Sullivan v. Nooth

Filing 30

Order. For these reasons, the court DENIES the Petition for Writ ofHabeas Corpus 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.IT IS SO ORDERED. Signed on 1/19/2016 by Judge Owen M. Panner. (jkm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
STEPHEN M. SULLIVAN,
Civil No. 2:14-cv-01922-PA
Petitioner,
OPINION AND ORDER

v.
MARK NOOTH, Superintendent of
Snake River Correctional Institution,
Respondent.
NELL BROWN
Assistant Federal Public Defender
101 SW Main Street
Suite 1700
Portland, OR 97204
Attorney for Petitioner
ELLEN F. ROSENBLUM
Attorney General
ANDREW D. HALLMAN
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301
Attorneys for Respondent
1 - OPINION AND ORDER -

PANNER, Judge.
Petitioner,
Institution,
U.S.C.

§

an

brings

2254.

inmate
this

at

the

habeas

Snake

corpus

River

action

Correctional

pursuant

to

28

For the reasons that follow, the Petition for Writ

of Habeas Corpus (#2) is DENIED.
BACKGROUND

On

January

25,

Petitioner on one

2011,

count

a

Lane

County

of Assault

grand

in the

jury

Fourth

indicted

Degree,

two

counts of Assault in the Second Degree, one count of Assault in
the First Degree,
Felon

in

one count of Attempted Murder,

Possession

of

a

Manufacture of Marijuana.

Firearm,

and

one

Resp. Exh. 102.

five counts of

count

of

Unlawful

The attempted murder

and assault claims arose out of a domestic violence confrontation
between Petitioner and the victim.

Resp. Exh. 112.

On July 7, 2011, Petitioner waived his rights to a jury trial
and agreed to be found guilty by a stipulated facts trial.
Exhs.
trial

103,

104.

judge

Resp.

Pursuant to the agreement of the parties,

sentenced

Petitioner

to

various

concurrent

consecutive sentences totaling 132 months of imprisonment.

the
and

Resp.

Exhs. 137, 138.
Petitioner did not file a direct appeal.
state post-conviction relief

("PCR")

Petitioner did seek

Following an evidentiary

hearing, the state PCR trial judge denied relief.

Resp. Exh. 143.

Petitioner appealed, but the Oregon Court of Appeals granted the
2 - OPINION AND ORDER -

state's motion for summary affirmance and the Oregon Supreme Court
denied review.

Resp. Exhs. 144-49.

On December 2, 2014,
of

Habeas

alleges

Corpus

three

in

Petitioner filed his Petition for Writ

this

grounds

court.

for

In his

relief:

pro se Petition,

(1)

trial

counsel

ineffective for failing to object to his arraignment
on felony charges;

(2)

11

he
was

in absentia

11

Petitioner's waiver of jury and agreement

to be found guilty by stipulated facts

trial was not

knowing,

intelligent, and voluntary because trial counsel lied to him about
whether the victim would testify and because counsel failed to
retain a firearms expert; and
for

failing

to

the

(3)

challenge

trial counsel was ineffective

the

$200,000

restitution

order

imposed by the trial court.
Petitioner concedes that he procedurally defaulted the claims
alleged in his first and third grounds for relief, but alleges the
procedural

default

should

be

excused.

Respondent

contends

Petitioner's procedural default of the first and third claims is
not excused, and that the second claim was denied by the state PCR
court in a decision that is entitled to deference under the Antiterrorism and Effective Death Penalty Act of 1996 ( AEDPA
11

court

appointed

counsel

to

represent

Petitioner,

and

).

The

in

the

11

counseled Brief in Support, Petitioner addresses only the second
claim for relief.

3 - OPINION AND ORDER -

DISCUSSION
Ground Two

I .

A.

Legal Standards

An application

for

a

writ

of habeas

corpus

shall not be

granted unless adjudication of the claim in state court resulted
in

a

decision

that

was

(1)

"contrary

to,

or

involved

an

unreasonable application of, clearly-established federal law, as
determined by the Supreme Court of the United States" or {2) was
"based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding."
§

2254 (d).

correct,

The

and

a

state

court's

petitioner

findings

bears

the

of

fact

burden

of

are

28 U.S.C.
presumed

rebutting

the

presumption of correctness by clear and convincing evidence.

28

U.S.C. § 2254 (e) (1).
Section 2254(d) is a "'guard against extreme malfunctions in
the state criminal justice systems, not a substitute for ordinary
error correction through appeal. '"
1140,

u.s.
cert.

1148
86,

(9th Cir.

101

(2011))

denied,

133 S.

2012)

(quoting Harrington v.

(additional
Ct.

Hibbler v. Benedetti, 693 F. 3d

1262

internal

(2013).

Richter,

quotation

562

omitted) ,

"' [T] he question under

AEDPA is not whether a federal court believes the state court's
determination was incorrect but whether that determination was

4 - OPINION AND ORDER -

unreasonable-a

substantially higher

(quoting Schriro v. Landrigan,

threshold. '"

550 U.S.

465,

473

I d.

at

114 6

(2007)).

A state court acts "contrary to" clearly-established federal
law if it arrives at a conclusion opposite to that reached by the
Supreme

Court

differently

on

than

a

question

the

indistinguishable facts.
(2000).

Supreme

of

law

or

if

it

decides

Court

on

a

set

of

a

case

materially

Williams v. Taylor, 529 U.S. 362, 405-06

A state court decision is an "unreasonable application"

of clearly-established federal law if the court:

(1)

the

Supreme

correct

governing

legal

priQciple

from

identifies
Court

decisions, but unreasonably applies that principle to the facts of
the prisoner's case; or (2) either unreasonably refuses to extend
the governing legal principle or unreasonably extends it to a new
context where it should not apply.

Id. at 407,

413.

Under this

standard of review, a federal court may not issue a writ of habeas
corpus

because

it

concludes

the

state

court

applied

clearly-established federal law erroneously or incorrectly;
state court decision must be "objectively unreasonable."
v. Andrade, 538 U.S.

63, 75

the

Lockyer

(2003).

A claim of ineffective assistance of counsel requires the
petitioner to prove that counsel's performance was deficient, and
that there is a
errors,

reasonable probability that,

but for counsel's

the result of the proceeding would have been different.

5 - OPINION AND ORDER -

Strickland v.

Washington,

466 U.S.

668,

687-88

(1987); Bell v.

Cone, 535 U.S. 685, 695 (2002); Williams, 529 U.S. at 390-91.

If

there is a failure of proof on either prong, habeas relief is not
warranted.

Murray v. Schriro, 746 F.3d 418, 457 (9th Cir. 2014).

Strickland applies to ineffective assistance claims arising
out

of

the

( 1985) .

plea

In

process.

order

to

Hill

establish

v.

Lockhart,

prejudice

474

in

U.S.

52,

the

guilty

57

plea

context, petitioner must show a reasonable probability that, but
for counsel's errors, he would not have pleaded guilty and would
have insisted on going to trial.

Hibbler,

693 F.3d at 1150; Doe

v. Woodford, 508 F. 3d 563, 568 (9th Cir. 2007); Hill, 474 U.S. at
59.
Because "plea bargains are the result of complex negotiations
suffused with uncertainty, and defense attorneys must make careful
strategic choices in balancing opportunities and risks," strict
adherence to the deferential Strickland standard is "all the more
essential when reviewing the choices an attorney made at the plea
bargain stage."
issue

is

not

Premo v. Moore,
whether

this

562 U.S.

court

determination under Strickland was

115,

believes

124

the

incorrect,

(2011).

state

The

court's

but whether that

determination was unreasonable, a substantially higher threshold.
Knowles v. Mirzayance,

556 U.S. 111, 123-24

F.3d at 1146.

6 - OPINION AND ORDER -

(2009); Hibbler,

693

B.

Analysis

Petitioner argues he received constitutionally ineffective
assistance of trial counsel because his trial attorney did not
timely investigate his case and did not share with him the results
of the investigation she did complete, and because counsel failed
to discuss her investigative work in light of the State's evidence
against him.

He contends that, but for these failures, he would

not have entered guilty pleas and would instead have insisted on
his right to trial.
In the state PCR proceeding, Petitioner alleged trial counsel
provided ineffective assistance of counsel by failing to properly
investigate

Petitioner's

Petitioner's

self-defense

failed

to

obtain

accidental
theory.

forensic

trajectory of the bullet ( s)
notes,

and

erroneously

informed

theory

Petitioner

evidence
fired,

shooting

alleged

concerning

the

and

counsel

number

and

failed to obtain grand jury
Petitioner

that

the

victim

indicated she would testify against Petitioner if the case went to
trial.
In

support

of

his

claims,

Petitioner

submitted

his

own

affidavit, as well as the affidavits of the victim and two mutual
friends, by which he sought to demonstrate that the shooting was
the result of an accident, not an escalation of domestic violence.
In the victim's affidavit, she stated she told the prosecutor and

7 - OPINION AND ORDER -

others that she would not testify against Petitioner, and that the
shooting was an accident.
The

state countered

Petitioner's evidence with affidavits

from trial counsel and the prosecutor, who both stated the victim
was planning to testify if the case went to trial.

Trial counsel

also described the investigation undertaken and her discussions
with Petitioner concerning the evidence.
The

PCR

trial

ineffective assistance,

judge

rejected

Petitioner's

and entered the following

claim

of

findings

and

conclusions:
Petitioner failed to carry his burden to prove any of
his allegations for Post Conviction Relief.
The
evidence demonstrates that the Petitioner entered into
a trial by stipulated facts, knowingly, freely and
voluntarily.
I
find the testimony of Petitioners
attorney .
. to be credible.
With respect to the specific claims I find as follows:
a.

Petitioner alleges generally that his attorney
failed to adequately investigate his case. He has
failed to prove this allegatiorr.
In addition, he
has failed to present any credible proof of what
evidence would have been obtained by further
investigation and how that evidence would have
likely changed the outcome of the proceeding.
1.

The attorney did not fail to investigate
evidence that one rather than two shots were
fired. The District Attorney had dropped the
2-bullet theory several weeks before the
trial and had informed Petitioner's attorney
who in turn advised the Petitioner.

2.

Petitioner's attorney did in fact
expert to examine the crime scene . .

8 - OPINION AND ORDER -

hire an
The

experts report and testimony was available
had Petitioner chosen to go to trial.
3.

4.

b.

There is no credible evidence that
[the
victim] would have provided a statement or
testimony favorable to the Petitioner prior
to trial.
The testimony of Petitioner's
attorney
and the
District Attorney
are
consistent in this respect.
[The victim's]
affidavit to the contrary, obtained years
after the conviction is not credible, it is
particularly
not
believable
that
[the
victim], who has no recollection of the
shooting
went
back
to
the
scene
and
determined that the Petitioner's version of
the events was correct even though she
apparently did
not
advise
the
District
Attorney nor Petitioner's attorney of this
fact in the days leading up to the trial.
Petitioner's attorney did not obtain notes of
the grand jury proceeding.
There is no
evidence that she would have been able to
obtain those notes had she attempted to do
so. Petitioner has not provided a copy of
those notes to this court and has not shown
how obtaining the notes would have had any
impact on his case.

Petitioner has failed to prove that his attorney
was ineffective for failing to discover evidence to
support his claim of self defense.
1.

Petitioner's attorney did in fact contact
witnesses regarding past assaults between
Petitioner and the victim.
She concluded
that most of the evidence was contrary to
Petitioner's claim of self defense.
The
district
attorney
also
had
evidence
of
previous assaults committed by Petitioner
against [the victim], The Petitioner has not
produced credible evidence that his attorney
could have discovered adequate evidence to
support his claim of self defense.

2.

Petitioner's attorney did attempt to contact
the victim but she refused to talk to her.

9 - OPINION AND ORDER -

Even if Petitioner's attorney had talked to
the victim, the victim had no memory of the
events and would not have been helpful to
Petitioner's claim of self defense.
Resp. Exh. 143, pp. 1-3.
The

PCR

court's

findings

are

reasonable

in

light

of

evidence before it and, as such, are entitled to deference.
28 U.S.C. § 2254 (d) (2) and (e) (1).

the
See

The denial of PCR relief was

reasonable in light of the factual findings that trial counsel did
investigate the forensic issues, and that the victim was planning
to testify against Petitioner at trial.

Petitioner has failed to

demonstrate to this court that trial counsel's representation was
constitutionally deficient.
Moreover, Petitioner has failed to demonstrate that there is
a

reasonable

probability

received from counsel,
jury and agreed to
trial.

be

that,

but

for

the

representation

he

he would not have waived his right to a
found

guilty through

a

stipulated fact

The PCR court's finding that Petitioner's agreement was

knowing and voluntary is not unreasonable,

and the PCR court's

conclusion that trial counsel was not constitutionally ineffective
is neither contrary to, nor an unreasonable application of clearly
established federal law.

Accordingly, Petitioner is not entitled

to habeas corpus relief on his second claim.

10 - OPINION AND ORDER -

II.

Grounds One and Three
As noted, in his counseled Brief in Support, Petitioner does

not address the claims alleged in grounds one and three.
application for habeas relief,
proof.

Cullen

v.

In an

petitioner carries the burden of

Pinholster,

131

S.

Ct.

1388,

1398

(2011).

Because petitioner fails to address grounds one and three in his
brief,

he

has

failed

relief is warranted.
(9th Cir.
cert.

628,
his

2004)

denied,

638

sustain his

burden of proving habeas

Lambert v. Blodgett, 393 F.3d 943, 970 n. 16

(petitioner bears burden of proving his case),

546 U.S.

(9th Cir.

unargued

to

963

2004).

claims

and

(2005);

Davis v.

Nevertheless,
is

satisfied

Woodford,

384 F. 3d

the court has reviewed
that

petitioner

is

not

entitled to relief on the claims alleged in grounds one and three.
As Petitioner admits, he procedurally defaulted both claims
for relief because they were not presented to the PCR court.
review,

Upon

the procedural default is not excused under Martinez v.

Ryan, 132 S. Ct. 1309 (2012) . 1

1

As to the first claim, Petitioner

Under Martinez,
the Supreme Court recognized that the
procedural default of an ineffective assistance of counsel claim
may be excused if, in the initial-review collateral proceeding,
there was no counsel or counsel in that proceeding was ineffective.
Martinez, 132 S. Ct. at 1320. The reviewing court must determine
whether the petitioner's attorney in the first collateral review
proceeding was ineffective, whether the petitioner's claim of
ineffective assistance of trial counsel is substantial, and whether
there is prejudice.
Sexton v. Cozner, 679 F.3d 1150, 1159 (9th
Cir. 2012), cert. denied, 113 S. Ct. 863 (2013).
11 - OPINION AND ORDER -

fails

to establish how the outcome of his

would have differed.

criminal proceeding

As to the second claim, Petitioner does not

establish the bases upon which trial counsel should have objected
to

the

restitution

award,

or

how

counsel's failure to object.

he

was

Accordingly,

prejudiced by

trial

petitioner fails to

satisfy the requirements of Martinez, and his procedural default
of the claim alleged in grounds one and three is not excused.
CONCLUSION

For these reasons, the court DENIES the Petition for Writ of
Habeas Corpus and DISMISSES this action.
The Court DENIES a certificate of appealability as Petitioner
has

not

made

a

substantial

constitutional right.

showing

of

the

denial

See 28 U.S.C. § 2253(c)(2}.

IT IS SO ORDERED.
DATED this

~

dayo;;;r~~-=
Owen M. Panner
United States District Judge

12 - OPINION AND ORDER -

of

a