Opinion
2:18-cv-01458-JE
11-15-2021
SHAWN RICHARD MONRO, Petitioner, v. BRAD CAIN, Respondent.
Anthony D. Bornstein Assistant Federal Public Defender Attorney for Petitioner Ellen F. Rosenblum, Attorney General James M. Aaron, Assistant Attorney General Department of Justice Attorneys for Respondent
Anthony D. Bornstein Assistant Federal Public Defender Attorney for Petitioner
Ellen F. Rosenblum, Attorney General James M. Aaron, Assistant Attorney General Department of Justice Attorneys for Respondent
FINDINGS AND RECOMMENDATION
John Jelderks United States Magistrate Judge
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his Lane County convictions dated January 26, 2010. For the reasons that follow, the Amended Petition for Writ of Habeas Corpus (#59) should be denied.
BACKGROUND
On September 19, 2008, the Lane County Grand Jury indicted Petitioner on 35 counts arising from five criminal episodes, one of which involved a home invasion during which Petitioner slit the throat of the homeowner (the homeowner survived the attack). As a result of these criminal episodes, the Grand Jury charged Petitioner with two counts of Attempted Aggravated Murder, seven counts of Robbery in the First Degree, two counts of Burglary in the First Degree, one count of Assault in the First Degree, 13 counts of Robbery in the Second Degree, two counts of Assault in the Second Degree, two counts of Felon in Possession of a Firearm, three counts of Theft in the First Degree, one count of Theft in the Second Degree, and two counts of Identity Theft. Respondent's Exhibit 102.
The case proceeded to a jury trial where, prior to jury selection, Petitioner was still wearing restraints in the courtroom. Petitioner's attorney highlighted the issue for the judge and objected to the restraints:
Well, Your Honor, I just wasn't sure what the - what the Court or the deputies had in mind as far as Mr. Monro's restraints. Right
now he's got cuffs on his hands. I imagine those are not going to remain. But he also has leg restraints, which just for the record, the jury pool is going to be sitting behind us, and as they come up to take their chairs in the jury box they're going to have to basically walk pretty near where Mr. Monro is sitting. And given how the angle of counsel table is, they'll be able to see that he is in restraints.
And I think that is going to be - well, I know that's going to be a problem for us. And we'd be objecting if he's going to be in restraints during this process and throughout trial as well.
The restraints are chain material and you can hear when Mr. Monro moves his feet. And so it's going to be an issue, if that's what happens. I don't know. They just brought him in. I haven't talked with the deputy as to what their expectation is.Trial Transcript, pp. 3-4.
The trial judge stated, “my view has always been whatever the deputies want is what I want. So that's where that stands.” Id. at 4. He indicated that it would be his preference to do without the handcuffs, but that “security is more important than anything else.” Id. He also indicated that “as far as the leg restraints, I understand that's a problem but it's just unfortunate and I'm going to assume Mr. Monro will keep his feet as far forward as possible and jangle them as little as possible.” Id.
The judge inquired with the deputy who indicated his understanding that the handcuffs would come off any time the jury was anywhere near the proceedings, but had no comment as to the leg restraints. The judge indicated, “That sounds fine with me, but I'm going to leave the leg restraints on” noting that it was “over [counsel's] objection.” Id.
At that point, Petitioner asserted that the presence of leg restraints was inconsistent with the effort to present him to the jury as an unincarcerated individual. He asked whether the issue would be a basis for an appeal or a mistrial to which the judge responded:
I don't think they're going to have that belief, Mr. Monro. These two deputies are going to be here and that's the way it's going to be. So that's the end of that discussion.
* * * * *
Well, you make whatever motions you want to, [counsel], but what the answer is those leg restraints are going to stay on and the deputies are going to be in here.
And no one is going to have the belief that you're of out custody, Mr. Monro. They're not going to think that these two deputies are here just because it's a slow news day.Id. at 5.
Four days into the trial, the prosecutor asked to clarify the record on the shackling issue because “[s]omeone brought it to my attention in our office today . . . [b]ecause, believe it or not, that comes up[.]” Trial Transcript, p. 546. The parties agreed that, from the vantage point of the jury box, the jury could not see the shackles because counsel's table was draped on three sides (open only to the back). The parties disagreed, however, as to whether the jurors might have seen the shackles during voir dire when “quite a few people were sitting behind counsel table.” Id. The trial judge made the following findings:
[I]n the absence of testimony by a sworn witness about the extent to which those leg shackles would be visible, I'm going to leave it that from where I'm seated, which of course is on the other side of this curtain . . . it's not obvious to me that jurors, potential jurors coming in here, would think that it's important as they're getting up from their seat to go take a seat in the jury box, to stare down at a defendant's feet to determine whether or not he might be in shackles. That doesn't strike me as particularly likely. Possible, but not likely.
In addition to that, we have the fact that Mr. Monro, as he sits there, would have his feet in front of him. That his body and the body of the chair would in large part shield his feet from somebody going by. And to whatever extent he has long pants on, which he does, they would tend to cover his ankles and make those shackles less visible.
So from my perspective, given the record as it is, I would say that it's certainly not impossible, but improbable both because of the physical circumstances and the fact that any juror getting up to come to the jury box would be focusing his or her attention on getting up, getting to the right place, and handing over questionnaires to the bailiff. Would make any study of a defendant's feet, when you wouldn't have any reason otherwise to be looking at them, improbable.Id. at 548-49.
The trial proceeded and, at the close of the State's case, the judge granted the defense a judgment of acquittal as to one count of Assault in the Second Degree. The jury found Petitioner guilty of three counts of Robbery in the First Degree, five counts of Robbery in the Second Degree, two counts of Identity Theft, one count of Felon in Possession of a Weapon, two counts of Theft in the First Degree, two counts of Attempted Aggravated Murder, and one count each of of Assault in the First Degree, Assault in the Second Degree, Burglary in the First Degree, and Theft in the Second Degree. The jury found Petitioner not guilty as to the remaining charges, and the trial court imposed a prison sentence exceeding 700 months.
Petitioner took a direct appeal wherein he argued that the trial court erred by: (1) requiring him to wear leg restraints without making an independent determination that they were necessary: (2) giving a “natural and probable consequences” jury instruction; (3) failing to apply Oregon's “shift-to-I” rule resulting in an erroneous sentence; and (4) instructing the jury that it could convict Petitioner in the absence of unanimity. Respondent's Exhibit 103. The State countered, in part, that the shackling issue was unpreserved and, alternatively, that the issue lacked merit. Respondent's Exhibit 104, pp. 10-23.
The Oregon Court of Appeals issued a written decision that only addressed the “shift-to-I” claim. It resolved that claim in Petitioner's favor and remanded the case for resentencing, but with respect to all of Petitioner's other claims “reject[ed] those assignments of error without discussion.” Respondent's Exhibit 107, p. 2. Petitioner petitioned the Oregon Supreme Court for review of the claims upon which he had not prevailed, but Oregon's highest court denied review. Respondent's Exhibits 108, 109.
Petitioner next filed for post-conviction relief (“PCR”) in Malheur County asserting that his trial attorney had been ineffective for failing to object to: (1) the “natural and probable consequences” jury instruction; and (2) the trial court's lack of proper findings justifying the use of leg restraints. Respondent's Exhibit 112, pp. 8-9. The PCR court denied relief on both claims. Respondent's Exhibit 129. The Oregon Court of Appeals affirmed that decision without issuing a written opinion, and the Oregon Supreme Court denied review. Respondent's Exhibits 134, 135.
With the assistance of appointed counsel, Petitioner filed his Amended Petition in this habeas corpus case presenting the following grounds for relief:
1. The trial court violated Petitioner's right to due process when it ordered that he be tried in leg shackles;
2. The trial court violated Petitioner's right to due process when it instructed the jury with the “natural and probable consequence” instruction;
3. The trial court violated Petitioner's Sixth Amendment right to a unanimous jury verdict when it instructed the jury that it could reach a verdict based upon a non-unanimous vote; and
4. Trial counsel was ineffective when he failed to object to: (A) the court's shackling order; and (B) the “natural and probable consequence” jury instruction.Amended Petition (#59). Respondent asks the Court to deny relief on the Amended Petition because: (1) Petitioner failed to fairly present Ground I to Oregon's state courts, leaving it procedurally defaulted; (2) Petitioner's Ground IV(A) claim, which was first raised in the Amended Petition, is untimely; and (3) all of his claims lack merit.
DISCUSSION
I. Exhaustion and Procedural Default
A habeas petitioner must exhaust his claims by fairly presenting them to the state's highest court, either through a direct appeal or collateral proceedings, before a federal court will consider the merits of those claims. Rose v. Lundy, 455 U.S. 509, 519 (1982). "As a general rule, a petitioner satisfies the exhaustion requirement by fairly presenting the federal claim to the appropriate state courts . . . in the manner required by the state courts, thereby 'affording the state courts a meaningful opportunity to consider allegations of legal error.'" Casey v. Moore, 386 F.3d 896, 915-916 (9th Cir. 2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 257, (1986)).
If a habeas litigant failed to present his claims to the state courts in a procedural context in which the merits of the claims were actually considered, the claims have not been fairly presented to the state courts and are therefore not eligible for federal habeas corpus review. Edwards v. Carpenter, 529 U.S. 446, 453 (2000); Castille v. Peoples, 489 U.S. 346, 351 (1989). In this respect, a petitioner is deemed to have "procedurally defaulted" his claim if he failed to comply with a state procedural rule, or failed to raise the claim at the state level at all. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). If a petitioner has procedurally defaulted a claim in state court, a federal court will not review the claim unless the petitioner shows "cause and prejudice" for the failure to present the constitutional issue to the state court, or makes a colorable showing of actual innocence. Gray v. Netherland, 518 U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992); Murray v. Carrier, 477 U.S. 478, 485 (1986).
As Ground I, Petitioner asserts that the trial court violated his right to due process when it failed to make proper findings to justify its decision to employ leg restraints throughout the trial. Respondent asserts that although Petitioner argued this claim to the Oregon Court of Appeals and the Oregon Supreme Court, the claim was unpreserved because counsel failed to raise such an objection during trial. Specifically, he asserts that although counsel objected to the use of restraints, he did so only on the basis that they were visible to the jury. He maintains that by limiting his argument in this way, counsel failed to inform the trial judge that he had not made the proper findings to justify a decision to shackle Petitioner let alone cite any source of federal law requiring him to do so.
To support his procedural default argument, Respondent directs the Court's attention to the Oregon Court of Appeals' decision in State v. Dream, 202 Or.App. 245, 212 P.3d 699 (2005), modified on remand, 227 Or.App. 267, 205 P.3d 83 (2009). Just as with Petitioner's case, in Dream the trial took place in Lane County in front of the Honorable Jack A. Billings in a courtroom where counsel's table was draped on three sides, leaving only the back open and visible. The defense objected to the trial court's requirement that he wear ankle restraints during his trial, noting that when the jurors walked up to hand in their questionnaires, “‘[t]hey're coming right up by counsel table. It is very easy to see those shackles.'” Id at 247. Judge Billings “responded that the sheriff's deputies had recommended employing the restraints and that [he] was going to follow that recommendation.” Id. Later, after voir dire and after the jury had been sworn in, the defense renewed its objection and moved for a mistrial on the basis that the trial judge had not made any findings to justify the use of the restraints. Judge Billings denied that motion as well.
Petitioner asserts that Dream is not valid precedent because the Oregon Supreme Court vacated that decision. Because Petitioner's case is distinguishable from Dream, this Court need not render an opinion on the precedential value of the Oregon Court of Appeals' procedural ruling in its withdrawn Dream opinion.
The defendant in Dream appealed, assigning error to Judge Billings' refusal to allow him to appear without restraints and to the later denial of the motion for mistrial. He grounded both assignments of error in Judge Billings' failure to make sufficient findings to justify the use of restraints. The Oregon Court of Appeals concluded that when the defendant objected to the use of restraints, he failed to argue that the judge needed to make any particular findings. The Oregon Court of Appeals plainly stated that “[i]n the absence of such an argument, defendant cannot now be heard to complain about the failure of the trial court to make such findings.” Id at 248.
With respect to the assignment of error pertaining to the mistrial, the Oregon Court of Appeals concluded that the motion was “too late” because “[a]ny harm to defendant that otherwise even arguably might have justified a mistrial already had occurred.” Dream, 202 Or.App. at 248.
While, at first blush, Dream appears to be indistinguishable from Petitioner's case, there is a crucial difference. In Petitioner's case, Judge Billings plainly did not wish to hear counsel expound upon his objection to the shackling. The Judge stated that “whatever the deputies want is what I want” and advised counsel that he could make “whatever motions” he pleased, but the result would be the same “[s]o that's where that stands.” Trial Transcript, pp. 4-5. When Petitioner, himself, attempted to follow up with his concern that the jury might notice his restraints and assume he was being held in custody, Judge Billings stated, “These two deputies are going to be here and that's the way it's going to be. So, that's the end of that discussion.” Id at 5. Although Petitioner personally attempted to press the issue one last time, Judge Billings made it clear that “the answer is those leg restraints are going to stay on and the deputies are going to be in here.” Id.
On this record, it would be surprising if the Oregon Court of Appeals faulted trial counsel for not attempting to force the issue further with a clearly unreceptive judge. To do so would have run the risk of alienating the judge at the very outset of Petitioner's trial. Counsel raised his objection to the shackling, and the Judge made it quite clear that he had made his ruling and wished to move on. Where counsel objected to the shackling of his client during trial, where Judge Billings did not provide him an opportunity to elaborate upon that objection, and where the Oregon Court of Appeals affirmed the trial court's decision on this issue without providing any rationale, this Court should conclude that Petitioner complied with Oregon's contemporaneous objection rule and fairly presented his Ground I claim to Oregon's state courts.
II. Timeliness of Ground IV(A)
When Petitioner filed his Amended Petition, he added Ground IV(A) wherein he alleges that trial counsel was ineffective for failing to properly object to, and therefore preserve, his due process claim pertaining to the shackling that occurred at trial. Respondent asserts that Petitioner failed to timely file the claim because he added it 542 days after the conclusion of his state-court proceedings, placing it well outside of the Anti-terrorism and Effective Death Penalty Act's (“AEDPA's”) one-year statute of limitations.
A new claim contained in an amended habeas corpus petition filed after the expiration of the AEDPA's one-year statute of limitations will only relate back to the timely-filed pleading if the claim arises out of “the same conduct, transaction or occurrence” as a claim in the timely pleading. Mayle v. Felix, 545 U.S. 644 (2005). Relation back is permitted “only when the claims added by amendment arise from the same core facts as the timely filed claims, and not when the new claims depend upon events separate in ‘both time and type' from the originally raised episodes.” Id at 657. If the new claim adds “a new legal theory tied to the same operative facts as those initially alleged, ” it will be sufficient to relate back to the original claim from the original petition. Id at 659, n. 5.
In this case, Ground I involves the trial court's failure to make proper findings on the record before requiring Petitioner to proceed to a jury trial in leg restraints. By contrast, Ground IV(A) alleges that when trial counsel objected to the shackling, he failed to comply with Oregon's contemporaneous objection rule so as to preserve the Ground I due process claim for appellate review in the state courts. These are two distinct types of claims which involve different underlying facts. See Schneider v. McDaniel, 674 F.3d 1144 (9thCir. 2012) (claim of ineffective assistance of counsel does not share common core facts with the underlying substantive claim to which counsel should have allegedly objected). Relation back is therefore not appropriate and the Court should dismiss Ground IV(A) because it is untimely.
In Ha Van Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013), the Ninth Circuit reached a contrary conclusion on this issue. However, as that case was not decided by an en banc panel and post-dates the Schneider decision, I view Schneider as the controlling precedent in the Ninth Circuit. See United States v. Olson, 988 F.3d 1158, 1163 (9th Cir. 2021) (a three-judge panel may not overrule the decision of a prior three-judge panel).
Even if Ground IV(A) related back to Ground I so as to be timely, for the reasons identified in the Exhaustion and Procedural Default section of this Findings and Recommendation, counsel's performance did not fall below an objective standard of reasonableness when he placed his shackling objection on the record and the trial judge prevented him from more fully elaborating upon that objection.
III. The Merits
A. Standard of Review
An application for a writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court's findings of fact are presumed correct, and Petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
A state court decision is "contrary to . . . clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the "unreasonable application" clause, a federal habeas court may grant relief "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id at 413. The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. Id at 410. Twenty-eight U.S.C. § 2254(d) "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents. It goes no farther." Harrington v. Richter, 562 U.S. 86, 102 (2011).
When a state court reaches a decision on the merits but provides no reasoning to support its conclusion, the federal habeas court must conduct an independent review of the record to determine whether the state court clearly erred in its application of Supreme Court law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). In such an instance, although the federal court independently reviews the record, it still lends deference to the state court's ultimate decision and will only grant habeas relief if the state court's decision was objectively unreasonable. Richter, 562 U.S. at 98; Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
B. Ground I: Due Process Shackling Claim
It is clearly established federal law that the use of visible shackles during a criminal defendant's trial without justification on the record violates due process of law. Deck v. Missouri, 544 U.S. 622, 626-632 (2005). “Visible shackling undermines the presumption of innocence and the related fairness of the factfinding process.” Id at 630. However, in order to prevail on a shackling claim, a habeas corpus petitioner must establish that the jury actually saw the shackles. Ghent v. Woodford, 279 F.3d 1121, 1132 (9th Cir. 2002).
In this case, the trial judge did not make any findings on the record that would justify shackling Petitioner during his trial. His reliance simply on what the deputies preferred or recommended was not sufficient to comply with due process. However, the judge specifically found that it was “improbable” that any juror had seen or would see Petitioner's restraints. Trial Transcript, p. 549. In other words, it was more likely than not that no juror saw Petitioner wearing the restraints. This state-court finding of fact is entitled to a presumption of correctness absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1). Petitioner has not identified any evidence of this nature. Taking the trial judge's finding as accurate, due process was not offended where no juror witnessed Petitioner wearing any restraints. Accordingly, upon an independent review of the record, the Oregon Court of Appeals' decision did not involve an unreasonable application of clearly established federal law.
This failure to initially make findings is difficult to understand in light of the fact the same issue had been raised and appealed in Dream, which involved one of Judge Billings' previous trials.
B. Grounds II and IV(B): Natural and Probable Consequences Jury Instruction
As part of the passage of the updated criminal code in 1971, the Oregon legislature enacted ORS 165.155 to provide that a person may be criminally liable for the actions of another if, with the intent to further the crime, the person aids or abets the other person in planning or committing the crime. ORS 161.155(2). This led to the development of a jury instruction on accomplice liability that focused upon the “natural and probable consequences” stemming from a given act or crime. The trial judge gave that instruction in Petitioner's case:
A person who aids and abets another in committing a crime, in addition to being criminally responsible for the crime that is committed, is also criminally responsible for any acts or other crimes that were committed as a natural and probable consequence of the planning, preparation, or commission of the intended crime.Trial Transcript, p. 2141.
The language for this instruction was supported by dictum from State v. Fichter, 226 Or. 526 (1961), wherein the Oregon Supreme Court stated that aiders and abettors are responsible “for all acts committed by the others in the execution of the common purpose, if such acts are a natural or probable consequence of the unlawful combination or undertaking.” Id at 531-32. Although this instruction was routinely given in Oregon for decades, the Oregon Court of Appeals called it into question in State v. Anlauf, 164 Or.App. 672, 995 P.2d 547 (2000).
In Anlauf, “the defendant had participated with the codefendant in an assault, but the codefendant acted alone by carrying and displaying a knife while the defendant was withdrawing from the assault.” Wade v. Brockamp, 268 Or.App. 373, 383 (2015). The Oregon Court of Appeals reversed the denial of a motion for judgment of acquittal regarding the use of the knife where the State sought to use a “natural and probable consequences” theory of accomplice liability. In doing so, the Court of Appeals not only noted that Fichter's value as authority had diminished because the Oregon Supreme Court decided it before the adoption of the Criminal Code of 1971, but also “signal[ed] that the uniform jury instruction misstated the law.” Id at 385.
Despite Anlauf, Oregon courts continued to give the instruction. It was not until six months after the conclusion of Petitioner's trial that the Oregon Court of Appeals held that the “natural and probable consequences” instruction misstated Oregon law. State v. Lopez-Minjarez, 236 Or.App. 270, 237 P.3d 223 (2010). More than a year later, the Oregon Supreme Court agreed, reasoning that such an instruction improperly permitted a jury to find a defendant guilty under a theory of accomplice liability even if the defendant did not intend to promote or facilitate the conduct at issue. State v. Lopez-Minjarez, 350 Or. 576, 583 (2011).
1. Ineffective Assistance of Counsel (Ground IV(B))
In this case, Petitioner argues that even though the issue had not been definitively settled at the time of his trial, any reasonable attorney would have objected to the instruction where the Oregon Court of Appeals foreshadowed its illegality well in advance of his trial. The Court uses the general two-part test established by the Supreme Court to determine whether Petitioner received ineffective assistance of counsel. Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). First, Petitioner must show that his counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 686-87 (1984). Due to the difficulties in evaluating counsel's performance, courts must indulge a strong presumption that the conduct falls within the "wide range of reasonable professional assistance." Id at 689.
Second, 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 which is sufficient to undermine confidence in the outcome of the trial. Id at 696. When Strickland's general standard is combined with the standard of review governing 28 U.S.C. § 2254 habeas corpus cases, the result is a "doubly deferential judicial review." Mirzayance, 556 U.S. at 122.
During the PCR hearing on Petitioner's ineffective assistance of counsel claim, his trial attorney submitted an affidavit in which he explained:
Petitioner's jury trial was in January 2010. This was a few months in advance of the Court of Appeals' decision in Lopez-Minjarez....
I was not routinely objecting to the language cited by petitioner in the aider and abettor jury instruction, prior to the Lopez-Minjarez decision. At the time of the trial, I understood the instruction to be an accurate statement of law. Additionally, I did not believe the state was pursuing any charges based on the aider and abettor theory against my client. My recollection of
the state's theory of each incident was that my client was a primary participant in each act.
Respondent's Exhibit 122, p. 2.
The prosecutor also submitted his own affidavit, the contents of which were consistent with counsel's affidavit detailed above. The prosecutor recalled as follows:
Regarding petitioner's complaint about the “natural and probable consequences” language in the former uniform criminal jury instruction on aider and abettor liability, I can state with certainty that I was arguing all the way that these were separate acts and most importantly that petitioner was THE principal. I am confident the jury saw it that way given the verdicts.
Respondent's Exhibit 126, pp. 1-2 (emphasis in original).
The PCR court found trial counsel and the prosecutor to be credible, and Petitioner's testimony not to be credible. Respondent's Exhibit 129, p. 2. It then concluded that “Petitioner has not proven that a reasonably competent attorney would have anticipated the Lopez-Minjarez opinion in advance and objected to the ‘natural and probable consequences' language in the jury instructions.” Id.
Petitioner points out that in Wade, the Oregon Court of Appeals granted relief on an ineffective assistance of counsel claim based upon trial counsel's failure to object to the same instruction at issue in his case even though the criminal trial in Wade occurred in 2006, four years before Petitioner's own trial. However, the prosecutor in Wade relied upon accomplice liability “for all the charges against [the defendant]” and the State failed to produce any evidence directly linking her to the crimes. Wade, 268 Or.App. at 387. During closing argument, the prosecutor implied that the jury did not have to find that the defendant had the intent to commit the crimes. Id at 389. In this respect, the “natural and probable consequences” instruction went directly to the prosecutor's theory of liability for the crimes at issue in Wade. Id at 389.
In Petitioner's case, by contrast, the State charged Petitioner as “THE principal.” Respondent's Exhibit 126, p. 2 (emphasis in original). The State's evidence directly linked him to his most serious crimes. Unlike Wade, the prosecutor did not rely upon a theory of accomplice liability in order to convict him. Indeed, as Respondent points out, the only time the prosecutor referred to accomplice liability during his 56-page closing argument was a brief, eight-line mention of it in relation to a single count of Theft, one of the most minor charges Petitioner faced. Trial Transcript, p. 2080. Where accomplice liability was not a significant issue in Petitioner's case, and where Oregon's state courts had not yet held the “natural and probable consequences” instruction to be invalid, counsel's performance did not fall below an objective standard of reasonableness when he did not object to the instruction.
Even assuming counsel should have objected, any such objection was not likely to lead to a different result. The crimes with which the State charged Petitioner generally occurred either simultaneously, or the evidence adduced at trial showed that Petitioner personally participated in the crimes. Stated differently, had the trial judge never given the accomplice liability instruction at issue, the jury's approach to evaluating the evidence and determining Petitioner's guilt would not have differed in any material manner. For all of these reasons, the PCR court's decision to deny relief on Petitioner's in effective assistance of counsel claim was not contrary to, nor an unreasonable application of, clearly established federal law. See Richter, 562 U.S. at 102-03 (habeas relief is available only for “extreme malfunctions” in the state courts and is “not a substitute for ordinary error correction through appeal”).
2. Due Process (Ground II)
During his direct appeal, Petitioner argued that the “natural and probable consequences” jury instruction violated his right to due process of law and constituted plain error.Where the Oregon Court of Appeals denied this claim without discussion, I have conducted an independent review of the record as to its merits. As discussed above, the State prosecuted Petitioner as a principal who personally committed the crimes at issue, and it presented evidence of Petitioner's direct involvement in the crimes. As a result, the instruction at issue did not come into play so as to have a substantial and injurious effect on the proceedings. See Brecht v. Abrahamson, 507 U.S. 619 (1993). The due process claim therefore lacks merit. At a minimum, the Oregon Court of Appeals' decision is not so unreasonable as to justify habeas corpus relief. See Richter, 562 U.S. at 102 (“If [the habeas] standard is difficult to meet, that is because it was meant to be.”).
ORAP 5.45(1) provides a mechanism whereby an unpreserved claim may still be considered on appeal--"the appellate court may consider an error of law apparent on the face of the record." This provision allows the Oregon Court of Appeals to consider unpreserved errors of law which are "obvious" and "not reasonably in dispute." Ailes v. Portland Meadows, Inc., 312 Or. 376, 381, 823 P.2d 956 (1991).
C. Ground III: Jury Unanimity
Finally, Petitioner asserts that he was denied his Sixth and Fourteenth Amendment rights to a jury trial when the trial court permitted a non-unanimous jury to convict him. In Ramos v. Louisiana, 140 S.Ct. 1390, 1397 (2020), the Supreme Court concluded that a criminal defendant's Sixth Amendment right to a jury trial encompasses a requirement that the jury's decision be unanimous. However, on May 17, 2021, the Supreme Court concluded that Ramos does not apply retroactively to cases on collateral review. Edwards v. Vannoy, 141 S.Ct. 1547 (2021). Because Ramos does not apply retroactively to cases such as this one, Petitioner is not entitled to relief on this claim.
RECOMMENDATION
For the reasons identified above, the Amended Petition for Writ of Habeas Corpus (#59) should be denied and a judgment should be entered dismissing this case with prejudice. The Court should, however, issue a Certificate of Appealability limited to Grounds I, II, and IV(A) & (B) of the Amended Petition.
SCHEDULING ORDER
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 17 days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.