Opinion
Civil No. 02-1083-BR.
August 27, 2004
LISA HAY, Assistant Federal Public Defender, Portland, OR, Attorney for Petitioner.
HARDY MYERS, Attorney General, LYNN DAVID LARSEN, Assistant Attorney General, Salem, OR, Attorneys for Respondent.
OPINION AND ORDER
Petitioner brings this habeas corpus action pursuant to 28 U.S.C. § 2254 challenging the legality of his 1996 conviction for Murder with a Firearm. Currently before the Court is the Petition for Writ of Habeas Corpus (#2). For the reasons that follow, the Court DENIES the petition and DISMISSES this action.
BACKGROUND
On November 24, 1995, Petitioner began drinking alcohol sometime between 10:00 a.m. and noon. Petitioner consumed approximately one liter of brandy, one-half liter of tequila and numerous beers. Petitioner also used cocaine.
Early in the evening, Petitioner was in a parking lot behind a restaurant in Salem, Oregon. Shots were fired, and police were called. Prior to the officers' arrival, Petitioner began going through parked cars in an attempt to gain entry. Fred Gruber, the victim, approached Petitioner to ask what he was doing. Petitioner left the car and walked toward Mr. Gruber, who yelled to bystanders that Petitioner had a gun. Mr. Gruber sprayed Petitioner with mace. Petitioner fell to his hands and knees, and Mr. Gruber struggled with him over the gun. The firearm discharged. Mr. Gruber fell back, and witnesses testified that Petitioner then held the gun in both hands, aimed, and fired a second shot point-blank at Mr. Gruber.
Mr. Gruber managed to move a short distance to an open doorway. Petitioner initially stood still, then walked away down the street. Police officers apprehended Petitioner after he attempted to elude them. According to a police officer, after being taken into custody, Petitioner said: "That mother-fucker sprayed me and I shot him, boom boom. I want to pay, I know, even if it means ten years." Trial Transcript, p. 237. Mr. Gruber died from the gunshot wound.
Petitioner was charged with Murder with a Firearm. At trial to a jury, several witnesses testified as to Petitioner's apparent intoxication at the time of the shooting. Petitioner himself testified that he had been drinking a lot that night, and that he had "over-indulged." The jury was not informed, however, of the amount of alcohol consumed, the fact that Petitioner had consumed cocaine, or the fact that Petitioner's blood alcohol level was .20 some two hours after the shooting. Petitioner's attorney argued in closing that Petitioner was too intoxicated to form the intent necessary for a finding of guilt on the murder charge, and the jury was instructed on lesser-included offenses.
The jury convicted Petitioner of the charged offense, and the trial judge sentenced him to 30 years of imprisonment. Petitioner appealed the imposition of the sentence, but the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. State v. Rojas-Hernandez, 151 Or. App. 804, 960 P.2d 394 (1997), rev. denied, 326 Or. 465, 952 P.2d 65 (1998).
Petitioner then sought state post-conviction relief ("PCR"). Following an evidentiary hearing, the PCR trial judge denied relief. Petitioner appealed, but again the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied relief. Rojas-Hernandez v. Palmateer, 178 Or. App. 536, 39 P.3d 292 (2001), rev. denied, 334 Or. 121, 47 P.3d 484 (2002).
On August 8, 2002, Petitioner filed his Petition for Writ of Habeas Corpus in this court. Petitioner alleges he was deprived of effective assistance of trial counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution because:
Trial counsel failed to hire an expert and produce testimony at the trial of the effects of alcohol intoxication on a person, as well as the effects of the cocaine usage; specifically, this evidence could have been used to argue that the defendant's ability to form the intent to commit the murder was affected and that he did not intentionally kill the decedent.
Petitioner initially alleged eight separate claims of ineffective assistance of trial counsel. He subsequently waived the remaining seven claims.
Respondent contends Petitioner is not entitled to relief because the state PCR court decision is not contrary to or an unreasonable application of clearly established federal law.
DISCUSSION
Under § 2254(d)(1), a state prisoner may obtain federal habeas corpus relief with respect to a claim adjudicated on the merits in state court only if the state court's ruling was either (1) contrary to clearly established federal law, as determined by the Supreme Court of the United States, or (2) involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States. Williams v. Taylor, 529 U.S. 362, 404-405 (2000). These clauses have independent meanings, but in some cases they may overlap. Id. at 408.A state court's decision can be "contrary to" clearly established Supreme Court precedent if: (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or (2) the state court "confronts a set of facts that are materially indistinguishable" from a Supreme Court case, but still reaches a different result. Id. at 404-408, 413.
In cases where the state court applies the proper legal rule, which is the clearly established federal law at the time of the state court's decision, the federal habeas corpus court will examine the state court's decision under the "unreasonable application" clause. Id. at 406-408. A state court decision involves an "unreasonable application" of Supreme Court precedent if: (1) the state court identifies the correct governing rule, but then applies it to a new set of facts in an unreasonable way, or (2) the state court either unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply. Id. at 406-409.
"[A] federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable. . . . [A]n unreasonable application of federal law is different from an incorrect application of federal law." Id. at 408-410. A federal court may not issue a writ even when it concludes, based on its independent judgment, that the state court, in reaching its decision, applied clearly established federal law erroneously or incorrectly. Id. at 411.
Under 28 U.S.C. § 2254(d)(2), this Court may also grant habeas relief if the state court's decision was based on an unreasonable determination of the facts in the state record. Before relief may be granted under this clause, the state court's decision must be more than merely wrong; it must be objectively unreasonable. Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). The Ninth Circuit describes this as a "daunting standard," which will "be satisfied in relatively few cases." Id. at 1000.
Under clearly established Supreme Court law, to prevail on a claim of ineffective assistance of counsel, a petitioner must show that his trial counsel's performance fell outside the wide range of reasonable professional assistance and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Weighall v. Middle, 215 F.3d 1058, 1062 (9th Cir. 2000). There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689.
A petitioner must identify the acts or omissions of counsel that petitioner alleges were not the result of reasonable professional judgment. Id. at 690. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the range of professionally competent assistance. Id.
If counsel's performance is found to be deficient, any deficiencies must be prejudicial to the defense in order to constitute ineffective assistance of counsel. Id. at 691. Prejudice occurs where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. . . . A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
In this case, the PCR trial judge's Findings of Fact and Conclusions of Law is the last reasoned decision from the state court. The PCR judge applied Strickland in denying Petitioner's PCR petition, issuing the following pertinent findings of fact and conclusion of law:
FINDINGS OF FACT
1. Petitioner received adequate assistance of counsel.
2. Regarding the failure to produce evidence of cocaine use as it related to the intoxication/mental impairment defense, the court finds that the defense counsel's decision was within the range of decisions a competent trial attorney would make. If the jury was aware that defendant consumed an illegal drug, it is unlikely that they would have been able to set aside the prejudice this created to analyze how it diminished or affected the defendant's ability to form the intent. Furthermore, petitioner's intoxication was proven by his own testimony and that of eyewitnesses, and counsel argued petitioner was too intoxicated to form intent without bringing in evidence of cocaine use.
* * *
9. Counsel was adequate in her argument that petitioner acted in self-defense because he could not form the intent to commit murder due to his intoxicated mental state.
CONCLUSIONS OF LAW
1. Based on the findings of fact set forth above, in the underlying criminal proceedings resulting in petitioner's conviction, petitioner was not denied the right to assistance of counsel, as guaranteed by either the United States Constitution and as articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), or the Constitution of the State of Oregon.
Resp. Exh. 118, pp. 2, 5.
As noted, the state court's findings of fact are presumed to be correct, and Petitioner bears the burden of rebutting this presumption of correctness by clear and convincing evidence. Upon a thorough review of the record, including the trial transcript and the record before the PCR court, this Court concludes Petitioner has not met that burden.
Petitioner's trial counsel made a tactical decision not to introduce toxicology evidence of Petitioner's blood alcohol content or cocaine usage on the day of the shooting. Instead, trial counsel introduced evidence of Petitioner's apparent intoxication through witnesses, including Petitioner's own testimony. Counsel adequately argued Petitioner could not form the necessary intent to commit murder due to his intoxicated mental state, an argument the jury obviously rejected. Counsel's decision was not outside the range of reasonable professional assistance, and there is not a reasonable probability that the result of the proceeding would have been difference had the evidence in question been proffered to the jury.
This Court finds that the state court's denial of postconviction relief to Petitioner was neither contrary to, nor an unreasonable application, of Strickland to the facts of this case. Nor was the PCR judge's decision based on an unreasonable determination of the facts in the state record. Accordingly, Petitioner is not entitled to relief on the merits of his claim that he was denied effective assistance of trial counsel.
CONCLUSION
For these reasons, the Court DENIES the Petition for Writ of Habeas Corpus (#2), and DISMISSES this action.
IT IS SO ORDERED.