Opinion
6:21-cv-00183-CL
01-13-2022
GEDDY LEE JOHNSON, Petitioner, v. MICHAEL HSU et al, Respondents.
FINDINGS AND RECOMMENDATION
MARK D. CLARKE UNITED STATES MAGISTRATE JUDGE
Petitioner Geddy Lee Johnson ("Petitioner") brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the district judge should DENY the Petition for Writ of Habeas Corpus (ECF No. 1) and decline to issue a certificate of appealability.
BACKGROUND
On September 4, 2009, a Marion County grand jury returned an indictment charging Petitioner with one count of Assault in the Second Degree Constituting Domestic Violence; two counts of Assault in the Fourth Degree Constituting Domestic Violence; and one count of Robbery in the Third Degree. (Resp't Exs. (ECF Nos.18, 19), Ex. 102.) The charges arose from two incidents in which Petitioner became violent toward his girlfriend, "MM," in January and August 2009. (Id.)
Petitioner pleaded not guilty to all counts and proceeded to trial before a jury in January 2010. The Oregon Court of Appeals summarized the relevant portions of that proceeding as follows:
At trial, petitioner's defense counsel argued to the jury that the victim had angrily forced a confrontation with petitioner in August, after he announced that he was leaving, and that she then fabricated both assaults. Petitioner testified that he had not assaulted the victim on either occasion. He testified that he had tried to stay away from the victim and that the incident in August arose after he had announced, "I'm tired of you and I want out of here." He also testified that the August argument was precipitated in part by petitioner's refusal to deliver marijuana illegally at the victim's request.
The victim acknowledged that, when she went to the hospital after the January assault, she had reported that she slipped and injured herself without petitioner's involvement. She testified that she had not contemporaneously reported the incident to the authorities because she was worried that her son might be taken away. She also testified that she changed her phone number shortly after the January assault and did not have regular contact with petitioner until June 2009, when they resumed their relationship.
On cross-examination, petitioner's counsel showed the victim a stack of emails that she had exchanged with petitioner between January and June 2009, and she admitted that she had continued to have regular email contact with petitioner during that time. She insisted, however, that "it was only email" contact. The victim also acknowledged that she had not mentioned the January assault in any of the emails to petitioner and that, in some of the emails, petitioner had told the victim that he wanted her to leave him alone.Johnson v. Taylor, 287 Or.App. 424, 426-427 (2017).
The jury returned guilty verdicts on all counts, voting 10-2 in favor of conviction on Count One - Assault in the Second Degree Constituting Domestic Violence - and 11-1 in favor of conviction on Count Four - Robbery in the Third Degree - but voting unanimously in favor of conviction on the remaining counts. (Resp't Ex. 103 at 217-18.) After the jury found multiple aggravating factors, the trial court sentenced Petitioner to a custodial term totaling 130 months, to be followed by a thirty-six-month term of post-prison supervision. (Resp't Exs. 101; 103 at 227.)
When citing to Respondent's Exhibits, the Court refers to the page numbers located in the lower right corner of each exhibit.
Petitioner filed a direct appeal, raising three assignments of trial court error:
FIRST ASSIGNMENT OF ERROR: The trial court erred when it denied defendant's motion for a judgment of acquittal on Counts and 3, assault in the fourth degree.
SECOND ASSIGNMENT OF ERROR: The trial court erred when it instructed the jury that it could return a non-unanimous verdict.
THIRD ASSIGNMENT OF ERROR: The trial court erred when it convicted defendant on Counts land 4 based on a non-unanimous verdict.(Resp't Ex. 105 at 13, 18.) The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. (Resp't Exs. 109, 110.)
Petitioner next filed a petition for post-conviction relief. (Resp't Exs. 110.) In his counseled amended petition, Petitioner alleged, among other things, that trial counsel was ineffective because he (1) failed to object when the trial court imposed a sentence on Count 1 exceeding the maximum allowed by law; (2) failed to introduce into evidence emails between Petitioner and MM that allegedly demonstrated MM's bias and motive to lie and contradicted her characterization of the nature and extent of her contact with Petitioner after the January assault; and (3) failed to contact Petitioner for approximately four months immediately preceding trial. (Resp't Ex. 112 at 5-7.) In a written judgment, the postconviction court accepted the State's concession that Petitioner's total sentence on Count 1 exceeded the statutory maximum for that offense, but denied relief on all other claims. (Resp't Ex. 135.)
The postconviction court later amended the underlying criminal judgment to reduce Petitioner's term of post-prison supervision from thirty-six to ten months. (Resp't Ex. 136.)
Petitioner appealed, assigning as error the postconviction court's exclusion of evidence concerning trial counsel's disciplinary history with the Oregon State Bar and its decision denying relief on Petitioner's ineffectiveness claims with respect to trial counsel's failures to contact Petitioner before trial and to introduce into evidence the emails between Petitioner and MM. (Resp't Ex. 137 at 2-3.) The Oregon Court of Appeals held that the postconviction court erred in excluding the disciplinary records, reversed the denial of Petitioner's ineffectiveness claims, and remanded for the postconviction court to determine whether trial counsel "made a considered choice not to introduce the bias emails and, if not, whether the absence of a considered choice amounted to constitutionally inadequate assistance or demonstrates that petitioner proved prejudice from counsel's failure to contact him in the months before trial." Johnson, 287 Or.App. at 426, 429-42.
On remand, the postconviction court again denied Petitioner's ineffectiveness claims, concluding that he failed to establish deficient performance or prejudice with respect to trial counsel's failure to introduce the emails, and failed to establish prejudice with respect to trial counsel's inattention before trial. (Resp't Ex. 141.) The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. (Resp't Exs. 144-46.)
On February 3, 2021, Petitioner filed a pro se Petition for Writ of Habeas Corpus in this Court, raising three grounds for relief. In Grounds One and Two, Petitioner renews his claims that trial counsel was ineffective in failing to contact Petitioner in the four months preceding trial and failing to introduce the emails between Petitioner and MM. (Pet. at 7-8.) In Ground Three, Petitioner challenges his convictions by a non-unanimous jury on Counts 1 and 4. (Id., at 9.) Respondents urge this Court to deny habeas relief, arguing that the state court's denial of Petitioner's claims is entitled to deference. (Resp't Joint Resp. to Pet. (ECF No. 16), at 7-9.) Petitioner did not file a brief in support of his claims.
After the briefing deadline expired on August 30, 2021, the Court ordered Petitioner to show cause in writing by October 15, 2021, explaining why he failed to file a supporting brief and whether he intended to do so. To date, Petitioner has not responded to the order to show cause, filed a supporting brief, or otherwise contacted the Court. Petitioner thus has failed to sustain his burden of demonstrating that he is entitled to habeas relief. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (recognizing that a habeas petitioner carries the burden of proving his case). The Court nevertheless analyzes Petitioner's claims on the existing record and concludes for the reasons stated infra that habeas relief is not warranted in this case.
DISCUSSION
I. Ineffective Assistance of Counsel
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. Richer, 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
I. Trial Counsel's Neglect of Petitioner
In Ground One, Petitioner alleges that trial counsel was ineffective when he "failed to contact Petitioner for approximately 4 months immediately preceding trial, finally meeting with him in jail around 9:00 p.m. on the eve of trial." (Pet. at 6.) According to Petitioner, this neglect deprived him of "any opportunity to meaningfully participate in his defense, explore plea negotiations, provide information relating to factual investigation, or make a realistic determination of the risks and benefits of going to trial versus pleading guilty." (Id.)
As explained above, Petitioner raised this claim in his postconviction proceedings, arguing that "trial counsel's meager contact" with him prior to trial "deprived the defense of the opportunity to develop an adequate factual investigation." (Resp't Ex. 112 at 7.) More specifically, Petitioner argued that due to trial counsel's neglect, he "was unable to avail himself of... female witnesses ... who were in prior intimate relationships with petitioner [and] would have testified as to relevant traits of character (non-violence and honesty)," and that had trial counsel timely contacted Petitioner in advance of trial, he "would have had ample time to review and utilize the emails provided to him[.]" (Id. at 7-8.)
The postconviction court rejected this claim in Petitioner's original postconviction proceedings and on remand, holding that although trial counsel's "lack of attention to Petitioner's case until just before trial fell[] below the standard for reasonable professional skill and judgment[, ]" Petitioner failed to prove that such inattention caused him prejudice. (Resp't Ex. 141 at 3.) Specifically, the postconviction court found that the putative testimony of Petitioner's ex-girlfriends would have been inadmissible and therefore would not have changed the outcome of Petitioner's trial. (Resp't Ex. 135 at 3-4.) The postconviction court also found that there was no evidence in the record to link trial counsel's neglect of Petitioner before trial with his handling of the emails, explaining;
Petitioner has not proven that his attorney's lack of attention was manifest in his failure to properly use the email evidence. As indicated above, the trial transcript demonstrates that counsel was aware of the number, date and content of the emails. He used them appropriately to impeach the testimony of the alleged
victim. He made strategic choices regarding which part to use and which to omit and made a decision to not offer them as exhibits. Petitioner has not proven that his trial attorney's use or lack of use of the emails was a product of counsel's lack of adequate preparation. Petitioner has not proven that counsel's lack of adequate preparation with respect to the emails had a tendency to affect the outcome of trial.(Resp't Ex. 141.)
Upon review, this Court concludes that the postconviction court's ruling was not objectively unreasonable. As noted, there was no evidence before the postconviction court to connect trial counsel's lack of timely attention to Petitioner's case with the way he ultimately chose to utilize the emails at trial, and "[t]here is no other proof [in the record] of what [trial counsel] should have done to further Pet[itioner]'s cause if he had spent more time" working on his case. (Resp't Ex. 135 at 4.) Petitioner therefore cannot establish that he was prejudiced by trial counsel's inattention before trial. See Richter, 562 U.S. at 104 (explaining that to establish prejudice, "[i]t is not enough 'to show that [counsel's] errors had some conceivable effect on the outcome of the proceeding'"). Although trial counsel's treatment of Petitioner is regrettable, the postconviction court's decision denying relief on this basis is not "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). Accordingly, the postconviction court's decision is entitled to deference and the district judge should deny habeas relief on Ground One.
Because the Oregon Court of Appeals affirmed without opinion, this Court must "look through" to the last reasoned decision on the issue, i.e., the postconviction court's denial of Petitioner's ineffectiveness claims. See Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) (explaining that where 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).
1.Trial Counsel's Failure to Admit Bias Emails
In Ground Two, Petitioner alleges that trial counsel was ineffective when he failed to introduce into evidence emails between Petitioner and MM, (Pet, at 7.) Petitioner claims that trial counsel should have admitted the emails because they "contradicted the victim's characterization of the nature and extent of her contact with Petitioner over a several month period after the alleged assault underlying Count I and demonstrated the victim's bias and motive to lie." (Id.)
Petitioner raised this claim during his postconviction proceedings, (Resp't Ex. 112 at 23-28, 30-45.) Petitioner argued that reasonable trial counsel would have introduced the emails because they "unmistakably constituted strong evidence of [MM's] motive to lie" and "could have had a significant impact on [her] credibility." (Resp't Ex. 113 at 9-11.) Petitioner argued that because "[t]he State's case rested almost entirely on [MM's] testimony," trial counsel's failure to attack her credibility by admitting the emails into evidence prejudiced Petitioner. (Id.)
The postconviction court disagreed, holding that Petitioner failed to "overcome the presumption that trial counsel's use of the emails was consistent with reasonable professional skill and judgment." (Resp't Ex. 141 at 2.) Specifically, the postconviction court concluded that trial counsel had "made a strategic decision to not offer the emails as an exhibit[, ]" explaining:
The [trial] transcript demonstrates that counsel had the emails in court and showed them to [MM]. Counsel questioned [MM] about specific email dates and whether she ever mentioned being hit in the head with a vase in any of them and pointed out that Petitioner frequently told her that he didn't want to have anything further to do with her, ... It is clear from this exchange that counsel had the emails present and that he was fully aware of the contents of all the emails. Had counsel wanted the jury to read the entire contents of the emails he could have simply had them marked and offered them. Instead, counsel had the witness confirm the number and dates of the emails and that Petitioner told her to leave him alone and not once in any email did she mention the assault with a vase. Using the emails in this way demonstrated a decision to use them in a limited manner and not offer the entire contents to the jury. The email package [submitted by Petitioner] ... contained passages that showed motive to lie and bias on the part of the victim but also improper drug activity and anger on the part of the
Petitioner. It is simply not reasonable to infer that counsel, in that situation, never once considered whether or not to offer the emails as exhibits.(Id.) The postconviction court further explained that even if trial counsel's decision was not strategic, he reasonably pursued a defense "of showing Petitioner as being nonviolent and showing that the victim's behavior in continuing to contact Petitioner, exchanging emails which never once mentioned the assault and spending time together demonstrated that the victim was lying about the assault with the vase, which was the most serious charge." (Id.) Because the full contents of the emails "could have undercut trial counsel's trial strategy" and "demonstrated a volatile relationship" between Petitioner and MM, the postconviction court concluded that trial counsel was not ineffective in failing to introduce the emails into evidence and that petitioner was not prejudiced by their omission. (Id. at 2-3.)
The postconviction court's ruling was not objectively unreasonable. As the postconviction court explained, trial counsel clearly was in possession of the emails during trial and aware of their contents. Rather than submitting the emails for the jury's inspection, trial counsel used the emails during cross-examination to impeach MM, who admitted that she had kept "very regular contact with [Petitioner] by email" after the January assault despite her testimony to the contrary, that she had not mentioned the assault in any of their correspondence, and that Petitioner had on more than one occasion asked her to leave him alone. (Resp't Ex. 103 at 80-83.) These admissions supported the defense theory of the case and undercut MM's credibility without the risk of revealing to the jury Petitioner's own poor behavior and anger toward MM. As the Oregon Court of Appeals noted during Petitioner's first postconviction appeal, "reasonable defense counsel could [have] decide[d] that the cost-benefit analysis weighed against introducing the email content." Johnson, 287 Or.App. at 432. Accordingly, the postconviction court's decision is entitled to deference, and the district judge should deny habeas relief on Ground Two.
II. Non-Unanimous Jury
In Ground Three, Petitioner asserts that the trial court violated his constitutional rights when it "instructed the jury that it could reach a non-unanimous verdict and ultimately convicted Petitioner with a non-unanimous verdict on Counts 1 and 4." (Pet, at 9.) Although the Supreme Court recently held in Ramos v. Louisiana, 590 U.S. ___, 140 S.Ct. 1390, 1397 (2020) that the Sixth Amendment right to jury trial, as incorporated against the States by the Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a serious offense, the jury unanimity rule announced in Ramos is not retroactive in cases on federal collateral review. Edwards v. Vannoy, 141 S.Ct. 1547, 1559 (2021). Petitioner therefore is not entitled to habeas relief on Ground Three.
CONCLUSION
Based on the foregoing, the district judge should DENY the Petition for Writ of Habeas Corpus (ECF No. 1), 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 waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation.