Miller v. Baldwin

Filing 139

ORDER: Adopting Findings and Recommendation 135 . The Second Amended Petition 94 and the Supplemental Claim 134 for writ of habeas corpus are DENIED, and this action is DISMISSED. If petitioner files a notice of appeal, a certificate of appealability shall be GRANTED. See formal ORDER. Signed on 7/19/2016 by Judge Ann L. Aiken. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

GERALD WESLEY MILLER,
Petitioner,

Case No. 3:96-cv-00114-CL
ORDER

v.
GEORGE BALDWIN,
Respondent.

Aiken, Judge:
On April 7, 2016, Magistrate Judge Clarke issued his Findings and Recommendation,
recommending that petitioner's amended petition and supplemental claim for writ of habeas
corpus be denied. Petitioner objects.
When either party objects to any portion of a magistrate judge's Findings and
Recommendation, the district court must make a de nova determination of that portion of the
magistrate judge's report. See 28 U.S.C. § 636(b)(l); McDonnell Douglas Corp. v. Commodore
Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Petitioner filed timely objections

to the Findings and Recommendation, and I have given de nova review to Magistrate Judge
Clarke's ruling.
1 -ORDER

The extensive facts and complicated procedural background of this case are set forth in
the parties' briefing and in the Findings and Recommendations and will not be repeated here. In
essence, petitioner claims that joinder of two murder charges for trial violated his federal
constitutional rights to due process and rendered his trial fundamentally unfair. Petitioner also
asserts claims of ineffective assistance by trial and appellate counsel based on their failure to
raise or federalize petitioner's due process claims on appeal and during post-conviction relief
proceedings.
Like Magistrate Judge Clarke, I have serious concerns about the joinder of murder
charges in defendant's case. However, as Judge Clarke thoroughly explained, petitioner's federal
due process claim and related ineffective assistance of counsel claims are procedurally defaulted.
Moreover, even if the claims were not barred procedurally, the fact remains that the state trial
court found, based on state law, that evidence supporting each charge was cross-admissible as to
the other charge. Consequently, if the charges had been severed for trial, the same evidence
would have been admitted in each trial. See David v. Woodford, 384 F.3d 628, 638 (9th Cir.
2003) ("in evaluating prejudice, the Ninth Circuit focuses particularly on cross-admissibility of
evidence"). This Court is bound by the state court's interpretation of state law and its factual
findings on cross-admissibility. Bradshaw v. Richey, 546 U.S. 74, 76 (2005) ("We have
repeatedly held that a state court's interpretation of state law, including one announced on direct
appeal of the challenged conviction, binds a federal court sitting in habeas corpus.") (citing
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)). Therefore, as found by Magistrate Judge Clarke,

petitioner cannot establish prejudice resulting from or counsel's failure to federalize his due
process claims so as to warrant habeas relief.

2

-ORDER

In sum, I agree with Judge Clarke's thorough and reasoned analysis of petitioner's claims,
and I find no error. Petitioner's claims 8A through 8D are barred by procedural default, claim 8E
fails on the merits, and claims 9A through 9I, lOA through lOF, 1 lA, llB and the Supplemental
Claim are barred by procedural fault or fail on the merits.
Accordingly, Magistrate Judge Clarke's Findings and Recommendation (doc. 135) is
ADOPTED. The Second Amended Petition (doc. 94) and the Supplemental Claim (doc. 134) for
writ of habeas corpus are DENIED, and this action is DISMISSED. If petitioner files a notice of
appeal, a certificate of appealability shall be GRANTED.
IT IS SO ORDERED.
Dated this _J!l_{;:yof July, 2016.

Ann Aiken
United States District Judge

3

-ORDER