Opinion
Civil No. 00-6066-HA
November 8, 2002
Christopher J. Schatz, Assistant Federal Public Defender, Portland, Oregon, for Petitioner.
Hardy Myers, Attorney General, Carolyn Alexander, Assistant Attorney General, Salem, Oregon, for Respondent.
OPINION AND ORDER
Petitioner brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, the petition (doc. #1) is DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner is in the custody of the Oregon Department of Corrections pursuant to four sets of convictions in Washington County, each with multiple counts of Kidnaping in the First Degree, Rape in the First Degree, Sodomy in the First Degree and Sexual Abuse in the First Degree. Petitioner originally challenged three of the four sets of convictions. He now acknowledges most of these challenges are either barred by procedural default or otherwise not subject to federal review. Petitioner advances one claim of ineffective assistance of counsel, set forth in the petition as ground 3, parts 1 and 4.
At trial, the prosecution presented DNA evidence concerning the statistical likelihood of individuals in the general population sharing the genetic features present in DNA collected from vaginal swabs taken from two of the victims (and from semen found on the underwear of one of them). The likelihood of a "match" was described as one in 89 in one of the cases and as one in 250 in the other. Petitioner's DNA matched the DNA located in the swabs and in the underwear.
The basis of petitioner's claim of ineffective assistance of counsel lies in defense counsel's failure to investigate the Federal Bureau of Investigation's DNA population genetic frequency database. The prosecution used this database to generate its statistical estimates of the likelihood of a match occurring in the general population. Although defense counsel had received authorization for funds to investigate the database, and the trial court had remarked upon the necessity of an examination for an adequate cross-examination of prosecution experts, defense expert never studied the database of genetic traits. Defense counsel therefore could not adequately cross-examine the government's experts and attack the validity of the probabilities presented.
The Oregon Court of Appeals affirmed petitioner's conviction, and the Oregon Supreme Court affirmed. State v. Herzog, 125 Or. App. 10, 864 P.2d 1362 (1993), aff'd per curium, State v. Herzog, 324 Or. 294, 924 P.2d 817 (1996). Petitioner then sough post-conviction relief in state court. The post-conviction court denied relief, issuing specific findings of fact and conclusions of law. The Oregon Court of Appeals affirmed without opinion in 1999, and the Oregon Supreme Court denied review. Herzog v. Thompson, ___ Or. App. ___, 991 P.2d 64 (1999), rev. denied, 329 Or. 650, 994 P.2d 132 (2000).
STANDARD OF REVIEW
A federal court may grant a writ of habeas corpus to a state prisoner only if the state courts' decisions were "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or were "based on an unreasonable determination of the facts in light of the evidence presented" to the state courts. 28 U.S.C. § 2254(d). Accordingly, the reviewing federal court must identify clearly established federal law governing petitioner's claim and decide whether the reviewing state courts' application of this law or determination of the facts was reasonable.
Petitioner's ineffective assistance of counsel claim is governed by the Supreme Court's two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984). To prevail on a claim of ineffective assistance of counsel, a petitioner must show: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense. Mayfield v. Woodford, 270 F.3d 915, 925 (9th Cir. 2001) (quoting Strickland). Deficient performance of counsel requires errors "so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Williams v. Taylor, 529 U.S. 362, 390 (2000) (quoting Strickland, 466 U.S. at 687). Prejudice requires showing that counsel's errors were such that they deprived the petitioner of a fair trial. United States v. Day, 285 F.3d 1167, 1170 (9th Cir. 2002) (citing Strickland, 466 U.S. at 694). The petitioner must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
ANALYSIS
The post-conviction review court issued findings of fact and conclusions of law relating to petitioner's claim of ineffective assistance of counsel. The findings of fact stated:
1. Petitioner's trial counsel sought and obtained discovery from the prosecution; petitioner presented no evidence in this proceeding that counsel did not properly seek discovery. . . .
6. Counsel attacked the admissibility of the DNA evidence, and this issue was raised on direct appeal. Petitioner presented no credible evidence that counsel could reasonably have done anything differently to make the attack more "adequate."
Respondent's Exhibit 150 at 3-4. The conclusions of law continued:
1. In the underlying criminal proceedings resulting in petitioner's conviction, petitioner was not denied the right to assistance of counsel, as guaranteed by either the United States Constitution or the Constitution of the State of Oregon.
Id. at 6.
Confronted with these terse denials of petitioner's claim, it is impossible for this court to discern whether the state courts' application of the Strickland test was reasonable under 28 U.S.C. § 2254(d). See Fisher v. Roe, 263 F.3d 906, 914 (9th Cir. 2001), abrogated on other grounds by Mancuso v. Olivarez, 292 F.3d 939 (9th Cir. 2002). In these situations, the Ninth Circuit has determined that:
the lack of a reasoned explanation is relevant to our scope of review. When we are confronted with a state court's postcard denial . . . we have nothing to which we can defer. Accordingly, we must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law.
Luna v. Cambra, 306 F.3d 954, 960-61 (9th Cir. 2002) (internal quotations and alterations omitted). Because the state courts failed to provide a reasoned explanation for the denial of petitioner's claim, this court conducts an independent review of the record to evaluate the effectiveness of petitioner's trial counsel.
In Strickland, the Court observed:
[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.466 U.S. at 697. Therefore, assuming that defense counsel's failure to investigate the FBI's population gene frequency database was deficient, the court examines whether the deficient performance prejudiced petitioner.
Petitioner must make a showing that there is a reasonable probability that but for the deficient representation, the results of the proceedings would have been different. Day, 285 F.3d at 1170. A reasonable probability is a probability "sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 698. Prejudice is necessarily more difficult to show when the government's case is strong. See Bragg v. Galaza, 242 F.3d 1082, 1088-89 (9th Cir. 2001).
Petitioner has failed to show a reasonable probability that had trial counsel obtained expert examination of the database, the results of the proceedings would have been different. There is nothing to suggest the defense expert would have discovered anything significantly wrong with the FBI's database. Even if the expert could have concluded that the database was unreliable, petitioner has not made the required showing that this would have affected the result of the trial, especially when the strength of the prosecution's case is taken into account.
All three victims identified petitioner as their attacker, as did a fourth victim — Sharon Taylor — who testified at the trial. Both audio and video of the four lineup identifications were admitted at trial and played for the jury. None of the victims was present during the identification by any other victim. All three victims were able to describe defendant's truck in detail, including such details as a thick or coiled gold chain hanging from the rear view mirror and light colored towels and a pillow in the canopy. Taylor described petitioner's tattoo. A pubic hair similar to one of the victim's pubic hairs was found inside defendant's truck, and fibers from defendant's seat covers were found on all four women. Even if defense counsel had been able to encourage the jury to ignore the DNA evidence completely, petitioner has failed to show a reasonable probability that this would have made any difference to the outcome of his trial.
CONCLUSION
Because petitioner has failed to show prejudice resulting from trial counsel's alleged ineffectiveness, the petition for writ of habeas corpus (doc. #1) is DENIED.
IT IS SO ORDERED.