Opinion
Case No. 2:02-CV-1231 DB.
June 16, 2004
ORDER
Petitioner, Kevin Lee Pecht, petitions for habeas corpus relief. See 28 U.S.C.A. § 2254 (West 1994 Supp. 2003). The Court denies him.
PROCEDURAL BACKGROUND
Petitioner was charged in Utah state court with sexual crimes against his daughter. Before trial, the trial court held a hearing regarding the admissibility under Utah law of out-of-court statements made by the victim and her brother to police, medical examiners, and a caseworker. See Utah Code Ann. § 76-5-411 (2003). After making oral findings, the trial court admitted the statements.
As the trial began, the parties stipulated that Petitioner was then in prison "on a non-related, non-sexual matter." At that time, Petitioner planned to testify on his own behalf. Mindful that his many felony convictions could be used to impeach his credibility, Petitioner asserted he could mitigate those effects by telling the jury that despite his vast criminal background he had ever "accepted responsibility" and had not previously asked for a jury trial. In fact, Petitioner's trial counsel told the court that — as part of his trial strategy — Petitioner even wanted the jury to know he was imprisoned. Petitioner's defense was that his ex-wife had made up the sexual abuse allegations in this case to cause his parole to be revoked so she could have custody of their children — the victim and her brother. Petitioner realized this case theory would implicitly admit he had indeed been on parole for a former conviction. Petitioner and the prosecution concurred that the stipulation was a good way to reduce the impact of Petitioner's criminal past.
During trial, the victim and brother testified through closed-circuit television outside Petitioner's and the jury's presence. Also, various witnesses referred to Petitioner's prior arrests and incarcerations, which had been mentioned in the parties' stipulation. Petitioner's attorney did not object to any of the references, nor did he ask the court to give the jury limiting instructions about them. The jury eventually convicted Petitioner on all counts, and Petitioner was sentenced to prison.
After Petitioner filed an unsuccessful motion for new trial, he appealed to the Utah Supreme Court, where he raised these issues: (1) Whether the trial court erred in applying Utah Code section 76-5-411 because it did not (a) make necessary reliability assessments of out-of-court statements introduced at trial, (b) write its findings, and (c) properly admit the victim's brother's hearsay statements. See id. (2) Whether Petitioner received ineffective assistance of counsel when his attorney did not object to or try to restrict witness references to Petitioner's prior imprisonments. And, (3) whether the trial court should have allowed testimony that the victim's mother had previously alleged abuse by other people. The supreme court upheld Petitioner's conviction against these attacks. In its analysis of the out-of-court statements, the court determined Petitioner was not denied his rights under the Federal Constitution's Confrontation Clause.
Petitioner now requests habeas corpus relief in federal court, raising these questions: (1) Whether the trial court contravened Utah law by not properly evaluating and entering written findings about the admission into evidence of out-of-court statements by the victim and her brother. Petitioner includes two sub-issues here: whether his Due Process and Confrontation Clause rights were violated by the trial court's error. (2) Whether he received ineffective assistance of counsel because his trial attorney failed to: (a) properly prepare; (b) object to videotaped out-of-court statements; (c) object to closed-circuit testimony of the victim and brother; (d) adequately investigate exculpatory evidence, such as possible alibis; (e) elicit alibi and impeachment testimony from two witnesses; (f) insist on the alleged stipulation/bargain being fulfilled in which Petitioner would allow evidence of past incarcerations in return for the victim and brother testifying in open court; and (g) object to evidence of Petitioner's past incarcerations. (3) Whether the trial court erred in limiting Petitioner's proffered testimony. After the State responded that this last issue had not been exhausted, Petitioner withdrew it.
ANALYSIS I. Exhaustion and Procedural Default
The Court first analyzes the issues raised to determine if they are unexhausted or procedurally defaulted. Generally, before Petitioner may seek review of a Utah conviction in federal court, he must exhaust all available remedies in the Utah courts. See 28 U.S.C.A. § 2254(b) (c) (West 1994 Supp. 2003); Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 512 (1971); Knapp v. Henderson, No. 97-1188, 1998 WL 778774, at *2 (10th Cir. Nov. 9, 1998) (unpublished); see also Martens v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988) ("[F]ederal habeas oversight is not a freewheeling construct. It is dependent, among other things, upon all of the claims asserted in the petition having been exhausted in the state courts."). To exhaust his remedies, Petitioner must "fairly present" to the highest available Utah court his federal constitutional issues. See Picard, 92 S.Ct. at 512-13; Knapp, 1998 WL 778774, at *2-3.
The Court now addresses whether Petitioner's issues have been exhausted in state court, starting with whether the trial court violated Utah law by not properly evaluating and entering written findings about the admission into evidence of out-of-court statements by the victim and her brother. Inasmuch as Petitioner questions the validity of the state courts' application of Utah statutory and constitutional law, this Court declines to act.See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."). However, Petitioner also contends that admittance of the out-of-court statements breached the Federal Due Process and Confrontation Clauses. The confrontation issue is definitely exhausted (and is analyzed later in this order). It is the due process issue that is unexhausted.
A thorough review of the state court record shows Petitioner did not at all discuss the Due Process Clause. Instead, he focused his analysis on the state court's failure to adhere to state statute. Perhaps Petitioner may argue that his state appellate arguments implied he was denied his due process rights. This Court sees no such implication. And, even assuming an implication, "[i]t is not sufficient that all the facts necessary to support a federal claim were before the state court or that a similar state-law claim was made." Knapp, 1998 WL 778774, at *2; see also Picard, 92 S.Ct. at 513 (holding no exhaustion when "all the facts" were presented "[y]et the constitutional claim . . . inherent in those facts was never brought to the attention of the state courts"); Martens, 836 F.2d at 717 ("[T]he exhaustion doctrine requires a habeas applicant to do more than scatter some makeshift needles in the haystack of the state court record. . . . Oblique references which hint that a theory may be lurking in the woodwork will not turn the trick."). State courts must be given the chance to cure alleged breaches of federal rights by being "`alerted to the fact that the prisoners are asserting claims under the United States Constitution.'" Knapp, 1998 WL 778774, at *2 (quoting Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 888 (1995)). The critical question "is whether the `substance' of the petitioner's claim has been presented to the state courts in a manner sufficient to put the courts on notice of the federal constitutional claim." See id. (quoting Picard, 92 S.Ct. at 513); see also Martens, 836 F.2d at 717 ("The ground relied upon must be presented face-up and squarely; the federal question must be plainly defined.").
Nothing in Petitioner's state appellate arguments as to this issue even subtly hinted at due process underpinnings, let alone explicitly stated a federal constitutional claim as required. Though Petitioner retrospectively casts his state-law arguments in due process terms, "`errors of state law cannot be repackaged as federal errors simply by citing the Due Process Clause.'"Carson v. Director, 150 F.3d 973, 975 (8th Cir. 1998) (citation omitted). In this context, the Court cannot say that Petitioner "fairly presented and gave notice of his due process claim" to the Utah appellate courts. See Knapp, 1998 WL 778774, at *3. Thus, any federal due process grounds for relief as to the issue of whether the state trial court should not have allowed the out-of-court statements into evidence are technically unexhausted.
Petitioner's "failure to assert a due process claim is especially pronounced when, as here, he specifically raised [an]other federal constitutional claim" as to the Confrontation Clause. Knapp, 1998 WL 778774, at *3.
The Court's review of state court records shows Petitioner also never argued to the Utah supreme court that counsel ineffectively assisted him by failing to (1) properly prepare; (2) object to videotaped out-of-court statements; (3) object to closed-circuit testimony of the victim and brother; (4) adequately investigate exculpatory evidence — i.e., possible alibis; (5) elicit alibi and impeachment testimony from two witnesses; and (6) insist on the alleged bargain being fulfilled in which Petitioner would allow evidence of prior incarcerations in return for the victim and brother testifying in open court. These claims are therefore also technically unexhausted.
Even so, the United States Supreme Court has declared that when a petitioner has "`failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred' the claims are considered exhausted and procedurally defaulted for purposes of federal habeas relief." Thomas v. Gibson, 218 F.3d 1213, 1221 (10th Cir. 2000) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1 (1991)). Utah's Post-Conviction Remedies Act states, "A person is not eligible for relief under this chapter upon any ground that . . . could have been but was not raised at trial or on appeal. . . ." Utah Code Ann. § 78-35a-106(1)(c) (2002); see Myers v. State, No. 20010955, 2004 Utah LEXIS 60, at *11-14 (Utah Apr. 20, 2004); Thomas v. State, 63 P.3d 672, 674 (Utah 2002); Lucero v. Kennard, 89 P.3d 175, No. 20020984, 2004 Utah App. LEXIS 35, at *5-11 (Utah Ct. App. Apr. 1, 2004); cf. Hale v. Gibson, 227 F.3d 1298, 1328 (10th Cir. 2000) ("Oklahoma bars collateral review of claims . . . that could have been raised on direct appeal but were not. Accordingly, [petitioner] has defaulted his claim. . . .") (citations omitted). Under Utah law, then, Petitioner may not raise his current arguments — that his federal due process rights were violated by admission of the out-of-court statements and that counsel was ineffective in a variety of ways — in future state habeas petitions, and the state courts would determine them to be procedurally barred.
"This court may not consider issues raised in a habeas petition `that have been defaulted in state court on an independent and adequate procedural ground unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice.'"Thomas, 218 F.3d at 1221 (alteration omitted) (quoting English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998)). Petitioner has argued neither cause and prejudice nor a fundamental miscarriage of justice to excuse his procedural default. This Court therefore denies federal habeas relief as to Petitioner's due process claim and ineffective assistance claims (excepting failure to object to evidence of past incarcerations).
II. Confrontation Clause and Past Incarcerations A. Standard of Review
Section 2254, under which this habeas petition was filed, states in pertinent part:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C.A. § 2254(d) (West Supp. 2003).
Under § 2254(d)(1), this Court may grant habeas relief only when the state court has formed "a conclusion opposite to that reached by the Supreme Court on a question of law, decided the case differently than the Supreme Court has decided a case with a materially indistinguishable set of facts, or unreasonably applied the governing legal principle to the facts of the petitioner's case." Walker v. Gibson, 228 F.3d 1217, 1225 (10th Cir. 2000) (citing Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 1523 (2000)). This deferential standard does not allow a federal habeas court to issue a writ merely because it determines in its own view that the state decision at issue erroneously applied clearly established federal law. See id. "`Rather that application must also be unreasonable.'" Id. (quoting Williams, 120 S.Ct. at 1522). Moreover, federal courts must presume state court factual findings are correct.Id. (citing 28 U.S.C.A. § 2254(e)(1) (West Supp. 2003)). Petitioner bears the burden of rebutting that presumption with clear and convincing evidence. See id. (citing 28 U.S.C.A. § 2254(e)(1) (West Supp. 2003)).
Finally, "[i]t is, of course, well settled that the fact that constitutional error occurred in the proceedings that led to a state-court conviction may not alone be sufficient reason for concluding that a prisoner is entitled to the remedy of habeas."Williams, 120 S.Ct. at 1503. This Court must "give effect to state convictions to the extent possible under law." Id. at 1509. Still, "errors that undermine confidence in the fundamental fairness of the state adjudication certainly justify the issuance of the federal writ." Id. at 1503.
B. Application of Standard of Review 1. Confrontation Clause
Petitioner's arguments here are cursory and do not observe the standard of review. He contends the trial court's failure to observe state law about entering written findings as to the reliability of the out-of-court statements by the victim and her brother resulted in a Federal Confrontation Clause violation. He further asserts that, although the victim and brother testified at trial, the lack of written findings kept him from meaningfully cross examining them. Again, Petitioner may only prevail if the Utah Supreme Court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or . . . resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence." 28 U.S.C.A. § 2254(d) (West Supp. 2003).
Regarding whether the Confrontation Clause was transgressed here, the Utah Supreme Court ruled:
[R]egardless of any details the videotapes may have provided that were not also provided in trial testimony, defendant's constitutional right to confront the witnesses was clearly preserved. By questioning the victim and her brother in court, the State provided the defense with the opportunity to cross-examine both of them not only on the matters addressed in direct examination, but also on the substance of the information contained in the videotapes. Nelson, 725 P.2d at 1357. The defense chose not to question either the victim or her brother on the information contained in the videotapes, but the opportunity to do so was available, satisfying the confrontation clause. Id. "It is the opportunity to cross-examine that is guaranteed by the state and federal constitutions, not whether the opportunity is exercised." Id. (citing State v. Jolley, 571 P.2d 582, 586 (Utah 1977)).State v. Pecht, 48 P.3d 931, 939-40 (Utah 2002). It is undisputed, as the supreme court opinion indicates, that the victim and brother testified at trial and were cross examined.
To support its analysis, the supreme court cited two of its own cases — State v. Nelson, 725 P.2d 1353 (Utah 1986), and State v. Jolley, 571 P.2d 582 (Utah 1977). Those two cases cite three Supreme Court cases: (1) California v. Green, 399 U.S. 149, 161, 90 S.Ct. 1930, 1936 (1970), stating, "[N]one of our decisions interpreting the Confrontation Clause requires excluding the out-of-court statements of a witness who is available and testifying at trial." (2) Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076 (1965), stating, "[A] primary interest secured by [the Confrontation Clause] is the right of cross-examination; an adequate opportunity for cross-examination may satisfy the clause even in the absence of physical confrontation." And, (3) Mattox v. United States, 156 U.S. 237, 242, 15 S.Ct. 337, 339 (1895), stating, "The primary object of the [Confrontation Clause] was to prevent depositions or ex parte affidavits . . . being used against the prisoner in lieu of a personal examination of the witness. . . ."
Nothing in the Utah Supreme Court's analysis varies from these United States Supreme Court holdings. To the contrary, the analysis was absolutely faithful to "clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C.A. § 2254(d) (West Supp. 2003). In this case, the witnesses who made the out-of-court statements at issue testified at trial and were available for cross examination. Apparently, Petitioner chose not to cross examine them regarding the out-of-court statements. Even so, Petitioner had the constitutionally requisite "opportunity for cross-examination." California, 399 U.S. at 168. That is all that is necessary.
Petitioner may argue that the state trial court unreasonably determined the facts regarding the out-of-court statements' reliability. However, a recent Supreme Court case, Crawford v. Washington, 124 S.Ct. 1354 (2004), clarifies that reliability is not the touchstone in these cases. Crawford states, "[T]he only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Id. at 1374. The trial court's reliability findings are thus irrelevant to the question of whether Petitioner's right to confrontation was breached. The only inquiry is whether Petitioner had a chance to cross examine the witnesses about their out-of-court statements. Because he did, this Court's analysis ends.
Thus, this Court concludes the Utah Supreme Court's decision involving the Confrontation Clause was neither "contrary to" or "an unreasonable application of clearly established" Supreme Court precedent nor "based on an unreasonable determination of the facts." 28 U.S.C.A. § 2254(d) (West Supp. 2003). And, Petitioner is denied habeas relief on this issue.
2. Past Incarcerations — Ineffective Assistance
Petitioner next argues that he received constitutionally ineffective assistance of counsel at trial because his counsel neither objected to evidence of Petitioner's past incarcerations, nor requested limiting instructions to mitigate the effects of that evidence. Petitioner contends he was unfairly prejudiced by this evidence because it gave the impression that he was predisposed to criminal acts. This Court again views the state supreme court's decision through the lens of the standard of review set forth above. See id.
Regarding this issue, the Utah Supreme Court stated:
[T]o demonstrate ineffective assistance, an appellant must show that trial counsel "rendered deficient performance which fell below an objective standard of professional judgment," and that the deficiency was ultimately prejudicial. State v. Chacon, 962 P.2d 48, 50 (Utah 1998). A defendant cannot prevail on a claim of ineffective assistance of counsel where "the challenged act of omission might be considered sound trial strategy." State v. Parker, 2000 UT 51, ¶ 10, 4 P.3d 778.
Defense counsel stated to the court at the outset of the trial that letting the jury know about defendant's incarceration was part of a trial strategy he had discussed with defendant. Indeed, counsel stated that defendant was "adamant" about this element of the defense. Defendant's strategic position was that Ms. Pecht had orchestrated the allegations to obtain custody of the children. Defendant was incarcerated for violating his parole from a prior conviction for a non-sexual offense, but he asserted that he would have been released if it were not for the allegations in this case. Apparently, defendant thought that letting the jury know he was incarcerated would illustrate that Ms. Pecht's "plan" had been successful. He recognized that an implicit element of this strategy was letting the jury know about the conviction for which he was incarcerated. As a result of this defense strategy, defendant agreed to stipulate with the State to inform the jury that he was incarcerated on a "non-related, non-sexual offense."
Further, defendant's trial counsel had considered the effect of making the jury aware of his incarceration history because the defendant insisted on taking the stand Defendant believed that his testimony would help his defense because he could inform the jury that although he had an extensive criminal record, he had always taken responsibility for his previous crimes. This was defendant's decision, in spite of his counsel's advice against testifying. These strategic elements were already in place when other witnesses mentioned his incarceration record, and no objections were made to their comments because he intended to discuss the same issues in his testimony.
Shortly before he was to take the stand, however, defendant changed his mind. Whether or not the original defense strategy would have been effective is impossible to determine. Nevertheless, defendant had made his testimony a key element of his defense, and his last-minute decision not to testify caused the strategy to unravel. The failure of trial strategy, however, does not indicate ineffectiveness of counsel. See Parsons v. Barnes, 871 P.2d 516, 524 (Utah 1994) ("[W]henever there is `a legitimate exercise of professional judgment in the choice of trial strategy, the fact that it did not produce the expected result does not constitute ineffectiveness of counsel.'") (citations omitted). Defendant's ineffective assistance of counsel claim fails.State v. Pecht, 48 P.3d 931, 940 (Utah 2002).
The court supported its analysis with citations to three of its prior cases. Those cases all use the analysis set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). See Parker, 4 P.3d at 780-81; Chacon, 962 P.2d at 50; Parsons, 871 P.2d at 521-30. Thus, the state court applied the correct governing Supreme Court precedent. See Johnlouis v. Williams, No. 02-2272, 2003 U.S. App. LEXIS 6902, at * (10th Cir. Apr. 10, 2003) (unpublished).
Further, Petitioner has neither argued nor shown that the Utah Supreme Court unreasonably applied Strickland and/or made unreasonable factual determinations. The supreme court based its analysis on the following factual determinations, which Petitioner has not contested: (1) Petitioner was "adamant" that his attorney pursue the trial strategy of allowing evidence of Petitioner's past incarcerations to support his defense theory that his ex-wife fabricated child abuse charges to keep him in prison as a parole violator and thus allow her to keep custody of their children. (2) Petitioner "insisted on taking the stand," believing he could "help his defense because he could inform the jury that although he had an extensive criminal record, he had always taken responsibility for his previous crimes." (3) Although Petitioner "had made his testimony a key element of his defense," he made a last-minute choice not to take the stand, which "caused [his] strategy to unravel."
As noted above, this Court must presume that the state court's factual findings are correct. See 28 U.S.C.A. § 2254(e)(1) (West Supp. 2003). Petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence."Id. Petitioner has not even tried to meet that burden. He has suggested nothing whatsoever that would put in question the state court's reasoned consideration of the trial court record. He has merely invited this Court to take an impermissible fresh look at the state court record.
Strickland recognizes that "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Strickland, 466 U.S. at 691. Apparently, the Utah Supreme Court recognized that as well, and there is nothing unreasonable about how that court applied the correct United States Supreme Court precedent in analyzing counsel's failure to object to or request mitigating instructions regarding evidence of Petitioner's past incarcerations. The Court therefore denies habeas relief on this issue as well.
CONCLUSION
Petitioner has raised no valid grounds for federal habeas relief. IT IS THEREFORE ORDERED that Petitioner's habeas corpus petition under § 2254 is denied.