Opinion
2:18-cv-01996-YY
09-21-2023
BENJAMIN ALLEN TOLLE, Plaintiff, v. TROY BOWSER, Respondent.
FINDINGS AND RECOMMENDATION
YOULEE YIM YOU UNITED STATES MAGISTRATE JUDGE
FINDINGS
Petitioner, an adult in the custody of the Oregon Department of Corrections, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Petition for Writ of Habeas Corpus should be DENIED.
I. Background
On April 28, 2006, a Josephine County grand jury indicted Petitioner on charges of aggravated murder (committed personally and intentionally in the course of and in furtherance of arson), arson in the first degree, burglary in the first degree, unauthorized use of a vehicle, and unlawful possession of methamphetamine. Respondent's Exhibit (“Resp. Exh.) 102, ECF No. 17. Petitioner and the victim, Curtis Dylan Willie, were both engaged in romantic relationships with the same woman, and disliked each other. Petitioner and Willie ran into each other at a bar, where Willie made rude comments to Petitioner. A few hours later, Willie's trailer was destroyed by a fire and he died from smoke inhalation. Petitioner was found by police the next day in Willie's car on the side of a road some distance away, and he initially claimed to have no idea how he ended up there. Petitioner later admitted to breaking into Willie's trailer and taking various items and the keys to Willie's car, but he denied having anything to do with the fire or with Willie's death.
Petitioner pleaded guilty to the charges of unauthorized use of a vehicle and unlawful possession of methamphetamine, and proceeded to a jury trial in 2007 on the remaining three charges. The jury found Petitioner guilty of burglary, but was unable to reach a verdict on the counts of aggravated murder and arson, and the trial court declared a mistrial on those counts. As to the burglary charge, the indictment included a sentence enhancement allegation that “in the commission of” the burglary, Petitioner “caused physical injury to the victim.” Resp. Exh. 102, p. 2. The jury's verdict form included the question, “Did [Petitioner] cause physical injury to Curtis Willie during the commission of the above Burglary in the First Degree?” Resp. Exh. 114, p. 1. The jury acquitted Petitioner on the sentence enhancement allegation. Id.
In June of 2008, Petitioner was retried before a new jury on the charges of aggravated murder and arson in the first degree. At the end of the second trial, the jury initially returned inconsistent verdicts. The jury unanimously found Petitioner not guilty of aggravated murder and unanimously found him guilty of the lesser-included charge of felony murder, but returned a non-unanimous verdict of guilty on the charge of arson in the first degree. Because the only predicate felony presented to the jury in the instruction for felony murder was arson, it was not possible as a matter of law for a juror to find petitioner to be both guilty of felony murder and not guilty of arson. The trial judge explained the problem with the verdicts to the jurors and sent them back for further deliberations. The jury then returned a unanimous verdict of guilty on both felony murder and arson in the first degree.
The evening after the verdict was entered, one of the jurors encountered the defense attorneys at a restaurant and spoke to them about the case. Following the encounter, defense counsel moved to question the jurors, arguing that statements made by the juror to them “involve[d] potential jury misconduct during the jury selection process and deliberation.” Resp. Exh. 104, pp. 43-45. Following a hearing on the motion, the trial court denied the motion. Tr. 1318.
At the sentencing hearing about a week later, the prosecutor informed the court and defense counsel that the same juror who was the subject of the prior motion had contact with a detective who had been involved in Petitioner's case. The purpose of the contact was to report vandalism at the juror's place of business, but she also discussed Petitioner's case with the detective. Defense counsel filed a motion for new trial that same day, alleging that information “revealed possible jury misconduct during the deliberation process.” Resp. Exh. 104, p. 58. After receiving and reviewing the recording of the detective's conversation with the juror, defense counsel subsequently filed an amended motion adding an argument of “possible misconduct on the part of the prosecution following the reading of the verdict.” Resp. Exh. 104, p. 61. The trial court conducted a hearing, and denied Petitioner's request for a new trial. Resp. Exh. 104, p. 68. The trial court ultimately sentenced Petitioner on the murder charge to life imprisonment with the possibility of parole after 25 years, merged the arson conviction with the murder conviction, and otherwise imposed concurrent sentences. Resp. Exh. 101, pp. 3-9.
Petitioner filed a direct appeal, assigning error to the trial court's denial of his motions to question jurors and for a new trial. Resp. Exh. 104. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. Tolle, 236 Or.App. 269, rev. denied, 349 Or. 246 (2010).
Petitioner then sought state post-conviction relief (“PCR”). Petitioner, who was represented by counsel, alleged that trial counsel was ineffective in failing to move to dismiss the murder and arson charges on double jeopardy grounds under the Fifth Amendment and in failing to introduce evidence in the second trial suggesting that another person had a motive to commit the crimes, and that appellate counsel was ineffective in failing to raise the double jeopardy issue. Resp. Exh. 122. The PCR trial court dismissed the petition on the state's motion for judgment on the pleadings under Or. Rev. Stat. § 138.580. On appeal, the state conceded that petitioner had satisfied the attachment requirement of § 138.580, at least as to his claim that trial counsel was ineffective in failing to call certain witnesses. Resp. Exh. 127. The Oregon Court of Appeals agreed, and the Oregon Court of Appeals issued the following per curiam opinion:
Petitioner appeals a judgment dismissing his amended petition for post-conviction relief. We write only to address petitioner's contention that the court erred in dismissing his claim that trial counsel was inadequate for failing to call certain witnesses and reject his remaining contentions without discussion. Petitioner assigns error to the post-conviction court's dismissal of that claim because petitioner failed to attach “[a]ffidavits, records or other documentary evidence supporting the allegations of the petition[,]” as required by ORS 138.580. The state concedes that the attached documentation satisfied the requirements of ORS 138.580, as explained in Ogle v. Nooth, 254 Or.App. 665, 298 P.3d 32, rev. allowed, 353 Or. 747, 304 P.3d 38 (2013). Having reviewed the petition, we agree with the state and accept its concession that the claim should not have been dismissed on grounds that petitioner failed to attach sufficient documentation to the petition.
Reversed and remanded for further proceedings on petitioner's claim that he was denied adequate assistance of trial counsel because of the failure to call certain witnesses, otherwise affirmed.Tolle v. Franke, 261 Or.App. 639 (2014). Petitioner did not seek review from the Oregon Supreme Court.
On remand, Petitioner filed an amended PCR petition alleging that trial counsel was ineffective in failing to: (1) timely raise the motion for new trial; (2) preserve the argument that the trial court abused its discretion in denying the motion for new trial; (3) object to the trial court's instruction to the jury in the second trial to deliberate further following its inconsistent verdict; (4) request instructions on the lesser included offenses of second-degree manslaughter and criminally negligent homicide; (5) ask specific questions in cross-examining one of the state's witnesses; (6) investigate and present evidence that another person was responsible for the murder; and (7) argue in closing that certain testimony was inconsistent with the timeline established at trial. Resp. Exh. 130. Following an evidentiary hearing, the PCR trial court denied relief in a written decision. Resp. Exh. 155. On appeal, Petitioner assigned error only to the denial of his claim that trial counsel was ineffective in failing to timely raise the motion for new trial. Resp. Exh. 156. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Tolle v. Franke, 290 Or.App. 720, rev. denied, 363 Or. 119 (2018).
Petitioner then filed his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this court. In his Petition, he alleges seven claims for relief:
Ground One: Trial counsel was ineffective in failing to move to dismiss the charges of aggravated murder and arson after the first trial on the ground of double jeopardy.
Ground Two: Trial counsel was ineffective in failing to argue in the motions to question jurors and for new trial that some jurors intimidated and threw things at jurors who were holding out for an acquittal.
Ground Three: The court instructing the jury to continue deliberating was “judicial misconduct” in light of the juror intimidation that had also taken place, and trial counsel was ineffective in failing to object to that instruction.
Ground Four: Given the juror who contacted trial counsel and the deputy's statements, the evidence was insufficient to find petitioner guilty beyond a reasonable doubt.
Ground Five: Trial counsel was ineffective in failing to call certain witnesses, and post-conviction appeal counsel was ineffective in failing to raise that issue.
Ground Six: Trial counsel was ineffective in failing to request a lesser-included-offense instruction of second-degree manslaughter and criminally negligent homicide.
Ground Seven: Post-conviction counsel was ineffective in various respects.
Respondent argues that (1) the claims alleged in Grounds One through Six are all procedurally defaulted, (2) to the extent the claim alleged in Ground Two was properly exhausted, the PCR court denied it in a decision that is entitled to deference, and (3) the claim alleged in Ground Seven does not state a claim cognizable in this proceeding. In his Brief in Support, Petitioner addresses only the claims alleged in Grounds One and Two. Petitioner acknowledges the claim alleged in Ground One is procedurally defaulted, but argues that the procedural default was caused by the ineffective assistance of post-conviction trial counsel and that he has therefore shown cause and prejudice excusing the procedural default. As to the claim alleged in Ground Two, Petitioner argues he did not procedurally default the claim, and that the state court decision denying relief is not entitled to deference.
II. Legal Standards
A habeas petitioner must exhaust all 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 those claims. Rose v. Lundy, 455 U.S. 509, 519 (1982); 28 U.S.C. § 2254(b)(1)(A). “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, 915-16 (9th Cir. 2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 257 (1996)). If a habeas litigant failed to present a claim to the state courts in a procedural context in which the merits of the claim were actually considered, the claim has not been fairly presented to the state courts and therefore is not eligible for federal habeas corpus review. Edwards v. Carpenter, 529 U.S. 466, 453 (2000); Castille v. Peoples, 489 U.S. 346, 351 (1989).
A petitioner is deemed to have “procedurally defaulted” a claim if the petitioner failed to comply with a state procedural rule or failed to raise the claim at the state level. Carpenter, 529 U.S. at 451; Coleman v. Thompson, 501 U.S. 722, 750 (1991). A federal court is precluded from reviewing the merits of a claim when the state court has denied relief on the basis of an independent and adequate state procedural rule. Coleman, 501 U.S. at 731-32; Vansickel v. White, 166 F.3d 953, 957 (9th Cir. 1999). A state procedural rule constitutes an “independent” bar only if it is not interwoven with federal law or dependent upon a federal constitutional ruling. Ake v. Oklahoma, 470 U.S. 68, 75 (1985); La Crosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2011). A state procedural rule constitutes an adequate bar to federal court review if it was “firmly established and regularly followed” at the time it was applied by the state court. Ford v. Georgia, 498 U.S. 411, 424 (1991).
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 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).
III. Discussion
A. Ground One - Ineffective Assistance for Failure to Move to Dismiss the Charges of Aggravated Murder and Arson as Prohibited Under Double Jeopardy
Petitioner contends that trial counsel was ineffective in failing to move to dismiss the charges of aggravated murder and arson on double jeopardy grounds after the hung jury in the first trial. Petitioner concedes he procedurally defaulted this claim in the state PCR proceeding, but argues his procedural default is excused under Martinez v Ryan, 566 U.S. 1 (2012).
In Coleman, the Supreme Court held that ineffective assistance of counsel in postconviction proceedings does not establish cause for the procedural default of a claim. Coleman, 501 U.S. at 753. In Martinez v. Ryan, however, the Supreme Court established a “narrow exception” to the rule announced in Coleman: “Where, under state law, claims of ineffective assistance of trial counsel must be raised in initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” 566 U.S. at 17.
In the Ninth Circuit, in order to demonstrate cause and prejudice under Martinez sufficient to excuse a procedural default, a petitioner must make two showings. First, to establish cause, the petitioner must show that PCR counsel was ineffective under Strickland v. Washington, 466 U.S. 688 (1984), which requires a showing that PCR counsel's performance was deficient and that there was a reasonable probability that, absent the deficient performance, the result of the PCR proceeding would have been different. Clabourne v. Ryan, 745 F.3d 362, 376-77 (9th Cir. 2014), overruled on other grounds by McKinney v. Ryan, 813 F.3d 789, 819 (9th Cir. 2015). Second, to establish prejudice, the petitioner must show that the “underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.” Id.
Here, Petitioner's PCR petition, in which he was represented by counsel, alleged a claim that trial counsel was ineffective in failing to argue that the double jeopardy clause prohibited the state from retrying Petitioner on the aggravated murder and arson charges following the partial mistrial. The PCR trial judge denied the claim on the merits and, on appeal, the Oregon Court of Appeals affirmed that decision without discussion. Resp. Exh. 125; Tolle, 261 Or.App. at 640). Petitioner did not seek review of the Oregon Court of Appeals' decision in the Oregon Supreme Court. Respondent contends that the failure to seek review of the claim by the Oregon Supreme is the juncture at which Petitioner procedurally defaulted his claim and, that because Martinez only excuses default at the PCR trial stage, the procedural default cannot be excused.
When the default is caused on appeal from the initial-review collateral proceeding, “the rule of Coleman governs,” “even though that initial-review collateral proceeding may be deficient for other reasons.” Martinez, 566 U.S. at 16.
Petitioner counters that PCR trial counsel “abandoned” the claim, arguing that PCR trial counsel's arguments were so deficient that there was no meaningful adjudication of the claim and, therefore, the procedural default occurred at the state PCR trial level. Contrary to Petitioner's position, however, PCR trial counsel did not “abandon” the claim; while it was not addressed in his trial memorandum, PCR trial counsel did argue the claim at the PCR hearing on the state's motion for judgment on the pleadings. Resp. Exh. 124, pp. 16-17. Moreover, the PCR trial court was apprised of the legal question and reached a decision on the merits, finding that Petitioner did not allege any ultimate facts demonstrating what reasonable argument trial counsel could have made in support of moving to dismiss the aggravated murder and arson in the first degree charges after the jury was unable to reach a verdict on those counts at petitioner's first trial. Resp. Exh. 125, p. 2. On appeal, Petitioner argued that the allegations contained in the petition sufficiently stated a claim that trial counsel should have raised a double-jeopardy objection based on the first jury's finding that Petitioner did not cause physical injury to the victim during the burglary. Resp. Exh. 126, pp. 18-20. In response, the state did not argue that Petitioner failed to preserve his argument, but instead responded on the merits. Resp. Exh. 127, pp. 6-9. As noted above, the Oregon Court of Appeals issued a written opinion granting relief on another claim, but affirming the dismissal of the double jeopardy claim without discussion. Tolle v. Franke, 261 Or.App. 639, 640 (2014). Petitioner did not seek further review of that claim in the Oregon Supreme Court and, because he can no longer do so, that is the point in the PCR proceeding where the procedural default occurred.
Where, as here, a claim was “raised in the initial postconviction proceeding, and [was] rejected by the state post-conviction court on the merits, Martinez has no bearing on the resolution of [the claim].” Jones v. Franke, Case No. 2:11-cv-01527-KI, 2013 WL 4026368, at *2 (D. Or. Aug. 5, 2013); see also Whiley v. Mills, Case No. 3:10-v-00365-JO, 2013 WL 840084, at *8 (D. Or. Mar. 4, 2013) (holding that “any alleged failure on [post-conviction] counsel's part to thoroughly develop and support the subject ineffective assistance of trial counsel claim raised during petitioner's . . . post-conviction proceeding, does not bring it under Martinez's purview”). Because Petitioner fairly presented to the post-conviction trial court his claim concerning trial counsel's failure to raise double jeopardy, which the PCR trial court and Oregon Court of Appeals denied on the merits, but did not seek review by the Oregon Supreme Court, Martinez does not apply. Accordingly, Petitioner has not established cause and prejudice to excuse his procedural default of this claim.
B. Ground Two - Ineffective Assistance for Failure to Adequately Present the Motion to Question Jurors and Motion for New Trial
In Ground Two, Petitioner argues trial counsel was ineffective in failing to argue in the motions to question jurors regarding misconduct and for new trial that some jurors intimidated and threw things at other jurors who were holding out for an acquittal. In his amended PCR petition filed after the Oregon Court of Appeals reversed and remanded the PCR trial court's initial entry of judgment on the pleadings, Petitioner alleged that trial counsel was ineffective in failing to timely move for a new trial. Resp Exh. 130, p. 6. In his trial memorandum, however, Petitioner argued more broadly that counsel was ineffective in failing to adequately raise the issue of juror intimidation in his motions to question jurors and for new trial. Resp. Exh. 131, pp. 37-39.
In response to this argument, the state's trial memorandum noted that the claim as pleaded in the petition was limited to the timeliness issue, and that the expanded argument regarding juror intimidation was not properly before the PCR trial court. Resp. Exh. 139, pp. 810. At the evidentiary hearing on the amended petition, counsel for the state again pointed out that the claim in the amended petition alleged only that counsel was ineffective in failing to timely move for a new trial. Resp. Exh. 153, pp. 35-36. The PCR trial court agreed with the state in its written judgment:
Petitioner has failed to prove his claim that his attorneys were ineffective for failing to timely move for a new trial. Petitioner attempts to argue other matters in his trial memo but Petitioner's claims are limited to those plead in his Petition. Petitioner's trial attorney filed for a new trial as soon as he learned of the phone call from a juror to Detective Selig and later amended it when he learned additional facts. The court denied the motion for a new trial. Petitioner failed to prove that a motion for new trial should have reasonably been filed sooner or that an earlier filing of a motion for a new trial would have had any impact on the results of the proceeding. The trial judge considered the evidence of juror intimation and found it was insufficient to grant a new trial.Resp. Exh. 154, p. 3 (emphasis added).
Petitioner argues that his claim that trial counsel was ineffective in failing to adequately address the juror intimidation issue is not procedurally defaulted because, even though the PCR court determined that he did not allege the claim in his petition and it was not properly before the court, it also resolved the claim on the merits. However, “a state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.” Harris v. Reed, 489 U.S. 255, 264 n.10 (1980) (emphasis in original). This rule has been repeatedly and consistently applied in the Ninth Circuit. See Ayala v. Chappell, 829 F.3d 1081, 1095-96 (9th Cir. 2016) (holding that claims were procedurally defaulted where California Supreme Court ruled that they were untimely in addition to denying them on the merits); Renteria v. Subia, 449 Fed.Appx. 615, 616 (9th Cir. 2011) (“[t]he state ruling did not lose its independence merely because the state court ruled in the alternative on the merits”); Harper-Leonard v. Washburn, Case No. 2:21-cv-00539-JE, 2022 WL 18282960, at *3 (D. Or. Nov. 14, 2022) (where state PCR court concluded action was untimely, but also resolved claim on its merits, claim was nonetheless procedurally defaulted).
Petitioner makes no argument that the procedural rule relied upon by the PCR court in its alternative holding that the claim was not properly before the court was not an independent and adequate state procedural rule. Because the PCR court concluded that the claim was not properly before it, it applied a procedural bar that was independent of the federal question and adequate to support its judgment. Accordingly, the claim alleged in Ground Two is procedurally defaulted, and because Petitioner has not established cause and prejudice or a fundamental miscarriage of justice to excuse the procedural default, he cannot obtain habeas corpus relief under § 2254.
Once the state has adequately pleaded the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner. Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003).
Petitioner alternatively seeks an evidentiary hearing on the merits of the claim alleged in Ground Two. However, because the claim is procedurally defaulted, no evidentiary hearing is necessary or warranted. See Totten v. Markle, 137 F.3d 1172, 1176 (9th Cir. 1998) (“[i]t is axiomatic that when issues can be resolved with reference to the state court record, an evidentiary hearing becomes nothing more than a futile exercise”).
C. Remaining Claims Not Addressed by Petitioner
Petitioner does not address the remaining claims 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 v. Blodgett, 393 F.3d 942, 970 n. 16 (9th Cir. 2004). Nevertheless, the Court has reviewed Petitioner's remaining claims and is satisfied that Petitioner is not entitled to habeas corpus relief. The claims alleged in Grounds Three, Four, Five, and Six are all procedurally defaulted, and the claim alleged in Ground Seven does not state a cognizable claim for habeas relief.
RECOMMENDATION
For these reasons, the Petition for Writ of Habeas Corpus (ECF No. 1) should be DENIED, and a judgment of dismissal should be entered. Because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability should be DENIED. See 28 U.S.C. § 2253(c)(2).
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due by October 5, 2023. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are 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 a judgment.