Dent v. Franke
Filing
123
OPINION AND ORDER: For these reasons, the Court DENIES Petitioner's First Amended Petition for Writ of Habeas Corpus (ECF No. 33) and DISMISSES this action. The Court DENIES a certificate of appealability as Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253 (c) (2). Signed on 5/1/2018 by Judge Anna J. Brown. (kms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
BARRY RICHARD DENT,
Civil No. 2:12-cv-00389-BR
Petitioner,
OPINION AND ORDER
v.
STEVE FRANKE, as Superintendent,
Two Rivers Correctional Institution,
Respondent.
C. RENEE MANES
Assistant Federal Public Defender
101 SW Main Street
Suite 1700
Portland, OR 97204
Attorney for Petitioner
ELLEN F. ROSENBLUM
Attorney General
NICK K. KALLSTROM
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301
Attorneys for Respondent
1 - OPINION AND ORDER -
BROWN, Senior Judge.
Petitioner,
an
inmate
at
the
Two
Rivers
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 for Writ of Habeas Corpus
(ECF No. 33).
BACKGROUND
I.
Summary of Facts
In December 2000, Petitioner purchased a home and property in
Columbia County on contract from the McGilvra Family Trust.
The
property was located about 200 yards from the residence of Laurene
McGilvra, a 73-year-old woman who was the sole surviving trustee.
1
By April 2002, Petitioner became frustrated with the condition of
his home and the property,
and with a pre-existing water rights
agreement that ran with the property.
frustration to Mrs.
McGilvra and to her son,
lived nearby and whose
rights
agreement.
contract,
McGilvra's
Torn McGilvra,
own property benef i tted
Petitioner
and on May 19,
door
Petitioner expressed his
stating
2 0 02,
that
stopped
making
from
the
payments
who
water
on
the
Petitioner taped a note to Mrs.
the
property
was
"incorrectly
contaminated in more ways than one," that he would not clean up
"any poisons or debris on the property," that the property sale
documents were "a mess which was designed to excessively control
1
The McGilvra Family Trust was created by Mrs. McGilvra and
her husband, who was deceased by the time Petitioner purchased the
property.
2 - OPINION AND ORDER -
and/or destroy" him,
and that the people named in the agreement
were "people who are gone and/or DEAD."
p.
The
89.
note
frightened
Mrs.
Resp. Exh. 118, Exh. A at
McGilvra,
who
consulted
her
children, her friends, and her attorney for advice.
On May 21, 2002, Mrs. McGilvra was preparing to leave the next
day for a trip out of the state.
her
that
night.
When
the
Her son, Tom McGilvra, spoke with
friend
who
was
going
to
give
Mrs.
McGilvra a ride to the airport arrived at Mrs. McGilvra's house on
the morning of May 22,
2004,
McGilvra was not home.
the front door was broken and Mrs.
Tom McGilvra went to the home later that
day and found the front door had been kicked in and a pool of blood
in the front yard,
responding
which prompted him to call the police.
officers
discovered
"significant
bloodshed
The
evidence
within the house" suggesting "that some person, after having been
wounded,
had been taken
from the master bedroom of the
house,
through the house and out of the house through the front door."
The officers also found blood on the siding of the house,
yard,
and at the top of the driveway.
in the
The blood matched Mrs.
McGilvra's DNA profile.
The officers were unable to locate Mrs. McGilvra and brought
in two search dogs to track her scent.
the
scent
Petitioner
to
the
refused
edge
of
Petitioner's
permission
continue onto his property.
3 - OPINION AND ORDER -
for
the
Both search dogs tracked
property.
second
When
tracking
asked,
dog
to
On May 24, 2002, police officers obtained a warrant to search
Petitioner's residence.
box spring.
They found a knife between a mattress and
Petitioner stated that he owned the knife.
An Oregon
State Police forensic scientist examined the knife and found blood
on
the
hilt.
When
later
tested,
the
blood on
the
knife
also
matched Mrs. McGilvra's DNA profile.
On the morning of May 25, 2002, Petitioner's house and a shed
burned down.
Officers arrested Petitioner on suspicion of arson,
and during questioning he admitted to starting a fire in his house.
When asked about Mrs. McGilvra,
that she was missing.
Petitioner stated he did not care
When asked whether he did something with her
body, he responded, "I wouldn't say."
On July 15, 2003, Petitioner
pleaded guilty in Columbia County Circuit Court to one count of
Arson, and was sentenced to 60 months of probation.
On February 4,
2004, a citizen found human remains near a logging road in Columbia
County.
Forensic scientists identified the remains as those of
Mrs. McGilvra.
II.
Summary of Proceedings
On February 13,
Petitioner
Murder,
on
five
2004,
counts
a Columbia County grand jury indicted
of
Aggravated
Murder,
one count of Kidnaping in the First Degree,
one
count
of
one count of
Kidnaping in the Second Degree, and two counts of Burglary in the
First Degree.
Resp.
Exh.
104-A.
The trial judge appointed two
attorneys, Joseph Watson and Daniel Woram, to represent Petitioner.
4 - OPINION AND ORDER -
In November 2004, Watson raised concerns with the trial court
as to Petitioner's capacity to assist counsel in his defense.
November 30,
2004,
the trial court conducted a hearing.
On
At the
hearing, Petitioner's attorneys presented the testimony and written
report
of
Norvin
R.
Cooley,
Ph.D.
Dr.
Cooley
opined
that
Petitioner did not meet Oregon statutory criteria establishing his
competency to stand trial.
2
Following the hearing, the trial judge
ordered Petitioner to be evaluated at the Oregon State Hospital
("OSH") as to his capacity to proceed.
Petitioner was admitted to
OSH on December 7, 2004, where he remained until his discharge in
March 2005.
Ph.D.,
Prior to Pe ti ti oner's discharge,
Senior
Clinical
Psychologist,
Ronald A.
prepared
an
Glaus,
evaluation
regarding Petitioner's ability to aid in his defense.
In
second
his
evaluation,
admission
to
OSH.
Dr.
3
Glaus
Pet.
noted
Exh.
A,
this
was
p.
159.
Petitioner's
Dr.
Glaus
interviewed Petition for over an hour, and referred to the charging
documents, OSH chart notes and reports, and the November 9, 2004,
evaluation signed by Dr.
Cooley.
Id.
Dr.
Glaus reported that,
2
Under Or. Rev. Stat. § 161.360(2), "A defendant may be found
incapacitated if, as a result of a qualifying mental disorder, the
defendant is unable:
(a) To understand the nature of the
proceedings against the defendant; or (b) To assist and cooperate
with the counsel of the defendant; or (c) To participate in the
defense of the defendant."
3
Petitioner's first admission was in August 2002, when he was
evaluated for his ability to aid and assist in the defense against
the Arson charges.
5 - OPINION AND ORDER -
when asked, Petitioner understood that the purpose of the interview
was to evaluate Petitioner to determine if he was ready to aid and
assist his lawyers.
Dr.
Id.
Glaus noted that as of the evaluation date,
continued
to
receive
prescription
Risperidone,
and
Pe ti ti oner
had
"shown
stabilization in his mental condition and currently presents with
no signs or symptoms of a mental illness."
Pet. Exh. A, p. 164.
After relating Petitioner's medical and mental health history, and
the results of cognitive testing, Dr. Glaus provided the following
"Mental Health Summary/Conclusions:"
[Petitioner] presented upon examination as focused, goaldirected, and cognitively clear. He did not demonstrate
any signs or symptoms of a formal thought disorder. His
affect was calm and his mood appropriate to the
circumstance.
His intellectual level appeared to be at
least average, if not slightly above average.
His
behavior was purposeful and within normal limits.
Pet. Exh. A, p. 166.
Dr.
Glaus
gave
Petitioner
"Schizophrenia, paranoid type
an
Axis
I
diagnosis
of
(by history only) , " and an Axis II
diagnosis of ''History of diagnosis of a personality disorder, not
otherwise
specified."
Id.
Regarding
Petitioner's
ability
to
assist in his defense, Dr. Glaus stated that Petitioner "showed a
good understanding of the proceedings against him,"
"appear [ ed]
quite able to assist and cooperate with his legal counsel," and
"demonstrated a sound ability to participate in his defense."
Exh.
A,
p.
167.
Dr.
Glaus concluded that
6 - OPINION AND ORDER -
Petitioner's
Pet.
"mental
disease of schizophrenia, paranoid type, by history only, does not
presently
incapacitate
his
basic
understanding
of
the
legal
proceedings against him, the ability to cooperate with counsel, or
the ability to participate in his defense.
the
capacity to
stand trial
and
He presents as having
to maintain the
resiliency to endure the distress of a trial."
psychological
Id.
Dr.
Glaus
recommended that Petitioner " [ f] ollow the directions of medical
authority in the use of psychotropic drugs."
Pet. Exh. A, p. 168.
Following Petitioner's discharge from OSH on March 7,
2005,
the trial judge scheduled an aid-and-assist hearing for May 2005.
On May 4, 2005, however, Attorney Watson moved to withdraw, citing
a breakdown in the attorney-client relationship.
The trial judge
granted the motion, but cautioned Petitioner, "I don't want you to
think that lack of cooperation with future counsel will result in
a similar response from the court."
Tr. 101.
Attorney Woram's continuation as co-counsel,
appointed
Charles
Fryer
as
lead
counsel.
Petitioner agreed to
and the trial judge
On
May
19,
Petitioner formally accepted Fryer as his lead attorney.
2005,
Fryer
then reported to the court that "he was authorized by [Petitioner]
to say that he does not wish to take advantage of his right to
request a hearing on the
[aid and assist]
issue and wishes the
court to make the decision based upon the information the court
has."
Tr. 109.
It is not clear from the record before this Court
7 - OPINION AND ORDER -
what information, other than Dr. Glaus's report,
the trial judge
had before him.
Over the next several months,
several pretrial motions were
litigated, a number of which were argued at an omnibus hearing on
November 30,
2005.
On March 27,
2006,
the trial judge ruled on
several of the motions by letter opinion.
In April
2006,
Petitioner
filed
pro
a
se motion
appointment of a new attorney or to represent himself,
filed
a motion
support
of
detailing
history,
his
regarding
Petitioner's
motion,
Petitioner'
information
Fryer
mental
from
fitness
offered
health
Columbia
an
to
County
Jail
and
the
and Fryer
proceed.
extensive
treatment
for
In
affidavit
diagnosis
personnel,
and
reports of investigators' together with counsels' interactions with
Petitioner.
Fryer concluded that Petitioner was not able to aid
and assist.
Resp. Exh. 123.
denial
he
that
suffered
objection to the motion.
Fryer also noted Petitioner's adamant
from any mental
Id.
On April 6,
illness
2006,
and
strenuous
the trial judge
issued an order finding reason to doubt Petitioner's fitness to
proceed by reason of insanity and ordering Petitioner to OSH for a
competency
evaluation.
Resp.
Exh.
123.
On
April
13,
2006,
Petitioner was re-admitted to OSH.
On June 22, 2006, consulting psychiatrist Gary Field, Ph.D.,
conducted an evaluation of Petitioner's ability to stand trial and
prepared a written report.
Pet. Exh. A, pp. 66-72.
8 - OPINION AND ORDER -
In conducting
his
evaluation,
Dr.
Field
relied
upon
an
ho'ur-plus
clinical
interview with Petitioner, as well as OSH records and reports from
Petitioner's current hospitalization.
Pet. Exh. A, p.
66.
Dr. Field noted that when Petitioner arrived he was not taking
psychotropic medications, and had not been doing so since May 2005.
Pet.
Exh.
A,
p.
67.
Upon
Petitioner's
arrival,
an
Interdisciplinary Treatment Note indicated he "presented with no
signs of mental illness," that he was not a behavior problem on the
ward,
and
thinking,
that
he
but not at
"presented
the
highly
level of a
suspicious
to
paranoid
delusional disorder."
Id.
Other treatment notes indicated that Petitioner "perseverated on
his legal case," but that his "thinking was clear except for his
perseveration and negativity regarding his legal case;"
"presented
as
defensive
and
grandiose"
and
"became
that he
upset
when
others challenged his logic;" that he was "agitated and angry about
his lawyer" and was "often irritable."
Pet. Exh. A, p. 68.
It was
also noted, however, that Petitioner's "thoughts were organized and
goal-directed," that he was "knowledgeable about the legal system,"
his "thinking was clear and well-organized," he "participated in
ward treatment
groups
psychosis was present."
and classes,"
Id.
Dr.
and that
"[n] o
evidence
Field summarized the treatment
notes as follows:
In summary, the clinical record documents no reports of
observable evidence of psychosis during this hospital
admission.
In a May 24, 2006, Treatment Note, the ward
psychiatrist reports a review of [Petitioner's] treatment
9 - OPINION AND ORDER -
of
records and concludes that insufficient evidence was
found to justify a diagnosis of schizophrenia, paranoid
type.
Given the absence of significant signs of
psychosis, the ward psychiatrist concludes [Petitioner]
likely suffers from an Axis II personality disorder only.
Id.
In his Mental Summary and Conclusions,
while
Petitioner
paranoid
Chen,
type,
"raises
mental
was
previously
Petitioner's
questions
disorder."
concluded
that
involving
paranoid,
Pet.
while
diagnosed
current
regarding
Exh.
A,
Dr.
with
treating
the
p.
Field noted that
psychiatrist,
existence
70.
schizophrenia,
Dr.
Petitioner
has
"a
narcissistic,
and
antisocial
of
Dr.
any Axis
Field's
personality
I
review
disorder
features;
the
personality disorder alone may explain his presentation," and that
Petitioner
"has been off psychotropic medications for more than a
year without presentation of psychotic symptoms."
further
noted
that
while
suspiciousness of others,
Petitioner
has
Id.
shown
Dr. Field
"consistent
a demandingness that his needs be met
immediately, denigration of others by attitude and statements, and
defensiveness if challenged," he has not
"presented evidence of
psychosis" during the course of his hospitalization."
Dr.
unclear."
Field
stated that
Petitioner's
Pet. Exh. A, p. 71.
Id.
diagnostic picture
While Petitioner "has some history
that would suggest schizophrenia .
. his presentation over the
past several months (or years) argues against that diagnosis."
Dr. Field explained the existence of two prominent hypotheses:
10 - OPINION AND ORDER -
"is
Id.
The first is that [Petitioner] has an Axis I mental
illness (along with his personality disorder) that is in
current remission.
The second hypothesis is that
[ Petitioner's] personality disorder stands alone, and
that he may become psychotic in certain prolonged
stressful situations.
The prevailing evidence (i.e.
recent functioning without psychotropic medications)
currently favors this second possibility.
Certainly
[Petitioner's] personality characteristics of paranoia
and narcissism dominate his clinical picture.
It is
likely with stress his paranoia and narcissism rise to a
level of meeting criteria for delusional disorder,
persecutory type.
Id.
Ultimately, Dr. Field rendered the following diagnosis:
Axis I
Delusional disorder,
persecutory
remission
Rule out schizophrenia,
paranoid
type, in remission
type, in
Axis II
Paranoid
personality
disorder with
narcissistic and antisocial features.
Id.
Regarding Petitioner's ability to assist in his defense, Dr.
Field
stated
understanding
that
the
Petitioner
proceedings
"appears
against
currently
him,"
capable
"appears
of
currently
capable of assisting and cooperating with a legal counsel as a
technical advisor," and "appears currently capable of participating
in his defense."
Pet. Exh. A, pp. 71-72.
Dr. Field concluded:
[Petitioner's] mental disease of delusional disorder,
persecutory type,
in remission, does not presently
incapacitate his basic understanding of the legal
proceedings against him, the ability to cooperate with
counsel, or the ability to participate in his defense.
He presents as having the capacity to stand trial and to
maintain the psychological resiliency to endure the
distress of a trial.
Id.
Petitioner was release from OSH on June 28, 2006.
11 - OPINION AND ORDER -
On July 3, 2006,
the trial court held a competency hearing.
Although the trial judge had before him Dr. Field's report, neither
the prosecutor nor Petitioner's counsel offered any other evidence.
The trial court concluded that,
"Given the report of Dr.
Field I
believe this court has no option but to find that [Petitioner] is
able to aid and assist in his defense in this matter and will so
find."
Tr. 197.
Having found Petitioner able to aid and assist in his defense,
the trial court turned to the matter of Petitioner's motion for
removal
of
(spanning
counsel.
over
In an
twenty
extensive
pages
of
colloquy with
transcript),
the
Petitioner
trial
judge
discussed Petitioner's dissatisfaction with his attorneys and his
intent to represent himself.
In particular, Petitioner explained
that he was unhappy about the delay in bringing the case to trial
and about the challenges to his mental health.
that
his
attorneys
had
not
followed
He was also unhappy
through
in
investigating
witnesses and issues he deemed important to his defense.
17.
Petitioner told the court:
"It's my right to represent and
defend myself and that is what I must do.
is
winnable."
Tr.
217.
Tr. 201-
Petitioner
I am competent, my case
also
noted
that
he
had
successfully worked with attorneys in the past and acknowledged
that he may need a "legal advisor" to help him "with the protocol
in the court."
Tr. 219.
12 - OPINION AND ORDER -
After hearing Petitioner's concerns, the trial judge cautioned
Petitioner against representing himself:
You've indicated that you wish to represent yourself,
which seems to me to be a huge mistake. Obviously there
is no more difficult technical type of legal proceeding
that is held in the state Circuit Court than a capital
Murder case, and as you've identified, understandably ybu
have no legal training and even if you did have legal
training it would seem to me that as the defendant you
may not have the objectivity to do an appropriate defense
of the case.
And so I guess I cannot state anymore strongly-it seems
to me to be an absolute mistake if not a disaster for you
to attempt to defend yourself.
But you are also
competent, as has been determined by the state hospital
and this court, to make decisions good and bad and so if
you wish to be represented in this matter, which I would
recommend, then you will have to work with Mr. Fryer and
Mr. Woram.
And in the event that you decide to represent yourself I
would not be appointing different counsel for purposes of
giving you advice.
You would still be required to rely
on Mr. Fryer and Mr. Woram for your legal assistance in
the event that you were to decide to try the case.
Tr.
230.
Following this warning,
would not work with
Fryer or Woram,
rights to defend myself.
saying."
Tr.
231.
Petitioner explained that
stating:
he
"I do assert my
I realize-I know all the things you're
He further explained,
heavy responsibility put on me."
"I do understand the
Tr. 232.
The trial court presented Petitioner with a waiver-of-attorney
form.
Resp.
benefits
Exh.
125.
Petitioner
would
The
form explained in some detail
forego
by
representing
himself,
the
and
required Petitioner to acknowledge each of those benefits would be
lost.
Id.
On the form,
Petitioner indicated that he had "16+"
13 - OPINION AND ORDER -
years of education; that he had been represented by an attorney in
a criminal proceeding in the past; that he understood his rights;
and that he understood the disadvantages to self-representation.
Petitioner inquired of the judge whether he could amend the
Id.
form by interlineation to specify that any appointed legal advisor
would be appointed "only for protocol."
p. 1.
to
Tr. 233; Resp. Exh. 125,
The court then engaged in further colloquy with Petitioner
confirm that
Petitioner would be
selection,
receive discovery,
product."
Tr.
236-38,
256.
and
permitted to
receive
his
conduct
attorneys'
jury
"work
The trial judge ultimately accepted
Petitioner's Waiver of Attorney form:
I'm going to allow you to waive your right to counsel.
I am going to continue Mr. Fryer and Mr. Woram as counsel
to provide you with advice in this case and I'm going to
instruct them to be present throughout the course of the
trial to provide you that assistance.
It's up to you to choose whether you utilize them or not.
I would urge that you do so.
Tr. 241.
Four days later,
at a further hearing on July 7,
2006,
trial judge re-visited the matter of self-representation:
[B]efore we continue today I just wanted to make sure
that it is still your intention to represent yourself in
this matter. You've had a few days to give some thought
to it.
Obviously you've received a fair amount of
materials.
I don't know whether or not you've had any
change of heart, realizing the grave responsibility that
you are taking on.
And I don't believe that I have any additional words that
I can offer that would express my concern about the
decision that you've made to represent yourself and the
14 - OPINION AND ORDER -
the
seriousness of this matter and the general, almost I
would say universal belief that representing one's self
is an absolute mistake, and that -- and feel the need
just to once again reiterate that before we proceed
further and insure that it is still your desire to
represent yourself given the court's indication that it
would not disqualify or remove your attorneys from this
case that have been appointed.
So ... , is it still your intention to represent yourself?
Tr.
259-60.
Petitioner
represent himself,
quite often [.] "
confirmed
explaining,
Tr.
260.
that
he
still
intended
to
"I give it serious consideration
The court again accepted Petitioner's
waiver, and explained that the appointment of Fryer and Woram would
continue such that "[t]hey are available to you at anytime in this
case."
Tr. 260-61.
Jury selection took place from July 18, 2006, through July 26,
2006.
Petitioner questioned prospective jurors,
including as to
the degree of knowledge they had about the case, their knowledge of
and/or relationship to persons involved the case, and whether they
would give additional weight to the testimony of police officers.
Petitioner argued bases to exclude several jurors,
and exercised
his peremptory challenges.
On August
began.
1,
2006,
the
guilt
phase
of
Petitioner's
Petitioner gave a brief opening statement.
Throughout
witnesses,
the
trial,
and was
he
cross-examined
often able
statements made by witnesses,
discovery.
See,
e.g.,
Tr.
to bring
prior
359-60.
prosecution's
inconsistent
often at particular pages of the
598-601;
15 - OPINION AND ORDER -
out
the
Tr.
trial
1075.
Petitioner elicited
testimony that he was a person with no prior history of violence.
See, e.g., Tr. 743-44; 788; 836-37; 910; 1035.
Petitioner elicited
testimony portraying the
McGil vra' s
containing
no
overt
See,
property sale.
note
threats
e.g.,
left
other
Tr.
on Mrs.
than
540,
door
dissatisfaction
678,
3199-20.
as
over
a
Petitioner
pointed out other potential suspects, such as previous renters Ms.
McGilvra had evicted from the property,
Tom,
who
assistance
issued
owed money
of his
several
to
the
attorneys
subpoenas
trust.
and
and
Tr.
their
called
or Mrs.
486,
McGilvra's son,
629.
investigator,
several
With
the
Petitioner
witnesses
in
his
defense.
On September 7, 2006, the parties rested in the guilt phase.
Prior to closing argument, the trial court directed the parties to
return all of the written jury questionnaires they had received
before voir dire.
Petitioner gave a lengthy closing argument, at
the conclusion of which he pulled out a jury questionnaire for one
of the alternate jurors, and stated, "I will say there's been one
juror who has been openly chummy
basically as far as I'm concerned he's
not me or unbiased jury."
Tr. 4545.
with the prosecutor and
. with the prosecutor,
Outside the presence of the
jury, the Court admonished Petitioner:
Okay.
Before we bring the jury in I want to address a
matter that occurred at the end of the day yesterday and
that occurred, Mr. Dent, in our closing argument.
When you, in my opinion, issued a veiled -- thinly veiled
threat to .
. an alternate juror .
16 - OPINION AND ORDER -
This court had specifically instructed you . . . that you
were to return to me all of the jury questionnaires.
I
advised you after looking at them that one was missing
and told you that it needed to be provided to me as soon
as you could find it.
My observation was that you
intentionally violated that court order and that you had
predetermined
that
you
were
going
to
use
that
inappropriately to threaten an alternate juror in this
case.
For that act I am going to find you in summary .
. contempt of court.
Tr. 4548-49. 4
After the jury returned a unanimous verdict of guilty on all
counts
and had been
phase,
the trial judge re-appointed Fryer and Woram to represent
Petitioner.
excused until
commencement
of
the
penalty
The judge explained his reasoning for re-appointment
first as the very technical,
legal oriented nature of a penalty
phase proceeding and, second, due to Petitioner's failure to follow
the court's direction and his act in directly defying an order of
the court.
The
Tr. 4657-58.
trial
judge
initially
set
the
Petitioner's trial to start in early October.
2 0 0 6,
hearing,
the
judge
reiterated
his
penalty
phase
of
At a September 22,
reasons
for
revoking
Petitioner's self-representation, i.e., the technical nature of the
penalty phase
order.
Tr.
Petitioner
and
4677.
had
an
Petitioner's
direct
defiance
of
the
court's
Petitioner's attorney argued to the Court that
"absolute
6th
Amendment
right
to
represent
himself and cannot be forced to accept counsel" under Faretta v.
4
Petitioner attempted to interrupt the trial judge throughout
this statement.
17 - OPINION AND ORDER -
422 U.S.
California,
806
(1975).
Counsel also argued that "if a
defendant's competent to stand trial then he is competent to decide
to represent himself and to do so" under Godinez v. Moran, 509 U.S.
389
(1993).
Tr.
4683.
Following another lengthy colloquy,
the
trial judge denied a request to appoint new counsel to represent
Petitioner at the penalty phase and refused to allow Petitioner to
continue representing himself.
that
it
had
"no
[Petitioner]
is
reason at
legally
Although the trial court concluded
this
point
incompetent,"
in time
he
to believe
nevertheless
that
·found
Petitioner forfeited his right to represent himself because of his
failure
to
follow
court
orders.
Tr.
4688-92.
Petitioner's
attorney then filed a motion for further hearing on Petitioner's
competency to proceed.
On October 10,
assist hearing.
testify
as
to
Tr. 4699.
2006,
the trial court conducted an aid-and-
Petitioner's counsel called Dr. Norvin Cooley to
Pe ti ti oner's
competency
to
proceed.
Petitioner
became repeatedly disruptive during Dr. Cooley's testimony,
and,
eventually, the trial judge removed Petitioner from the courtroom
to observe the proceedings via a closed-circuit television.
Tr.
4740-43.
his
Based upon his prior examinations of Petitioner,
review of Petitioner's prior mental health history, his review of
transcripts of the testimony and arguments during the guilt phase,
and his observation of Petitioner in court that morning, Dr. Cooley
18 - OPINION AND ORDER -
testified that Petitioner did not qualify under Oregon law as a
defendant who is competent to proceed.
Tr. 4756.
At the conclusion of the hearing,
the trial judge stated as
follows:
I would note that during the course of the trial that
[Petitioner] was difficult to deal with, that the court
had to admonish him on numerous occasions for his
behaviors. That he continued to object consistently and
strongly to any suggestion that his mental health was in
anyway compromised.
But [Pe ti ti oner] was ultimately able to conform his
behavior, at least up until the point in time in the
closing argument where the court found him in contempt.
It's my position that at that time it was a conscious
choice of his, obviously, by my finding of contempt, that
he made the decision not to return to the court the juror
questionnaire that he held out and commented on in his
closing arguments.
[Petitioner] appeared today in court differently, I would
find, than he has during the trial. That there was much
more of a twitching,
a nervousness about him,
an
inability for him to sit still.
That despite repeated
cautions from the court he continued to speak when
instructed not to do so.
Tr. 4796-97.
The trial judge went on to note Petitioner's removal
from the courtroom and his subsequent actions, and concluded:
It appears to me that as of today [Petitioner] is unable
to conform his behavior in spite of the court's
admonishment and I'm concerned enough about his current
mental health that I do not believe that we can proceed
and so I'm going to order that [Petitioner] be returned
to the state hospital for further evaluation and
determination as to his ability to proceed further.
Tr. 4798-99.
On October 17, 2006, Petitioner was once again admitted to the
Oregon State Hospital.
On November
19 - OPINION AND ORDER -
7,
2006,
Meroujan Maljian,
M.D., Forensic Psychiatric Fellow, conducted a two hour and fifteen
minute interview with Petitioner.
Scott Reichlin, M.D.,
Director
of Forensic Evaluation Services,
and Rochelle Frehling,
Psy. D.,
were also present.
On November 16, 2006, Ors. Maljian and Reichlin
prepared an Evaluation Report on Petitioner.
Resp. Exh. 139.
As to Petitioner's past psychiatric history, the Report noted
that while Petitioner had been diagnosed with schizophrenia back in
2002,
this
diagnosis
"has
since
come
under
question
since
[Petitioner] has not shown any overt psychotic symptoms for years
and has not been taking any psychiatric medications for over one
year now."
Pet. Exh. A, p. 14.
As to Petitioner's mental status,
the Report observed that:
He
was
cooperative
with
the
evaluation
process,
displaying a sarcastic attitude.
He was verbose and
answered most questions with extra information and
opinionated commentaries. Otherwise, his speech was not
pressured and had normal volume, rate, rhythm, and
character.
His thought process was somewhat tangential
in that he tended to go off topic if allowed to speak at
length. He perseverated on themes of how he is being set
up by the police and the incompetence of all his previous
attorneys.
His thought content was highly cynical,
sarcastic, and suspicious when it came to his legal
situation.
He had numerous ideas of how the Columbia
County legal system is entirely corrupt, from the police
to the judges to the lawyers, and how they are all trying
to set him up.
Pet. Exh. A,
some
of
p.
16.
The Report noted a "mild paranoid flavor to
[ Petitioner's]
thoughts
regarding
the
police
and
his
lawyers," but concluded that "if it is indeed a misrepresentation
of
reality,
such
seems
more
20 - OPINION AND ORDER -
consistent
with
a
paranoid
personality."
Pet.
that,
Petitioner
because
Exh.
A,
p.
had
Moreover,
16.
been
found
the report noted
guilty
of
Aggravated
Mur~er,
he had ''rational reasons to be hostile towards the legal
system,
and this makes
it
harder
comments represent delusions."
to determine
if his
negative
Pet. Exh. A, p. 18.
Drs. Maljian and Reichlin gave Petitioner an Axis I diagnosis
of "Delusional disorder,
persecutory type,
Axis
"Personality
II
diagnosis
specified."
Pet.
of
Exh.
A,
p.
1 7.
provisional," and an
disorder,
Petitioner
not
otherwise
demonstrated
an
extensive understanding of the nature of the proceedings against
him, including the potential sentences he faced, the definition of
guilty except for insanity and the consequences of such a verdict,
and
the
basic
nature
of
criminal
proceedings.
Regarding
his
outburst at the October 10, 2006, hearing, Petitioner indicated he
understood that his loss of control was not productive, and that he
understood
"intellectually"
that
his
behavior
was
likely
responsible for him being found unable to aid and assist.
Exh. A, p. 19.
Pet.
He stated that he understood that if he misbehaved
in court in the future that he could be ejected from the court.
Pet. Exh. A, p. 19.
As to Petitioner's ability to aid and assist, the Evaluation
Report concluded as follows:
It is my opinion that [Petitioner's] mental disease and
mental defect related to delusional disorder, persecutory
type, provision, does not affect his capacity to stand
trial at this time.
[Petitioner] has demonstrated a
21 - OPINION AND ORDER -
basic understanding of the legal proceedings against him,
and he has shown an ability to work with counsel, and has
demonstrated an ability to participate in his own
defense.
It is noted that [Petitioner] has not been
cooperative with his attorneys to date, but this does not
mean he does not have the ability to work with counsel.
[Petitioner] demonstrated that he understands proper
courtroom behavior and the need to come to an agreement
with his attorney.
His mental disease is not severe
enough to render him incapable of cooperating with his
counsel.
It will be up to Petitioner if he chooses to
cooperate with counsel for his defense.
Petitioner's
current presentation is consistent with a capacity to
stand trial.
Pet. Exh. A, pp. 19-20.
Petitioner was released from OSH, and on January 23, 2007, the
trial judge conducted another hearing.
Counsel called Petitioner
to
to
the
stand,
but
Petitioner
refused
answer
questions
and
ultimately became so disruptive that the judge had him removed from
the
courtroom
television.
to
Tr.
observe
4851-54.
the
proceeding
Counsel
via
closed
circuit
submitted extensive written
evidence of Petitioner's mental state, and called as witnesses a
jail guard and Dr. Cooley.
The guard testified that Petitioner's
behavior over the past month was not consistent with his behavior
during trial, and that he had deteriorated mentally.
Tr. 4887-93.
Dr. Cooley presented extensive testimony, and again concluded that
Petitioner was not able to aid and assist in his defense.
Tr.
4913.
At
the
conclusion
of
the
hearing,
Petitioner competent to proceed.
length the conclusions of Dr.
22 - OPINION AND ORDER -
the
trial
judge
found
The judge first reviewed at some
Field's report which was prepared
just prior to commencement of the guilty phase of Petitioner's
trial,
noting that the doctor recognized that while Petitioner's
condition
could
worsen
concluded
Petitioner
with
had
the
the
stress
"capacity
of
to
trial,
stand
Dr.
trial
Field
and
to
maintain the psychological resiliency to endure the distress of
trial."
Tr. 4930.
The judge then turned to his own observations
of Petitioner over the course of the trial:
The court had an opportunity to observe [Petitioner] on
a daily basis during the course of trial and while his
strategies were certainly questionable he did seem to
have a consistent approach in attempting to raise those
ongoing
themes
of
corruption
and
conspiracy
and
consistently maintained his innocence throughout the
proceeding.
Tr.
4931.
The trial
judge noted that as
trial went on and as
Petitioner grew frustrated in his ability to present evidence that
he "became more combative with the court and more cynical in his
manner of dealing with the court, witnesses, and others associated
with the trial."
to
regularly
detriment,
call
Tr. 4 931.
Moreover, al though Pe ti ti oner seemed
witnesses
whose
testimony was
likely to
his
the judge noted that "once again there seemed to be a
consistent and thought out approach to this line of examination of
witnesses."
Tr. 4931.
On the issue of Petitioner's retention of
the jury questionnaire, the judge found that Petitioner's conduct
indicated "a deliberate deceptiveness on [Petitioner's] behalf" and'
"the court would also attribute a calculated approach and process
in other dealings with the court when [Petitioner] would frequently
23 - OPINION AND ORDER -
ignore or openly flout the direct instruction of the court."
Tr.
4932.
Finally, the trial court reviewed Ors. Maljian and Reichlin's
November 16, 2006, report at some length, as well as Petitioner's
bizarre statements before the Court before he was removed from the
hearing. The trial judge concluded Petitioner was competent to aid
and
assist
in
his
defense,
but
denied
Pe ti ti oner's
continued
request to represent himself at the penalty phase of the trial.
The judge explained his conclusion as follows:
The two seeming conclusions that the court can reach is
that the bizarre statements [Petitioner] makes from time
to time are either an indication of his being delusional
or are an attempt by [Petitioner] to further interfere
with and inconvenience the court as a result of his anger
over the outcome of the guilt phase of the case.
My determination is that the more likely explanation is
that [Petitioner] is intentionally attempting to create
difficulty given his dissatisfaction with the court's
determination that he is not appropriate to represent
himself in the penalty phase of this proceeding, given
the court's observation of [Petitioner] in the guilt
phase of the proceeding that he repeatedly refused to
conform his behavior to the court's instruction, that he
was deliberately dishonest with the court and in the
process of being dishonest with the court used a document
for the purposes of attempting to intimidate and threaten
a juror, and further, that [Petitioner], in this court's
opinion, does not fully appreciate the nature of a
penalty phase of trial, al though it did appear, while
misguided, he was familiar with the process of the guilt
phase of the trial.
Tr. 4936-37.
On January 24, 2007, the penalty phase of Petitioner's trial
began.
At the conclusion, the jury declined to impose the death
24 - OPINION AND ORDER -
penalty.
life
Tr.
5584.
imprisonment
The trial judge then imposed a sentence of
without
the
Aggravated Murder conviction,
possibility
of
and consecutive
kidnaping and burglary convictions.
parole
on
sentences
the
on
the
Resp. Exh. 101.
Petitioner filed a direct appeal, asserting eight assignments
of error.
Resp. Exh. 105.
Among his claims of error, Petitioner
asserted the trial court erred by accepting Petitioner's waiver of
counsel,
by denying
Pe ti ti oner's motion to
remove
a
particular
juror, and by failing to sua sponte conduct a competency hearing
during the guilt phase of Petitioner's trial.
I-iii.
The Oregon Court of Appeals affirmed without opinion, and
the Oregon Supreme Court denied review.
App.
Resp. Exh. 105, pp.
297,
225 P.3d 152,
rev.
denied,
State v.
348 Or.
621,
Dent,
233 Or.
237
P.3d 221
(2010) .
Petitioner then sought state post-conviction relief ( "PCR") .
Following an evidentiary hearing, the state PCR trial court denied
relief.
Resp.
Exhs.
111,
151).
The
Oregon
ultimately dismissed Petitioner's appeal.
Court
of Appeals
Resp. Exh. 154.
Petitioner then filed his petition for habeas corpus relief in
this Court.
The Court appointed counsel,
who filed an Amended
Petition for Writ of Habeas Corpus alleging nine claims for relief:
First Claim for Relief:
Trial While Incompetent
Second Claim for Relief:
Failure to Obtain a Knowing,
Voluntary and Intelligent Waiver of the Sixth Amendment
Right to the Assistance of Counsel
25 - OPINION AND ORDER -
Third Claim for Relief:
Deprivation of the Sixth
Amendment Right to a Trial Before a Fair and Impartial
Jury
Fourth Claim for
Actual Innocence
Relief:
Insufficient
Evidence
and
Fifth Claim for Relief:
Deprivation of the Sixth
Amendment Right to Self-Representation at the Penalty
Phase
Sixth Claim for Relief:
Cruel and Unusual Punishment
Seventh Claim for Relief:
Eighth Claim for
Appellate Counsel
Cumulative Error
Relief:
Ineffective
Assistance
of
Ninth Claim for Relief:
Deprivation of the Right to
Effective Assistance of Post-Conviction Counsel
In his initial Brief in Support of Amended Petition for Writ
of Habeas Corpus, Petitioner presented argument on the first three
claims
for
relief
and
"preserve [d]
remaining claims in the petition [.]"
his
right
to
pursue
the
Respondent countered that
Petitioner is not entitled to relief on the merits of his first two
claims as the state court's decisions are entitled to deference,
and that Petitioner procedurally defaulted his third claim, which
was, in any event, without merit.
After several rounds of briefing on the first three claims,
Petitioner in a "Sur-Response to Sur-Reply" presented argument on
the fourth claim, that Petitioner is actually innocent because if
all appropriate evidence had been presented,
no reasonable jury
would have convicted Petitioner of Aggravated Murder but instead
would have found him guilty but insane under Oregon law.
26 - OPINION AND ORDER -
Upon
being granted leave to address Petitioner's newly raised issue,
Respondent
argued
Petitioner
failed
to
demonstrate
that
he
is
actually innocent.
DISCUSSION
I.
Relief on the Merits - Grounds One, Two, and Three
A.
Legal Standards
A district court may not grant a petition challenging a state
conviction or sentence on the basis of a claim that was reviewed on
the merits in state court unless the state court's adjudication of
the claim:
involved
"(l)
an
Federal
or
unreasonable
law,
States;
resulted in a decision that was contrary to,
as
( 2)
application
determined by the
resulted
in
a
of,
clearly
Supreme Court
decision
that
was
or
established
of
the
based
United
on
an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding."
28
u.s.c.
The
of
law and to mixed
first
prong applies
both to questions
§
2254(d).
questions of law and fact, Williams v. Taylor, 529 U.S. 362, 407-09
(2000),
while
the
second
factual determinations,
prong
applies
Miller-El v.
to
decisions
Cockrell,
537 U.S.
based
322,
on
340
(2003) .
A
state
court
decision
is
"contrary
to"
Supreme
Court
authority only if "the state court arrives at a conclusion opposite
to that reached by [the Supreme] Court on a question of law or if
the state court decides a case differently than [the Supreme] Court
27 - OPINION AND ORDER -
has on a set of materially indistinguishable facts."
Williams, 529
U.S.
"unreasonable
at
412-13.
A state
court
decision
is
an
application of" Supreme Court authority if it correctly identifies
the governing legal principle from the Supreme Court's decisions
but
"unreasonably
prisoner's case."
applies
that
Id. at 413.
principle
to
the
facts
of
the
The federal court on habeas review
may not issue the writ "simply because that court concludes in its
independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly."
at 411.
Id.
Rather, the application must be "objectively unreasonable"
to support granting the writ.
Id. at 409.
Under Section 2254 ( d) ( 2) , a state court decision "based on a
factual determination will not be overturned on factual grounds
unless objectively unreasonable in light of the evidence presented
in the state-court proceeding."
also Torres v.
conducting
correctness
its
of
Prunty,
223 F.3d 1103,
analysis,
the
Miller-El,
the
state
1107
federal
court's
537 U.S.
at 340;
see
(9th Cir.
2000).
In
presume
the
court
factual
must
findings,
and
the
petitioner bears the burden of rebutting that presumption by clear
and convincing evidence.
28 U.S.C.
§
2254 (e) (1).
Where the highest state court's adjudication on the merits of
a claim is not accompanied by an explanation,
the United States
Supreme Court recently stated:
[T] he federal court should "look through" the unexplained
decision to the last related state-court decision that
28 - OPINION AND ORDER -
does provide a relevant rationale.
It should then
presume that the unexplained decision adopted the same
reasoning.
Wilson v.
Sellers,
138 S.
Ct.
1188,
1192
(2018).
In this case,
because the Oregon Court of Appeals affirmed without opinion and
the Oregon Supreme Court denied review,
the Court looks to the
decisions of the state trial court.
B.
Analysis
1.
First Claim for Relief - Trial While Incompetent
In his First Claim for Relief, Petitioner alleges he was
deprived of his right to Due Process under the Fourteenth Amendment
because the trial court failed to conduct a sua sponte hearing on
incompetency
when
it
became
clear
that
Petitioner
was
decompensating during the guilt phase.
"A criminal
competent."
defendant may
Godinez v.
Moran,
not
509 U.S.
be
tried unless
389,
366
he
(1993).
is
The
standard for competence to stand trial is whether the defendant
"has sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding" and has a "rational as
well as
Dusky
v.
factual
United
understanding of the proceedings
States,
362
U.S.
402
(1960)
against
(per
him."
curiam) .
"Requiring that a criminal defendant be competent has a modest aim:
It
seeks to ensure that
he has
the
proceedings and to assist counsel."
29 - OPINION AND ORDER -
capacity to understand the
Godinez, 509 U.S. at 402.
When the evidence before the trial court raises a bona
fide doubt as to a defendant's competence to stand trial, the judge
on his
own motion must
conduct a
Robinson, 383 U.S. 375, 385 (1966).
doubt is
competency hearing.
"The test for such a bona fide
'whether a reasonable judge,
court
judge whose failure
being
reviewed,
situated as was the trial
to conduct an evidentiary hearing is
have
experienced
competency to stand trial.'"
Maxwell v.
(2010)
should
Pate v.
doubt
Roe,
with
respect
606 F.3d 561,
to
568
(quoting de Kaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir.
197 6)) .
"' [E] vidence of a defendant's irrational behavior,
his
demeanor at trial, and any prior medical opinion on competence to
stand trial are all relevant in determining whether further inquiry
is required,' and 'one of these factors standing alone may, in some
circumstances, be sufficient.'"
Maxwell,
606 F.3d at 568 (quoting
Drope, 420 U.S. at 180).
"The state trial and appellate courts' findings that the
evidence
did
not
require
a
competency
hearing
under
Pate
are
findings of fact to which [this Court] must defer unless they are
'unreasonable'
within
Davis v. Woodford,
(quoting Torres,
the
meaning
384 F.3d 628, 644
of
28
U.S.C.
§
2254(d) (2) ."
(9th Cir. 2004)
(as amended)
223 F.3d at 1105); see also Thompson v. Keohane,
516 U.S. 99, 108-10 (1995)
(noting that a competency determination
is a "factual issue" that "shall be presumed to be correct," and
explaining that "[t]his Court has reasoned that a trial court is
30 - OPINION AND ORDER -
better
positioned
to
make
decisions
of
this
genre,
and
has
therefore accorded the judgment of the jurist-observer 'presumptive
weight'")
As an initial matter, the Court notes that in arguing the
trial
court
unreasonably concluded
stand trial,
Petitioner was
to
Petitioner relies not only on the record before the
trial court, but on several records that were not.
submitted
competent
several
OSH
records
in
addition
evaluations that the trial judge relied upon,
to
Petitioner has
the
competency
as well as mental
health records submitted by the Oregon Department of Corrections
("DOC") which were created after Petitioner's trial had concluded. 5
As
noted,
findings,
however,
in
evaluating
a
trial
court's
competency
a federal habeas court must consider whether the trial
court's findings were reasonable (and thus entitled to deference)
5
Petitioner initially submitted the ODOC records in connection
with this Court's previous rulings on issues of Petitioner's
competency to represent himself and otherwise proceed in this
action.
Petitioner filed his initial Petition in this Court pro
se.
The Court appointed counsel to represent Petitioner pursuant
18 U.S.C. § 3006A(a) (2) (B). Petitioner subsequently moved to have
counsel withdraw and to proceed pro se, but the Court denied his
request by Opinion (ECF No. 58), based upon Petitioner's current
mental condition and because the right of self-representation under
Faretta does not extend to post-trial collateral challenges to a
conviction or sentence.
See Martinez v.
Court of Appeal of
California, 528 U.S. 152 (2000) (right of self-representation does
not extend to post-trial proceedings such a direct appeal); Wiseman
v. Beard, 629 F.Supp.2d 488, 489 (E.D. Pa. 2009) (indigent inmate
seeking to vacate or set aside conviction under 28 U.S.C. § 2254
does not have a constitutional right to self-representation).
31 - OPINION AND ORDER -
in light_ of the evidence presented during the course of the statecourt proceedings.
28
u.s.c.
§
that
to
Petitioner argues
2254(d) (2).
the
extent
that
his
failure
to
present the evidence in question to the trial court would operate
as a procedural bar, any such bar should be excused under a "cause
and prejudice" standard,
citing Murray v.
Carrier,
(1986), and other cases.
These cases, however, do not purport to
477 U.S.
478
carve out an exception to§ 2254(d) that permits a federal habeas
court to consider evidence not presented to the state court.
such,
the
Court
does
not
consider
the
additional
OSH
and
6
As
DOC
records that were not before the trial court.
The trial court conducted a hearing and found Petitioner
competent
began.
to proceed a
little over two weeks
The trial court relied upon Dr.
approximately
two
weeks
before
the
Petitioner was competent to proceed.
before voir dire
Field's report prepared
hearing,
which
concluded
Petitioner argues the trial
judge's reliance on Dr. Field's report was tainted by misconduct by
state actors.
Petitioner relies upon a statement made by an OSH
social worker in a document entitled "Psychosocial History" which
6
Murray, and the other cases cited, discuss "cause and
prejudice" to excuse the procedural default of a claim, i.e., to
allow a federal habeas court to consider a claim that was not
adjudicated on the merits in state court.
Here, there is no
default to excuse; Petitioner's competency was placed at issue at
least three times over the course of the trial court proceedings,
and on direct appeal Petitioner argued he was not competent at his
trial under Dusky and that the trial court erred in not holding
another competency hearing under Pate to make that determination.
32 - OPINION AND ORDER -
was completed before Dr. Field performed his evaluation. 7
the
social
worker
described
the
anticipated
manner
In it,
in
which
Petitioner would eventually be discharged from the hospital:
The discharge plan is for the patient to return to jail
to continue with his legal process. As this is the third
time this person is coming into the hospital and the
second time on the Murder charges, it is hoped that the
third time will be the charm in terms of the court
accepting an explanation from this hospital that will be
suitable with regards to the patient's mental status so
that the mental status will not be a barrier to
continuing with the patient's legal process.
Pet.
Exh.
1,
p.
76.
According to Petitioner,
this statement is
evidence of an ulterior motive on the part of Dr. Field and other
OSH doctors to find Petitioner competent on improper bases.
The Court disagrees.
Even if this Court may consider the
social worker's statement
(which was not before the trial court),
that statement amounts to no more than an opinion that the trial
judge was perhaps being overly cautious given that the hospital had
twice previously found Petitioner competent.
Nonetheless, there is
not any evidence that Dr. Field, or any other of the professionals
at OSH who found Petitioner to be competent, altered a professional
7
The Court notes that it does not appear this statement was
ever before the trial judge, who stated at the competency hearing
that he did not have OSH' s "internal records, " and instead "the
only thing I have is the report that was prepared by Dr. Field[.]"
Tr. 284. As discussed more above, if the trial judge did not have
this evidence before him, it cannot properly be considered by this
Court in determining the reasonableness of the trial court's
finding of competency.
See 2 8 U.S. C. § 22 54 ( d) ( 2) ; Cullen v.
Pinholster, 563 U.S. 170, 131 S. Ct. 1388, 1398-99 (2011).
33 - OPINION AND ORDER -
opinion
as
to
Petitioner's
competency
based
upon
the
social
worker's comment.
Petitioner also argues that, even if the trial judge was
entitled to rely upon Dr.
Field's report to authorize trial to
begin, by the time of closing argument it was undeniably apparent
that
Petitioner had decompensated and was no
wholly rational thought or analysis.
delivering his closing argument
delivered
witnesses,
an
opening
issued
The Court notes that prior to
Petitioner conducted voir dire,
statement,
subpoenas,
testify in his defense.
longer capable of
and
cross-examined
called
several
the
State's
witnesses
As the trial judge later found,
to
"while
[Petitioner's] strategies were certainly questionable he did seem
to have a consistent approach in attempting to raise those ongoing
themes of corruption and conspiracy and consistently maintained his
innocence throughout
closing argument,
continued
the proceeding."
Tr.
4930.
Petitioner's
while long-winded and not a model of clarity,
Petitioner's
consistent
approach.
Petitioner
demonstrated that he had a rational understanding of the criminal
proceedings against him and that he could rationally engage in his
defense.
He understood the State was required to prove its case
beyond a
reasonable doubt;
evidence
indicative
arguments
to
counter
of
or
he was able to
his
guilt
blunt
the
and
identify the State's
was
impact
able
of
to
formulate
that
evidence.
Although Petitioner's argument that local police conspired to frame
34 - OPINION AND ORDER -
him for the murder was unlikely to persuade a jury, the fact that
he
advanced
an
unpersuasive
argument
does
not
give
rise
to
circumstances requiring another competency hearing.
Thus, this Court concludes the trial court's conclusion
that a sua sponte competency hearing during Petitioner's trial was
not
required
under
Pate,
together
with
the
Oregon
appellate
courts's affirmance of that decision, were reasonable in light of
the then-existing record.
The trial
judge reasonably concluded
that Petitioner's behavior did not give rise to a bona fide doubt
that Petitioner had a rational as well as factual understanding of
the proceedings against him nor any doubt that Petitioner could
rationally engage in his defense.
demonstrated that the trial
Accordingly, Petitioner has not
judge unreasonably found Petitioner
competent to proceed or that the judge unreasonably applied Dusky
or Pate,
and Petitioner is not entitled to habeas relief on his
first claim for relief.
2.
Second Claim - Waiver of Counsel
In his second claim for relief,
trial
court
erred
because
Petitioner's
Petitioner alleges the
waiver
of
his
Sixth
Amendment right to the assistance of counsel during the guilt phase
of his
trial
was
not
knowing,
intelligent,
or voluntary,
and,
therefore, Petitioner was deprived of his Due Process rights under
the Fourteenth Amendment.
In particular,
35 - OPINION AND ORDER -
Petitioner argues his
waiver was not voluntary because it was the product of his mental
illness. 8
In Faretta v. California,
422 U.S. 806,
821
(1975), the
Supreme Court held that a criminal defendant has a Sixth Amendment
right to self-representation.
A defendant's decision to represent
himself and waive the right to counsel must be unequivocal, knowing
and
intelligent,
timely,
and
not
for
Id. at 835; United States v.
delay.
Cir. 1994); Adams v. Carroll,
the
Arlt,
purposes
of
securing
41 F.3d 516,
519
875 F.2d 1441, 1444 & n.3
(9th
(9th Cir.
198 9) .
A defendant must
Godinez,
509 U.S.
at
also be
competent
In Godinez,
396.
to waive
counsel.
the Court held that the
standard of competence for making the decision to waive counsel is
the
same
rejecting
as
the
the
standard
notion
that
of
competence
competence
to
to
proceed
waive
to
counsel
trial,
must
measured by a standard that is higher than the Dusky standard.
at 398.
be
Id.
The Court explained that "the defendant's 'technical legal
knowledge'
is
'not relevant'
to the determination whether he is
competent to waive his right to counsel," and "that although the
defendant
'may
conduct
his
own
8
defense
ultimately
to
his
own
In his Amended Petition, Petitioner also alleges his waiver
of counsel was not knowing, intelligent, and voluntary because the
proceedings by which the trial court accepted his waiver failed to
adequately advise Petitioner. In his briefing, however, Petitioner
does not argue that the trial court's colloquy was insufficient or
that the proceeding in which Petitioner waived his right was
otherwise deficient.
36 - OPINION AND ORDER -
detriment,
Faretta,
his choice must be honored [.]"
4 00
(quoting
422 U.S. at 834-36).
Here,
proceed
at
Id.
to
the
trial,
trial
a
court
decision
found
this
Pe ti ti oner
Court
competent
found
to
reasonable.
Immediately after finding Petitioner competent to stand trial, the
trial
court addressed Petitioner's motion to waive
counsel
and
strongly advised Petitioner against doing so and that it would be
a
"huge mistake."
Tr.
extensive colloquy with
proceedings,
intelligent.
to
ensure
The
The
230.
trial
Petitioner,
his
Court
waiver
notes
court
then
engaged
over the course of
was
that
knowing,
when
several
voluntary,
the
in
trial
and
court
subsequently held at the end of the guilt phase that Petitioner
would not be allowed to represent himself at the penalty phase, it
was not based upon his incompetence.
Indeed, while the trial judge
explained he had "no reason at this point in time to believe that
[Petitioner] is legally incompetent," the judge nevertheless found
Petitioner forfeited his right to represent himself because of his
failure to follow court orders.
Johnson,
610 F.3d 1138,
1144
Tr. 4688-92.
See United States v.
(9th Cir. 2010)
(the right to self-
representation is not absolute; the constitutional guarantee to a
fair trial permits the trial judge to terminate self-representation
by
a
defendant
who
deliberately
obstructionist misconduct)
engages
in
serious
and
(citing Faretta, 422 U.S. at 834 n.46)
37 - OPINION AND ORDER -
Accordingly,
finding
that
this
Petitioner
Court
was
concludes
competent
to
the
stand
trial
court's
trial
was
a
reasonable application of federal law as determined by the Supreme
Court.
Similarly,
this Court
finds
the trial court reasonably
applied federal law in allowing Petitioner to waive his right to
counsel
himself.
and
9
to
assert
his
Sixth
Amendment
right
to
represent
Accordingly, Petitioner is not entitled to habeas relief
on his third claim.
3.
Third Claim - Denial of the Right to a
Impartial Jury10
Fair and
In his third claim for relief, Petitioner alleges he was
deprived of his right to a fair and impartial jury as guaranteed by
the Sixth Amendment because prior to deliberation during the guilt
phase of Petitioner's trial, jurors expressed to the court concerns
9
Petitioner contends the trial court did not apply the correct
legal standard in accepting his waiver of counsel, citing the
Supreme Court's decision in Indiana v. Edwards, 554 U.S. 164
(2008).
Edwards, however, had not yet issued at the time of
Petitioner's trial in 2006. See Greene v. Fisher, 565 U.S. 34, 132
S. Ct. 38, 44 (2011) (holding that the§ 2254(d) requires federal
courts to "measure state-court decisions against this Court's
precedents as of the time the state court renders its decision").
10
Respondent also argues Petitioner procedurally defaulted his
third claim for relief. Because the Court finds Petitioner is not
entitled to relief on the merits of this claim, the issue of
procedural default need not be addressed.
See 28 U.S.C. §
2254 (b) (2) (" [a]n application for writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the applicant
to exhaust the remedies available in the courts of the State") ;
Runningeagle v. Ryan, 686 F.3d 758, 778 n.10 (9th Cir. 2012)
(exercising discretion afforded under § 2254 (b) (2) to decline to
address procedural default issue where relief denied on the
merits), cert. denied, 133 S. Ct. 2766 (2013).
38 - OPINION AND ORDER -
that Petitioner had personal information about
th~m.
argues
11
them
that
the
jurors'
fear
precluded
Petitioner
from
acting
impartially, and deciding his guilt based solely on the evidence.
After Petitioner's closing argument when he pulled out
the jury questionnaire of one of the alternate jurors and argued
that the alternate juror was
a member of the
·~openly
chummy" with the prosecutor,
jury expressed concern to the trial judge that
Petitioner had personal
information
on
the
jurors.
The
court
explained to Petitioner:
We have another issue and I believe it is a direct result
of your action, [Petitioner], that a juror, and I'm not
providing you the information as to the name of that
juror, has indicated a concern about the information that
you have of them.
Tr. 4550.
The judge then addressed the jury:
Good morning. In just a moment we're going to have [the
prosecutor] give his rebuttal argument.
At the end of
the day yesterday I received a concern from one of the
jurors that as to how much information [Petitioner] has
on you personally.
This is something that I intend to
discuss with you at the appropriate time.
I have
developed a plan as to dealing with this issue and we can
talk about it at the appropriate time in this case.
For the time being, however, you' re going to have to
trust that the court is taking appropriate actions.
Tr. 4552.
l1In his Amended Petition he also alleged he was denied the
right to a fair jury because the trial court failed to excuse for
cause one of the jurors who stated an implied and actual bias
against Petitioner during voir dire.
Pe ti ti oner does not argue
that portion of his claim in briefing to the Court.
39 - OPINION AND ORDER -
After the prosecutor finished his rebuttal argument and
the
jury
had
exited
the
courtroom,
Petitioner
reiterated
his
concern that the alternate juror had been "quite chummy with the
prosecutor," but argued that he did not intend to intimidate the
jury, noting that "I even said that they're free to vote as they
wish."
Tr.
juror bias.
that
the
4590.
Petitioner then moved for a mistrial based on
Tr. 4593.
juror's
conduct,
"What
concern
based
In response, the trial judge first found
concerns
we
know
upon
were
is
your
we
the
have
result
one
of
Petitioner's
juror that
inappropriate
use
of
own
expressed a
the
juror
questionnaire in your closing argument so you have invited this
problem."
Tr. 4593.
The court then denied Petitioner's motion for
a mistrial:
Essentially to the extent that there was any prejudice
that was created it was due to your direct, deliberate
action . . . . It was in direct violation of this court's
instruction that you return that questionnaire to the
court and so I am not . . . inclined to grant your motion
for mistrial.
Tr. 4597.
At the outset,
the Court notes
Petitioner presents no
evidence that the juror's concerns precluded the jury from acting
impartially.
Moreover, to the extent that Petitioner may have been
prejudiced in the eyes of the
jury because he retained a
juror
questionnaire, any prejudice was due to Petitioner's own direct and
explained,
"the
constitutional right to an impartial jury is not absolute.
The
deliberate
action.
As
the
40 - OPINION AND ORDER -
Ninth
Circuit
has
Sixth
Amendment
affords
no
relief
when
the
defendant's
own
misconduct caused the alleged juror partiality and the trial judge
employed reasonable means under the circumstances to preserve the
trial's fairness."
Williams v. Woodford,
384 F.3d 567,
626
(9th
Cir. 2002).
Petitioner argues that he cannot be personally blamed for
the juror's fears because he suffered from mental illness.
This
argument, however, is contrary to the trial court's reasonable fact
findings as discussed above.
Because there is not any evidence
that Petitioner's jury was not impartial, and because any prejudice
Petitioner may have
suffered was
actions,
has
Petitioner
not
the direct
demonstrated
unreasonably applied federal law.
result
that
the
of his
trial
own
court
Accordingly, Petitioner is not
entitled to habeas relief on his third claim.
4.
Evidentiary Hearing on Claims One through Three
Finally,
Petitioner
seeks
Petitioner's
before
an
of a
respect
to
evidentiary
The
request.
reasonableness
applies,
with
state
Claims
hearing,
Court
court's
notes
One
but
that
decision
to
through
the
in
Three,
Court
denies
reviewing
which
§
the
2254 (d)
a district court may rely only on the record that was
the
Therefore,
state
a
court.
federal
See
Pinholster,
court
generally
563
U.S.
at
181-82.
is
precluded
from
supplementing the record with facts adduced for the first time at
a federal evidentiary hearing when a petitioner's claims have been
41 - OPINION AND ORDER -
adjudicated on the merits in state court.
Here, there is not any
basis to conclude an evidentiary hearing is warranted.
II.
Actual Innocence - Ground Four
In
his
fourth
actually
innocent
evidence
to
claim for
because,
convict
him,
relief,
to
the
there
Petitioner
extent
was
there
alleges
was
insufficient
he
is
sufficient
evidence
to
establish that he acted with the requisite mental state for legal
culpability, and at most Petitioner should have been found guilty
except for insanity under Oregon law. 12
As noted,
Petitioner did
not argue this claim in his initial briefing to the Court;
his
argument on the issue first appears in the third round of briefing,
and even then, Petitioner provides no legal foundation, other than
to note that the claim cannot be procedurally barred because claims
of actual
innocence are not cognizable in Oregon state courts,
including post-conviction proceedings.
The
Supreme
Court
has
left
open
the
question
whether
a
freestanding claim of actual innocence is cognizable on federal
habeas review.
52, 71 (2009)
See District Attorney's Office v. Osborne, 557 U.S.
(whether federal constitutional right to be released
upon proof of "actual innocence" exists "is an open question").
The Ninth Circuit has assumed without deciding that freestanding
12
Petitioner also alleges, in the alternative, that there was
insufficient evidence to establish he corruni tted the crimes for
which he was convicted. Petitioner does not, however, advance any
argument on this claim in briefing before the Court.
42 - OPINION AND ORDER -
actual
innocence
claims
non-capital cases.
Cir.
1997)
(en
are
cognizable
Carriger v.
bane).
Stewart,
A defendant
in
both
capital
132 F.3d 463,
"asserting
a
and
476
(9th
freestanding
innocence claim must go beyond demonstrating doubt about his guilt,
and must affirmatively prove that he is probably innocent."
(citing Herrera v. Collins, 506 U.S. 390, 442-44 (1993)
J.,
dissenting))
"extraordinarily
persuasive."
Id.
The
petitioner's
high"
and
(quoting
requires
burden
in
such
a
that
is
U.S.
506
Herrera,
(Blackmun,
showing
a
417);
at
Spivey v. Rocha, 194 F.3d 971, 979 (9th Cir. 1999)
Id.
case
is
"truly
see
also
(denying habeas
relief where "the totality of the new evidence [did] not undermine
the
structure
of
the
prosecution's
case") .
Finally,
"'actual
innocence' means factual innocence, not mere legal insufficiency."
Bousley v. United States,
Here,
523 U.S. 614,
623 (1998).
Petitioner does not contend that he did not kill Mrs.
McGilvra.
Instead, he argues that,
hear certain evidence,
had the jury been allowed to
it is reasonably possible that they would
not have convicted him of aggravated murder, but would instead have
found him guilty except for insanity, resulting in much different
treatment than a lifetime of incarceration.
Even
if
Petitioner
could
establish
that
in
light
of
new
evidence all reasonable jurors would conclude that he was "guilty
except
for
established
insanity"
that
such
under
a
Oregon
showing
43 - OPINION AND ORDER -
law,
would
Petitioner
demonstrate
has
not
"actual
innocence."
finding
is
Under Oregon
not
law,
"[a]
an acquittal-it
difference between a
'guilty'
insanity'
the
verdict
is
is
guilty except
for
guilty verdict.
a
verdict
and a
dispositional
insanity
The
only
'guilty except
alternatives,
for
including
possible confinement and supervision by the Psychiatric Security
State v. Reese, 156 Or. App. 406, 410, 967 P.3d 514
Review Board."
(1998)
(emphasis
in original).
Thus,
even if
Petitioner could
demonstrate that he was "guilty except for insanity," that showing
would
not
demonstrate
charged offense.
Moreover,
could
be
that
he
factually
"innocent"
of
the
13
if a person who was
considered
"actually
presented sufficient evidence
record.
was
to
"guilty except for
innocent,"
support
Petitioner
such a
insanity"
has
not
theory on this
To establish the defense of "guilty except for insanity"
under Oregon law,
a criminal defendant must establish that "as a
result
disease
of mental
or defect
13
at
the
time
of
engaging
in
In Griffin v. Johnson, 350 F.3d 956 (9th Cir. 2003), the
court considered new evidence submitted to support a defense of
"guilty except for insanity," and found the evidence submitted was
not sufficient.
The court did not analyze whether sufficient new
evidence upon which all reasonable jurors would conclude a habeas
petitioner was "guilty except for insanity" would constitute
"actual innocence" under Herrera despite the habeas petitioner's
guilt as both a factual and legal matter under Oregon law.
The
Court notes the Seventh Circuit rejected such a claim, finding that
new evidence presented to demonstrate that a habeas petitioner
suffered from a mental disease or defect at the time of his crime
would not ef feet whether he was guilty of the charged offense;
instead, it would impact only his disposition.
Balsewicz v.
Kingston, 425 F.3d 1029, 1033 (7th Cir. 2005).
44 - OPINION AND ORDER -
criminal conduct, the person lacks substantial capacity either to
appreciate the criminality of the conduct or to conform the conduct
to the requirements of law."
Or. Rev. Stat.
§
161.295 (1).
Thus,
to establish "actual innocence," Petitioner must demonstrate that,
in light of his new evidence,
it is likely that all reasonable
jurors would have concluded that he established the affirmative
defense
and
that
no
reasonable
juror
would
have
concluded
otherwise.
Here, all of the evidence Petitioner identifies in support of
his actual innocence claim was presented to the jury during the
penalty phase of Petitioner's trial.
While the jurors were not
asked to determine whether Petitioner met his burden of proving the
defense
of
"guilty
except
for
Petitioner
insanity,"
had
they
were
"deliberately"
asked
killed
to
determine
whether
McGilvra.
As to the definition of "deliberately," the trial judge
instructed the jurors as follows:
The word 'deliberately has a different meaning from
intentionally.
Deliberately means that state of mind
that examines and considers whether a contemplated act
should or should not be done.
Deliberation is present if the thinking is being done in
such a cool mental state under such circumstances and for
such a period of time as to permit a careful weighing of
the proposed decision.
The law, however, does not prescribe a particular period
of time as necessary to constitute deliberation.
Before you may answer this question yes, you must all be
convinced of that answer beyond a reasonable doubt.
If
you decide that the state has failed to prove this
45 - OPINION AND ORDER -
Mrs.
question beyond a reasonable doubt you must answer this
question no.
If all 12 jurors do not agree that the answer is yes,
then you must answer this question no.
Tr. 5572-73.
After
receiving
concluded,
beyond
a
this
instruction,
reasonable
"deliberately" killed Mrs.
the
doubt,
McGil vra.
jurors
that
unanimously
Petitioner
had
The unanimous conclusion
that Petitioner carefully weighed whether to kill Mrs.
McGilvra
while in a cool mental state is irreconcilable with Petitioner's
contention that, based on the same evidence, all reasonable jurors
would conclude that when Petitioner killed Mrs. McGilvra he lacked
substantial capacity to conform his conduct to the requirements of
the law as required to establish the affirmative defense of "guilty
except for insanity."
Because
Petitioner has
not met
"actual innocence" under Herrera,
his burden of establishing
he
is not entitled to habeas
relief.on his fourth claim.
II.
Claims Alleged But Not Argued
As
support
noted
above,
the
Accordingly,
Pe ti ti oner
remaining
Petitioner
claims
has
does
not
alleged
failed
to
provide
in
his
sustain
his
argument
to
Petition.
burden
of
demonstrating why he is entitled to relief on his unargued claims.
See Lampert
v.
Blodgett,
393 F.3d 943,
970 n.16
(9th Cir.
2004)
(petitioner bears burden of proving his case); Davis v. Woodford,
46 - OPINION AND ORDER -
384 F.3d 628, 638 (9th Cir. 2003)
(same).
Nevertheless, the Court
has reviewed Petitioner's unargued claims and is satisfied that
Petitioner
is
not
entitled
to
relief
on
the
remaining
claims
alleged in his Petition for Writ of Habeas Corpus.
CONCLUSION
For these reasons, the Court DENIES Petitioner's First Amended
Petition for Writ of Habeas Corpus (ECF No. 33) and DISMISSES this
action.
The
Court
DENIES
a
certificate
of appealability as
Petitioner has not made a substantial showing of the denial of a
constitutional right.
See 28 U.S.C.
§
2253 (c) (2).
IT IS SO ORDERED.
DATED this
day of May, 2018.
ANNA~~
United States Senior District Judge
47 - OPINION AND ORDER -
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