Pearson v. Green et al

Filing 23

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 20 in full. Oliver Pearson's Petition for Writ of Habeas Corpus 1 is DISMISSED. His Motion for Dismissal and a Request for Re1ief from a State Judgment 22 is DENIED. Signed by Judge Donald W. Molloy on 3/22/2012. Mailed to Pearson. (TAG, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

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OLIVER EMANUEL PEARSON
Petitioner,

v.
WARDEN TOM GREEN;
ATIORNEY GENERAL OF
THE STATE OF MONTANA,
Respondents.

CV 11-105-M-DWM-JCL

ORDER

FILED
MAR 22 2012
PATRICK E. DUFFY. CLERK

By'-=OE=P;;-;:UT""Y-;:CL'"E""'RK~,M"'IS;;;:SO~U:'LA'-

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Petitioner Oliver Emanuel Pearson, proceeding pro se, seeks a writ of
habeas corpus under 28 U.S.C. § 2254. Magistrate Judge Lynch recommends
dismissing the petition. The Court agrees and adopts Judge Lynch's Findings and
Recommendations in fulL
BACKGROUND

This matter was referred to Magistrate Judge Lynch under 28 U.S.C. §
636(b). Because "[t]he materials submitted by Pearson [were] not sufficient to
support pre-screening," Judge Lynch ordered the State to electronically file all
state-court records pertaining to Pearson. After receiving and reviewing the

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records, Judge Lynch issued his Findings and Recommendation on February 9,
2012. Judge Lynch recommended that Pearson's petition be dismissed on the
merits and a certificate of appealability be denied. I Id.
Pearson timely objected to portions of Judge Lynch's Findings and
Recommendations. See (dkt # 20). The following day, Pearson also filed a
"Motion for Dismissal and a Request for relief from a State Judgment." See (dkt #
22). The Court construes that motion as offering additional objections because
Pearson addresses the same habeas claims that he raised in his petition and that
Judge Lynch addressed in his Findings and Recommendation.
Pearson is entitled to de novo review of the specified findings or
recommendations to which he objects. 28 U.S.C. § 636(b)(I). The portions of the
Findings and Recommendation not specifically objected to are reviewed for clear
error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309,
1313 (9thCir.1981).
Because the parties are familiar with the facts of this case, they are
discussed here only as necessary to explain the Court's decision.

Judge Lynch recognized that some or all of Pearson's claims may be
barred by procedural default or the federal limitations period because not all of
Pearson's claims "were raised in state court, and some differ somewhat from those
he raised in state court." He proceeded to the merits, however, because it was
more efficient under 28 U.S.C. § 2254(b)(2).
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ANALYSIS

In his petition for habeas relief, Pearson alleges: (1) his plea was
invohll1tary because he was suffering from post-concussion syndrome at the time
he pleaded no contest and his lawyer failed to question him about this injury
during his hearing; (2) the prosecution failed to turn over exculpatory
evidence--namely, a photo of the accident, DNA blood samples, a copy of a valid
search warrant, and a statement from witness Richard Morris; (3) there is
insufficient evidence to uphold his conviction in light of newly discovered
evidence that establishes his actual innocence--namely, his refreshed memory that
he was not driving at the time of the accident and the State's "star witness's"
contemporaneous inability to remember what he told Montana Highway Patrol; (4)
the trial court erred by not obtaining Pearson's written consent to waive his right
to a jury trial, and (5) his no-contest plea violated his Fifth Amendment right
against self-incrimination.
Pearson objected to Judge Lynch's Findings and Recommendations as to all
ofthese claims except the last. The Court agrees with Judge Lynch that each claim
fails and that Pearson's petition should be dismissed.

I.

Pearson's plea and competency
Pearson first claims that his plea was involuntary because he was suffering
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from post-concussion syndrome at the time he pleaded no contest, for which he
had not received medical treatment at the detention center.
Generally, a plea is voluntary if the defendant makes it while aware ofthe
consequences ofthe plea, is not induced by threats, or by improper promises (e.g.,
bribes). Brady v. United States, 397 U.S. 742, 755 (1970). A plea may be
involuntary ifthe defendant is not competent to plead-ifhe is unable to
"understand the nature and consequences of the plea or to participate intelligently
in the proceeding and to make a reasoned choice among the alternatives
presented." Chavez v. United States, 656 F.2d 512, 517 (9th Cir. 1981). Due
process requires a court to hold a competency hearing, sua sponte, before
accepting a plea whenever "the trial judge entertains or reasonably should
entertain a good fath doubt" as to the defendant's competence. Id. at 515; see also

Godinez v. Moran, 509 U.S. 389, 402 n.l3 (1998) ("A competency determination
is necessary only when a court has reason to doubt the defendant's competence.").
The Ninth Circuit has clarified that a habeas court's inquiry is not to
examine "whether the trial court could have found the defendant either competent
or incompetent" but, rather, to examine the record "to see if the evidence of
incompetence was such that a reasonable judge would be expected to experience a
genuine doubt respecting the defendant's competence." Chavez, 656 F.2d at 516.
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Here, a review of the record-in particular the plea-colloquy
transcript--demonstrates that there was no reason for the trial judge to doubt
Pearson's competency to plead no contest. Pearson told the judge that he
understood the change-of-plea proceedings and that he had a sufficient
opportunity to discuss the matter with his attorney. The trial judge also informed
Pearson that if something came up during the hearing that Pearson did not
understand, he would afford Pearson the opportunity to discuss it with his lawyer.
Pearson was then sworn and told the court that he was changing his plea freely and
voluntarily. Pearson also acknowledged that he had discussed his case with his
lawyer "in great detail," and based on the evidence against him he believed a jury
would fmd him guilty ifhe went to trial. Pearson also demonstrated his ability to
make "a reasoned choice among the alternatives presented," Chavez, 656 F.2d at
517, when he acknowledged it was in his best interest to take the State's offer
(dropping the other two charges and recommending all of his sentence be
suspended) instead of going to trial. Simply put, Pearson's objective actions and
statements made during his plea colloquy would not have given the trial court
"reason to doubt [his] competence ...." Godinez, 509 U.S. at 402 n.13.
Pearson also claims that his lawyer was ineffective because his lawyer
should have questioned him at the same hearing about his post-concussion
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syndrome. In order to show ineffective assistance of counsel, Pearson must show
that his lawyer's performance was unreasonable and that he was prejudiced as a
result. Stricklandv. Washington, 466 U.S. 668, 687-688 (1984). He fails to do

On the merits, the change-of-plea colloquy shows that Pearson was satisfied

with his lawyer's performance. During Pearson's testimony, Pearson agreed he
had met with his lawyer a number of times, he had spoken on the phone many
times, and that he had discussed his case with his lawyer "in great detail." Pearson
also acknowledged during the hearing that he wanted the benefit ofthe State's
offer to dismiss the other two felonies in exchange for his pleading to the failure to
remain at the accident charge.
Additionally, Pearson's legal representation was reasonable. His lawyer
hired Dr. Trontel, a clinical psychologist, to review the case and determine
whether Pearson's actions following the accident demonstrated "compelling
evidence" of "neurocognitive disruption." At bottom, Pearson points to no
authority showing that his lawyer acted unreasonably by not asking Dr. Trontel to
make a detention-facility visit or to question Pearson about mental deficiencies at

As a preliminary matter, the Court notes that Pearson did not assert
ineffective assistance of counsel in his petition for post-conviction relief or
petition for habeas corpus at the Montana Supreme Court.
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his plea hearing. Thus, the Court agrees with Judge Lynch that "the record and
trial counsel's reasonable performance" refutes any claim of ineffective assistance
of counsel. The Court therefore denies Pearson's involuntary plea claim and his
ineffective assistance of counsel claim.
II. Pearson's refreshed memory

Pearson next objects to Judge Lynch's conclusion that Pearson is not
entitled to a new trial on account of his recovered memory and his belief that he
was not driving the car when the accident occurred. Because the crux of Pearson's
claim is that the new evidence-his refreshed memory---demonstrates that he was
not the driver, the Court construes Pearson's claim as one of "actual innocence."
Actual innocence supported by newly discovered evidence is not a ground
for federal habeas relief. Herra v. Collins, 506 U.S. 390, 400 (1993) ("Claims of
actual innocence based on newly discovered evidence have never been held to
state a ground for federal habeas relief absent an independent constitutional
violation occurring in the underlying state criminal proceeding."); Townsend v.

Sain, 327 U.S. 293, 317 (1963) (reasoning that "the existence merely of newly
discovered evidence relevant to the guilt of a state prisoner is not a ground for
relief on federal habeas corpus"). This rule guarantees that "habeas courts sit to
ensure that individuals are not imprisoned in violation of the Constitution-not to
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correct errors of fact." Herra, 506 U.S. at 400.
The "newly discovered evidence" rule allows habeas petitioners to proceed
to the merits of their constitutional claims notwithstanding a valid procedural bar
or the lapse of a time bar. Schlup, 513 U.S. at 315-316 (describing the actual
innocence test as a "gateway" that allows the habeas court to review the
petitioner's constitutional claims on the merits notwithstanding a valid procedural
bar). Because the court proceeded to Pearson's constitutional claims, and
determined they lacked merit, the Schlup test does not afford Pearson any relief.

III.

Right to a jury trial
Pearson also objects to Judge Lynch's finding that Pearson was not entitled

to a jury trial because he pleaded to the charge in lieu of going to trial. Although
Pearson claims a right to a bench trial under the Montana Constitution and
Montana statutes, the Court liberally construes Pearson's request to include a jury
trial, too. The Sixth Amendment of the federal Constitution affords all defendants
in criminal prosecutions the right to trial by jury. A criminal defendant waives
that right to trial by jury, however, by pleading to the charge. McCarthy v. United

States, 394 U.S. 459, 466 (1969) (noting "A defendant who enters such a plea
simultaneously waives several constitutional rights, including ... his right to trial
by jury"). Here, Pearson pleaded no contest to the charge of failure to remain at
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the scene. Because the Court determined that Pearson made his plea voluntarily,
Pearson was not entitled to a jury trial or a bench trial.
IV.

Brady claim
Construing Pearson's objections very liberally, Pearson also appears to

claim that the State failed to turn over the exculpatory statement ofRichard
Morris, an "eye witness on the scene of the accident ...." Pearson's claim fails.
A Brady violation occurs "when the government fails to disclose evidence
materially favorable to the accused." Yaungblood v. W. Va., 547 U.S. 867, 869
(2006). "Such 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 ....'" Id. at 870 (quoting Strickler v. Greene, 527 U.S. 263,
280 (1999)).
First, the record demonstrates that the State disclosed Richard Morris's
statement to Pearson's defense. For example, Dr. Trontel's report states that he
"reviewed the material you provided on your client, Mr. Oliver Pearson." Richard
Morris's statement was listed in the materials that Dr. Trontel reviewed before
concluding that there was no compelling evidence to substantiate Pearson's
claims.
Second, even if the prosecution withheld Richard Morris's statement,
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Pearson's own assertions show that Richard Morris's statement was not
exculpatory evidence. According to Pearson, Montana Highway Patrol
interviewed Richard Morris who arrived moments after the crash and tried to
prevent Pearson from leaving the scene. Pearson, however, "quickly convinced
[an] SUV driver to take him." This evidence demonstrates that Pearson was
coherent enough to ask another driver to take him away from the scene ofthe
accident. Far from eXCUlpating Pearson, Morris's statement, in conjunction with
the evidence that Pearson waited "several days" to seek medical attention
undermines Pearson's defense.
In addition to his claim that the State withheld Richard Morris's voluntary

statement, Pearson also alleges that the State withheld a "photo of the accident,
DNA blood samples that [were] taken from the crime scene, and a copy of a valid
search warr[a]nt." As to the search warrant and photograph, Pearson does not
assert how "the result of [his change of plea] would have been different," Strickler
v. Greene, 527 U.S. at 280, had he received those items. Therefore, Pearson fails
to demonstrate a prima facie Brady violation.
As to the DNA blood samples, the Court agrees with Judge Lynch that it is
"reasonably clear that the samples were taken but not analyzed." As noted by
Judge Lynch, "[T]he police do not have a constitutional duty to perform any
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particular tests." Ariz. v. Youngblood, 488 U.S. 51,59 (1988) (reversing Arizona
Court of Appeals' ruling that Brady requires the government to perfonn tests that
could exonerate the defendant). This rule serves the practical purpose of
preventing courts from "divining the import of materials whose contents are
unknown and, very often, disputed." Id. at 57.
On the face of the record, Pearson cannot show that the State failed to
disclose exculpatory evidence in its possession. Thus, the Court denies all of
Pearson's Brady claims.

v.

Self-incrimination under the Fifth Amendment
When he was before Judge Lynch, Pearson claimed that his no contest plea

ran afoul ofthe Fifth Amendment's prohibition against self-incrimination. Even
construing his objections liberally, the Court finds that he did not object to Judge
Lynch's rejection of this claim. Judge Lynch's findings and recommendations with
respect to this claim are not clearly erroneous. The Court therefore denies this
claim.
Accordingly, IT IS ORDERED that Judge Lynch's Findings and
Recommendations (dkt. # 20) are adopted in full;
IT IS FURTHER ORDERED that Oliver Pearson's Petition for Writ of
Habeas Corpus (dkt # 1) is DISMISSED. The Clerk of Court is directed to enter

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by separate document a judgment of dismissal.
IT IS FURTHER ORDERED that Pearson's Motion for Dismissal and a
Request for Re1ieffrom a State Judgment (dkt # 22) is DENIED.
IT IS FURTHER~ERED that a certificate of appealability is DENIED.
Dated this J);l;:. day of March 2012.

Donald . Mollo District Judge
United States Distri Court

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