Opinion
2:15-cv-02341-YY
06-16-2021
EBER GRAMAJO, Petitioner, v. MARK NOOTH, Superintendent, Snake River Correctional Institution, Respondent.
Thomas J. Hester Assistant Federal Public Defender Attorney for Petitioner Ellen F. Rosenblum Attorney General Samuel A. Kubernick Assistant Attorney General Department of Justice Attorneys for Respondent
Thomas J. Hester Assistant Federal Public Defender Attorney for Petitioner
Ellen F. Rosenblum Attorney General Samuel A. Kubernick Assistant Attorney General Department of Justice Attorneys for Respondent
FINDINGS AND RECOMMENDATIONS
YOULEE YIM YOU UNITED STATES MAGISTRATE JUDGE
Petitioner Eber Gramajo, an inmate at the Snake River Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254 challenging his conviction and sentence for first-degree manslaughter. For the reasons set forth below, the Amended Petition for Writ of Habeas Corpus [85] should be denied, and Judgment should be entered dismissing this action with prejudice.
I. Factual Background
The Court set out a detailed factual background of this case in its Order [70] resolving petitioner's Motion for Discovery. Briefly, the victim, petitioner's two-month-old infant daughter, died of injuries sustained on May 26, 2009, when she was in his care. Petitioner called the infant's mother at work to report that fluid was coming out of the infant's nose and mouth and that she was not breathing. The mother called 911, and a dispatcher called petitioner to coach him in administering CPR until paramedics arrived. Petitioner did not tell the paramedics that the infant had suffered any injuries or struck her head, nor did he volunteer that the infant struck her head in early interviews with law enforcement. Later, when directly asked by a detective if the infant had hit her head on anything, petitioner initially said he "heard a sound" when he stood up with her to reach for a bottle for his sixteen-month-old son and suggested that she may have hit her head on a table or the arm of the chair because the chair was too close to the table. Still later, he indicated that she possibly used her legs to push off on the arm of the chair, rolled out of his arms, and hit her head on the table. When told by a detective that it took a lot of force to cause the injuries she suffered, petitioner said that he heard a "thud" from her head hitting the table.
An initial CT scan and examination at St. Vincent's Hospital emergency department revealed a skull fracture, subdural hematoma, possible subarachnoid hemorrhage, and left subretinal hemorrhage. Due to the gravity of her injuries, the infant was transferred to Legacy Emanuel Hospital and Health Center. There, a physician found "parietal skull fracture extending across the midline to [right] parietal area," "cerebral edema," and "multilayered too numerous to count retinal hemorrhages with retinoschisis in [right] eye. Most consistent with trauma." The doctor found that this presentation was not compatible with petitioner's "history of a short fall, or mild contact injury to the head," but rather were the result of "severe acceleration/deceleration forces in combination with impact." The medical examiner who performed the autopsy listed the cause of death as "closed head trauma" and the manner of death as "homicide."
II. Procedural Background
On June 3, 2009, the Washington County Grand Jury returned an indictment charging petitioner with one count of Felony Murder and one count of Manslaughter in the First Degree. Respondent's Exhibit ("Resp. Ex.") 102 [25-1]. On January 5, 2010, petitioner entered into a plea agreement to plead guilty to the manslaughter charge in exchange for the dismissal of the felony murder charge. The court accepted petitioner's plea and imposed a twenty-year sentence in accordance with the parties' stipulated agreement. Resp. Ex. 103 [25-1].
Petitioner did not directly appeal his convictions and sentence but did file a petition for post-conviction relief ("PCR") in state court. The PCR court denied relief. Gramajo v. State of Oregon, Malheur County Circuit Court Case No. 10088287P; Resp. Ex. 134 [25-4]. On appeal, the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Gramajo v. Nooth, 272 Or.App. 181, 356 P.3d 1171 (2015), rev. denied 35% Or. 70, 363 P.3d 501 (2015); Resp. Exs. 135-139 [25-4].
On December 16, 2015, petitioner filed this action. His grounds for relief as set forth in the Amended Petition [85] are as follows:
A. Ground One: Ineffective Assistance of Trial Counsel in Communicating with and advising Petitioner
1. Counsel failed to regularly communicate with petitioner and repeatedly failed to either accept or return his telephone calls;
2. Counsel failed to utilize an interpreter and have copies of critical discovery translated, resulting in his client - a native Spanish-speaker who did not read English - having an inadequate understanding of the facts alleged and potential evidence against him;
3. Even without the use of an interpreter, counsel failed to meaningfully summarize and critique the medical evidence, merely opining that the information was harmful; and
4. Counsel failed to attend to petitioner's description of the circumstances of his interrogation. The police obtained multiple reenactments of the underlying events after keeping Petitioner up all night, interrogating him only in English, and then recording only the very last portion of this protracted interrogation.
B. Ground Two: Ineffective Assistance of Counsel in Failing to Investigate
1. Counsel failed to investigate the facts and ramifications of the mother's gestational diabetes and the potential health impacts on the infant who, according to medical records not meaningfully summarized or reviewed with petitioner, had aberrantly high glucose levels when emergency medical personnel responded in the underlying case;
2. Counsel failed to investigate the infant's history of seizures and the apparently related pattern of spastic jerking motions;
3. Counsel failed to explore and investigate existing evidence that, prior to the underlying trauma, apparent broken blood vessels in both the child's eyes had been documented by her doctor; and
4. Counsel failed to adequately seek expert consultation as to, and otherwise investigate the autopsy results and related medical information which should have included: (a)
obtaining all radiologic images obtained at the hospital and during the autopsy and have these independently examined by an appropriate expert; (b) obtaining cuttings of tissues samples obtained and retained during the autopsy and having these independently evaluated (including differential staining techniques) by an appropriate expert.
C. Ground Three: Ineffective Assistance of Counsel in Relation to a Compelled, Involuntary, and Unintelligent Plea
D. Ground Four: Actual Innocence
Respondent asks the Court to deny relief on the Amended Petition because petitioner has not met his burden with respect to the unargued claims (Grounds One and Four), the argued due process claim is not contained in the Amended Petition, and the PCR court's denial on the merits of the remaining claims was not objectively unreasonable.
The parties disagree about whether the pro se Petition [2] or the Amended Petition [85] is the operative pleading here. Federal Rule of Civil Procedure 15(a) governs amendment of pleadings in federal habeas corpus actions. 28 U.S.C. § 2242. Pursuant to Rule 15(a)(1), a pleading may be amended once as a matter of course within twenty-one days of service, or, if the pleading is one to which a responsive pleading is required, twenty-one days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. If, as here, the provisions of Rule 15(a)(1) are inapplicable, then a pleading may be amended pursuant to Rule 15(a)(2) only with the opposing party's written consent or leave of court.
While petitioner did not seek leave from the Court to file his amended pleading and now suggests that this inadvertence renders it a nullity, he represented to the Court at the time of filing that the opposing party consented to the amendment. Specifically, he stated "[r]espondent, through counsel, does not object to this amendment and reserves the right to raise all defenses as the claims in this Amended Petition." Respondent never disputed the fact that he consented to amendment under the federal rules and now insists that the Amended Petition is the operative pleading. The Court agrees.
III. Legal Standards
A. Exhaustion and Procedural Default
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a writ of habeas corpus cannot be granted unless it appears that the petitioner has exhausted all available state court remedies. 28 U.S.C. §2254(b)(1); see also Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2536, 115 L.Ed.2d 640 (1991). To exhaust state remedies, the petitioner must fairly present his claims to the state's highest court in a procedurally appropriate manner. A claim is fairly presented if the petitioner has described the operative facts and the federal legal theory on which his claim is based. Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982). He must clearly alert the state court that he is alleging a specific federal constitutional violation. See Casey v. Moore, 386 F.3d 896, 913 (9th Cir. 2004). He must make the federal basis of the claim explicit either by citing specific provisions of federal law or federal cases, even if the federal basis of a claim is "self-evident," Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999), or by citing state cases that explicitly analyze the same federal constitutional claim, Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003)(en banc).
If the petitioner presents claims in state court, but that court finds them defaulted on state procedural grounds, a federal habeas court will find them procedurally defaulted so long as the state procedural bar was independent of federal law and adequate to warrant preclusion of federal review. See Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). While federal courts retain the power to consider the merits of procedurally defaulted claims, generally, the court will not review the merits of a procedurally defaulted claim unless the petitioner demonstrates cause for his failure to exhaust the claim in state court and prejudice from the alleged constitutional violation, or shows that a fundamental miscarriage of justice would result if the federal court did not reach the merits of the claim. Coleman, 501 U.S. at 750.
While Coleman held that ineffective assistance of counsel in post-conviction proceedings does not establish cause for the procedural default of a claim, the Court announced a new, narrow exception to that rule in Martinez v. Ryan, 566 U.S. 1, 17 (2012):
Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.
Accordingly, to demonstrate cause and prejudice under Martinez sufficient to excuse the procedural default of an ineffective assistance of trial counsel claim, a petitioner must make two showings:
First, to establish "cause," he must establish that his counsel in the state postconviction proceeding was ineffective under the standards of Strickland. Strickland in turn, requires him to establish that both (a) post-conviction counsel's performance was deficient, and (b) there was a reasonable probability that, absent deficient performance, the result of the post-conviction proceedings would have been different.Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014), overruled on other grounds by McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015). Determining whether there was a reasonable probability of a different outcome "is necessarily connected to the strength of the argument that trial counsel's assistance was ineffective." Id. at 377-78.
Strickland v. Washington, 466 U.S. 668 (1984).
And second, to establish prejudice under Martinez, a petitioner must show that the ineffective assistance of trial counsel claim was "substantial" or had "some merit." A claim is substantial if it meets the standard for the issuance of a certificate of appealability, Martinez, 566 U.S. at 14, that is, "reasonable jurists could debate whether (or, for that matter agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 336 (2OO3)(citations and internal quotations omitted). A court should conduct a "general assessment of the merits" of the underlying ineffective assistance claim to determine whether counsel's performance fell below an objective standard of reasonableness and that the deficiency prejudiced the petitioner. Notably, the court should measure this by the prevailing professional norms at the time of representation. Moreover, "the inquiry of counsel's performance under Strickland is 'highly deferential,' the court 'must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,' and 'the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Ramirez v. Ryan, 937 F.3d 1230, 1243 (9th Cir. 2019) (quoting Strickland, 466 U.S. at 688-89). In Ramirez, the court first examined the question of whether the underlying ineffective assistance claim is substantial and then evaluated PCR counsel's performance under Strickland.
B. Merits
An application for 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's 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 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. 28 U.S.C. § 2254(d) "preserves authority to issue the writ in cases where there is no possibility fair minded jurists could disagree that the state court's decision conflicts with the Courts precedents. It goes no farther." Harrington v. Richter, 562 U.S. 86, 102(2011).
When a state court reaches a decision on the merits but provides no reasoning to support its conclusion, the federal habeas court must conduct an independent review of the record to determine whether the state court clearly erred in its application of Supreme Court law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). In such an instance, although the court independently reviews the record, it still lends deference to the state court's ultimate decision and can only grant habeas relief if the state court's decision was objectively unreasonable. Richter, 562 U.S. at 98; Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
IV. Analysis
A. Unargued Claims
In his brief in support, petitioner argues that his attorneys were ineffective for failing to adequately investigate the medical evidence in this case (Ground Two) and for allowing petitioner to enter into an unknowing, involuntary, and unreviewable guilty plea (Ground Three). Petitioner does not argue that his attorneys were ineffective for failing to regularly communicate with him; failing to use an interpreter to translate key discovery; failing to adequately summarize the medical evidence; and/or failing to act on his account of his police interrogation (Ground One). Nor does he argue a freestanding claim of actual innocence (Ground Four). Because petitioner has not supported Grounds One and Four with argument, he has not carried his burden of proof with respect to those claims. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (holding the petitioner bears the burden of proving his claims). Moreover, even if petitioner had briefed the merits of these unargued claims, a review of the record indicates that they would not entitle him to relief. Accordingly, Grounds One and Four should be denied.
B. Due Process Claim Raised in Supporting Memorandum
Petitioner does argue that the trial court violated his right to due process when it accepted his guilty plea even though he consistently maintained his innocence and protested that the plea was coerced through his lawyers' deficient representation. However, petitioner did not include this claim of trial court error in his Amended Petition, and therefore, it is not properly before the Court. Rule 2(c) of the Rules Governing §2254 Cases requires, among other things, that a petition for writ of habeas corpus "specify all the grounds that are available to the petitioner[, ] and the facts supporting each ground[.]" See also, Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) ("A Traverse is not the proper pleading to raise additional grounds for relief").
Petitioner also failed to fairly present this claim to the Oregon courts. He acknowledges that the claim is procedurally defaulted but suggests that the Court should excuse the default because there was an absence of State corrective process. Specifically, he contends that under the terms of his plea agreement he could not seek relief on direct appeal, yet Palmer v. State of Oregon, 318 Or. 352, 867P.2d 1368 (1994), requires that claims relying exclusively on the trial court record must be raised on direct appeal. He contends, therefore, that he had no avenue for presenting his claim to the state courts. In the alternative, petitioner argues that if this claim was cognizable in post-conviction, his PCR counsel was ineffective in deleting it when counsel amended the pro se petition, and therefore, Martinez excuses the default.
In his pro se PCR petition, Petitioner alleged ineffective assistance of trial counsel and an "[u]nlawful guilty plea (madeunder coercion)." Resp. Ex. 105 [25-1]. However, an examination of the unlawful guilty plea claim reveals that it too is an ineffective assistance claim, faulting counsel with coercing Petitioner into entering a plea by making him feel he had no other option; leading him to believe that if he pleaded guilty he would receive a five-to-ten year sentence; threatening to withdraw if petitioner did not plead guilty; and allowing petitioner to enter a plea when he was not thinking logically.
To begin, Martinez only applies to procedurally defaulted claims of ineffective assistance of trial counsel and therefore cannot excuse the default of this trial court error claim. See Davila v. Davis, 137 S.Ct. 2058, 2063 (2017) (Martinez does not apply to underlying claims of ineffective assistance of direct appellate counsel. It applies only to procedurally defaulted claims of ineffective assistance of trial counsel).
As for the Palmer argument, in his PCR appeal, petitioner raised a claim challenging the voluntariness of his plea. In response, respondent argued that the Oregon Court of Appeals should decline to consider the claim because it was not in the PCR petition below and therefore not properly before the court. Respondent did not argue that the claim was barred by Palmer. The PCR trial court upheld the validity of the broad waiver of petitioner's appeals and collateral remedies that he agreed to as part of his plea, including a waiver of PCR review. Petitioner did not challenge this waiver ruling on appeal and the parties did not discuss it in their respective briefs. Rather, they focused on petitioner's challenges to the PCR court's denial on the merits, as well as the newly-raised claim alleging that the trial court violated his right to due process when it accepted petitioner's plea. Accordingly, on this record, petitioner cannot show that the PCR court would not have addressed his due process claim on the merits or that his default was due to a lack of State corrective process rather than his own failure to fairly present it to the state courts.
This also forecloses petitioner's argument that there is no PCR merits decision to which this Court must defer pursuant to AEDPA. Clearly, the exhausted claims he presents in this federal habeas action are the ones whose denial by the PCR court he challenged on appeal.
Finally, even on de novo review, petitioner's claim must be denied on the merits. Petitioner asserts that the transcript of the plea and sentencing hearing is the "lynchpin" of this case and suggests it supports his contention that the trial court denied him due process as discussed in Boykin v. Alabama, 395 U.S. 238 (1969), and McCarthy v. United States, 394 U.S. 459 (1969).
In Boykin, the Supreme Court held that the record must affirmatively show that a criminal defendant's guilty plea is intelligent and voluntary. Specifically, the Court held that the record must reflect that a defendant understands, and is voluntarily waiving, his right to privilege against compulsory self-incrimination, to trial by jury, and to confront his accusers. 395 U.S. at 242-43. Moreover, in McCarthy, the Court held that a plea is voluntary if the defendant understands the law in relation to the facts. 394 U.S at 466-67.
Here, following petitioner's indictment on charges of first-degree manslaughter and felony murder, the court appointed counsel Eric Butterfield and co-counsel Stephanie Pollan to represent him. Petitioner eventually agreed to plead guilty to first-degree manslaughter in exchange for the state dismissing the felony murder charge and a stipulated 20-year sentence, less time served. At the change of plea hearing, former Washington County Circuit Court Judge Marco Hernandez engaged in a lengthy colloquy with Petitioner. The record reveals that the judge methodically reviewed the plea agreement with petitioner and was eventually satisfied both that petitioner understood the terms of the agreement and the rights he was giving up by pleading guilty, and that it was his voluntary decision to enter into the agreement-at least in part to avoid the possibility of receiving a life sentence with a twenty-five year minimum should a jury find him guilty of murder at trial.
The plea petition comprehensively addresses the rights and concerns at issue mBoykin and McCarthy Resp. Ex. 103 [25-1]. The judge also confirmed with counsel that he believed petitioner understood the terms of the agreement and the rights he was giving up by pleading guilty, and that petitioner was making a knowing, voluntary, and intelligent decision that was in his best interests. Resp. Ex. 104 [25-1].
Paragraph 4 explicitly states that petitioner understands that if he pleads not guilty the Constitution guarantees him, "the right to a speedy and public trial by jury," "the right to see, hear and face in open court all witnesses called to testify against [him]," and "the right to take the witness stand at [his] sole option, and the District Attorney cannot force him to testify against [himself]." The judge also confirmed Petitioner was giving up these rights in the change of plea hearing. Moreover, given Petitioner's admission to the crime in Paragraph 15 and his counsel's representation in the Certificate of Counsel that he fully explained to petitioner the allegations contained in the accusatory instrument, it is clear petitioner understood the law as it related to the facts of his case. The court also confirmed with petitioner at the hearing that his "lawyer ha[d] counseled and advised him on the nature of each charge," including all the possible defenses he might have. Finally, petitioner represented to the judge that an interpreter had translated and read the plea petition to him.
During the colloquy, petitioner did complain about the limits placed on his ability to appeal and seek a lesser sentence. He also suggested that one of the reasons he was pleading guilty was he did not like the way he was being treated in jail. And, despite having stated earlier in the hearing that he was satisfied with the advice and help he got from his appointed counsel, petitioner complained about the quality of their representation and indicated that he was only pleading guilty because he could not afford a "good lawyer."
Nevertheless, petitioner told the judge that he thought he would be found guilty at trial and wanted to accept the plea offer rather than risk a life term with a 25-year minimum. The judge questioned petitioner about his complaints and claims of innocence and gave him every opportunity to back out of the plea agreement and exercise his right to take his case to trial, but petitioner declined. When the judge asked him about his admission in paragraph 15, petitioner said he was "not really honest with that" and insisted he did not do anything bad to the child. Subsequently, however, he affirmed on the record that he agreed with the statement in paragraph 15. Whatever petitioner's motivation for entering the plea, the record reveals that the trial court and his counsel advised him about the contents of the plea agreement, including the rights he was giving up by pleading guilty, and that petitioner had a sufficient understanding of these when he voluntarily agreed to the plea deal. Contrary to petitioner's suggestion here, the trial court did not deny him his right to due process as set out in Boykin or McCarthy. The plea agreement, counsel's representations, and the lengthy colloquy with the judge do not indicate that petitioner was confused or uninformed or that he misunderstood the nature or elements of the crime of manslaughter.
In paragraph 15 of the plea petition, petitioner acknowledged that, "On May 26, 2009, in Washington County Oregon, I unlawfully and recklessly under circumstances manifesting extreme indifference to the value of human life, caused the death of Maya Gramajo."
For all these reasons, relief on the due process claim should be denied.
C. Ground Two: Ineffective Assistance of Counsel in Failing to Investigate
As a preliminary matter, petitioner failed to fairly present to the Oregon courts claims alleging that counsel were ineffective in failing to investigate facts surrounding: the infant's mother's gestational diabetes and its potential connection to the victim's high glucose levels when she presented to emergency personnel; the infant's alleged history of seizures and pattern of spastic jerking motions; and the infant's doctor documentation of apparent broken blood vessels in both of the infant's eyes prior to the subject trauma. Petitioner alleged in his PCR petition that counsel were ineffective in failing to offer evidence that the victim was found with a high amount of glucose in her system at the time of death and that while photographs were taken after the injury of both of her eyes, counsel were only given photographs of one eye; however, he did not raise these claims on appeal. Rather, of the claims raised in his PCR petition, he only appealed claims alleging that counsel were ineffective in failing to adequately meet with him to discuss his case and in failing to get a full autopsy of the victim that would reveal critical information about her condition. Accordingly, the subclaims related to counsel's failure to investigate the infant's glucose levels, seizures, and prior documentation of broken blood vessels in her eyes-to the extent they are unrelated to evidence that might be revealed in an autopsy-must be denied on the basis that they are procedurally defaulted.
The Court turns next to petitioner's allegation that counsel failed to adequately consult with an appropriate expert to investigate the autopsy results and related medical information, including obtaining all radiologic images taken at the hospital and during the autopsy, and cuttings of tissue samples obtained and retained during the autopsy, and having these independently evaluated by an appropriate expert. The question of whether the State should produce additional medical discovery to support this clam has been extensively litigated both in state court and in these federal habeas proceedings. This Court denied petitioner's Motion for Discovery on the basis he had not made a threshold showing that the state court unreasonably applied federal law or made an unreasonable determination of fact based on the record before it. Additionally, petitioner has not demonstrated that if he received the materials sought, he would be entitled to habeas relief, even if his current expert concluded that the victim's cause of death was other than "closed head trauma" or the result of something other than "severe acceleration/deceleration forces in combination [with] impact." Accordingly, the Court's consideration of this claim is confined to the record presented to the state courts when it considered the merits of this claim.
In denying relief on the subject ineffective assistance claim, the PCR court made the following relevant findings and conclusions:
9. No proof that further medical experts or tests would have helped pet[ititioner] at all.
10. Att[orney] did consult with a medical expert who would not have been helpful. No report was written.
11. This court finds no inadequacy and no prejudice in any respect pled.
Resp. Ex. 134 [25-4].
In those proceedings, as here, there is no expert evidence contradicting the consistent conclusions of all the medical experts who examined the victim, consulted on her case, and conducted the autopsy, that the her death was the result of non-accidental trauma. Moreover, trial counsel retained Dr. Scott Halpert to review the autopsy report. According to counsel, Dr. Halpert reported to him that the State Medical Examiner had gotten it right in that the infant's death was due to extreme, blunt force trauma and "nothing else." Resp. Ex. 118, at 2 [25-2]. Trial counsel also recalled that petitioner did not express surprise at Dr. Halpert's conclusions. Id. Finally, as trial counsel would have been aware, petitioner's statements to police involved a shifting story about how, or even whether, the victim suffered a blow to the head.
The PCR court also had before it a declaration from the victim's mother, Shellie Powers. Ms. Powers stated that the infant had episodes of uncontrollable shaking, mostly in her legs that were occurring more than one time a day in the two to three weeks before she died. When she questioned her pediatrician about the leg shaking, the doctor attributed it to a reaction to urine or cold wipes. Ms. Powers also averred that the infant was fussy, vomited after every feeding (though she was eating and gaining weight), and had a brownish liquid stool. Additionally, the infant had "what looked like broken blood vessels in the corners of both of [the infant's] eyes." The doctor suggested this eye condition might be pinkeye. Ms. Powers further stated that she had borderline gestational diabetes when she was pregnant with the infant, and noted that the infant had very high glucose levels when measured by the paramedics and later the hospital. Resp. Ex. 112, [25-1]. While petitioner suggests that these issues amounted to "substantial exculpatory evidence" and that counsel were ineffective in failing to investigate them, in the context of the injuries sustained by the infant on the day she died, including a skull fracture, no medical expert has confirmed that these conditions are relevant to her cause of death, let alone exculpatory.
Based on the foregoing, petitioner cannot demonstrate that the PCR court's denial of this claim was contrary to, or involved an unreasonable application of, clearly established federal law or that it was based on an unreasonable determination of the facts. Accordingly, the Court should deny this claim.
D. Ground Three: Ineffective Assistance of Counsel in Relation to a Compelled, Involuntary and Unintelligent Plea
Petitioner alleges that after failing to adequately communicate with him and failing to investigate his case, his counsel guided him through a plea process despite his "express and repeatedly articulated belief that he had not committed the crime and was only pleading guilty because he could not afford a lawyer who would defend him." Amended Petition, p. 7 [85].
The PCR court had before it an affidavit from Mr. Butterfield in which he responded to these claims as follows:
8. Petitioner alleges that I threatened him into taking the plea deal, and told him that I would withdraw if he demanded to go to trial. This is false. I tried countless cases, sometimes cases that were near hopeless from a defense perspective. I loved being a trial attorney and much preferred going to court and fighting for my clients, rather than having them enter into a plea agreement. I would have been happy to represent Mr. Gramajo at trial and would have been prepared to put on the best defense possible.
***
10. The plea negotiations in Mr. Gramajo's case took place over a number of months. His wife was present on one occasion and involved in discussing plea offers. My co-counsel and the interpreter discussed a plea offer with Mr. Gramajo on other occasions. I gave Mr. Gramajo full and complete advice on his constitutional rights and options. I also explained to Mr. Gramajo what the sentence would be for Murder, and Manslaughter I, if he was convicted of one or both charges. Mr. Gramajo and I discussed at length the risks of going to trial, including a possible life sentence if he was convicted of Murder, and the limitation of this risk by pleading guilty to Manslaughter I and agreeing to a 240-month sentence. These were very hard choices confronting Mr. Gramajo and his wife, who was looking at being without her husband's support and companionship for a long period of time, if he entered into a plea agreement or went to trial and got convicted.
Resp. Ex. 118 [25-2].
Petitioner insists that the PCR court's denial of this claim was objectively unreasonable because the plea transcript reveals that he maintained his innocence and asserted that he was being railroaded by a "well-oiled machine." However, as noted in the Court's discussion of petitioner's due process claim above, there is ample evidence in the record that counsel appropriately advised him as to the nature of the charges, the content of the plea agreement, and the rights he was giving up by pleading guilty. Accordingly, petitioner cannot overcome his burden of establishing that his guilty plea was not voluntary and knowing. See Little v. Crawford, 449 F.3d 1075, 1080 (9th Cir. 2006) (citing Parke v. Raley, 506 U.S. 20, 31-34 (1992)).
Based on the foregoing, petitioner cannot demonstrate that the PCR court's denial of this claim was contrary to, or involved an unreasonable application of, clearly established Federal Law or that it was based on an unreasonable determination of the facts.
E. Discovery Motion
Finally, petitioner asks the Court to revisit its denial of his Motion for Discovery based on arguments in his supporting brief and a new declaration from Ms. Powers, who supports petitioner's request for the evidence to be produced and tested. Brief in Support, p. 31 [96]; see Powers Decl. [96-1]. Petitioner claims that Ms. Powers is a victim under 18 U.S.C. §3771(a)(4) and (8) of the federal Crime Victims' Rights Act, which pertains to a victim's right to be reasonably heard in any district court proceedings and to be treated with fairness and respect.
The Court has carefully read Ms. Powers' declaration and considered her request. Nevertheless, for the reasons set forth in its prior Order [70], it declines to grant petitioner's discovery motion.
RECOMMENDATIONS
For the foregoing reasons, the Amended Petition for Writ of Habeas Corpus [85] should be DENIED, and judgment should enter DISMISSING this case with prejudice. A certificate of appealability should be DENIED.
28 U.S.C. § 2253(c)(2) provides that a certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." A substantial showing is made when the resolution of an issue of appeal is debatable among reasonable jurists, if courts could resolve the issues differently, or if the issue deserves further proceedings. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Those factors are not present here.
SCHEDULING ORDER
The Findings and Recommendations will be referred to a district judge. Objections, if any are due in 14 days. If no objections are filed, then the Findings and Recommendations will go under advisement on 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 Recommendations will go under advisement upon receipt of the response, or the latest date for filing a response.
IT IS SO ORDERED.