Opinion
Civil No. 2:16-cv-00278-AC
03-05-2020
C. BLANKET GONZALEZ-AGUILERA, Petitioner, v. MARK NOOTH, Respondent.
FINDINGS AND RECOMMENDATION
Petitioner, an inmate in the custody of the Oregon Department of Corrections, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, Petitioner's Amended Petition for Habeas Corpus (ECF No. 31) should be DENIED.
BACKGROUND
On August 7, 2007, a Multnomah County grand jury indicted Petitioner on three counts of Robbery in the Second Degree. Resp. Exh. 102, pp. 1-2. The victim in Count One was identified as Cole Revell, and the victim in Count Two as Thaddeus Chapman. Counts One and Two alleged as to each victim that Petitioner:
The indictment also charged Petitioner with one count of Identity Theft, but the state dismissed that charge prior to trial.
did unlawfully and knowingly, while in the course of committing and attempting to commit theft, and with the intent of preventing and overcoming resistance to [Petitioner's] taking of property and retention of property immediately after the taking, use and threaten the immediate use of physical force upon [the victim] and represent by word and conduct that [Petitioner] was armed with what purported to be a dangerous and deadly weapon[.]Resp. Exh. 102, p. 1. Count Three, which identified Chapman as the victim, also alleged that Petitioner used force in the taking and retention of property, but in place of the allegation that he represented that he was armed, alleged that Petitioner was "aided by another person actually present." Id.
I. Evidence at Trial
In the early morning hours of July 30, 2007, Cole Revell and Thaddeus Chapman were in downtown Portland. The two had been drinking at a bar until it closed at 2:30 a.m.; Revell had four or five beers and Chapman had about six drinks in all. Tr. 67, 68, 171-72. Both men rated themselves as moderately intoxicated. Tr. 68, 175.
When they left the bar, a man they had not seen before approached them and offered to sell them crack cocaine. Tr. 69, 173. Chapman gave the man some money and they followed the man for three or four blocks, and after the man eventually purchased some cocaine, Chapman, Revell, and the man smoked the cocaine. Tr. 71, 108-09, 176-77. Neither Chapman nor Revell had ever smoked crack cocaine before; Chapman testified he could "absolutely" feel the effects of the crack, was high during the incident, and wouldn't have driven a car due to his degree of intoxication. Tr. 177, 223. Revell testified that the cocaine made him feel "very awake." Tr. 71.
After they smoked the cocaine, Chapman gave the man money to buy more. Tr. 71-72, 115, 177. Chapman and Revel followed the seller again for a few blocks. Tr. 72. Revell stopped at a gas station to buy some cigarettes. Tr. 72. When Revell exited the gas station, he encountered another man he did not know, but who was later identified as Petitioner. Tr. 72-74. Petitioner told Revell he should not be dealing with the original seller, because "he wasn't any good at being a dealer." Tr. 73. Revell "brushed it off and continued walking. Tr. 74-75. Chapman also exchanged some words with Petitioner, and believed Petitioner might have been trying to get their business away from the other person. Tr. 182-84. Petitioner began to follow the Revell and Chapman, trailing by 10 or 20 feet, and continued to disparage the drug-supplier they were dealing with. Tr. 74, 124, 185-86.
Eventually, the man who bought them drugs the first time left Revell and Chapman to meet his supplier, and when he returned he told Revell and Chapman that the cocaine he had purchased was not any good and that they had been "ripped off." Tr. 75, 127, 187. At that point, the atmosphere became tense and uncomfortable, and Revell and Chapman decided to go home. Tr. 75, 188-189.
The two walked away, with Chapman in front and Revell a few steps behind. Tr. 79, 190-93. Revell testified that as he was walking, a man grabbed him from behind and put him in a headlock, pressed an object into his back, and told him, "I have a knife. Give me your wallet." Tr. 75-78. Revell testified that he assumed the man had a knife, although he never saw a knife. Tr. 81-82, 133. Revell complied with the demands, and turned over his cell phone and wallet. Tr. 82-83. Revell testified that after the robber passed him, walking toward Chapman, Revell saw that the robber was the man who had been shadowing them from the gas station. Tr. 83. Revell testified that he could tell it was Petitioner who had robbed him because, earlier in the night, Petitioner "had been kind of a fixture behind us for some time[,]" and "he was wearing a very distinctive like black track suit, he was dressed differently than everyone else." Tr. 80.
Chapman, who was about ten paces ahead of Revell when Revell was robbed, turned in time to see Revell "handing his things" to Petitioner. Tr. 76, 190. According to Revell, two more men came from "what seemed like out of nowhere" and pinned Chapman against a chain-link fence and began to rifle through his pockets. Tr. 81, 83, 197. Neither Revell nor Chapman knew who the other two men were. Tr. 81, 193. Revell testified that Petitioner walked up to Chapman, cocked one of his arms back, and told Chapman, "Give me-give me your shit or I'll fucking kill you." Tr. 83. Revell testified that he could not see whether Petitioner had anything in his hand, but stated that "after the threat of the knife I was kind of ready to accept anything." Tr. 83. Chapman testified that Petitioner reached his arm forward and back as he threatened Chapman, and Chapman assumed from this that he had a knife, though he did not see one. Tr. 195-97. Chapman described the encounter as follows:
Q [Prosecutor]: What does [Petitioner] do?
A [Chapman]: Walks right up into my face.
Q: And what does he say?
A: He says, "Give up your fucking shit or I'll fucking kill you."
Q: Okay, and when he says that, is he doing anything else with any other part of his body?
A: As he says that he reaches his arm forward and back like, "Give me fucking shit or I'll fucking kill you."
Q: Okay. And you just made a movement with your arm that's kind of going backward. Did you see - did it appear that he was - you said he pulled his arm back, but did it - what did you think he was doing with his arm?
A: I thought he had a weapon in his hand.Tr. 197-97. The men took Chapman's cash, debit card, wallet, car keys, and cell phone. Chapman testified that he saw Petitioner put the cash taken from him into Petitioner's pocket. Tr. 206, 210.
Q: Why did you think that?
A: Ah, I figured it was because he was robbing me.
Q: Okay.
A: But I figured - I don't know. He would - would use it in a way to harm me.
Q: Did you see anything in his hand?
A: I didn't look at his hand.
Q: Okay.
A: I looked at his eyes and his chest.
* * *
Q: Okay. So the two guys start digging through your pockets. What is the defendant doing while they're doing that?
A: He's staring right at me.
Q: Okay. And he still has his arm back?
A: And still has his arm back. He - I don't - he might have. I don't - I don't think - I think he must have put down and he was - I mean, he still - he was in an aggressive position.
Q: Okay. What did you think he had in his hand?
A: I assumed it was a knife.
Q: All right. Was that because that was the way he was displaying - his arm -
A: Absolutely.
Q: - movements and what he said to you?
A: Yeah.
After the robbery, the three robbers walked off, with Chapman and Revell following them down the street. Tr. 84, 200. Chapman tried to convince the men to return his car keys, and at one point, Chapman said, Petitioner offered to sell him back his car keys. Tr. 201. After about two blocks, Petitioner turned and told Chapman and Revell that if they continued to follow the robbers they would be killed. Tr. 85, 204. Soon after this, several other men "seemed to be flocking in from all over" and Revell testified that the group of people emptied the contents of their wallets and "everything was being divvied out it seemed." Tr. 87, 205.
After the group dispersed, Revell and Chapman went to the area where their items were divvied up and gathered up some of their things. Tr. 89-90, 207. Revell found his wallet on the ground, but it was missing the debit card and credit card that had been inside it. Tr. 133-34. Chapman found his phone, his car keys, and some of the contents of his wallet, but a debit card and his cash were missing. Tr. 209-10.
Revell used his cell phone to call the police, who arrived within five minutes. Tr. 88-91. Revell told the responding officer, Officer Bruner-Dehnert, what happened. He described Petitioner as "about 6'3", 6'4", with a goatee, black man wearing a black - all black track suit." Tr. 94-95. When asked by Officer Bruner-Dehnert whether it was "a drug deal gone bad," Revell admitted that was what happened, but did not disclose that the two had actually smoked crack. Officer Bruner-Dehnert testified that Revell and Chapman believed Petitioner used a straight razor. Tr. 264, 288. Officer Bruner-Dehnert interviewed the two men for 10-15 minutes; she testified that they were not "obviously intoxicated or drunk," and that if they were intoxicated at all, "it was minor intoxication." Tr. 261. She never had concerns as to their ability to relay information. Tr. 261. Revell and Chapman left the scene. As Officer Bruner-Dehnert was "ready to clear the call," dispatch reported "a person trying to use the credit card" at a Plaid Pantry. Tr. 265.
Both Revell and Chapman testified that they did not tell Officer Bruner-Dehnert this.
Officer Andy Griggs testified that while he was on patrol, he heard the description of the robber given by Revell and Chapman, and noted that the description matched that of Petitioner, who "we knew in the area and had seen multiple times in the area" where the robbery had occurred. Tr. 291-93. According to Officer Griggs, "We knew [Petitioner] from downtown. We know what he looks like and we know his description." Tr. 307. Griggs stated that, "when the description came out my partner said to me, That's [Petitioner].'" Tr. 306.
Officer Griggs and his partner responded to the Plaid Pantry. When Officer Griggs greeted Petitioner, he said he was "just getting some stuff for Revell," and that Revell had asked him to "buy him some stuff." Tr. 293. Petitioner told Officer Griggs that Revell was a friend of his from Portland State. Tr. 293. Based on the description of the robber, Officer Griggs arrested Petitioner. The store clerk gave Officer Griggs a debit card, which was the one Revell had reported stolen. Tr. 296-97.
Officer Bruner-Dehnert re-contacted Revell and Chapman, and less than a half-hour after she first responded to the robbery call, drove them to the Plaid Pantry. Tr. 267. Revell and Chapman were in the back of the police car together when Officer Bruner-Dehnert instructed them, "This may or may not be the person that was involved in the robbery. You just need to let me know on[e] way or the other." Tr. 269. When they arrived at the Plaid Pantry, Officer Griggs moved Petitioner out of the back of his patrol car so that Revell and Chapman could see him. Tr. 271. Police shone a spotlight on Petitioner, who was standing outside the police car in hand cuffs. Tr. 140, 216, 230-31, 270-01, 297, 304. Revell and Chapman positively identified Petitioner as the robber within seconds after Petitioner was pulled out of the car. Tr. 269. When asked by the prosecutor whether they hesitated at all in their identification, Officer Bruner-Dehnert testified that they did not. Tr. 270.
Officer Bruner-Dehnert then transported Revell and Chapman to the Central Precinct for further interviews by a detective. Tr. 272. Detective Christensen testified that he interviewed Revell and Chapman together later that morning, about 7:30 a.m. Tr. 312. Although Revell and Chapman admitted that they were attempting to purchase cocaine when they were robbed, they did not disclose that they had actually smoked some cocaine. Tr. 334-35. Detective Christensen testified that when he interviewed Revell and Chapman they did not appear to be under the influence of any drug. Tr. 337.
As noted, Officer Griggs arrested petitioner. During the search incident to arrest, Officer Griggs discovered a spoon in Petitioner's pocket, but no knife. Tr. 298. Officer Griggs testified that he believed the victims mistook the spoon for a knife. Tr. 299-300. Other than Revell's debit card, which was recovered from the Plaid Pantry, no other items were found in Petitioner's possession. Tr. 299, 305. Detective Christensen interviewed Petitioner, who denied robbing anyone and who stated that he did not know Revell or Chapman. Tr. 323-24.
At the close of the prosecution's case, Petitioner's trial counsel moved for a judgment of acquittal based on insufficiency of the evidence to support a verdict, which the trial judge denied. Tr. 351-52. Petitioner did not testify, and the defense did not present any evidence. In closing argument, Petitioner's trial attorney argued that Revell and Chapman were not credible witnesses, that as a result of their lies to the police the investigation was "lazy and sloppy,' and that the identification was flawed. Tr. 388-89, 395.
The trial court instructed the jury that in order to convict a person of Robbery in the Second Degree as to Counts One and Two, the jury must find beyond a reasonable doubt that "in the course of committing or attempting to commit the theft, [Petitioner] used or threatened the immediate use of physical force," he "acted with the intent of preventing or overcoming resistance to his taking of the property or retention of the property immediately after the taking," and he "represented by word or conduct that he was armed with what was purported to be a dangerous or deadly weapon." Tr. 364. The court also mentioned that, "if it becomes necessary during the deliberations to communicate with me, you should do it in writing through your presiding juror. I'll then consult with the parties before I respond to any question you might have." Tr. 369.
During jury deliberations, the jury sent two written questions to the court. The first question concerned Count Two: "Does a person's hand, by itself, meet the definition of 'armed with what was purported to be a dangerous or deadly weapon." Resp. Exh. 106, p. 39. The second question was: "by whose perspective-victim [or] defendant?" Id. The trial court did not notify the parties of the jury's question. The trial court advised the jury, "The court is not allowed to comment on the evidence. 'Armed with what is purported to be a dangerous or deadly weapon' refers to whether the defendant 'represents by word or conduct that he is armed.'" Resp. Exh. 106, p. 39. With regard to the second question, the court advised: "the issue is whether the defendant 'represents by word or conduct that he is armed.'" Resp. Exh. 106, p. 39.
The jury found Petitioner guilty on all three counts of Robbery in the Second Degree. Thus, as to Count One involving Revell, the jury found, among other things, that Petitioner "represent[ed] by word and conduct that [he] was armed with what purported to be a dangerous and deadly weapon[.]" As to the Count Two, the jury made the same finding with respect to Chapman. On Count Three, the jury found the Petitioner was "aided by another person actually present" during the course of the robbery of Chapman. The jury verdicts were not unanimous.
The trial judge sentenced Petitioner to a total of 70 months of imprisonment. The trial judge merged Counts Two and Three for sentencing, and imposed concurrent Measure 11 70-month terms on the two remaining Counts.
II. The Direct Appeal
Petitioner filed a direct appeal asserting four assignments of error:
Assignment of Error No. 1: The trial court erred in denying Petitioner's motion for a judgment of acquittal on Count Two.Resp. Exh. 103, p. 2. The Oregon Court of Appeals affirmed without opinion. State v. Gonzalez-Aguilera, 242 Or. App. 177, 253 P.3d 1081 (2011).
Assignment of Error No. 2: The trial court committed error apparent on the face of the record when it neglected to correct the prosecutor's erroneous statement, made during her closing argument, that the Petitioner's hand could qualify as a dangerous weapon.
Assignment of Error No. 3: The trial court erred when it neglected to notify the attorneys when the jurors sent out a written question during their deliberations, and then declined to answer the jurors' question, which was specifically directed to Count Two and asked whether Petitioner's hand could qualify as a dangerous weapon.
Assignment of Error No. 4: The trial court committed error apparent on the face of the record by receiving, and entering convictions upon non-unanimous jury verdicts.
Petitioner also filed a Pro Se Supplemental Brief proclaiming his innocence of the crimes.
Petitioner filed a Petition for Review with the Oregon Supreme Court asserting two claims. First, under the circumstances of the case whether Or. R. Civ. P. 59D required the trial court, before instructing the jury in response to its questions, either to give notice to the parties' attorneys, or re-instruct the jury in their presence. Second, whether the trial court's error in re-instructing the jury outside of the attorneys' presence and without notice to them, caused prejudice to Petitioner. Resp. Exh. 107, p. 10. Both issues were argued solely on state law, no federal law question was presented or argued. The Oregon Supreme Court denied review. State v. Gonzalez-Aguilera, 351 Or. 216, 262 P.3d 402 (2011).
III. The State Post-Conviction Proceeding
Petitioner then sought state post-conviction relief ("PCR"). He asserted several claims of ineffective assistance of trial counsel, and a single claim of trial court error alleging violation of his right to a fair hearing and trial under the Due Process Clause due to the trial court's failure to notify the parties of the jury's written questions during deliberations and failure to instruct the jury about those questions. Petitioner also alleged a claim of "insufficient evidence to convict and actual innocence" in violation of his rights under Oregon law and under the Fifth, Eighth, and Fourteenth Amendments. Following an evidentiary hearing, the state PCR trial judge denied relief.
On appeal, Petitioner asserted that the PCR trial judge erred in denying relief on four of Petitioner's claims of ineffective assistance of counsel: (1) failure to seek a lesser-included offense instruction; (2) failure to move to exclude an improperly suggestive eyewitness identification; (3) failure to adequately investigate; and (4) failure to object to a non-unanimous jury instruction and verdict. Resp. Exh. 136, pp. 2-3. Petitioner also submitted a Supplemental Brief asserting that the PCR trial court erred when it denied relief on Petitioner's claim that the trial court violated Petitioner's right to a fair trial when it failed to notify the parties that the jury asked the court to clarify "whether a person's hand, by itself," is a "dangerous weapon." The Oregon Court of Appeals affirmed without opinion. Gonzalez-Aguilera v. Premo, 277 Or. App. 878, 379 P.3d 813 (2016). Petitioner filed a Petition for Review asserting the same claims, except he omitted the claim of ineffective assistance for failure to object to a non-unanimous jury instruction and verdict. The Oregon Supreme Court denied review. Gonzalez-Aguilar v. Premo, 360 Or. 422, 383 P.3d 858 (2016).
IV. Petitioner's Amended Petition for Writ of Habeas Corpus
On February 16, 2016, Petitioner filed a pro se Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 with this court. The court appointed counsel to represent Petitioner, who filed an Amended Petition alleging the seven claims for relief, summarized as follows:
Ground One: Petitioner's Fifth, Sixth, and Fourteenth Amendment rights to a fair trial and due process were violated when the trial court failed to notify the parties that, during jury deliberations, the jury sent a written question.
Ground Two: Petitioner's Sixth Amendment confrontation right and Fifth and Fourteenth Amendment due process rights to be personally present were violated when the trial court failed to notify the parties that, during jury deliberations, the jury had sent a written question.
Ground Three: Petitioner's Sixth Amendment right to counsel and Fourteenth Amendment rights were violated when the trial court failed to notify the parties that, during jury deliberations, the jury had sent a written question.
Ground Four: Petitioner's Fourteenth Amendment due process rights were violated when the trial judge denied Petitioner's motion for judgment of acquittal on Count Two because the evidence at trial was constitutionally insufficient.
Ground Five: Petitioner's Sixth and Fourteenth Amendment rights to the effective assistance of counsel were violated by trial counsel's failures to:
a. file a motion to exclude the victims' out-of-court and in-court identifications;
b. request jury instructions on lesser included offenses;
c. object to the prosecutor's improper closing argument; and
d. object to and preserve as trial court error the non-unanimous jury verdict.
Respondent contends that Petitioner procedurally defaulted several of his claims, and that as to the claims he did exhaust in state court, the state court decisions denying relief were neither contrary to or an unreasonable application of clearly established federal law.
Ground Six: Petitioner's Fourteenth Amendment Due Process rights were violated because his trial was rendered fundamentally unfair due to cumulative error.
Ground Seven: Petitioner is actually innocent.
DISCUSSION
I. Procedurally Defaulted Claims - Grounds Three, Four, Five(c), and Five(d)
A. Legal Standards
A habeas petitioner must exhaust his claims by fairly 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. Rose v. Lundy, 455 U.S. 509, 519 (1982). "As a general rule, a petitioner satisfies the exhaustion requirement by fairly presenting the federal claim to the appropriate state courts . . . in the manner required by the state courts, thereby 'affording the state courts a meaningful opportunity to consider allegations of legal error.'" Casey v. Moore, 386 F.3d 896, 915-916 (9th Cir. 2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 257 (1986)). If a habeas litigant failed to present his claims to the state courts in a procedural context in which the merits of the claims were actually considered, the claims have not been fairly presented to the state courts and therefore are not eligible for federal habeas corpus review. Edwards v. Carpenter, 529 U.S. 446, 453 (2000); Castille v. Peoples, 489 U.S. 346, 351 (1989).
A petitioner is deemed to have "procedurally defaulted" his claim if he failed to comply with a state procedural rule or failed to raise the claim at the state level. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). If a petitioner has procedurally defaulted a claim in state court, a federal court will not review the claim unless the petitioner shows "cause and prejudice" for failure to present the constitutional issue to the state 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. Carrier, 477 U.S. 478, 485 (1986).
B. Analysis
1. Sixth Amendment Right to Counsel - Ground Three
In Ground Three, Petitioner alleges his Sixth and Fourteenth Amendment right to counsel was violated when the trial court failed to notify the parties of the jury's questions during deliberation. He did not, however, allege this claim in his state PCR petition; the PCR petition alleged only that the trial court's actions violated his due process rights under the Fourteenth Amendment, not his right to counsel. By making a broad appeal to due process, Petitioner did not fairly present his specific denial of the right to counsel claim under the Sixth Amendment. See Netherland, 518 U.S. at 163 (explaining that "it is not enough to make a general appeal to a constitutional guarantee as broad as due process to present the 'substance' of such a claim to a state court); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) ("general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion).
Petitioner did raise a claim of denial of the right to counsel under the Sixth Amendment in his appeal from the PCR trial court's denial of relief. The Oregon Court of Appeals, however, was prevented under Oregon procedural rules from considering a claim that was not alleged in the underlying PCR petition. See Bowen v. Johnson, 166 Or. App. 89, 93, 999 P.2d 1159, rev. denied, 330 Or. 553, 10 P.3d 943 (2000) (holding that PCR relief "is available only as to claims that actually have been alleged in the petition or amended petition"). As such, Petitioner's Sixth Amendment claim alleged in Ground Three is procedurally defaulted. Petitioner offers no basis to excuse his procedural default of the claim alleged in Ground Three. As discussed below, in any event, Petitioner is not entitled to relief on the merits of the claim addressed in Ground Three.
2. Insufficient Evidence - Ground Four
In Ground Four, Petitioner alleges the trial court violated his federal due process rights in denying his motion for judgment of acquittal as to Count Two because the evidence at trial was constitutionally insufficient to establish that Petitioner represented by word or conduct that he was armed with a dangerous or deadly weapon. Petitioner assigned error to the trial court's denial of his motion for judgment of acquittal on direct appeal. He did not, however, raise the claim in his petition for review to the Oregon Supreme Court, and he cannot now do so. See Or. R. App. P. 9.05(2)(a) (requiring a petition for review to be filed within 35 days of decision by the Oregon Court of Appeals). As such, this claim is procedurally defaulted. Petitioner offers no basis to excuse his procedural default. Accordingly, habeas corpus relief must be denied on the claim alleged in Ground Four.
In his Memorandum of Law in Support of Amended Petition, Petitioner also appears to argue that counsel was ineffective in failing to specifically move for a judgment of acquittal on Count Two. This claim is not, however, alleged in the Amended Petition and is not properly before this court. See Rule 2(c), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (a habeas petition must "specify all the grounds for relief that are available to the petitioner"); Greene v. Henry, 302 F.3d 1067, 1070 n.3 (9th Cir. 2002) (claims not raised in the petition need not be considered); Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (rejecting claims raised for the first time in briefing).
3. Ineffective Assistance of Counsel - Grounds Five(c) and (d)
In Ground Five(c), Petitioner alleges trial counsel was constitutionally ineffective because he failed to object to the prosecutor's improper closing argument. Petitioner did not, however, allege this claim in his state PCR proceeding. State procedural law precludes him from doing so now. See Or. Rev. Stat. § 138.510 (PCR petitions must be filed within two years of the date the direct appeal is final). As such, the ineffective assistance of counsel claim alleged in Ground Five(c) is procedurally defaulted.
In Ground Five(d), Petitioner alleges trial counsel was constitutionally ineffective because he failed to object and preserve as trial court error the non-unanimous jury verdict. Petitioner alleged this claim his state PCR proceeding and on appeal from the trial court's denial of relief. Petitioner did not, however, assert this claim in his petition for review to the Oregon Supreme Court. Petitioner cannot do so now. See Or. R. App. P. 9.05(2)(a) (requiring a petitioner for review to be filed within 35 days of the decision by the Oregon Court of Appeals). As such, the ineffective assistance of counsel claim alleged in Ground Five(d) is also procedurally defaulted.
Petitioner has not offered any basis to excuse his procedural default of the claims alleged in Grounds Five(c) and (d). Accordingly, habeas corpus relief should be denied on these claims. II. Deference to State Court Decisions - Grounds One, Two, Five(a), and Five(b)
A. Legal Standards
An application for a writ of habeas corpus shall not be granted unless adjudication 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).
A state court decision is "contrary to . . . clearly established precedent if the state court applies a rule that 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 from [that] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the "unreasonable application" clause, a federal habeas court may grant relief "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. Id. at 410. Section 2254(d) "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents. It goes no farther." Harrington v. Richter, 562 U.S. 86, 102 (2011).
B. Analysis
1. Trial Court Error in Re-Instructing the Jury - Grounds One, Two, and Three
In Grounds One, Two, and Three, Petitioner takes issue with the trial judge's failure to notify the parties of the jury's questions and by answering those questions in the parties' absence. In Ground One, Petitioner alleges the trial court denied him his right to a fair trial and due process, in Ground Two, he alleges this also violated his constitutional right to be present during a critical stage of the trial, and Ground Three, he alleges this violated his right to counsel under the Sixth and Fourteenth Amendments. The PCR trial court considered these claims on the merits and rejected them. In the General Judgment denying relief, the PCR trial judge stated: "Ct did answer a jury question without consulting parties. The court's response was a correct statement of the law, so was not objectionable." Resp. Exh. 135, p. 2.
The Supreme Court has held that a trial is presumed to be unfair, without any inquiry into prejudice, if a defendant is denied counsel at a "critical stage" of the proceedings. United States v. Chronic, 466 U.S. 648, 659-60 (1984); see also Woods v. Donald, 575 U.S. 312, 315 (2015) (per curiam). The Supreme Court has not, however, set forth a definitive list of "critical stages" wherein prejudice must be assumed from the absence of counsel. McNeal v. Adams, 623 F.3d 1283, 1286 (9th Cir. 2010). In particular, the Supreme Court has never addressed whether Chronic's general standard applies when a judge fails to consult the defense before responding to a jury's question. Ruth v. Glebe, Case No. C15-533-TSZ-JPD, 2016 WL 10894425, at *10 (W.D. Wash. Aug. 3, 2016), report and recommendation adopted by 2016 WL 10894042 (W.D. Wash. Sept. 28, 2016). Accordingly, the PCR court's failure to presume prejudice because the trial court answered the jury's question in the absence of Petitioner and his trial counsel is not contrary to clearly established federal law. See Woods, 575 U.S. at 317 ("[b]ecause none of our cases confront 'the specific question presented by this case,' the state court's decision could not be 'contrary to' any holding from this Court") (quoting Lopez v. Smith, 547 U.S. 1, 135 S. Ct. 1, 4 (2014) (per curiam)).
The PCR court also did not unreasonably apply Supreme Court precedent in deeming any error harmless. In Musladin v. Lamarque, 555 F.3d 830 (9th Cir. 2009), the Ninth Circuit denied habeas relief where the trial court informed defense counsel about a mid-deliberation jury communication requesting "amplification" of a jury instruction, but responded to the question before defense counsel arrived at the courthouse by directing the jury to "refer to the instructions." Id. at 835. While recognizing that the formulation of the response to the jury question as a stage at which deprivation of counsel might be critical, "the Ninth Circuit denied relief under the AEDPA because it would not be unreasonable for a state court to conclude that the mid-deliberation communication with the jury was not 'critical' given that the judge simply referred the jury back to instructions that defense counsel had proposed." Ruth, 2016 WL 10894425, at *10 (citing Musladin, 555 F.3d at 840-43). The Ninth Circuit thereafter concluded that any error in that case was harmless. Id.
Here, the potential impact of defense counsel's inability to participate in formulating the response to the jury is at least as insignificant as in Musladin, where the trial judge referred the jury back to the instructions that had been given. Petitioner cannot establish that, had the trial court conferred with the parties, a different response which was more favorable to Petitioner would have been given. The jury's question was whether a person's hand, by itself, met the definition of "armed with what was purported to be a dangerous or deadly weapon." The issue, however, was not whether Petitioner was actually armed, but instead whether he represented that he was armed. Accordingly, the trial court correctly informed the jurors that it was not permitted to comment on the evidence, and then repeated the instructions that had previously been given.
Petitioner contends that, had counsel been apprised of the jurors' questions, counsel could have requested that the court instruct the jury that as a matter of law a hand does not constitute a dangerous or deadly weapon. The trial court had already instructed the jurors as to what constitutes a dangerous or deadly weapon. Tr. 360. Under Oregon law, Petitioner was not entitled to instructions as to what would not constitute such a weapon. See State v. Beagley, 257 Or. App. 220, 232, 305 P.3d 147 (2013) (explaining that "[j]urors must be correctly informed of what facts they need to find in order to return a guilty verdict. They do not need to know what facts, if found, will not suffice.") (Emphasis in original). Under these circumstances, Petitioner has not demonstrated that, had the trial court consulted with the parties, trial counsel would have requested such an instruction or that the trial court would have given it. Accordingly, the PCR court's conclusion that the trial judge's "response was a correct statement of the law, so was not objectionable" is entitled to deference. As such, Petitioner is not entitled to relief on the trial court error claims alleged in Grounds One and Two.
Petitioner does not suggest any potential instruction(s) trial counsel could have requested as to the jurors' second question.
2. Ineffective Assistance of Counsel - Grounds Five(a) and (b)
In Ground Five(a), Petitioner alleges trial counsel was constitutionally ineffective in failing to file a motion in limine or a motion to exclude the victims' out-of-court and in-court identifications as inadmissible on the grounds that the identifications were obtained through impermissibly suggestive procedures that created a likelihood of misidentification. In Ground Five(b), Petitioner alleges trial counsel was constitutionally ineffective in failing to request jury instructions on lesser included offenses.
The Supreme Court has established a two-part test to determine whether a petitioner has received ineffective assistance of counsel. First, the petitioner must show that his lawyer's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 686-87 (1984). Second, the petitioner must show that his lawyer's performance prejudiced the defense. The appropriate test for prejudice is whether the petitioner can show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the trial. Id. at 696.
Under the Anti-Terrorism and Effective Death Penalty Act of 1996's deferential standard of review, the key question in analyzing an ineffective assistance of counsel claim brought by a state prisoner is whether the state court's application of Strickland was unreasonable. Harrington, 562 U.S. at 107. "This is different from asking whether defense counsel's performance fell below Strickland's standard . . . . A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Id. "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. at 105. Thus, "[w]hen the claim at issue is one for ineffective assistance of counsel . . . AEDPA review is 'doubly deferential,' because counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016) (citations and internal quotations omitted). "In such circumstances, federal courts are to afford both the state court and the defense attorney the benefit of the doubt." Id. (citation and internal quotation omitted).
Here, the PCR considered and rejected the ineffective assistance of counsel claims alleged in Grounds Five(a) and (b). As to the failure to move to exclude the identification of Petitioner by Revell and Chapman as impermissibly suggestive, trial counsel explained at the PCR trial why he decided not to move for exclusion of victims' identification of Petitioner as follows:
I did not file a pretrial motion to suppress the alleged victims' identification of [Petitioner] in the one-person "show-up" because I did not believe that such a motion would have been successful/granted. There were independent sources of the alleged victims' identification of my client, apart from the "show-up," including a substantial opportunity prior to the alleged robberies for the alleged victims to observe my client.Resp. Ex. 131, p. 4. Trial counsel instead chose a strategy to attack the credibility of the identification and argue to the jurors that they should accord it little weight: "I argued to the jury that the identification of my client in the one-person 'show-up' was suggestive, and that the identification by the alleged victims was not credible because of the intoxication of the alleged victims, and because of their overall lack of credibility." Id. The PCR trial judge denied relief, explaining, "Att[orney] did raise ID on [illegible]. [Court] stated it was a jury issue. No proof that [court] would have gotten a different result if raised in limine. This ID was no more suggestive than any show up. [Victims] had long time to observe robber." Resp. Exh. 137, p. 2. The PCR trial judge concluded there was "[i]nsufficient proof of any inadequacy or any prejudice." Resp. Exh. 137, p. 3.
Both the Supreme Court and the Ninth Circuit have recognized that one person field show-up identifications, without more, do not violate due process. Neil v. Biggers, 409 U.S. 188, 198-99 (1972); United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985); United States v. Kessler, 692 F.2d 584, 585-86 (9th Cir. 1982). Instead, in considering an identification made as the result of an alleged suggestive procedure, a court must consider the reliability of the identification under all of the circumstances. Manson v. Brathwaite, 432 U.S. 98, 114 (1977). Several factors must be considered in evaluating the reliability of identification testimony:
These include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.Id. After considering those factors, a court must consider whether "there is 'a very substantial likelihood of irreparable misidentification.'" Id. at 116 (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). However, "[s]hort of that point, such evidence is for the jury to weigh." Id.; see also Perry v. New Hampshire, 565 U.S. 228, 246 (2012) (recognizing that "the jury, not the judge, traditionally determines the reliability of the evidence" and numerous other safeguards of the adversary system protect against "dubious identification evidence").
Here, the relevant factors favored admission of the victims' identification of Petitioner. Both Revell and Chapman had ample opportunity to view Petitioner that night before the crime occurred. Both were able to get a good look at Petitioner as he robbed them. Although Revell was robbed from behind, he saw and recognized Petitioner as he then walked toward Chapman and robbed him. Their description of Petitioner at the time of the crime was accurate; when Officer Griggs heard the description over the police radio, he noted that it matched that of Petitioner and his partner immediately stated, "That's [Petitioner]." Tr. 291-93, 306. Revell and Chapman both exhibited a level of certainty that Petitioner was the robber when they saw him at the Plaid Pantry. At the show-up, both identified Petitioner as the person who robbed them "within seconds" and without any hesitation. Tr. 269-70. At trial, both testified that they were one-hundred-percent sure that Petitioner was the person who robbed them. Tr. 96, 214-15, 243. Finally, Revell and Chapman identified Petitioner within the matter of an hour or two after the robbery. Tr. 94, 267.
Because each of the factors weighed in favor of admissibility, trial counsel reasonably concluded that a motion to exclude Revell and Chapman's identification would not have been successful. Instead, trial counsel reasonably argued to the jury that the identification should be given little weight due the victims' drug use and the suggestiveness of the police procedure. The PCR trial court's decision that counsel provided reasonable professional assistance was neither contrary to nor an unreasonable application of Strickland under these circumstances, and Petitioner is not entitled to habeas relief on the claim alleged in Ground Five(a).
The PCR trial court also denied relief on the claim alleged in Ground Five(b), that trial counsel ineffective for failing to request jury instructions on lesser included offenses, including but not limited to an instruction on Robbery in the Third Degree, which is a non-Measure 11 offense. In the PCR proceeding, trial counsel explained his decision not to request jury instructions on a lesser-included offense as follows:
Other than Robbery in the Third Degree, Petitioner does not identify any lesser-included offense on which he contends trial counsel should have requested a jury instruction. --------
I did not request a lesser included offense of Robbery in the Third Degree. I did not believe that arguing to the jury, that, if they believed that my client was the perpetrator, but they were not convinced beyond a reasonable doubt that he represented by words or conduct he was armed with what was purported to be a dangerous/deadly weapon, they should only find him guilty of Robbery in the Third Degree. Such an argument would have weakened our overall defense strategy that focused on attacking the credibility of the alleged victims, and the flawed "show-up" as to the identity of the perpetrator. In my assessment, our best defense strategy was to pursue the one which we did. I did not believe that arguing for a lesser included offense of Robbery in the Third Degree would have been credible to the jury, and such an argument would have weakened our overall defense strategy.Resp. Exh. 131, pp. 5-6. The PCR trial court concluded that it was a "[r]easonable strategy to decide not to look at [lesser-included offenses] and instead to go all or nothing." Resp. Exh. 137, p. 2.
A review of the record supports the reasonableness of the PCR court's finding that counsel's strategy to pursue an "all or nothing" defense was itself reasonable. Revell testified that the robber grabbed him from behind, pressed something against his back, stated he had a knife, and ordered him to turn over his wallet. Chapman testified that two people held him against a fence as the robber told him that he would be killed if he did not give up his belongings. If the jury believed Revell, there was no genuine question that the robber represented that he had a dangerous or deadly weapon as charged in Count One of the indictment, and if the jury believed Chapman, there was no genuine question but that the robber had been aided by another personal actually present as alleged in Count Two. For trial counsel to have also argued, in the alternative, that if Petitioner had committed the robbery, he had not represented that he had a dangerous weapon and had not been aided by others, could have damaged counsel's credibility with the jury. The PCR court reasonably applied Strickland in concluding that counsel's strategic decision not to make the alternative argument falls within the wide range of professional assistance. See Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir. 1984) (rejecting claim that counsel was ineffective for declining to request instruction on lesser-included offense because counsel did so "as the result of a tactical decision that the jury should be forced to the choice of finding [the petitioner] guilty of deliberate homicide or acquitting him outright. With the benefit if hindsight we know that this strategy was incorrect; however, it did not constitute ineffective assistance of counsel").
Finally, regardless of whether counsel's performance was deficient or strategically sound, the record does not establish prejudice. Given the evidence at trial and the jury's finding that Petitioner did commit the three counts of Robbery in the Second Degree as charged in the indictment, Petitioner has not established why the jury would have declined to do so if it had been instructed on Robbery in the Third Degree. See Or. Rev. Stat. § 136.460(2) ("[o]nly if the jury finds the defendant not guilty of the charged offense may the jury consider a lesser included offense"); Strickland, 466 U.S. at 695 (in assessing whether a petitioner was prejudiced by ineffective assistance, a court should presume that the decision maker "reasonably, conscientiously, and impartially" applied the correct legal standards). Accordingly, Petitioner fails to establish prejudice resulting from trial counsel's failure to request instructions for the lesser-included offense of Robbery in the Third Degree.
In sum, the PCR court's decision denying relief on the ineffective assistance of trial counsel claims alleged in Grounds Five(a) and (b) was neither contrary to nor an unreasonable application of clearly established federal law. Accordingly, the court should deny habeas corpus relief on these claims.
III. Cumulative Error
In Ground Six, Petitioner alleges that "cumulative errors" during his trial denied him his right to due process. In some cases, although no single trial error is sufficiently prejudicial to warrant reversal, the cumulative effect of several errors may still prejudice a petitioner so much that his conviction must be overturned. See Alcala v. Woodford, 334 F.3d 862, 893-95 (9th Cir. 2003) (reversing conviction where multiple constitutional errors hindered petitioner's efforts to challenge every important element of proof offered by prosecution). For the reasons set forth above, however, the court finds no constitutional error exists, let alone multiple errors. Where there is no single constitutional error, nothing can accumulate to the level of a constitutional violation. Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011). Accordingly, Petitioner is not entitled to habeas corpus relief on the cumulative error claim alleged in Ground Six.
IV. Actual Innocence
Finally, in Ground Seven, Petitioner asserts he is actually innocent. The Supreme Court has left open the question whether a freestanding claim of actual innocence is cognizable on federal habeas review. See District Attorney's Office v. Osborne, 557 U.S. 52, 71 (2009) (whether federal constitutional right to be released upon proof of "actual innocence" exists "is an open question"). The Ninth Circuit has assumed without deciding that freestanding actual innocence claims are cognizable in both capital and non-capital cases. Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (en banc). A defendant "asserting a freestanding innocence claim must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent." Id. (citing Herrera v. Collins, 506 U.S. 390, 442-44 (1993) (Blackmun, J., dissenting)). The petitioner's burden in such a case is "extraordinarily high" and requires a showing that is "truly persuasive." Id. (quoting Herrera, 506 U.S. at 417); see also Spivey v. Rocha, 194 F.3d 971, 979 (9th Cir. 1999) (denying habeas relief where "the totality of the new evidence [did] not undermine the structure of the prosecution's case")
Here, Petitioner does not present any new evidence of his innocence. Instead, he contends he is actually innocent as a result of the insufficiency of the evidence for Count 2 and other evidence argued in his Memorandum of Law. Under the circumstances of this case, Petitioner has not affirmatively proved that he is probably innocent, and, therefore, is not entitled to habeas corpus relief on his actual innocence claim.
RECOMMENDATION
For these reasons, the Amended Petition for Writ of Habeas Corpus (ECF No. 31) should be DENIED, and a judgment of dismissal should be entered. A certificate of appealability should be denied as Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).
SCHEDULING ORDER
The above Findings and Recommendation are referred to a United States District Court Judge for review. Objections, if any, are due by March 20, 2020. If no objections are filed, review of the Findings and Recommendation will go under advisement that date.
A party may respond to another party's objections within 14 days after the objections are filed. If objections are filed, review of the Findings and Recommendation will go under advisement upon receipt of the response, or on the latest date for filing a response.
DATED this 5th day of March, 2020.
/s/_________
John V. Acosta
United States Magistrate Judge