Opinion
2:18-cv-00126-AC
07-26-2021
ANTWAUN LESHA WN SPENCER, Petitioner, v. RICK COURSEY, Superintendent, Eastern Oregon Correctional Institution Respondent.
FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA UNITED STATES MAGISTRATE JUDGE
Introduction
Petitioner, an inmate in the custody of the Oregon Department of Corrections at the Mill Creek Correctional Facility, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Third Amended Petition for Writ of Habeas Corpus (ECF No. 33) should be DENIED.
Background
I. Factual Background
In October 2012, a Multnomah County grand jury indicted Petitioner and co-defendant Milton Terrell Burton Jr. (“Burton”) on charges arising out of an October 2012 armed robbery of a Portland bar. Resp. Exh. 102. The grand jury charged Petitioner with numerous offenses including robbery, burglary, reckless driving, reckless endangerment, attempting to elude, and felon in possession of a firearm. Id. Petitioner's case was tried to a jury. Resp. Exh. 104. Attorney Lynn Dickison represented Petitioner. Id. Burton pleaded guilty to the charges against him but had not yet been sentenced at the time of Petitioner's trial. Resp. Exh. 105, p. 89. Ultimately, a jury convicted Petitioner on three counts of first-degree robbery with a fireaim, three counts of second-degree robbery with a firearm, eluding police, reckless driving, and being a felon in possession of a firearm. Resp. Exh. 106, p. 128-29. The trial court sentenced Petitioner to a total term of 120 months of imprisonment. Resp. Exh. 107, p. 15.
The armed robbery occurred at Gator's Bar and Grill in Portland on October 13, 2012. Resp. Exh. 104. p. 93. Sally Kirk, Cody Lillie, and Jennifer Lopez were present at the bar during the robbery, and all three testified at Petitioner's trial. Id', Resp. Exh. 103, p. 5. They testified that around 2:00 a.m., two men walked into the bar, each holding a gun. Resp. Exh. 104, pp. 94, 129; Resp. Exh. 105, p. 9. The men were both dressed in black, both wearing black hooded sweatshirts, and both had a covering over their faces. Resp. Exh. 104, pp. 97, 129; Resp. Exh. 105, p. 11. The men announced they were committing a robbery and ordered Kirk, Lillie, and Lopez to get down on the ground. Id. The two men proceeded to rob the bar and all the victims. Resp. Exh. 104. At some point, one of the men told Kirk to open the safe, and after Kirk repeatedly said she could not open the safe, the other man suggested the man with Kirk shoot her in the leg because then “[s]he'get you in the safe.” Resp. Exh. 104, p. 103. The man with Kirk subsequently “rackfed]” his gun. Resp. Exh. 105, p. 19. Then the men ordered Kirk, Lillie, and Lopez into the bar's “walk-in cooler.” Id. After waiting approximately five minutes without hearing a sound, Kirk, Lillie, and Lopez left the cooler to find the two men had left. Id. at 20. Kirk and Lopez testified that one of the men played a more active role in the robbery, but both men participated and neither seemed to be more in charge of the other. Resp. Exh. 104, pp. 103, 138.
During the robbery, Kirk hit a silent alarm to which Portland police officers Zachary Zelinka and Brandon Cox responded. Resp. Exh. 104, p. 60. Once on the scene, Officers Zelinka and Cox looked through the window of the bar and saw a man with a ski mask and gloves on who appeared to be talking to and gesticulating at someone in the back of the bar. Id. at 62. Officer Zelinka then saw another man emerge from the back of the bar who was also wearing a ski mask and gloves. Id. at 63. He did not, however, see any weapons. Id. Officer Zelinka testified that the two men were talking to each other and making hand gestures. Id. at 62. Officer Zelinka then saw the two men leave the bar through the back door and jog away. Id. at 63. Officer Zelinka lost sight of the men at this time for less than five seconds. Id. at 83. Officer Zelinka began chasing the men, identified himself, and ordered them to stop. Id. at 66. The two men then sped up, got into an SUV, and drove away. Id. at 67, 69. Officers Cox and Zelinka chased after the SUV in a patrol car with activated car sirens and flashing lights until the SUV eventually crashed into a parked car. Id. at 70-71.
Officers Zelinka and Cox approached the SUV with weapons drawn when the driver of the SUV “bailed from the vehicle.” Id. at 75. Officer Zelinka ran after the driver, eventually catching and arresting him. Id. at 76. The driver was identified as the Petitioner. Id. at 78. Officers recovered $84 on Petitioner's person, including one $50 bill. Resp. Exh. 108, p. 13. Meanwhile, the passenger of the SUV, later identified as Burton, had run from the vehicle as well. Resp. Exh. 104, p. 77. Eventually, a Portland police officer and his trained dog tracked Burton to a mud room on the back of a nearby home and arrested him. Resp. Exh. 105, p. 47. Portland police found a glove and a wad of cash in a box in the mud room. Resp. Exh. 104, p. 41. Officers recovered a black do-rag, a knit cap, a green “nylon-type head dressing, ” and two black gloves from the SUV. Id. at 44-47. Additionally, a black hooded sweatshirt and a black cell phone were found in separate yards along the path driven by the SUV. Id.
Petitioner took the stand at his trial and testified to a version of events that conflicted with the testimony of the three victims and two officers. Resp. Exh. 106. Petitioner testified that on the night of the robbery he picked up Burton and sold him some marijuana, for which Burton paid him with a $50 bill. Id. at 24. After Petitioner and Burton smoked marijuana and snorted OxyContin, Burton suggested they go to Gator's Bar and Grill to kill some time and have a few drinks. Id. at 25-26. Petitioner obliged and parked his car about a block away from Gator's. Id. at 27. When they entered the bar, Burton ordered everyone to the ground, pulled out a gun, and covered his face with a green du-rag. Id. at 28-30, 38. Petitioner testified that he was shocked by Burton's actions and was not aware that Burton was planning to rob Gator's. Id. at 29-31. Petitioner said he stood by in shock as Burton robbed the bar and the three people - Kirk, Lillie, and Lopez - in it. Id. After Kirk told Burton she could not open the safe as he requested, Burton cocked his gun. Id. At that point, Petitioner ran out of the bar. Id.
After Petitioner ran out of the bar, Burton also left the bar and caught up to Petitioner. Id. at 31-33. Petitioner told Burton he would not drive him anymore, but Burton pointed a gun at Petitioner and demanded he drive him. Id. Petitioner, unaware the police were behind him, drove in the SUV with Burton. Id., at 33-34. Petitioner again tried to get rid of Burton, but Burton pointed the gun at Petitioner and told him to keep driving. Id. Petitioner hit the gun out of Burton's hands, the gun fell to the floor, and when Burton picked it up, the gun went off and hit Burton in the leg. Id. The bullet went somewhere in the car and at that time, the steering wheel jammed, and the SUV crashed. Id. Petitioner testified that he was unaware the police were chasing him until just before the crash. Id. Petitioner got out of the SUV, saw the police, and ran because he wanted to distance himself from Burton. Id. at 35.
Petitioner agreed that a robbery took place, but he denied planning, participating, and using a weapon in the commission of the robbery. Id. at 35-36. Petitioner testified that he did not plan or discuss robbing the bar prior to entering Gator's. Id. He denied possessing a gun, wearing a mask or gloves, and speaking to the three victims in the bar. Id. He also testified that he did not help Burton take any money, and he did not possess any stolen money. Id. Petitioner testified that once he heard Burton “cock back” his gun, he removed himself from the situation. Id. at 40.
The jury rejected Petitioner's defense and convicted him on three counts of first-degree robbery with a firearm, three counts of second-degree robbery with a firearm, eluding police, reckless driving, and being a felon in possession of a firearm. Resp. Exh. 106, p. 128-29.
A. Burton Invokes the Privilege Against Self-Incrimination.
At Petitioner's trial, outside the presence of the jury, Dickison attempted to call Burton as a witness for the defense. Resp. Exh. 105, p. 83. Burton, through his attorney Hanrahan, informed the trial judge he intended to assert his Fifth Amendment right to remain silent. Id. at 84. Dickison argued that Burton could not “use the Fifth Amendment as a shield” because he had pleaded guilty to the charges:
I don't have any authority, Judge. I did look for some. Couldn't find anything on
point. I would point out, Judge, though, in thinking about this, even our Plea Petition that we use in this county that is authorized and authored by a collection of judges and attorneys, states clearly in Paragraph 5, 1 believe, that once you enter a plea, you're giving up certain rights; one of those rights is a right to remain silent about the incident. And I believe he's been well forewarned, and that is the appropriate law that applies.Id. at 83-84. In response, Burton's attorney cited to Mitchell v. United States, 526 U.S. 314 (1999), which Hanrahan explained, “rejects the position that either petitioner's guilty plea or her statements at the plea... colloquy function as a waiver of her right to remain silent at sentencing.” Id. at 84. Dickison countered that Mitchell was not applicable because it
protects the defendant at his own sentencing. If, in fact, he were to be questioned by a judge about collateral matters, then he would not have lost his ability to be quiet about that.
However, in this instance, we're going to be addressing him on the specific incident in question. He has already made a statement to the police officers, which is adopted in his Plea Petition.Id. at 86. Finally, Hanrahan pointed out that Dickison's argument would essentially “swallow the right itself, ” and the sole issue regarding the right to remain silent under the Fifth Amendment is, regardless of the forum, that one has an absolute right to refrain from making any statement “that might incriminate yourself . . . [t]here's no conditions on the Fifth Amendment.” Id. at 86-87.
The state took no position on the issue. Id. at 85.
Still outside the presence of the jury, Dickison called Burton to the stand and questioned him about the robbery. Id. at 88. In response to Dickison's questions, Burton “plead the Fifth, ” and stated that he intended to “plead the Fifth for every question” asked. Id. at 89. At that point, Dickison requested the court to compel Burton's testimony. Id. The court asked Hanrahan to make a final argument, to which Hanrahan responded by again referencing Mitchell:
I don't see anything in that opinion that says a defendant can be forced to testify on issues, when they still have a Fifth Amendment right to remain silent. My client
hasn't been sentenced.
Mitchell stands for the proposition that a defendant has a right to remain silent until he's sentenced. Anything he says here could potentially incriminate him. He has plead guilty; however, anything he says here could lead the Sentencing Court to impose a greater sentence than it might otherwise impose.
As a result of that, he has an absolute right to . .. invoke the right to remain silent. I don't think it can be done under the Fifth Amendment, that you pick and choose what issues he can testify about. Mitchell talks about that, to some extent.
A colloquy is not a defendant simply picking and choosing what he wants to talk about. The issue doesn't arise until he is questioned. It's arisen here, and he's simply invoking on any questions that is - that would be asked of him, and that's the appropriate way to exercise your Fifth Amendment right.Id. at 89-90. After considering the attorney's arguments, the trial court declined to compel Burton's testimony, and explained his decision:
I'm guided by a couple of cases, in addition to Mitchell vs. United States, that Mr. Hanrahan has cited me to, I have dug up Kastigar vs. United States . . . [i]t talks about the importance of the power to compel testimony. [The] Supreme Court indicates that the power to compel testimony is not absolute. There are a number of exemptions, most important of which is the Fifth Amendment privilege against compulsory self-incrimination.
I should also mention, under Oregon law State vs. Mitchell, 6 Or.App. 378, State vs. Jones, 89 Or.App. 133, also hold that where a - an alleged accomplice, or codefendant in a crime - Mitchell itself was a robbery with two co-defendants, where one co-defendant elects to invoke his Fifth Amendment right against selfincrimination, that both of those cases have concluded that the Defense cannot compel his testimony, when faced with that invocation.
And under - so, under the authorities that I see, I don't think that the Defense in this case can compel Mr. Burton to testify. I understand the Defense's argument that Mr. Burton has waived his right to - to - his Fifth Amendment right to - to -to invoke his right against self-incrimination, but Mitchell vs. United States holds that entry of a guilty plea, nor statements at the plea colloquy amounted to a waiver of their - of a defendant's right to remain silent at sentencing
I think it also - neither of those would amount to a waiver of Mr. Burton's right to invoke the Fifth Amendment privilege against self-incrimination, as a witness in this trial.
So, I - under the circumstances of this case, I conclude that Mr. Burton - and I accept Mr. Hanrahan's representation to the Court, that he's going to be instructing his client to invoke the Fifth Amendment right and not answer any questions posed by Ms. Dickison.
And so, I conclude that Mr. Burton has no relevant testimony to offer in this trial.Id. at 93-95. Thus, the trial court did not compel Burton's testimony. Id.
After the colloquy took place, the trial judge allowed Dickison to call Burton to the stand in the presence of the jury to preserve the record. Resp. Exh. 105, pp. 95-97.
B. Burton's Sentencing is Rescheduled
While Burton was on the stand, outside the presence of the jury, Dickison asked “Mr. Burton you were originally scheduled to be sentenced yesterday; is that correct?” Resp. Ex. 105, p. 90. Burton answered “Yeah.” Id. Dickison then asked, “and you're now scheduled for Friday?” to which Burton answered “I guess. Yeah, I guess so.” Id. Burton's attorney Hanrahan objected on the grounds of attorney/client privilege and the right to remain silent. Id. The court sustained Hanrahan's objection. Id. at 90-91. Dickison replied, “[t]he timing of the sentencing is, for the most part in these instances, dependent upon the District Attorney's Office attempting to silence any co-defendants who may have beneficial information for a co-defendant. And that has proved effective in this instance.” Id. at 91.
The trial judge then asked prosecutor Gibbs the following: “[h]as the District Attorney's Office purposely .. . requested that the sentencing for Mr. Burton be scheduled at a time after this trial, so that his testimony would be unavailable to the Defense at this trial?” Id. Gibbs answered, “as to the second part of your question, absolutely not. I would actually like Mr. Burton to testify at this trial.” Id. at 92. Gibbs claimed he was not at Burton's sentencing so he could not say “whether it came from the Court or from my office.” Id. at 93. The judge asked Burton's attorney if he could shed light on why Burton's sentencing was rescheduled; Hanrahan replied, “I was, appeared by phone, and requested it be reset.” Id. The court said “So, that would be on the record, and so that was at your request.” Id. Hanrahan answered “Yeah.” Id.
II. Procedural Background
Petitioner directly appealed his convictions to the Oregon Court of Appeals. The Oregon Court of Appeals reversed his conviction for felon in possession of a firearm and remanded for resentencing. State v. Spencer, 272 Or.App. 164, 353 P.3d 1253 (2015). The Court of Appeals noted that Petitioner also raised, in a pro se supplemental brief, “other assignments of error, which we reject without further written discussion.” Id. at 165 n.2. Petitioner filed a petition for review, which the Oregon Supreme Court denied. State v. Spencer, 357 Or. 743, 361 P.3d 608 (2015). On remand, the trial court imposed the same 120-month sentence. On appeal from the re-sentencing, the Oregon Court affirmed without opinion. State v. Spencer, 287 Or.App. 465, 401 P.3d 1286 (2017). Petitioner did not file a petition for review to the Oregon Supreme Court. Petitioner also did not seek state post-conviction relief.
On January 22, 2018, Petitioner filed a pro se petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. This court appointed counsel to represent Petitioner who filed a Third Amended Petition, alleging six grounds for relief:
Counsel previously filed an Amended Petition alleging the first five grounds for relief and filed a Brief in support addressing only Grounds One and Two. Counsel subsequently filed a Brief addressing Ground Six.
Ground One: Petitioner was denied his rights under the Fifth, Sixth and Fourteenth Amendments to the Unites States Constitution, including his rights to due process and to present a complete defense. Petitioner's co-defendant pled guilty prior to Petitioner's trial, but had not yet been sentenced at the time of trial. The Multnomah County plea petition clearly states that when a person pleads guilty, he gives up all rights to remain silent if called as a witness. Petitioner called his codefendant to testify at trial, but the trial court allowed the co-defendant to assert his
Fifth Amendment privilege against self-incrimination and decline to answer questions despite that he had pled guilty thereby giving up that right. As a result, Petitioner was unable to present critical exculpatory evidence to the jury.
Ground Two: Petitioner was denied his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution when the prosecution denied him access to exculpatory evidence. Petitioner was not permitted to call his codefendant as a witness on his behalf in violation of his rights to compulsory and due process. A criminal defendant has compulsory and due process rights to subpoena witnesses in his favor. In this case, Petitioner called his co-defendant to testify at his trial, including to provide testimony about Petitioner's intent and involvement in the alleged robbery. However, the co-defendant had already plead guilty, and, as a result, no longer possessed a Fifth Amendment right against selfincrimination. The co-defendant had not yet been sentenced. The State and the co-defendant's attorney took the position that he retained his Fifth Amendment right against self-incrimination until he was sentenced. The State and the codefendant's attorney postponed the co-defendant's sentencing so that he would be unavailable as a defense witness at Petitioner's trial. This had a vital effect on the jury's decision.
Ground Three: Petitioner was denied his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution at re-sentencing. The trial court misunderstood the scope of its sentencing authority when Petitioner's case was remanded by the Oregon Court of Appeals for re-sentencing. Or. Rev. Stat. 138.222(5) required the sentencing court to re-sentence Petitioner on all remaining convictions.
Ground Four: Petitioner was denied the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution when trial counsel failed to make appropriate motions, to take the steps necessary to secure the testimony of his co-defendant, a critical witness for his defense, at his criminal trial, and to make meritorious arguments for a judgment of acquittal, at sentencing, and at re-sentencing that could have resulted in a better trial or sentencing outcome. But for counsel's failures, there is a reasonable probability that the outcome of the proceedings would have been different.
Ground Five: Petitioner was denied the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution when appellate counsel failed to argue on appeal that the court's failure to acquit Petitioner of being a felon in possession of a firearm entitled Petitioner to a new trial on all charges because the State's erroneous evidence that he was a felon irreparably prejudiced the jury against Petitioner.
Ground Six: Petitioner was convicted by less than a unanimous jury. The jury verdict on each count other than the charge of reckless driving was ten to two,
reflecting lingering doubt about Petitioner's guilt. Conviction by a non-unanimous jury violated Petitioner's rights under the Fifth, Sixth Amendment and the Fourteenth Amendments to the United States Constitution, including his rights to due process, to an unbiased, fair, impartial, and representative jury, and to have the State prove the charges beyond a reasonable doubt. These deprivations are of fundamental constitutional rights that require a grant of relief without separate proof of prejudice. In the event prejudice must be established, this error had a substantial and injurious impact on the adjudication of Petitioner's guilt and sentencing, requiring relief under Brecht v. Abrahamson, 507 U.S. 619, 638 n.9 (1993). Petitioner reserves the right to present additional allegations to establish his entitlement to relief on this claim, either in briefing or at an evidentiary hearing, after full investigation and discovery (including through the use of necessary subpoena powers).Pet. Third Am. Pet. For Writ of Habeas Corpus (ECF No. 33, pp. 4-7). Respondent argues Petitioner has not satisfied his burden as to Grounds Three through Five. Respondent acknowledges that Petitioner fully exhausted Grounds One and Two in state court. However, Respondent argues Petitioner is not entitled to habeas corpus relief because the state court's decision on those claims was not contrary to or an unreasonable application of clearly established federal law. Finally, Respondent argues Petitioner is not entitled to habeas relief on the claim alleged in Ground six because it is untimely, procedurally defaulted, and lacks merit.
Standard
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a petition for writ of habeas corpus shall not be granted with respect to any claim that was adjudicated on the merits in state court, unless 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) 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); Harrington v. Richter, 562 U.S. 86, 100 (2011). The AEDPA 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) (internal quotations and citations omitted). Petitioner bears the burden of proof. Id.
No determination of fact is at issue here; thus, this case is evaluated under the standard in 28 U.S.C. § 2254(d)(1).
“Under § 2254(d)(1), a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” White v. Wheeler, 136 S.Ct. 456, 460 (2015) (citing White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (internal quotations omitted)). In Wheeler, the Supreme Court reiterated the high standard of deference required by § 2254(d): “[t]his court, time and again, has instructed that the 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.'” Wheeler, 134 S.Ct. at 460 (quoting Burt v. Titlow, 134 S.Ct. 10, 16 (2013)).
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 facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [that precedent].” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Habeas relief may only be granted “in cases where there is no possibility that fairminded jurists could disagree that the state court's decision conflicts with the [Supreme] Court's precedents.” Harrington, 562 U.S. at 102. The “unreasonable application” clause requires “the state court's application of clearly established federal law [be] objectively unreasonable” rather than merely “erroneous” or “incorrect.” Williams, 529 U.S. at 365. Showing objective unreasonableness is a very demanding standard where even “clear error” is insufficient. Comstock v. Humphries, 786 F.3d701, 707 (2015).
“[D]etermining 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, 562 U.S. at 98. In other words, a state court does not need to provide its rationale before its decision can be deemed an adjudication on the merits. Id. In reviewing a case under § 2254, this court reviews the last-reasoned state-court decision. See Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003). The federal habeas court should “look through” to the last reasoned decision issued in a lower state court and presume the unexplained decision adopted the same reasoning. Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). “It remains the petitioner's burden to demonstrate that ‘there was no reasonable basis for the state court to deny relief.'” Walker v. Martel, 709 F.3d 925, 939 (2013) (quoting Harrington, 562 U.S. at 98). If the state court adjudicates the merits of a claim without articulating its reasoning, district courts engage in an “independent review of the record” to ascertain whether the state court was objectively unreasonable in applying controlling federal law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000); see also Haney v. Adams, 641 F.3d 1168, 1171 (9th Cir. 2011) (independent review “is not de novo review of the constitutional issue, but only a means to determine whether the state court decision is objectively unreasonable” (internal quotations omitted)). As such, “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Harrington, 562 U.S. at 102.
Discussion
In Ground One, Petitioner alleges the trial court erred by allowing Burton to assert the Fifth Amendment privilege against compelled self-incrimination. In Ground Two, Petitioner claims the prosecutor denied him access to exculpatory evidence by requesting Burton's sentencing be rescheduled, making him unavailable as a witness on Petitioner's behalf. For the following reasons, the state court's decision on these claims was not contrary to, or an unreasonable application of, clearly established federal law. Accordingly, Petitioner is not entitled to habeas corpus relief on the claims alleged in Grounds One or Two.
I. Ground One: Burton's Privilege Against Self-Incrimination
A. Background
Petitioner claims his constitutional rights to “due process and to present a complete defense” were violated when the trial court accepted Burton's invocation of the Fifth Amendment privilege against self-incrimination. Pet. Third. Am. Pet. For Writ of Habeas Corpus (ECF No. 33, p. 4). Petitioner argues Burton waived the privilege when he pleaded guilty to the charges against him. Respondent counters that the state court's decision on this claim was not contrary to, or an unreasonable application of, clearly established federal law, and as such, is entitled to deference in this habeas action.
B. Discussion
As an initial observation, Petitioner's claim challenges a state-court evidentiary ruling and “[i]ncorrect state court evidentiary rulings cannot serve as a basis for habeas relief unless federal constitutional rights are affected.” Lincoln v. Sunn, 807 F.2d 805, 816 (9th Cir. 1987) (citing Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir. 1986)). The trial court's decision to exclude certain evidence at trial “must be so prejudicial as to jeopardize the defendant's due process rights.” Tinsley v. Borg, 895 F.2d 520, 530 (9th Cir. 1990). Accordingly, the Supreme Court has rarely “held that the right to present a complete defense was violated by the exclusion of defense evidence under a state rule of evidence.” Nevada v. Jackson, 569 U.S. 505, 509 (2013).
Generally, a defendant has a constitutional right to present a complete defense, which includes calling witnesses on one's own behalf. Chambers v. Mississippi, 410 U.S. 284, 294 (1973); Moses v. Payne, 555 F.3d 742, 757 (9th Cir. 2009) (defendant's right to present a defense stems from the 14th Amendment right to due process and Sixth Amendment right to compel witnesses in his favor). However, this right is not without limitations; it does not override a defense witness's legitimate invocation of his Fifth Amendment right. See Arredondo v. Ortiz, 365 F.3d 778, 783 (9th Cir. 2004); cf. Kastigar v. United States, 406 U.S. 441, 444 (1972) (holding the Fifth Amendment privilege against compulsory self-incrimination is the most important restriction on a court's power to compel testimony).
In Mitchell v. United States, 526 U.S. 314, 324 (1999), the Supreme Court held that a defendant's privilege against compelled self-incrimination extends through sentencing, and a guilty plea does not waive the privilege. Generally, “where there can be no further incrimination, there is no basis” to assert the privilege against self-incrimination, but the Court rejected the proposition that “incrimination is complete once guilt has been adjudicated.” Id. at 325-26. A witness who pleaded guilty but remains unsentenced retains the privilege against selfincrimination because “a defendant may have legitimate fear of adverse consequences from further testimony.” Id. at 326. Only “if no adverse consequences can be visited upon the convicted person by reason of further testimony, then there is no further incrimination to be feared.” Id. Additionally, the privilege is not limited to the defendant's own sentencing. The Court noted in Mitchell that the Government acknowledged a defendant who pleaded guilty and is awaiting sentencing retains the privilege against self-incrimination “if called as a witness in the trial of a codefendant, in part because of the danger of responding to questions that might have an adverse impact on his sentence or on his prosecution for other crimes.” Id. at 327 (internal quotations omitted).
Additionally, neither a guilty plea nor statements at a plea colloquy function as a waiver of the privilege against self-incrimination. Id. at 325. In other words, a defendant does not waive his privilege against self-incrimination at the sentencing phase by pleading guilty. Id. at 321. Similar to the Multnomah County plea petition referenced by Petitioner's counsel, Federal Rule of Criminal Procedure 11, regarding pleas, requires the defendant understand he is giving up “the right at trial ... to be protected from compelled self-incrimination.” See Rule 11(b)(1)(E). However, the Mitchell Court reasoned that:
The purpose of Rule 11 is to inform the defendant of what she loses by forgoing the trial, not to elicit a waiver of the privilege for proceedings still to follow. A waiver of a right to trial with its attendant privileges is not a waiver of the privileges which exist beyond the confines of the trial. . . . Treating a guilty plea as a waiver of the privilege at sentencing would be a grave encroachment on the rights of defendants.526 U.S. at 324. Also, “[i]t is settled that a waiver of the Fifth Amendment privilege is limited to the particular proceeding in which the waiver occurs.” United States v. Licavoli, 604 F.2d 613, 623 (9th Cir. 1979) (holding that “voluntary testimony before a grand jury does not waive the privilege against self-incrimination at trial”).
Other authority further supports that the privilege against self-incrimination extends through sentencing. See State v. Nelson, 246 Or. 321, 323, 424 P.2d 223, 224 (1967) (the privilege against self-incrimination is waived where a witness has entered a guilty plea and been sentenced); United States v. Paris, 827 F.2d 395, 399 (9th Cir. 1987) (a convicted but unsentenced defendant retains his Fifth Amendment rights); United States v. Butler, 659 F. App'x. 390, 391 (9th Cir. 2016) (a waiver of a right to trial with its attendant privileges is not a waiver of the privileges which exist beyond the confines of the trial, including the right to remain silent at sentencing, even where the government has agreed to a particular sentencing recommendation); State v. Mitchell, 6 Or.App. 378, 487 P.2d 1156 (1971) (the defense cannot compel co-defendant's testimony when faced with invocation of right against self-incrimination); State v. Abbott, 275 Or. 611, 552 P.2d 238 (1976) (witness had no privilege to remain silent after being convicted and sentenced on a plea of guilty); United States v. Romero, 249 F.2d 371, 375 (2d Cir. 1957) (witness who had previously been convicted and sentenced for the transactions in question was no longer able to claim privilege against self-incrimination); State v. Barone, 329 Or. 210, 232, 986 P.2d 5, 21 (1999) (witness did not possess privilege against self-incrimination for questions about a crime he was already convicted and sentenced for).
C. Analysis
At the time of Petitioner's trial, Burton had pleaded guilty to the charges against him but remained unsentenced. Citing Mitchell, the trial court did not compel Burton to testify. That decision was not objectively unreasonable: The Supreme Court in Mitchell held that a convicted but unsentenced defendant may still assert the privilege against self-incrimination. Burton's guilty plea in his case did not function as a waiver of his right to assert the privilege against selfincrimination at Petitioner's trial because the proceedings were different, and Burton remained at risk for further incrimination because his testimony could have adversely affected his sentence. Thus, Burton retained his Fifth Amendment privilege, and the trial court did not violate Petitioner's due process rights in so finding.
In any event, even if Burton had waived the privilege, the state court's decision was not “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” See Wheeler, 136 S.Ct. at 460.
Because the state court's decision was neither contrary to, nor an unreasonable application of, clearly established federal law, habeas coipus relief should be denied on this claim.
II. Ground Two: Brady Claim
A. Background
Petitioner alleges his “compulsory and due process” rights were violated when the prosecution denied him access to “exculpatory evidence.” Pet. Third Am. Pet. for Writ of Habeas Corpus (ECF No. 33, p. 5). Petitioner claims, “[t]he State and co-defendant's attorney postponed [Burton's] sentencing so that he would be unavailable as a defense witness at Petitioner's trial.” Id. Respondent contends that the state court's denial of relief on this claim was not objectively unreasonable because: (1) Burton's attorney - not the prosecutor - confirmed at trial that he requested postponement of Burton's sentencing; (2) Petitioner did not show Burton's testimony would have been favorable to him; and (3) Petitioner has not demonstrated the result of his trial would have been different even if Burton's testimony was favorable to the Petitioner. Resp. Response to Third Am. Pet. for Writ of Habeas Corpus (ECF No. 40, pp. 5-6).
The state court adjudicated this claim on the merits without articulating its reasoning; thus, the court reviews the claim independently to determine whether the state court's decision to deny relief on Petitioner's Brady claim was objectively unreasonable. The court finds that it was not.
B. Discussion
In Brady v. Maryland, the Supreme Court held that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963). For a Brady prosecutorial misconduct claim to succeed, (1) “[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching;” (2) the “evidence must have been suppressed by the State, either willfully or inadvertently;” and (3) “prejudice must have ensued.” Banks v. Dretke, 540 U.S. 668, 691 (2004); Strickler v. Greene, 527 U.S. 263, 281-82 (1999). “There is no dispute that Brady constitutes clearly established federal law for purposes of AEDPA.” Comstock, 786 F.3d at 707. A habeas petitioner faces an immense challenge when making a Brady claim, and the court “routinely rejects such arguments.” Id. at 704. Here, the question is whether the state court's decision was contrary to or involved an unreasonable application of Brady.
C. Analysis
Petitioner has not established the evidence at issue would have been favorable to him. Evidence is “favorable to the accused” under Brady if it is either exculpatory or impeaching. Strickler, 527 U.S. at 281-82. Evidence is favorable if “information would be ‘advantageous' to the defendant” or the evidence “would tend to call the government's case into doubt.” Comstock, 786 F.3d at 708 (internal quotations and citations omitted). Mere speculation about what the evidence might reveal is insufficient to satisfy Brady's requirement. Brady, 373 U.S. at 87; see United States v. Caro, 597 F.3d 608, 619 (4th Cir. 2010) (speculation as to what the requested information might reveal is insufficient to satisfy Brady's requirement of showing the requested evidence would be “favorable to [the] accused.”); United States v. Sukumolachan, 610 F.2d 685, 687 (9th Cir. 1980) (absent a potential witness's own affidavit, counsel's assertion that a continuance would provide exculpatory evidence was “conjecture, ” where counsel failed to state with particularity the grounds for believing the potential witness's testimony would be favorable); see Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001) (a habeas petitioner's speculation about a potential witness's testimony was not evidence of the substance of that testimony).
Here, Petitioner claims Burton's testimony would have been exculpatory, but he has not provided any evidence to support that assertion. Petitioner asserts that the prosecution denied him access to “exculpatory evidence” because he was not “permitted to call his co-defendant as a witness on his behalf ... to provide testimony about Petitioner's intent and involvement in the alleged robbery.” Pet. Third Am. Pet. For Writ of Habeas Corpus (ECF No. 33, p. 5). Petitioner has not submitted any evidence (such as a declaration or affidavit) to show Burton's testimony about Petitioner's “intent and involvement” would have been favorable to him, and mere speculation about what Burton's testimony might have revealed is insufficient to satisfy Brady's requirement. Because the Petitioner has not established the evidence at issue would have been favorable to him, he does satisfy the Brady standard, and the inquiry may cease. Relief on this claim should be denied.
Petitioner does not allege that Burton's testimony was favorable because it was potentially impeaching.
Even if the evidence at issue would have been exculpatory, however, Petitioner has not established that the prosecution suppressed Burton's testimony, either willfully or inadvertently. Evidence is “suppressed” where it is known to the state and not disclosed to the defendant. Strickler, 527 U.S. at 282. The state's duty applies “even if there has been no request by the accused.” Id. at 280. However, the rule in Brady applies only to evidence unknown to the defendant at the time of the trial. See United States v. Clark, 928 F.2d 733, 738 (6th Cir. 1991) (no Brady violation exists where defendant knows of essential facts that would permit him to take advantage of allegedly exculpatory evidence or where evidence is available from another source); Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006) (“where the defendant is aware of the essential facts enabling him to take advantage of any exculpatory evidence, the Government does not commit a Brady violation by not bringing the evidence to the attention of the defense”).
Here, Brady does not apply to Burton's testimony because Petitioner knew the essential facts that would have permitted him to take advantage of Burton's potentially exculpatory testimony. Defense counsel “could have sought” Burton's testimony; indeed, defense counsel did seek Burton's testimony. At trial, Petitioner's attorney stated that she and her investigator attempted to talk with Burton prior to Petitioner's trial, but Burton's attorney denied them access. Resp. Exh. 105, p. 83.
In addition to the foregoing, “[f]ederal courts have consistently held that a defendant's compulsory process rights are not violated when a witness invokes the right not to testify.” State v. Jones, 89 Or.App. 133, 138, 747 P.2d 1013, 1016 (1987). The privilege against selfincrimination “belongs to the witness alone and is beyond the control of either defendant or the state.” Id. Here, Burton was unavailable as a witness because he asserted his privilege against self-incrimination, not because of any state action. To the extent Burton was unavailable as a witness due to the rescheduling of his sentencing, Burton's attorney admitted at Petitioner's trial that he, not the prosecution, requested the rescheduling of Burton's sentencing. Furthermore, even if the state had moved to reschedule Burton's sentencing, “the issue is not whether the state has some causal effect” on a witness's assertion of the privilege against self-incrimination, but “whether the state acted with the purpose of depriving defendant of the benefit of' a witness's testimony. Id. at 137-38. Thus, even if Burton's testimony would have been exculpatory, Petitioner fails to establish the state suppressed it and that there were no other means of obtaining it. Again, because Petitioner has not established the state suppressed the evidence at issue, he does not meet the standard to succeed on a Brady claim, the inquiry may cease, and relief on this claim should be denied.
Finally, even if the evidence would have been exculpatory and the state suppressed it, Petitioner fails to show prejudice ensued from suppression of the evidence. T o determine whether prejudice occurred, the court looks “to the materiality of the suppressed evidence.” Hovey v. Ayers, 45 8 F.3 d 892, 916 (9th Cir. 2006). Evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985); Strickler, 527 U.S. at 281 (“there is never a real 'Brady violation' unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different result”). A reasonable probability that the result of the proceeding would have been different exists when the prosecution's suppression of the evidence “undermines the confidence in the outcome of the trial.” Bagley, 473 U.S. at 678; United States v. Sedaghaty, 728 F.3d 885, 900 (9th Cir. 2013) (“[i]n evaluating materiality, we focus on whether the withholding of the evidence undermines our trust in the fairness of the trial and the resulting verdict”). “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality' in the constitutional sense.” United States v. Agurs, 427 U.S. 97, 109-10 (1976). Furthermore, suppressed evidence must be “considered collectively, not item by item.” Kyles v. Whitley, 514 U.S. 419, 436 (1995).
Here, the question is not whether Petitioner would more likely than not have received a different verdict had the trial court admitted the allegedly suppressed evidence, but whether in its absence he received a fair trial - a trial resulting in a verdict worthy of confidence. See id. at 434. Even assuming Burton's testimony would have been exculpatory, it was not material because it does not give rise to a reasonable probability that the result of Petitioner's dial would have been different. The remaining evidence presented at Petitioner's trial was sufficient to establish his guilt on the convicted charges.
At trial, Petitioner attempted to compel Burton's testimony presumably to support his defense that he did not actively participate in or know about the robbery before he walked into Gator's bar with Burton. At best, Burton's testimony about his recollection of events would have corroborated Petitioner's version of events that the jury rejected. However, the overwhelming evidence presented at trial - including physical evidence, testimony from two officers on the scene, and testimony from the three victims involved - established Petitioner's active role in the robbery and firmly supports the conclusion that Petitioner would have received the same verdict, even with Burton's testimony. Burton's testimony, even if exculpatory, would not have substantially diminished, or defeated, the state's ability to prove beyond a reasonable doubt the charges of which Petitioner was found guilty.
Additionally, “Supreme Court case law also instructs that the ‘likely damage' from the suppression of Brady evidence ‘is best understood' by reference to the prosecutor's closing arguments.” Comstock, 786 F.3d at 711 (quoting Kyles, 514 U.S. at 444). The prosecutor at Petitioner's trial did not rely on or mention Burton's invocation in his closing statements except to say that Petitioner's statements were “not consistent with any witness statements.” Resp. Exh. 106, p. 119. Instead, the state relied primarily on the direct evidence - physical evidence and witness testimony - linking Petitioner to the robbery. The mere possibility that Burton's testimony might have helped Petitioner or might have affected the outcome of the trial does not establish “materiality” in the constitutional sense. See Agurs, 427 U.S. at 109-10. In short, Petitioner cannot satisfy the “materiality” requirement under Brady because the trial produced a verdict worthy of confidence.
Ultimately, even if Petitioner satisfied the first two components of a Brady violation - suppression of exculpatory evidence by the prosecution - Petitioner has failed to demonstrate that had Burton testified, there is a reasonable probability that the result of his trial would have been different. Petitioner has failed to satisfy his Brady claim, and has not shown the state court's decision to deny relief on these claims was contrary to or an unreasonable application of Brady. Therefore, habeas relief should be denied.
III. Ground Six: Non-unanimous Verdict
Petitioner is not entitled to habeas relief on the claim alleged in Ground Six because it is untimely, procedurally defaulted, and lacks merit. The claim alleged in Ground Six is untimely because it was alleged beyond the one-year statute of limitations period. Under 28 U.S.C. § 2244(d)(1), “[a] 1-year period of limitation shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” The limitation period begins on “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” § 2244(d)(1)(A). September 20, 2017, is the date on which the judgement from Petitioner's direct appeal became final. Petitioner's initial petition and Amended Petition were both timely filed, but Petitioner first alleged Ground Six in his Third Amended Petition, which he filed on June 12, 2019. Because June 12, 2019, is well past one year from September 20, 2017, Petitioner's clam is untimely.
Furthermore, the claim alleged does not relate back to the claims in the timely filed petitions. Federal Rule of Civil Procedure 15(c) allows a petitioner to “add an otherwise untimely claim to her habeas petition if it relates back to a timely-filed claim.” Alfaro v. Johnson, 862 F.3d 1176, 1183 (9th Cir. 2017); Mayle v. Felix, 545 U.S. 644, 664 (2005) (“[s]o long as the original and amended petitions state claims that are tied to a common core of operative facts, relation back will be in order”). However, an amended habeas petition “does not relate back (and thereby escape AEDPA's one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.” Mayle, 545 U.S. at 650; see also Alfaro, 862 F.3d at 1183. In his timely filed petitions, Petitioner alleged trial-court error, prosecutorial misconduct, and ineffective assistance of counsel. The non-unanimous verdict claim does not relate back because it asserts grounds for relief that are supported by facts different “in both time and type” from those in his initial pleadings. See Mayle, 545 U.S. at 650. Thus, the claim alleged in Ground Six is untimely.
The claim alleged in Ground Six also is procedurally defaulted because Petitioner did not exhaust available state remedies on the claim and is now barred from doing so. “A claim is procedurally defaulted ‘if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhausted requirement would now find the claims procedurally barred.'” Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.l (1991); O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (failure to timely present habeas claims in state court resulted in a procedural default of those claims). Because Petitioner raised the non-unanimous verdict issue for the first time in his Third Amended Petition and did not present the issue to the state courts, he is now barred from raising it here.
Finally, the claim alleged in Ground Six lacks merit. The Supreme Court has held that non-unanimous verdicts in state criminal cases are constitutional. See Apodaca v. Oregon, 406 U.S. 404 (1972). The Supreme Court's decision in Apodaca currently controls and was controlling at the time Petitioner was convicted. Thus, Petitioner's claim in Ground Six lacks merit, and he is not entitled to habeas relief.
The issue of non-unanimous verdicts is currently pending before the Supreme Court of the United States in Ramos v. Louisiana, No. 18-5924 (U.S. argued Oct. 7, 2019).
IV. Remaining Unaddressed Claims for Relief
As noted above, Petitioner does not provide arguments to support the remaining grounds for relief alleged in his Third Amended Petition. In his briefing to the court, Petitioner addresses only Grounds One, Two, and Six. As such, Petitioner has not sustained his burden to demonstrate why he is entitled to relief on the remaining unargued claims alleged in Grounds Three, Four, and Five. See Lampert v. Blodgett, 393 F.3d 943, 970 n.16 (9th Cir. 2004); Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). Nevertheless, the court has reviewed Petitioner's remaining claims and is satisfied that Petitioner is not entitled to habeas corpus relief.
Recommendation
For these reasons, the Third Amended Petition for Writ of Habeas Corpus (ECF No. 33) should be DENIED, and a judgment of dismissal should be entered. A certificate of appealability should be DENIED.
SCHEDULING ORDER
The above Findings and Recommendation are referred to a United States District Court Judge for review. Objections, if any, are due in 14 days. If no objections are filed, review of the Findings and Recommendation will go under advisement that date.
A party may respond to another party's objections within 14 days after the objections are filed. If objections are filed, review of the Findings and Recommendation will go under advisement upon receipt of the response, or on the latest date for filing a response.
IT IS SO ORDERED.