Opinion
2:20-cv-00511-JE
09-20-2022
RYAN LAWRENCE ANTHONY, Petitioner, v. GARRETT LANEY, Respondent.
Thomas J. Hester, Assistant Federal Public Defender, Attorney for Petitioner Lisa M. Udland, Deputy Attorney General, Daniel Toulson, Assistant Attorney General, Attorneys for Respondent
Thomas J. Hester, Assistant Federal Public Defender, Attorney for Petitioner
Lisa M. Udland, Deputy Attorney General, Daniel Toulson, Assistant Attorney General, 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 Clackamas County convictions dated September 7, 2007. For the reasons that follow, the Petition for Writ of Habeas Corpus (#2) should be denied.
BACKGROUND
A portion of the factual background for this case is taken from the Umatilla County Circuit Court's General Judgment in Petitioner's post-conviction relief (“PCR”) action:
Casper Volk was an upholsterer and Ottilia, his wife, was a seamstress. After they retired, they continued to work/volunteer at the family furniture store. At the time of their deaths, Casper was 83 and Ottilia was 78. They were in good health. They were very security-conscious and very frugal. They always turned lights off when they were not needed. They kept the front door locked, and did not open the door to strangers. They did not have a checking account, and used cash for purchases. Various family members knew that Mr. Volk usually carried $200-400 in cash in his wallet.
Maggie McNeeley lived a couple blocks from her parents (the Volks) and she picked them up every weekday and took them to work. Maggie's daughter Diane (petitioner's then ex-wife) lived near her parents (Maggie and Roy McNeeley) and grandparents (the Volks). At various times Diane and petitioner stored and repaired vehicles at the Volks' - old Cadillacs and a Volkswagen. One time petitioner and Mr. Volk worked on a car together. Ann Hutchinson, Maggie's sister, had frequent contact with their parents and she never saw petitioner in their home.
Maggie McNeeley went to her parents' house on Monday morning July 28, 1980, about 9:00am, to take them to work. When her parents did not answer the door she noticed that it was unlocked, which was unusual. She entered and found a pool of blood. She then discovered her mother stabbed to death, face down with big holes in her back. She then located her father - also stabbed to death. His body was bloody and twisted. She called her brother, and then called 911.
The house was otherwise neat and orderly. There was no sign of a forced entry. No furniture was obviously moved. Nothing apparently was taken. Ottilia's purse was on the buffet in the dining room. The wallet inside it was empty but there was about $400 cash hidden in other places in the purse. The back door was locked. The windows in both bedrooms were open about 18-24 inches.
It was general knowledge within the family that the Volks had a strongbox full of cash. Maggie's sister knew the box was in the heat register. After the murders, the strongbox was in the register, with over $7,500 in cash still inside. It was closed, but unlocked. The police noticed that the buffet table had been moved slightly and a pendulum clock atop the table was stopped at 10:30. When the table was moved back, the clock was jarred and it began ticking again.
A forensic scientist examined the crime scene. He opined that the bodies were dragged to the places they were found, Casper Volk in the living room and Ottilia Volk in a bedroom. It appeared that Casper Volk's body had lain at its final location for a period, and then the body had been partly turned, giving access to his back pocket and wallet. The wallet was empty. There were indistinct footprints in the bloody drag marks. The expert opined that during a stabbing, a stabber could cut himself on the hand when the knife struck bone in a victim and the
knife slipped. This kind of cut is typically on the palm of the hand or on the fingers between the joints. The cut is typically sharp and clean and would bleed if large enough to require a stitch. A "hilt" abrasion is also common in this scenario. Forensic scientist Dr. Brady testified that he saw no evidence of such an injury to petitioner, and noted that the medical examiner's report contained no indication of one. Although an abrasion was noted above the cut, towards the upper portion of the thumb, petitioner's treating physician was unable to characterize either the cut or the abrasion as being the result of a knife-slip injury. The expert collected evidence, including a yellow/gold towel with blood on the dinette table, a pillowcase with blood that was in a closed top dresser drawer, and gray pants with blood on the front that were hanging in a closet.
The bodies had no defensive injuries, so apparently the victims did not fight the assailant. Casper Volk's body had a large stab wound in the back. He had a total of five stab wounds. Ottilia was stabbed eight times, four times in the front and four times in the back. The thirteen wounds were probably caused by the same weapon, a fairly large knife with a single-edged blade about an inch or an inch and a half wide. Some of the wounds were six or seven inches deep and would have hit bone on both victims. The Volks probably died around 10:00 p.m. on Saturday, July 26.
There were 21 fingerprints collected in the house and 8 have never been identified. No prints of petitioner's were found. DNA analysis was not yet available at the time of the murders.
Petitioner and Diane McNeeley met in late 1975, married in 1976 and later divorced in 1978, but they continued to have an "on and off” relationship. She was living with her parents in Lake Oswego when their son Travis
was born in March 1980. Diane and petitioner had conflict because he had girlfriends. Nevertheless, petitioner visited his children regularly. On Saturday, July 26, Diane had planned to go out with petitioner, but she could not get a babysitter for Kelly (age 3) and Travis (age 4 months) so she stayed home. She and petitioner spoke many times during the day. He called her between 10 and 20 times in the evening, and they argued about his girlfriends. They spoke about 9:30 p.m. and made plans to meet the next day at Washington Square with their children. He called again and woke her up about 1:00 a.m. Several of the calls that evening were collect.
On Sunday, July 27, she and the children met petitioner at Washington Square about 3:00 p.m. As soon as they met, petitioner took Travis, who was in a carrier/car seat. Diane did not see his hands. When they got to his parents' home in Hillsboro, petitioner put Travis down, changed his clothes, and went out to work on his pickup. Sometime later, he came back in the house with a cut on his right hand, covered with grease. His mother took him to the hospital. When he returned, his hand was bandaged.
The physician and nurse who treated petitioner that Sunday at the hospital reported that he had a cut on his hand that was clean, sharp, and superficial. It appeared to be fresh. It was about three-quarters of an inch, at the base of the thumb. There was a superficial abrasion next to the laceration. It occurred sometime from 15 minutes to 24 hours before petitioner went to the hospital at about 5:00 p.m. The cut would have bled. The wound was consistent with a cut from a knife and was not consistent with a puncture wound. The abrasion was consistent with an injury from the hilt of a knife. Petitioner told a friend that he had cut himself on the suspension spring on his pickup.
Petitioner was a suspect and was interviewed by police but not charged. On October 13, 1980, petitioner called Detective Salle and they met in a restaurant. Petitioner told Salle that he should investigate someone named Mike Lee. Petitioner then told Salle that on the night of the murders he had been riding the bus and as it went near the Volks' house, he got off and went to check on their welfare. The door to their house was ajar and the TV was on. He went in and discovered the Volk's bodies. He did not notify anyone. He moved the bodies so that Maggie McNeeley would not see them when she came to pick them up for work on Monday.
He acknowledged that he stepped in blood puddles and left footprints, which he tried to wipe out. He said he threw away the shoes he had been wearing that night. On October 15, 1980 petitioner and Salle met again at another restaurant. They spoke in Salle's car. During the conversation, petitioner drew a diagram of the scene as he remembered it. He said he had wiped the blood with a gold towel and he also wiped fingerprints with the same towel. He then left this towel on the kitchen table. When Salle seized the diagram, petitioner became agitated. Salle told petitioner that he was responsible for the murders. Petitioner became enraged, and screamed and stated that he did not kill them. Salle told him to calm down, and he did so. Salle met with Petitioner again on May 8, 198[1] and May 12, 1981. The police made no further efforts to contact petitioner until 2006. Detective John Harrington re-opened the case in 2004 after a call from Maggie McNeeley.
In 2005, cuttings from the yellow/gold towel, the white pillowcase, and the front pocket area of the gray pants from the bedroom were sent to the crime lab and tested for DNA in April 2006. The gray pants had both victims' blood on them. Two spots on the towel and
eight spots on the pillowcase had the DNA of an initially unknown male. The spots were later compared to a sample of petitioner's DNA and they matched. Two expert witnesses opined that the DNA on the towel and the pillowcase was from petitioner's blood. After the DNA match, Harrington went to petitioner's home and arrested him.Respondent's Exhibit 141, pp. 1-4.
At trial, Petitioner sought to introduce evidence that another person, Gary Allen Smith, had confessed to murdering the Volks. Smith was serving multiple life sentences for committing five different murders. One of his accomplices, William Perry Jackson, was also serving multiple life sentences stemming from the same murder spree.
In 1982, Jackson and Smith were both incarcerated in Lewis County, Washington. During that time, Jackson advised authorities that he had information on the Volks' murders. Detective Dave Tomlinson interviewed Jackson, who recalled three conversations he had with Smith:
That first conversation Mr. Jackson said that he had heard on the news about the Volk homicide, so he asked Smith about that. And that was - he thinks that was shortly after the - the murder. And the reason Jackson asked Smith is because Mr. Smith had some money. And Smith - Mr. Jackson said that Mr. Smith said that he did a job in Lake Oswego. And then Mr. Jackson asked Smith - Smith was it the people out in Lake Oswego, and Smith replied, “Me and Atherton.”
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The second - the second and third occasion, according to Mr. Jackson, both occurred at the penitentiary where they were - they were both in jail. And Mr. Jackson thinks the second conversation occurred about nine months after he had been arrested, and they were discussing crimes. And, excuse me, Mr. Jackson asked Smith about the . . . old people in Lake Oswego, and Mr. Jackson said Mr. Smith replied, “Me and Atherton did that one.” And Mr. Smith said that they'd been out -- they were out cruising on his scooter.
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The third conversation Mr. Jackson believes was in, I believe, December 1981. He was in the infirmary in the penitentiary, and Mr. Smith visited him. And Mr. Jackson said he'd received a letter, a typed letter, asking [Jackson] to confess to the Volk homicide and that also with a picture of the Volks included. And Smith said no one could prove it. And that was about all Mr. Jackson could remember about that conversation.Trial Transcript, pp. 382-84.
The reference to the Trial Transcript pages refers to the pagination in the bottom right corner of each page.
The defense subpoenaed Jackson to testify during a pretrial hearing in an attempt to have Smith's purported confessions introduced at trial. Jackson had initially told authorities within three or four weeks of the Volk murders that Smith had denied any involvement in that crime. Id at 121, 307-08. During the pretrial hearing 27 years later, however, Jackson testified that to the best of his recollection, Smith had made the three statements to him described above. However, he also testified that Smith had “made several statements to me. Several. And . . . figuring out what Gary says is true and not true is like - almost it's virtually impossible.” Id at 294. He stated that at the time of his 1982 interview, he believed Smith had been telling the truth, but “I don't believe so anymore.” Id. He further provided:
Because I never received all the - the full deal on - on even - or even understanding this person. I mean, now that I've known him, and I've known him for years, this guy would brag and boast about virtually anything if he thought you wanted to hear it. The guy is an idiot.Id at 295.
Smith also testified at the pretrial hearing. He denied having any involvement in, or familiarity with, the Volk murders. Id at 261-63.
Two additional eyewitness accounts are pertinent to this factual Background. On the day after the Volks' murder, David Jorling walked past the Volks' home at 10:30 p.m. and saw an unidentified man standing in the doorway. He also stated that there were two newer motorcycles parked across the street from the Volks' home. Id at 2040-45. At the time, Smith was known to ride a Honda motorcycle. Id at 289, 383.
Police showed Jorling a photo array containing Petitioner's picture, but Jorling was unable to identify him as the person he had seen in the Volks' doorway. Trial Transcript, pp. 1667-68.
Police reports indicated that two other witnesses stated that there were two motorcycles parked near the Volks' home on the day the murder took place. Trial Transcript, pp. 177-78, 531.
Violet Eilertson lived near the Volks' home and, on the night of the murder, saw two men walking in the parking lot of a nearby Safeway grocery store. She noticed that, despite the warm weather, the men were wearing long trench coats and were walking briskly. Id at 721-23. When she learned that the Volks had been murdered, she reported what she had seen in the Safeway parking lot.
Defense counsel, who had already submitted at least one memorandum on the issue, argued in favor of admitting Smith's out-of-court statements. In doing so, counsel relied not only upon the Oregon Evidence Code, but also the federal Due Process Clause:
Availability should not be a test regarding the admissibility of statement[s] against penal interest, and we have told the Court why we think that to be true, and that's of constitutional magnitude. That's a fundamental due process concept, and we've pointed that out to the Court. And we've [cited] the federal case law regarding that question, Chambers v. Mississippi, 410 U.S. 284, 1973.
* * *
So having said that then, my first position, judge, is this: The hearsay about which we're speaking, the statement against penal interest when offered by defendant, as we are in this case, is firmly rooted and requires no additional test of reliability. If the Court finds that in fact it is not a firmly rooted exception and does require a showing of reliability, we, through the presentation to this Court of the evidence that we have
provided, have demonstrated the reliability of Mr. Jackson in relation to his acting as a vehicle to introduce the declarant's statement.
Thirdly, we take the position, as a matter of constitutional law as we have described it in our memorandum, that availability of the declarant is not a prong which must be present to permit admissibility. And even if it were, then the declarant's denial that he made the statements is in fact a demonstration that he is unavailable and, therefore we admit that prong.
Those were the fundamental concepts that we pointed out to the Court in our memorandum. We've pointed out others, but I think those are critically important things for this Court to keep in mind as the Court is at least analyzing our positions.
* * *
And then I would argue in addition to that, if the Court for some reason determines that the statement against penal interest exception does not apply and that the residual exception does not apply, then I would advocate that as a matter of due process under the Chambers case and the other cases which we've cited, the statements against penal interest are so important to our defense of this case that they would be admissible under the residual exception and the constitutional rebuttal concepts which I articulated for the Court.Id at 520-23.
After discussing the issues with the attorneys at some length, the trial court issued a ruling that spanned more than 20 pages in which it concluded that Smith's alleged out-of-court statements were inadmissible. Id at 548-569. The trial court found that Smith was available to testify. Id at 556-57. It also noted that, according to Jackson, Smith “denied that he had had any involvement in the Volk murder here when Jackson purportedly asked him about that near in time to those events back in 1980.” Id at 559-60. With respect to the due process inquiry, the trial judge found that: (1) it was not clear that Smith had actually made the statements attributed to him; (2) to the extent he made the statements to Jackson, at least the first conversation described by Jackson in the midst of the duo's serial-killing crime spree was not of such a nature that a reasonable person would not have made it for fear of exposing himself to criminal liability; and (3) there were no corroborating circumstances that indicated the trustworthiness of the out-of-court statements. Id. at 558-69. The judge specifically concluded:
And clearly, Mr. Jackson, given his multiple statements about these events and the lack of clarity about those statements certainly would not raise this evidence in his recounting of this evidence to a level that would meet any kind of reliability test associated with the kind of due process claim analyzed in the U.S. Supreme Court Chambers opinion.
Now, also that's further given - further a problem for the defense in that Mr. Jackson as he testifies now about these events, indicates, you know, very clearly that he has no confidence in the statements - to the extent any were made, which he is again not very clear on - but to the extent that Mr. Smith made any statements to him, he is not at all confident that those statements were
true; that in fact, as he indicated, “That guy would brag about everything; he's an idiot,” and that “you couldn't believe in fact what he said.” He being Smith.
* * *
And so I again, would find that to be entirely unsupportable as a basis for a due process claim that this evidence would become admissible, ala Chambers.Id at 564-66. The trial court also determined that Jorling's statements about seeing motorcycles outside of the Volk residence and Eilertson's testimony concerning the two suspicious looking individuals at the Safeway were of very little value and did not corroborate Smith's purported out-of-court statements. Id at 56869, 763-64.
The jury convicted Petitioner on all counts (four counts of Aggravated Murder and two counts of Felony Murder), and the trial court sentenced him to multiple life sentences with the possibility of parole after the service of a total consecutive minimum sentence of 40 years. Petitioner took a direct appeal where, relevant to this habeas corpus case, he argued that the trial court erred when it prohibited him from offering Smith's out-of-court statements for the jury's consideration. Respondent's Exhibit 103. The Oregon Court of Appeals affirmed the trial court's decision in a written opinion. Respondent's Exhibit 106.
Petitioner next petitioned the Oregon Supreme Court for review. The Oregon Supreme Court ultimately allowed review, vacated the appellate decision, and remanded the case to the Oregon Court of Appeals for reconsideration in light of its decision in State v. Cazares-Mendez, 350 Or. 491 (2011). Upon remand, the Oregon Court of Appeals determined that its original opinion should have focused on the trustworthiness of Smith's statements. It concluded:
In Cazares-Mendez, the Oregon Supreme Court determined that the trial court had violated defendants' federal due process rights when it refused to allow them to present hearsay evidence from four separate and available witnesses that another person had confessed to the stabbing resulting in the victim's death. 350 Or. at 516.
The declarant was singularly untrustworthy. He was a self-confessed serial killer, serving five consecutive life sentences, whose testimony was, in the words of defendant's own appellate counsel, “disjointed and evasive.” When asked how many murders he had been convicted of, he replied, “It's difficult for me to testify, not having records before me to recall that[.]” He testified in court that he had no involvement in the Lake Oswego murders for which defendant was on trial. His supposed “confession” to Jackson - “Me and [another person, not defendant] did that one,” - was far from detailed, and was itself contradicted by his subsequent denials as to, among others, Jackson. Further, as we noted in our first opinion, nothing in the circumstantial evidence that defendant cites to bolster the theory that Smith was the perpetrator, and hence that Smith's “confession” was trustworthy, prove anything of the sort. In sum, applying the analysis that the Supreme Court mandates in Cazares-Mendez, we reach the same conclusion we reached in our first opinion. The Court did
not deny defendant due process of law by excluding hearsay evidence of Smith's confession.Respondent's Exhibit 111, p. 2. The Oregon Supreme Court denied Petitioner's subsequent Petition for Review. Respondent's Exhibit 113.
Petitioner next filed a PCR Petition in Umatilla County where, among other claims, he alleged that his direct appellate attorney was ineffective when she elected not to pursue a claim that the trial court erred when it denied Petitioner's motion to dismiss for pre-indictment delay. Respondent's Exhibit 119, p. 14. The PCR court denied relief on this claim, the Oregon Court of Appeals affirmed that decision without issuing a written opinion, and the Oregon Supreme Court denied review. Respondent's Exhibits 141, 145, 146.
Petitioner filed his pro se Petition for Writ of Habeas Corpus in this 28 U.S.C. § 2254 habeas corpus case on March 26, 2020. The Petition presents five grounds for relief with many sub-claims. After reviewing the record, this Court appointed counsel to represent Petitioner. With the assistance of appointed counsel, Petitioner argues two claims: (1) the trial court's refusal to admit Smith's alleged out-of-court statements violated Petitioner's right to due process; and (2) direct appellate counsel was constitutionally ineffective when she declined to appeal the trial court's denial of Petitioner's motion to dismiss based upon pre-indictment delay spanning 27 years. Respondent asks the Court to deny relief on the Petition because: (1) Petitioner failed to fairly present most of the claims within his pro se Petition to Oregon's state courts, leaving those claims procedurally defaulted and ineligible for review on their merits; (2) Oregon's state court decisions denying relief on Petitioner's properly preserved claims were neither contrary to, nor unreasonable applications of, clearly established federal law; and (3) Petitioner's claims lack merit.
DISCUSSION
I. 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 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 of § 2254(d)(1), 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).
Twenty-eight U.S.C. § 2254(d)(2) allows a petitioner to “challenge the substance of the state court's findings and attempt to show that those findings were not supported by substantial evidence in the state court record.” Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). A state court renders an unreasonable determination of the facts if it “plainly misapprehends or misstates the record in making its findings or where the state court has before it, yet apparently ignores, evidence that supports petitioner's claim.” Andrew v. Davis, 944 F.3d 1092, 1107 (9th Cir. 2019) (internal quotations omitted). A federal habeas court cannot overturn a state court decision on factual grounds “unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). This is a “‘daunting standard-one that will be satisfied in relatively few cases,' especially because we must be ‘particularly deferential to our state-court colleagues.'” Hernandez v. Holland, 750 F.3d 843, 857 (9th Cir. 2014) (quoting Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)).
II. Unargued Claims
As discussed above, with the assistance of appointed counsel Petitioner elects to provide briefing on his due process claim pertaining to the admissibility of Smith's out-of-court statements as well as his claim that direct appellate counsel was ineffective when she failed to appeal the trial court's denial of his motion to dismiss based upon pre-indictment delay. Petitioner does not argue the merits of his remaining claims, nor does he address any of Respondent's arguments as to why relief on these claims should be denied. As such, Petitioner has not carried his burden of proof with respect to these unargued claims. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (Petitioner bears the burden of proving his claims). Even if Petitioner had briefed the merits of these claims, the Court has examined them based upon the existing record and determined that they do not entitle him to relief.
Petitioner also requests an evidentiary hearing in his pro se Petition, but does not advocate for any such hearing in his supporting memorandum. To the extent Petitioner still wishes to pursue an evidentiary hearing, the record in this case is sufficiently developed to resolve the issues before the Court. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011); Gandarela v. Johnson, 286 F.3d 1080, 1087 (9th Cir. 2002).
III. Refusal to Admit Smith's Out-of-Court Statements
Petitioner alleges that the trial court violated his right to due process when it refused to allow him to present Smith's out-of-court statements. “Few rights are more fundamental than that of an accused to present witnesses in his own defense.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973). “It is clearly established federal law, as determined by the Supreme Court, that when a hearsay statement bears persuasive assurances of trustworthiness and is critical to the defense, the exclusion of that statement may rise to the level of a due process violation.” Chia v. Cambra, 360 F.3d 997, 1003 (9th Cir. 2004) (citing Chambers 410 U.S. at 302).
In Chambers, the Supreme Court addressed a situation where the trial court had refused to allow a criminal defendant to offer an out-of-court confession by a third party pertaining to the murder of a police officer. The trial court had flatly refused to admit the evidence due to Mississippi's “voucher” rule, which strictly prevented parties from impeaching their own witnesses. The Supreme Court noted that the “‘voucher' rule has been condemned as archaic, irrational, and potentially destructive to the truth-gathering process....” Id at 296 n.8.
The Chambers Court held that a state may not apply an evidentiary rule “mechanistically to defeat the ends of justice.” 410 U.S. at 302. Instead, it concluded that due process required courts to assess the reliability of the out-of court confession when determining whether to admit the evidence. In Chambers, the Supreme Court considered four factors to assess the reliability of the out-of-court confession: (1) whether the confession was made spontaneously to a close acquaintance shortly after the crime occurred; (2) whether the confession was against the penal interest of the declarant; (3) whether the confession was corroborated by other evidence; and (4) whether the prosecution had an adequate opportunity to cross-examine the declarant. Id at 300-01. Weighing these factors, the Supreme Court concluded that the exclusion of this critical evidence denied Mr. Chambers “a trial in accord with traditional and fundamental standards of due process.” Id at 302.
Petitioner asserts that Smith's three statements to Jackson were against his penal interests, that his initial admission was made very close in time to the killings, and that there was corroboration insofar as: (1) Smith participated in many random and brutal murders in the Portland metro area during the year that the Volks were murdered; (2) Smith's crime spree was characterized by home invasion robberies committed within several blocks of a major thoroughfare; (3) multiple eyewitnesses placed motorcycles parked near the Volks' home on the day of the murder as well as the night after the murder; and (4) Smith, not Petitioner, owned and rode a motorcycle during that time. Petitioner maintains that Smith's confession was critical to the defense where Petitioner had admitted that he discovered the Volks' dead bodies, moved them, and not reported the murders.
As detailed in the Background of this Findings and Recommendation, the Oregon Court of Appeals found Smith's confession to lack indicia of reliability, finding him to be “singularly untrustworthy,” evasive, and to have provided conflicting statements on the issue of the Volk murders including his testimony at the pretrial hearing that he had nothing to do with them. Respondent's Exhibit 111, p. 2. Petitioner argues that this analysis was an unreasonable application of Chambers and an unreasonable determination of the facts because it relied in part on the fact that Smith was a convicted serial killer when, in fact, when Smith made his first statement to Jackson, he was a free man and had not been charged with any of the murders. He also contends that it was unreasonable to conclude that nothing in the circumstantial evidence established the trustworthiness of Smith's statements. Petitioner's arguments are unavailing.
As an initial matter, unlike Chambers, the Oregon Court of Appeals did not mechanistically apply a state evidentiary law to exclude Smith's out of-court statements without regard to their trustworthiness. Instead, it carefully examined all circumstances surrounding the statements and determined that they did not bear indicia of reliability necessitating their admission. Petitioner contends that, contrary to the Oregon Court of Appeals' decision, there were sufficient indicia of reliability as to Smith's out-of-court statements to require their introduction to satisfy due process. This is not the case.
Smith made three statements to Jackson. The first statement wherein Petitioner allegedly said that he and Atherton had “done a job in Lake Oswego” was not a confession to the Volk's murder. It is even more dubious when one considers that Atherton was not charged in any of the murders Smith and Jackson participated in, and Smith indicated that Atherton would never have participated in a crime like that. Trial Transcript, p. 262 (“Atherton would not have done anything like that. He wasn't even associate[d] with us.”).
As the trial judge found, there was evidence that “Smith and Atherton were involved in this assault/robbery situation which might well have been the job that was mentioned.” Trial Transcript, p. 561.
Smith's second statement occurred while he and Jackson were both incarcerated at the Oregon State Penitentiary. According to Jackson, he asked Smith about the “old people in Lake Oswego” to which Smith responded, “Me and Atherton did that one.” This statement did not specifically identify the Volks, provided no details so as to be corroborative or indicative that Smith knew any particulars of the crime, and was not close in time to the crime where Smith allegedly made the statement nine months after the Volk murders. In addition, Smith again purportedly referred to a crime he claims to have committed with Atherton, a person he described as having no part of the group that participated in the murder spree.
Smith's final conversation with Jackson also occurred at the Oregon State Penitentiary. At that time, Jackson was in the infirmary where Smith came to visit him. Jackson reported to Smith that he had received a letter containing a picture of the Volks asking him to confess his participation in the murders. According to Jackson, Smith simply replied that the authorities wouldn't be able to convict Jackson of that crime. As with the first two statements, this, too, is not tantamount to a confession.
Putting aside the factual finding that Smith's statements did not constitute confessions, one of the Chambers factors the Oregon Court of Appeals did not address is whether the statements were against Smith's penal interests. Smith and Jackson were co-conspirators in serial killings in Oregon and Washington by the time Petitioner made his first statement to Jackson about “the job in Lake Oswego.” Given this unusual and disturbing dynamic, it is difficult to see how Smith could perceive any “confession” to Jackson as being against his penal interest.
In addition, unlike Chambers, Smith never provided a sworn statement confessing to the crime and none of his statements was spontaneous. See Chambers, 410 U.S. at 287. Moreover, Jackson not only initially claimed that Smith had denied any involvement in the Volk murders, but later testified at Petitioner's pretrial hearing that he no longer believed Smith was credible, labeling his former accomplice as an “idiot” and “habitual liar” who would “brag about anything.” Id at 292, 295, 304. In all of these respects, Petitioner's case stands in stark contrast to cases like Chambers in which highly-corroborated third-party out-of-court confessions have been mechanistically excluded from trial with no due consideration as to their reliability.
The remaining corroborative evidence Petitioner points to is circumstantial and speculative. The fact that Smith murdered several people in Oregon and Washington during the time the Volks were also murdered lends very little to the inquiry. The same can be said of the witness accounts of two motorcycles parked across the street from the Volks' home on the day of, and the day after, the murders. As the trial court recognized, “there's nothing about that circumstance which adds very much to the calculus here” and was no evidence that “the one motorcycle attributable or associated with Mr. Smith is somehow so distinctive as to suggest that the appearance as recounted of the motorcycle that was at the scene the following day after the murders somehow could be identified or tied.” Id at 568. Eilertson's recollection of two, unidentifiable men in trench coats at a Safeway whom she thought looked suspicious is also of very limited value.
In summary, the out-of-court statements Petitioner attributes to Smith were not tantamount to confessions to the Volk murders. Even if the statements could be construed to be confessions, the circumstances surrounding their utterance and the lack of other corroborating evidence fail to establish their trustworthiness. For all of the same reasons, Smith's statements were not crucial to the defense. Accordingly, due process did not require their admission at trial and the Oregon Court of Appeals' decision did not unreasonably apply Supreme Court precedent to this case, nor did it rely upon an unreasonable determination of the facts.
IV. Ineffective Assistance of Appellate Counsel
In his remaining claim, Petitioner alleges that his direct appellate attorney was ineffective for failing to appeal the allegedly unconstitutional pretrial delay that spanned 27 years. 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 attorney's performance resulted in prejudice. 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. In proving prejudice with respect to the performance of appellate counsel, a petitioner must demonstrate a reasonable probability that but for appellate counsel's failure, "he would have prevailed on his appeal." Smith v. Robbins, 528 U.S. 259, 285-286 (2000). “The likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. 86, 112 (2011) (citing Strickland, 466 U.S. at 693). When Strickland's general standard is combined with the standard of review governing 28 U.S.C. § 2254 habeas corpus cases, the result is a "doubly deferential judicial review." Mirzayance, 556 U.S. at 122.
At the time of Petitioner's direct appeal, Oregon's state courts used the U.S. Supreme Court's intentional delay standard set forth in United States v. Marion, 404. U.S. 307 (1972). State v. Heyer, 16 Or.App. 22 (1973). The Marion standard provides that due process protections apply if the prosecution intentionally injects pre-indictment delay to gain a tactical advantage, and the defendant is able to establish substantial prejudice. Marion, 404 U.S. at 324. Under this governing standard, appellate counsel filed Petitioner's Appellant's Brief on November 18, 2008 omitting the issue of pretrial delay. The Oregon Court of Appeals issued its decision in his case on April 14, 2010.
Almost one year later, on March 10, 2011, the Oregon Supreme Court adopted a different, “minority test,” set forth in United States v. Lovasco, 431 U.S. 783 (1977). It concluded that in order to demonstrate a due process violation for pre-indictment delay, a defendant must show that the prosecution culpably caused the delay, that the delay actually prejudiced the defendant, and courts must then weigh the prosecution's reason for the delay against the prejudicial impact upon the defendant to determine if due process is satisfied. Oregon v. Stokes, 350 Or. 44, 57 (2011). The essential difference between the Marion test and the Lovasco test is that the former requires a defendant to affirmatively show that the prosecution intentionally delayed the indictment so as to secure a tactical advantage, whereas the latter does not require such a showing and, instead, requires only balancing of the reasons for the prosecution's delay with the resulting prejudice to the defense.
The PCR court examined Petitioner's case under both standards:
Petitioner failed to prove that his appellate attorney was ineffective for failing to raise the trial court[']s denial of Petitioner's motion to dismiss for pretrial delay. The issue was fully litigated in the trial court and the trial court found that the state did not delay prosecution to gain a tactical advantage or that, even using a negligence standard, there was no culpability on the state's part. The trial court further found that the Petitioner failed to show actual non-speculative prejudice from the delay. There was evidence in the record to support these findings. Appellate counsel made a reasonable decision to not raise the issue on appeal.
Petitioner also failed to prove prejudice. Petitioner has not proven that failing to raise the issue on appeal had a tendency to affect the outcome. There was no showing that there was any likelihood of success if the issue were raised on appeal.Respondent's Exhibit 141, p. 7.
Petitioner argues that the PCR court employed the wrong legal standard by requiring him to show that the prosecution intentionally delayed the indictment in order to secure a tactical advantage. However, at the time appellate counsel filed the Appellant's Brief, the standard in Oregon was the Marion standard. This remained true through the time that the Oregon Court of Appeals issued its decision in Petitioner's case. Nevertheless, the PCR court specifically found that even using a negligence standard, there was no culpability on the State's part.
Petitioner also takes issue with the PCR court's conclusion that he could not establish prejudice, claiming he had seven potentially significant witnesses he could not call at trial because they passed away during the 27-year delay in filing the indictment. In addition, he asserts that three other fact witnesses could not recall the underlying events by the time the State prosecuted his case. Petitioner further argues that not only were these witnesses no longer available to the defense due to the passage of time, but the DNA evidence established virtually nothing of significance because he had already admitted in October of 1980 that he had been at the crime scene, moved the Volks' bodies, and cleaned up their blood with a towel that he left at the scene.
While Petitioner had admitted being at the Volks' home in the aftermath of the crime, the DNA evidence was significant because it showed Petitioner's blood at the scene, not just traces of other DNA. Due to technological limitations, it was not possible for authorities to discover that information until breakthroughs in DNA technology and federal funding for the Oregon Crime Lab in 2004 made it possible for it to utilize more sensitive equipment to test old, degraded DNA evidence from 1980.
In preparing Petitioner's appeal, appellate counsel was confronted with a record that showed that the trial court held an in-depth two-day hearing on the motion to dismiss for preindictment delay at which it carefully considered the issue. The record would have also revealed not only that the State routinely checked with the Oregon Crime Lab and took a trip to FBI Headquarters in Quantico, Virginia, to see if it could find a way to mine its available evidence so as to identify a perpetrator, but also moved quickly once it was able to have the DNA evidence accurately tested. Appellate counsel faced this daunting record at a time when she would have to establish that the prosecution intentionally delayed bringing charges for 27 years for the purpose of gaining a tactical advantage. "Strickland does not mandate prescience” such that counsel was not required to anticipate that the Oregon Supreme Court would, in the future, adopt a more lenient standard. Sophanthavong v. Palmateer, 378 F.3d 859, 870 (9th Cir. 2004) (citing Strickland, 466 U.S. at 690); see also Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (lawyers not required to anticipate decisions, and conduct must be evaluated at the time of that conduct).
In light of this record, appellate counsel was not ineffective when she made the strategic decision not to raise the pre-indictment delay issue, and Petitioner has not established that the result of his appeal would have been different even if she had. Accordingly, the PCR court's decision was not unreasonable in its application of clearly established federal law or its factual determinations. Habeas corpus relief should therefore be denied.
RECOMMENDATION
For the reasons identified above, the Petition for Writ of Habeas Corpus (#2) should be denied and a judgment should be entered dismissing this case with prejudice. The Court should grant a Certificate of Appealability as to the due process and ineffective assistance of counsel claims Petitioner argues in this case.
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.