Opinion
2:16-cv-01990-YY
10-06-2021
JAMES CLARK KNOX, Petitioner, v. MARK NOOTH, Respondent.
FINDINGS AND RECOMMENDATION
YOULEE YIM YOU, UNITED STATES MAGISTRATE JUDGE
Petitioner, an adult in custody of the Oregon Department of Corrections, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, Petitioner's Second Amended Petition for Writ of Habeas Corpus (ECF No. 17) should be denied.
BACKGROUND
On March 28, 2002, a Yamhill County grand jury indicted Petitioner on fifteen charges, including one count of Rape in the First Degree, one count of Sodomy in the First Degree, and seven counts of Sexual Abuse in the First Degree committed against Petitioner's daughter KK when she was thirteen years old. Resp. Exh. 102. The other six counts alleged Rape in the Second Degree of defendant's daughter's friend, MP. Id.
In advance of trial, Petitioner's counsel moved to sever the counts involving KK from the counts involving MP. Tr. 22. Counsel asserted that the charges were improperly joined because they were not based on the same act or transaction, were not connected together by a common scheme or plan, and were not the same or similar character. Tr. 21. Counsel argued that evidence related to the offenses against Petitioner's daughter would not be independently admissible to prove the charges related to MP, and vice versa, and it would be highly prejudicial if the charges relating to both victims were tried together. Id. The prosecutor responded that joinder was appropriate because the charges were of a “similar character, ” noting that both sets of charges involved teenage girls who were sexually abused in the same house by the same alleged perpetrator, and were investigated by the same police officer after they disclosed the sexual abuse at approximately the same time. Tr. 22. The trial judge denied the motion to sever. Tr. 23.
The case proceeded to a jury trial. Petitioner claimed that the forcible sex abuse allegations by his daughter KK were completely fabricated based on her animosity toward him. As to MP, Petitioner planned to acknowledge a sexual relationship, but maintained that it was a single, isolated episode, rather than six. At trial, Petitioner and his counsel made tactical decisions that Petitioner would not take the stand and that counsel would not cross-examine MP.
The jury convicted Petitioner of all charges. As to the charges against his daughter KK, the jury voted 10-2 to convict. As to MP, however, the verdict was unanimous. The trial judge sentenced Petitioner to a total of 605 months of imprisonment.
Petitioner filed a direct appeal, asserting that the trial court erred in three respects. Resp. Exh. 107, p. 16. First, Petitioner assigned error to the trial court's denial of his pre-trial motion to sever the charges related to KK from those related to MP. Id. Second, Petitioner alleged that the trial court erred in admitting evidence of other crimes, wrongs, or bad acts. Id. Third, Petitioner assigned error to the trial court's denial of his pre-trial motion to suppress statements that he made to MP during a recorded “controlled call” during the police investigation. Id. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. Knox, 201 Or.App. 733, rev. denied, 340 Or. 34 (2006). The United States Supreme Court denied a petition for writ of certiorari. State v. Knox, 549 U.S. 842 (2006).
Petitioner then filed a petition for state post-conviction relief (“PCR”), alleging numerous claims against trial counsel, appellate counsel, and the trial court. Resp. Exh. 113. During the course of the PCR proceedings, Petitioner's PCR counsel moved to withdraw, citing a breakdown in communications concerning the claims that Petitioner wanted counsel to pursue. Resp. Exh. 164, p. 5. The PCR trial court granted counsel's request to withdraw and required Petitioner to proceed pro se. Id. Following an evidentiary hearing, the PCR trial court denied relief. Resp. Exh. 159. On appeal, the Oregon Court of Appeals concluded that the PCR trial court had abused its discretion in allowing PCR counsel to withdraw and in requiring Petitioner to proceed pro se, and reversed and remanded the case for further proceedings. Knox v. Nooth, 244 Or.App. 572 (2011).
On remand, Petitioner ultimately proceeded to trial on a Third Amended Petition with the assistance of counsel. Resp. Exh. 166. Petitioner alleged numerous claims against trial counsel, appellate counsel, and the prosecutor. Id. Following a trial, the PCR court entered a judgment denying relief. Resp. Exh. 224.
On appeal from the PCR court's denial of relief, Petitioner asserted two assignments of error. Resp. Exh. 225. He asserted trial counsel was ineffective in failing to move for a judgment of acquittal on the charges pertaining to his daughter KK and trial counsel should have argued that consecutive sentences imposed on the counts involving MP were impermissible. Id. The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Knox v. Nooth, 276 Or.App. 918, rev. denied, 359 Or. 777 (2016).
Petitioner now seeks habeas corpus relief in this court pursuant to 28 U.S.C. § 2254. In his Second Amended Petition for Writ of Habeas Corpus, he alleges eleven claims for relief, several of which allege multiple sub-claims. In his Brief in Support, however, Petitioner addresses only one claim: that the trial court violated his federal due process rights by denying his motion to sever the charges relating to KK from the charges relating to MP. Respondent argues Petitioner procedurally defaulted this claim and that, in any event, the claim lacks merit. Respondent further contends that Petitioner has not established he is entitled to relief on the remaining claims alleged in his Second Amended Petition but not addressed in his Brief in Support.
DISCUSSION
I. Procedural Default
As noted, Respondent contends that Petitioner procedurally defaulted his claim that the trial court violated his right to due process by denying the motion to sever. Petitioner asserted on direct appeal that the trial court committed error in denying the motion to sever, arguing at some length that the joinder of the charges “substantially prejudiced” him under Or. Rev. Stat. § 132.560(3). At the conclusion of his argument, Petitioner included a single sentence in which he claimed that his federal due process rights were violated “by the process, or lack of process in this case.” Resp. Exh. 107, p. 22.
Here, in contrast, Petitioner argues that the denial of the motion to sever resulted in the denial of his right to present a defense. Petitioner cites several Supreme Court cases in which the Court held that various state evidentiary and/or procedural rules impermissibly infringed on a criminal defendant's right to present a defense.
A habeas petitioner generally must exhaust all remedies available in state court, either on direct appeal or through collateral proceedings, before a federal court may consider granting habeas relief. See 28 U.S.C. § 2254(b)(1)(A) (instructing that a court may not issue a writ of habeas corpus on behalf of an individual in state custody unless “the applicant has exhausted the remedies available in the courts of the State”); see also Smith v. Baldwin, 510 F.3d 1127, 1137 (9th Cir. 2007) (noting that a prisoner must first exhaust available remedies before a federal court may consider the merits of a habeas petition). Generally, a petitioner satisfies the exhaustion requirement “by fairly presenting the federal claim to the appropriate state courts . . . in the manner required by the state courts, thereby ‘afford[ing] the state courts a meaningful opportunity to consider allegations of legal error.'” Casey v. Moore, 386 F.3d 896, 915-16 (9th Cir. 2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 257 (1986)) (alteration in original); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (holding that “[b]ecause the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, . . . state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete rounds of the state's established appellate review process”).
If a petitioner failed to present his claims to the state courts in a procedural context in which the merits of the claims were actually considered, the claims have not been fairly presented to the state courts and are therefore not eligible for federal habeas corpus review. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In this respect, a petitioner is deemed to have “procedurally defaulted” his claim if he failed to comply with a state procedural rule, or failed to raise the claim at the state level at all. Carpenter, 529 U.S. 446, 451(2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). An individual in state custody is barred from raising procedurally defaulted claims in federal court unless he “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law or demonstrate that failure to consider the claims will result in fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.
Petitioner's argument on direct appeal was focused on state law. The mere mention, in passing, of the broad constitutional principle of due process does not suffice to “fairly present, ” and thereby exhaust, his federal constitutional claim. See Gray v. Netherland, 518 U.S. 152, 163 (1996) (explaining “that it is not enough to make a general appeal to a constitutional guarantee as broad as due process to present the ‘substance' of such a claim to a state court”); Fields v. Waddington, 401 F.3d 1018, 1021 (9th Cir. 2005) (“[n]or is a federal claim exhausted by a petitioner's mention, in passing, of a broad constitutional concept, such as due process”). Because Petitioner did not fairly present his claim to the Oregon appellate courts and cannot now do so, the claim is procedurally defaulted. Petitioner has not established cause and prejudice or a fundamental miscarriage of justice to excuse his procedural default, so relief on the claim should be denied on this basis. In any event, as discussed below, Petitioner's claim fails on the merits.
II. Relief on the Merits
Petitioner contends that by denying his motion to sever, the trial court denied him the opportunity to present a defense. He argues that, as a result of the ruling, he was required to present “mutually antagonistic defenses, ” arguing at trial that KK's allegations of sexual abuse were “utterly fabricated, ” while at the same time conceding that he had sexually abused MP, albeit less than alleged in the indictment.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), habeas corpus relief “shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that 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” established federal law if it fails to apply the correct Supreme Court authority, or if it 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); Williams, 529 U.S. at 407-08, 413; see also Early v. Packer, 537 U.S. 3, 11 (2002) (per curiam) (state court decisions that are not “contrary to” Supreme Court law 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'”).
In United States v. Lane, the Supreme Court stated in a footnote that “[i]mproper joinder does not, in itself, violate the Constitution. Rather, misjoinder would rise to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial.” 474 U.S. 438, 446 n.8 (1986). The Ninth Circuit has found that this language is dicta:
The language upon which Collins refers is dicta. Lane dealt with the joinder of standards under Federal Rules of Criminal Procedure 8 and 52; no constitutional issue was before the Court.Collins v. Runnels, 603 F.3d 1127, 1132 (9th Cir. 2010).
The Ninth Circuit has also observed in an unpublished opinion that this was “probably dictum”:
Lane considered only the effect of misjoinder under Federal Rule of Criminal Procedure 8, and expressly stated that no constitutional claim had been presented. See Lane, 474 U.S. 438, 446 & n.9, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986). Thus, Lane's broad statement-found in a footnote without citation to any legal authority-that misjoinder could only rise to the level of a constitutional violation if it was so prejudicial as to violate due process, was probably dictum. Only Supreme Court holdings are controlling when reviewing state court holdings under 28 U.S.C. § 2254; Court dicta and circuit court authority may not provide the basis for granting habeas relief. Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003).Young v. Pliler, 273 Fed.Appx. 670, 672 n.1 (9th Cir. 2008).
“[T]he phrase ‘clearly established Federal law, as determined by the Supreme Court of the United States' . . . refers to the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000) (emphasis added). “In other words, ‘clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).
Petitioner fails to demonstrate that the trial court's rejection of his misjoinder claim contradicted, or unreasonably applied, binding Supreme Court precedent. The Supreme Court has never held that improper joinder of charges violates the Constitution. The dicta contained in a footnote in Lane “did not set forth the governing legal principle . . . It was merely a comment.” Collins, 603 F.3d at 1132. Given there is no clearly established federal law in this instance, this court cannot grant relief; habeas relief is warranted only when the state court adjudication runs afoul of clearly established federal law. See Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (absent a Supreme Court decision that squarely addresses the issue, it “cannot be said, under AEDPA, there is ‘clearly established' Supreme Court precedent . . . and so we must defer to the state court's decision”). Accordingly, the state courts' adjudication of Petitioner's misjoinder claim was not contrary to, or an unreasonable application of, clearly established federal law for the purposes of § 2254(d)(1).
III. Claims Not Address in Petitioner's Brief in Support
As noted, Petitioner does not provide any legal argument on his remaining grounds for relief. As such, Petitioner has not sustained his burden to demonstrate why he is entitled to relief on these claims. See Lampert v. Blodgett, 393 F.3d 943, 970 n. 16 (9th Cir. 2004). Nevertheless, the court has reviewed these claims and is satisfied that Petitioner is not entitled to habeas corpus relief.
RECOMMENDATION
For these reasons, the Petition for Writ of Habeas Corpus should be DENIED and a judgment of dismissal should be entered. Because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability should be DENIED. See 28 U.S.C. § 2253(c)(2).
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due within 14 days. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.