Thomas v. Nooth, No. 3:2009cv00803 - Document 52 (D. Or. 2012)
Court Description: OPINION AND ORDER. The Petition for Writ of Habeas Corpus 2 is DENIED, with prejudice. The Court declines to issue a Certificate of Appealability on the basis that Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c) (2). IT IS SO ORDERED. Signed on 3/9/2012 by Judge Marco A. Hernandez. (gw)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION DANNY THOMAS, Case No. 3:09-cv-803-HZ Petitioner, v. MARK NOOTH, Respondent. ELLEN C. PT I CHER Office of the Federal Public Defender 101 SW Main Street, Suite 1700 Portland, OR 97204 Attorney for Petitioner JOHN KROGER Attorney General KRISTEN E. BOYD Oregon Department of Justice 1162 Court Street, NE Salem, OR 97301 Attorneys for Respondent 1 - OPINION AND ORDER OPINION AND ORDER Hernandez, District Judge. Petitioner, in custody of the Oregon Department of Corrections , brings this habe as corpus action pursuant to 28 U. S . C . § 2254. He raises cla im s a llegi ng he was den i ed the effective assistance of trial cou nsel. Peti tion for Writ of For the reasons set forth be l ow , the Habeas Corpus (#2 ) is DENIED, and this proceeding is dismissed with prejudice. BACKGROUND On March 3 , Attempted Murder 2003, Petitioner was indi cted on six counts of with a Firearm (Counts 1- 6) ; six cou nt s of Attempted Assault in the First Degree with a Firearm (Counts 7- 12) ; Burglary in the First Degree with a Firearm (Count 1 3); six counts of Un l awful Use of a Weapon with a Firearm (Counts 14- 1 9) ; one count of Possession of a Control l ed Substance - Cocaine (Count 20); Delivery of a Controlled Substance (Count 21) ; and Assault in the Second Degree (Count 22) (#20, Ex. 102). Petitioner's actions on February 23 , 2003 , manager of Petitio ner 's a McDonald's order. re staurant Peti tioner fights, which witnesses broke up . retrieved a gun, and over the The charges arose from in a dispute with the items manager missing got into from two Petitioner then went to his ca r, and fired six shots into the restaurant through the drive through window. shots into the restaurant. 2 - OPINION AND ORDER There was no dispute Petitioner fired In September 2003, Petitioner was tried in a bench trial and convicted on one count each of Attempted Murder with a (Count 1), Firearm Attempted Assault in the First Degree with a Firearm (Count 7), Burglary in the First Degree (Count 13), Possession of a Controlled Substance (Count 22), to Assault in the Second Degree and on six counts of Unlawful Use of a Weapon with a Fir e a rm ( C0 un t s 14 - 1 9) . as (Count 20), Counts 2-6 and (#20, Ex. 101.) 8-12; and Count Petitioner was acquitted 21 was dismissed on the State's motion. The Court sentenced Petiti o ner to a total of 160 months imprisonment in a combination of concurrent and consecutive terms, which in c luded 90 months under Measure 11 on consecutive to 70 months under Measure 11 on Count 22. Count 1 (#20 ; #18 Resp. at 3.) Petitioner directly appealed his conviction, raising one claim of trial error challenging Apprendi v. New Jersey, the consecutive 530 US 466, 490 sentencing under ("[oJther than the (2000 ) fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonab le doubt") and Blakely v. Wa shington, 542 U. S. 296 (200 4) (inval idating sentencing enhancement based on facts not found by a jury beyond a reasonable doubt nor admitted by the defendant). Court of Appeals affirmed 3 - OPINION AND ORDER (# 20, the Ex. 103, judgment at 2 - 3; and 5 - 6. ) sentence The without opinion, a nd the Oreg on Supreme Court denied review. (#20, Exs. 107, 106.) With the assistance of counsel, Petiti o ner filed an Amended Petition for Post-Conviction Relief ("PCR") raising claims of tria l court error, and numerous claims of ineffective assistance of trial and appellate counsel. (#20, Ex. (#20, Ex. 126.) relief on all claims. The 108.) PCR court denied Petitioner appealed, filing a counseled brief raising claims of ineffective assistance of trial counsel alleging counsel failed to investigate potential witnesses and failed to " ob j ect to the basis for conviction." Petitioner also filed a pro supplemental se brief challenging sentencing under Apprendi and Blakely. the consecutive (#20, Ex. 127, at i, 128 .) The Oregon Court of Appeals granted Respondent's Motion for Summary Affirmance. (# 20, Reconsideration. Ex. 130). Peti tioner filed a Motion f or The Oregon Supreme Court denied the motion, and denied Petiti oner 's Petition for Review. Judgment issued July 23, 2009. (#20, Exs. 132; 134.) (#20, Ex. 135.) Petitioner filed a timely pro se Petition for Writ of Habeas Corpus, and moved for appointment o f counsel. (#2, #3.) The Court granted the Motion for Appointment o f Counsel on September 8, 2009, wit h co u n s e Ion r e cor d as Peti tioner raises 0 f S e ptemb e r 1 5 , 2 0 0 9 . eight grounds for relief petition that can be characterized as follows: 4 - OPINION AND ORDER (#9 . ) in the pro se Ground One: Petiti o ner was denied the effective assistance of trial counsel in six particulars (a~f ) , and in a generalized allegation that ineffective representation entitles him t o relief as a matter of law (g); Ground Two: (a) "Trial counsel's acti ons deprived the Petitioner of the right to a fair trial secured by t he due process clause of the United States Constitution and Petitioner is entitled to relief as a matter of law [;]" Ground Two (b) reiterates Ground One (g); Ground Three: the trial court's ruling was contrary to or an unreasonable application o f clearly established federal la w and was based on an u nreasonable dete rmina t ion of the facts in light of the evidence presented in the state proceedings; Ground Four: Petitioner was denied the right to due proce ss and equal protection because the post-conviction court's adj udication denying relief was contrary to Strickland v. Washington, 466 U.S. 668 (1984) ; Ground Five: Petitioner was denied the right to due process and equal protection because the post-conviction court "applied an improper standard" to the claims of ineffective assistance of counsel; Ground Six: Petitioner was denied the effective assistance of appellate counsel when counsel failed to search the record for trial co ur t error that rendered the tria l unfair, and failed t o argue plain error with respect to the imposition of co nsecutive sentencing; Ground Seven: Petitioner was denied the right to due process and equal protection because the government failed to mee t its burden of proof because two alleged accomplices lied about Petitioner's involvement, another alleged accomplice was given a plea bargain in exchange for her testimony, and two of the alleged v ictims failed to identify Petiti oner as being at the scen e ; Ground Eight: Petitioner was denied the right to due process and equal protection because the trial court erred in relying on a court appointed psychologist to find he suffered fr om a personality disorder with a propensity toward criminal behavior, and in applyin g the dangerous offender statute. 5 - OPINION AND ORDER Through appointed counsel, Petitioner argues he is entitled to relief on three claims of ineffective assistance of trial counsel raised in state PCR proceedings : (1) trial counsel failed to fully investigate and call witnesses in support of his defense to the Assault (2) charge ; trial arguing counsel self - failed to competently argue there was insufficient evidence to convict him of Attempted Murder; trial counsel failed to competently argue (3) there was insufficient evidence to convict him of Assault in the Second Degree. (#46, at 14-15.) In a Reply to Petitioner ' s supporting memorandum, Respondent argues Petitioner did not raise the claims alleging counsel was deficient for failing to competent l y argue there was insufficient evidence to convict him in the Petition and they are, not properly before the Court . the Petition, (#50, at 2 . ) therefore, In the Response to Respondent argued Petitioner failed to exhaust all but Ground for Relief One (a) , alleging counsel was ineffective for fai lin g to investigate and call witnesses on behalf of the defense . (#18, at 9; #50 at 2.) that trial counsel Respondent a l so rebutted Petitioner ' s claim failed consecuti ve sentencing transcript at page 35 to object (Ground Six shows trial imposition of consecutive sentencing. 6 - OPINION AND ORDER (c)) , to the imposition of arguing the sentencing counsel (#18, objected at 16.) to the DISCUSSION I. Claims Not Argued A petitioner seeking f edera l habeas relief bears the burden o f show ing the co urt h e is entitled to relief. Woodford v . Visci otti , 537 U.S. 1 9 , 24 38 4 F. 3d 628 , 638 (2002); Davis v . Woodford, Cir. 2004) , cert. denie d 54 5 U.S. 11 65 (2005) . (9th Under§2254(d), a petiti one r must show that the adjudi cat ion of his claims on the merits in State cou rt was: unreasonable application of, "1 ) contrary to , or in vol ved c le a rly established Fe deral an la w as determined by the Supreme Cou rt of the United States; or 2)resulted i n a decision th at was based o n an un reasonab le determination of the facts in l igh t of the evidence presented in the State co urt p rocee ding ." Petitioner does not argue in support o f the claims presented in the Petition, with the exception of Ground s One co unsel was witnesses. de fici ent for f a i ling to (a), alleg in g in vestiga t e and ca ll Consequen tly, Petitioner has n ot satisfied the b urden of proof for habeas relief on Grounds One (b-g) an d Gr ounds Two through Eight. Habeas re li ef on th ese claims i s , thus, prec lud ed . 1 I. Claims Not Alleged in Petition for Wri t of Habea s Corpus In his supporting memorandum (#46), Petitioner argues he is lThe Court has , nev ertheless , r ev iewe d the record as t o thes e grounds for relief and determined they would no t en titl e Petitioner to relief. 7 - OP INI ON AND ORDE R entitled to relief on three claims of ineffective assistance of trial counsel that he presented in state PCR proceedings: (1) trial counsel failed to fully investigate and call witnesses in support of his arguing self-defense to the Assault charge; (2) trial counsel failed to competently argue there was insufficient evidence to convict him of Attempted Murder; trial counsel failed to (3) competently argue there was insufficient evidence to convict him o f Assault in the Second Degree. Respondent argues in h is Reply that the claims alleging counsel failed to competently argue there was insufficient evidence to convict on Attempted Murder (claim 2), and counsel failed to competently argue there was insufficient evidence to convict on Assault II (claim 3) were not presented in Petition and are, therefore, not properly before the court. at 2.) the (#50, For the following reasons, the Court agrees. Rule 2(c) of the Rules Governing Section 2254 Habeas Petitions provides, in re leva nt part, that a Corpus filed pursuant to 28 U.S.C. § Petition for Writ of Habeas 2254 must: grounds for relief available to the petiti o ner; facts supporting each ground. Court finds counsel's Petitioner did (1) specify all the [and] (2) state the Upon reviewing the Petition, not present representation was deficient claims when he alleging failed the trial to argue there was insufficient evidence to convict Petitioner of Attempted Murder and Assault II. 8 - OPINION AND ORDER Through counsel , Petitioner argues the Petition should be liberally construed to include the two sufficiency of the evidence claims because the petition was pro filed In se. actuality, counsel is asking the Court to read into the Petition claims that were presented in the state PCR proceedings, included i n the federal petition. but that were not The Court finds no basis for doing so. Although Petitioner was pro se at the time the Petition was filed, shortly appointment of September 15, thereafter counsel 2009. 2 the and counsel granted has been his of mo t ion record for as of Respondent filed an Answer and Response to the Petition on March 10, 2010, deficiencies. Court Thereafter, identifying the claims and their Petitioner's counsel was granted eight (8) motions for extension of time to file a supporting memorandum. Counsel filed the supporting memorandum September 20, 2011, approximately 18 months after Respondent answered the Petition. Counsel did not move to amend the Petition, despite Respondent having identified the claims and their deficiencies in his answer. Rule 2(c) is clear that claims for relief must be presented in the petition. Counsel did not move to amend the Petition despite being in receipt of Respondent's answer for approximately 18 months 2 In a September 8, 2009, Order appointing counsel, the Court ordered the Clerk to send a copy of the Petition to counsel. 9 - OPINION AND ORDER prior to filing the supporting memorandum. The Court finds the claims arguing trial counsel was deficient for not challenging the sufficiency of the evidence are not properly before the court and, accordingly, they will not be considered. 3 See Green v. Henry, 302 F.3d 1067, 1 0 70 n.3 (9th Cir. 2002) (claims not in the petition need not be considered); *2 Marquette v. Belleque, 2010 WL 4235889, (D.Or. Oct. 20, 2010) (same ) . III. The Merits In Gr o und for Relief One (a), Petitioner alleges trial counsel's representation was constitutionally deficient for faili ng to investigate and call witnesses. adjudication of this claim is Respondent argues the state entitled to deference and ha beas relief is not warranted. A. Standards Following passage of the Anti terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), an application for a writ o f habeas corpus shall not be granted unless the adjudication on the merits in State court 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)resulted in a decisi o n that was based on an unreasonable determination of the facts in light of the 3The Court has, nevertheless, reviewed the record as to these claims and finds they would not entitle Petitioner to relief. 10 - OPINION AND ORDER evidence presented in the State court proceeding. 28 U. S . C. (2000), § 22 54 (d). I n Wi 11 i am s v. Ta y 1 or, 52 9 U. S. 362, 38 6 - 3 8 9 the Supreme Court construed this provision as requiring federal habeas courts to be highly deferential to the state court decisions under review. S.Ct. 1388, 1398-1402 In Cullen v. Pinholster, (April 4, 2011), highly deferential nature of federal U.S. 131 the Court reiterated the habeas review, and limited federal review "to the record that was before the state court that adjudicated the c l aim on the merits." The terms "contrary to" and "unreasonable application" have independent meanings. Sarausad v. Cir. court 2007). A state Porter, decision is 479 F.3d 671, "contrary 676 (9th to" clearly established federal law if it is "in conflict with", "opposite to" or "diametrically Williams, v. Taylor, different 529 U.S. from" 362, Supreme 388 (2000). Court precedent. An "unreasonable application" of clearly established Supreme Court law occurs when "the state court identifies the correct governing legal principle but unreasonably applies that principle to the facts of the case." Lambert v. Blodgett, 393 F.3d 943, 974 (9th Cir. 2004) cert. denied, 126 S. Ct. 484 (2005) (citing Williams, 529 U.S. at 413) . "A federal court making an 'unreasonable application' inquiry should ask whether the state court's application of federal law was objectively unreasonable." 11 - OPINION AND ORDER Saurasad, 479 F.3d at 676-77 (citing Williams, 529 u.s. at 409). "[A] federal habeas court may not that issue the wri t simply because court concludes in its independent judgment that the state court decision applied clearly established federal law erroneously or incorrectly." U.S. at 24-25 (2002) (internal Woodford, 537 "[A] citations omitted ) . could have court must determine what arguments or theories s u pporte [d] the state court's decision; and h abeas then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 562 U.S. - - ' - 131 S.Ct. 770, 786 (2011) claim lacks merit "A state court's determination that a precludes federal habeas relief so long as 'fairminded jurists cou l d disagree' on the correctness of the state court's decision." 652, 664 (2004 ) . Id., quoting Yarb o rough v. Alvarado, The last reasoned decision by the state court is the basis for review by the federal court. 501 U.S. 1233 n. 797, 3 541 U.S. 803-04 (9t h Cir. (1991); 2002 ) . Franklin v. See Ylst v. Nunnemaker, Johnson, 290 F.3d 1223, The decision of the state PCR tria l court is the basis for review in the instant proceeding. " 'Clearly established Federal law' is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." It is we l l Lambert, 393 F.3d at 974. established that a claim of ineffective assistance of 12 - OPINION AND ORDER counsel is governed by the principles articulated in Strickland v . 466 U.S. Washington, 668 (1984). Pinholster, 131 S. Ct. at 1403. Under Strickland, a petitioner must prove: 1) counsel's performance fell below an objective standard of reasonableness and, 2) there is a reasonable probability that, errors, but for counse l's unprofessional the result of the proceeding wou ld have been different. Bell v. Cone , 535 U.S. 685, 91 ; Strickland, 695 (2002); Williams, 529 U.S. at 390 466 U.S. at 687-88 . "A reas onab le probability is a probability sufficient to undermin e confidence in the outcome." Strickland , 466 U.S. at 694 . "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686 . "Judicia l be scrutiny of counsel 's deferential," id. at 689, presumption that counsel made all performan ce and "a court must indulge significant exercise of reasonable professional S.Ct. at 1407 omitted . ) The (quoting must Strickland) reasonableness of [the] decisions judgment." (internal counsel's highly strong in the Pinholster, 131 quotation conduct marks must be evaluated in light of the facts of the case and the circumstances at the time of representation. addi tion, a doubly deferential Strickland, standard 466 U.S. of review at 690. applies In to federal habeas review of ineffective assistance of counsel claims . 13 - OPINION AND ORDER Knowles v. Mirzayance, Cheney v. Washington, under § 556 U.S. 1 11 , 129 S.Ct. 1411, 1420 (2009); 614 F.3d 987, 995 (9th Cir. 2010) (deference 2254 and deference under Strickland). B. Analysis The state PCR trial court denied relief on Petitioner's cla im that counsel was ineffective for failing to investigate and call witnesses. The PCR court reviewed the trial transcript a nd stated on t he record: [T]he evidence was pretty clear I mean we weren't dealing wi th circumstantial evidence or a lot of witnesses. [Petitioner] admitted himself that the fired the shots into the (INAUDIBLE). The o ther thing about the transcript is that these issues that you have rais ed , they were all mentioned during the trial and during closing remarks [ .] [I] t was a trial to t he court and, I mean obviously you're not going to make the same le vel of argument when you are trying a case to a Judge as apposed [sic] to a Jury. The Judge actually did something that a lot of Judges don't do and that he actually made some findings and he discussed why he found the defendant guilty in each of these matters. I'm not going to repeat what he said but he basically said sort of went through the shooting sequence and he said I'm satisfied that this wasn't an accident that you were attempting to kill the manager. He also went particularly with this eye he went into some detail about I think the Judge said he looked at the video ta pe 3 or 4 different times, and he went through the evidence and he basically concluded that he stuck him with a ballpoint pen very close to his eye and caused an injury with a dangerous weapon so I'm going to find him in an area of guilty. These issues were addressed and it's one of t hese kinds of things when you go to trial I suppose anything can happen because different Judge just as different juror's [sic] take a different version of a fact or incident, but certainly as far as getting adequate representation and having a fair trial, I'm satisfied that he received it so. I'm going to find that the petitioner, Mr. Thomas has not proven 14 - OPINION AND ORDER his allegations necessary to support a petition for post conviction relief. I'm going to deny that petition. Ex. 125 at 9.) (#20, In addition to the trial transcript, the PCR record included Petitioner's deposition That testimony. testimony revealed Petitioner thought the assistant manager should have been called as a witness, but he could not say what her testimony would have been. (#20, Ex. 122 at 12-14.) Petitioner also testified trial counsel should have investigated the number of shots fired, only fired five, shown that. claiming he not six shots and that a 9-1-1 tape would have (Id. ) In his supporting memorandum, Petitioner argues there were witnesses listed in police reports who were not called by the State and that "he was prejudiced in defending himself by the absence of witnesses supporting his version of events." (#46, at 17.) Petitioner does not, however, name specific witnesses or offer any evidence version the of witnesses events. would have However, to testified prevail in support under of Strickland, his a petitioner must present evidence counsel's performance fell below objective standards of reasonableness, and that he was prejudiced as a result of counsel's deficiencies. Petitioner's concl usory claim that the failure to cal l witnesses prejudiced him does not establish ineffective assistance of counsel. See U.S. v. Berry, 814 F.2d 1406, 1409 (9th Cir. 1987) (no prejudice shown when there 15 - OPINION AND ORDER is no indication of what witnesses wou l d have testified to, or how testimony would have changed ou tcome of trial); see also Harden, 846 F . 2d 1229 (9th Cir. 1988) no evidence individual ineffective assistance). PCR court ' s findings, PCR trial would u.s. v. ( failure to call witness when testify does not constitute Evidence in the PRC record supports the and Petitioner has failed to show that the court's ad judi cation of Ground for Relief One (a) was contrary t o or an unreasonable application of Stricklan d , or based on an unreasonable determination of evidence presented. t he facts in light of the Habe as rel ief is, therefore, precluded. CONCLUSION The Petition for Writ of Habeas Corpus prejudice. The Appealability substantial on Court the showing basis of pursuant to 28 U.S . C . decl ine s § the that denial to (#2) issu e Petitioner of a a i s DENIED, Certificate has not const ituti onal 22S3(c) (2). IT IS SO ORDERED . DATED thi s day of March, 2012 . Unite d States District Judge 16 - OPINION AND ORDER with made of a right
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