Opinion
6:21-cv-00508-JE
12-21-2022
JABBAR AL-KHAFAGI, Petitioner, v. JOSHUA HIGHBERGER, Respondent.
Jabbar Al-Khafagi Petitioner, Pro Se Ellen F. Rosenblum, Attorney General Daniel T. Toulson, Assistant Attorney General Department of Justice Attorneys for Respondent
Jabbar Al-Khafagi Petitioner, Pro Se
Ellen F. Rosenblum, Attorney General Daniel T. Toulson, Assistant Attorney General Department of Justice Attorneys for Respondent
FINDINGS AND RECOMMENDATION
JOHN JELDERKS, UNITED STATES MAGISTRATE JUDGE
INTRODUCTION
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging his convictions to one count each of solicitation to commit aggravated murder, conspiracy to commit aggravated murder, and attempted aggravated murder. For the reasons that follow, the Petition should be denied.
BACKGROUND
Petitioner and R began dating in August 2012 and went on a cruise together in October 2012. Trial Tr. at 175-177 (ECF No. 29-1). On the cruise, Petitioner began exhibiting “bizarre [], paranoi[d], suspicious, obsessive” behavior. Id. at 178-179. Although R tried to end the relationship when they got home, Petitioner began stalking, tracking, following and threatening R. Id. at 179-181. He told R that he would kill her if another man talked to her or if she talked to another man. Id. at 180. Petitioner set R's belongings outside of his house to lure her to the home. Id. at 181. When she and her son came to collect them, Petitioner grabbed her arm so tightly that it bruised her arm. Id. R pretended she was on the phone with police to get away and, after that, believed the relationship had ended. Id. at 182. However, Petitioner continued to contact R, “trying to convince [her] and whoever else to get [her] to go back to him.” Id. In an email, Petitioner told R “I have a bullet for you and your family.” Id. at 184.
In February 2013, R obtained a restraining order against Petitioner. Id. at 188. In March 2013, Petitioner violated the restraining order when he entered R's home and bedroom in the middle of the night. Id. at 192-193. In September 2013, Petitioner violated the restraining order again and was arrested outside of R's home in Salem. Id. at 195-196. R subsequently obtained a stalking order against Petitioner. Id. at 197-198. Petitioner pleaded guilty to stalking and was sentenced to 360 days in jail. Id. at 198-199.
While in jail, Petitioner met another adult in custody, Saul Avila. Id. at 95. Petitioner knew that Avila was going to be released soon and asked him if he was willing to “do something” to R. Id. at 99, 111-112. Petitioner asked Avila to kill R and, in return, promised to make Avila a “wealthy man.” Id. at 101-102. Petitioner drew two maps for Avila of where R lived, described R's car and children, explained where R parked, and which apartment was hers. Id. at 103-108, 114-115. Petitioner also suggested an excuse for Avila to knock on R's door. Id. at 105-106.
Avila told his cellmate, and reported the information to the guards. Id. at 112-113. After Avila's release in January 2014, Avila cooperated with a detective to “get[] more communications from [Petitioner].” Id. at 127. Petitioner called Avila two times. Id. at 129. Both phone calls were recorded. Id. Petitioner asked Avila, “are you doing good for the job or not?” and urged Avila to “please do it.” Id. at 532-533, 538. They also discussed a price. Id. at 533-534. At some point, Avila was re-incarcerated and housed in the same jail pod as Petitioner. Id. at 137. By then, Petitioner knew Avila had told the police about his attempts to solicit him to kill R. Id. at 137-138. Gang members also threatened Avila for being a snitch so, to smooth things over with Petitioner, Avila wrote notes to him denying his involvement with the police. Id. at 138-140.
In February 2014, Petitioner was charged with solicitation to commit aggravated murder, conspiracy to commit aggravated murder, and attempted aggravated murder. Resp't Ex. 102. Before trial, the State moved to determine the “admissibility of the history of the relationship between [Petitioner] and the named victim” - including Petitioner's obsessive and threatening conduct toward R prior to his incarceration. Trial Tr. at 18. The State argued that the evidence was relevant to prove Petitioner's motive and was therefore admissible under Oregon Evidence Code (“OEC”) 404(4). Id. at 18-23. At the hearing on the motion, trial counsel conceded that some of the evidence was admissible, but argued some of it was irrelevant, taken out of context, and otherwise inadmissible. Id. at 23-27, 29-31, 33-39. Ultimately, the trial court admitted evidence that Petitioner had threatened to kill R, evidence that Petitioner had followed R to a train stop, Petitioner's emails to R, and evidence that Petitioner violated the stalking and restraining orders. Id. at 45-58.
After a bench trial, the judge convicted Petitioner of attempted aggravated murder and sentenced him to 200 months in prison. Resp't Ex. 101 at 3-4. Petitioner filed a direct appeal alleging six assignments of error:
FIRST ASSIGNMENT OF ERROR: The trial court erred when it admitted evidence through the complainant's testimony and State's Exhibit 1 of threatening emails that defendant sent to the complainant.
SECOND ASSIGNMENT OF ERROR: The trial court erred when it admitted evidence through the complainant's testimony that defendant had followed her onto the Max Train in Portland.
THIRD ASSIGNMENT OF ERROR: The trial court erred when it admitted evidence through the complainant's testimony of the obsessive nature of her relationship with defendant and her attempts to separate from him.
FOURTH ASSIGNMENT OF ERROR: The trial court erred when it admitted evidence through the complainant's testimony and State's Exhibit 9 that, on several occasions, defendant violated a restraining order that the complainant had obtained against him.
FIFTH ASSIGNMENT OF ERROR: The trial court erred when it admitted a stalking order (State's Exhibit 7) that the complainant had obtained against defendant.
SIXTH ASSIGNMENT OF ERROR: The trial court erred when it admitted a judgment (State's Exhibit 8) in which defendant had been convicted of stalking.Resp't Ex. 103 at 2-3. The Oregon Court of Appeals affirmed Petitioner's conviction without opinion and the Oregon Supreme Court denied review. Resp't Ex. 106, 107.
Petitioner next filed for post-conviction relief (“PCR”) in Umatilla County where the PCR court held an evidentiary hearing and denied relief. Resp't Ex. 108, 127, 128. Petitioner appealed the PCR court's decision, alleging two assignments of error:
FIRST ASSIGNMENT OF ERROR: The petitioner should be granted postconviction relief because trial counsel failed to object to the introduction of prior bad acts.
SECOND ASSIGNMENT OF ERROR: Petitioner received the ineffective assistance of counsel when his attorney failed to properly investigate the petitioner's case and utilize a witness to challenge the credibility of the state's primary witness.Resp't Ex. 129 at 2-3. The Oregon Court of Appeals affirmed the PCR court's decision without an opinion and the Oregon Supreme Court denied review. Resp't Ex. 132. 133.
Petitioner now brings this pro se 28 U.S.C. § 2254 habeas corpus petition and presents the following grounds for relief:
Ground One: Petitioner was denied effective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution. As set forth in Petitioner's post-conviction action.
Ground Two: Petitioner was denied due process as set forth in his petition for postconviction relief
Ground Three: Petitioner reiterates an[y] ground here that has been fully exhausted in the State Courts. At the present time, Petitioner does not have any of his direct appeal brief and does not waive any issue that may have been fully exhausted.Pet. at 8-9. Respondent argues relief should be denied because 1) the Petition does not comply with Rule 2(c) of the Rules Governing Section 2254 Cases; 2) to the extent there is a properly pled claim related to Petitioner's direct appeal or post-conviction review, Petitioner failed to fairly present any federal basis for the claim, leaving it procedurally defaulted; 3) to the extent Petitioner fairly presented any claims to the Oregon Supreme Court during PCR, the state-court decisions denying relief did not result in a decision that is either contrary to, or an objectively unreasonable application of, clearly established federal law; and 4) Petitioner's claims fail on the merits. Resp. to Pet. at 2 (ECF No. 36). Although Petitioner's supporting memorandum was due on September 21, 2022, he has not filed such a brief. Instead, he presents an affidavit (ECF No. 36) from another adult in custody that was not part of the state court record, and is therefore not properly before the Court for its consideration. See Cullen v. Pinholster, 563 U.S. 170, 185 (2011) (evidence introduced in federal court has no bearing on § 2254(d)(1) review); see also Gulbrandson v. Ryan, 738 F.3d 976, 994 n. 6 (9th Cir. 2013), cert. denied, 573 U.S. 919 (2014) (evidence introduced in federal court has no bearing on § 2254(d)(2) review).
DISCUSSION
I. Failure to State a Claim
As an initial matter, the Court should find that the Petition does not comply with Rule 2 of the Rules Governing Section 2254 Cases in the United States District Courts. Rule 2(c) requires that a petition “must: (1) specify all the grounds for relief available to the petitioner; [and] (2) state the facts supporting each ground.” Here, the Petition states the claims presented to the state courts at post-conviction and on appeal, but Petitioner does not identify which of those claims are federal claims for habeas review. See Pet. at 8-9. Respondent argues the Petition should be dismissed for failure to present an issue in compliance with the Rules Governing Section 2254 Cases. Resp. to Pet. at 7-8. However, the pro se Petition contains the claims Petitioner wishes to litigate in this proceeding. The fact that Petitioner has not reiterated them again in exactly the right section of his Petition should not be fatal to his case given his pro se status. Haines v. Kerner, 404 U.S. 519, 520 (1972). Accordingly, rather than dismiss the Petition for failure to comply with Rule 2(c), the Court should liberally construe Petitioner's pro se Petition to state viable grounds for relief for pleading purposes.
II. Exhaustion and Procedural Default
Respondent concedes that Petitioner fairly presented his two claims of ineffective assistance of counsel he raised to the Oregon Court of Appeals during his PCR proceedings, but argues that he failed to fairly present any of his direct appeal claims to Oregon's state courts. Specifically, he contends that when Petitioner argued in all six of his claims that the trial court erred with respect to admission of bad act evidence, he failed to present the appellate court with a federal issue.
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 petitioner 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 are therefore not eligible for federal habeas corpus review. 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 at all. Edwards v. 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 the 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).
Petitioner's Appellant's Brief did not cite to the federal constitution or a single federal case. Resp't Ex. 103. Instead, he framed all of his issues as matters of state law. “If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court.” Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). Indeed, the Supreme Court has determined that “mere similarity of claims is insufficient to exhaust.” Duncan v. Henry, 513 U.S. 364, 366 (1995). In this regard, he failed to present any of his direct appeal claims to Oregon's state courts during direct review. Because the time for doing so passed long ago, the claims are now procedurally defaulted and Petitioner has not attempted to excuse his default.
III. The Merits
A. Standard of Review
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.
B. Analysis
In his PCR appellate brief, Petitioner argued he received ineffective assistance of trial counsel because trial counsel (1) failed to object to prior bad act evidence and (2) failed to investigate witnesses who could impeach Avila's testimony. Resp't Ex. 129 at 2-3. 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 counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 686-687 (1984). Due to the difficulties in evaluating counsel's performance, courts must indulge a strong presumption that the conduct falls within the “wide range of reasonable professional assistance.” Id. at 689. Second, the petitioner must show that his counsel'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 sentence petitioner received. Id. at 696. When Strickland's general standard is combined with the standard of review governing 28 U.S.C. § 2254 habeas corpus cases, the result is a “doubly deferential judicial review.” Knowles v. Mirzayance, 556 U.S. 111, 122 (2009).
1. Failure to Object to Prior Bad Acts Evidence
In his first claim presented in his PCR appellate brief, Petitioner argued that his trial counsel was ineffective because he failed to object to evidence of Petitioner's prior bad acts introduced at trial. Resp't Ex. 129 at 7-8. Petitioner argued that trial counsel “should have objected to the scope of much of the evidence” and “should have insisted that the court engage in a balancing act to determine the relevancy of the evidence the state was offering outweighed the[] danger[] of undue prejudice” to Petitioner. Id. at 7-8. Specifically, Petitioner challenged counsel's failure to ask the court to conduct OEC 403 balancing with respect to the admission of the following evidence:
(1) the history of petitioner and the complainant's relationship; (2) petitioner's prior threats to the complainant; and [3] [petitioner's] incarceration that resulted from those incidents ....Id. at 16. Petitioner's argument relied on an Oregon Supreme Court opinion which was issued eight months after Petitioner's trial - holding that “[w]hen a party objects, under OEC 403, ‘other acts' evidence offered under OEC 404(4), a trial court must engage in the balancing anticipated by OEC 403.” State v. Williams, 357 Or 1, 19 (2015); Resp't Ex. 129 at 20-24.
In response, the State argued that, at the time of Petitioner's trial, a trial court was not required or even permitted to conduct OEC 403 balancing for evidence that was otherwise admissible under OEC 404(3), that counsel could not be faulted for failing to foresee a change in law, that the evidence was otherwise admissible under OEC 404(3), and Petitioner failed to prove prejudice. See Resp't Ex. 130 at 6-7, 20-35; see also e.g. State v. Cavaner, 206 Or.App. 131, 135 (2006), abrogated by State v. Brumbach, 273 Or.App. 552 (2015), rev. denied 359 Or. 525 (2016) (finding OEC 404(4) does not permit balancing under OEC 403, except as required by state or federal constitution); Brumbach, 273 Or.App. at 563-64 (holding that, in light of State v. Williams, appellate decisions, including Cavaner, that hold that OEC 404(4) prohibits a court from performing OEC 403 balancing on other acts evidence “are no longer sound on that point.”). The State argued that even if the trial court had applied OEC 403, it would have concluded that the evidence was admissible as evidence of Petitioner's motive to kill R, and to provide “context to explain other actions that Petitioner and [R] took.” Id. at 20-21.
The PCR court addressed Petitioner's ineffective assistance of counsel claim, concluding that counsel's “actions were reasonable in his efforts to suppress some evidence of prior misconduct by the petitioner.” Specifically, the PCR court found no error because counsel “could not forecast the law,” and found “no prejudice because I do believe that this evidence is admissible to show the motive and the intent to kill in this case.” Resp't Ex. 127 at 37. Counsel's performance did not fall below an objective standard of reasonableness where - at the time of Petitioner's trial - the court was not permitted to conduct OEC 403 balancing on evidence that was otherwise admissible under OEC 404(3). To the extent Petitioner argues that counsel should have predicted what the law would be eight months after his trial, Strickland does not mandate prescience, only objectively reasonable advice under prevailing professional norms.” Sophanthavong v. Palmateer, 378 F.3d 859, 870 (9th Cir. 2004) (citing Strickland, 466 U.S. at 690); see also Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (lawyers not required to anticipate decisions, and conduct must be evaluated at the time of that conduct). Habeas corpus relief on this issue is not appropriate because the PCR court's well-reasoned decision was correct and does not involve an unreasonable application of clearly established federal law.
2. Failure to Investigate Witnesses
In his second claim presented in his PCR appellate brief, Petitioner argued that his trial counsel was ineffective because he failed to investigate two witnesses who could impeach Avila's testimony. Resp't Ex. 129 at 8. In support, Petitioner provided signed declarations by Frank Romero and Farouk El-Dabba, both of whom were adults in custody with Petitioner. Romero attested that: 1) Petitioner had been one of his cellmates; 2) while they were cellmates, another inmate named Saul “kept coming around to talk” to Petitioner and “kept giving notes to” Petitioner; 3) he read one of the notes Saul gave to Petitioner that said “I'm sorry, the cops tricked me. I just wanted to get out of jail;” 4) he “[didn't] believe that Saul liked [Petitioner] because he was from the Middle East;” and 5) he would have testified at Petitioner's trial if asked. Resp't Ex. 115 at 1 2. El-Dabba stated that he did not know Petitioner or Avila well, but “a guy named Saul” would try to talk to him about his case, “like he was trying to get details from me about what I may or may not have done.” Resp't Ex. 116. El-Dabba was “subsequently warned to watch out for [Saul] because he was willing to do anything to try to reduce his sentence.” Id.
In response, Petitioner's trial counsel submitted an affidavit. Resp't Ex. 119. According to trial counsel, he did not remember Petitioner ever mentioning Romero or El-Dabba to him. Id. at 1. Trial counsel recounted:
If petitioner had mentioned them to me as potential useful witnesses, I would have interviewed them and used them if they had been helpful....If I did not interview them; that suggests that petitioner never told me about them.... [E]ven if petitioner had told me about Romero and El-Dabba, I may not have wanted to use them because their impact was very low. It can be harmful to present insignificant evidence to a jury in an effort to convince them that it is significant evidence. That dilutes the impact of genuinely useful evidence....I evaluated the evidence and available witnesses in preparation for trial....I do not ignore useful witnesses, and I investigate witnesses that come to my attention that may be useful. If I did not call Romero or El-Dabba, it was because I was not informed of them or did not strategically find them to be useful.Id. at 1-2 (emphasis in original). In addition, the State argued that Romero would not have helped Petitioner's case because Romero was in a gang and was in prison for killing another gang member, and provided evidence that Romero was on trial for murder during Petitioner's trial. See Resp't Ex. 117 at 13; Resp't Ex. 122; Resp't Ex. 123 at 930. His testimony would have also bolstered Avila's testimony that he was threatened by gang members in jail because he worked with police. Resp't Ex. 117 at 11-13. The State argued El-Dabba's testimony was hearsay, and provided evidence that he, too, was in custody for murder and had a history of domestic violence. Resp't Ex. 117 at 12; Resp't Ex. 125.
At the PCR hearing, Petitioner testified that trial counsel assured him that “one [witness] is enough.” Resp't Ex. 127 at 17. The PCR court found that counsel reasonably and strategically decided “not to call others who are charged with murder as petitioner's witnesses,” and found that Petitioner had failed to establish any prejudice. Id. at 36. Specifically, the PCR court found that
in bringing in the additional two witnesses, petitioner and trial counsel [] would have to bring in issues concerning murder, domestic violence and guns. It is understandable and reasonable that a defense attorney in this case would not want to have someone charged with murder testifying in support of this petition.Id. at 35. In light of the evidence presented, the PCR court determined that Petitioner failed to establish that testimony from these witnesses would have been helpful to him. Id. at 36 (“it is very clear that [trial counsel] did not want to have Mr. Romero and Eldabaa (sic) testify in this trial because it would hurt their defense”). This was not an unreasonable determination based upon the totality of the record.
Whether to call witnesses who might backfire on the defense is precisely the kind of strategic decision to which courts afford a high level of deference. See Strickland, 466 U.S. at 689. In this respect, counsel's decision did not fall below an objective standard of reasonableness. Additionally, Petitioner has not shown prejudice because it is highly improbable that the additional witnesses' testimonies would have produced a different outcome. For these reasons, the PCR court's decision was neither contrary to nor an unreasonable application of clearly established federal law and Petitioner is not entitled to habeas corpus relief.
RECOMMENDATION
For the reasons identified above, the Petition for Writ of Habeas Corpus (ECF No. 2) should be denied and a judgment should be entered dismissing this case with prejudice. The Court should deny a Certificate of Appealability in this case where Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2).
SCHEDULING ORDER
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 17 days. If no objections are filed, the Findings and Recommendation will go under advisement on that date.
If objections are filed, a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.