Opinion
6:19-cv-01769-SB
04-09-2021
STEVEN CURTIS LEECH, Petitioner, v. BRANDON KELLY, Superintendent, Oregon State Penitentiary, Respondent.
FINDINGS AND RECOMMENATION
STACIE F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE
Petitioner Steven Curtis Leech (“Leech”) filed this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons that follow, the district judge should deny the Amended Petition for Writ of Habeas Corpus (ECF No. 12) (the “Petition”), and should decline to issue a certificate of appealability.
BACKGROUND
On January 10, 2012, Leech and an individual known as “Country” made an unannounced visit to the North Portland residence of Janice Tyler (“Tyler”), John Rodriguez (“Rodriguez”), and Zackary Davidson (“Davidson”). (Resp't Exs. (ECF No. 18), Ex. 105 (“Tr.”), at 16.) Rodriguez, who was registered with the Oregon Medical Marijuana Program, sometimes PAGE 1 - FINDINGS AND RECOMMENDATION sold marijuana to individuals who did not have a valid medical marijuana card, and Leech gained access to the home under the pretense of buying marijuana. (Tr. at 74.) Once inside, Leech stated, “This is a robbery, ” and drew a knife. (Tr. at 33, 122-23.) Country brandished a gun and pointed it at Tyler's face. (Id.) Within minutes, Leech and Country collected the residents' money and cell phones, as well as a portable safe containing four ounces of marijuana. (Tr. at 43, 50.) Rodriguez called 911 on a landline phone, and Leech and Country fled. (Tr. at 45-46.)
Tyler, Rodriguez, and Davidson were acquainted with Leech-whom they knew as “Irish Steve”-but could not provide police with additional details such as his real name or address. (Tr. at 49-50, 90, 127.) Tyler, however, spotted Leech in the Park Blocks area of downtown Portland two days later, and immediately notified a police officer on duty nearby. (Tr. at 50.) The officer then located Leech, and Tyler positively identified him as one of the individuals involved in the robbery. (Tr. at 50, 52.) Based on Tyler's identification, the officer placed Leech under arrest. (Tr. at 164.) On the way to the police station, Leech spontaneously told the arresting officer, “I haven't slept for six days because I've been using meth, ” and “I just smoke weed, I don't sell it.” (Tr. at 165.)
On January 27, 2012, a Multnomah County grand jury returned an indictment charging Leech with six counts of Robbery in the First Degree, six counts of Robbery in the Second Degree, and one count of Burglary in the First Degree. (Ex. 102.) Before trial, Leech moved to exclude his statements at the time of his arrest, arguing that, in addition to lacking any probative value, the statements were prejudicial. (Ex. 104 at 7.) The State responded that the statements were relevant and not unduly prejudicial because the “six days” reference fell “squarely within the time frame of the robbery[, ]” and because marijuana was one of the items stolen from the residence. (Id. at 8-9.) The trial court agreed and denied the motion. (Id. at 9; Tr. at 165.)
At trial, the State presented the eyewitness accounts of Rodriguez, Tyler, and Davidson, all of whom identified Leech as the individual who had robbed them. (Tr. at 52, 93, 134.) The State also presented the testimony of several law enforcement officers, and introduced Leech's statements at the time of his arrest. (Tr. at 147-93, 165.) Leech testified on his own behalf, admitting that he had participated in the robbery but claiming to have done so under duress. (Tr. at 203-05.) The jury ultimately acquitted Leech on three counts of first-degree robbery, but found him guilty on all remaining counts. (Tr. at 316.) The trial court sentenced Leech to a custodial term totaling 180 months. (Ex. 106 at 36.)
Leech appealed, raising as error, among other things, the admission of his statement that he had been awake using methamphetamine for the six days immediately preceding his arrest. (Ex. 107 at 2.) Leech argued that the statement was not relevant, but even if relevant, the trial court should have excluded it as impermissible character evidence under Oregon law. (Id. at 21-27.) Alternatively, Leech argued that the statement was unduly prejudicial, and that its admission rendered his trial unfair in violation of his right to due process. (Id. at 28-29.) The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. (Exs. 110, 111.)
Leech sought post-conviction relief (“PCR”). (Ex. 112.) In his amended petition, Leech argued that trial counsel was ineffective in five respects: (1) by failing to object to the admission of Leech's statement that he had been up for six days using methamphetamine as inadmissible character evidence under Rule 404 of the Oregon Evidence Code (“OEC”); (2) by failing to object to the trial court's admission of Leech's statement without conducting the balancing required under OEC 403; (3) by failing to object when the trial court declined to impose a remedy for an alleged discovery violation; (4) by failing to object during closing argument when the prosecutor stated “as we all know . . . people who are on meth will do things like this”; and (5) by declining to make an opening statement. (Ex. 113 at 9-11.)
In a written opinion, the PCR court denied each of Leech's claims on the merits. (Ex. 121.) With respect to Leech's claims that trial counsel was ineffective by failing to make specific objections to the admission of Leech's statement, the PCR court found that trial counsel was not ineffective because he had properly objected, and that in response to that objection, the trial court had conducted the requisite balancing under OEC 403. (Id. at 2.) The PCR court also determined that Leech failed to demonstrate prejudice, explaining that “[t]he statement about the meth use and lack of sleep was not character evidence but rather evidence regarding [Leech's] mental and physical condition at the time of the crime. It would also go to the quality of [Leech's] memory of the events. The probative value of the evidence was outweighed by any danger of unfair prejudice.” (Id.)
Leech appealed, assigning as error only the PCR court's denial of relief as to his claim that trial counsel was ineffective in failing to object to the prosecutor's closing argument. (Ex. 122.) The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. (Exs. 124, 125.)
On November 4, 2019, Leech filed a pro se Petition for Writ of Habeas Corpus. (ECF No. 2.) In his amended petition, Leech asserts three grounds for relief:
Ground I: Petitioner was denied effective assistance of counsel in violation of his Sixth and Fourteenth Amendment rights when his trial attorney failed to effectively litigate the prosecution's discovery violation with reference to available and favorable statutory authority and case law. The prosecution cross-examined Petitioner during trial about statements that he had made to his mother from the jail telephone. The statements were recorded. The prosecution, however, did not disclose those recorded statements to the defense. State case law-particularly State v. Young, 94 Or.App. 683 (1989)-was favorable to the defense on the discovery violation
issue. Yet, Petitioner's trial attorney failed to cite to any applicable statutory authority or case law when he brought the discovery issue to the trial court's attention. Petitioner's trial attorney should have raised available and favorable state case law, including State v. Young, but did not.
Ground II: Petitioner was denied effective assistance of counsel in violation of his Sixth and Fourteenth Amendment rights when his attorney failed to:
A. Object to the prosecution's closing argument statement that “people who are on meth will do things like this.”
B. Object to the Prosecution's closing argument statement that Mr. Leech is an “avowed liar.”
Ground III: Petitioner was denied due process of law in violation of the Fourteenth Amendment when the trial court permitted the prosecution to enter into evidence Petitioner's statement that “I haven't slept for six days, because I've been using meth.”(Am. Pet. at 3-4.) Respondent urges the Court to deny relief, arguing that Ground I is procedurally defaulted, and the state-court decisions denying relief on Grounds II and III are entitled to deference. (Resp. to Am. Pet. (ECF No. 16), at 6-13.) In his supporting brief, Leech addresses Respondent's arguments as to Ground III only.
DISCUSSION
I. GROUND III
In Ground III, Leech challenges the admission of his statement to police that he had been awake for six days at the time of his arrest because he was using methamphetamine. Specifically, Leech argues the statement was “inflammatory and impermissible propensity evidence” that rendered his trial “fundamentally unfair” in violation of due process. (Pet'r's Br. (ECF No. 25), at 8-10.) Respondent argues that the state-court decision denying this claim is entitled to deference because “there is no clearly established federal law addressing whether or when the admission of irrelevant or unfairly prejudicial evidence might violate due process.” (Resp. at 7.)
A. Legal Standards
1. Deference to State-Court Decisions
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 that 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”).
“Clearly established federal law” under AEDPA “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, 529 U.S. at 412; see also Thaler v. Haynes, 559 U.S. 43, 47 (2010) (noting that “[a] legal principle is ‘clearly established' within the meaning of [28 U.S.C. § 2254(d)(1)] only when it is embodied in a holding of [the Supreme] Court”). To be “clearly established, a Supreme Court precedent must “squarely address[] the issue in the case before the state court, or establish[] a legal principle that clearly extends to the case before the state court.” Andrews v. Davis, 866 F.3d 994, 1018 (9th Cir. 2017) (simplified), rev'd in part en banc 866 F.3d 994 (9th Cir. 2019). If no “clearly established Federal law” governs the issue at bar, the federal habeas court “must defer to the state court's decision.” Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009).
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 “AEDPA, by setting forth necessary predicates before state-court judgments 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.
2.Admission of Evidence and Due Process
“The admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process.” Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995) (citing Estelle v. McGuire, 502 U.S. 62, 67 (1991)); see also Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999) (explaining that “[e]ven where it appears that evidence was erroneously admitted, a federal court will interfere only if it appears that its admission violated fundamental due process and the right to a fair trial”). A federal court therefore cannot disturb a state court's evidentiary ruling “unless the admission of the evidence was arbitrary or so prejudicial that it rendered the trial fundamentally unfair.” Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); see also Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991) (explaining that a federal habeas court may not review “questions of state evidence law, ” but may consider only “whether the admission of the evidence so fatally infected the proceedings as to render them fundamentally unfair”). “Only if there are no permissible inferences [that] the jury may draw from the evidence can its admission violate due process.” Jammal, 926 F.2d at 920 (noting that the admission of evidence which raises multiple inferences, including some that are impermissible, “may be a problem, but not a constitutional one”).
B. Analysis
Leech alleges that the trial court erred by allowing the prosecutor to enter into evidence his statement concerning his methamphetamine use and sleep deprivation because it was not relevant and was highly prejudicial. (Pet'r's Br. at 9.) Specifically, Leech argues that the statement was relevant to the State's case only if the jury made “an impermissible inference that methamphetamine users are more likely to commit crimes than non-users, ” and that such inference damaged his credibility before the jury, “making his duress defense ‘far less persuasive[.]'” (Id.) Leech argues that the trial court's introduction of his statement fatally infected the trial with unfairness in violation of due process, and that “[t]he writ of habeas corpus must issue under these circumstances.” (Pet'r's Br. at 10.) The Court disagrees.
Leech insists that his statement was relevant only if the jury impermissibly inferred that methamphetamine users are more likely to commit crimes, but Leech's statement was also relevant to his mental state during the robbery, and to his ability to recall the details of the robbery. In addition, Leech had the opportunity to counter the State's characterization of his statement when he testified, and he provided an alternative explanation of the statement for the jury's consideration. (See Tr. at 205, testifying that “after the incident -- for the next couple days after the incident I used meth. So when I made the statement that I had been up for five days using meth, it was I had been up for five days, [in part, due to mania as a result of his bipolar disorder, ] and I had been using meth, not in conjunction with each other”). In light of the statement's relevance, Leech cannot establish that the admission of the statement was arbitrary or rendered his trial so fundamentally unfair as to deprive him of due process.
However, even if the trial court's introduction of Leech's statement rendered his trial fundamentally unfair, as he claims, “[u]nder AEDPA, even clearly erroneous admissions of evidence that render a trial fundamentally unfair may not permit the grant of federal habeas corpus relief if not forbidden by ‘clearly established Federal law,' as laid out by the Supreme Court.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). In Holley, the Ninth Circuit acknowledged the Supreme Court's clear instruction that “a writ should be issued when constitutional errors have rendered the trial fundamentally unfair, ” but found that the Supreme Court “has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ.” Id. In the absence of such “clearly established federal law, ” the Ninth Circuit held that a state court's ruling as to the admission of irrelevant or prejudicial evidence cannot be an unreasonable application under AEDPA. See Id. at 1101 n.2 (finding that the state court's admission of adult pornographic materials confiscated from the petitioner's bedroom rendered the trial fundamentally unfair under Ninth Circuit precedent in a child sex abuse prosecution, but denying habeas relief because the state court's ruling was not an “unreasonable application” without clearly established federal law on the issue). Thus, under Holley, this Court is “without power to issue the writ” because there is no governing Supreme Court precedent establishing the fundamental unfairness of admitting irrelevant or prejudicial evidence. Id.; cf. Zapien v. Davis, 849 F.3d 787, 794 (9th Cir. 2015) (denying the petitioner's due process claim under Holley “[b]ecause there is no Supreme Court case establishing the fundamental unfairness of admitting multiple hearsay testimony”).
Leech does not allege that the Supreme Court has overruled Holley, but he asserts that Holley “is in tension” with clearly established Supreme Court precedent “recogniz[ing] that evidentiary rulings by a trial judge can deprive a defendant of a fair trial.” (Pet'r's Br. at 10, 11; see also Id. at 12 (“To the extent that Ninth Circuit holdings such as that in Holley disagree with [Leech's position], Petitioner here wishes to preserve this argument for potential review by an en banc Ninth Circuit panel and, if necessary, for certiorari review by the Supreme Court.”)).
Although the Supreme Court authorities Leech cites recognize generally that state-court evidentiary rulings can violate a defendant's right to due process, as Respondent points out, the Supreme Court has rejected reliance on overgeneralized formulations of its holdings as “clearly established Federal law.” See Nevada v. Jackson, 569 U.S. 505, 512 (2013) (per curium) (explaining that by framing its precedents with “a high level of generality, a lower federal court could transform even the most imaginative extension of existing case law into ‘clearly established Federal law, '” which would “defeat the substantial deference that AEDPA requires”) (quoting 28 U.S.C. § 2254(d)(1)). The Supreme Court cases on which Leech relies do not squarely address the specific circumstances at issue here. See Payne v. Tennessee, 501 U.S. 808, 825-27 (1991) (holding that the Eighth Amendment does not prohibit a state from “legitimately conclud[ing] that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed”); Dowling v. United States, 493 U.S. 342, 353-54 (1990) (holding that the admission of evidence concerning criminal charges arising from a home invasion for which the petitioner previously was acquitted did not violate due process in a prosecution for bank robbery); Chambers v. Mississippi, 410 U.S. 286, 289 (1973) (holding that the trial court's strict application of certain Mississippi evidence rules prevented the petitioner from presenting evidence that a third party repeatedly admitted to the murder for which he was charged and rendered his trial fundamentally unfair); and Spencer v. Texas, 385 U.S. 554, 564 (1967) (holding that the admission of evidence of prior convictions under a recidivist sentencing statute does not violate due process). Leech thus fails to call into question the Ninth Circuit's holding in Holley, which controls here.
In sum, Leech cannot establish that the introduction of his statement that he had been awake for six days at the time of his arrest as a result of his methamphetamine use was so prejudicial as to render his trial fundamentally unfair, and even if he could, there is no clearly established federal law establishing that the admission of irrelevant or prejudicial evidence is a denial of due process. Accordingly, the state-court decision denying relief is entitled to deference, and the district judge should deny habeas relief as to Ground III.
II. GROUNDS I AND II
Leech does not address the claims alleged in Grounds I and II of his amended petition. In addition, Leech does not challenge Respondent's argument that Ground I is procedurally defaulted, and Leech has not demonstrated cause and prejudice to excuse the procedural default or established that a fundamental miscarriage of justice would occur if the Court declined to address Ground I. Leech also fails to challenge Respondent's argument that the PCR court's denial of Ground II involved neither an unreasonable determination of fact nor an unreasonable application of clearly established federal law.
Accordingly, the district judge should deny habeas relief on Grounds I and II because Ground I is procedurally defaulted, the PCR court's denial of Ground II is entitled to deference, and Leech 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 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”); 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
For the reasons stated, the district judge should DISMISS the Amended Petition for Writ of Habeas Corpus (ECF No. 12) with prejudice, and decline to issue a Certificate of Appealability because Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).
SCHEDULING ORDER
The Court will refer its Findings and Recommendations to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due fourteen (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 Recommendation will go under advisement.
IT IS SO ORDERED.