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Fernandez v. Hill

United States District Court, D. Oregon
Oct 8, 2004
Civil No. 03-12-MO (D. Or. Oct. 8, 2004)

Opinion

Civil No. 03-12-MO.

October 8, 2004

Anthony D. Bornstein, Assistant Federal Public Defender, Portland, Oregon, Attorney for Petitioner.

Hardy Myers, Attorney General, Lester R. Huntsinger, Assistant Attorney General, Department of Justice, Salem, Oregon, Attorneys for Respondent.


OPINION AND ORDER


Petitioner brings this 28 U.S.C. § 2254 habeas corpus action seeking to challenge his underlying state convictions. For the reasons set forth below, the Amended Petition for Writ of Habeas Corpus (#7) is denied.

BACKGROUND

Following a bench trial in 1994, petitioner was convicted of two counts of Sodomy in the Second Degree, one count of Sexual Abuse in the First Degree and one count of Sexual Penetration in the Second Degree for crimes committed against his girlfriend's daughter. Respondent's Exhibits 101-103. Based on these convictions, the court sentenced petitioner to 134 months in prison. Id.

Petitioner directly appealed his convictions in a Balfour brief, but the Oregon Court of Appeals granted the State's motion seeking summary affirmance. The Oregon Supreme Court vacated that decision and remanded the case for further consideration. State v. Mann, aka Robert Fernandez, 322 Or. 391, 907 P.2d 246 (1995). Following remand, the Oregon Court of Appeals affirmed the trial court without opinion. 141 Or. App. 597, 918 P.2d 459 (1996). Petitioner did not petition the Oregon Supreme Court for review.

The Balfour procedure provides that appellate counsel need not ethically withdraw when faced with only frivolous issues. Rather, the attorney may file Section A of an appellant's brief containing a statement of the case sufficient to "apprise the appellate court of the jurisdictional basis for the appeal." The defendant may then file the Section B segment of the brief containing any assignments of error he wishes. State v. Balfour, 311 Or. 434, 451-52, 814 P.2d 1069 (1991). With respect to Section B, "[c]ounsel shall provide the client with appropriate legal advice on these claims of error, but shall present to the court in the brief the issue that the client seeks to raise in the manner that the client seeks to raise it." Id at 452. The Oregon Supreme Court stated that "counsel's role is limited to attempt to see to it that the client states the issues and arguments in proper appellate brief form and the brief is timely filed." Id.

Petitioner next filed for post-conviction relief ("PCR"), but the PCR trial court denied relief. Respondent's Exhibits 129-131. The Oregon Court of Appeals affirmed the PCR trial court without opinion and the Oregon Supreme Court denied review. Fernandez v. Armenakis, 181 Or. App. 467, 46 P.3d 229, rev. denied, 335 Or. 104, 59 P.3d 1279 (2002).

Petitioner filed the current action on January 6, 2003. In his Amended Petition, petitioner raises 13 grounds for relief:

1. The trial court erred when it:

A. allowed Cheryl Stanley to testify over defense counsel's objection; and
B. failed to rule on certain motions, including a motion for acquittal.

2. Trial counsel was ineffective when he failed to:

A. notify the court of the need for explicit findings on the record to justify the imposition of consecutive sentences;

B. conduct a proper investigation;

C. call appropriate witnesses;

D. adequately prepare for trial;

E. make appropriate objections;

F. conduct proper cross-examination; and

G. insist upon the court's ruling on his motion for a directed verdict of acquittal.
3. Appellate counsel was ineffective when he failed to:

A. raise the issue of Stanley's testimony;

B. challenge the ruling on discovery violations; and

C. seek Oregon Supreme Court review.

4. Petitioner's conviction was obtained through the unconstitutional failure of the prosecution to disclose evidence favorable to petitioner.

Respondent asks the court to deny relief on the Amended Petition because: (1) nearly all claims are procedurally defaulted; (2) the decisions of the Oregon courts denying relief are entitled to deference; and (3) all claims lack merit.

DISCUSSION

I. Unargued Grounds for Relief.

Respondent filed a response to petitioner's habeas corpus petition which addresses all of petitioner's grounds for relief. In his reply, petitioner chooses to provide argument only for Grounds 2(B), 2(C) and 3(A); he fails to provide any exhaustion or merits analysis with respect to the remainder of his claims. The court has nevertheless reviewed petitioner's unargued claims and determined that they are without merit. Accordingly, he is not entitled to relief on the unargued claims. See 28 U.S.C. § 2248 ("The allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true.").

II. Exhaustion and Procedural Default.

A petitioner seeking habeas relief must exhaust his claims by fairly presenting them to the state's highest court, either through a direct appeal or collateral proceedings, before a federal court will consider the merits of habeas corpus claims pursuant to 28 U.S.C. § 2254. Rose v. Lundy, 455 U.S. 509, 519 (1982). The exhaustion doctrine is designed "to avoid the unnecessary friction between the federal and state court systems that would result if a lower federal court upset a state court conviction without first giving the state court system an opportunity to correct its own constitutional errors." Preiser v. Rodriguez, 411 U.S. 475, 490 (1973).

Respondent argues that Grounds 2(B) and 2(C), which focus on counsel's alleged failure to investigate and call certain witnesses, are procedurally defaulted. Petitioner concedes the claims are defaulted, but seeks to excuse the default through a showing of cause and prejudice. In order to demonstrate "cause," petitioner must show that some objective factor external to the defense impeded his efforts to fairly present the claim in state court. Vansickel v. White, 166 F.3d 953, 958 (9th Cir.),cert. denied, 528 U.S. 965 (1999); Murray v. Carrier, 477 U.S. 478, 488 (1986). A petitioner meets the "prejudice" standard if he can demonstrate that the errors he complains of undermine confidence in the outcome of his trial. Vansickel, 166 F.3d at 958-59.

Petitioner contends his PCR attorney is responsible for the default because he failed to appeal these issues to Oregon's highest court. This failure, he argues, constitutes cause to excuse the default because counsel was not acting as petitioner's agent with regard to the default. Although petitioner characterizes PCR counsel's conduct as a violation of agency law, he is essentially asking the court to find that shortcomings in PCR counsel's representation was the cause of the default.

The Supreme Court has held that constitutionally ineffective assistance of counsel may constitute cause sufficient to excuse a procedural default. Murray v. Carrier, 477 U.S. 478, 488 (1986). However, because it is well-established that there is no constitutional right to an attorney in state post-conviction proceedings, the conduct of PCR counsel cannot constitute cause for the default. Coleman v. Thompson, 501 U.S. 722, 752 (1991);Pennsylvania v. Finley, 481 U.S. 551, 553 (1987). Accordingly, relief on Grounds 2(B) and 2(C) is denied.

III. The Merits.

In his sole remaining claim (Ground 3(A)), petitioner alleges his direct appellate attorney was constitutionally ineffective when he failed to challenge the trial court's ruling that Cheryl Stanley, the victim's counselor, could testify to the victim's outof-court statements describing the sexual abuse she suffered. A. Standard of Review.

The court notes that petitioner has not raised a Confrontation Clause challenge based on Stanley's testimony. Even if he had, he failed to present such a claim to Oregon's state courts, therefore it would not be eligible for federal habeas corpus review. See Rose v. Lundy, 455 U.S. 509, 519 (1982). Moreover, a Confrontation Clause challenge would not lie under these facts because the declarant testified during petitioner's criminal trial. See Crawford v. Washington, 124 S.Ct. 1354, 1374 (2004) (testimonial evidence against a criminal defendant cannot be introduced where the declarant is unavailable at trial and there was no opportunity for cross-examination at the time the prior testimony was given).

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'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 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, 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. The state court's application of clearly established law must be objectively unreasonable. Id at 409.

B. Analysis.

The Supreme Court has established a two-part test to determine whether a petitioner has received ineffective assistance of counsel. First, the petitioner must show that his lawyer's performance fell below an objective standard of reasonableness.Strickland v. Washington, 466 U.S. 668, 686-687 (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, the petitioner must show that his lawyer's performance prejudiced the defense. The appropriate test for prejudice is whether the defendant 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. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the proceeding. Id at 696.

During petitioner's criminal trial, the State called Stanley to testify to the victim's out-of-court statements in which the victim described in detail the sexual abuse she suffered. The testimony was offered under Oregon Evidence Code ("OEC") 801(4)(a)(B), which provides that a statement is not hearsay if: (1) the declarant testifies at the trial and is subject to crossexamination concerning the statement; (2) the statement is consistent with the testimony of the witness; and (3) the statement is offered to rebut an inconsistent statement or an express or implied charge against the witness of recent fabrication or improper influence of motive.

The trial court determined that petitioner's cross-examination of the victim "would or could fall into the category [contemplated by OEC 801(4)(a)(B)], even though not directly stated as an implied charge against the witness of recent fabrication or improper influence or motive." Respondent's Exhibit 103, p. 60. Accordingly, the trial court concluded that under OEC 801(4)(a)(B), Stanley's testimony regarding the victim's out-of-court statements was admissible.

Petitioner raised the issue of the admissibility of Stanley's testimony in Section B of his Balfour brief on direct appeal. Respondent's Exhibit 106, p. 3. Presumably, petitioner enjoyed the assistance of his attorney when filling out Section B of hisBalfour brief since that is what Balfour requires. Balfour, 311 Or. at 452. When the Oregon Court of Appeals affirmed the trial court without opinion, it impliedly determined that the testimony had been properly admitted. Accordingly, it is difficult to see how the result of the proceeding would have been different had counsel raised the issue in a non-Balfour brief.

When petitioner raised his ineffective assistance of appellate counsel claim during his PCR proceedings, the PCR trial court decided that "[a]ppellate counsel reasonably did not assign error to the admission of Stanley's testimony, because the trial court did not err in allowing it." Respondent's Exhibit 130, p. 5. It also found petitioner "did not establish he was prejudiced by the alleged deficiencies of trial counsel, appellate counsel and the trial court." Id at 6. The PCR trial court therefore concluded petitioner was not denied the right to assistance of counsel in his direct appeal proceedings. Id. The Oregon Court of Appeals agreed when it affirmed the decision of the PCR trial court without opinion.

This court is bound by the Oregon courts' decisions pertaining to the admissibility of Stanley's testimony because a federal court must honor state-court determinations of state-law questions.See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[W]e reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."); see also Mendez v. Small, 298 F.3d 1154, 1158 (9th Cir. 2002) ("A state court has the last word on the interpretation of state law.") (citing McSherry v. Block, 880 F.2d 1049, 1052 (9th Cir. 1989)); Bains v. Cambra, 204 F.3d 964, 972 (9th Cir. 2000) ("a federal court is bound by the state court's interpretations of state law.") (citing Wainwright v. Goode, 464 U.S. 78, 84 (1983)); Peltier v. Wright, 15 F.3d 860, 862 (9th Cir. 1994) (state courts are the ultimate expositors of state law). Because Oregon's courts have clearly held that Stanley's testimony was admissible pursuant to OEC 801(4)(a)(B), petitioner cannot fault his appellate attorney for declining to raise the claim on appeal, nor can he demonstrate that he suffered any prejudice from appellate counsel's decision to omit the issue.

Moreover, even if Stanley's testimony had been improperly introduced, the prosecution also called a police officer to testify regarding the contents of an interview he conducted with the victim. The officer gave essentially the same testimony that Stanley gave. See Respondent's Exhibit, pp. 81-86. Accordingly, Stanley's testimony was cumulative and therefore not prejudicial to the defense.

For all of the aforementioned reasons, the PCR trial court's decision denying the ineffective assistance of appellate counsel claim is neither contrary to, nor an unreasonable application of, clearly established federal law.

IV. Evidentiary Hearing.

Finally, petitioner asks this court to hold an evidentiary hearing in the event it harbors any reservations concerning the historical facts of this case. Even assuming petitioner could overcome the stringent standards of 28 U.S.C. § 2254(e)(2), this case turns on legal determinations, not factual ones. Consequently, expansion of the record would be futile.

CONCLUSION

For the reasons identified above, the Amended Petition for Writ of Habeas Corpus (#7) is DENIED.

IT IS SO ORDERED.


Summaries of

Fernandez v. Hill

United States District Court, D. Oregon
Oct 8, 2004
Civil No. 03-12-MO (D. Or. Oct. 8, 2004)
Case details for

Fernandez v. Hill

Case Details

Full title:ROBERT FERNANDEZ, Petitioner, v. JEAN HILL, Respondent

Court:United States District Court, D. Oregon

Date published: Oct 8, 2004

Citations

Civil No. 03-12-MO (D. Or. Oct. 8, 2004)