Opinion
CV. 02-508-KI.
May 11, 2004
Anthony D. Bornstein, Assistant Federal Public Defender, Portland, Oregon, Attorney for Petitioner.
Hardy Myers, Attorney General, Lynn David Larsen, Assistant Attorney General, Department of Justice, Salem, Oregon, Attorneys for Respondent.
OPINION AND ORDER
Petitioner, an inmate at the Oregon State Penitentiary, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is denied and this proceeding is dismissed.
BACKGROUND
On September 6, 1995, a jury found petitioner guilty of sexual abuse in the first degree. The trial judge imposed a 75-month term of imprisonment and a ten-year term of post-prison supervision. Petitioner filed a direct appeal challenging the constitutionality of his sentence. The Oregon Court of Appeals affirmed the trial court without opinion, and the Oregon Supreme Court denied review.
Petitioner subsequently filed a petition for state post-conviction relief. After a hearing wherein petitioner was represented by counsel, the trial court denied post-conviction relief. The Oregon Court of Appeals affirmed, without opinion, and the Oregon Supreme Court denied review.
In the instant proceeding, petitioner challenges the constitutionality of his conviction and sentence as follows: (1) petitioner was sentenced under an unconstitutional sentencing scheme; (2) the jury did not consist of petitioner's "peers"; (3) the prosecutor engaged in misconduct; (4) petitioner was deprived of his right to confront and cross-exam witnesses as a result of the plea agreement offered to petitioner's co-defendant; (5) there was insufficient evidence to support petitioner's conviction; and (6) trial and appellate counsel rendered ineffective assistance.
DISCUSSION
I. PROCEDURAL DEFAULT.Respondent contends that petitioner's grounds for relief two (jury composition), three (prosecutorial misconduct), and four (unlawful plea agreement), as direct due process violations, are procedurally defaulted because petitioner failed to raise them on direct appeal as is required by state law. Respondent concedes that petitioner raised "similar claims" in his post-conviction proceeding but argues that "the gist of the claims was against trial counsel." Despite petitioner's failure to address this argument, I conclude that grounds for relief two, three and four are not procedurally defaulted.
A. Applicable Law.
State prisoners seeking a writ of habeas corpus from a federal court must first exhaust their remedies in state court. 28 U.S.C. § 2254(b). A petitioner exhausts his federal claims when he fully and fairly presents them to the state courts. Duncan v. Henry, 513 U.S. 364, 365 (1995). Exhaustion requires that a prisoner comply with state procedural rules. Powell v. Lambert, 357 F.3d 871, 874 (9th Cir. 2004). Hence, federal courts will not review a federal constitutional claim, rejected by a state court on the basis of a state procedural rule that is independent of the federal question and adequate to support the judgment, unless the prisoner demonstrates cause for the procedural default and actual prejudice, or that the failure to consider the claim will result in a fundamental miscarriage of justice. Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir.), cert. denied, 124 S.Ct. 105 (2003); LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001).
B. Analysis.
In his petition for post-conviction relief, petitioner alleged that his right to due process was violated by the composition of the jury, prosecutorial misconduct, and the plea agreement offered to his co-defendant. The state post-conviction court addressed these grounds for relief on the merits and without any indication that the claims were not proper subjects for post-conviction relief. Accordingly, I conclude that the grounds for relief are not procedurally defaulted. See La Crosse, 244 F.3d at 704 (unless state court makes clear its decision rests on independent and adequate state ground, petitioner may seek relief in federal court).
However, I agree with respondent that grounds for relief five (insufficiency of the evidence) is procedurally defaulted because he failed to raise the claim on direct appeal, as is required by state law (see Resp. Exh. 115 at 26), and, alternatively, because he failed to raise the claim in his appeal from the denial of post-conviction relief.
Petitioner's ground for relief eleven (ineffective assistance of appellate counsel) similarly is procedurally defaulted on the basis that petitioner failed to raise it on appeal from the denial of post-conviction relief. Petitioner fails to argue that the foregoing grounds for relief are not procedurally defaulted, and has made no attempt to excuse his procedural default. Accordingly, federal habeas corpus relief is barred as to grounds for relief five and eleven.
II. THE MERITS.
A. Ground for Relief One.
In his first ground for relief, petitioner alleges that his Measure 11 sentence, under which he has no opportunity to earn good time or any other type of reduction, is unconstitutional. However, petitioner offers no argument to support a finding that the post-conviction court's rejection of this claim is contrary to, or an unreasonable application of, clearly established federal law. Accordingly, I conclude that habeas relief is not warranted. See Alvarado v. Hill, 252 F.3d 1066, 1069-70 (9th Cir. 2001) (concluding that Measure 11, as applied to juveniles, is not contrary to clearly established federal law).
B. Grounds for Relief Two, Three, and Four.
Respondent argues this court should defer to the state postconviction court's rejection of grounds for relief two (jury composition), three (prosecutorial misconduct) and four (unlawful plea agreement). The post-conviction court rejected these claims as follows:
I find that — that Mr. Galvan has not proven that he was denied a — a jury of his peers or that he was denied a jury that was fairly selected. He is not entitled to a jury made up of a certain percentage of Indian or Mexican Americans or any other nationality. What he is entitled to is a jury that's selected in a fair and appropriate manner. There's absolutely no evidence here to indicate that minorities or any other individuals were excluded from the jury pool. There's no evidence that any jurors were improperly excluded by the State because of their nationality or their sex."
. . . .
As far as item number four, the district attorney introduced unsworn statements, the district attorney argued that there was testimony that Mr. Galvan reached out to the codefendant, Mr. Zamora, grabbed his hand and either placed it or attempted to place it on the victim's breast. [T]here was testimony in the record that was consistent with the argument of the district attorney. And there was no basis for — for a trial attorney to object to it.
Number five, Mr. Carlson's argument that the entering into a plea agreement is unconstitutional I find no — I [know] of no legal basis for that. The plea agreement is in the record. . . . The district attorney stated in his affidavit that was based on his belief that the codefendant was less culpable. The codefendant agreed to testify truthfully at trial and sentencing was held after the trial. . . . I know of nothing that renders that unconstitutional.
(Respondent's Exh. 115 at 24-27.)
Petitioner does not address grounds for relief two, three and four in his supporting memorandum, does not offer evidence to rebut the factual findings of the post-conviction court underlying its rejection of those constitutional claims, and has failed to demonstrate that the post-conviction court's holding is contrary to, or an unreasonable application of, clearly established federal law.
Accordingly, I conclude that federal habeas corpus relief is not warranted as to grounds for relief two, three, and four.See 28 U.S.C. § 2254(d) and (e)(1); see also United States v. Bushyhead, 270 F.3d 905, 1008 (9th Cir. 2001), cert. denied, 535 U.S. 905 (9th Cir. 2002) (Sixth Amendment violation requires proof that representatives of group in venires from which juries are selected is not fair and reasonable, and that under representation is due to systematic exclusion of the group); Darden v. Wainwright, 477 U.S. 168, 181 (1986) (claim of prosecutorial misconduct requires proof that comments so infected the trial with unfairness as to make conviction a denial of due process); Napue v. Illinois, 360 U.S. 264, 269-70 (1959) (state's solicitation of false testimony violates due process).
C. Ineffective Assistance of Counsel.
A claim of ineffective assistance of counsel, requires petitioner to prove that counsel's performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.Bell v. Cone, 535 U.S. 685, 695 (2002); Williams v. Taylor, 529 U.S. 362, 390-91 (2000); Strickland v. Washington, 466 U.S. 668, 687-88 (1987).
1. Grounds for Relief Eight, Nine, and Ten.
Petitioner alleges several ineffective assistance claims. In grounds for relief eight, nine and ten, petitioner alleges that trial counsel was ineffective for failing to move for a judgment of acquittal, for failing to request a lesser-included offense instruction, and for failing to object to racially motivated testimony by the victim.
With regard to these claims, the post-conviction court held as follows:
Under item number six, trial court — or trial attorney failed to move for judgment of acquittal in Sexual Abuse in the First Degree. . . . The failure to do that is not a basis for post-conviction relief unless it in fact resulted in some type of prejudice and there would have been — there was no prejudice from the failure to do so because there was ample evidence in the — in the record to support that charge and there would have been no basis for granting the motion. So there's — that issue has not been proven.
The item number seven, trial counsel failed to request any jury instruction relating to a lesser included — lesser included charge, given the testimony that was produced and the fact that the Defendant adamantly maintained his innocence I do not find that the attorney was — was ineffective for not asking for the lesser included charge. Also there's no evidence to support the argument that the jury would likely have found a lesser included charge rather than the charge of Sexual Abuse in the First Degree.
Item number eight has to do with the statement made by the alleged victim that a lot of Mexican people are liars and that they would, you know, maybe hurt me or kill me or something for telling on them. I think you have to look at the — the context in which that was said. She was being cross examined by defense counsel, the questions had to do with why she did not report this incident sooner and this was her answer. Regardless of how it may have been based on prejudice or bias it was her explanation for her reason for not — not reporting the incident sooner. It was an expression of her beliefs, how — however prejudicial or bias it may be it was admissible. There was no basis for the attorney to object to it or for the Court to give any kind of instructions. The attorney certainly had the right to point it out during argument but the — it was no[t] inadmissible. Given the context in which it was given.
(Resp. Exh. 115 at 28-29.)
Petitioner does not address grounds for relief eight, nine, and ten in his supporting memorandum, does not offer evidence to rebut the factual findings of the post-conviction court underlying its rejection of those claims, and has made no attempt show that the post-conviction court's holding is contrary to, or an unreasonable application of, clearly established federal law.
Based upon my review of the record, I find no basis for concluding that the post-conviction court's decision is contrary to, or an unreasonable application of, clearly established law.See United States v. Moore, 921 F.2d 207, 210 (9th Cir. 1990) (trial counsel is not ineffective for failing to make meritless motion because neither deficiency nor prejudice exists); Butcher v. Marquez, 758 F.2d 373, 376-77 (9th Cir. 1985) (counsel's performance is not constitutionally ineffective if, with adequate knowledge of the law and the evidence, he chooses not to request a lesser included offense jury instruction provided such a choice is reasonable).
2. Ground for Relief Six.
In ground for relief six, petitioner alleges that he was denied effective assistance of counsel due to trial counsel's failure to investigate and call Maxine Case and Cliff Gilinsky as witnesses. In the post-conviction court proceeding, the only evidence as to what Case and Gilinsky would have testified to was provided by petitioner:
Q: Are you familiar with a person named Maxine Case?
A: I never met her — never met her.
Q: Did you ask your attorney about Maxine Case?
A: He's the one — he said that she was too fat to put on the stand
Q: What would she — why do you believe she would have been helpful to your case?
* * *
A: Well, when I was going to trial she had come up — the alleged victim had come up to her and asked her where she could — she was looking for a man because she hadn't had a prick in her in quite a while.
* * *
Q: * * * [A]re you familiar with a person named Cliff Balinsky [sic]?
A: All I know is that he's the manager where she lived at next door to us. I never met neither of these people.
(Resp. Exh. 115 at 7-8.)
The post-conviction court concluded that petitioner failed to prove that trial counsel was ineffective for failing to call Case and Gilinsky because "[t]here's simply no evidence presented with respect to . . . what their testimony would have been or how it might have changed the outcome of the case." (Id. at 25.)
In the instant proceeding, petitioner seeks to bolster his argument that Case and Gilinsky should have been called as witnesses by moving to expand the record to include affidavits from Case and Gilinsky. In the alternative, petitioner moves for an evidentiary hearing.
Because petitioner (1) failed to offer this evidence to the state post-conviction court; and (2) has failed to demonstrate in this proceeding that (a) the factual predicate of the claim could not have been previously discovered through the exercise of due diligence, and (b) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found petitioner guilty, § 2254(e)(2) precludes both expansion of the record and an evidentiary hearing. See 28 U.S.C. § 2254(e)(2); see also Boyko v. Parke, 259 F.3d 781, 790 (7th Cir. 2001) (when expansion of the record is used to achieve same end as evidentiary hearing, petitioner subject to requirements of § 2254(e)(2)); Cargle v. Mullin, 317 F.3d 1196, 1209 (10th Cir. 2003) (same).
I reject petitioner's assertion that § 2254(e)(2) is inapplicable because he exercised diligence in seeking to develop the facts underlying his claim in state court. The only evidence of petitioner's purported "diligence" is his testimony in the post-conviction court that he didn't know the witnesses, but believes Case would testify to a statement made by the victim.
Diligence "depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court." Williams v. Taylor, 529 U.S. 420, 435 (2000). Petitioner offers no evidence that he attempt to contact the witnesses and/or offer their testimony, orally or by affidavit, at the state post-conviction proceeding. Petitioner offers no excuse for this failure. In light of this lack of diligence, petitioner cannot now develop the factual predicate of his claim. 28 U.S.C. § 2254(e)(2).
In sum, I conclude that petitioner has failed to prove that trial counsel was deficient or that, if counsel had called Case and Gilinsky as witnesses, there is a reasonable probability that the result of the proceeding would have been different.Strickland, 466 U.S. at 694. Hence, the post-conviction court's rejection of this ground for relief is neither contrary to, nor an unreasonable application of, clearly established federal law.
3. Ground for Relief Seven.
In ground for relief seven, petitioner alleges that trial counsel was ineffective for failing to effectively cross-examine the victim. The post-conviction court rejected this ground as follows:
[T]he trial counsel has to make a tactical decision as to — as to how extensive he's going to cross examine a witness, particularly a victim. In this case the victim gave kind of rambling, often contradictory testimony. There's certainly a tactical decision as to whether or not to leave that in place or cross examine and maybe strengthen the testimony. So that's always a tactical decision. I'm unable to say that the limited cross examination by the trial attorney was constituted [sic] ineffective assistance of counsel particularly since the strategy did in fact result in acquittal on the three other charges, one of which was more serious than the Sexual Abuse charge.
(Resp. Exh. 115 at 26.)
Petitioner concedes that a trial attorney's decision regarding the extent of cross examination is typically strategic in nature. Petitioner argues, however, that "this case involves the exception to that general principle because of counsel's acknowledgment that his cross examination of the complainant was poor and that he felt he did not do a good job." (Pet. Memo. at 18-19.)
Petitioner's argument is premised upon a mischaracterization of counsel's closing argument. Rather than criticizing his own cross examination, trial counsel was summarizing the argument made by the prosecution, and stressing to the jury that he chose not to extensively cross examine the victim because her testimony was deficient on its face. In this regard, counsel stated:
Mr. McGeary said I didn't cross examine Nola much, and that that was an inherent weakness of, of myself, and obviously she must be telling the truth, because I didn't do much cross examination. Well . . . you do not cross examine somebody who really has not hurt the case very much.
. . . .
Again, almost all this case involves around the force and lack of consent issue. But remember what Nola said, and which is another reason why I did such a, an apparently terrible, terribly bad job of cross examining her. She say that she basically asked Marc to see his penis, and he took down his pants and showed it to her. She's saying that is part of her mental defense. But if a person would have really been attempting to complete a rape, I'd say there would have been evidence of an erection of some sort, and there was not.
(TR. at 265-69 (emphasis added).)
In sum, there was no concession on the part of defense counsel that his cross examination was deficient. Moreover, in light of the totality of the evidence presented, petitioner has failed to demonstrate that there is a reasonable probability that, but for counsel's limited cross examination, there is a reasonable probability that the result of the proceeding would have been different. Accordingly, the post-conviction court's rejection of this ineffective assistance claim is neither contrary to, nor an unreasonable application of, clearly established federal law.
CONCLUSION
Based on the foregoing, petitioner's petition for writ of habeas corpus (#2) is DENIED and this proceeding is DISMISSED.
IT IS SO ORDERED.