Opinion
Civil No. 02-1262-ST.
October 13, 2004
Anthony D. Bornstein, Assistant Federal Public Defender, Portland, Oregon, Attorney for Petitioner.
Hardy Myers, Attorney General, Lester R. Huntsinger, Assistant Attorney General, Department of Justice, Salem, Oregon, Attorneys for Respondent.
FINDINGS AND RECOMMENDATION
Petitioner brings this habeas corpus action pursuant to 28 U.S.C. § 2254. He challenges his underlying state convictions on the basis that they violate his Sixth Amendment right to the effective assistance of counsel. For the reasons set forth below, the Petition for Writ of Habeas Corpus (docket #2) should be denied, and judgment should be entered dismissing this case with prejudice.
BACKGROUND
In February of 1996, a jury found petitioner guilty of First Degree Rape, Second Degree Rape and four counts of Sexual Abuse in the First Degree for crimes committed against a 12-year-old girl. Respondent's Exhibit 101. The court sentenced him to 100 months in prison for the First Degree Rape conviction and concurrent 75-month terms of imprisonment on each of the five remaining convictions. Id.
Petitioner directly appealed his sentence, but the Oregon Court of Appeals affirmed the trial court without opinion and the Oregon Supreme Court denied review. State v. Pasqual-Lucas, 155 Or. App. 488, 967 P.2d 530, rev. denied 327 Or. 554. 971 P.2d 410 (1998).
Petitioner next filed a petition for post-conviction relief ("PCR") in Umatilla County. The PCR trial court denied relief on all of petitioner's claims. Respondent's Exhibits 114 115. The Oregon Court of Appeals affirmed the lower court without opinion, and the Oregon Supreme Court again denied review. Pasqual-Lucas v. Hill, 180 Or. App. 392, 44 P.3d 624, rev. denied 334 Or. 491, 52 P.3d 1056 (2002).
On September 12, 2002, petitioner filed his federal Petition for Writ of Habeas Corpus. Although the pro se Petition raises five grounds for relief, petitioner essentially presents three claims for the court's review. Specifically, he alleges his trial attorney was constitutionally ineffective when counsel failed to: (1) ensure the interpreter at his trial was qualified to translate petitioner's native language of Canjobal (Petition, ¶ 12A, C D); (2) investigate and properly prepare for trial (id, ¶ 12B); and (3) object to the court's imposition of a departure sentence ( id, ¶ 12E). Respondent asks the court to deny relief on these claims because two of them are procedurally defaulted, and the decisions of the Oregon courts denying relief on the remaining claim are entitled to deference.
DISCUSSION
I. Exhaustion and Procedural Default
A petitioner must exhaust his claims by fairly presenting them to the state's highest court, either through a direct appeal or collateral proceedings, before a federal court will consider the merits of habeas corpus claims pursuant to 28 U.S.C. § 2254.Rose v. Lundy, 455 U.S. 509, 519 (1982). A state prisoner has not fairly presented his federal claims to a state court unless he has referenced specific provisions of the federal constitution or statutes, or cited to federal case law. Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000), as modified by 247 F.3d 904 (9th Cir. 2001).
A petitioner must have also presented his claim in a procedural context in which its merits will be considered. Castille v. Peoples, 489 U.S. 346, 351 (1989). 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. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Edwards v. Carpenter, 529 U.S. 446, 451 (2000). If a petitioner has procedurally defaulted a claim in state court, a federal court will not review the claim unless the petitioner shows "cause and prejudice" for the failure to present the constitutional issue to the state court, or makes a colorable showing of actual innocence. Gray v. Netherland, 518 U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992);Murray v. Carrier, 477 U.S. 478, 485 (1986).
During petitioner's collateral appeal, he raised only a single issue of ineffective assistance of counsel. He claimed "[t]he [PCR trial] court erred in dismissing petitioner's allegation that he was denied adequate assistance of counsel because said counsel failed to ensure he had a qualified interpreter for his jury trial." Respondent's Exhibit 116, p. 5. When he petitioned the Oregon Supreme Court for review, he raised the identical issue but presented no other claims for that court's review. Respondent's Exhibit 118, p. 1.
Petitioner presented neither the Oregon Court of Appeals nor the Oregon Supreme Court with claims that: (1) his attorney failed to investigate his case and properly prepare for trial; or (2) that counsel failed to object to the imposition of an upward departure sentence. Accordingly, those claims are not exhausted. As the time for presenting the unexhausted claims to the Oregon Court of Appeals and Oregon Supreme Court passed long ago, they are procedurally defaulted. Petitioner has not attempted to prove cause and prejudice or make a colorable showing of actual innocence sufficient to excuse the default.
II. The Merits
In his sole remaining claim, petitioner alleges his attorney was constitutionally ineffective when he failed to ensure adequate interpretation during the criminal trial.
A. Standard of Review
An application for a writ of habeas corpus shall not be granted unless adjudication of the claim in state court 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) "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's findings of fact are presumed correct and petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
A state court decision is "contrary to . . . clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court 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). Under the "unreasonable application" clause, a federal habeas court may grant relief "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id at 413. The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. Id at 410. The state court's application of clearly established law must be objectively unreasonable. Id at 409.
B. Analysis
The Supreme Court has established a two-part test to determine whether a petitioner has received ineffective assistance of counsel. First, the petitioner must show that his lawyer's performance fell below an objective standard of reasonableness.Strickland v. Washington, 466 U.S. 668, 686-687 (1984). Due to the difficulties in evaluating counsel's performance, courts must indulge a strong presumption that the conduct falls within the "wide range of reasonable professional assistance." Id at 689.
Second, the petitioner must show that his lawyer's performance prejudiced the defense. The appropriate test for prejudice is whether the defendant can show "that there is 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 one which is sufficient to undermine confidence in the outcome of the trial. Id at 696.
The PCR trial court made the following factual findings with respect to petitioner's claim:
. . . Petitioner's English at the time of the underlying trial was very limited. His understanding of Spanish was acceptable and he understood to a satisfactory degree the language being translated. Petitioner's comprehension of the proceedings was limited but not such that he could not assist with his case. Counsel and interpreter made every effort to provide him adequate reiteration of the statements made so as to understand what was going on. Petitioner freely chose to proceed to trial, thereby not waiving speedy trial, and did not request a Canjobal interpreter, or indicate that he did not understand what was going on at the time of trial. Petitioner's decision to proceed with haste to trial precluded counsel from asking for a continuance to obtain a Canjobal interpretor (sic). The statements at court by the interpreter and counsel demonstrated an adequate understanding of Spanish for the trial to proceed.
Respondent's Exhibit 114, p. 4.
In its conclusions of law, the PCR trial court determined that petitioner: (1) was not denied his right to assistance of counsel; (2) had failed to demonstrate prejudice; and (3) presented no evidence that would have clearly affected the result of the prosecution. Id.
During petitioner's criminal trial, an interpreter was provided to translate from English to Spanish. Although petitioner testified that he grew up in Mexico and took an interest in Spanish when he moved to Los Angeles in 1989, he spent the first twelve years of his life in a region of Guatemala where the principal language spoken is Canjobal, an unwritten Mayan language. Respondent's Exhibit 113, pp. 16-17; Trial Transcript, Day 1, p. 3. Petitioner claims that because Canjobal is not a dialect of Spanish, but an entirely different language, the translation he received during his trial was inadequate. He asserts that the allegedly inadequate translation prevented him from consulting with his attorney and participating in his own defense.
Respondent's Exhibit 113, pp. 15-18.
Counsel did ask the trial court to provide a Canjobal interpreter. The court responded by directing counsel to find one in the local area, which counsel was unable to do. Respondent's Exhibit 113, pp. 23, 25-26. To complicate matters, petitioner refused to waive his right to a speedy trial and repeatedly insisted on proceeding to trial within 60 days. Id at 27-28. Although petitioner claims counsel could have moved for a continuance despite his client's wishes to the contrary, "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant." Strickland, 466 U.S. at 692. Given petitioner's clear desire to proceed to trial within 60 days, counsel cannot be faulted for not seeking a continuance.
During the course of the trial, the Spanish interpreter never indicated that he had trouble communicating with petitioner. Respondent's Exhibit 113, p. 29. Counsel had no recollection that petitioner ever indicated that he did not understand the Spanish translation. Id. The English-to-Spanish interpreter told the trial court that while petitioner did not achieve word-for-word comprehension, he understood the translation. Trial Transcript, Day 1, pp. 2-3.
The determination on petitioner's Spanish competency was supported by the testimony of Tracy Fanning, one of petitioner's roommates. Fanning testified that all occupants of the apartment conversed in Spanish, and that she never had any problems conversing with petitioner in Spanish. Trial Transcript, Day 4, pp. 48-49.
In addition, petitioner conversed with a Spanish-speaking police officer, Germaine Martinez, on the night the assault occurred. Id at 214-19. Petitioner indicated to Officer Martinez that he was fluent in Spanish, and understood what she was telling him. Id at 219. Petitioner then explained that he had consumed 24 beers and wanted to have sex with the victim.Id at 227, 231. He claimed to have resorted to the use of physical force because the victim refused to have sex with him.Id at 234-35.
During the interview, petitioner brought up the word "cogi," a word which was unfamiliar to Officer Martinez. Id at 237. Officer Martinez inquired as to the specific definition of the word, and petitioner told her the definition of "cogi" was what he had done to the victim, and later clarified that the meaning of the word is "sex." Id at 238-39. From this record, it is clear that petitioner's Spanish comprehension was good, and whatever minimal language barrier existed between Martinez and petitioner was quickly overcome, leaving an accurate translation of petitioner's inculpatory statements.
Moreover, after the verdicts were taken, petitioner delivered an allocution during which he stated that he was drunk at the time of the assault and answered the police officers only out of fear for his life. Trial Transcript, Day 6, p. 476. He claimed the victim had lied because he was incapable of raping her by force due to an unspecified operation he underwent in 1994. Id at 477. During petitioner's entire allocution, only on a single occasion did the interpreter have difficulty with the translation. This occurred when petitioner referred to an unidentified intravenous medication. Id at 475-78.
The evidence before the court supports the findings of the PCR trial court which petitioner has not rebutted with clear and convincing evidence. Given petitioner's satisfactory comprehension of Spanish and his unwillingness to waive his right to a speedy trial, counsel's performance did not fall below an objective standard of reasonableness when he was unable to secure a Canjobal interpreter.
Even assuming counsel's performance was deficient in this regard, petitioner must still prove he was prejudiced by the absence of a Canjobal interpreter. Although petitioner claims that prejudice must be presumed, the Supreme Court has held that prejudice is presumed for an ineffective assistance of counsel claim only where: (1) a defendant has been deprived of a lawyer entirely; (2) the deprivation occurred during a critical stage of the proceeding; or (3) the attorney actively represented conflicting interests. Mickens v. Taylor, 535 U.S. 162, 166 (2002). As petitioner's case presents none of these scenarios, he must demonstrate that the reliability of the verdict was prejudiced.
Petitioner argues that the trial's emphasis on the allegedly improper meaning of the words he used when describing his conduct to the police and others resulted in prejudice. As previously discussed, petitioner's Spanish comprehension was good and Officer Martinez made a concerted effort to accurately translate petitioner's inculpatory statements.
Irrespective of whatever meanings are attributed to any of petitioner's statements, the fact remains that the victim testified that petitioner forcibly raped her. Trial Transcript, Day 2, pp. 103-81. Her testimony was buttressed by the physical evidence adduced at trial which showed that the victim's cervix was bruised, and the sperm collected from her undergarments was consistent with petitioner's DNA. Trial Transcript, Day 4, p. 156; Day 5, pp. 311-12. Given all of the evidence, the result of the criminal trial would not have been different with a Canjobal interpreter.
Because counsel's performance did not fall below an objective standard of reasonableness, and as petitioner cannot show he suffered prejudice as a result of any alleged error, the decisions of Oregon's PCR courts are neither contrary to, nor unreasonable applications of, clearly established federal law.
III. Evidentiary Hearing
Finally, petitioner asks the court to conduct an evidentiary hearing. He claims the PCR trial court failed to heed evidence that he did not comprehend the criminal trial proceedings in a meaningful way. Petitioner asks this court to conduct an evidentiary hearing in the event it harbors any questions concerning the historical facts on the issue presented.
As an initial matter, the court does not harbor any questions regarding the facts underlying this issue. Even if it did, petitioner had the opportunity to develop all of his evidence during his PCR trial. Thus, any shortcoming in the previous factual development is attributable to his lack of diligence. Consequently, he would only be entitled to present new evidence in this proceeding if:
(A) the claim relies on —
(I) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254(e)(2); see also Williams v. Taylor, 529 U.S. 420, 433-38 (2000).
Petitioner's claim does not rely on a new constitutional law, nor has he presented any factual predicate which he claims could not have been previously discovered through the exercise of due diligence. Moreover, given the physical and testimonial evidence adduced against petitioner, he could not show by clear and convincing evidence that but for a constitutional error, no reasonable jury would have found him guilty. For these reasons, the request for an evidentiary hearing should be denied.
RECOMMENDATION
For the reasons identified above, the Petition for Writ of Habeas Corpus (#2) should be DENIED, and judgment should be entered DISMISSING this case with prejudice.
SCHEDULING ORDER
Objections to these Findings and Recommendation(s), if any, are due November 1, 2004. If no objections are filed, then the Findings and Recommendation(s) will be referred to a district court judge and go under advisement on that date.
If objections are filed, then the response is due within 10 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(s) will be referred to a district court judge and go under advisement.