Opinion
2:18-cv-01988-CL
01-13-2022
RAUL GARCIA-AVILA, Petitioner, v. BRAD CAIN, Superintendent, Snake River Correctional Institution, Respondent,
FINDINGS AND RECOMMENDATION
Mak D. Clarke United States Magistrate Judge
Petitioner Raul Garcia-Avila ("Petitioner") brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254 alleging several claims based on the ineffective assistance of counsel. For the reasons set forth below, the district judge should DENY the Petition for Writ of Habeas Corpus (ECF No. 2) and decline to issue a certificate of appealability.
BACKGROUND
On August 26, 2010, a Malheur County grand jury returned an indictment charging Petitioner with one count each of Rape in the First Degree; Unlawful Sexual Penetration in the First Degree; Sodomy in the First Degree; and Sexual Abuse in the First Degree. (Resp't Exs. (ECF No.13), Ex. 102.) The charges arose from Petitioner's conduct toward his girlfriend's daughter, "ES", on multiple occasions between October 31, 2001 and October 31, 2006. (Id.)
Petitioner pleaded not guilty to all counts and proceeded to trial before a jury in December 2010. The State built its case primarily on the testimony of ES, who was fifteen at the time of trial. (Resp't Ex. 103 ("Tr.") at 33.') ES testified that Petitioner, who lived with the family and acted as a father figure, began sexually abusing her when she was six years old. (Id. at 36.) ES described for the jury several incidents in which Petitioner subjected her to escalating forms of sexual abuse and explained that such incidents would occur at night while her mother was at work and her siblings were asleep. (Id. at 37-39, 46-52.) ES testified that the abuse stopped when she was ten or eleven years old because her mother and Petitioner ended their relationship and Petitioner no longer lived with the family. (Id. at 53.)
In his defense, Petitioner sought to establish, among other things, that he lacked opportunity to sexually abuse ES. As part of that defense, trial counsel questioned ES's mother on cross-examination as to whether Petitioner "was gone to Mexico for periods of time[.] (Tr. at 87.) She responded that Petitioner "was in jail six months here and was deported to Mexico." (Id.) Trial counsel immediately moved to strike the response. (Id.) After the judge removed the jury from the courtroom, the following exchange took place:
When citing to the trial transcript, the Court refers to the original transcript pagination in the upper right corner. When citing to all other Respondent's Exhibits, the Court refers to the page numbers located in the lower right corner of each exhibit.
[TRIAL COUNSEL]: Thank you. I'd move for a mistrial based upon the testimony that my client had been arrested or was in jail.
[PROSECUTOR]: Well, Your Honor, I -1 specifically advised this witness not to go into that area. Um, but I think when Mr. Stoddard asked the question like that it invites an answer. He opened the door for that response. And now to say that he should get a mistrial because he asked her about the time he went Mexico, well he went to Mexico because he went to jail, then he got deported. If you're asking her if he went to Mexico, the only thing you can expect is answer; and that's exactly what she gave him.
[TRIAL COUNSEL]: Not that answer.
THE COURT: Well, it may not be the answer that you expected, but you asked the question.
[TRIAL COUNSEL]: I know. I asked if he went to Mexico for a time period.
THE COURT: Correct.
[TRIAL COUNSEL]: That doesn't mean he was necessarily deported. It doesn't mean he was arrested.
THE COURT: Well, but she - she answered your question, [trial counsel], number one. So you invited the answer. Secondly, there's nothing indicating that he was - committed a crime, just that he went to jail and was deported. That -1 don't think you can complain about the answer given the question that you asked.
[TRIAL COUNSEL]: Um, actually I anticipated a yes or no answer Your Honor. The question was if he was gone to Mexico for a couple periods during that time period. Could've said yes.
THE COURT: But the witness is entitled ...
[TRIAL COUNSEL]: That's what I expected.
THE COURT: ... to - but the witness is entitled to explain her answer.
[TRIAL COUNSEL]: Well, I disagree Your Honor.
THE COURT: Okay.
[TRIAL COUNSEL]: I renew my motion and I would ask that the -1 ask that that response be stricken. I'll reask the question and ask for a yes or no answer.
THE COURT: Okay, I'm not going to strike the answer then. You asked the question, she gave the answer, so ... we'll have the jurors come in.(Id. at 87-89.)
Petitioner later testified in his own defense. During his direct examination, Petitioner stated, "I went to Mexico, like on vacation. I say like on vacation because I don't have the documentation that would allow me to come and go, legally." (Tr. at 198.) Petitioner's sister also testified that he had gone to Mexico at some point because he was deported. (Id. at 177.) Although the state admitted no evidence that Petitioner previously had committed a crime, the prosecutor did not oppose a jury instruction to address "the mention of jail" by ES's mother. (Id. at 224.) The trial court thus gave the uniform jury instruction on prior convictions, stating:
If you find that the defendant has been previously convicted of a crime, you may consider this conviction only for its bearing, if any, on the believability of the defendant's testimony.
Specifically, you may not use this evidence for the purpose of drawing the inference that because the defendant was convicted of a previous crime the defendant may be guilty of the crimes charged in this case.(Id. at 257.)
The trial court then excused the jury to begin deliberations. (Tr. at 266.) After three and a half hours, the jury sent a note to the judge indicating that it could not come to verdict. (Id. at 267.) In response, the judge sent the jurors home for the evening and asked that they resume deliberations in the morning. (Id. at 269.) Upon further deliberation the next day, the jury returned guilty verdicts on all counts. (Id. at 272-73.) The trial court ultimately sentenced Petitioner to a custodial term totaling 200 months, to be followed by a lengthy term of post-prison supervision. (Tr. at 284-86; Resp'tEx. 101.)
Petitioner filed a direct appeal, assigning error to, among other things, the trial court's denial of the motions to strike and for mistrial following the statement of ES's mother on cross examination. (Resp't Ex. 104 at 9, 14.) The Oregon Court of Appeals affirmed without opinion, State v. Garcia, 256 Or.App. 761 (2013), and the Oregon Supreme Court denied review, State v. Garcia, 354 Or. 61 (2013).
Petitioner next filed a petition for post-conviction relief. (Resp't Ex. 111.) In his counseled petition, Petitioner asserted eight ineffective assistance of counsel claims, including a claim that trial counsel was ineffective when he "failed to file a motion in limine to exclude evidence and testimony that petitioner had been deported and had been incarcerated." (Resp't Ex. 112 at 4-5.) The State moved for summary judgment against six of the ineffectiveness claims, to which Petitioner conceded four should be dismissed. (Resp't Exs. 113 at 11-14; 114 at 6.) The postconviction court dismissed the stipulated claims and the State withdrew its motion as to the remaining claims. (Resp't Exs. 115, 116.) After an evidentiary hearing, the postconviction court rejected each of Petitioner's ineffectiveness claims and denied relief. (Resp'tExs. 141, 142.)
Petitioner appealed, asserting a single assignment of error:
ASSIGNMENT OF ERROR: The post-conviction court denied relief on the claim that trial counsel was ineffective and inadequate for failing to file a motion in limine to exclude evidence that petitioner had been deported and incarcerated.(Resp't Ex. 143 at 13.) The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. (Resp'tExs. 146, 147.)
On November 16, 2018, Petitioner filed a pro se Petition for Writ of Habeas Corpus in this Court, renewing his claim that trial counsel was ineffective in failing to move in limine to exclude evidence that Petitioner had been incarcerated and deported, and raising seven additional claims based on the ineffective assistance of trial counsel. (Pet. at 8-11.) Respondent urges this Court to deny habeas relief, arguing that most of Petitioner's claims are procedurally defaulted, and that the state-court decision denying Petitioner's properly exhausted claim is entitled to deference. (Resp't Resp. to Pet. (ECF No. 14), at 5-11.)
Grounds Eight and Nine are duplicative and therefore constitute a single additional claim.
DISCUSSION
1. Ground One
A, Legal Standards
The Antiterrorism and Effective Death Penalty Act ("AEDPA") prohibits relitigation of any claim adjudicated on the merits in state court unless such adjudication 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).
A state-court decision is "contrary to" clearly established federal law if it "applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases," or if it "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). An "unreasonable application" of clearly established federal law occurs if the state court correctly identifies the governing legal principle but misapplies that principle to the facts at hand. See Id. at 407 (holding that "a state-court decision involves an unreasonable application of this Court's precedent if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case"). The "unreasonable application" clause requires the state court's decision to be more than merely erroneous or incorrect. See Id. at 411 (noting that "a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly"). Rather, the state court's application of clearly established federal law must be objectively unreasonable. See Id. at 409 (instructing that a federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable").
A federal habeas court may not disturb a state-court decision on factual grounds unless the state court's decision was based on an unreasonable determination of the facts in light of the evidence before it. 28 U.S.C. § 2254(d)(2). Under the "unreasonable determination" clause, "[t]he question ... is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007). The Ninth Circuit has clarified that when a petitioner challenges the substance of a state court's findings, the federal habeas court "must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record." Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.), cert denied, 543 U.S. 1038 (2004).
"Determining whether a state court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning." Harrington v. Richter, 562 U.S. 86, 98 (2011). Where a state court decision is issued without explanation, "the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Id. Where, however, the highest state court issues a decision on the merits unaccompanied by its reasons for the decision, a federal habeas court must "look through" to the last reasoned decision issued in a lower state court, and presume the unexplained decision adopted the same reasoning. See Wilson v. Sellers, 138 S.Ct. 1188, 1192(2018).
The AEDPA thus imposes "a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (simplified); see also White v. Wheeler, 577 U.S. 73, 76-77 (2015) (acknowledging that the "AEDPA, by setting forth necessary predicates before a state-court judgment may be set aside, erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court") (simplified). "The petitioner carries the burden of proof." Pinholster, 563 U.S. at 181.
The clearly established federal law governing ineffective assistance of counsel claims is set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Williams, 529 U.S. at 391 (noting that "[i]t is past question" that the rule established in Strickland is clearly established federal law determined by the Supreme Court of the United States). To establish a claim of ineffective assistance under Strickland, a habeas petitioner must satisfy a two-pronged test. First, the petitioner must show that counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 686. Such a showing requires the petitioner to overcome a strong presumption the challenged conduct falls within the "wide range of reasonable professional assistance; that is the [petitioner] must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689. The first prong thus is satisfied only if "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed ... by the Sixth Amendment." Id. at 687.
Second, a petitioner must demonstrate prejudice: "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 "a probability sufficient to undermine confidence in the outcome." Id. Therefore, it is not enough if counsel's errors had only "some conceivable effect on the outcome of the proceeding." Id. at 693, Counsel's errors must have been "so serious as to deprive [the petitioner] of a fair trial, a trial whose result is reliable," Id. In making the prejudice determination, the court must "consider the totality of the evidence before the judge or jury." Id. at 695.
Analyzing an ineffective assistance of counsel claim under the AEDPA is "all the more difficult" because both standards are "highly deferential and when the two apply in tandem. review is 'doubly' so." Richter, 562 U.S. at 105 (citations omitted). The question under such circumstances "is not whether counsel's actions were reasonable." Rather, the court must determine "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.
B. Analysis
In Ground One, Petitioner asserts that trial counsel was constitutionally ineffective when he failed to file a motion in limine to exclude evidence that Petitioner had been incarcerated and deported. (Pet. at 8.) Petitioner presented this claim during his postconviction proceedings, arguing that despite trial counsel's knowledge that it was "highly probable" that prejudicial testimony concerning Petitioner's deportation and incarceration would arise at trial, he nevertheless failed to move in limine to preclude witness testimony on those subjects. (Pet. at 8.) Petitioner argued that as a result, trial counsel "was forced to object at trial, in the jury's presence, when such evidence came up[, ]" and that had he been exercising reasonable professional skill and judgment, he "would have recognized that it would have been more effective and better for [Petitioner's case to not have the evidence come up at all." (Pet'r's Br. in Supp. of Pet. (ECF No. 53), at 11.)
In opposition, the State submitted, among other things, the affidavit of trial counsel, who explained, in relevant part:
I considered filing motions in limine regarding [Petitioner's deportation and incarceration, but ultimately decided that the mutual warning of witnesses by both me and the Deputy District Attorney (DDA) was sufficient to protect our defense interests. In other criminal cases with issues like this, a motion in limine had not been necessary to successfully excluded concerning material from in-trial testimony. Based on my past experience, I also had no reason to believe that Judge Pratt would have granted a motion in limine on that basis.(Resp't Ex. 139 ¶3.)
After a brief evidentiary hearing, the postconviction court made oral findings on the record, explaining that Petitioner had not proven by a preponderance of the evidence that trial counsel's representation was deficient and that "even to the extent that possibly not filing the motion in limine could be considered a deficient performance," Petitioner failed to establish prejudice. (Resp't Ex. 141 at 27.) In a written judgment, the postconviction court noted that Petitioner had failed to establish the merits of his claims and denied relief. (Resp't Ex. 142.)
Petitioner contends that the postconviction court's decision denying relief on this claim was "both contrary to, and [an] unreasonable application [] of, the Sixth Amendment guarantee of effective assistance of counsel." (Pet'r's Br. at 2.) Petitioner renews his arguments presented to the postconviction court and insists that the jury's initial difficulty reaching a verdict demonstrates the prejudice stemming from the testimony of ES's mother concerning his deportation and incarceration. (Id., at 11.)
Petitioner has failed to demonstrate that trial counsel's decision to forgo moving in limine to exclude evidence of Petitioner's incarceration and deportation amounts to ineffective assistance of counsel. As trial counsel explained in his affidavit before the postconviction court, he considered but ultimately rejected filing a motion in limine because both sides agreed to warn their respective witnesses to avoid giving testimony concerning certain topics, including Petitioner's incarceration, and such tactics previously had proven effective to protect defense interests during trial. Trial counsel also attested that he had reason to believe the trial judge would not grant a motion in limine, and he otherwise could have determined that even if such a motion could have been granted, there would be little to gain from a formal order declaring evidence of Petitioner's incarceration and deportation inadmissible since both attorneys already had agreed to warn their witnesses not to offer testimony on those topics. In weighing these factors, trial counsel reasonably could have concluded that a motion in limine was unnecessary under the circumstances, and that his time and energy would be better spent on other matters. See Sti-ickland, 466 U.S. at 690 (noting that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable"); see also Richter, 562 U.S. at 107 (explaining that a defense attorney is "entitled to formulate a strategy that was reasonable at the time and to balance limited resources in accord with effective trial tactics and strategies").
Even if trial counsel's decision to forgo a motion in limine was deficient, Petitioner still is not entitled to habeas relief because he has not established that he suffered prejudice. See Strickland, 466 U.S. at 691 (explaining that "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment"). Specifically, Petitioner has not demonstrated that a motion in limine would have been granted or that a formal order excluding evidence of Petitioner's previous incarceration and deportation would have prevented those issues from being raised at trial. Indeed, had a motion in limine been filed and granted, ES's mother still would have been warned not to address Petitioner's incarceration and deportation during her testimony, trial counsel still would have invited her answer referencing those subjects on cross-examination, and the trial court still would have denied Petitioner's motions to strike and for mistrial on that basis. Moreover, Petitioner and his sister both alluded to his undocumented status and deportation in their respective testimonies, and Petitioner's previous conviction for fourth degree assault was admissible to impeach his testimony. (See Tr. at 224.)
Furthermore, any possible prejudice was mitigated by the fact that the testimony in question was consistent with Petitioner's theory that he lacked opportunity to abuse ES and by the trial court's instruction to the jury that it could not use evidence of Petitioner's prior incarceration to infer his guilt. There is nothing in the record to suggest that the jury failed to follow these instructions and improperly relied on testimony concerning Petitioner's previous incarceration and deportation to reach its verdict. Although Petitioner insists that the jury's initial difficulty in reaching a verdict demonstrates that such testimony had a tendency to affect the verdict, this argument is wholly speculative and unsupported by the record. Accordingly, Petitioner has failed to demonstrate that he was prejudiced by trial counsel's failure to file a motion in limine.
As explained above, Petitioner has failed to establish that the postconviction court's determination that trial counsel was not ineffective and that Petitioner was not prejudiced by trial counsel's decision to forego filing a motion in limine is "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103. Accordingly, the postconviction court's decision denying relief on this claim is entitled to deference and the district judge should deny habeas relief on Ground One.
II. Grounds Two Through Nine
Petitioner does not argue the merits of the claims alleged in Grounds Two through Nine, In addition, Petitioner does not challenge Respondent's arguments that those grounds are procedurally defaulted. Accordingly, habeas relief is precluded as to Grounds Two through Nine because they are procedurally defaulted and because Petitioner has failed to sustain his burden of demonstrating entitlement to habeas relief on those claims. See 28 U.S.C. § 2248 (instructing that "[t]he allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas 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"); see also Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (recognizing that a habeas petitioner carries the burden of proving his case).
CONCLUSION
Based on the foregoing, the district judge should DENY the Petition for Writ of Habeas Corpus (ECF No. 2), and should DISMISS this proceeding, with prejudice. Petitioner has not made a substantial showing of the denial of a constitutional right, and therefore the district judge also should DENY a Certificate of Appealability. 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 Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues and will constitute a waver of a party's right to appellate review of the findings of fact in an order or judge entered pursuant to the Magistrate Judge's recommendation.