Opinion
CV 99-1273-BR
January 25, 2001
STEVEN T. WAX Federal Public Defender ANTHONY D. BORNSTEIN Assistant Federal Public Defender Portland, OR 97204 Attorneys for Petitioner.
HARDY MYERS Attorney General DOUGLAS Y.S. PARK Assistant Attorney General Department of Justice Salem, OR 97310. Attorneys for Respondent.
OPINION AND ORDER
Petitioner, an inmate at the Eastern Oregon Correctional Institution, brings this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the legality of the sentence imposed after his 1995 plea of guilty to Solicitation of Murder. Petitioner alleges he received constitutionally inadequate assistance of counsel when trial counsel failed to introduce at the sentencing hearing two witness statements for mitigation purposes. For the reasons that follows, the Petition for Writ of Habeas Corpus (#2) is DENIED.
Petitioner asserted additional grounds for relief in his Petition for Writ of Habeas Corpus, but he withdrew these claims in his memorandum in support of the Petition.
BACKGROUND
A. The Murder
On July 19, 1992, Petitioner solicited the murder of Steven Novakowski. Petitioner believed Novakowski, a young man living on Petitioner's property, was sexually involved with Petitioner's minor daughters. Over the course of a discussion on that date with Travis Peterson, another young man who previously had lived with Petitioner and who is the nephew of Petitioner's wife, an intoxicated Petitioner told Peterson Novakowski should be killed. Petitioner also has acknowledged he made a statement to the effect Novakowski should be castrated.
Hours later, Peterson and his girlfriend, Shawna Davis, took Novakowski to an isolated area where Peterson tied Novakowski up, tortured him by playing "tick-tack-toe" on his chest with a knife, and cut one of his legs so severely that knife marks were left in his femur. Then Peterson cut off Novakowski's genitals and made him crawl into a depression where Peterson stabbed him, cut his throat, and also dismembered Novakowski's head and hands. Peterson covered up the remainder of the body. The following morning, Peterson told Petitioner what he had done, and Petitioner helped Peterson dispose of the body parts. Novakowski's grandmother reported him missing some six months later. When contacted regarded Novakowski's whereabouts, Petitioner repeatedly stated Novakowski had simply walked away from Petitioner's house one day and never came back. Three years later, Peterson confessed to Novakowski's murder and showed authorities where the remains were hidden.
B. The Guilty Plea and Sentencing
On August 7, 1995, Petitioner was indicted by a grand jury in Deschutes County, Oregon, on charges of Aggravated Murder (three counts), Conspiracy to Commit Murder (two counts), and Murder. Pursuant to plea negotiations, Petitioner pleaded guilty to one count of Solicitation to Commit Murder, and the state dismissed all other charges.
In the colloquy with the court at his plea hearing, Petitioner admitted he asked Peterson to kill Novakowski:
COURT: * * * Mr. Bishop, the District Attorney's information says on about July 19th, 1992, in Deschutes County Oregon that you solicited Travis Peterson to kill Steven Novakowski, is that true?
PETITIONER: That's true, Your Honor.
COURT: What did you do to solicit Mr. Peterson to kill Mr. Novakowski?
PETITIONER: I believe on that day, Your Honor, when I was told that Mr. Novakowski had been sexually abusing my two older daughters; I was drinking, I was very angry, and I could not get Mr. Novakowski to admit to or deny that he had committed this and just infuriated me that much more. Someplace along the line I'm sure that I asked Mr. Peterson to kill Mr. Novakowski.
COURT: Well, when you say that you are sure that you did it that leads me to believe you're not sure.
PETITIONER: Well, I would say I did ask him to just go ahead and kill Mr. Novakowski.
COURT: Is there any question in your mind today that — about whether you did that or not?
PETITIONER: No, Your Honor.
COURT: When you asked him to do that did you intend that he do it?
PETITIONER: Yes, sir.
COURT: You wanted him to do it?
PETITIONER: Yes, sir.
COURT: Did you expect him to do it?
PETITIONER: Yes, sir.
COURT: The indictment says that you solicited actually to Mr. Peterson to intentionally kill Steven Novakowski. Is that what you mean.
PETITIONER: Yes, sir.
COURT: And you agree that that would constitute the crime of murder.
PETITIONER: Yes, Your Honor.
COURT: Mr. Peterson actually went ahead and killed Mr. Novakowski didn't he?
PETITIONER: Yes, he did.
COURT: Were you present when that happened?
PETITIONER: No sir, I was not.
COURT: You said that you were drinking on that occasion. You are not offering that today as an excuse for conduct are you? And you are not suggesting today are you that you didn't know what you were doing at the time?
PETITIONER: No, Your Honor.
COURT: Just to make it clear, so that there's no question later, you intended that Mr. Peterson kill Mr. Novakowski when you asked him to do that.
PETITIONER: Yes, sir.
Respondent's Exhibits to Answer ("Resp. Exh."), Exh. 114 at pp. 9-12.
The trial judge then engaged Petitioner in a colloquy concerning the maximum possible sentence and the rights Petitioner would relinquish by his plea. The court concluded the plea was freely, voluntarily, and intelligently made, and the court accepted it. The court ordered a Presentence Investigation Report and set the matter for sentencing at a later date.
It is undisputed Petitioner solicited Peterson to murder Novakowski because Petitioner believed Novakowski had been sexually involved with his daughters. At the sentencing hearing, however, the prosecutor also asserted Petitioner intended for Peterson to torture and to mutilate the victim:
[T]he victim lived with the defendant for a number of years. He looked to the defendant as a father figure. At the time that this aggravated murder took place he was residing with the defendant and the defendant's family.
Now, on the date in question and this is according to defendant's taped statement to Detective Decker whom I believe is still in the courtroom. Consistent with statements that Travis Peterson and Shawna Davis made as well, though perhaps inconsistent with some other evidence in the case. On the date in question the defendant claimed that he had just learned that the victim, Steven Novakoski, had been involved in a sexual relationship with the defendant's daughters. The defendant was upset about that.
He called another young man, Travis Peterson, who had been — at times had lived with the family. He was also very close with the family. He was living apart from them at this particular time. And asked him to come out to the Bishop property. Travis Peterson came out to the Bishop property.
It was then that the defendant confronted the victim about being involved sexually with his daughters and the victim would neither confirm it nor deny it. Which the defendant, no doubt, quite reasonably construed as an admission, that in fact the victim had been sexually involved with them. The defendant then began to converse with Travis Peterson about what should be done to Steven for this atrocious crime.
They decided not to call the police, because the police never do anything about sexual offenders. So they ruled that option out and then they began discussing killing Steven, and this discussion by all accounts went on for well over an hour, probably closer to two hours. During the conversation the defendant repeatedly told Travis Peterson that he wanted him to kill Steven.
He wanted him to take him out and cut his balls off and his penis off and bring them back to him. Travis Peterson would say to the defendant, what are we going to do with the body. And the defendant would say well, take him out on the property — this location on the property roughly a mile from the house where nobody will see the murder take place and the other savagery.
Travis Peterson said well, what are we going to do with the body? We can't just leave it out there. The defendant said, cut off the head, cut off the hands, along with the genitals, and bring them back. That way the body can't be identified.
The victim's name is spelled alternatively as "Novakowski" and "Novakoski" throughout the record. In the interest of accurately reflecting the record, the alternative spellings are repeated here. Likewise, the varying spellings of "Chenoweth" and "Littledeer" are set forth here as in the record.
Travis Peterson went out and he did just exactly just what the defendant commanded him to do. Sentencing Transcript ("Sent. Tr.") at pp. 101-03. Counsel for Petitioner, on the other hand, repeatedly stated at various points in the sentencing hearing that Petitioner did not intend for Peterson to torture or sexually mutilate the victim:
[Petitioner] never admits, in fact denies, that he had any idea that Steven Novakoski was going to be tortured. That he never asked anyone to do it, that he didn't countenance it or anything else, that he was angry, and that he made the statement to Travis Peterson. . . .
* * *
During the discussion with PSI writer she asked Mr. Bishop what happened and he said yeh, at some point during that conversation I made the statement, he ought to have his balls cut off, when he was angry. Not that he gave an order and that is the statement that he made to PSI writer, yeh, that sometime during that during this long diatribe I was having because I was very angry. There's admittedly also a lot that's not in here that he told her regarding how this all came about, and that he was very upset, had been drinking very heavily, and that some point in there he had no doubt that he made the statement among other things, he ought to have his balls cut off.
But taking that and implying that he ordered him castrated or that he ordered him castrated prior to his death, or that he ordered his death at all. . . .
* * *
. . . I submit that Mr. Bishop did not and would not refuse to enter a plea to anything to do with aggravated murder. Because by his and I believe the factual lights he didn't know there was going to be an aggravated murder. He didn't condone an aggravated murder. He didn't condone the torture. The remark about his balls was a chance remark made in anger about just he ought to have his balls cut off.
Not in connection with killing him or go out and do it. It was an angry father, intoxicated, shooting his mouth off. Regretably, Travis Peterson, because he had an agenda of his own, that was all he needed to go do what very likely he was going to do anyway.
Sent. Tr. at pp. 92, 95-96, 114-15.
The sentencing judge also considered the Presentence Investigation (PSI), which contained the following accounts of Petitioner's statements about mutilation before the murder:
SCOPE OF CRIME * * *
"Davis (Shawna) related that on the day Steven (Novakowski) was killed, she was present at the Bishops residence with Ron Bishop, Richard Gumms (Petersen's brother) and Travis Peterson discussed what they were going to do to Novakowski for having sexual contact with Ron Bishop's two minor daughters. During the discussion, she heard Bishop tell Petersen that Novakowski `should have his balls cut off for this' and should be killed for what he did to his girls. According to Davis, Petersen was `obsessed' with killing Steven and had told Bishop `I want him give him to me.' Bishop, who was intoxicated and extremely angry at the time, replied, `He's yours, bring back his balls.' Davis stated that the conversation scared her and she tried to convince Petersen to let everything go and let Bishop kill Steven if he really wanted to."
* * *
Defendant's Statement
* * *
When asked what he believed he was guilty of Bishop stated "losing my temper." Bishop elaborated by stating that he did not have knowledge of Travis' intent to torture Steven but he was aware that Travis "liked to hurt (unclear as to what)." Bishop stated that he believes that the only order he gave was that Steven be castrated.
Relative to sentencing, the defendant was asked by writer "what do you feel should happen at sentencing." The defendant never clearly answered this question but threw out statements such as "maximum probation so I can go home to my family." Bishop, again reiterated that he did not approve of how Travis killed Steven. Resp. Exh. 115 at pp. 5-6, 7.
The trial judge sentenced Petitioner to 110 months, imposing an upward durational departure from a presumptive guideline sentence of 51 to 55 months. In doing so, the judge found as fact that Petitioner intended for the perpetrator of the murder to mutilate the victim. The judge articulated three independent bases to support the departure sentence:
I believe the facts as outlined by the scope of the crime to be of sufficient veracity that I can rely upon this. I understand that there may be differences about how the facts are but I am confident in this, and that is that the defendant plead guilty to the offense of soliciting murder. I am confident that he was not there when this event occurred.
I am confident that he spoke to the actual perpetrator, and I'm further confident that in the discussions, although I don't believe he used these words, but he indicated that the perpetrator was to in fact castrate the victim.
So, are there aggravating factors? It's up to the Court to make its own decision. I cannot find that factor B is applicable. In terms of factor E, implicit in the defendant's solicitation of murder was the offense or the direction to castrate the victim. So he must have known that, at least at the time that this took place, i.e. a knife or some instrument would have had to been used to do that. So E is applicable.
J- the degree of harm attributed to the current crime of conviction was significantly greater than typical for such an offense. Well, that's applicable. A murder did in fact occur. The victim in this case died as a result of this solicitation.
Finally, it's up to the Court to take a look at these and not specifically put down as an aggravating factor was this. I've never heard of such a thing before, but when the defendant solicited murder he demanded a trophy, directed a trophy be brought to him; that being the genitals of the victim, to insure, that in fact, the solicited murder was in fact completed. Implicit in this demand is either an abuse of the corpse or torture by removing the genitals while the victim is alive. I find that is a third aggravating factor which is there.
In terms of these aggravating factors, any one of which the Court considers sufficient on its own merits to justify an upward departure. Now in looking at this crime as a whole one can only conclude that this is a disgusting and violent situation where one not only solicits murder but insures that the person is totally degraded in the process.
Frankly, it's hard for this Court to understand how one human being could direct this be done on another human being. It conjures up more of perhaps something that might have been done as an atrocity in a war-like zone, not something that we would perceive could happen here in the State of Oregon.
In any event there are three substantial and compelling reasons which the Court finds to depart upward and the Court does. Any one which is sufficient by themselves to substantiate an upward departure.
Sent. Tr. at pp. 126-128.
Petitioner directly appealed the sentence and asserted none of the aggravating factors cited by the trial court were sufficient to allow for an upward departure in Petitioner's sentence under state law. Because the trial judge found any one of the three cited aggravating factors independently would support the upward departure, Petitioner, in order to prevail, had to establish on direct appeal that none of the three aggravating factors were warranted under Oregon law. Petitioner failed to do so. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review when presented with the same question. State v. Bishop, 146 Or. App. 248, 930 P.2d 901, rev. denied, 325 Or. 280, 936 P.2d 987 (1997).
C. The State Post-Conviction Proceeding
Petitioner then filed a petition for state post-conviction relief which included, inter alia, the claim of ineffective assistance of trial counsel at sentencing for trial counsel's failure to proffer the witness statements of Richard Chenoweth and Marvin Littledeer to support Petitioner's contention he did not intend for the murder victim to be mutilated. In a deposition taken in connection with the state post-conviction proceeding, Petitioner was asked about the content of the statements made by Chenoweth and Littledeer and gave the following response:
QUESTION: . . . You say that trial counsel did not introduce statements of Richard Chenoweth and Marvin Littledeer at petitioner's sentencing for purposes of mitigation. What would Richard have said?
ANSWER: Would you like to read the statements?
QUESTION: No, it's all right. If you could just tell me the essence of what he said.
ANSWER: The essence of what Richard Chenoweth stated in his statement was that according to Mr. Peterson, that I had no knowledge of this murder or the brutal torture, dismemberment until the following day. That was the basic essence of his statement.
Marvin Littledeer's is exactly the same. These two statements are consistent with Mr. Peterson's initial statements; Mr. Gumm's original statements; the other co-defendant, Miss Davis, her statements; and my own. These two statements are consistent with all of those statements.
Resp. Exh. 112 at pp. 13-14.
At trial on the post-conviction petition, Petitioner testified as follows:
QUESTION: Paragraph 7 of your petition, I'd like to move on to a claim where you say your trial counsel erred by not introducing statements by a Richard Chenowith and a Martin — Marvin Little Deer at your sentencing?
ANSWER: Yes.
QUESTION: For purposes of mitigation?
ANSWER: Yes.
QUESTION: What would those people have said? Could you summarize —
* * *
QUESTION: Can you summarize why their statements would have been in mitigation of your sentence?
ANSWER: Basically, their statements confirmed my original statements that everything I knew about this crime was the day after it happened.
And, also, those statements were from the same person who had given the prosecution his statement of fact.
I believe they would have challenged the State's key witness's credibility as to the validity of the statement of fact.
QUESTION: Did you tell your attorney about these statements?
ANSWER: No. My attorney knew about these statements. He hired the investigator to get the.
QUESTION: Okay.
ANSWER: Mr. Dave Rogers. I knew of the statements because Dave Rogers came by the Justice Facility, told me he had taken them and that they were, his words were, dynamite.
I asked him for a copy of the statements. He said, that will be up to your attorney. I asked Ralph the next time I seen him and he said, We'll discuss it. I don't like that stuff in here, and I never got a copy of it so I didn't get to read them before I took the plea agreement.
QUESTION: But it's your belief those statements should have been introduced for sentencing purposes?
ANSWER: At least — yes. At least introduced for sentencing purposes. They, actually, should have come to me before we ever discussed the plea.
Resp. Exh. 120 at pp. 119-121.
Petitioner's criminal trial attorney testified at the post-conviction hearing upon direct examination by counsel for the state:
QUESTION: I'm going to move on to Mr. Bishop's claim regarding the statements of Richard Chenoweth and Marvin Little Bear at sentencing. Do you know what statements he's referring to?
ANSWER: I do.
QUESTION: What statements were those?
ANSWER: They were two statements that the investigator, David Rogers, had taken from Richard Chenowith and Marvin Little Deer, who were inmates at the Deschutes County Justice Facility, and they had to do with alleged statements that Travis Peterson had made to them regarding his participation in the crime and Mr. Bishop's lack of participation.
QUESTION: Did you consider the value of them at any point in Mr. Bishop's trial?
ANSWER: Oh, yes.
QUESTION: What conclusions did you draw?
ANSWER: Well, obviously, they could be used to impeach Travis Peterson who, I understood — well, that was the problem. Travis Peterson entered a plea of guilty and was sentenced to life without the possibility of parole.
He was off at the Oregon State Penitentiary. Lord knew whether Travis Peterson was going to testify when the trial came or not testify.
As I said, he had given statements that were all over the map. He had written Mr. Bishop, a Dear Uncle Ron letter, which — in which he said that neither Mr. Bishop nor Ms. Davis, the other co-defendant, had had anything to do with this, he'd done it all.
And then, of course, he turned right around about a week later and gave a statement to the prosecution saying that, she was in on the whole thing and that Ron Bishop had asked and directed him to do all of these terrible things.
So, their value would have been simply one more piece of impeachment for Travis Peterson.
QUESTION: Were they — do you think that these statements would have had any value at sentencing after Mr. Bishop had pled guilty?
ANSWER: It was my conclusion that they would hurt him and the reason being that I knew what we were struggling against was this upward departure.
I felt that, by introducing the statements of Chenowith and Little Deer, it would look like Mr. Bishop was trying to evade responsibility, which was one of the mitigating factors, accepting responsibility.
So, I considered them and didn't use them. Now, I must admit, if you ask, that I did not discuss that with Ronald Bishop at all.
I felt that was a tactical decision that, as an attorney, you know, I had best make.
Resp. Exh. 120 at pp. 42-44.
The post-conviction trial judge denied relief and issued a Memorandum of Opinion containing the following discussion about the Chenoweth and Littledeer statements:
Petitioner also alleges that his trial attorney failed to introduce the witness statements of Richard Chenowith and Marvin Littledeer at sentencing for the purpose of mitigation. The statements in question were not submitted to this court. The only information this court has regarding the nature of the statements is petitioner's testimony that the statements would have disclosed that according to the co-defendant, petitioner had no knowledge that the murder had been committed or of the torture and dismemberment until the following day. Petitioner believes if this information had been available there would not have been an upward departure. Petitioner's trial counsel testified because of the passage of time he didn't remember all that happened at the trial but that he believes he did not use the statements as part of his trial strategy because in his opinion using the statements would have hurt petitioner by making it appear that he was trying to avoid responsibility. However a reading of the sentencing transcript shows that in fact trial counsel did make the argument to the trial court that petitioner did not know of the actual events until the next day and that the statements made were just drunk talk. . . . Therefore trial counsels [sic] reason for not using the statements as "trial strategy" is not persuasive.
This court must then look at whether introduction of the statements would have had a tendency to have affected the sentence. The trial court stated in sentencing petitioner that, "I am confident that he (petitioner) was not there when this event occurred."
. . . The court then listed three grounds for upward departure none of which involved petitioner knowing of the events of the murder on the day it occurred and none of which would have been affected by the introduction of the two witness statements. Petitioner has not met his burden as to this allegation.
Resp. Exh. 121 at pp. 2-3.
Petitioner appealed the denial of post-conviction relief, alleging, inter alia, Petitioner was subjected to constitutionally inadequate assistance of trial counsel in that counsel did not introduce the exculpatory statements of Chenoweth and Littledeer during sentencing. Although the written statements were not before the court in the post-conviction trial proceedings, they were attached as exhibits to Petitioner's appellate brief. Again, the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Bishop v. Baldwin, 159 Or. App. 425, 978 P.2d 458, rev. denied, 328 Or. 666, 987 P.2d 515 (1999).
LEGAL STANDARDS
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) was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). The 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 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, 120 S.Ct. 1495, 1523 (2000). See also Ramdass v. Angelone, 120 S.Ct. 2113, 2119-20 (2000); Tran v. Lindsey, 212 F.3d 1143, 1150 (9th Cir.), cert. denied, 121 S.Ct. 340 (2000).
A state court decision is an "unreasonable application of" clearly-established federal law if the 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, 120 S.Ct. at 1523; Ramdass, 120 S.Ct. at 2120; Tran, 212 F.3d at 1120. Under this standard of review, a federal court may not issue a writ of habeas corpus simply because it concludes in its independent judgment that the state court applied clearly-established federal law erroneously or incorrectly. Williams, 120 S.Ct. at 1522. The state court decision must be objectively "unreasonable." Id.
The Ninth Circuit has opined review for "clear error" "most nearly reflects the kind of respect for other courts' judgments that Congress and the Court felt was required" under § 2254(d)(1). Tran, 212 F.3d at 1152-54. See also Weighall v. Middle, 215 F.3d 1058, 1062 (9th Cir. 2000).
DISCUSSION
Petitioner contends he received constitutionally ineffective assistance of counsel when his trial attorney failed to offer the Chenoweth and Littledeer statements in mitigation at his sentencing. Specifically, Petitioner argues these statements would have shown he did not intend the mutilation of the murder victim; thus, the trial judge would not have found the third aggravating factor concerning Petitioner's culpability for Novakowski's torture and mutilation, and the departure analysis and sentence imposed necessarily would have been different. in the face of the two statements.The failure to investigate or to offer mitigation evidence at sentencing may constitute ineffective assistance of counsel. Williams v. Taylor, 120 S.Ct. at 1514-15. In order to prevail on a claim of ineffective assistance of counsel, a petitioner must show both (1) his attorney's performance fell below an objective standard of reasonableness, and (2) the 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, "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. In determining 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)).
Petitioner contends no reasonable view of the record can support the state post-conviction court's conclusion that Petitioner was not prejudiced by trial counsel's failure to introduce the Chenoweth and Littledeer statements at sentencing. This Court need not reach that argument, however, because the sentencing court explicitly supported its upward departure on three aggravating factors, any one of which the court found was sufficient in itself to support the departure. Petitioner does not challenge two of those factors in this proceeding and, as noted, his direct appeal, which included a challenge to those factors, failed on the merits.
In any event, this Court concludes Petitioner has failed to show the introduction of the Chenoweth and Littledeer statements, in light of Petitioner's own earlier contrary admissions and the incriminating statements of Shawna Davis on this point, would have affected the sentencing judge's departure analysis.
Unlike the post-conviction trial court, this Court has the benefit of reviewing the Chenoweth and Littledeer statements as they appear in the post-conviction appellate record. See Resp. Exh. 123, App. 6. Based upon a careful review of the record, including the statements, this Court finds the post-conviction court's conclusion that the statements would not have had a tendency to affect the sentence was neither contrary to nor an unreasonable application of Strickland and its progeny.
Both Chenoweth and Littledeer described statements made by Peterson to the effect that Petitioner was not present at the murder and did not know what had occurred until the next morning when Peterson told him. The statements do not, however, refute the evidence, including Petitioner's admission, that Petitioner asked or ordered Peterson to castrate Novakowski in the process of soliciting his murder; thus, there was not a reasonable probability the outcome of the sentencing proceeding would have been different even if the statements had been submitted. Accordingly, Petitioner has not established he is entitled to relief in this Court, and the Petition must be denied.
CONCLUSION
Based upon the foregoing, IT IS ORDERED the Petition for Writ of Habeas Corpus (#2) is DENIED, and this action is DISMISSED.
IT IS SO ORDERED.