Opinion
CV. 02-1323-HU.
June 22, 2004
Lisa Hay, Assistant Federal Public Defender, Portland, Oregon, Attorney for Petitioner.
Hardy Myers, Attorney General, Lester R. Huntsinger, Assistant Attorney General, Department of Justice, Salem, Oregon, Attorneys for Respondent.
FINDINGS AND RECOMMENDATION
Petitioner, an inmate at Snake River Correctional Institution, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons set forth below, petitioner's habeas corpus petition should be denied, and this proceeding should be dismissed.
BACKGROUND
On September 24, 1996, petitioner struck Chuck Barnes in the head with a shovel-like instrument. Petitioner was charged with Assault in the First Degree and Assault in the Second Degree. Petitioner's theory of defense was that his conduct was not intentional and, in the alternative, that he acted in self-defense.
On May 23, 1997, petitioner was convicted by a jury of Assault in the First Degree. Petitioner filed a direct appeal challenging the constitutionality of his sentence. The Oregon Court of Appeals affirmed from the bench, and the Oregon Supreme Court denied review. State v. Hilliard, 157 Or. App. 726, 972 P.2d 1227 (1998), rev. denied, 328 Or. 293 (1999).
Petitioner subsequently filed a state post-conviction proceeding alleging that he received ineffective assistance of counsel. The post-conviction court denied relief, and ordered petitioner to pay the fees of his court-appointed attorney. The Oregon Court of Appeals summarily affirmed. The Oregon Supreme Court denied review of the merits, but reversed the award of attorney fees.
In the instant proceeding, petitioner alleges that he received ineffective assistance of counsel and that the post-conviction court erred in ordering him to pay the fees of his court-appointed attorney.
Because petitioner prevailed in state court as to the attorney fees award, that ground for relief is moot.
DISCUSSION
I. Procedural Default.Respondent moves the court to deny petitioner's claim that trial counsel's "cumulative errors" deprived petitioner of a fair trial. Respondent argues that the claim is procedurally defaulted because it was raised for the first time on appeal from the denial of post-conviction relief, rather than in petitioner's initial petition for post-conviction relief. For the reasons which follow, I conclude that the claim is procedurally defaulted.
A federal court may not grant habeas corpus relief to a state prisoner unless he has exhausted his available state remedies. 28 U.S.C. § 2254(b); Baldwin v. Reese, 124 S.Ct. 1347, 1349 (2004); Coleman v. Thompson, 501 U.S. 722, 731 (1991). A petitioner properly exhausts his state remedies by "fairly presenting" his federal claims to the state courts. Reese, 124 S.Ct. at 1349. A claim is not "fairly presented" if it is presented in a procedural context in which it will not be considered absent special circumstances. Castille v. Peoples, 489 U.S. 346, 351 (1989).
As noted above, petitioner failed to raise his cumulative error claim in his petition for post-conviction relief. Under Oregon law, "[n]o matter claimed as error will be considered on appeal unless the claimed error was preserved in the lower court . . . provided that the appellate court may consider an error of law apparent on the face of the record." ORAP 5.45(1) (2004);see also State v. Wyatt, 331 Or. 335, 341, 15 P.3d 22 (2000) (generally, an issue not preserved in the trial court will not be considered on appeal). An error of law is apparent on the face of the record if the legal point is obvious and the appellate court need not "go outside the record or choose between competing inferences to find it, and the facts that comprise the error are irrefutable." State v. Brown, 310 Or. 347, 355, 800 P.2d 259 (1990).
Petitioner's cumulative error claim is not an error of law apparent on the face of the record. Hence, Oregon law precludes petitioner from raising the claim for the first time in his appellate brief. Consequently, he did not "fairly present" the question to the state court so as to satisfy the exhaustion requirement.
Petitioner argues, however, that because Oregon law provides that a summary affirmance constitutes a "decision on the merits", this court should conclude that the Oregon Court of Appeals considered the merits of petitioner's cumulative error claim when it summarily affirmed the denial of post-conviction relief. See Greene v. Lampert, 288 F.3d 1081, 1086 (9th Cir. 2002) (where claim is not fairly presented to the state court, the issue of procedural default hinges on whether the state court adjudicated the claim on the merits). I disagree.
Pursuant to O.R.S. 138.660, the Court of Appeals may summarily affirm a post-conviction court's judgment if it finds that "no substantial question of law is presented by the appeal." InRodriguez v. Bd. of Parole and Post-Prison Supervision, 187 Or. App. 282, 291, 67 P.3d 970 (2003), the Oregon Court of Appeals offered examples of proceedings which do not present a "substantial question of law" and, for that reason, are subject to summary affirmance. Included in that list is a ruling which raises a question of law not reviewable for procedural or jurisdictional reasons. Rodriguez, 187 Or. App. at 291.
Hence, while the issuance of a summary affirmance "constitutes a decision upon the merits," presumably for purposes of finality, it does not necessarily reflect that the Oregon Court of Appeals considered petitioner's federal constitutional claim on the merits. Because petitioner cannot now file an additional appeal or repetition for state post-conviction relief (see O.R.S. 138.071; 138.650; 138.550(3)), I conclude that his cumulative error claim is procedurally defaulted.
Arguably, however, petitioner's individual claims of ineffective assistance of counsel raise, by implication, the question of whether counsel's cumulative errors prejudiced petitioner's case. See Harris v. Wood, 64 F.3d 1432, 1438 (9th Cir. 1995) (prejudice may result from the cumulative impact of multiple deficiencies). For that reason, I address the merits of the claim below. In so doing, however, I consider only those errors alleged in petitioner's habeas corpus petition and properly exhausted in state court. Hence, deficiencies cited by petitioner for the first time in his supporting memorandum in this proceeding, but not raised in his federal habeas petition or in his state post-conviction appeal are not considered here.See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994), cert. denied, 514 U.S. 1026 (1995) (additional habeas grounds for relief may not be included in supporting memorandum but must instead be presented in an amended petition); Carriger v. Stewart, 971 F.2d 329, 333-34 (9th Cir. 1992) ( en banc), cert. denied, 507 U.S. 992 (1993) (ineffective assistance of counsel claims are discrete and each must be exhausted).
II. Ineffective Assistance of Counsel.
Petitioner alleges that trial counsel was ineffective for (1) "making inflammatory remarks detrimental to petitioner during both opening and closing statements"; (2) failing to impeach the victim; and (3) failing to call witnesses. As noted above, petitioner further contends that the cumulative effect of trial counsel's errors deprived him of a fair trial.
Petitioner expressly waives his additional claims that trial counsel was ineffective for (1) "conceding a `disfiguring injury'" thereby precluding a motion for judgment of acquittal; (2) failing to request a jury instruction that a facial scar does not conclusively prove a permanent disfigurement; and (3) failing to impeach a police officer's testimony that no Breathalyzer was administered.
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).
To prove deficiency of performance, petitioner "`must show that counsel's representation fell below an objective standard of reasonableness.'" Taylor, 529 U.S. at 390-91 (quotingStrickland, 466 U.S. at 688). "To establish prejudice [petitioner] `must 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 391 (quotingStrickland, 466 U.S. at 694). In evaluating proof of prejudice, this court "must consider the totality of the evidence" before the jury. Strickland, 466 U.S. at 696.
A. Trial Counsel's Opening and Closing Arguments.
Petitioner contends that defense counsel was ineffective for referring to the victim's injury as "disfiguring" in both his opening and closing statements. At the post-conviction proceeding, trial counsel explained his choice of words as follows:
In this case, the victim's disfiguring injury was visibly apparent as he testified and as he sat in the courtroom, the injury was a shocking scar on the victim's forehead where petitioner had struck him with a shovel. Rather than ignore this obvious injury, or attempt to minimize it, I tactically chose to deal with the injury up front and point out what had occurred when petitioner attempted to defend himself against the victim.
It was not an error of judgment to concede an obvious disfigurement, to ignore or minimize it would have led the jury to conclude that counsel was ingenuous.
. . . .
The victim was obviously permanently disfigured. The center of his forehead looked like scrambled eggs. He testified to the seriousness of his injury. As stated before, it would have appeared ridiculous to deny or minimize the injury.
(Resp. Exh. 111 at 1-2.)
Based upon trial counsel's affidavit, and the police report indicating that the victim received 29 stitches, the post-conviction court concluded that trial counsel was not constitutionally deficient. (Resp. Exh. 112 at 1 24-25.)
Having independently reviewed the state court record, I conclude that the post-conviction court's rejection of this claim is neither contrary to, nor an unreasonable application of, clearly established federal law. Trial counsel's decision not to challenge the serious nature of the victim's injury was reasonable in light of the victim's presence in the courtroom; the police report indicating that petitioner received 29 stitches; and the emergency room doctor's testimony that petitioner's wound was deep and directly down to the bone, and that his scar was permanent. In light of the totality of the evidence, petitioner has failed to demonstrate that there is a reasonable probability that, had counsel not made this concession, the results of the proceeding would have been different.
I reject petitioner's characterization of the post-conviction court's holding as being limited to petitioner's contention that trial counsel was ineffective for failing to move for a judgment of acquittal. As noted by petitioner, he challenged trial counsel's concession that Chuck Barnes' injury was disfiguring in three "similar but not identical claims of ineffectiveness." (Petitioner's supporting memorandum at 5 n. 2.) In my view, the state post-conviction court simply chose to address the related ineffectiveness claims as a whole. Nevertheless, I have conducted an independent review of the record. See Himes v. Thompson, 336 F.3d 848, 853 n. 3 (9th Cir. 2003) (independent review of the record required when a state court supplies no reasoned decision).
Petitioner's request to expand the record to include the affidavit of Alisha Looslie, containing the statement that "I recall that Lovena told me that Chuck's scar has been taken care of by plastic surgery", is denied in the absence of a showing that satisfies the requirements of 28 U.S.C. § 2254(e)(2). See infra at 13. In any event, the statement is inadmissible hearsay.
Moreover, contrary to petitioner's argument, trial counsel's characterization of the victim's injury as "disfiguring" did not amount to a concession of petitioner's guilt in light of the fact that petitioner's theory of defense was that he did not act intentionally and, alternatively, that he acted in self defense.See Anderson v. Calderon, 232 F.3d 1053, 1089-90 (9th Cir. 2000), cert. denied, 534 U.S. 1036 (2001) (counsel's strategic decision to concede guilt on one of several charges not ineffective assistance); United States v. Swanson, 943 F.2d 1070, 1074 (9th Cir. 1991) ("[i]n some cases a trial attorney may find is advantageous to his client's interests to concede certain elements of an offense").
B. Trial Counsel's Failure to Impeach Charles Barnes.
Petitioner contends that trial counsel was ineffective for failing to impeach the victim, Chuck Barnes, with evidence that he had been convicted previously of criminal trespass in the second degree, disorderly conduct, and assault in the fourth degree (all misdemeanors). At the post-conviction proceeding, trial counsel attested that he did not attempt to impeach Barnes with these convictions because they did not impeach for believability. (Resp. Exh. 111 at 2.) The post-conviction court agreed that evidence of Chuck Barnes's prior bad acts was not admissible to impeach him.
In the instant proceeding, petitioner argues that the victim's criminal history was admissible to impeach Barnes' testimony that he had never physically abused his wife, and to corroborate petitioner's testimony that he acted in self defense. I disagree.
Petitioner has failed to demonstrate how the victim's criminal history impeached his testimony that he had not physically abused his wife. Moreover, under Oregon law, evidence of a victim's prior bad acts is not admissible to corroborate a defendant's claim of self-defense absent a showing that the defendant was aware of the prior bad acts. State v. Whitney-Biggs, 147 Or. App. 509, 526-28, 936 P.2d 1047, rev. denied, 326 Or. 43 (1997). Because petitioner did not testify that he had knowledge of Chuck Barnes' criminal history, the evidence was not admissible to corroborate petitioner's testimony.
In this regard, the holding in United States v. James, 169 F.3d 1210, 1214-15 (9th Cir. 1999), relied upon by petitioner, is distinguishable. In James, the defendant, Ernestine Audry James, was convicted of aiding and abetting the manslaughter of David Ogden. James testified that Ogden had told her of his past violent criminal acts and that her fear of Ogden was premised, in part, upon those stories. The Ninth Circuit concluded that Ogden's criminal records were admissible because they were relevant to James' credibility not the victim's character:
Ernestine Audry James's only defense was that she believed that she and her daughter were in danger of grievous bodily harm or death from Ogden. Essential to that defense was her belief in Ogden's stories of previous acts of vicious violence committed by him. . . . For the defense the records, if admitted, would have had two legitimate functions: to corroborate Ernestine James's own testimony that she had heard Ogden tell her these things and to corroborate her statement that she had reason to be afraid of Ogden in his vicious drunken mood. . . . [T]he records proved that what Ernestine James testified to had actually taken place. The records corroborated her testimony, and the records corroborated her reason to fear.Id. at 1214.
In sum, petitioner has failed to prove that the victim's criminal history was admissible under Oregon law. Accordingly, petitioner has failed to demonstrate that trial counsel's failure to impeach Chuck Barnes with his prior convictions fell below an objective standard of reasonableness. Petitioner similarly has failed to demonstrate, in light of the totality of the evidence, that had Barnes' criminal history been used as impeachment evidence, there is a reasonable probability that the result of the proceeding would have been different. Hence, the post-conviction court's rejection of this claim is neither contrary to, nor an unreasonable application of, clearly established federal law.
C. Trial Counsel's Failure to Call Witnesses.
Petitioner contends that trial counsel was ineffective for failing to call the parents of the victim's wife as witnesses. At the post-conviction proceeding, petitioner testified that Wilma and Wesley Marlatt would have testified to the victim's violent nature. However, petitioner failed to offer testimony or affidavits from the Marlatts at the state post-conviction proceeding in order to prove what the content of their omitted testimony would have been. The State, in contrast, offered the affidavit of petitioner's trial counsel, who attested that "[t]he parents of the victim's wife would not have supported the petitioner's claimed basis for selfdefense and therefore, a tactical decision was made not to call them as witnesses."
The post-conviction court concluded that trial counsel was not ineffective, noting that petitioner bore the burden of making a record of the parents' omitted testimony either by way of affidavit or by calling them as witnesses. Petitioner cannot remedy this deficiency in the instant proceeding. On the contrary, petitioner's motion to expand the record to include the affidavits of Wilma and Wesley Marlatt must be denied because petitioner has failed to demonstrate that (1) the factual predicate of the claim could not have been previously discovered through the exercise of due diligence, and (2) 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. 28 U.S.C. § 2254(e)(2); see 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).
In any event, petitioner has made no showing that had the Marlatts been called as witnesses, and testified to their belief that the victim was violent, there is a reasonable probability, in light of the totality of the evidence, that the results of the proceeding would have been different. Accordingly, the postconviction court's rejection of this claim is neither contrary to, nor an unreasonable application of clearly established law.
D. Cumulative Effect of Errors.
As noted above, prejudice resulting from cumulative errors of counsel may support a claim of ineffective assistance of counsel.Harris, 64 F.3d at 1438. However, because trial counsel's performance did not fall below an objective standard of reasonableness, petitioner's cumulative error claim necessarily fails. Further, even assuming that counsel was deficient in the particulars alleged in grounds for relief 1.1, 1.3., and 1.4, the aggregate errors are not sufficient to have deprived petitioner of a fair trial.
CONCLUSION
Based on the foregoing, petitioner's petition for writ of habeas corpus (#1) should be denied and this proceeding should be dismissed, with prejudice.
SCHEDULING ORDER
The above Findings and Recommendation are referred to a United States District Judge for review. Objections, if any, are due July 6, 2004. If no objections are filed, the Findings and Recommendations will go under advisement on that date.
If objections are filed, a response to the objections is due July 20, 2004, and the review of the Findings and Recommendation will go under advisement on that date.