Opinion
2:19-cv-02109-AR
01-30-2024
NICHOLAS HIBDON, Petitioner, v. BRAD CAIN, Respondent.
FINDINGS & RECOMMENDATION
Jeff Armistead, United States Magistrate Judge
Petitioner Nicholas Hibdon, an adult in the custody of the Oregon Department of Corrections, brings this 28 U.S.C. § 2254 habeas corpus action challenging his 2012 state conviction, among other convictions, for first-degree burglary. The court considers three claims of habeas corpus relief-Ground One, challenging the constitutional sufficiency of the evidence available to convict Hibdon for first-degree burglary, Ground Two, an ineffective assistance of counsel challenge concerning the failure of Hibdon's trial lawyer to request a jury instruction limiting the jury's consideration of evidence of uncharged stolen goods as propensity evidence, and Ground Four, a claim of actual innocence. Because Hibdon has not met the necessary burdens to establish those claims, the court recommends denying the Amended Petition for Writ of Habeas Corpus.
PROCEDURAL BACKGROUND
On August 24, 2012, a Lane County grand jury indicted Hibdon on the following charges: felony fleeing or attempting to elude a police officer in a vehicle (Count 1); reckless driving (Count 2); recklessly endangering another person (Count 3); fleeing or attempting to elude a police officer on foot (Count 4); failure to perform the duties of a driver when property is damaged (Count 5); unlawful possession of methamphetamine (Count 6); felon in possession of a firearm (FIP) (Count 7); first-degree theft (Counts 8, 10, and 11); and first-degree burglary (Count 9). (Respondent's Exhibit (“Resp. Exh.”) 102, ECF No. 16, pp. 1-3.) Counts 1 through 6 were based on Hibdon's flight from police and arrest on July 6, 2012; Counts 7 and 8 were based on a stolen handgun from a different burglary; and Counts 9 through 11 were based on items stolen from a residence on June 22, 2012. (Resp. Exh. 102, pp. 1-3.)
Trial began on November 14, 2012. Shortly before trial, Hibdon pleaded guilty to Counts 1 through 6. (Resp. Exhs. 103; Tr. Vol. I, pp. 26-32.) Sentencing on those charges was deferred to the end of trial. (Tr. Vol. I, p. 32.)
The transcript of Hibdon's trial is set forth in two volumes, at respondent's Exhibits Nos. 104 (Volume I) and 105 (Volume II). For ease of reference, citations to the transcripts are based on the volume number and the page numbers which appear in the upper right-hand corner.
Hibdon proceeded to a jury trial on the remaining charges. The jury found him guilty on two counts of first-degree theft (Counts 10 and 11), and one count each of first-degree burglary (Count 9) and FIP (Count 7); the jury acquitted Hibdon on the remaining count of first-degree theft (Count 8). (Tr. Vol. II, p. 264.) The judge sentenced Hibdon to 96 months of imprisonment, followed by a period of post-prison supervision. (Tr. Vol. II, p. 296; Resp. Exh. 101.)
Hibdon appealed the trial court's judgment, with a single assignment of error: he argued that the trial court erred in denying Hibdon's motion for judgment of acquittal (MJOA) on Count 9-the charge of first-degree burglary. (Resp. Exh. 106, p. 2.) The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. Hibdon, 266 Or.App. 548 (2014), rev. denied, 356 Or. 837 (2015).
Hibdon then petitioned for post-conviction relief (PCR) in Malheur County Circuit Court. (Resp. Exh. 111.) The PCR court appointed counsel, who filed a formal Amended Petition for Post-Conviction Relief on Hibdon's behalf. (Resp. Exh. 112.) As pertinent here, the Amended Petition contained a claim that Hibdon's trial counsel was constitutionally ineffective and inadequate by failing to request a jury instruction under Oregon Evidence Code 105 limiting consideration of evidence of stolen items found in the trunk of the car Hibdon was driving when he was arrested that were not the basis of the charges against him in the trial. (Resp. Exh. 112, p 7.)
Following an evidentiary hearing, the PCR court took the matter under advisement and subsequently issued a written General Judgment denying relief. (Resp. Exhs. 121, 122.) Hibdon appealed, and the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Hibdon v. Kelly, 298 Or App. 142, rev. denied, 365 Or. 557 (2019).
Hibdon then filed a pro se Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 2) in this court. The court appointed counsel to represent Hibdon, and before the court is Hibdon's Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 19). The Amended Petition claims three grounds for relief:
The Amended Petition originally alleged a claim for relief in Ground Three that Hibdon's rights were violated because he was convicted by a nonunanimous jury, but Hibdon subsequently withdrew that claim on the basis that the jury was not polled. See Mandell v. Miller, 326 Or.App. 807, 811 (2023) (“Because there is nothing in this record to suggest that the verdicts in petitioner's case were actually nonunanimous, we conclude that petitioner has not met his burden to prove that the nonunanimous jury instruction was consequential to his conviction.”); (Notice Filed by Nicholas Hibdon, ECF No. 60).
Ground One: Hibdon was denied due process of law in violation of the Fourteenth Amendment to the United States Constitution and the clearly established standard of Jackson v. Virginia, 443 U.S. 307 (1979), when the trial court denied his motion for judgment of acquittal on the charge of burglary in the first degree.
Ground Two: Hibdon was denied the effective assistance of counsel and due process as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution when trial counsel failed to effectively argue for the exclusion or limitation of evidence relating to law enforcement officers' search of the vehicle in which Hibdon was stopped, including the vehicle's trunk.
Ground Four: Hibdon is actually innocent of the charges for which he stands convicted in violation of the Eighth and Fourteenth Amendments to the United States Constitution.
Hibdon does not address in his briefing Ground Four's assertion of actual innocence. As to the claim alleged in Ground One, Hibdon argues, relying on Jackson v. Virginia, 443 U.S. 307 (1979), that he is entitled to habeas relief because no rational finder of fact could have found him guilty, and that the trial court therefore erred in denying his motion for judgment of acquittal. As to his Ground Two allegation, Hibdon argues that the PCR court decision is not entitled to deference because it misapprehended the record, and he is entitled to habeas relief because the post-conviction court incorrectly determined that he was not prejudiced by his trial counsel's failure to request an instruction limiting the way the jury could consider evidence of uncharged crimes.
SUMMARY OF THE EVIDENCE
On June 22, 2012, Springfield resident Christian Metzger was at work when the company for his home's alarm called to tell him that his alarm had been activated and that the police had been notified. (Tr. Vol. I, pp. 62-65.) Springfield police officer Grice arrived at Metzer's home at 2:19 p.m. (Tr. Vol. I, p. 97.) Metzger went directly home after the alarm company called and discovered that personal items and mementos valued at over $1,000 had been taken. (Tr. Vol. I, pp. 65, 67-69.) Also taken were commemorative coins valued around $9,000. (Tr. Vol. I, pp. 68, 74.)
Victor Huerta owns a landscaping business and, at the time the burglary, was working in the front yard of a house near Metzger's house. (Tr. Vol. I, pp. 76, 78.) Huerta was familiar with the residents of the neighborhood. (Tr. Vol. I, p. 78.) About five or six minutes before the police arrived at Metzger's house, Huerta saw a woman slowly drive a van down the street, turn around, and park on the side of the street. Huerta was watching the van because he had had equipment taken from him before and the woman's actions looked suspicious. (Tr. Vol. I, pp. 79-80.) The woman stayed about one minute and then drove away. (Tr. Vol. I, p. 80.) Huerta could not see the back of the van, so he did not know whether anyone exited or entered the van through the back doors. (Tr. Vol. I, pp. 80-81.)
When Officer Grice arrived at Metzger's house at 2:19 p.m., he discovered a damaged doorjamb and broken glass: it was evident the home had been burglarized. (Tr. Vol. I, pp. 97-98.) Metzger described to Grice some items that had been taken and Huerta told Grice about the woman driving the van. (Tr. Vol. I, pp. 98-99.) Grice left to look for the van. (Tr. Vol. I, p. 99.)
After briefly searching the area, Grice decided to check nearby pawnshops. (Tr. Vol. I, p. 99.) He went to North Star and Coin in downtown Springfield, the pawnshop closest to Metzger's home and about a 10-minute drive. (Tr. Vol. I, p. 99.) Grice spoke to the owner Jeffrey Thurn and learned that Hibdon, who had sold coins and jewelry to Thurn before, had been in the shop 30 minutes earlier and sold Thurn some coins. (Tr. Vol. I, pp. 99-100.) Thurn reported that a woman-unknown to Thurn-entered the store with Hibdon. (Tr. Vol. I, p. 175.) Grice took possession of the coins, which Metzger later identified as some of the coins that had been taken from his home. (Tr. Vol. I, p. 100.) Grice also watched the pawnshop's video surveillance footage and confirmed that Hibdon had been the person who sold Thurn Metzger's coins. (Tr. Vol. I, pp. 101-02.) The surveillance footage showed that Hibdon was at the pawnshop at 2:36 p.m., about 25 minutes after the alarm company first called the Springfield police about the burglary. (Tr. Vol. II, p. 174.)
A few weeks later, on July 6, 2012, Springfield police officer Larry Turner was on duty when he saw Hibdon driving towards him in a red Lincoln Continental. (Tr. Vol. I, pp. 88-89.) Turner, noting that the car lacked a front license plate and had what looked to be fresh damage near the right front headlight, activated his overhead lights for a traffic stop. (Tr. Vol. I, p. 8889.)
Hibdon immediately accelerated, blew through a stop sign, and continued driving through downtown Springfield streets at 50 miles per hour, with Turner chasing him. Hibdon began to drive his car into oncoming traffic, and Turner saw the driver-side door open as Hibdon got out of the still-moving car. Hibdon lost his footing and was hit in the back and the head by an oncoming car, but then got up and ran. At the same time, Hibdon's car came to a stop as it scraped along the side of the other car. (Tr. Vol. I, p. 89.)
Turner managed to apprehend Hibdon in a nearby backyard and took him into custody. (Tr. Vol. I, p. 90.) A search of Hibdon revealed a bracelet and two rings in his left front pants pocket, and a watch on his left wrist. (Tr. Vol. I, pp. 93-94.) In two later searches of Hibdon's car, police discovered several items in the trunk, including belt buckles and knives, that had been taken during uncharged burglaries and thefts unrelated to the Metzger burglary. (Tr. Vol. I, pp. 116-25.) Also found in a backpack in Hibdon's car was an unloaded Ruger handgun, which belonged to Martin Pappel, who had reported it stolen from his house on June 10, 2012. (Tr. Vol. I, pp. 108-09.)
The Ruger handgun discovered in Hibdon's car was the basis of Counts 7 and 8.
Hibdon testified at trial that an acquaintance to whom he had given a ride on July 5, 2012, left the backpack containing the Pappel handgun in Hibdon's car and that he was unaware of the presence of a gun in the backpack or any of the items in the trunk of the car, which were also placed there by his acquaintance. (Tr. Vol. II, pp. 200-03.) As to the coins he sold to the pawnshop on June 22, 2012, the date of the Metzger burglary, Hibdon testified that he had stopped by a female friend's house hoping to collect some money she owed him. The woman did not have cash and suggested paying him with the coins. (Tr. Vol. II, pp. 204-06.) Hibdon took the coins from the woman as repayment, but he testified that he would not have done so had he known the coins were stolen. (Tr. Vol. II, p. 206.) According to Hibdon's testimony, he took the coins to the pawnshop with a different woman and sold them to Thurn. (Tr. Vol. II, pp. 205-07.) Because he did not want to be a “snitch,” Hibdon refused to name the acquaintance who had purportedly left the backpack and other items in his car, the two woman whom he said provided him the stolen coins, or the woman who accompanied him to the pawnshop. (Tr. Vol. II, pp. 205, 212, 219.)
LEGAL STANDARDS
Review is governed by the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996. Under AEDPA, an application for a writ of habeas corpus will be granted only if adjudication of the claim in state court 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,” 28 U.S.C. § 2254(d)(1), or “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)(2).
Under § 2254(d)(1), a state court decision is “contrary to . . . 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 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 of § 2254(d)(1), a federal habeas corpus 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. Section 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).
Under § 2254(d)(2), a habeas petitioner may “challenge the substance of the state court's findings and attempt to show that those findings were not supported by substantial evidence in the state court record.” Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). A state court renders an unreasonable determination of the facts if it “plainly misapprehends or misstates the record in making its findings or where the state court has before it, yet apparently ignores, evidence that supports petitioner's claims.” Andrews v. Davis, 944 F.3d 1092, 1107 (9th Cir. 2019) (quotation marks omitted). A federal habeas court cannot overturn a state court decision on factual grounds “unless [it is] objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). That is a “‘daunting standard-one that will be satisfied in relatively few cases,' especially because we must be ‘particularly deferential to our state-court colleagues.'” Hernandez v. Holland, 750 F.3d 843, 857 (9th Cir. 2014) (quoting Taylor v. Maddux, 366 F.3d 992, 1000 (9th Cir. 2004)).
When a state court does not provide a reasoned decision addressing the merits of a claim, the habeas court must conduct “an independent review of the record” to determine whether the state court's denial was objectively unreasonable. Haney v. Adams, 641 F.3d 1168, 1171 (9th Cir. 2011); Murdoch v. Castro, 609 F.3d 983, 990-91 n.6 (9th Cir. 2010) (en banc). In particular, the court must consider on habeas review “what arguments or theories . . . could have supported[] the state court's decision” and then ask “whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme Court].” Richter, 562 U.S. at 102. To obtain federal habeas relief, a petitioner “must show that the state court's ruling on the claim . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.
DISCUSSION
A. Ground One - Insufficiency of the Evidence Claim
In Ground One, Hibdon asserts that the trial court erred in denying his motion for acquittal on the burglary in the first-degree charge based on insufficiency of the evidence. That is, Hibdon argues that he is entitled to habeas relief under Jackson, 443 U.S. at 324, which held that a petitioner “is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” A habeas court's review of the record for sufficiency of the evidence is “sharply limited,” and the court owes great deference to the trier of fact. Wright v. West, 505 U.S. 277, 296 (1992). The court must view the evidence in the light most favorable to the prosecution. Jackson, 443 U.S. at 319. “[T]he prosecution need not affirmatively ‘rule out every hypothesis except that of guilty.'” West, 505 U.S. at 296 (quoting Jackson, 443 U.S. at 326). Rather, a “reviewing court ‘faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'” Id. at 296-97 (quoting Jackson, 443 U.S. at 326).
Moreover, habeas claims challenging the sufficiency of the evidence “face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference.” Coleman v. Johnson, 566 U.S. 650, 651 (2012). First, on direct appeal in state court, “‘it is the responsibility of the jury-not the court-to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.'” Id. (quoting Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam)). Second, on habeas review, a federal court may only overturn a state court decision rejecting a sufficiency of the evidence challenge “if the state court decision was objectively unreasonable.” Id. (quoting Cavazos, 565 U.S. at 2).
At the close of the state's case against Hibdon, trial counsel moved for a judgment of acquittal on several charges including, as applicable here, Count 9-first-degree burglary. (Tr. Vol. II, pp. 194-95.) Counsel argued:
The sole evidence of [Hibdon] connected to the burglary is him appearing at the jewelry store about a half hour after the burglary took place, maybe a little bit little more than a half hour, at least when the alarm - was triggered. And so it's speculation as to what happened during that period. There's nothing in the way of fingerprints or other evidence to connect Mr. Hibdon. And so I would submit that there's not enough evidence for the jury to find him guilty of the burglary itself.(Tr. Vol. II, pp. 193-94.) The prosecutor countered counsel's motion with the following argument:
The facts heard are in the light most favorable to the State. You can use reasonable inferences and (Inaudible) both direct and circumstantial evidence. We don't have - direct evidence would actually be seeing Mr. Hibdon in the residence when the burglary occurred. But the whole surrounding circumstances are such that a reasonable jury could certainly find the defendant committed the burglary both as the principal, or at the very least as an aider and abettor.
Within - it's actually 27 minutes after the - the activation is called into Springfield Police Department that Mr. Hibdon is in another part of town selling coins for $179 that were taken in this burglary. The timing is such that it's very clear Mr. Hibdon's either the principal or an aider and abettor or accomplice in this particular operation.(Tr. Vol. II, p. 195.)
The trial judge denied the motion without comment. (Tr. Vol. II, p. 195.) The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Without facts set forth in an opinion from an appellate court, this court independently reviews the record to determine whether the trial court's denial of the MJOA was objectively unreasonable.
Under Oregon law, first-degree burglary requires the unlawful entry or remaining in a dwelling with the intent to commit a crime. ORS § 164.225. Alternatively, a person may be convicted of first-degree burglary if it is found that he aided and abetted a burglary. ORS § 161.155(2)(b) (“Though not a direct participant in a crime, a person may still be found criminally liable for the conduct of another if [w]ith the intent to promote or facilitate the commission of the crime the person [a]ids or abets or agrees or attempts to aid or abet such other person in planning or committing the crime.” (simplified)). Hibdon argues that the trial court's denial of the MJOA was objectively unreasonable because the evidence against him required speculation to place him in Metzger's home (proving unlawful entry or remaining), and, if he was not personally in the home, to show that he aided or abetted the burglary of Metzger's home. In his view, the mere fact that he later sold coins that were taken from Metzger's home was insufficient to place him in the home. And because no evidence showed that the woman in the pawnshop was the same woman observed by Huerta, convicting him as an accomplice on the theory that he aided a woman who was in the home required too great a degree of conjecture.
Although it is correct that “mere suspicion or speculation cannot be the basis for creation of logical inferences,” it is also correct that “circumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction. United States v. Lewis, 787 F.2d 1318, 1323 (9th Cir. 1986); see also Juan H. v. Allen, 408 F.3d 1262, 1279 (9th Cir. 2005) (noting that “[s]peculation and conjecture cannot take the place of reasonable inferences and evidence”). Viewing all the evidence in the light most favorable to the state, the inferences drawn to connect Hibdon to the burglary are reasonable and nonspeculative. Hibdon's version of the evidence ignores the timing and location of the coin sale, which was less than 30 minutes after the alarm company notified police that the alarm activated and a 10-minute drive from Metzger's home, leaving a scant 20 minutes for Hibdon to take possession of stolen coins just burgled from someone else at another location. Although the scenario Hibdon testified to is not impossible, its possibility does not mean that it was unreasonable for the jury to find that Hibdon was pawning the coins that he himself had burgled. Indeed, it was reasonable for the jury to have made the more likely conclusion that Hibdon was the actual burglar given the short time frame between the burglary and the coin sale. And that reasonable inference is strengthened because the burglar and Hibdon were both associated with the presence of a woman.
Along with concluding that the trial court was not objectively unreasonable in denying Hibdon's MJOA on the basis that Hibdon was the principal burglar, the court also concludes that the trial court was not objectively unreasonable regarding the prosecutor's alternative theory of Hibdon's guilt as an accomplice to the burglary. Although nothing in the record suggests that the woman at the scene of the burglary was the woman who accompanied Hibdon to the pawn shop, a rational factfinder could infer that they were the same woman giving the timing. Indeed, a jury was entitled to make that reasonable inference given that they could question Hibdon's credibility when he chose to testify with a version of events positing that there were two women without disclosing the identity of the woman with him at the pawnshop or the woman whom he testified sold him the coins.
Taken together, the evidence described above allowed a reasonable jury to find that Hibdon was guilty of first-degree burglary. See State v. May, 257 Or.App. 375, rev. denied, 354 Or. 342 (2013) (evidence sufficient to support burglary conviction where the defendant, on same day as the burglary, was found in possession of items stolen in the burglary but claims he had agreed to store the stolen property for the real burglar and gave conflicting reports of his whereabouts when the burglary occurred). Accordingly, the state court's denial of Hibdon's motion for acquittal on the charge of first-degree burglary was not objectively unreasonable, and he is not entitled to habeas corpus relief on his insufficiency of the evidence claim alleged in Ground One.
B. Ground Two - Ineffective Assistance of Counsel
In Ground Two, Hibdon asserts that his trial counsel provided constitutionally ineffective assistance of counsel by failing to request and obtain a jury instruction limiting the jury's consideration of the evidence of prior bad acts-evidence of stolen goods discovered in the trunk of the car Hibdon was driving at the time of his arrest. Hibdon contends that there was a reasonable probability that the jury improperly found that Hibdon burgled the Metzger home based on a belief that, because he had once before committed a burglary, he therefore had a propensity to commit the charged burglary of the Metzger home.
The court uses the two-part test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 686-87 (1984), to determine whether a habeas petitioner received ineffective assistance of counsel. Knowles v Mizrayance, 556 U.S. 111, 122-23 (2009). First, a petitioner must show that his counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 686-87. Because of 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 698. Second, a petitioner must show that his counsel's performance prejudiced the defense. The appropriate test for prejudice is whether 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 that is enough to undermine confidence in the outcome of the trial. Id. at 696. “The likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. at 112 (citing Strickland, 466 U.S. at 693). 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 review.” Mirzayance, 556 U.S. at 122; see also Waidla v. Davis, 68 F.4th 575, 597 (9th Cir. 2023) (“Because 28 U.S.C. § 2254(d) applies, we may grant relief only if we can answer both questions in the affirmative ‘beyond any possibility for fairminded disagreement.'” (quoting Richter, 562 U.S. at 103)).
Before trial, Hibdon's attorney sought to exclude evidence of the items seized from the car trunk which had been stolen in unrelated burglaries, arguing that the items were not admissible for any proper purpose. (Tr. Vol. I, p. 9.) Counsel argued extensively, citing state and federal law, that Hibdon was not charged with any crime related to evidence that included knives and belt buckles from a prior burglary, which made it evidence of other crimes or incidents offered to prove that he committed the crimes charged. (Tr. Vol. I, pp. 9-13, 20-21.) The prosecutor countered that the evidence was being offered to show Hibdon's knowledge of the presence of items in the car and the stolen nature of those items. (Tr. Vol. I, p. 21.) The trial court denied the motion to exclude the evidence, agreeing with the state's position that the evidence was admissible to show Hibdon's knowledge that the items were stolen. (Tr. Vol. I, p. 25.)
Despite unsuccessfully moving to exclude the evidence, trial counsel did not request a limiting jury instruction under Oregon Evidence Code 105, which provides that, “[w]hen evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.” Hibdon contends here that once the trial court allowed the state to offer evidence for the limited purpose of proving knowledge that the property was stolen, it was critical to obtain a limiting instruction to avoid the unconstitutional inference that Hibdon had a propensity to commit burglaries.
Hibdon advanced the same claim in his state PCR proceeding. The PCR court denied relief, making the following findings and conclusions:
Pet[itioner] was convicted of burglarizing Metzger's house, stealing coins and a gun and selling the coins. When petit[ioner] was arrested some of the coins were in the car, as well as the gun. Some coins were recovered at a pawn shop and pet[itioner] and a woman were identified as the people who pawned the coins.
At trial, pet[itioner] argued that there was insufficient evidence he was inside the house.
This court finds that there was no prejudice from failure to request the instruction. Even if the jury had received the instruction, it would [have] been unlikely to affect the verdict. There was more than enough evidence for conviction without anything from the trunk or without anything but the gun from the backpack. Pet[itioner] pawned some of the stolen coins minutes after the burglary. He had other coins when stopped. At the time of the burglary, pet[itioner]'s co-[defendant] was outside the house in her car, just waiting. She never went inside, but the witness couldn't see if anyone came out to the car before co-[defendant] and pet[itioner] went to the nearby pawn shop. Clearly the jury believed pet[itioner] was the one who was in the house. Pet[itioner] fled when police attempted to stop him. His statements to police were contradictory. His testimony about two women and about how he got the coins didn't fit the timeline and was not believable. Once the jury believed he was the one inside [Metzger's house], the thefts and the ex-con [felon in possession] charges are proven. Without any other physical evidence, the [district attorney] would still have proven its case.(Resp. Exh. 123, pp. 2-3.)
Hibdon argues that the PCR court's decision is not entitled to deference because it contains three factual errors: (1) that coins from the Metzger burglary were found in Hibdon's car, when they were not; (2) that a gun was taken from Metzger's home and found in the car when Hibdon was arrested when, in fact, no gun was taken from the Metzger home; and (3) the woman seen in the van near the Metzger home at the time of the burglary was described as Hibdon's “co-defendant,” although the woman was never identified or charged. Based on those factual errors, Hibdon contends that the PCR court's decision was “based on an unreasonable determination of the facts in light of the evidence presented” in the PCR proceeding such that no deference is due.
The court agrees that the PCR court's decision is not entitled to deference. Under 28 U.S.C. § 2254(d)(2), this court must afford deference to the PCR court's determination unless the PCR court's adjudication of the claim “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.” “[A] fact-finding process may be fatally undermined ‘where the state courts plainly misapprehend or misstate the record in making their findings, and the misapprehension goes to a material factual issue that is central to petitioner's claim.'” Jones v. Ryan, 52 F.4th 1104, 1121 (9th Cir. 2022) (quoting Maddux, 366 F.3d at 1001), cert. granted 2023 WL 8605741 (Dec. 13, 2023).
Here, there is no question but that the PCR court “plainly misapprehend[ed]” the record in making the three factual determinations noted by Hibdon. Moreover, the PCR court specifically relied on those misapprehended facts in determining that Hibdon was not prejudiced by his trial counsel's failure to request the limiting instruction, which was central to Hibdon's claim of ineffective assistance. Hibdon has thus satisfied the requirements of § 2254(d)(2).
The fact that the PCR court's decision was based on an unreasonable determination of the facts and so not entitled to deference under § 2254(d)(2) does not, however, necessarily entitle Hibdon to habeas relief in this court. It instead clears the way for this court to review the claim de novo. See Ybarra v. Gittere, 69 F.4th 1077, 1089 (9th Cir. 2023) (“If the state court's determination of the facts was unreasonable, we must then review [petitioner's] claim de novo before we may grant habeas relief.” (citing Maxwell v. Roe, 628 F.3d 486, 494-95 (9th Cir. 2010))). Even with de novo review, this court must heed the Supreme Court's caution that a “federal order to retry or release a state prisoner overrides the State's sovereign power to enforce ‘societal norms through criminal law,'” Shinn v. Ramirez, 596 U.S. 366, 376 (2022) (quoting Calderon v. Thompson, 523 U.S. 538, 556 (1998)), and that a state trial is not merely a “‘tryout on the road' to federal habeas relief,” which would “detract from the perception of the trial of a criminal case in state court as a decisive and portentous event.” Id. at 377 (quoting Wainwright v. Sykes, 433 U.S. 72, 90 (1977)).
With that said, Hibdon must establish a reasonable probability that, but for counsel's failure to request a jury instruction limiting consideration of the uncharged evidence of stolen goods found in the trunk, the result of the proceeding would have been different. That requires assessing the degree to which the evidence of the stolen goods discovered in the trunk of the car, which could have been considered as propensity evidence by the jury, affected the jury's determination of Hibdon's guilt for the Metzger burglary given the other evidence that was permissibly considered by it. As to that consideration, because Hibdon views the evidence as constitutionally insufficient to support a conviction for burgling Metzger's home, the chance of the jury considering the stolen goods as propensity evidence necessarily is prejudicial. That view of the evidence, however, is incorrect, as the court has already determined (see discussion of Ground One).
Hibdon's ineffective assistance of counsel claim (Ground One) generally applies to all the crimes for which he was convicted: two counts of first-degree theft; one count of FIP; and one count of first-degree burglary. His argument in his brief supporting habeas relief appears to narrow the claim to the first-degree burglary conviction. In any event, Hibdon provides the court with no discussion of the evidence presented with respect to the theft and FIP convictions. Consequently, the court will not comb the record and embark on that endeavor unassisted and, therefore, only considers whether there is a reasonable probability that the absence of a limiting instruction affected the jury's finding of guilt as to the first-degree burglary charge.
To begin with, the state presented considerable evidence at trial connecting Hibdon to the Metzger burglary. There was undisputed evidence that Metzger's burglar alarm sounded at 2:12 p.m., and that, at about the same time, a witness saw a woman waiting in a van around the corner from Metzger's home in a manner that looked suspicious. (Tr. Vol. I, pp. 76-88, 97, Vol. II, p. 166.) Then, about 20 minutes later, Hibdon and an unidentified woman sold coins that were taken from Metzger's home at a pawn shop, whose owner identified Hibdon as the seller. (Tr. Vol. II, pp. 168-76.) In his defense, Hibdon admitted that he sold the coins at the pawn shop but testified that he never knew that they were stolen. (Tr. Vol. II, pp. 205-07.) He instead offered a convoluted and incomplete account of how he came to possess and sell the coins so quickly after the burglary occurred-he testified that he had sought payment for a debt, and his friend (whom he refused to identify) gave him the stolen coins and that he then took them to the pawn shop to sell. (Tr. Vol. II, pp. 206, 219, 221.)
Not only was Hibdon's account of obtaining and selling the coins within the roughly 20-minutes between the burglary and his sale of the coins improbable, the jury had other reason to find Hibdon not to be a credible witness. Hibdon testified to having told several lies to police during their investigation of the burglary; for example, he testified that he first lied to police, telling them the car did not belong to him, when in fact he did own the car. (Tr. Vol. II, pp. 218-19.) He also testified that he lied to police when he gave them the name of the person he allegedly received the coins from before he sold them. (Tr. Vol. II, p. 206-07.) In addition, in front of the jury, Hibdon repeatedly refused to comply with court orders that he truthfully answer questions about the identities of the individuals involved in his account of what had occurred. (Tr. Vol. II, pp. 213, 220-21.) Although Hibdon denied his involvement in the Metzger burglary, the jury had ample reasons to find he was not credible and to reject his testimony.
Moreover, because the jury found Hibdon not guilty of stealing the Pappel handgun, it is reasonable to infer that the jury did not use the trunk evidence to convict Hibdon based on a belief that Hibdon had a propensity to commit crimes. To reach a guilty verdict on the charge would have required the jury to find that Hibdon received Pappel's gun “knowing or believing that the property was the subject of theft.” (Tr. Vol. II, pp. 236-37.) When the jury acquitted Hibdon of the Pappel handgun-theft charge, the jury necessarily concluded that there was insufficient evidence that Hibdon knew that Pappel's gun, which was found in his vehicle, was stolen. That conclusion undermines Hibdon's argument that, had the OEC 105 limiting instruction been given, there was a reasonable probability that the jury would also have acquitted Hibdon of the Metzger burglary.
Under those circumstances, Hibdon has not established a reasonable probability that the outcome of his trial would have been different had trial counsel requested the OEC 105 limiting instruction. See Albrecht v. Horn, 485 F.3d 103, 127-29 (3d Cir. 2007) (concluding that “ample if not overwhelming evidence of [the petitioner's] guilt” supported the conclusion that he suffered no prejudice as a result of counsel's failure to request a limiting instruction); Miller v. Vare, Case No. 3:05-cv-00703-ECR-RAM, 2009 WL 290971, at *5 (D. Nev. Feb. 2, 2009) (the pertinent inquiry under Strickland is whether there is a reasonable probability that the outcome of the trial would have been different if counsel had requested the limiting instruction, and given the strong evidence of the petitioner's guilt, the court was not persuaded there was a reasonable probability petitioner would have been acquitted). As a result, Hibdon is not entitled to relief on the ineffective assistance of counsel claim alleged in Ground Two.
Hibdon's failure to make the requisite showing of “prejudice” renders it unnecessary for the court to decide the “deficient performance” prong of Strickland. See Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.”); Williams v. Calderon, 52 F.3d 1465, 1470 n.3 (9th Cir. 1995). That said, respondent only addresses the prejudice prong of Hibdon's ineffective assistance of counsel claim and not the deficient performance prong. Understandably so-it is difficult for the court to see how trial counsel, once he lost on the motion to exclude the uncharged evidence, was not deficient in seeking an instruction limiting consideration of the evidence as propensity to commit crimes.
C. Ground Four - Actual Innocence
Finally, Hibdon claims he is actually innocent of the charges for which he stands convicted. Hibdon does not address this claim in his briefing before the court. Without that argument, Hibdon has not sustained his burden to demonstrate why he is entitled to relief on an actual innocence claim. See Lambert v. Blodgett, 393 F.3d 943, 970 n.16 (9th Cir. 2004). In any event, the court has reviewed this claim and is satisfied that Hibdon is not entitled to habeas corpus relief.
As a threshold matter, the United States Supreme Court has never recognized that a freestanding claim of actual innocence is cognizable on federal habeas review. Laun v. Orange County Sheriff, Case No. CV 18-2226-JVS(KES), 2023 WL 4091304, at *7 (C.D. Cal. May 11, 2023). To the contrary, the Supreme Court expressly left the question open. See McQuiggen v. Perkins, 569 U.S. 383, 392 (2013) (“We have not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence.”). In any event, in Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014), the Ninth Circuit, while noting the uncertainty of a viable freestanding claim of actual innocence in the non-capital context, set forth the standards which would govern such claims. “[A]t a minimum, the petitioner must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent.” Jones, 763 F.3d at 1246. This is “a stronger showing than insufficiency of the evidence to convict.” Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (en banc).
Hibdon is far from providing the evidence or argument necessary to affirmatively prove that he is probably innocent of his convictions. Accordingly, he is not entitled to habeas corpus relief on the actual innocence claim alleged in Ground Four.
CONCLUSION
For the above reasons, Hibdon's Amended Petition for Writ of Habeas Corpus (ECF No. 19) should be DENIED and a judgment of dismissal should be entered. Because Hibdon has not made a substantial showing of the denial of a constitutional right, a certificate of appealability should be DENIED. See 28 U.S.C. § 2253(c)(2).
SCHEDULING ORDER
The Findings and Recommendation will be referred to a District Judge. Objections, if any, are due within fourteen 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 fourteen days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.