Worthan v. Law et al
Filing
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ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 8 in full. The Petition is DENIED on the merits. Motions 11 for Hearing, and to Appoint Counsel filed by Kelly D. Worthan are DENIED Signed by Judge Donald W. Molloy on 7/27/2011. Mailed to Worthan. (TAG, )
FILED
JUL 27 2011
PATRICK E_ DUFFY, CLERK
By
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
KELLY D. WORTHAN,
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CV 11-48-M-DWM
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Petitioner,
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VS.
WARDEN SAM LAW;
ATTORNEY GENERAL OF
THE STATE OF MONTANA
Defendants.
ORDER
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Petitioner Kelly Worthan applied for a writ of habeas corpus under 28
U.S.c. § 2254. Worthan is a state prisoner proceeding pro se. United States
Magistrate Judge Jeremiah C. Lynch entered Findings and Recommendation in
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this matter on May 6, 2011, recommending the Court dismiss Worthan's petition
on the merits and that a certificate of appealability should be denied.
Petitioner was granted two extensions of time to file objections. June 28,
2011, Worthan filed objections to Judge Lynch's Findings and Recommendation.
Therefore, he is entitled to de novo review of those portions of the Findings and
Recommendation to which he objected. 28 U.S.C. § 636(b)( 1). The portions of
the Findings and Recommendation not specifically objected to will be reviewed
for clear error. McDonnell Dou~las Corp. v. Commodore Bus. Mach .. Inc., 656
F .2d 1309, 1313 (9th Cir. 1981). Worthan also moves the Court to appoint him
counsel and to schedule an evidentiary hearing.
The basis of Worthan's claims stem from comments made by the
prosecution during closing arguments. Worthan argues the prosecution
impermissibly shifted the burden to him. This allegation forms the basis of his
claims ofprosecutorial misconduct, ineffective assistance of counsel for failure to
move for mistrial, and ineffective assistance of appellate counsel for failure to
raise the issue.
Worthan also argues his trial counsel was ineffective, in violation of the
Sixth Amendment because she decided not to call Dr. Scolatti as a witness at trial.
He also criticizes his counsel's efforts to verify the qualification of David Stube.
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I. Analysis of Worthan's claims
a.
Worthan's first objection is that the prosecutor elicited hearsay evidence
from expert witnesses. Worthan did not raise the issue in his petition. Nor does he
identifY what was said. District courts are not required to address new arguments
raised in objections. See U.S. v. Howell, 231 F.3d 615, 621-622 (9th Cir.2000).
A review ofthe record does not reveal prejudicial hearsay elicited by the
prosecution. Because the issue was not raised in his petition, and because the
allegation is non specific, this Court declines to exercise its discretion to consider
the argument.
b.
Worthan also repeats his argument that his attorney was ineffective because
she did not call Dr. Scolatti as an expert witness. As Judge Lynch noted, Worthan
did not present the claim in the state court, and therefore it is not properly
exhausted. Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008).
Additionally, a review of Dr. Scolatti's 2003 report shows that his testimony
may have been more damaging to Worthan than helpful. Dr. Scolatti found no
motivation for the children to lie. Trial Tr. at 19: 18-22. He also indicated that
considering the children's ages and that each child made allegations, it would be
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unlikely they were lying. Id. 18: 15-19. Particularly damaging were Dr. Scolatti' s
comments regarding how young children would not know how to describe
ejaculate without experiencing the substance. Id. at 19:9-11.
c.
Worthan complains that his attorney should have conducted further
investigation into the qualifications of their expert David Stube. Judge Lynch
acknowledged the discovery that David Stube did not possess a Ph.D. was
inopportune. Still, Worthan's attorney did not perform unreasonably under the
circumstances. She interviewed Stube, and based on his representations
concluded he was qualified to testify. She had no reason to further question
Stube's credentials.
Additionally, Worthan is unable to show the prejudice required to succeed
on an ineffective assistance of counsel claim. To be successful in his claim,
Worthan must show a reasonable probability that, but for counsel's alleged error,
he would have been acquitted. Strickland v. Wash., 466 U.S. 668, 694 (1984).
Based on the record, a jury would have convicted Worthan even ifhis
attorney chose not to put Stube on the stand. And Worthan has not pointed the
Court to any expert testimony that would undermine confidence in the jury's
verdict. Worthan's attorney reported other experts did not have opinions
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favorable to Worthan. Postconviction Hr'g Tr. at 32: 13-15. As discussed earlier,
Dr. Scolatti's testimony would have been damaging to Worthan's defense; it
would not undermine confidence in the verdict. Even if Worthan located a
favorable expert the evidence still weighed in favor of conviction.
II. Motion for evidentiary hearing and to have counsel appointed
Counsel must be appointed "when the case is so complex that due process
violations will occur absent the presence of counsel," Bonin v. Vasquez, 999 F.2d
425,428-29 (9th Cir. 1993)(discussing Chaney v. Lewis, 801 F.2d 1191, 1196
(9th Cir. 1986) (per curiam», or when an evidentiary hearing is required, Rule
8(c), Rules Governing § 2254 Cases. Counsel may be appointed at any stage of
the proceedings if"the interests ofjustice so require." 18 U.S.C. §
3006A(a)(2)(B). Under § 3006A, the court must consider the likelihood of
success on the merits, the complexity of thc legal issues involved, and the
petitioner's ability to articulate his claims pro se.
Wey~andt
v. Look, 718 F.2d
952,954 (9th Cir. 1983) (per curiam).
Here, neither discovery nor an evidentiary hearing is warranted. The case
can and should be disposed of on legal grounds and the record before the Court.
Consequently, Petitioner is not entitled to counsel. Additionally, the issues are not
unusually complex, and Worthan has adequately communicated his claims.
Unfortunately for him, even with counsel he cannot succeed on the merits.
Accordingly, counsel will not be appointed.
I find no clear error in Judge Lynch's remaining findings and
recommendations. Therefore,
IT IS HEREBY ORDERED that the motion for an evidentiary hearing and
for counsel to be appointed (dkt # 11) is DENIED.
IT IS FURTHER ORDERED that Judge Lynch's Findings and
Recommendation (dkt # 8) are adopted in full. The Petition (dkt # 1) is DENIED
on the merits.
The Clerk of Court shall enter by separate document a judgment in favor of
Respondents and against Petitioner.
A certificate of appealability is DENIED.
Dated this
L.
JJ. day of July, 2011.
, District Judge
Donal
7 d States Dis ict Court
(
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