Davis v. Nooth
Filing
54
OPINION AND ORDER: The Court DENIES the First Amended Petition for Writ of Habeas Corpus 17 and DISMISSES this action. See 20-page opinion and order attached. Signed on 11/22/2013 by Judge Anna J. Brown. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CALVIN SMITH DAVIS,
Civil No. 2:11-cv-01101-BR
Petitioner,
OPINION AND ORDER
v.
MARK NOOTH,
Respondent.
KENDRA M. MATTHEWS
Ransom Blackman, LLP
1001 SW Fifth Avenue
Suite 1400
Portland, OR 97204
Attorney for Petitioner
ELLEN F. ROSENBLUM
Attorney General
KRISTEN E. BOYD
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301
Attorneys for Respondent
1 - OPINION AND ORDER -
BROWN, Judge.
Petitioner,
an
inmate
at
the
Snake
River
Correctional
Institution, brings this habeas corpus action pursuant to 28
U.S.C. § 2254.
For the reasons that follow, the Court DENIES the
First Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas
Corpus (#29).
BACKGROUND
On August 23, 2002, a Multnomah County grand jury indicted
Petitioner on the following charges:
Count 1 - Aggravated Murder
(murder in the course of committing the crime of Robbery in the
First Degree); Count 2 - Aggravated Murder (murder in the course
of committing the crime of Burglary in the First Degree); Count 3
- Aggravated Murder (murder in the course of committing the crime
of Kidnapping in the Second Degree); Count 4 - Aggravated Murder
(murder in an effort to conceal the identity of a perpetrator of
the crime of Robbery in the First Degree); Count 5 - Aggravated
Murder
(murder
in
an
effort
to
conceal
the
identity
of
a
perpetrator of the crime of Burglary in the First Degree); Count
6 - Aggravated Murder (murder in an effort to conceal the identity
of a perpetrator of the crime of Kidnapping in the Second Degree);
Count 7 - Robbery in the First Degree with a Firearm; Count 8 Burglary in the First Degree with a Firearm; Count 9 - Kidnapping
in the Second Degree with a Firearm; Count 10 - Unauthorized Use
of a Vehicle with a Firearm; Count 11 - Unauthorized Use of a
2 - OPINION AND ORDER -
Vehicle with a Firearm; and Count 12 - Felon in Possession of a
Firearm.
Murder
causing
Resp. Exh. 103.
charged
the
The first three counts of Aggravated
Petitioner
death
of
with
the
personally
victim,
while
and
intentionally
Counts
4-6
charged
Petitioner with Aggravated Murder in an effort to conceal the
identity of the perpetrator.
On August 20, 2000, Wayne Olson contacted Jessica Rydman, an
exotic dancer and prostitute, and requested that she perform
services for him at her home.
residence,
she
contacted
After Ms. Rydman left Olson's
Petitioner,
who
was
her
boyfriend.
Rydman told Petitioner she had been in Olson's home in the West
Hills of Portland, that he was a banker, and that he had a lot of
money, jewelry, a Rolex watch, and maybe a safe.
Petitioner
decided to rob Olson, with the help of Rydman and Medero Moon, a
17-year-old acquaintance.
Petitioner, Rydman, and Moon returned to Mr. Olson's home.
The plan was for Rydman to knock on the front door and pretend
that she had accidentally left something in the house.
She did
this, and when Olson opened the door to Rydman, Petitioner and
Moon forced their way into the house and ordered Olson to the
floor at gunpoint. Petitioner and Moon took turns watching Olson;
while one watched, the other helped Rydman search the house for
valuables, which they loaded into pillowcases.
3 - OPINION AND ORDER -
As Petitioner and Rydman left the house, Rydman gave the gun
to
Moon
and,
according
to
statements
given
by
Moon
to
investigating officers, Petitioner told Moon "that he knew what he
had to do and that he had to kill the [decedent]."
7 at 180.
Trans., Vol.
Moon shot Mr. Olson in the back of the head.
The three fled the scene in two of Olson's vehicles and
Rydman's car.
cars.
Early the next morning, the trio ditched the stolen
A few days later, they fled the state, spending time in Los
Angeles and Las Vegas, before returning to Portland.
Eventually,
Rydman turned herself in and cooperated with police.
In exchange
for testifying against Petitioner, Rydman was allowed to plead
guilty to Robbery, Kidnapping, and Burglary, and was sentenced to
seventeen years in prison.
Moon also agreed to cooperate with police.
statements
to
police
and
entered
into
a
He gave several
cooperating-witness
agreement. As Petitioner's trial neared, however, the prosecution
suspected
Moon
would
renege
on
the
agreement
and
refuse
to
testify.
Fearing such an eventuality, the prosecution filed a
pre-trial motion to admit Moon's previous statements to law
enforcement officials.
At
the
introduction
pretrial
of
the
hearing,
out-of-court
Confrontation Clause grounds.
objection.
Petitioner
statements
objected
on
to
the
hearsay
and
The trial judge overruled the
Petitioner sought reconsideration, which the trial
4 - OPINION AND ORDER -
judge granted, and upon reconsideration the trial judge again
overruled the objections.
The case proceeded to trial before a jury.
Moon refused to testify.
As suspected,
The court allowed a detective to
introduce Moon's out-of-court statements through the detective's
testimony over Petitioner's continued objection.
The trial judge granted Petitioner's motion for judgment of
acquittal on the theory that Petitioner "personally" committed the
murder as charged in Counts 1-3; thus, only the lesser included
offenses of Felony Murder were submitted to the jury on those
counts.
The jury found Petitioner guilty of the three counts of
Felony Murder charged in Counts 1-3, three counts of Aggravated
Murder as charged in Counts 4-6, Robbery in the First Degree with
a Firearm, Burglary in the First Degree with a Firearm, Kidnapping
in the Second Degree with a Firearm, two counts of Unauthorized
Use of a Motor Vehicle, and Felon in Possession of a Firearm.
The
case proceeded to a sentencing phase, and the jury concluded the
death
penalty
was
not
warranted
on
the
Aggravated
Murder
convictions, and imposed a "true life" sentence.
The
trial
judge
merged
the
three
Aggravated
Murder
convictions for sentencing purposes and imposed the mandatory
sentence of life without the possibility of parole.
The judge
also merged the Felony Murder, Robbery, Burglary, and Kidnapping
convictions for sentencing and imposed a sentence of life with the
5 - OPINION AND ORDER -
possibility of parole after 25 years, concurrent to the "true
life" sentence.
The judge also merged the two Unauthorized Use of
a Motor Vehicle convictions and imposed a 60-month sentence.
Finally, the judge imposed a twelve-month sentence for the Felon
in
Possession
of
a
Firearm
departure based on a
conviction,
which
was
an
upward
finding of greater-than-typical harm.
Petitioner filed a direct appeal.
The Oregon Court of
Appeals affirmed without opinion and the Oregon Supreme Court
denied review.
State v. Davis, 209 Or. App. 354, 147 P.3d 382
(2006), rev. denied, 342 Or. 299, 152 P.3d 902 (2007).
Petitioner then sought state post-conviction relief ("PCR").
Following an evidentiary hearing, the PCR trial judge denied
relief.
Petitioner appealed, but again the Oregon Court of
Appeals affirmed without opinion, and the Oregon Supreme Court
denied review.
Davis v. Nooth, 241 Or. App. 352, 250 P.3d 38,
rev. denied, 350 Or. 297, 255 P.3d 489 (2011).
On September 9, 2011, Petitioner filed his habeas corpus
action in this Court.
before
the
Court
is
The Court appointed counsel, and currently
Petitioner's
First
Amended
Petition.
Petitioner alleges four claims for relief:
Ground One:
Ineffective Assistance of Counsel:
Petitioner was denied effective assistance of counsel,
in violation of the Sixth and Fourteenth Amendments to
the United States Constitution, when his appellate
attorney failed to diligently and conscientiously
exercise professional skill and judgment and, as a
result, Petitioner's case was prejudiced.
6 - OPINION AND ORDER -
Supporting Facts: Appellate counsel failed to assign
error on hearsay grounds to the trial-court admission of
co-defendant Medero Moon's out-of-court statements
inculpating Petitioner.
In addition to the other
crimes at issue, Mr. Moon's hearsay statements formed
the foundation of Petitioner's Aggravated Murder
convictions. However, the statements should not have
been admitted, as they clearly constituted hearsay
without an exception. Appellate counsel only assigned
error to the statements' introduction on ConfrontationClause grounds. Appellate counsel's failure prejudiced
Petitioner. Had appellate counsel raised this issue, it
is more likely than not that the Oregon Court of Appeals
would have reversed on appeal.
Ground Two: Violation of Confrontation Clause Rights
Petitioner was denied his rights under the Sixth
Amendment to the United States Constitution to confront
and cross-examine a crucial prosecution witness.
Supporting Facts: The trial court's admission of Mr.
Moon's incredibly damaging out-of-court statements
violated Petitioner's Confrontation Clause rights
because Petitioner did not have an opportunity to crossexamine Mr. Moon.
Mr. Moon's statements were
"testimonial" in nature and their introduction formed
the foundation of the prosecution's case.
Ground Three: Denial of Due Process and the Right to an
Impartial Jury
Petitioner was denied his rights under the Sixth and
Fourteenth Amendments to the United States Constitution
to Due Process and the right to an impartial jury.
Supporting Facts: The trial court erred in overruling
[Petitioner's] challenge for cause of a juror. Juror
Duden was biased, and was incapable of being fair and
impartial.
This was proven during voir dire, and
defense counsel urged the court to dismiss the juror for
cause. However, the trial court failed to excuse juror
Duden, allowing bias to taint the jury pool and verdict.
Ground Four: Denial of Equal Protection
Petitioner was denied his right under the Fourteenth
Amendment to the United States Constitution to equal
protection of the laws.
Supporting Facts: Petitioner is an African-American.
He is entitled to the protections afforded to criminal
7 - OPINION AND ORDER -
defendants under the Fourteenth Amendment and Batson v.
Kentucky, [476 U.S. 79 (1986)]. The trial court erred
in overruling Petitioner's challenge, under Batson, to
the prosecution's elimination of African-Americans from
the jury. The prosecution did not present an adequate
race-neutral reason for excluding both prospective
African-American jurors.
Respondent contends the claims alleged were denied in state
court
decisions
that
were
not
contrary
to
or
involved
an
unreasonable application of clearly established federal law as
determined
by
the
United
States
Supreme
Court.
As
such,
Respondent argues Petitioner is not entitled to habeas corpus
relief in this Court.
LEGAL STANDARDS
Under 28 U.S.C. § 2254(d), an application for a writ of
habeas corpus shall not be granted unless the adjudication on the
merits in State court:
(1) was 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).
In Williams v. Taylor, 529 U.S. 362, 386–389
(2000), the Supreme Court construed this provision to require
federal habeas courts to be highly deferential to the state court
decisions under review.
In Cullen v. Pinholster, 131 S.Ct. 1388,
1398–1402 (2011), the Court reiterated the highly deferential
nature of federal habeas review, and limited federal review "to
8 - OPINION AND ORDER -
the record that was before the state court that adjudicated the
claim on the merits."
"'Clearly established Federal law' is the governing legal
principle or principles set forth by the Supreme Court at the time
the state court renders its decision."
Lambert v. Blodgett, 393
F.3d 943, 974 (9th Cir. 2004), cert. denied, 546 U.S. 963 (2005).
An "unreasonable application" of clearly established federal law
occurs when "the state court identifies the correct governing
legal
principle
from
[the
Supreme]
Court's
decisions
but
unreasonably applies that principle to the facts of the prisoner's
case."
Lambert, 393 F.3d at 974.
"The state court's application of law must be objectively
unreasonable."
Williams, 529 U.S. at 411.
"[A] federal habeas
court may not issue the writ simply because that court concludes
in its independent judgment that the state court decision applied
clearly
Woodford
established
v.
federal
Visciotti,
537
law
U.S.
erroneously
19,
24–25
or
incorrectly."
(2002)
(internal
citations omitted).
"[A] habeas court must determine what arguments or theories
. . . could have supporte[d] the state court's decision; and then
it must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent with
the holding in a prior decision of this Court."
9 - OPINION AND ORDER -
Pinholster, 131
S.Ct. at 1402 (citing Harrington v. Richter, 131 S.Ct. 770, 786
(2011)).
"A state court's determination that a claim lacks merit
precludes federal habeas relief so long as 'fairminded jurists
could disagree' on the correctness of the state court's decision."
Harrington, 131 S.Ct. at 786 (quoting Yarborough v. Alvarado, 541
U.S. 652, 664 (2004)).
Section 2254(d) is a "'guard against extreme malfunctions in
the state criminal justice systems, not a substitute for ordinary
error correction through appeal.'" Hibbler v. Benedetti, 693 F.3d
1140, 1148 (9th Cir. 2012) (quoting Harrington, 131 S.Ct. at 786)
(other internal quotation omitted), cert. denied, 133 S.Ct. 1262
(2013).
"'[T]he question under AEDPA is not whether a federal
court believes the state court's determination was incorrect but
whether that determination was unreasonable — a substantially
higher threshold.'"
Id. at 1146 (quoting Schriro v. Landrigan,
550 U.S. 465, 473 (2007)).
DISCUSSION
I.
Ground One:
Ineffective Assistance of Appellate Counsel
To prevail on a claim of ineffective assistance of counsel,
petitioner must show both (1) that the attorney's performance fell
below an objective standard of reasonableness; and (2) that the
performance prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687, 688 (1984).
10 - OPINION AND ORDER -
There is a strong presumption that
counsel's conduct falls within the wide range of reasonable
professional assistance, or what "might be considered sound trial
strategy." Strickland, 466 U.S. at 689. Reasonableness is judged
as of the time of counsel's conduct, not in hindsight.
Id. at
689–90.
A federal court reviews a state court's application of
Strickland for reasonableness, not for correctness.
Id.
The
federal court does not ask "'whether counsel's actions were
reasonable'" but "'whether there is any reasonable argument that
counsel
satisfied
Strickland's
deferential
(quoting Harrington, 131 S.Ct. at 788).
standard.'"
Id.
"Accordingly, a 'doubly
deferential judicial review' applies to Strickland claims rejected
by the state court."
Id.
(quoting Knowles v. Mirzayance, 556
U.S. 111, 123 (2009)).
Claims of ineffective assistance of appellate counsel are
also reviewed under the Strickland standard.
Smith v. Robbins,
259 U.S. 259, 286 (2000); Cockett v. Ray, 333 F.3d 938, 944 (9th
Cir.
2003).
assistance
Thus,
of
in
order
appellate
to
counsel
prevail
claim,
on
a
an
ineffective
petitioner
must
demonstrate that his appellate counsel's performance fell below an
objective
standard
of
reasonableness,
and
that
there
is
a
reasonable probability that, but for counsel's unprofessional
errors, the petitioner would have prevailed on appeal.
11 - OPINION AND ORDER -
Robbins,
528 U.S. at 258-59. "Whether appellate counsel acted unreasonably
in failing to raise a particular issue is often intertwined with
the merits of the issue and whether the defendant would have
prevailed."
Hayes v. Woodford, 301 F.3d 1054, 1086 (9th Cir.
2002); see also Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir.
1989) ("[a]ppellate counsel will therefore frequently remain above
an objective standard of competence (prong one) and have caused
her client no prejudice (prong two) for the same reason — because
she declined to raise a weak issue").
Petitioner alleges appellate counsel provided ineffective
assistance in his direct appeal because counsel failed to assign
error on hearsay grounds to the admission of Medero Moon's out-ofcourt
statements
inculpating
Petitioner.
In
particular,
Petitioner contends the detective's testimony that Moon said
Petitioner told him, "that he knew what he had to do and that he
had to kill the [decedent]" should not have been admitted under a
hearsay
exception.
Because
it
was
the
only
evidence
of
Petitioner's alleged directive to Moon to shoot and kill the
victim, Petitioner argues, had the testimony been excluded there
would not have been sufficient evidence for the jury to find
Petitioner guilty of any Aggravated Murder charges.
Petitioner
argues
the
detective's
recitation
of
Moon's
statement should not have been admitted because it was not against
Moon's
penal
interest
and
12 - OPINION AND ORDER -
therefore
did
not
fall
within
an
exception to the rule prohibiting hearsay.
Petitioner argues the
statement was not against Moon's penal interest because the
statement was made pursuant to an offer of leniency.
Petitioner's trial counsel proffered the same argument, which
the trial judge twice rejected.
The trial judge specifically
determined that the statements at issue were admissible under
Oregon law.
153,
pp.
See Resp. Exh. 104, Ex. Rec. pp.
2-3.
The
state
trial
court's
8-11; Resp. Exh.
determination
that
admission of Moon's statements through the detective's testimony
fell within an exception to the hearsay rule is a state-law
question, not subject to review by this Court.
See Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) ("[i]t is not the province of
a federal habeas court to reexamine state-court determinations on
state-law questions); Mendez v. Small, 298 F.3d 1154, 1158 (2002)
(state courts have "the last word on the interpretation of state
law").
The record before the PCR court established that appellate
counsel evaluated the hearsay claim and determined that the
stronger argument was that of a Sixth Amendment Confrontation
Clause argument.
As counsel explained:
I examined closely the use of Medero Moon's statements
against petitioner at trial. It was clear to me that
Mr. Moon's statements about robbing a man and then
shooting him in the head were statements against his
legal interests, so I did not assign error on that
basis.
However, it appeared to me that petitioner's
confrontation rights were violated and I did assign
13 - OPINION AND ORDER -
error to use of Mr. Moon's statements on those grounds,
referencing Crawford v. Washington.
Resp. Exh. 144, p. 3.
The PCR court's decision that this did not
rise to the level of ineffective assistance of counsel was neither
contrary
to
Because
the
nor
an
trial
determination
of
unreasonable
court
state
ruled
law
application
the
that
of
evidence
this
Strickland.
admissible,
Court
must
a
respect,
Petitioner cannot show he would have prevailed had appellate court
assigned error to the admission of the statements on hearsay
grounds. Accordingly, Petitioner is not entitled to relief on his
ineffective assistance of appellate counsel claim.
II.
Ground Two:
Petitioner
Violation of Confrontation Clause Rights
alleges
the
introduction
of
Moon's
hearsay
statements through the detective's testimony violated his federal
right of confrontation.
In Crawford v. Washington, the Supreme
Court held that in criminal proceedings, "[t]estimonial statements
of witnesses absent from trial [are admissible] only where the
witness is unavailable, and only where the defendant has had a
prior opportunity to cross-examine."
1
541 U.S. 36, 59 (2004).1
Although Petitioner's case was tried before the United States
Supreme Court decided Crawford, and trial counsel's confrontation
clause objection was thus couched in terms of reliability, the
Crawford decision was issued shortly thereafter and the state
agreed on direct appeal that the issue was preserved and that
Moon's statements were "testimonial" under Crawford. Resp. Exh.
105, p. 3).
14 - OPINION AND ORDER -
It is undisputed that Petitioner never had an opportunity to
cross-examine Moon with respect to the statements he made to the
investigating officers.
Indeed, the parties agree that the
introduction of Moon's out-of-court statements was a violation of
the Confrontation Clause.
The parties, disagree, however, as to
whether Petitioner suffered prejudice as a result.
Confrontation Clause errors are subject to harmless error
analysis under the Brecht standard, which asks whether the error
had a substantial and injurious effect or influence in determining
the jury's verdict.
See Ocampo v. Vail, 649 F.3d 1098, 1114 (9th
Cir. 2011) (discussing Crawford, and citing Brecht v. Abrahamson,
507 U.S. 619, 623 (1993)), cert. denied, 133 S.Ct. 62 (2012).
"In
general, the inquiry into whether the constitutionally erroneous
introduction
of
a
piece
of
evidence
had
a
substantial
and
injurious effect is guided by several factors: 'the importance of
the testimony, whether the testimony was cumulative, the presence
or
absence
of
evidence
corroborating
or
contradicting
the
testimony, the extent of cross-examination permitted, and the
overall strength of the prosecution's case.'" Ocampo, 649 F.3d at
1114 (quoting Whelchel v. Washington, 232 F.3d 1197, 1206 (9th
Cir. 2000)) (additional citations omitted).
Petitioner argues that without Moon's statement, the state's
case
essentially
rested
on
therefore, her credibility.
15 - OPINION AND ORDER -
Jessica
Rydman's
testimony,
and,
Moreover, Petitioner alleges that
Moon was able to tailor his statements to match up with Rydman's,
because Moon had access through discovery to her version of events
before Moon made his statements.
Finally, Petitioner argues
Moon's statement that Petitioner told him "he knew what he had to
do and that he had to kill the [decedent]" was the only direct
link between Petitioner and Moon's act of killing the victim.
Upon a review of the record, however, the Court concludes
that even if Moon's statement had been excluded, ample evidence
supported the jury's finding of guilt.
First, Jessica Rydman's
testimony largely paralleled Moon's statements to the police.
Both stated the crime began after Rydman returned from her "date"
with the victim and told Petitioner the victim was a banker who
appeared to have a lot of money.
Both described the crime in much
the same way, with Rydman driving the trio to the victim's house,
Rydman ringing the bell or knocking on the door, Petitioner and
Moon rushing in and ordering the victim to the floor after the
victim
answered
the
door,
Petitioner
and
Moon
taking
turns
guarding the victim at gunpoint while the others ransacked the
house, and Moon eventually shooting the victim in the head before
they all sped off in the victim's and Rydman's cars.
In addition to Rydman's account, other evidence supported the
jury's guilty verdict.
There was no doubt that Moon shot the
victim and that Petitioner knew that.
Moon told a friend that he,
Petitioner, and Rydman had robbed a banker, that Rydman had set it
16 - OPINION AND ORDER -
up, and that Moon had shot the banker.
After the crime, while
they were splitting up the victim's property at Rydman's house,
Petitioner asked Moon if he was certain that he had killed the
victim, and had Moon demonstrate exactly what he had done.
The state produced Rydman's neighbor, who sold a 9 mm gun
(the same caliber as the murder weapon) to Petitioner.
neighbor
disposed
of
the
gun
in
the
Columbia
River
The
after
Petitioner brought it back, saying he had "hit a lick" (committed
a robbery), and needed to get rid of it.
Petitioner gave the neighbor a watch.
As partial payment,
The victim's watch was
found in the neighbor's room.
The state also called Rydman's friend and babysitter, who
helped Rydman use the victim's credit cards at ATM machines and to
buy clothing.
Rydman told her friend that after a "date" she,
Petitioner, and Moon had gone back to the date's house and had
robbed him.
victim.
Eventually she admitted that Moon had shot the
Rydman showed her friend jewelry and watches stolen from
the victim.
Some of the victim's stolen property, along with a note with
his credit card and other information, were found at the house
Rydman and Petitioner shared.
The victim's cars, including one
sent over a cliff in North Portland and the other left parked on
the street, were found where Rydman and Moon said they would be.
17 - OPINION AND ORDER -
Moreover,
Petitioner
made
damaging
statements
himself.
According to Rydman's daughter, sometime after the crime while
they were in Los Angeles and after they learned that Rydman's
house had been searched by the police, Petitioner was angry at
Rydman.
He said she was stupid for leaving stuff at her house
from "that guy."
Also, Petitioner, Rydman, and Moon fled the
state after the crime, first to Las Vegas and then to Los Angeles.
Petitioner attempted to concoct an alibi for the night of the
crime.
In addition, Petitioner attempted to convince Moon to
testify that Petitioner was not there the night of the crime,
despite the overwhelming evidence that he was.
Further, Petitioner's guilt on the charges of Aggravated
Murder upon which the jury convicted him did not depend on whether
he was "the leader" or on whether he told Moon to shoot the
victim.
To the extent Petitioner argues that the only evidence
the victim was killed to conceal the perpetrator's identities is
his statement to Moon telling him that he knew what he had to do,
the argument is without merit.
The goal of concealing identities
is apparent from the fact that the perpetrators wore gloves at the
crime scene, that during the robbery they kept the victim facedown on the floor (and, for at least some period of time), blindfolded, that they ultimately killed the victim, and that they
subsequently disposed of the victim's vehicles and fled the state.
18 - OPINION AND ORDER -
As the evidence in the record makes clear, even in the
absence of Moon's hearsay statements, the record contained ample
evidence that Petitioner committed the crimes for which the jury
found him guilty.
As such, the hearsay statements did not have a
substantial and injurious effect upon his trial, and the state
court decisions denying relief on Petitioner's Crawford claim are
neither contrary to, nor unreasonable applications of, clearly
established federal law.
III. Ground Three:
Denial of Right to an Impartial Jury
In Ground Three, Petitioner alleges the trial judge erred in
denying Petitioner's objection to a challenge for cause of Juror
Duden.
Petitioner argues Juror Duden firmly believed she could
not vote for acquittal unless petitioner presented evidence in
his own defense.
The relevant test for determining whether a juror is biased
is "whether the juror[ ] . . . had such fixed opinions that [the
juror] could not judge impartially the guilt of the defendant.
Patton v. Young, 467 U.S. 1025, 1035 (1984) (citing Irvin v. Dowd,
366 U.S. 717, 723 (1961)).
As the Supreme Court explained in
Patton, the question whether a juror is impartial "is plainly one
of historical fact: did a juror swear that he could set aside any
opinion he might hold and decide the case on the evidence, and
should
the
believed."
juror's
protestation
of
impartiality
have
Patton, 467 U.S. at 1036 (citation omitted).
19 - OPINION AND ORDER -
been
Because
a trial court's finding that a juror is impartial is a factual
finding, it is entitled to "special deference."
United States v.
Quintero–Barraza, 78 F.3d 1344, 1350 n. 5 (9th Cir. 1995); see
also Patton, 467 U.S. at 1037 n.12 (whether a juror can in fact
lay aside his opinion and render a verdict based on the evidence
presented in court is a determination to which habeas courts owe
special deference).
At the outset of her questioning by trial counsel, Juror
Duden appeared to believe that a defendant should have to produce
some evidence of innocence.
She agreed with defense counsel's
suggestion, taken from her answer to a juror questionnaire, that
she thought a defendant should be required to produce evidence of
innocence, and also said that she should not find someone not
guilty, if she "couldn't hear from them."
Trans. Vol. 3, p. 69.
Juror Duden was clearly confused about the concept that a
criminal defendant has no obligation to put on evidence. However,
after some explanation from the prosecutor and the trial judge,
Juror Duden unambiguously affirmed that she could follow the
court's instructions if the court told her that a defendant has no
such obligation:
PROSECUTOR: * * *
And what I believe [trial counsel] is trying to
make sure is that you won't hold it against them if they
don't put on any evidence, because unlike us, they don't
have to put on any evidence.
20 - OPINION AND ORDER -
DUDEN:
Right.
PROSECUTOR:
DUDEN:
And you do.
Right.
Okay.
PROSECUTOR: So would you be able to do that; would you
be able to follow the law that Judge Bearden just talked
to you about, and not hold it against them if they don't
put on any evidence?
DUDEN:
Yeah, I would be able to do that.
Trans., Vol. 3, p. 103.
Defense counsel moved to challenge Duden for cause, but the
trial judge denied the challenge.
He explained:
THE COURT: Well. I'll deny your motion. Basically,
when she made that statement [indicating that a
defendant should have to produce evidence], I had
written down the fact that she was only getting a
portion of the perspective of how that works, and her
answer is rather typical to the answers I've heard from
jurors over the years, when they are asked the question
as to whether or not, if the defendant puts on no
evidence at all, would they be able to find the
defendant guilty. Most of them say "no" because they
don't realize that the State has the burden, what burden
is, what elements of the charges are, and the level of
proof, that sort of thing. And until they're told the
law and explained the reason why, their answer is
incomplete, in my estimation. And I think she finally
understood and, given examples, she indicated that, in
fact, quite emphatically by her body language that if
the State didn't prove the case, or missed an element,
and she was asked whether or not she could find the
defendant not guilty, she basically said: How could I
not? Yes.
So I'm satisfied that, given the proper legal
instructions as to what her position is, she will follow
the law. She may be predisposed a little bit one side
or the other, but that's always going to happen. In
fact, she's fairly candid.
21 - OPINION AND ORDER -
Trans., Vol. 3, pp. 115-16.
The trial judge's factual determination that Juror Duden
through her body language and testimony demonstrated she could
fairly and impartially decide the case based on the evidence
presented in court is presumed correct under § 2254(e)(1).
v. Phillips, 455 U.S. 209, 218 (1982).
Smith
Petitioner has not
presented evidence to meet his burden of rebutting the presumption
of correctness by clear and convincing evidence.
Accordingly,
Petitioner is not entitled to habeas corpus relief on the claim
alleged in Ground Three.
IV.
Ground Four:
Denial of Equal Protection
Finally, in Ground Four, Petitioner alleges the trial court
violated his equal protection rights by overruling Petitioner's
challenge under Batson v. Kentucky, 476 U.S. 79 (1986) to the
prosecution's elimination of African Americans from the jury.
Petitioner argues the prosecution did not present an adequate
race-neutral reason for excluding two prospective African-American
jurors.
"[T]he Equal Protection Clause forbids the prosecutor to
challenge potential jurors solely on account of their race or on
the assumption that black jurors as a group will be unable
impartially
to
consider
the
State's
case
against
a
black
defendant." Batson, 476 U.S. at 89; Miller–El v. Dretke, 545 U.S.
22 - OPINION AND ORDER -
231, 238 (2005).
In order to prevail on a Batson claim, a
defendant must first make a prima facie showing that he is a
member of a cognizable racial group and the prosecutor exercised
the
peremptory
challenge
defendant's race.
to
remove
potential
Batson, 476 U.S. at 96–98.
jurors
of
the
This first step is
satisfied merely by producing evidence sufficient to permit the
trial judge to draw an inference that discrimination has occurred.
Johnson v. Finn, 665 F.3d 1063, 1070–71 (9th Cir. 2011).
If the defendant makes such a showing, the burden shifts to
the prosecutor to come forward with a race-neutral explanation for
the challenge.
239.
Batson, 476 U.S. at 96–98; Miller–El, 545 U.S. at
"Although the prosecutor must present a comprehensible
reason, the second step of this process does not demand an
explanation that is persuasive, or even plausible, so long as the
reason is not inherently discriminatory."
Rice v. Collins, 546
U.S. 333, 338 (2006) (internal quotations omitted).
must
then
determine
whether
the
defendant
has
The court
established
purposeful discrimination. Batson, 476 U.S. at 98; Rice, 546 U.S.
at 338; Miller–El, 545 U.S. at 239; Cook v. Lamarque, 593 F.3d
810, 814 (9th Cir. 2010).
Under
this
three-part
test,
the
court
ultimately
must
determine "whether race was a substantial motivating factor - that
is, whether the defendant has shown purposeful discrimination at
23 - OPINION AND ORDER -
Batson's third step."
omitted).
Cook, 593 F.3d at 815 (internal quotations
"'If a prosecutor's proffered reason for striking a
black panelist applies just as well to an otherwise-similar
nonblack who is permitted to serve, that is evidence tending to
prove purposeful discrimination to be considered at Batson's third
step.'"
Cook, 593 F.3d at 815 (quoting Miller–El, 545 U.S. at
241); Kesser v. Cambra, 465 F.3d 351, 360 (9th Cir. 2006).
The
Batson
credibility.
inquiry
turns
largely
on
an
evaluation
of
Felkner v. Jackson, 131 S.Ct. 1305, 1307 (2011).
The best evidence of discriminatory intent often will be the
demeanor of the prosecutor, and the race-neutral reasons for
peremptory challenges often will require the trial court to
evaluate whether the juror's demeanor can credibly be said to have
exhibited the basis for the strike.
472, 477 (2008).
Snyder v. Louisiana, 552 U.S.
In the habeas context, this court defers to the
state court's conclusion that the prosecutor did not engage in
purposeful
discrimination
unless
it
is
an
unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.
Felker, 131 S.Ct. at 1307; Rice, 546
U.S. at 338–39; Miller–El, 545 U.S. at 240; Cook, 593 F.3d at 816
& n. 3; 28 U.S.C. § 2254(d)(2).
The controlling issue is whether
a reasonable jurist could find it was unreasonable for the trial
judge to go the way the trial judge went.
24 - OPINION AND ORDER -
Ben-Sholom v. Ayers,
674 F.3d 1095, 1103 n. 4 (9th Cir. 2012), cert. denied, 133 S.Ct.
850 (2013).
Here, when the prosecutor exercised a peremptory challenge to
excuse the second of two African-Americans from the jury, defense
counsel objected.
The trial judge then correctly, and at some
length outlined the analytical process described above. The judge
asked
defense
discrimination.
counsel
to
make
his
prima
facie
case
of
Defense counsel replied that the parties had
questioned "two black jurors in the 60-plus jurors" that had been
considered to that point.
The first "was Ms. Mangum who was
passed for cause in that case, and was peremptorily removed by the
state." The second was prospective juror Willis. Defense counsel
suggested that there could be no explanation for the state's
peremptory challenge to Mr. Willis "other than this gentleman has
been removed because of his race."
Defense counsel added that
Petitioner "is a black male," who wanted African-American jurors
on the panel.
The trial judge concluded the defense made the requisite
"prima facie showing when all of the African-American jurors were
challenged."
statement."
He then asked the state for its "race-neutral
The prosecutor responded:
PROSECUTOR: We removed [Mr. Willis] because, as
the Court could tell, this man was -- for two reasons.
One, this man was very close to saying that he could
hardly -- in no circumstances believe testimony coming
from Moon, and he struggled just a little less on
25 - OPINION AND ORDER -
Rydman. I mean, he came very close -- I don't know
the bare record is going to reflect the length of
agonizing decision over whether he could ever accept
testimony of a person who is the actual shooter
testified under a plea agreement.
how
his
the
who
Moreover, we removed him because, under the system
that we've been going on here, we've been able to voir
dire the jurors that would take his place. And those
are all preferable.
It was obvious to anybody who
examined the voir dire of the three potential jurors,
including one black juror -- that could have
potentially, you know, come in with the State
challenging him, that they were all better for the State
than he was.
Trans., Vol. K, p. 117.
The trial judge determined the prosecutor had given a raceneutral reason for challenging Willis, and then turned to the
question "as one of fact."
The judge noted that the facts that
the prosecutor "put into the record are facts that I recall from
the voir dire testimony, and I do recall [Willis] struggling with
the problem of believing either of the accomplices." Trans., Vol.
K, p. 118.
The judge stated he could not "find any factual basis
in the record or in the voir dire or any other explanation to
disagree." Id. An African-American woman was subsequently seated
on the jury, first as an alternate, and then as a member of the
panel.
Petitioner does not dispute the trial judge's finding as to
the prosecutor's challenge to potential juror Willis.
Instead,
Petitioner argues the trial court erred in not demanding a race-
26 - OPINION AND ORDER -
neutral explanation from the prosecutor for excluding the first
African-American, Ms. Mangum.
When defense counsel referred to the peremptory challenge
exercised by the prosecution to remove juror Mangum, he did so as
part of his prima facie case of discrimination based on what he
saw as a pattern of state strikes against African-American jurors,
not necessarily because he was objecting to her removal per se.
In any event, even in the absence of an explicit race-neutral
explanation for removal of one juror, the trial judge's decision
that
no
Batson
unreasonable.
violation
occurred
was
not
objectively
See Yee v. Duncan, 463 F.3d 893, 901 (9th Cir.
2006) (where record, including voir dire testimony, suggested a
gender-neutral reason for challenge, the fact that the prosecutor
could not remember and articulate specific race-neutral reasons
for
challenging
juror
was
not
a
per
se
violation
of
equal
protection rights), cert. denied, 552 U.S. 1043 (2007).
Finally, as noted, an African-American woman was ultimately
seated on the jury.
jury
included
Although not dispositive, the fact that the
minorities
may
be
considered
indicative
of
a
nondiscriminatory motive. Turner v. Marshall, 121 F.3d 1248, 1254
(9th Cir. 1997); see also Gonzalez v. Brown, 585 F.3d 1202, 1210
(9th Cir. 2009) (citing Turner for the proposition that the fact
that
African–American
jurors
27 - OPINION AND ORDER -
remained
on
the
panel
"may
be
considered indicative of a nondiscriminatory motive"); see also
United States v. Cruz–Escoto, 476 F.3d 1081, 1090 (9th Cir. 2007)
(considering that the seated jury included two Hispanics who were
not struck by the government and that the government still had
remaining peremptory challenges); Cooperwood v. Cambra, 245 F.3d
1042, 1048 (9th Cir. 2001) (as amended) (considering the final
composition of the jury in determining that the petitioner did not
raise a reasonable inference of racial bias for purposes of
establishing a prima facie showing); Burks v. Borg, 27 F.3d 1424,
1429 (9th Cir. 1994) (explaining that the prosecutor's acceptance
of minorities on the jury is a valid, though not necessarily
dispositive, consideration in determining whether a prosecutor
violated Batson).
The trial judge and the Oregon appellate courts' decision
that
no
Batson
unreasonable.
violation
occurred
was
not
objectively
Accordingly, Petitioner is not entitled to habeas
corpus relief on his equal protection claim alleged in Ground
Four.
/ / / / /
/ / / / /
/ / / / /
/ / / / /
28 - OPINION AND ORDER -
CONCLUSION
For
these
reasons,
the
Court
DENIES
the
First
Amended
Petition for Writ of Habeas Corpus (#17) and DISMISSES this
action.
IT IS SO ORDERED.
DATED this 22nd day of November, 2013.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
29 - OPINION AND ORDER -
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