Opinion
CV 00-259-BR
August 26, 2002
STEVEN T. WAX, Federal Public Defender, ELLEN C. PITCHER, Assistant Federal Public Defender, Portland, OR, for Petitioner.
HARDY MYERS, Attorney General, CAROLYN ALEXANDER, Assistant Attorney General, Salem, OR, for Respondent.
OPINION AND ORDER
Petitioner, an inmate at the Oregon State Penitentiary, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Currently before the Court are Petitioner's Petition for Writ of Habeas Corpus (#1) and Motion to Expand the Record (#52).
For the reasons that follow, the Court DENIES Petitioner's Motion to Expand the Record (#52) and Petition for Writ of Habeas Corpus (#1). Accordingly, the Court DISMISSES this action.
BACKGROUND
A Marion County jury convicted Petitioner of Assault in the Fourth Degree for assaulting a fellow inmate in the Marion County Jail. At a pre-trial hearing, the prosecutor informed the trial judge he wished to have petitioner restrained in shackles during his trial. In response to a request from the court, the prosecutor filed a formal "Restraint Memorandum" to support his request. The memorandum detailed fourteen separate reasons for the prosecutor's motion, including adjudicated assaults, attempted escapes from police custody, failure to appear for court proceedings, and absconding from supervision.
In support of the memorandum, he prosecutor attached a copy of a pre-sentence investigation report that had been prepared following Petitioner's conviction on an unrelated offense.
On the morning trial was set to begin, a hearing was held out of the presence of the jury panel on the prosecutor's motion to shackle Petitioner. Petitioner's counsel vehemently objected to the restraints and disputed point by point the factual bases for the State's request. Counsel pointed out, inter alia, that Petitioner had been tried in Marion County only nine months before on unrelated charges without any allegation of untoward behavior by Petitioner during that trial. At the prosecutor's suggestion, the trial judge then questioned a sheriff's deputy present in the courtroom, who stated:
Basically, our position is we always like to keep people restrained, and we understand at times that can't be done.
But after reading the [pre-sentence investigation report] and [the prosecutor's] memorandum, I feel that Mr. Ramsey fits the profile of several other people that we have testified in restraint hearings about, and that he does meet what we feel is our criteria for someone who is likely to escape and to become disruptive.
The trial judge granted the prosecutor's request and ruled that Petitioner should be restrained with his right hand free to write without distracting noise. In support of his decision, the judge stated:
THE COURT: Thank you. One of the reasons for the right to appear free of restraint is the potential prejudice to the defendant before the jury.
I would just note that this case that's going to be immediately clear, if not during opening statement, it may actually be immediately clear to the jury, based on my opening remarks to them that this is a case where both [Petitioner] and [the victim] were inmates in an institution, so the likelihood of prejudice is substantially diminished, if not totally eliminated, by the fact that they will know both the criminal and defendant were in custody, and based on what you have said to me, I think they are still both in custody.
So the likelihood of prejudice has been eliminated with regard to whether they are in custody. This is a brand new jury panel. This is not — this jury is not going to have any idea as to whether or not a person who is in custody sits through trial in restraints or out of restraints.
And so for that reason, I think that the prejudice is diminished. . . .
I do think it's at this stage appropriate that I can rely on [the pre-sentence report] for purposes of making a determination as to whether or not [Petitioner] should remain in restraints.
First off, I think that it's very clear from the history, even just the things that [Petitioner] admits, that he has gone to great lengths to avoid sanctions for his criminal behavior. I don't consider allegation of one [sic] with regard to the defendant as violent background to be a substantial factor in my determination here today as to whether or not he is violent or not violent.
He is certainly an assertive defendant that has no qualms about asserting himself, either with the court or with the District Attorney. And so it's clear that he may have made those statements, I am not going to make that determination with regard to his violent background.
He is — with regard to the criminal charges asserted in allegation number 2, he is innocent until proven guilty. However, he has had a hearing that would indicate that someone has made a determination that he violated some rules. And he was given a 120-day sanction. So that is some evidence adding to his violent background.
The allegations 3, 4 and 5 are admitted. He did walk away from $8,000 posted in security, and failed to return for a jury verdict to avoid conviction in that case. And did engage in violence to avoid that sentence — or that arrest and later sentence which was a pretty substantial sentence.
Although the remainder of the charges — or the allegations 6 through 14 are disputed, there is evidence in the presentence that would substantiate them that leads me to conclude that [Petitioner], while in custody, with supervision close at hand, but not in handcuffs, although some of these are in handcuffs, has engaged in violence, and attacked other inmates, as well as Police Officers.
I do think that [Petitioner] is both an escape and an assault risk, and based on the fact that the evidence in this case will be that whatever took place in this case did take place with both [Petitioner] and [the victim] in custody, I find that the prejudice is eliminated.
The case proceeded to trial with Petitioner restrained. In addition to shackles on each ankle connected by a chain, Petitioner wore a belly chain attached to a handcuff on his left wrist. At the conclusion of the State's case-in-chief, Petitioner's counsel moved for a mistrial based on the restraints. The trial judge denied the motion.
Petitioner directly appealed his conviction, but the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. State v. Ramsey, 145 Or. App. 603, 930 P.2d 902, rev. denied, 325 Or. 247, 936 P.2d 363 (1997). Petitioner then sought state post-conviction relief (PCR). Following an evidentiary hearing, the PCR trial court denied relief. Again the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Ramsey v. Thompson, 160 Or. App. 289, 981 P.2d 400, rev. denied, 329 Or. 357, 994 P.2d 124 (1999).
Petitioner filed this action on February 22, 2000. In his Petition for Writ of Habeas Corpus, Petitioner alleges three grounds for relief:
Ground One: Petitioner was denied a fair and impartial trial in violation of the due process clauses of the 5th and 14th amendments to the U.S. Constitution.
Supporting Facts: When the trial court required petitioner to appear before the jury, at trial, in shackles petitioner was denied a fair trial by an impartial jury in violation of the Fifth and Fourteenth Amendments.
Ground Two: Petitioner was denied his right against self-incrimination in violation of the 5th and 14th Amendments to the U.S. Constitution.
Supporting Facts: Petitioner was deprived of his right against self-incrimination when the trial court required him to appear at trial, before the jury, in shackles, in violation of the Fifth and Fourteenth Amendments.
Ground Three: Petitioner was denied effective assistance of trial counsel in violation of the 6th and 14th amendments to the U.S. Constitution. Supporting Facts: Petitioner was denied effective assistance of trial counsel when counsel failed to do those things necessary to ensure that petitioner appeared in court before the jury, free of shackles.
Respondent concedes Petitioner fully exhausted his available state remedies with respect to all three grounds for relief. These grounds, therefore, are properly before this Court for review under 28 U.S.C. § 2254. Respondent argues, however, the decisions of Oregon state courts to deny Petitioner relief on these claims are not contrary to or unreasonable applications of clearly established law. Although Petitioner refutes Respondent's argument with respect to the claims he alleges in Grounds One and Two, he presents no argument on the claim alleged in Ground Three.
LEGAL STANDARDS
Determinations of factual issues by a state court are presumed to be correct, and a petitioner in federal court has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). A petitioner must present clear and convincing evidence to overcome § 2254(e)(1)'s presumption of correctness; conclusory assertions will not do. See Sumner v. Mata, 449 U.S. 539, 546-47 (1981) (court discusses former § 2254(d) presumption of correctness afforded findings of fact). For purposes of § 2254(e)(1), factual issues are defined as "basic, primary, or historical facts: facts in the sense of a recital of external events and the credibility of their narrators." Coombs v. Maine, 202 F.3d 14, 18 (1st Cir. 2000) (citations and internal quotation marks omitted). See also Townsend v. Sain, 372 U.S. 293, 309 n. 6 (1963) (by issues of fact, the Supreme Court means basic, primary, or historical facts: facts in the sense of a recital of external events and the credibility of their narrators), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992).
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 acts "contrary to . . . clearly established Federal law" if it arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if it decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412 (2000). See also Ramdass v. Angelone, 530 U.S. 156, 165-66 (2000); Tran v. Lindsey, 212 F.3d 1143, 1150 (9th Cir.), cert. denied, 531 U.S. 944 (2000). An "unreasonable application of clearly established Federal law" occurs if a state court identifies the correct governing legal principle from Supreme Court decisions, but unreasonably applies that principle to the facts of the prisoner's case or unreasonably refuses to extend the governing legal principle. Williams, 529 U.S. at 412; Ramdass, 530 U.S. at 166; Tran, 212 F.3d at 1120.
Under this standard of review, a federal court may not issue a writ merely because it concludes in its independent judgment that the state court applied clearly established federal law erroneously or incorrectly. Williams, 529 U.S. at 410-11. For a state court's application of federal law to be unreasonable, it must have been clearly erroneous. Tran, 212 F.3d at 1153.
When a state court does not articulate a rationale for its determination, a review of that court's application of clearly established law is difficult. As the Ninth Circuit explained: "[f]ederal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law." Delgado v. Lewis, 223 F.3d 976, 982 (2000) (citation omitted).
DISCUSSION I. Grounds One and Two — Trial Court Errors
Petitioner contends the trial court violated his constitutional rights to due process and a fair trial by ordering him to be shackled during his jury trial. In Illinois v. Allen, the Supreme Court addressed security measures in a courtroom setting. 397 U.S. 337 (1970). The Court found it was constitutionally permissible to bind and gag a disruptive defendant in a criminal trial. Id. The necessity for and extent of such security measures, however, is dependent on the facts:
[E]ven to contemplate such a technique, much less see it, arouses a feeling that no person should be tried while shackled and gagged except as a last resort. Not only is it possible that the sight of shackles and gags might have a significant effect on the jury's feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold. Moreover, one of the defendant's primary advantages of being present at the trial, his ability to communicate with his counsel, is greatly reduced when the defendant is in a condition of total physical restraint. . . . However, in some situations which we need not attempt to foresee, binding and gagging might possibly be the fairest and most reasonable way to handle a defendant who acts as Allen did here.
Id. at 344. A trial court's decision to shackle or even to gag a defendant, therefore, is not per se unconstitutional. Spain v. Rushen, 883 F.2d 712 (9th Cir. 1989) (citing Illinois v. Allen, 397 U.S. at 344), cert. denied, 495 U.S. 910, 110 S.Ct. 1937 (1990).
The Supreme Court expanded on this theme in Holbrook v. Flynn and addressed a claim that the presence of several armed guards in the courtroom was inherently prejudicial. 475 U.S. 560 (1986). The Court stated:
All a federal court may do in such a situation is look at the scene presented to jurors and determine whether what they saw was so inherently prejudicial as to pose an unacceptable threat to defendant's right to a fair trial; if the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over.
Id. at 572.
Consistent with Illinois v. Allen and Holbrook, the Ninth Circuit articulated a two-step test that a trial court must undertake before imposing courtroom security measures: "[f]irst, the court must be persuaded by compelling circumstances `that some measure was needed to maintain the security of the courtroom' . . . [and, s]econd, the court must `pursue less restrictive alternatives before imposing physical restraints.'" Jones v. Meyer, 899 F.2d 883, 884 (9th Cir.) (quoting Spain v. Rushen, 883 F.2d at 720-21), cert. denied, 498 U.S. 832, 111 S.Ct. 95 (1990).
Here the trial judge held a hearing prior to trial on the issue of Petitioner's restraint and found credible evidence that there was a risk of both the Petitioner's disruptive behavior and his escape. The trial judge, however, allowed the less restrictive alternative of removing the restraint from Petitioner's right wrist to allow him to write without the noise of shackles being called to the jury's attention. Finally, the trial judge noted the lack of prejudice likely from the restraints because the jury would be aware from the outset that both Petitioner and his victim were incarcerated at the time of the underlying assault. After an independent review of the record before the state courts on this issue, this Court concludes the decisions of the Oregon state courts concerning Petitioner's restraints were neither contrary to nor an unreasonable application of clearly established federal law. Accordingly, Petitioner is not entitled to the relief sought herein.
Assuming without deciding whether the additional information Petitioner wishes to present to this Court, which is outside of the state court record, could be admissible as an expansion of the record under Rule 7, Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254, Petitioner's motion is, nevertheless, denied because the proposed evidence would not assist the Court in determining whether relief is warranted on Petitioner's First and Second Grounds for Relief.
II. Ground Three — Ineffective Assistance of Counsel
As noted, Petitioner does not address Respondent's argument against Petitioner's claim of ineffective assistance of counsel presented in Ground Three of the Petition. After a review of the record from the state post-conviction proceeding, however, it is apparent Petitioner is not entitled to relief on this claim.
To prevail on a claim of ineffective assistance of counsel, Petitioner must show that his attorney's performance fell below an objective standard of reasonableness and that counsel's inadequate performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The first part of this test requires a showing that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. While this burden is not insurmountable, there is a strong presumption that counsel's conduct falls within "the wide range of reasonable professional assistance." Id. at 689.
To establish the second prong of the Strickland test, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. To determine whether a defendant was prejudiced by ineffective assistance of counsel, the court should examine whether the "`result of the proceeding was fundamentally unfair or unreliable.'" United States v. Palomba, 31 F.3d 1456, 1460-61 (9th Cir. 1994) (quoting Lockhart v. Fretwell, 506 U.S. 364, 368 (1993)).
The trial court in Petitioner's state post-conviction proceedings issued detailed Findings of Fact and Conclusions of Law. As noted, the state court's findings are presumed to be correct, and Petitioner bears the burden of rebutting this presumption of correctness by clear and convincing evidence.
Petitioner has not met that burden. In any event, the state court's denial of post-conviction relief to Petitioner was not contrary to nor an unreasonable application of the principles announced in Strickland to the facts of this case. Accordingly, Petitioner is not entitled to relief on the merits of his claim that he was denied effective assistance of trial counsel as alleged in Ground Three.
CONCLUSION
Based on the foregoing, the Court DENIES Petitioner's Motion to Expand the Record (#52) and Petition for Writ of Habeas Corpus (#1). Accordingly, the Court DISMISSES this action.
IT IS SO ORDERED.