Opinion
2:20-cv-02122-MK
03-23-2023
JAMES WYATT DENTEL, Petitioner, v. BRAD CAIN, Respondent.
FINDINGS AND RECOMMENDATION
KASUBHAI, MAGISTRATE JUDGE:
Petitioner brings this habeas corpus proceeding under 28 U.S.C. § 2254 and challenges his state court convictions for assault. Petitioner primarily claims that his counsel provided ineffective assistance at trial by failing to request a lesser-included offense instruction for the charge of Assault in the First Degree. After review of the record and arguments, I find that the Oregon courts denied Petitioner's claim in a decision that is entitled to deference, and the Petition should be denied.
BACKGROUND
In April 2013, Petitioner was charged by Amended Indictment with four counts of Attempted Aggravated Murder, three counts of Assault in the Second Degree with a Firearm, and one count each of Assault in the First Degree with a Firearm, Unlawful Use of a Weapon with a Firearm, and Felon in Possession of a Firearm. Resp't Ex. 102 at 1-3. The charged offenses arose from an altercation outside of a bar in Salem, Oregon.
According to testimony presented at trial, on November 10, 2012, Jose Morales was with his brother and cousins, Sonny, Pablo, and Omar Morales, and his friend Tim Canini, and they decided to patronize the 501 Cantina. Resp't Ex. 103 at 97-98, 105-109. As they entered the bar, Jose and his companions walked by Petitioner and several other men, a few of whom Jose believed to be members of a gang called the “Hobs.” Id. at 109-111.
Later on, Jose and his companions went outside to a smoking area. Id. at 112. Omar heard a car horn honk a few times and asked Jose to walk with him towards the car “to see who it was.” Id. at 113-114. Jose testified that, as he and Omar approached the car, Petitioner emerged from the vehicle with a gun in his right hand. Id. at 115; Resp't Ex. 104 at 31. Jose testified that he told Petitioner to put the gun away, and when he refused, Jose tried to disarm Petitioner by tripping him and forcing him to the ground. Resp't Ex. 103 at 118-120. Canini testified that Petitioner “came back [up] when he hit the ground” and “he just started shooting.” Resp't Ex. 104 at 33. Jose's companions surrounded Petitioner and attempted to get the gun away from him and Petitioner shot at them, too. Id. at 33-34, 36-37.
Jose was shot in the chest, above one knee, and in his hip, resulting in a fractured femur. Resp't Ex. 103 at 123-24. Sonny was shot on his right side, resulting in a broken pelvis, Pablo was shot in the leg, and Canini was shot in his right calf. Resp't Ex. 104 at 33, 35.
Petitioner's theory at trial was one of self-defense. Petitioner took the stand and testified that, at the time of the incident, his girlfriend was sitting in the driver's seat of her car while he was sitting on the door jamb. Id. at 170-72. Petitioner testified that one of them accidentally honked the horn once or twice as they talked, and Jose and Omar began walking towards the car and yelling. Id. at 172. Petitioner stood up, stepped around the car, and told Jose and Omar that he “didn't want any problems.” Resp't Ex. 104 at 172-173. Petitioner testified that Omar was standing in front of him while holding a gun, and Petitioner “just grabbed the gun.” Id. at 173174, 177. Petitioner testified that someone hit him on the head after he took the gun, and he fell down and hit his head again on his girlfriend's car. Id. at 174. Petitioner testified that “everything went black” and when he regained consciousness, a man was “stomping” on his head and shots were fired. Id. at 174-75. After a few moments, Petitioner was able to get up and run away from the scene. Id. at 175.
The jury acquitted Petitioner on all four counts of Attempted Aggravated Murder and returned unanimous guilty verdicts on the remaining counts. Resp't Ex. 105 at 101-03. At sentencing, the trial court imposed consecutive and concurrent terms of imprisonment totaling 250 months. Resp't Ex. 101; Resp't Ex. 106 at 28-29.
Petitioner directly appealed, and the Oregon Court of Appeals affirmed his conviction and sentence. Resp't Exs. 107, 109-110. Petitioner did not seek review with the Oregon Supreme Court.
The Oregon Court of Appeals also found that the trial court erroneously ordered petitioner to pay fees for his court appointment counsel. Resp't Ex. 109 at 3, 6.
Petitioner then sought post-conviction relief (PCR) in the state court and alleged several grounds of ineffective assistance of counsel. Resp't Ex. 112. The PCR court denied relief, and Petitioner appealed the denial of one claim alleging the ineffective assistance of trial counsel based on the failure to seek lesser-included offense instructions for the assault charges. Resp't Exs. 132-133. The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Resp't Exs. 136-137.
On November 30, 2020, Petitioner initiated this federal habeas action.
DISCUSSION
Petitioner asserts four Grounds for Relief in his federal Petition. See Pet. at 6-11 (ECF No. 1). Respondent argues that Grounds One through Three are barred from review by procedural default and that Ground Four does not support federal habeas relief. In his supporting brief, Petitioner presents argument in support of only Ground Four and does not dispute Respondent's contention that Grounds One through Three are procedurally defaulted. See generally Pet'r Brief (ECF No. 39). Accordingly, Petitioner fails to sustain his burden to prove entitlement to habeas relief on Grounds One through Three. See Mayes v. Premo, 766 F.3d 949, 957 (9th Cir. 2014) (stating that a habeas petitioner bears the burden of proving the alleged claims); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004) (accord).
In Ground Four, Petitioner alleges that his trial counsel was ineffective by failing to request lesser-included offense instructions on Count 2, charging Assault in the First Degree based on the shooting of Jose. Respondent argues that the PCR court denied Petitioner's claim in a decision that is entitled to deference and Petitioner is not entitled to habeas relief.
A federal court may not grant habeas relief regarding any claim “adjudicated on the merits” in state court, unless the state court ruling “was contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A state court decision is “contrary to” established federal law if it fails to apply the correct Supreme Court authority or reaches a different result in a case with facts “materially indistinguishable” from relevant Supreme Court precedent. Brown v. Payton, 544 U.S. 133, 141 (2005); Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision is an “unreasonable application” of clearly established federal law if the state court identifies the correct legal principle but applies it in an “objectively unreasonable” manner. Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam); see also Early v. Packer, 537 U.S. 3, 11 (2002) (state court decisions may be set aside only “if they are not merely erroneous, but ‘an unreasonable application' of clearly established federal law, or are based on ‘an unreasonable determination of the facts.'”). To meet this highly deferential standard, a petitioner must demonstrate that the state court's ruling “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
Under the well-established precedent of Strickland v. Washington, 466 U.S. 668 (1984), a habeas petitioner alleging the ineffective assistance of counsel must show that 1) “counsel's performance was deficient” and 2) counsel's “deficient performance prejudiced the defense.” Id. at 687. To establish deficient performance, a petitioner “must show that counsel's representations fell below an objective standard of reasonableness.” Id. at 688. To demonstrate prejudice, a petitioner “must 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.
Judicial review of an attorney's performance under Strickland is “highly deferential” and carries a “strong presumption” that counsel's performance fell within a “wide range of reasonable professional assistance” which “might be considered sound trial strategy” under the circumstances. Id. at 689 (citation omitted). A “doubly deferential” standard applies when “a federal court reviews a state court's Strickland determination” on habeas review. Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010). The state court “must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Richter, 562 U.S. at 101.
Petitioner claims that reasonable trial counsel would have requested instructions for Assault in the Third Degree as a lesser-included offense of Assault in the First Degree. A conviction for Assault in the First Degree requires the State to prove that the defendant “intentionally cause[d] serious physical injury to another by means of a deadly weapon,” Or. Rev. Stat. § 163.185(1)(a), while Assault in the Third Degree requires proof that the defendant acted only “recklessly” when causing the “serious physical injury.” Id. § 163.165(1)(1). Petitioner argues that the jury could have found that Petitioner acted recklessly, but not intentionally, when he shot Jose during the struggle for the gun, even if it rejected Petitioner's claim of self-defense.
The PCR court denied relief on this claim, finding:
Trial counsel made a conscious strategic decision not to request lesser-included offense instructions: “This was an either - this was an all or nothing. The jury either believes self-defense or nothing. If we offer them lesser stuff, my thinking was that this self-defense may be viewed as, as something we don't believe in ourselves. Um, so it was an all or nothing.” Petitioner has not shown that no reasonable counsel would have followed that strategy... In addition, Petitioner has not shown that there was either a factual or legal basis for a lesser-included instruction. There is no appropriate lesser-included offense for Assault in the Second Degree. The lesser-included that might apply to the Assault in the First Degree is Assault in the Third Degree which had the mental state of reckless. Although petitioner's mental state was the main point of contention, the question was not whether he acted recklessly versus intentionally. Rather, it was whether or not he acted with the justification of self-defense. There was no real chance that the jury would have rejected petitioner's self-defense argument but concluded that he acted only recklessly and shot four people. The recklessness argument depends at its core on the jury believing that petitioner did not bring the gun but was merely trying to wrest it from his attackers. If it believed that, he was innocent of any crime and there would be no risk of an unwarranted conviction.
Petitioner has also failed to prove prejudice. As explained above, there is no reason to believe that the jury would have rejected self-defense but found that petitioner acted only recklessly.Resp't Ex. 132 at 6-7. Petitioner argues that the PCR court unreasonably applied Strickland and its decision is not entitled to deference. I disagree.
Petitioner does not dispute the PCR court's finding that there is “no appropriate lesser-included offense for Assault in the Second Degree.” Resp't Ex. 132 at 6.
Under Strickland, counsel must be afforded “wide latitude in making tactical decisions” and “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 689-90. Courts have recognized that the decision to forgo lesser-included-offense instructions can be a viable strategy to obtain an outright acquittal rather than a conviction on lesser charges. Crace v. Herzog, 798 F.3d 840, 852 (9th Cir. 2015); Miller v. Nooth, 403 Fed. App'x 291, 292 (9th Cir. Nov. 18, 2010). A “trial attorney's failure to request a jury instruction receives no deference, however, when it is based on ‘a misunderstanding of the law' rather than ‘a strategic decision to forego one defense in favor of another.'” Crace, 798 F.3d at 852 (quoting United States v. Span, 75 F.3d 1383, 1390 (9th Cir. 1996)); see also United States v. Alferahin, 433 F.3d 1148, 1161 (9th Cir. 2006) (finding trial counsel deficient when he “did not intend strategically to forego the materiality instruction” but “had no idea that such an instruction was available to his client as a matter of right”).
Here, no evidence of record suggests that counsel misunderstood the law and did not realize a lesser-included instruction was available. During his PCR deposition, trial counsel explained that for the defense theory to succeed, Petitioner needed to convince the jury that Jose and Omar were armed aggressors, that Petitioner was not armed and feared for his life when they approached, and that Petitioner acted in self-defense when he grabbed the gun and shot at them. Resp't Ex. 126 at 7-9, 11, 35. Thus, counsel chose to take an “all-or-nothing” approach with respect to all of the charged offenses, because the “jury either believes self-defense or nothing. If we offer them lesser stuff, my thinking was that this self-defense may be viewed as, as something we don't believe in ourselves. Um, so it was all or nothing.” Resp't Ex. 126 at 31-32. The record reflects that counsel was fully aware that Assault in the Third Degree was a lesser-included offense of Assault in the First Degree, and counsel made a strategic decision to pursue an outright acquittal rather than potentially undermine Petitioner's asserted defense theory by requesting a lesser-included offense instruction.
Petitioner nonetheless argues that counsel was not limited to an “all or nothing” defense and could have pursued a theory of self-defense while still providing an alternative to the greater charge. Petitioner thus maintains that counsel's failure to request a lesser-included offense instruction was founded on an incorrect and unreasonable understanding of the facts. However, the fact that a jury could have rejected Petitioner's claim of self-defense while finding recklessness is not the standard for assessing the reasonableness of counsel's performance and does not rebut Strickland's “strong presumption that counsel performed adequately.” Cheney, 614 F.3d at 995. Moreover, the PCR court found that Petitioner failed to show “a factual or legal basis for a lesser-included instruction.” Resp't Ex. 132 at 6. Whether the evidence supported an instruction for Assault in the Third Degree is a state rather than federal issue, and a PCR court's determination of state law is not subject to federal habeas review. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (explaining that “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”). If no factual or legal basis supported the lesser-included instruction, counsel reasonably chose not to request it.
Finally, the record reasonably supports the PCR court's finding of no prejudice. Had the trial court issued the lesser-included instruction, the State “would have been entitled to an acquittal first-instruction.” Pereida-Alba v. Coursey, 356 Or. 654, 669 (2015). Pursuant to this instruction, the jury could have considered Assault in the Third Degree only if it first acquitted petitioner of Assault in the First Degree. Id.; Or. Rev. Stat. § 136.460(2) (“Only if the jury finds the defendant not guilty of the charged offense may the jury consider a lesser included offense”). Given that the jury rejected Petitioner's claim of self-defense, he fails to show a reasonable likelihood that the jury would have acquitted him of Assault in the First Degree and convicted him of only Assault in the Third Degree. Crace, 748 F.3d at 849. Therefore, Petitioner fails to show prejudice.
In sum, the PCR court's decision was neither contrary to nor an unreasonable application of clearly established federal law, and Petitioner is not entitled to habeas relief.
CONCLUSION
For the reasons explained above, the Petition for Writ of Habeas Corpus (ECF No. 1) should be DENIED. A Certificate of Appealability should be DENIED on the basis that Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The parties may file specific written objections within fourteen (14) days from the date of service of a copy of this recommendation. If an objection is filed, any response to the objection is due within fourteen (14) days from the date of the objection. See Fed.R.Civ.P. 72. The parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).