Opinion
CIVIL 2:18-cv-02068-JR
04-29-2022
RIAN T. SMITH, Petitioner, v. RICHARD MCGRAW, Respondent.
FINDINGS AND RECOMMENDATION
Jolie A. Russo, United States Magistrate Judge.
Petitioner, an adult in custody at the Eastern Oregon Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Petition for Writ of Habeas Corpus (ECF No. 1) should be DENIED.
BACKGROUND
On June 18, 2013, a Multnomah County grand jury indicted petitioner on one count of Sexual Abuse in the First Degree. Respondent Exhibits, ECF No. 16 (“Resp. Exh.”) 102. The 1 - FINDINGS AND RECOMMENDATION charge arose from an incident involving petitioner's roommate. The victim, who had recently moved in, was sleeping on a couch in the apartment living room because she did not yet have a mattress in her room. One evening, the victim fell asleep on the couch and woke to find petitioner touching and rubbing her vaginal area over her clothing. Petitioner first claimed that he saw the victim masturbating on the couch and asked if he could join, to which she replied “Mhmm.” Petitioner said he then touched her knee, at which point she was awake, but he decided not to continue because the victim was pregnant and engaged to be married, so he picked up a blanket off the floor, put it over the victim, and left. In text messages to the victim shortly after the incident, petitioner claimed that he had simply “read that wrong, ” believed that she had agreed to him coming over to the couch, and “did not know” that she was asleep.
Petitioner completed a Petition to Plead No Contest to the single charge of Sexual Abuse in the First Degree and, following a lengthy colloquy the trial court accepted the plea. Resp. Exhs. 103, 104. The Plea Petition acknowledged the rights petitioner was giving up and that he would be sentenced to a mandatory minimum term of 75 months in prison. Resp. Exh. 104. The trial court imposed the mandatory minimum sentence. Resp. Exh. 101.
Petitioner filed a notice of appeal. Appointed counsel could not identify any arguably meritorious issues for appeal and, as such, filed a Balfour Part A brief on petitioner's behalf.Resp. Exh. 105. Petitioner did not submit a Part B. The Oregon Court of Appeals affirmed without opinion. State v. Smith, 269 Or.App. 415 (2015). Petitioner did not petition the Oregon Supreme Court for review.
Under State v. Balfour, 311 Or. 434, 451-52 (1991), counsel is not ethically bound to withdraw when faced with only non-meritorious issues on appeal. Rather, the attorney may file an appellant's brief divided into two parts, with Section A containing a brief statement of the case sufficient to “apprise the [appellate] court of the jurisdictional basis for the appeal, ” and Section B containing any assignments of error the appellant wishes to raise.
Petitioner then sought state post-conviction relief (“PCR”). In his counseled Amended Petition for Post-Conviction Relief, he alleged his plea was not knowing, intelligent, and voluntary, because, inter alia, his trial counsel was ineffective in failing to timely subpoena the victim's cell phone records and in failing to seek a continuance so that a defense expert would be available for trial. Resp. Exh. 109. Petitioner also alleged that he suffered from migraines as a result of an injury he received while in jail awaiting trial and was having difficulty focusing and concentrating, but trial counsel refused to request a continuance or in the alternative, withdraw as his counsel, and that “[a]fter hours of trial counsel's ‘badgering' of petitioner, he felt he had no other option but to accept the plea.” Resp. Exh. 109, p. 6.
The state moved for summary judgment, submitting in support of the motion the indictment, the plea petition, a transcript of the plea hearing, and the judgment. Resp. Exh. 120. The state argued that, based on those documents, there was no genuine issue of material fact that petitioner's plea was knowing, intelligent, and voluntary, that petitioner received effective assistance of counsel, or that anything different would have led petitioner to insist upon going to trial. Resp. Exh. 120, pp. 1-5. The state also argued that petitioner failed to satisfy the statutory requirement under Or. Rev. Stat. §138.580 to attach affidavits, records, or other documentary evidence supporting the allegations of the petition. Resp. Exh. 120, p. 5-6. In response, petitioner submitted a number of exhibits and a Response addressing the alleged involuntariness of petitioner's plea and the alleged ineffective assistance of trial counsel and arguing the assertion that petitioner's failure to comply with Or. Rev. Stat. § 138.580 should be rejected. Resp. Exh. 110. The state replied that none of the exhibits contradicted the record submitted by the state or provided any evidence creating a genuine issue of material fact. Resp. Exh. 122. The PCR trial court granted the state's motion for summary judgment “for the reasons set forth in [the state's] motion and reply.” Resp. Exh. 123, 124.
Petitioner appealed. On appeal, he did not address the issue of his failure to meet his burden of production of evidence establishing a genuine issue of material fact on the claims of involuntary plea or ineffective assistance of counsel, but instead argued only that he had satisfied the statutory pleading requirement of Or. Rev. Stat. § 138.580. In response, the state argued that petitioner failed to offer evidence of prejudice, thereby failing to establish a genuine issue of material fact. Resp. Exh. 126. The Oregon Court of Appeals affirmed without opinion. Smith v. Taylor, 290 Or.App. 719 (2018). Petitioner sought review from the Oregon Supreme Court, again framing the question presented as whether he had satisfied the attachment requirement under Or. Rev. Stat. § 138.580. Resp. Exh. 127. The Oregon Supreme Court denied review. Smith v. Taylor, 363 Or. 390 (2018).
On November 30, 2018, petitioner filed his Petition for Writ of Habeas Corpus with this Court, alleging eleven grounds for relief:
Ground One: Trial counsel was ineffective in failing to timely subpoena the victim's boyfriend's phone records and failing to seek a trial continuance to ensure the defense expect would be available to testify.
Ground Two: Petitioner's plea was not knowing, intelligent, and voluntary because petitioner was suffering from migraine headaches and because trial counsel badgered petitioner into accepting the plea.
Ground Three: The prosecution failed to disclose exculpatory evidence.
Ground Four: Trial counsel was ineffective in failing to object to imposition of the mandatory minimum sentence as cruel and unusual.
Ground Five: Trial counsel was ineffective in failing to investigate the victim's discussion with her boyfriend about an extortion scheme.
Ground Six: Trial counsel was ineffective in failing to move to suppress text
messages allegedly sent from petitioner to the victim.
Ground Seven: Trial counsel was ineffective in failing to subpoena a DNA expert or move to suppress some DNA evidence.
Ground Eight: Trial counsel was ineffective in “coercing” petitioner to enter the plea agreement to conceal counsel's unpreparedness for trial.
Ground Nine: PCR counsel was ineffective in failing to attach petitioner's pro se petition to the amended petition.
Ground Ten: Petitioner's Fifth Amendment right against self-incrimination was violated when he was forced to submit to a polygraph by his probation supervisor.
Ground Eleven: The cumulative effect of the above errors entitles petitioner to relief.
Respondent argues that Ground Nine does not state a cognizable claim for habeas corpus relief, that petitioner procedurally defaulted the remaining claims for relief and, to the extent the claims alleged in Grounds One and Two may be properly exhausted, they were denied in state court decisions entitled to deference in this Court. In his briefing, petitioner addresses only the claims alleged in Grounds One and Two; he does not address the claims alleged in Grounds Three through Eleven. As to the claims alleged in Grounds One and Two, petitioner concedes they are procedurally defaulted, but contends that the procedural default should be excused based on PCR trial counsel's ineffective assistance and on petitioner's actual innocence.
DISCUSSION
I. Procedural Default - Grounds One and Two
A habeas petitioner must exhaust his claims by 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 those claims. Rose v. Lundy, 455 U.S. 509, 519 (1982). “As a general rule, 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 ‘affording the state courts a meaningful opportunity to consider allegations of legal error.'” Casey v. Moore, 386 F.3d 896, 915-916 (9th Cir. 2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 257 (1986)). If a habeas litigant failed to present his claims to the state courts in a procedural context in which the merits of the claims were considered, the claims have not been fairly presented to the state courts and are therefore not eligible for federal habeas corpus review. Castille v. Peoples, 489 U.S. 346, 351 (1989).
When a state prisoner fails to exhaust his federal claims in state court and the state court would now find the claims barred under applicable state rules, the federal claims are procedurally defaulted. Casey, 386 F.3d at 920; Coleman v. Thompson, 501 U.S. 722 (1991). Similarly, if a federal constitutional claim is expressly rejected by a state court on the basis of a state procedural rule that is independent of the federal question and adequate to support the judgment, the claim is procedurally defaulted. Coleman, 501 U.S. at 750; Cook v. Schriro, 538 F.3d 1000, 1025 (2008).
Under the independent and adequate state rule doctrine, federal habeas review is prohibited when a state court declined to address a prisoner's federal claims on the ground that the prisoner failed to meet a state procedural requirement. Wainwright v. Sykes, 433 U.S. 72, 81 (1977). A state procedural rule constitutes an adequate procedural bar if it was “firmly established and regularly followed” at the time the rule was applied by the state court. Ford v. Georgia, 498 U.S. 411, 424 (1991); Poland v. Stewart, 169 F.3d 573, 585 (9th Cir. 1999). A state procedural rule is “independent” for purposes of preclusion if it is not interwoven with federal law and the state court explicitly invoked the rule as the basis for its decision. Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003).
When a petitioner procedurally defaults his federal claims, federal habeas corpus review is barred unless the prisoner can demonstrate cause for the procedural default and actual prejudice. Coleman, 501 U.S. at 750. In order to demonstrate “cause, ” a petitioner must show that some objective factor external to the defense impeded his efforts to raise the claim in state court. Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998). “Prejudice, ” in turn, is actual harm resulting from the alleged constitutional violation. Vickers, 144 F.3d at 617.
Procedural default of available state remedies may also be excused where the failure to consider the claims will result in a miscarriage of justice on a colorable showing of actual innocence. McQuiggin v. Perkins, 569 U.S. 383, 133 S.Ct. 1924, 1928 (2013); House v. Bell, 547 U.S. 518, 536-37 (2006); Schlup v. Delo, 513 U.S. 298, 314-15 (1995). In order to escape procedural default and allow this court to move to the merits of a petitioner's claims, the petitioner must demonstrate that “in light of new evidence, ‘it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'” House, 547 U.S. at 537 (quoting Schlup, 513 U.S. at 327); McQuiggin, 133 S.Ct. at 1930. Ultimately, the question is whether petitioner “presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.” Schlup, 513 U.S. at 316. “Actual innocence means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998).
As noted, petitioner does not dispute that he procedurally defaulted the ineffective assistant of counsel and involuntary plea claims alleged in Grounds One and Two in the state PCR proceedings. Petitioner contends, however, that the procedural default is attributable to the deficient performance of PCR trial counsel such that the default should be excused. In the alternative, petitioner argues his actual innocence should excuse the procedural default.
Traditionally, the ineffective performance of PCR trial counsel could not be used to establish cause and prejudice to excuse a procedural default. See Coleman, 501 U.S. at 753-54 (only the constitutionally ineffective assistance of counsel constitutes cause); Pennsylvania v. Finley, 481 U.S. 551, 556 (1987) (there is no constitutional right to counsel in a PCR proceeding). In Martinez v. Ryan, 566 U.S. 1 (2012) however, the Supreme Court carved out a narrow exception to the general rule, holding that “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” Martinez, 566 U.S. at 9. Here, petitioner argues PCR trial counsel failed to introduce sufficient evidence in response to the state's motion for summary judgment, including drafting and submitting a declaration by petitioner stating that but for trial counsel's errors, he would not have entered the plea. Instead, petitioner argues, PCR counsel merely attached documents to counsel's declaration without otherwise explaining how those documents established a genuine issue of material fact.
The flaw in petitioner's argument is that his procedural default did not occur at the PCR trial level. At the initial-review level, the PCR judge resolved petitioner's claims on the merits. In the PCR trial court, the state moved for summary judgment on the basis that petitioner failed to comply with the requirements of Or. Rev. Stat. § 138.580 and on the basis that there was no genuine issue of material fact that petitioner's plea was knowing, intelligent, and voluntarily made. Resp. Exh. 120. Petitioner's response to the motion specifically addressed both of the state's arguments. Resp. Exh. 121. In reply, the state argued that in the face of the state's evidence that petitioner's plea was knowing, intelligent, and voluntary and that petitioner received effective assistance of counsel, petitioner was obligated to produce evidence to the contrary in order to prevail, and that petitioner failed to do so. Resp. Exh. 122. The PCR trial court granted the state's motion for summary judgment “for the reasons set forth” in the state's motion and reply.
The fact that the state moved for summary judgment on the alternative ground that petitioner did not satisfy the procedural requirements of Or. Rev. Stat. § 138.580 does not obviate the denial of relief on the merits. A state court has adjudicated a claim on the merits, within the meaning of 28 U.S.C. § 2254, “when it has decided the petitioner's right to post conviction relief on the basis of the substance of the constitutional claim advanced, rather than denying the claim on the basis of a procedural or other rule precluding state review of the merits.” Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004). Even if the court gives an alternative, procedural basis for denial, the claim is still adjudicated on the merits, and the mere fact that a claim was resolved on summary judgment is not dispositive. See Salazar v. Barnes, Case No. EDCV 13-2365-SVW (JEM), 2018 WL 7199495, at *4 n.2 (C.D. Cal. Nov. 19, 2018) (AEDPA draws no distinction for alternative rulings, but rather “suggests that where a state court has considered the merits of the claim, and its consideration provides an alternative and sufficient basis for the decision, such consideration warrants deference”) (quoting Rolan v. Coleman, 680 F.3d 311, 320 (3rd Cir. 2012)); Downs v. Hoyt, 232 F.3d 1031, 1035 (9th Cir. 2000) (holding that claims “disposed of by summary judgment” in Oregon PCR proceeding were “adjudicated on the merits” within the meaning of 28 U.S.C. § 2254(d)).
Because the PCR trial court adjudicated the claims alleged in Grounds One and Two on the merits, petitioner cannot establish cause and prejudice under Martinez. To fall within the rule that ineffective assistance of PCR counsel may qualify as “cause, ” the claim must be defaulted at the “initial-review collateral proceeding; the rule “does not concern attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings.” Martinez, 566 U.S. at 16. Here, the procedural default occurred at the appellate level; petitioner did not fairly present his claims of ineffective assistance of counsel and involuntary plea to the Oregon appellate courts; instead, petitioner addressed only the compliance with Or. Rev. Stat. § 138.580. Accordingly, Martinez does not apply to excuse petitioner's procedural default.
Petitioner alternatively argues that his procedural default is excused because he is “actually innocent” of the convicted crime. As noted, to establish a miscarriage of justice excusing procedural default, a petitioner must present “evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.” Schlup, 513 U.S. at 316. The evidence must be new and reliable, such as “exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” Id. at 324.
Here, petitioner contends that records from the victim's boyfriends' cell phone and records from petitioner's cell phone constitute sufficient new reliable evidence which, coupled with the evidence undermining the victim's credibility and evidence providing motivation for her to fabricate that she was asleep at the time, are strong enough to undermine confidence in the outcome of the case. This evidence does not, however, satisfy petitioner's burden to “show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Id. at 347. Even assuming the records may cast some doubt on the victim's credibility, they do not so undermine her credibility as to establish that no reasonable juror would convict petitioner in light of them, particularly given the petitioner's inconsistent explanations of what happened.
Petitioner has not established any basis to excuse his procedural default of the claims alleged in Grounds One and Two. Accordingly, petitioner is not entitled to habeas corpus relief on those claims.
II. Claims Not Addressed - Ground Three Through Eleven
As noted, petitioner does not address the remaining grounds for relief alleged in his Petition for Writ of Habeas Corpus. As such, petitioner has not sustained his burden to demonstrate why he is entitled to relief on these claims. See Lambert, 393 F.3d at 970 n. 16. Nevertheless, the Court has reviewed petitioner's remaining claims and is satisfied that petitioner is not entitled to habeas corpus relief.
CONCLUSION
For these reasons, the Court should DENY the Petition for Writ of Habeas Corpus and enter a judgment of DISMISSAL. A certificate of appealability should be denied as petitioner has not made a substantial showing of the denial of a constitutional right. 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 shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as 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 this recommendation.