AND RECOMMENDATION
of, c l e a r l y e s t a b l i s h e d F e d e r a l l a w , a s d e t e r m i n e d b y t h e S u p r e m e Court.
RECOMMENDATION
For the reasons identified above, Habeas Corpus (#2) s h o u l d b e DENIED,
the Petition for Writ of and judgment should enter
DISMISSING t h i s c a s e w i t h p r e j u d i c e .
SCHEDULING ORDER
Objections to these Findings and Recommendation, i f any, are due February 9, 2009. If no obj ections are filed, then the
Findings and Recommendation will be referred to a United States District Judge for review and go under advisement on t h a t date. If
objections are filed, any response to the objections will be due fourteen days after the date the objections are filed and review of the Findings and Recommendation will go under advisement on that date.
NOTICE
A party's failure to timely f i l e objections to any of these findings will be considered a waiver of that party's right to
de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a d i s t r i c t judge. These Findings and Recommendation are not immediately
appealable to the Ninth Circuit Court of Appeals.
Any n o t i c e o f
1 3 - FINDINGS AND RECOMMENDATION
appeal p u r s u a n t t o R u l e 4 ( a ) ( 1 ) o f t h e F e d e r a l R u l e s o f A p p e l l a t e Procedure should not be filed until entry of judgment. DATED t h i s 2 6 t h d a y
0
Paul Papak United States Magistrate Judge
1 4 - FINDINGS AND RECOMMENDATION
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