Opinion
Civil 2:16-cv-00247-YY
12-16-2021
DANIEL L. JENKINS, Petitioner, v. JOHN MYRICK, Superintendent, Two Rivers Correctional Institution, Respondent.
FINDINGS AND RECOMMENDATION
Youlee Yim You, United States Magistrate Judge.
FINDINGS
Petitioner, an adult in custody at the Two Rivers Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Amended Petition for Writ of Habeas Corpus (ECF 27) should be DENIED.
I. Background
Petitioner challenges his 2005 Multnomah County conviction for soliciting aggravated murder, which occurred upon a retrial after his original conviction was reversed by the Oregon appellate courts. 1
A. Petitioner's First Trial and Appeal
The Oregon Court of Appeals summarized the facts adduced at Petitioner's first trial as follows:
From 1996 to 1998, [petitioner] had a trading account at Bidwell and Company (the company), a discount stock brokerage firm. During 1998, [petitioner]'s investments through the company lost nearly $300,000 in value. Upset about his losses, [petitioner] complained to the company that it should have advised him against making certain investments. Company president H. Gerald Bidwell (Bidwell) wrote to [petitioner], explaining that he had reviewed the transactions and concluded that the company had acted appropriately. [Petitioner] then began to focus his anger on Bidwell. On September 8, 1998, [petitioner] called Warren, the ex-husband of Bidwell's current wife. He identified himself as “John” and asked Warren if he would be interested in participating in a scheme to “whack” Bidwell. Warren inferred that [petitioner] was asking him to assist [petitioner] in a murder-for-hire. Warren declined and later told Bidwell and the police about the call. An investigation ensued and, among other things, the police learned that [petitioner] had made numerous prank calls to Bidwell's home, sent Bidwell three e-mails with ominous messages predicting Bidwell's death, and stolen court records pertaining to the dissolution of Bidwell's marriage to his former wife. [Petitioner] was arrested on January 9, 1999, and charged with solicitation to commit murder, theft, forgery, tampering with public records, and menacing. The indictment identified Bidwell as the victim for the purpose of the solicitation and menacing charges.
The state produced evidence that, while in jail awaiting trial, [petitioner] told at least two people that he planned to commit several murders in the future. First, in May 1999, he told another inmate, Rohrscheib, that he intended to kill Warren and his children after he was released from jail because Warren had gone to the police. Later, [petitioner] told Rohrscheib that he no longer wanted to hurt Warren's children but that he still wanted to kill Warren; in that conversation, he also stated that he wanted to kill Bidwell. Thereafter, on June 8, 1999, a psychologist, Dr. Colby, interviewed [petitioner]. [Petitioner]'s attorney had retained Colby to evaluate [petitioner] for the purpose of exploring possible defenses. During the interview, [petitioner] said that he wanted his statements to Colby to be privileged, and [petitioner] told Colby not to make a written report of their conversation. [Petitioner] then told Colby that he intended to kill Bidwell, his wife, and their children.
Colby told [petitioner]'s attorney about the threats. She, in turn, reported them to the trial court in the presence of the prosecutor. The state then dismissed the charge2
against [petitioner] for solicitation to commit murder and, two days later, in a second indictment, charged him with solicitation to commit aggravated murder. The second indictment identified Bidwell as [petitioner]'s intended victim. The remaining charges in the first indictment were consolidated for trial with the solicitation to commit aggravated murder charge in the second indictment. The state subpoenaed Colby as a witness at trial. [Petitioner] moved to quash the subpoena, arguing that Colby was his attorney's representative and that both [Oregon Evidence Code (OEC)] 503(2)(a), the attorney-client privilege rule, and OEC 504, the psychotherapist-patient privilege rule, barred admission of [petitioner]'s statements to Colby. The state responded that [petitioner]'s threats fell within OEC 503(4)(a), the future crimes exception to the attorney-client privilege, as well as ORS 419B.040, the child abuse exception to the psychotherapist-patient privilege. The court ruled that both exceptions applied and denied [petitioner]'s motion to quash.
At trial, the state called Rohrscheib and Colby as witnesses. As described above, Rohrscheib testified regarding [petitioner]'s statements about his intention to kill Warren, Warren's children, and Bidwell. Rohrscheib also testified that, in return for his cooperation, he had received a five-day reduction in the six-month sentence that he had been serving. Colby testified that, during his interview with [petitioner], [petitioner] told him that he intended to kill Bidwell and his wife. According to Colby, [petitioner] first stated that he was unsure about taking the lives of Bidwell's children but later stated, “Yes, I think I will kill the Bidwell children in a way that will make Mr. Bidwell suffer for what he has done.” The state also adduced other evidence of [petitioner]'s preoccupation with Bidwell, including the prank calls, the e-mails, and the stolen court records. In his defense, [petitioner] conceded that he intended to harass Bidwell, but he contended that he was never serious about killing him.State v. Jenkins, 190 Or.App. 542, 544-46 (2003), adhered to as modified on reconsideration, 191 Or.App. 617 (2004) (footnotes omitted). The jury found Petitioner guilty of solicitation to commit aggravated murder.
In a separate judgment, petitioner was also convicted of first-degree theft, first-degree forgery, and tampering with public records. Jenkins, 190 Or.App. at 544 n.1. At the close of the state's case, the trial judge granted Petitioner's motion for judgment of acquittal on a charge of menacing. Id. at 546, n.3.
Petitioner appealed, arguing that the admission of his statements to Dr. Colby violated the 3 attorney-client privilege. Id. at 544. The state conceded, and the Oregon Court of Appeals agreed, that the statements were covered by the attorney-client privilege under O.E.C. 503(2)(a).
The state argued, however, that the future-crimes exception under O.E.C. 503(4)(a) applied.
Under O.E.C. 503(4)(a), there is no privilege if “the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.”
The Oregon Court of Appeals disagreed, holding:
There is no basis in the record to infer that [Petitioner's] request for confidentiality constituted a request for services to aid or enable [Petitioner] to commit crimes. To the contrary, the only reasonable inference is that [Petitioner] requested Colby's silence as a condition of disclosing his plan. Furthermore, there is no basis to infer that [Petitioner] sought to buttress his courage by taking with Colby[.]Id. at 549. The Court of Appeals further held that admission of the statements was not harmless, and reversed and remanded the case for retrial. Id. at 549-50. The state sought review, but the Oregon Supreme Court denied review. State v. Jenkins, 337 Or. 160 (2004).
While the appeal from the first trial was pending, the Oregon legislature enacted a law that created a new exception to the attorney-client, psychotherapist-patient, and regulated social worker-client privileges. The new law provided that communications were admissible if:
(a) In the professional judgment of the person receiving the communications, the communications reveal that the declarant has a clear and serious intent at the time the communications are made to subsequently commit a crime involving physical injury, a threat to the physical safety of any person, sexual abuse, or death;
(b) In the professional judgment of the person receiving the communications, the declarant poses a danger of committing the crime; and
(c) The person receiving the communications makes a report to another person based on the communications.4 Former O.E.C. 504-5(a)(2002). The law became effective January 1, 2002, but applied “to all communications, whether made before, on or after the effective date” in any trials “commenced on or after the effective date.” 2001 Or. Laws ch. 640, § 3. Petitioner's case was, at least in part, an impetus for the new law. In fact, the prosecutors from Petitioner's first trial testified before the legislature in support of the law.
The law has since been amended, but those amendments have no bearing on the issues of this case
B. Petitioner's Trial on Remand
On remand, the issue of whether Petitioner's statements to Colby were admissible under the new law was extensively litigated to the trial court. Petitioner moved to quash subpoenas he anticipated would be issued to Colby, among others, and to exclude any testimony that would be based on or derived from Colby's communications with him. Petitioner argued, inter alia, that his attorney violated his constitutional right to counsel by disclosing his statements to the court and prosecutors, and that excluding Colby's testimony was necessary to place Petitioner in the same position he would have been in had that violation not occurred. Pet. Ex. B, at 1, ECF 61-2; Tr. 674-701. Petitioner also argued that applying O.E.C. 504-5 to Colby's testimony would violate the state and federal prohibitions on ex post facto laws, that the requirements of O.E.C. 504-5 were not met in any event because Colby did not “report” the communication, and that, even if O.E.C. 504-5 could apply, the amount of time that had elapsed since the communication 5 eliminated any danger of Petitioner committing a crime, rendering the provision inapplicable. Pet. Ex. B, at 10-11, ECF 61-2. The trial judge denied the motion in a written order outlining her reasoning why Colby's testimony was admissible under O.E.C. 504-5. Pet. Ex. D, ECF 61-4.
The state initially subpoenaed both Colby and Petitioner's first trial attorney Lynne Dickison to be state's witnesses to Petitioner's statements. Tr. 44-45, 48. Subsequently, however, the state abandoned its attempt to call Dickison. Tr. 43-44, 48.
At trial, Colby again testified about Petitioner's statements to him. Tr. 2870-75, 2923-25. The remaining evidence presented by the prosecution essentially mirrored that presented at the first trial as described by the Oregon Court of Appeals. The state's witness Tiger Warren, however, had died in a plane crash between the first and second trials. Tr. 2423-25. Accordingly, Warren's testimony from the first trial was presented to the jury via audiotape and transcript. Also, unlike the first trial, Petitioner testified at the second trial. Tr. 3598-3640. Petitioner admitted to gathering information about Bidwell, admitted making telephone calls to the Bidwell residence and sending email messages to Bidwell, and admitted speaking to Warren once as part of his attempt to gather information, but denied raising the topic of killing Bidwell. Tr. 3607-3640.
In the first trial, Petitioner testified only during the sentencing phase.
The jury again found Petitioner guilty. Resp. Ex. 159, ECF 18. Following a penalty phase trial, the jury found that seven different enhancement facts were present, that petitioner was a dangerous offender, and that he had several prior convictions including one that was not part of the same criminal episode. Resp. Exs. 160-62, ECF 18. The trial court sentenced Petitioner to an indeterminate term of imprisonment of up to 30 years, with a minimum, upward durational departure term of 240 months. Resp. Ex. 101, at 3-4, ECF 16.
Petitioner filed a direct appeal assigning error to, among other things, the admission of 6 his statements to Colby. Resp. Ex. 122, at 17-24, ECF 16. He renewed his arguments that the testimony should have been excluded in order to place him in the same position he would have been in if his attorney had not violated his constitutional rights by disclosing the statements and that the application of the new law to his case violated state and federal prohibitions against ex post facto laws. Id. at 20-24. This time, the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. Jenkins, 227 Or.App. 506, rev. denied, 346 Or. 362 (2009).
C. State Post-Conviction Relief Proceedings
Petitioner then sought state post-conviction relief (“PCR”). Appearing pro se, he raised numerous claims of ineffective assistance against seven different attorneys who represented him throughout the course of both trials and appeals. Resp. Ex. 130, ECF 16. The state moved for summary judgment as to a large number of Petitioner's claims on three bases, arguing: (1) his claims relating to the first trial were successive of his first PCR case; (2) his claims of trial court error had been litigated on appeal; and (3) several of his claims were incorrect as a matter of law. Resp. Ex. 136, ECF 17. The PCR trial court denied 29 of Petitioner's claims for the reasons argued by the state, leaving six claims of ineffective assistance of appellate counsel. Resp. Exs. 139 & 148, at 7-10, ECF 18. Following an evidentiary hearing, the PCR trial court denied relief on the remaining claims. Resp. Ex. 169, ECF 18.
Petitioner appealed. Appearing pro se on appeal, Petitioner initially filed an oversized brief that was approximately 78 pages long, setting forth 15 assignments of error. Pet. Ex. B, ECF 87-2. Petitioner sought approval from the Oregon Court of Appeals to exceed the permitted page-limit, but the Court of Appeals denied the request, ordered the brief stricken from the 7 record, and ordered Petitioner to file an opening brief in compliance with Oregon appellate rules. Pet. Ex. C, ECF 87-3. At first, Petitioner challenged this order, but ultimately filed a brief that was accepted and which set forth 12 assignments of error. Resp. Ex. 171, ECF 18. The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Jenkins v. Franke, 266 Or.App. 229 (2014), rev. denied, 358 Or. 70 (2015).
II. Federal Habeas Petition
Petitioner filed a pro se Petition for Writ of Habeas Corpus in this court alleging sixteen grounds for relief. Grounds One through Twelve, Fourteen, and Fifteen allege claims of ineffective assistance of trial and appellate counsel, and Ground Thirteen alleges a claim of trial court error. ECF 1. The Court appointed counsel to represent Petitioner who then filed an
Amended Petition, also alleging fifteen grounds for relief. The Amended Petition dropped two claims of ineffective assistance and added one claim, and “incorporated by reference” all of the remaining claims and supporting facts alleged in the original pro se Petition with the addition of various clarifying language. ECF 27. For ease of reference and given the length, extent, and at times confusing nature of the ensuing legal briefs, the claims alleged in the Amended Petition are set forth in summary as follows:
The Amended Petition also states in a footnote, “We anticipate that, when Petitioner file [sic] his substantive brief, which under the amended scheduling order, will be done prior to the State responding, his claims will likely be further winnowed.”
Ground One: Petitioner's attorneys in his first trial rendered ineffective assistance of counsel in violation of Petitioner's Sixth Amendment rights to be free from conflict by disclosing confidential communications, which had a substantive and prejudicial effect on the second trial.8
Ground Two: Appellate counsel rendered ineffective assistance on appeal from the second trial by failing to assert the claim that the Petitioner's constitutional rights were violated when the attorney disclosed Petitioner's confidential communications prior to the first trial.
Ground Three: Trial counsel rendered ineffective assistance by failing to sufficiently argue in pretrial hearings that the disclosure of Petitioner's confidential communications prior to the first trial violated his constitutional rights.
Ground Four: Trial counsel rendered ineffective assistance by failing to sufficiently argue in pretrial hearings that the amended O.E.C. 504-5 provision could not be applied retroactively.
Ground Five: Attorney Dickison rendered ineffective assistance of counsel when she testified at the pretrial hearing before the second trial, because in so doing she violated Petitioner's rights against compulsory self-incrimination under the Fifth Amendment and his right to a fair trial under the Due Process Clause to the Fourteenth Amendment.
Ground Six: At and after sentencing following the second trial, trial counsel rendered ineffective assistance when he failed to object on the basis that the imposition of a sentence longer than had been imposed after the initial trial was vindictive and violated the Fourteenth Amendment.
Ground Seven: Trial counsel rendered ineffective assistance at the second trial by failing to conduct an adequate investigation pertaining to the disclosure of Petitioner's prison medical records, and appellate counsel rendered ineffective assistance by failing to assign error to the disclosure of Petitioner's prison medical records.
Ground Eight: Trial counsel rendered ineffective assistance at the second trial by failing to object or otherwise make a record when the jury, during the penalty phase deliberations, heard extrinsic and prejudicial testimony from the first trial.
Ground Nine: Appellate counsel rendered ineffective assistance on appeal from the second trial by failing to brief the issue of the trial court's denial of Petitioner's right to testify fully in his own defense.
Ground Ten: Appellate counsel rendered ineffective assistance on appeal from the second trial by failing to brief the issue of the trial court's error in denying a motion for mistrial following the discovery that during deliberations the jury listened to extrinsic taped testimony from the first trial.9
Ground Eleven: Appellate counsel rendered ineffective assistance on appeal from the second trial by failing to brief the issue that a harsher, vindictive sentence was imposed.
Ground Twelve: Appellate counsel rendered ineffective assistance on appeal from the second trial by failing to brief the issue that the enactment of O.E.C. 504-5 was an unlawful Bill of Attainder.
Ground Thirteen: The trial court violated Petitioner's rights under the Ex Post Facto Clause by allowing the retroactive application of O.E.C. 504-5 to admit evidence of Petitioner's 1999 communications to Colby.
Ground Fourteen: Appellate counsel rendered ineffective assistance on appeal from the second trial by failing to federalize the Ex Post Facto claim presented in Ground Thirteen.
Ground Fifteen: Trial counsel rendered ineffective assistance at the first trial by failing to move the trial court to obtain a transcript of the disclosure hearing, and on retrial, upon production of the transcript, trial counsel failed to move the court for suppression of Colby's testimony and for dismissal of the indictment based upon prior judicial misconduct and prior and ongoing prosecutorial misconduct.
In his Brief in Support, Petitioner did not specifically identify which particular grounds for relief were being addressed. Upon examining the grounds alleged in the original Petition (as incorporated and revised in the Amended Petition) and Petitioner's Brief, however, it appears that Petitioner presented argument on the following three claims:
(1) the claim alleged in Ground Thirteen that the trial court erred in applying O.E.C. 504-5 and allowing Colby's testimony;
(2) the claim alleged in Ground Ten that appellate counsel provided ineffective assistance in failing to assign error to the trial court's denial of a mistrial following the discovery that the jury was provided and listened to a tape recording from the earlier trial containing evidence that was not presented at the second trial; and
(3) the claim alleged in Ground Eleven that appellate counsel was ineffective in failing to appeal Petitioner's second sentence as vindictive.10
With respect to his claim of trial court error alleged in Ground Thirteen, Petitioner argued that the admission of his statements to Colby violated his constitutional rights in five different respects:
(1) the disclosure of his statements violated his Sixth Amendment right to counsel, requiring the exclusion of the fruits of that violation;
(2) Colby's testimony violated his Fifth Amendment right against self-incrimination;
(3) the use of O.E.C. 504-5 to allow Colby's testimony violated the Ex Post Facto Clause;
(4) the enactment of O.E.C. 504-5 was an unlawful bill of attainder; and
(5) the admission of Colby's statements violated due process, because the state did not meet the requirements of O.E.C. 504-5.
At no point in his argument on these five issues does Petitioner address ineffective assistance of counsel.
In response, Respondent contends that, of those five arguments, only the one pertaining to the Ex Post Facto Clause is actually alleged as a trial court error in Ground Thirteen of the Amended Petition and, as such, the remaining four claims of trial court error are not properly before this Court. Respondent also argues that, in any event, those claims are procedurally defaulted. As to the three claims specifically alleged in Grounds Ten, Eleven, and Thirteen, Respondent contends they were denied in state court decisions that are entitled to deference. As to the remaining claims of ineffective assistance of trial and appellate counsel alleged in the Amended Petition but not addressed in the Brief in Support, Respondent argues Petitioner failed to satisfy his burden to establish that habeas corpus relief should be granted. 11
In his Reply, Petitioner asserts it was in fact his intention to provide argument regarding grounds for relief other than the three identified above. Petitioner submits the following chart, which he contends summarizes the claims addressed in his Brief in Support:
Constitutional Provision at Issue
Pro Se Ground
Amend. Pet. Ground
For IAC claims. name of Attorney at Issue
Brief in Support Argument
6th Amendment (also 5th and 14th Amends - because inadequate remedy)
1
1
Dickison, Vogt (first trial)
I A, B, F& G (1) & (2)
6th and 14th Amendments
2
2
Vainer (direct appeal)
I A
6th and 14th Amendments
16
15
Hamalian. Barton
I E
5th and 6th Amendments
5
5
Dickison (retrial)
I A; B & G(2)
Bill of Attainder
12
12
Varner (direct appeal)
I D & G(4)
Ex Post Facto
13, 14
13, 14
Varner. Hamalian. Barton
IC & G(3)
14th Amendment (mistrial on extrinsic evid)
8, 10
8, 10
Hamalian. Barton Vainer (direct appeal)
II
14th Amendment (vindictive sentencing)
11
11
Hamalian. Barton Vainer (direct appeal)
III
As illustrated in this chart, plaintiff contends that the ineffective assistance of counsel claims alleged in Grounds One, Two, Five, Twelve, Fourteen, and Fifteen are all addressed in the portion of his Brief in Support that pertains to the claim of trial court error alleged in Ground Thirteen. However, that particular section of the Brief in Support does not even mention, let alone address how counsel was ineffective in any respect. Petitioner acknowledges the lack of analysis under the ineffective assistance standards, but submits that the Brief in Support nonetheless encompasses the ineffective assistance claims alleged in Grounds One, Two, Five, Eight, Ten, Eleven, Twelve, Fourteen, and Fifteen of the Amended Petition, noting that many of the claims overlap. Petitioner concedes “[i]t is true that [his] Brief in Support does not repeat the legal standards surrounding ineffectiveness claims over and over in the face of each instance of a constitutional challenge relating to the violation at the heart of this case, ” but instead the section 12 of the Brief addressing these claims “endeavored to assemble all of the constitutional subclaims . . . some of which were exhausted through the lens of ineffective assistance of subsequent counsel, without excessive repetition of the legal principles.”
As Petitioner observes in his Reply, “[t]his is assuredly a complex case.” The underlying record, the plethora of briefing before this Court, and the seemingly shifting arguments amply demonstrate and, perhaps unnecessarily, amplify the complexity. Nevertheless, the Court addresses individually each of the claims that Petitioner asserts he is pursuing in his Reply and subsequent briefing.
While Petitioner does not expressly state that he is not providing argument on the five remaining claims (Grounds Three, Four, Six, Seven, and Nine), Petitioner nonetheless does not present argument on those claims. Pet. Reply 17, ECF 87.
III. Sufficiency of the Pleading-Claims Not Alleged in Amended Petition
Respondent asserts that four of the claims argued in Petitioner's Brief in Support are not contained in the Amended Petition and therefore not properly before this Court. A habeas petition must “specify all grounds for relief which are available to the petitioner” and must “state the facts supporting each ground.” Rule 2(c), Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254. “A court need not consider a claim that is not contained within the operative habeas corpus petition.” Harwood v. Hall, Case No. 6:15-cv-00970-HZ, 2017 WL 37096068, at *2 (D. Or. Aug. 28, 2017) (citing Greene v. Henry, 302 F.3d 1067, 1070 n.3 (9th Cir. 2002).
As noted, in his Brief in Support, Petitioner appears to argue claims that differ from those presented in the Amended Petition. Specifically, Petitioner argues that the admission of his statements to Colby violated his constitutional rights in four respects not alleged in the Amended 13 Petition: (1) the disclosure of his statements violated his Sixth Amendment right to counsel, requiring the exclusion of the fruits of that violation; (2) Colby's testimony violated Petitioner's Fifth Amendment right against self-incrimination; (3) the enactment of O.E.C. 504-5 was an unlawful bill of attainder; and (4) the admission of Colby's statements violated due process, because the state did not meet the requirements of O.E.C. 504-5. In his Reply, Petitioner refined his argument, explaining that he intended to address these claims in the context of ineffective assistance of trial counsel, rather than claims of trial court error. Accordingly, to the extent Petitioner's Brief in Support may be construed as arguing claims of trial court error, habeas corpus relief may not be granted because such claims are not properly before the Court. As noted above, however, the Court addresses these claims in the context in which they were originally pleaded, i.e., ineffective assistance of counsel. Because, as Petitioner notes, several of the claims overlap and due to the difficulty of ascertaining which particular grounds for relief the parties are addressing in the myriad briefs, except where the parties specifically identify a particular ground for relief in the context of an argument, the Court addresses the arguments by category. 14
Despite this “clarification, ” however, the Court notes that, in the same Reply brief in which Petitioner affirmatively states that the apparent trial court errors addressed in his Brief in Support were actually argued in the context of ineffective assistance of counsel, Petitioner proceeds to again discuss the claims in the context of trial court error. For example, at page 12 of his Reply, Petitioner states, “[i]n this Court, [Petitioner] raises a claim that his right to not be compelled to incriminate himself under the Fifth Amendment, as applied to the states through the Fourteenth Amendment, was violated by the disclosure of his privileged communication. Amended Petition Ground Five.” As noted above, however, Ground Five of the Amended Petition alleges Attorney Dickison rendered ineffective assistance of counsel when she testified at the pretrial hearing before the second trial, because in doing so she violated Petitioner's rights against compulsory self-incrimination under the Fifth Amendment.
As noted, Respondent contends that several of Petitioner's claims were procedurally defaulted. Because it is apparent that petitioner is not entitled to relief on the merits of his claims, the Court does not address procedural default. See 28 U.S.C. § 2254(b) (2) (“[a]n application for writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State”); Runningeagle v. Ryan, 686 F.3d 758, 778 n.10 (9th Cir. 2012) (exercising discretion afforded under § 2254(b) (2) to decline to address procedural default issue where relief denied on the merits), cert. denied, 569 U.S. 1026 (2013).
A. Legal Standards
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), habeas corpus relief “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. § 2254(d).
A state court decision is “contrary to” established federal law if it fails to apply the correct Supreme Court authority, or if it reaches a different result in a case with facts “materially indistinguishable” from relevant Supreme Court precedent. Brown v. Payton, 544 U.S. 133, 141 (2005); Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision is an “unreasonable application” of clearly established federal law if the state court identifies the correct legal principle but applies it in an “objectively unreasonable” manner. Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam); Williams, 529 U.S. at 407-08, 413; 15 see also Early v. Packer, 537 U.S. 3, 11 (2002) (per curiam) (state court decisions that are not “contrary to” Supreme Court law may be set aside only “if they are not merely erroneous, but ‘an unreasonable application' of clearly established federal law, or are based on ‘an unreasonable determination of the facts'”).
It is clearly established federal law that a claim of ineffective assistance of counsel requires a habeas petitioner to prove that counsel's performance fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1987). Failure to satisfy either prong of this test obviates the need to consider the other. Id. at 687.
The Strickland standard also applies to claims of ineffective assistance of appellate counsel based on the failure to raise a particular claim on appeal. See Smith v. Robbins, 528 U.S. 259, 285 (2000). A habeas petitioner must show that, but for appellate counsel's objectively unreasonable failure to raise the omitted claim, there is a reasonable probability that the petitioner would have prevailed on appeal. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. In the absence of such a showing, neither Strickland prong is satisfied. See Pollard v. White, 119 F.3d 1430, 1435-37 (9th Cir. 1997); Miller v. Keeney, 882 F.2d 1428, 1434-35 (9th Cir. 1989).
This Court's inquiry under Strickland is highly deferential. 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). 16
B. Sixth Amendment Violation
Petitioner contends that his attorneys in his first trial rendered ineffective assistance of counsel in violation of his right to be free from conflict by disclosing confidential communications, which had a substantive and prejudicial effect on the second trial. He also alleges that trial counsel rendered ineffective assistance by failing to argue in pretrial hearings that the disclosure of his confidential communications prior to the first trial violated his constitutional rights, and that appellate counsel rendered ineffective assistance of counsel on appeal from the second trial by failing to assert that his constitutional rights were violated when his attorney disclosed his confidential communications prior to the first the trial. Because each of these three claims relies upon the underlying claim that Petitioner's Sixth Amendment right to conflict-free counsel was violated, the Court considers them together.
“The Supreme Court has long held attorneys to stringent standards of loyalty and fairness with respect to their clients.” Damron v. Herzog, 67 F.3d 211, 214 (9th Cir. 1995); see also Strickland, 466 U.S. at 688 (“a duty of loyalty” is an essential component of reasonable performance by criminal defense counsel). However, “[a]n attorney's duty of confidentiality, which totally covers the client's admission of guilt, does not extend to a client's announced plans to engage in future criminal conduct.” Nix v. Whiteside, 475 U.S. 157, 174 (1986). Moreover, “[s]tanding alone, the attorney-client privilege is merely a rule of evidence; it has not yet been held a constitutional right.” Clutchette v. Rushen, 770 F.2d 1469, 1471 (9th Cir. 1985) (citing Maness v. Meyers, 419 U.S. 449, 466 n.1 (1975); Beckler v. Superior Court, 568 F.2d 661, 662 (9th Cir. 1978)). “The scope of the privilege is a function of state law, not federal law, ” and a violation of the privilege “implicates the Sixth Amendment right to counsel only under certain 17 circumstances-specifically, when the government interferes with the relationship between a criminal defendant and his attorney.” Partington v. Gedan, 961 F.2d 852, 863 (9th Cir. 1992); see also Clutchette, 770 F.2d at 1471 (“In some situations . . . government interference with the confidential relationship between a defendant and his counsel may implicate Sixth Amendment rights.”).
In McClure v. Thompson, 323 F.3d 1233 (9th Cir. 2003), the Ninth Circuit considered the Sixth Amendment duty of loyalty in the context of an attorney's disclosure of confidential client information. In analyzing the issue, the court looked not to the attorney-client privilege, but to the rules of professional conduct. Id. at 1241-43. The court noted that, despite the critical importance of client confidentiality and loyalty to our legal system, the duty to refrain from disclosing information is not absolute. Id. at 1242. Thus, an attorney may disclose a confidence “to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm.” Id. In determining whether counsel was deficient under the first prong of Strickland, focus must be placed on the reasonableness of counsel's actions in light of consistently recognized ethical standards. Id.
The Ninth Circuit found, under the facts in McClure, it was a close question whether counsel's belief that disclosure of his client's communications was reasonable under the circumstances, but ultimately concluded it was and therefore the disclosure did not violate the duty of confidentiality or amount to ineffective assistance. Id. at 1245-47. The Ninth Circuit reached a similar result in United States v. Alexander, 287 F.3d 811 (9th Cir. 2002), in which it concluded that threats of future harm were not privileged because they related to future criminal 18 conduct and the attorney's disclosure of those threats did not deprive the defendant of his Sixth Amendment right to counsel.
Here, as in McClure and Alexander, the record establishes that counsel reasonably believed disclosure of Petitioner's communications to Colby was necessary to prevent Petitioner from committing a criminal act against the Bidwell family. Petitioner expressly informed Colby, who was working on behalf of Petitioner's trial attorney, that he intended to kill Bidwell and Bidwell's wife and children. Resp. Ex. 134, at 72-74, ECF 17. Petitioner admitted to Colby that he had been inside the Bidwell home when Bidwell and his wife were sleeping. Id. at 73. Colby informed counsel that in his professional opinion, he believed Petitioner would carry out threats of future crimes against Bidwell, his wife, and the children. Id. at 15. Trial counsel was aware that Petitioner had followed Bidwell home and that children lived with Bidwell. Id. at 12. Counsel was concerned there was a viable possibility that Petitioner could be released on bail and act on these threats. Id. at 19-20. Under these circumstances, counsel's disclosure of Petitioner's communications was reasonable and Petitioner's rights under the Sixth Amendment were not violated.
Petitioner argues that the Oregon Court of Appeals' decision on direct appeal precludes this Court from finding there was no violation of his Sixth Amendment rights. The trial judge in the first trial found that counsel's duty of confidentiality did not extend to the threats of future crimes that Petitioner communicated to Colby. On appeal, the Oregon Court of Appeals disagreed, and found that the communications did not fall within the exception to the attorney-client privilege as described in the evidentiary rule in effect at the time. At the time of the first trial, the future-crime exception to the attorney-client privilege, codified at O.E.C. 503, provided: 19
(4) There is no privilege under this section:
(a) If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud[.](Emphasis added). The Oregon Court of Appeals found that the exception did not apply because “there is no basis in the record to infer that defendant's request for confidentiality constituted a request for services to aid or enable defendant to commit crimes.” Jenkins, 190 Or.App. at 549.
Petitioner contends that the Oregon Court of Appeals, in reaching this decision, necessarily concluded that the disclosure of his communications violated his rights under the Sixth Amendment. As such, he argues, the admission of his communications at his subsequent trial perforce continued that violation, and trial and appellate counsels' failure to object violated his right to effective assistance of counsel.
To the contrary, the Oregon Court of Appeals' decision leads to no such conclusion. The Court of Appeals specifically held that the admission of Petitioner's communications violated the terms of the evidentiary rule; at no time did the court discuss or address, let alone hold, that the introduction of the evidence violated Petitioner's Sixth Amendment right to counsel. Further, the Court of Appeals specifically discussed the applicability of the newly-enacted evidentiary rule at trial on remand, and affirmatively stated that it would apply. Jenkins, 190 Or.App. at 551. Had the Court of Appeals found that admission of the communications violated Petitioner's Sixth Amendment rights, there is no reason to believe that the subsequent change in the language of the evidence code would somehow “cure” the constitutional violation, such that the evidence would then be admissible if it satisfied the requirements of the new rule, as the Oregon Court of Appeals concluded. 20
For these reasons, trial counsel's disclosure of Petitioner's communications to Colby do not rise to the level of a Sixth Amendment violation. Accordingly, Petitioner cannot prevail on any of the claims alleged in his Amended Petition based on this premise.
C. Fifth Amendment
Petitioner contends trial counsel violated his Fifth Amendment right against self-incrimination by disclosing his communications to Colby. “The Fifth Amendment, made applicable to the States by the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1 (1964), requires that ‘[n]o person . . . shall be compelled in any criminal case to be a witness against himself.'” Chavez v. Martinez, 538 U.S. 760, 765 (2001) (quoting U.S. Const. amend. V) (emphasis in original). The Fifth Amendment privilege against self-incrimination exists to prohibit the government from forcing the defendant to talk and then using the defendant's own statements to satisfy its burden of establishing guilt. See Oregon v. Elstad, 470 U.S. 298, 304-05 (1985). Thus, for example, the admission of statements made by a defendant to a psychiatrist who has been designated by the trial court to conduct a neutral competency examination may violate the privilege against compelled testimony absent the necessary appraisal of rights and a knowing waiver. Estelle v. Smith, 451 U.S. 454, 467 (1981); see also Pens v. Bail, 902 F.2d 1464, 1466 (9th Cir. 1990) (per curiam) (statements made during court-ordered, confidential therapy could not be used against defendant).
Here, Colby was retained by Petitioner's trial attorney to examine Petitioner in preparation for trial. Accordingly, the admission of Petitioner's statements to Colby did not violate Petitioner's Fifth Amendment right against self-incrimination. 21
D. Bill of Attainder
Petitioner alleges in Ground Twelve that appellate counsel was ineffective in failing to argue that the statute amending the future crimes exception to the attorney-client privilege constituted an unlawful bill of attainder. A bill of attainder is a legislative act that applies “either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial.” United States v. Lovett, 328 U.S. 303, 315 (1946). To be a bill of attainder, the law must: (1) specify the affected persons, (2) impose punishment, and (3) lack a judicial trial. Selective Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841, 847 (1984). “[W]hen past activity serves as a ‘point of reference for the ascertainment of particular persons ineluctably designated by the legislature' for punishment, ” the enactment may be an unlawful attainder. Id. (quoting Communist Party v. Subversive Activities Control Bd., 367 U.S. 1, 86 (1961)).
Here, the newly-enacted law made admissible a narrow class of evidence that was previously inadmissible; it did not impose punishment on Petitioner or anyone else. While it appears that in enacting the new rule, the legislature considered its potential effect on Petitioner's case, the law does not actually punish Petitioner or even provide definitively that the evidence would be admissible. Indeed, the Oregon Court of Appeals remanded the case because, despite concluding that the new rule “will apply to a new trial on remand, ” Jenkins, 190 Or.App. at 551, it could not assume that the trial court would find that the disputed evidence met the standard required under the new rule. Id. at 552. Moreover, the statute had no effect on Petitioner “without a judicial trial.” Lovett, 328 U.S. at 315.
Thus, application of the newly-enacted evidentiary rule that altered the exception to the 22 attorney-client privilege at Petitioner's second trial did not constitute a bill of attainder. See Palmer v. Clarke, 408 F.3d 423, 433-34 (8th Cir. 2005) (new law permitting testimony previously privileged as marital privilege was not a bill of attainder even where the legislature specifically considered the defendant's individual case in enacting the new law). Accordingly, Petitioner cannot prevail on a claim that appellate counsel rendered ineffective assistance of counsel in failing to assert this claim.
E. Ground Ten-Ineffective Assistance of Appellate Counsel for Failure to Assign Error to the Denial of the Motion for Mistrial
In Ground Ten, Petitioner alleges appellate counsel was ineffective in failing to assign error to the trial court's denial of his motion for mistrial after the jury heard extra-record evidence while deliberating.
At the beginning of jury deliberations, a state's exhibit containing the tape recording of Warren's testimony from the first trial was sent into the jury room where the jurors listened to it before collectively realizing it contained extraneous testimony that “they shouldn't be listening to.” Tr. 4182-83. The jurors informed the trial judge by note, and the judge instructed them to stop listening. Upon listening to the tape recording with the attorneys, the trial judge realized that, just before Warren's tape-recorded testimony, the tape recording contained testimony by Rohrscheib, the jailhouse informant, whom the state called at the first trial but not the second. Tr. 4189-90.
With the agreement of both the prosecution and defense, the trial judge asked each juror to privately provide written answers to two questions: “Please write down everything you heard on the tape, ” and “Please write down everything someone else heard and told you about from the 23 tape.” Tr. 4190. One of the jurors wrote: “[W]as there any other deals made by you and the district attorney's office.” Tr. 4192. Another juror wrote a lengthy statement explaining she did not think what she heard was relevant. Tr. 4193. A third juror wrote that “[i]t sounded like something from a previous trial.” Tr. 4194.
Petitioner's counsel moved for a mistrial, which the trial judge denied. Tr. 4205. The trial judge considered the jurors' responses to the questions and concluded as follows:
Looking at the forms, there's only one about which I feel sufficient information tells us that the person actually understood anything. The only one that indicates they heard anything that was understandable, and that's the one that says questions asked: Do you make any other-do you make any other deals? Answer: No.
The others talk about hearing voices, but not about anything they were able to understand. If - truly if they had head what we heard yesterday, this case would have to be mistried. And that's the reason we all decided we needed to know what they heard. I am concerned about one juror. And there is nothing that indicates the other jurors heard anything prejudicial.Tr. 4204-05. The trial judge offered Petitioner the opportunity to request empaneling an alternate juror in lieu of the one juror who had heard a reference to “other deals.” Tr. 4205.
After conferring with Petitioner, trial counsel declined the court's offer and continued to request a mistrial. Tr. 4206. Trial counsel objected to a curative instruction, but over that objection the trial judge sent the jury the following written instruction: “A tape was given to you in error. Do not consider or discuss the content of the tape.” Tr. 4210.
Trial by an impartial jury is fundamental to the fair administration of criminal justice. Turner v. Louisiana, 379 U.S. 466, 472-73 (1965); Irvin v. Dowd, 366 U.S. 717, 722 (1961). The introduction of extrinsic influences or evidence into the jury's deliberative process may jeopardize that fundamental right. Remmer v. United States, 347 U.S. 227, 229 (1954). Due 24 process, however, “does not require a new trial every time a juror has been placed in a compromising situation. Were that the rule, few trials would be constitutionally acceptable. . . . [I]t is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.” Smith v. Phillips, 455 U.S. 209, 217 (1982). To prevail on a claim that the introduction of extrinsic evidence rises to the level of a due process violation, a criminal defendant bears the burden to establish actual bias. See Smith, 455 U.S. at 215 (“This Court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias.”). Moreover, the court must presume that juries follow instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000); see also Richardson v. Marsh, 481 U.S. 200, 211 (1987) (juries are presumed to follow cautionary and curative instructions).
The determination whether a juror is impartial, and not biased, is a factual one. Wainwright v. Witt, 469 U.S. 412, 426-32 (1985). A state court's factual findings as to whether the exposure to extrinsic evidence affected the juror's impartiality are presumed correct. 28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539 (1981). A petitioner must rebut this finding of fact by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Guided by these legal principles, the PCR trial court found the trial judge did not do “anything wrong, ” and rejected Petitioner's claim that appellate counsel was ineffective in failing to assign error to the denial of mistrial:
I guess in that you [Petitioner] argue that a juror came to the judge and said, gee, this doesn't sound right. There's not - that's not his [Warren's] testimony, it's somebody else. And the juror said I'm the only one that heard it.
And you're saying that's impossible. They all heard it. I don't know where25
you get that, but as a practical matter, I think any experienced trial judge has things that happen like that where one juror will report something. You make an investigation. You decide whether or not there is a fairness/due process issue. You issue a curative instruction if necessary.
I think all the competent judges allow the defense or whoever it is, maybe it's the prosecution, to either say, you know, you want me to give a curative instruction or not.
When you give the curative instruction, sometimes that makes the point even more glaring to the jury.
But the point is, I can't find that the judge did anything wrong.
The Court of Appeals is going to go with the discretion of the Court, 99.999 percent of the time on issues like this because the Court was there. The Court is the one that talked to the juror. The Court is the one that looked that juror in the eye and said anybody else hear it.
And so again, I cannot say that that issue should have been raised. And the fact that it wasn't raised is not ineffective counsel.
Resp. Ex. 169, at 58-59, ECF 18.
Where the trial court did not error, appellate counsel was not ineffective for failing to assert this claim. Thus, the state court's rejection of Petitioner's ineffective assistance of counsel claim alleged in Ground Ten was neither contrary to nor involved an unreasonable application of clearly established Supreme Court law.
F. Ground Eleven-Ineffective Assistance for Failing to Assign Error to the Sentence as Vindictive
In Ground Eleven, Petitioner alleges that appellate counsel should have assigned error to the court's increased sentence following the second trial as constitutionally vindictive in violation of his due process rights.
Generally speaking, the Due Process Clause bars a court from imposing a more severe 26 sentence on a defendant in response to a successful challenge on appeal. Alabama v. Smith, 490 U.S. 794, 82 (1989); North Carolina v. Pearce, 395 U.S. 711, 725-26 (1969) (limited by Smith, 490 U.S. 794). A presumption of vindictiveness applies where there is a “‘reasonable likelihood' that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.” Smith, 490 U.S. at 799 (internal citation omitted). However, that presumption does not attach every time the second sentence is more severe. Id. If the presumption applies, it may be rebutted by “objective information . . . justifying the increased sentence.” Texas v. McCullough, 475 U.S. 134, 142 (1986).
Here, following the first trial, the judge found that Petitioner's criminal history score was a “D, ” indicating that he had committed one prior “person felony, ” based on his prior California conviction for false imprisonment. Resp. Exs. 103, at 22-23, ECF 16, and 147, at 3, ECF 18; O.A.R. 213-004-0007. The trial judge sentenced Petitioner to an indeterminate sentence of 30 years with a minimum determinate sentence of 220 months, and ordered that Petitioner would not be eligible for SB 936 credits (“936 credits”), i.e., earned time credit, for 110 months.
Senate Bill 936 (1997) included a provision, codified at O.R.S. 137.75(10), requiring the court to order that the defendant may be considered for various programs and reductions in sentence, most notably earned time, unless it states substantial and compelling reasons why the defendant should not be eligible. See State v. Johnson, 288 Or.App. 220, 224-25 (2017) (discussion continuing use of phrase “936 credits” to refer to those programs and reductions).
After the first judgment was issued, but prior to the second trial, Petitioner was convicted of assault in the third degree in Multnomah County. Resp. Ex. 101, at 1, ECF 16. Third-degree assault is also a “person felony” for the purposes of the sentencing guidelines. O.A.R. 213-003-0014(14). Thus, at the time of Petitioner's sentencing following remand, he had two prior person 27 felonies, meaning that his criminal history score was “B.” O.A.R. 213-004-0007.
At Petitioner's second sentencing hearing, the parties engaged in extensive argument over whether Petitioner's California conviction should be classified as a person felony. The trial judge concluded that the California conviction was a person felony and that petitioner was a dangerous offender, and imposed an indeterminate sentence of 30 years with a minimum determinate sentence of 240 months. Initially, the trial judge stated Petitioner would not be eligible for 936 credits, but after being reminded that the original sentence allowed for 936 credits after 120 months, the trial judge agreed the new sentence could not exceed the prior sentence in that regard. Due to confusion regarding the original sentence, the trial court indicated the new judgment would not be signed until after the parties had an opportunity to review it. A further hearing took place about a month later outside Petitioner's presence, but because that hearing was not transcribed on appeal and not otherwise submitted by either party in any of the state proceedings, it is not part of the record before this Court. In any event, five days later, the trial judge signed the judgment imposing an indeterminate sentence of 30 years with a minimum of 240 months, and indicating that Petitioner would be eligible for 936 credits after 120 months.
In fact, the original judgment allowed for 936 credits after 110 months.
Petitioner points to the trial judge's acknowledgment that she could not exceed the prior sentence, and contends this establishes a presumption of vindictiveness because the trial judge ultimately increased the minimum term he was ordered to serve. However, as the PCR judge concluded, the trial judge was talking about the fact she could not preclude Petitioner from 28 earning 936 credits because the prior sentence allowed for them, not about the minimum term of imprisonment. Resp. Ex. 169, at 49, ECF 18. Moreover, the PCR judge reasonably found that the trial judge increased Petitioner's minimum term solely as a result of the change in his criminal history score, and that competent appellate counsel would not have unreasonably declined to assert such a claim. Id. at 62. The PCR trial court also concluded that even if such a claim could have been asserted on appeal, it would not have changed the outcome of the appeal. Id. at 61-62.
The PCR court's denial of relief on this claim was not contrary to or an unreasonable application of Strickland. Accordingly, Petitioner is not entitled to relief on the claim alleged in Ground Eleven.
G. Grounds Thirteen-The Trial Court's Use of O.E.C. 504-5 to Allow Colby's Testimony Violated the Ex Post Facto Clause
In Ground Thirteen, Petitioner alleges the trial court violated his rights under the Ex Post Facto Clause by allowing the retroactive application of O.E.C. 504-5 to admit evidence of his communications to Colby. Petitioner raised this objection at trial, but the trial judge did not directly address the issue; instead the judge noted that in its decision on appeal from the first conviction, the Oregon Court of Appeals necessarily decided the change in law could be applied retroactively. Pet. Ex. D, at 3-4, ECF 61. Petitioner asserted the ex post facto claim on appeal but, as noted, the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review.
“The Ex Post Facto Clause bars the government from passing laws that impose a new punishment or increase punishment for a crime committed before passage of the law.” 29 Gentry v. Sinclair, 705 F.3d 884, 908 (9th Cir. 2018) (citing Weaver v. Graham, 450 U.S. 24, 28 (1981)); Collins v. Youngblood, 497 U.S. 37, 43 (1990)). A law violates the Ex Post Facto Clause if it “alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.” Calder v. Bull, 3 U.S. 386, 390 (1798). In Gentry, the Ninth Circuit explained:
In Calder, the Supreme Court also described three other categories of ex post facto violations, none of which apply here.
Only certain types of changes in the rules of evidence fall into this fourth category. There is a violation under this category when laws that require a minimum type or amount of evidence for conviction are changed by eliminating a type of evidence or decreasing the amount of evidence needed for conviction. However, an ex post facto problem does not arise for a law that “does nothing more than admit evidence of a particular kind in a criminal case . . . which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offense was committed.” Thompson v. Missouri, 171 U.S. 380, 387 (1898); see Hopt v. People, 110 U.S. 574, 589 (1884) (holding no ex post facto violation for a law allowing for convicted felons to testify as competent witnesses because the law did not affect the “quantity or the degree of proof necessary to establish . . . guilt”).Gentry, 705 F.3d at 909.
In Thompson, the defendant was convicted of murder based in part on the admission of “certain letters written by him to his wife . . . for the purpose of comparing them with the writing” in a prescription for strychnine and a threatening letter. 171 U.S. at 380-81. The Missouri Supreme Court reversed, holding that under then-existing state law, the letters the defendant had written to his wife were inadmissible for the purpose of comparison. Id. at 381.
Before the retrial on remand, the state legislature passed a law “providing that ‘comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be 30 permitted to be made by witnesses, and such writings and the evidence of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute.'” Id. The defendant was again convicted and claimed a violation of the Ex Post Facto Clause. Id.
The Supreme Court held that application of the new law to the defendant's second trial was not an ex post facto violation because the new law “did not require ‘less proof, any amount or degree,' than was required at the time of the commission of the crime, ” but instead “left unimpaired the right of the jury to determine the sufficiency or effect of the evidence declared to be admissible.” Id. at 387. The new law “did nothing more than remove an obstacle arising out a rule of evidence that withdrew from the consideration of the jury testimony which, in the opinion of the legislature, tended to elucidate the ultimate, essential fact to be established, namely, the guilt of the accused.” Id.
In Gentry, the Ninth Circuit Court of Appeals reviewed a district court's denial of a § 2254 habeas petition that alleged a similar claim of ex post facto violation. There, a state law was changed to allow, during the penalty phase of a capital sentencing proceeding, a victim impact statement that was previously inadmissible. The Ninth Circuit found that the state court decision denying relief on an ex post facto claim was not contrary to or an unreasonable application of Thompson, noting that “[w]hile the admission of the victim impact statement may have adversely affected [the petitioner's] presentation at the penalty phase, the State's evidentiary burden remained the same.” Gentry, 705 F.3d at 910 (citations omitted).
Here, as in Thompson and Gentry, the new evidentiary rule did not change or in any way affect the quantum of evidence necessary to convict Petitioner of solicitation to commit 31 aggravated murder. The new rule merely changed the body of evidence that could lawfully be presented to and considered by the jury; it “did nothing more than remove an obstacle arising out of a rule of evidence.” Thompson, 171 U.S. at 387. Accordingly, the admission of Petitioner's communications to Colby did not violate the Ex Post Facto Clause, and the state court decision denying relief on this claim was not contrary to or an unreasonable application of federal law.
V. Claims Alleged But Not Addressed
The remaining claims alleged in the Amended Petition are not addressed in Petitioner's briefing. As such, Petitioner has not sustained his burden to demonstrate why he is entitled to relief on these claims. See Lampert v. Blodgett, 393 F.3d 942, 970 n. 16 (9th Cir. 2004). Nevertheless, the Court has reviewed Petitioner's remaining claims and is satisfied that Petitioner is not entitled to habeas corpus relief.
RECOMMENDATION
For these reasons, the Petition for Writ of Habeas Corpus should be DENIED and a judgment of dismissal should be entered. Because Petitioner 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
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due by January 5, 2022. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a 32 copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement. 33