Opinion
Case No. 2:17-cv-00039-HZ
08-14-2018
LLOYD E. AUSTIN, IV, Petitioner, v. MS. BRIDGET AMSBERRY, Respondent.
C. Renee Manes Assistant Federal Public Defender 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 Attorney for Petitioner Ellen F. Rosenblum, Attorney General Samuel A. Kubernick, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent
OPINION AND ORDER C. Renee Manes
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner Ellen F. Rosenblum, Attorney General
Samuel A. Kubernick, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent HERNANDEZ, District Judge.
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his state-court conviction for Murder. For the reasons that follow, the Amended Petition for Writ of Habeas Corpus (#11) is denied.
BACKGROUND
In September 2009, the Lane County Grand Jury accused Petitioner of Murder, Attempted Unlawful Entry into Motor Vehicle, Carrying a Concealed Weapon, Escape in the Third Degree, and Resisting Arrest. Respondent's Exhibit 102. Petitioner was represented by two attorneys, Elizabeth Baker and Brad Cascagnette. On March 5, 2010, Baker moved the trial court to determine Petitioner's fitness to proceed, requesting that he be transported to the Oregon State Hospital for an evaluation pursuant to ORS 161.370. Respondent's Exhibit 119. In her supporting Declaration, she stated as follows:
3. My investigator and I have seen him three times since I was appointed — the first week of February, and I have tried to see him two additional times and he has refused to see me or my investigator and today, I had to speak to him through glass doors while he was in a jail cell. Twice he has been so difficult and dangerous that jail staff would not transport him to court - one of those times was at the jail court room. In our last conversation, Defendant made statements to myself and my investigator as if we had had several conversations we had never had with him. Defendant could not follow any of our conversations [or] stay focused. I consulted with Dr. Eric Johnson, whom I will be retaining for this case and he suggested to me that any plea or quick deal, given Defendant's behavior was ill-advised and that
he should be evaluated - his choices, if intentional - are approaching the point [of] being without any reason and I do not believe he is able to aid and assist in making choices in his cases.Id at 3.
Also on March 5, 2010, the Honorable Gregory Foote was due to conduct a settlement conference in Petitioner's case. Petitioner was "so uncooperative and violent," that he was not transported for the conference. Petitioner's Exhibit 1, p. 3. Judge Foote took the opportunity to have Sergeant Steve Davis of the Lane County Jail testify as to Petitioner's behavior. According to Davis, Petitioner had demonstrated a general lack of cooperation and "affinity to collect and create dangerous weapons within the jail." Id at 4. Petitioner was indecisive about whether he would attend the settlement conference, and ultimately refused on the basis that the Honorable Karsten Rasmussen, not Judge Foote, was his trial judge.
Davis testified that Petitioner did not appear to understand what Davis explained to him about the purpose of the settlement conference. Id at 5. Baker took the opportunity to state her concerns on the record and, as in her Declaration supporting her Motion for a competency determination, she noted that Petitioner had spoken "about conversations we never had and serious conversations of serious subject matter and conversations which, to my investigator's knowledge, he had never had with previous counsel." Id at 8. She stated that "his behavior since that time has sort of deescalated, or he appears to be disassembling in his ability to really gain insight or information." Id. Judge Foote explained that he would defer the matter to Judge Rasmussen, but explained that he had "wanted to get Sergeant Davis on the record so that Judge Rasmussen can consider that evidence without having to call the Sergeant to court." Id at 7.
For reasons that are not clear, Judge Rasmussen elected not hold a hearing to address the competency issue. Instead, on March 15, 2010, he issued a brief Order denying Petitioner's competency Motion. Respondent's Exhibit 121.
Five months later, on August 17, 2010, Petitioner filed his Petition to Consent to be Found Guilty by Stipulated Facts Trial. Respondent's Exhibit 104. In that Petition, he agreed there was sufficient evidence to find him guilty of Murder, and that the presumptive sentence for that charge was life in prison with a 25-year minimum. Id at 4. In exchange, the State dismissed the four remaining charges in the Indictment. Id at 3.
At the stipulated facts trial conducted the same day, Judge Rasmussen found Petitioner guilty of Murder. Respondent's Exhibit 106. The following day, Judge Rasmussen sentenced Petitioner to the agreed-upon sentence of life with a 25-year minimum term. Respondent's Exhibit 107.
Petitioner took a direct appeal, but voluntarily dismissed the action. Respondent's Exhibits 108-110. He then proceeded to file for post-conviction relief ("PCR") in Marion County where the PCR Court denied relief. Respondent's Exhibit 155. The Oregon Court of Appeals summarily affirmed the PCR Court's decision, and the Oregon Supreme Court denied review. Austin v. Premo, 280 Or. App. 481, 380 P.3d 1253, rev. denied, 360 Or. 697, 388 P.3d 708 (2016).
Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on January 9, 2017 and, with the assistance of appointed counsel, filed an Amended Petition three months later. Respondent asks the Court to deny relief on the Amended Petition because most of Petitioner's claims are procedurally defaulted, and the claims that are not defaulted do not have sufficient merit to entitle him to habeas corpus relief.
I. Unargued Claims
In his Amended Petition, Petitioner raises six grounds containing numerous sub-claims. In his supporting memorandum, however, Petitioner chooses to brief two claims of ineffective assistance of counsel: (1) whether counsel failed to ensure Petitioner was competent to proceed to a stipulated facts trial and sentencing (Ground 3(D)(iv)); and (2) whether counsel failed to ensure that Petitioner's plea was knowing, voluntary, and intelligent (Ground 3(D)(v)).
Petitioner does not argue the merits of his remaining claims, nor does he address any of Respondent's arguments as to why relief on these claims should be denied. As such, Petitioner has not carried his burden of proof with respect to these unargued claims. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (Petitioner bears the burden of proving his claims). Even if Petitioner had briefed the merits of these claims, the court has examined them based upon the existing record and determined that they do not entitle him to relief. II. Exhaustion , Procedural Default, and Martinez
A petitioner seeking habeas relief 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 habeas corpus claims pursuant to 28 U.S.C. § 2254. Rose v. Lundy, 455 U.S. 509, 519 (1982). A petitioner must also present his claims in a procedural context in which their merits can be considered. 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).
As his Ground 3(D)(iv) claim, Petitioner asserts that trial counsel failed to ensure he was competent to proceed to the stipulated facts trial and sentencing. He does not dispute Respondent's characterization of this claim as procedurally defaulted, and instead asks the Court to excuse his default pursuant to Martinez v. Ryan, 566 U.S. 1 (2012).
Traditionally, the performance of PCR counsel could not be used to establish cause and prejudice to excuse a procedural default. Coleman v. Thompson, 501 U.S. 722, 753-54 (1991) (only the constitutionally ineffective assistance of counsel constitutes cause); Pennsylvania v. Finley, 481 U.S. 551, 556 (1987) (there is no constitutional right to counsel in a PCR proceeding). However, in Martinez, the Supreme Court found "it . . . necessary to modify the unqualified statement in Coleman that an attorney's ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default." Id at 8. It concluded, "Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." Id.
In order to establish cause to excuse his default pursuant to Martinez, Petitioner must show first that his underlying claim of ineffective assistance of trial counsel is substantial insofar as it has "some merit." Next, he must demonstrate that his PCR attorney was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 (1984) for failing to raise the claim. "[T]o fulfill this requirement, a petitioner must not only show that PCR counsel performed deficiently, but also that this prejudiced petitioner, i.e., that there was a reasonable probability that, absent the deficient performance, the result of the post-conviction proceedings would have been different." Runningeagle v. Ryan, 825 F.3d 970, 982 (9th Cir. 2017) (quotation omitted). Such a finding, of course, would necessarily require the Court to conclude that there is a reasonable probability that the trial-level ineffective assistance claim would have succeeded had it been raised. Id.
Petitioner argues that where Baker doubted he was competent to proceed in March 2010, she had a constitutional obligation to: (1) do more to ensure a hearing; (2) obtain an expert evaluation; and (3) couch her request for a competency determination in terms of the 14th Amendment's Due Process Clause on the theory that it provides more robust protections for criminal defendants of questionable competency.
Petitioner assumes that because Baker believed he was likely not competent to proceed in March of 2010, she must also have thought he was incompetent to proceed with the stipulated facts trial. However, Petitioner's decision to waive his right to a jury and proceed to a stipulated facts trial did not occur until August 2010, five months after Baker's competency Motion. At the time of trial, neither Baker nor Cascagnette had reservations about Petitioner's competency to proceed. Not only did they not raise any competency issues with Judge Rasmussen at that time, but they specifically swore in Affidavits prepared for Petitioner's PCR proceedings that Petitioner was competent to proceed with his jury waiver and stipulated facts trial. Cascagnette related the following:
6. Regarding Petitioner's mental health, I did not witness petitioner being unable to track during our discussions nor did I notice signs that petitioner might be suffering from
delusions or hallucinations, or responding to internal stimuli. Petitioner created problems for the jail, but I did not pick up on any mental health issues that would rise to a level of defense, or his inability to aid and assist. He engaged in discussions about his case, his charges, and his options when he wanted to, and asked appropriate questions, which I did my best to answer.Respondent's Exhibit 151, pp. 3-4.
* * *
9. . . . I do not think that Mr. Austin liked his choices, and the need to choose between a plea deal/stipulated facts trial versus a jury trial. On the other hand, it was my opinion that Mr. Austin was competent in August 2010 and was fully capable of making a knowing, voluntary, and intelligent decision to waive jury and have a stipulated facts trial on the Murder charge. I am certain that Mr. Austin understood that the stipulated facts trial would result in his conviction and a prison sentence of Life, with the possibility of parole after serving a minimum 25 years.
For her part, Baker also believed Petitioner while mentally ill and a difficult client, was aware of his situation and competent to proceed at the time of his trial:
6. I do want to say this, and I recall it specifically, I always thought Mr. Austin had serious mental health issues. He claimed to have mental health history but we could not locate it - it might have been in California - but we could not locate it.
* * *
I made a motion for fitness when the isolation began, which the court denied. I followed it up with a memo, but it was still denied.
7. . . . The client asked me - do you think I'm crazy - and I said, "Yes, but I think you know very well you did this." He looked kind of shocked and I said, "You never asked me before." I tried to get him evaluated by Dr. Eric Johnson (who told me he was worried for my safety if I met with client without anyone present) but Mr. Austin refused to participate for fitness evaluation or mental health evaluation for a possible GEI defense. I reminded Mr. Austin of that when Mr. Austin seemed to insist he was mentally ill, and said, "Too late buddy, that won't work." Then he did the deal. I stand by that - I don't think he was fit through most of this, and I think he's mentally ill and he was very well aware of what the issues were. Mr. Austin had so many cases pending at the time we had the settlement conference that the deal ended up fairly favorable, but Mr. Austin is one sad, pathetic case.Respondent's Exhibit 152, pp. 3-4.
8. It was my opinion that Mr. Austin was fit to proceed, and fully capable of knowingly and intelligently waiving his constitutional rights, on the date he entered into the plea agreement.
As illustrated by these Affidavits, although Baker thought Petitioner was not competent in March 2010 and wished to have him evaluated, she and Cascagnette both felt he was competent to proceed at the time of his trial in August of that year. This is critical to the retrospective competency inquiry where "defense counsel will often have the best-informed view of the defendant's ability to participate in his defense." Medina v. California, 505 U.S. 437, 450 (1992). A change in Baker's perception of Petitioner's competency over the course of five months does not render her 2010 Declaration inconsistent with her 2013 Affidavit. Indeed, where she showed an awareness of the competency issue in March 2010 and sought a competency hearing at that time, her silence on the matter in August 2010 speaks to what she thought of Petitioner's competence to proceed at that point, and is consistent with her 2013 PCR Affidavit that she believed Petitioner was competent to proceed to trial in August 2010.
Similarly, at the August 17, 2010 stipulated facts trial, Judge Rasmussen likewise found Petitioner competent to proceed:
I further find as fact that the defendant does understand what he's doing here. I have taken his answers and responses as appropriate under the circumstances.Respondent's Exhibit 106, pp. 19-20.
I take into account the assessment of professional counsel who are well experienced and have worked with Mr. Austin here for quite some while, and I also take into account the fact that he is resolving this case in a way that makes sense to me - would make sense to anyone - in light of the potential that he would, if convicted of all counts, including the ones that the State will plan - ask the Court to dismiss, could very well have been incarcerated for essentially the rest of his life.
So on that basis I find that he has - he does not have a does not present a mental disease or defect defense that he is making rational and appropriate choices[.]
Moreover, where Petitioner's competence was at issue in his PCR case, the PCR Court determined that Petitioner's mental health did not render him unable to understand his options. Respondent's Exhibit 155, p. 2. Such a determination of a factual issue, even where Petitioner did not present the particular claim currently at issue, is entitled to a presumption of correctness pursuant to 28 U.S.C. § 2254(e)(1). See Sharpe v. Bell, 593 F.3d 372, 378 (4th Cir. 2010) ("While Section 2254(d) thus has no application in the context of [an exception to procedural default] because it pertains only to a 'claim that was adjudicated' in state court, Section 2254(e)(1) does come into play because it refers to the 'determination of a factual issue'-that is, to a state court's findings of fact, rather than its conclusions of federal law."). Petitioner has not rebutted this presumption by clear and convincing evidence as required by the terms of 28 U.S.C. § 2254(e)(1).
Petitioner's trial attorneys were under no obligation to pursue the competency issue where both of them believed Petitioner to be competent to proceed to trial, as did two state-court judges. Where the claim is not substantial and PCR counsel was not ineffective for failing to raise the ineffective assistance of counsel claim Petitioner advocates, Martinez does not excuse Petitioner's default of his Ground 3(D)(iv) claim.
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. Twenty-eight U.S.C. § 2254(d) "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents. It goes no farther." Harrington v. Richter, 562 U.S. 86, 102 (2011).
B. Analysis
As his final remaining claim, Petitioner alleges that trial counsel failed to ensure that the decision to forego a jury trial and effectively plead guilty was knowing, voluntary, and intelligent. As discussed above, Judge Rasmussen and both of Petitioner's trial attorneys felt he was competent to proceed with the stipulated facts trial. Addressing the claim Petitioner pursues here, the PCR Court specifically determined:
There's no proof the Petitioner's mental health in any way left him in any [way] unable to understand his options.Respondent's Exhibit 154, pp. 36-37.
Segregation certainly [was] not an optimal way to live, but I don't see the evidence showing that it was enough to show that he was unable to understand his choices, and he made a choice in another case, so he also had some other experience that was stip[ulated] facts too I believe.
I find the decision to stipulate to facts of the case was a knowing and voluntary decision.
Petitioner contends that the PCR court failed to adequately discuss the impact of trial counsel's purported failure to protect his right to be competent to proceed with a stipulated facts trial, thus no deference is owed to the state-court decision. Even where there is no analysis at all, federal habeas courts still defer to the state-court decisions being challenged. Harrington v. Richter, 562 U.S. 86, 102 (2011). --------
The record reflects that Petitioner was competent to waive his right to a jury trial, and that he knowingly, intelligently, and voluntarily proceeded with a stipulated facts trial. Counsel's performance therefore did not fall below an objective standard of reasonableness, and the PCR Court's decision denying relief on Petitioner's Ground 3(D)(v) claim is therefore neither contrary to, nor an unreasonable application of, clearly established federal law.
CONCLUSION
For the reasons identified above, the Amended Petition for Writ of Habeas Corpus (#11) is denied. The Court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
DATED this 14th day of August, 2018.
/s/ Marco A. Hernandez
Marco A. Hernandez
United States District Judge