Pinnell v. Belleque

Filing 338

Opinion and Order. For the reasons in this Opinion and Order, the Court DISMISSES without prejudice certain defaulted claims as specified and will address other specified claims on the merits in due course. The Court directs counsel to confer and to submit no later than 02/02/2015, a detailed, jointly-proposed case-management schedule. See attached 43 page Opinion and Order. Signed on 01/15/2015 by Judge Anna J. Brown. (bb)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

MARK ALLEN PINNELL,
Petitioner,
v.
BRIAN BELLEQUE, Warden,
Respondent.

TERESA A. HAMPTON
Federal Defender Services of Idaho
Capital Habeas Unit
702 W. Idaho, Suite 900
Boise, ID 83702
[phone]
Attorney for Petitioner
ELLEN F. ROSENBLUM
Oregon Attorney General
CAROLYN ALEXANDER
TIMOTHY A. SYLWESTER
Assistant Attorneys General
Department of Justice
Appellate Division
1162 Court Street N.E
Salem, OR 97301
[phone]
Attorneys for Respondent
1 - OPINION AND ORDER

3:06-cv-00828-BR
OPINION AND ORDER

BROWN, Judge.
The parties' briefing is complete on the limited issues as
to whether Petitioner can establish prejudice due to the missing
portion of the Second Penalty-Phase Voir Dire Transcript and
whether he can establish cause and prejudice to excuse procedural
default of certain claims of ineffective assistance of trial
counsel pursuant to Martinez v. Ryan, 132 S. Ct. 1309 (2012).
For the reasons that follow, the Court DISMISSES without
prejudice certain defaulted claims as specified herein and will
address other specified claims on the merits in due course.

STANDARDS
I.

Missing Transcript
In Jackson v. Renico, 179 F. App’x 249, 252 (6th Cir. 2006),

the Sixth Circuit Court of Appeals explored the issue of missing
trial transcripts in depth.

The court reasoned as follows:

Although the Supreme Court has held that the due
process clause is violated if an indigent
defendant is denied a transcript, Griffin v.
Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed.
[__] 891 (1956)(plurality opinion), that a state
may not block an indigent petty offender's access
to an appeal afforded others, Mayer v. Chicago,
404 U.S. 189, 195-96, 92 S. Ct. 410, 30
L. Ed. 2d 372 (1971), and that a new court-appointed
attorney who represents an indigent [defendant] on
appeal (but not at trial) is entitled to the entire
transcript at public expense, Hardy v. United States,
375 U.S. 277, 279-80, 84 S. Ct. 424, 11 L. Ed. 2d 331
(1964), it has never held that the absence of a portion

2 - OPINION AND ORDER

of a trial transcript automatically entitles the
defendant to a retrial. In fact, in Mayer, the Supreme
Court acknowledged that a "complete" record did not
necessarily require a verbatim transcript, so long as
the state found another means of providing an adequate
record. Mayer, 404 U.S. at 194, 92 S. Ct. 410. In
other words, "Mayer does not stand for the proposition,
implicit in [Jackson's] argument, that where a portion
of a trial transcript is missing and unobtainable, and
where a defendant makes a claim that could possibly
implicate that portion of the transcript, a retrial is
always necessary." Scott v. Elo, 302 F.3d 598, 604
(6th Cir. 2002)(rejecting that the failure to
transcribe a significant portion of the closing
argument denied the petitioner due process).
This Court has held that federal habeas relief
based on a missing transcript will only be granted
where the petitioner can show prejudice.
Bransford v. Brown, 806 F.2d 83, 86 (6th Cir.
1986). In Bransford, as in this case, this Court
considered whether the unavailability of
transcripts of jury instructions was a per se
violation of due process. The trial court in that
case had determined that the transcript of the
instructions was irretrievable. The petitioner
made no specific allegation of error, however.
The Court held that there was no per se violation
of prejudice, and stated that a petitioner "must
show prejudice resulting from the missing
transcripts." Id. at 86. The Court added that
"[a]lthough this court recognizes the inherent
difficulty in demonstrating prejudice where the
transcripts are missing, petitioner must present
something more than gross speculation that the
transcripts were requisite to a fair appeal." Id.
Similarly, the Ninth Circuit has held a petitioner has the
burden of establishing prejudice from the lack of a complete
transcript in light of the alleged value of the transcript and
the availability of alternatives that would fulfill the same
functions.

Madera v. Risley, 885 F.2d 646, 648-49 (9th Cir.

3 - OPINION AND ORDER

1989).

See also United States v. Wilson, 16 F.3d 1027, 1031 (9th

Cir. 1994 (when the court reporter failed to record all
proceedings verbatim, the defendant had to demonstrate that
specific prejudice resulted in order to obtain reversal).
II.

"Cause and Prejudice" under Martinez v. Ryan
A habeas petitioner does not have a federal constitutional

right to the effective assistance of counsel during state postconviction proceedings.
(1987).
1993).

Pennsylvania v. Finley, 481 U.S. 551

See also Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir.
As a result, the general rule is that any errors of

counsel during a post-conviction action cannot serve as a basis
for cause to excuse a procedural default.

Coleman v. Thompson,

501 U.S. 722, 752 (1991).
In Martinez the Supreme Court established a limited
exception to the general rule that applies only to Sixth
Amendment claims of ineffective assistance of counsel.
The Court held as a matter of equity that inadequate assistance
of post-conviction counsel or lack of counsel "at initial-review
collateral review proceedings may establish cause for a
prisoner's procedural default of a claim of ineffective
assistance at trial."

132 S. Ct. at 1315.

In Nguyen v. Curry

the Ninth Circuit found the Martinez holding included claims of

4 - OPINION AND ORDER

ineffective assistance of direct-appeal counsel.1

736 F.3d 1287,

1293 (9th Cir. 2013), In Trevino v. Thaler the Supreme Court held
as follows:
We consequently read Coleman as containing an
exception, allowing a federal habeas court to find
"cause," thereby excusing a defendant's procedural
default, where (1) the claim of "ineffective
assistance of trial counsel" was a "substantial"
claim; (2) the "cause" consisted of there being
"no counsel" or only "ineffective" counsel during
the state collateral review proceeding; (3) the
state collateral review proceeding was the
"initial" review proceeding in respect to the
"ineffective-assistance-of-trial-counsel claim";
and (4) state law requires that an "ineffective
assistance of trial counsel [claim] . . . be
raised in an initial-review collateral
proceeding."
133 S. Ct. 1911, 1918 (2013)(citing Martinez, 132 S. Ct. at 131819, 1320-21)(alterations in original)).
A.

Prong One: Substantiality of Underlying Claim of
Ineffective Assistance of Counsel

For the Martinez exception to apply a petitioner must bring
forward facts that demonstrate his underlying claim of
ineffective assistance of counsel is substantial.

The United

States Supreme Court has defined "substantial" as a claim that

1

The Court notes in its December 2012 Order [#313] that it
specifically ruled Martinez was limited to claims of ineffective
assistance of trial counsel and "Petitioner's alleged ineffective
assistance of post-conviction counsel cannot serve as cause to
excuse the default of his ineffective assistance of direct
appellate counsel." Because Martinez involves an equitable
rather than a constitutional doctrine, however, it is up to the
parties to seek reexamination of the Court's Order in light of
Nguyen.
5 - OPINION AND ORDER

"has some merit."

Martinez, 132 S. Ct. at 1318 (comparing the

substantiality question with the standard for certification of
appealability set out in Miller-El v. Cockrell, 537 U.S. 322
(2003)).

Stated inversely, a claim is "insubstantial" if "it

does not have any merit or . . . is wholly without factual
support."

Id. at 1319.

Determining whether a claim of

ineffective assistance of counsel is substantial requires a
federal court to examine the claim under Strickland v.
Washington, 466 U.S. 668 (1984).
The Supreme Court has established a two-part test to
determine whether a petitioner has received ineffective
assistance of counsel.

First, the petitioner must show his

lawyer's performance fell below an objective standard of
reasonableness.

Id. at 686-87.

Due to the difficulties in

evaluating counsel's performance, courts must operate under a
strong presumption that counsel’s conduct falls within the "wide
range of reasonable professional assistance."

Id. at 689.

Second, the petitioner must show his lawyer's performance
prejudiced the defense.

The appropriate test for prejudice is

whether the defendant can show "there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different."

Id. at 694.

A reasonable

probability is one that is sufficient to undermine confidence in
the outcome of the trial.
6 - OPINION AND ORDER

Id. at 696.

These standards from Strickland for determining deficient
performance and prejudice are the same standards for an eventual
review of the merits of the underlying claim of ineffective
assistance of counsel.

The issue whether a claim of ineffective

assistance is substantial under Martinez, however, is not the
same as a merits review.

Instead it is more akin to a

preliminary review of a Strickland claim for purposes of
determining whether a certificate of appealability should issue.
Martinez, 132 S. Ct. at 1318-19.

A court, therefore, may

conclude a claim is substantial when a petitioner has shown
resolution of the merits of the Strickland claim would be
"debatable amongst jurists of reason" or that the issues
presented are "adequate to deserve encouragement to proceed
further."

Miller-El, 537 U.S. at 336 (internal quotes omitted).

Thus, to determine whether a claim is substantial, Martinez
requires the district court to review (but not to decide) whether
trial or direct appellate counsel's acts or omissions resulted in
deficient performance with a reasonable probability of prejudice.
Under Martinez the district court determines only whether the
issues are sufficiently deserving to encourage further
examination and whether resolution of the merits of the claim
would be debatable among jurists of reason.

7 - OPINION AND ORDER

B.

Prong Two: Lack of PCR Counsel or Ineffective
Assistance of PCR Counsel

In addition to showing that the underlying claim of
ineffective assistance of counsel is substantial, a petitioner
seeking to invoke Martinez also must show either that he did not
have counsel on the initial post-conviction review (PCR) or that
his PCR counsel was "ineffective under the standards of
Strickland."
at 1918.

132 S. Ct. at 1318.

See also Trevino, 133 S. Ct.

If the PCR "attorney in the initial-review collateral

proceeding did not perform below constitutional standards," his
or her error does not constitute "cause."

132 S. Ct. at 1319.

Thus, any error or omission by the petitioner’s PCR counsel will
not satisfy the "deficient performance" standard under Martinez.
Moreover, PCR counsel "is not necessarily ineffective for failing
to raise even a nonfrivolous claim."

Sexton v. Cozner, 679 F.3d

1150, 1157 (9th Cir. 2012).
If PCR counsel's performance is deficient, then the court
must consider whether that performance was prejudicial under
Strickland.
2014).

See Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir.

In other words, the Strickland standards for analyzing

deficient performance apply with equal force to PCR counsel in
the context of a Martinez argument.

Even if a petitioner shows

his ineffective-assistance claims are substantial under the first
Martinez prong, he still must show that post-conviction counsel

8 - OPINION AND ORDER

rendered deficient performance and, "but for post-conviction
counsel's failure to raise [the substantial ineffective
assistance] claims, there is a reasonable probability that the
result of the post-conviction proceeding would have been
different" under the second prong.

Id. at 378.

two inquiries will collapse into one.

At times these

Id. at 382 ("Under the

circumstances of this case, if [the petitioner] succeeds in
demonstrating that he was prejudiced by the failure of his postconviction counsel, he will necessarily have established that
there is at least 'some merit' to his claim that he suffered
ineffective assistance of counsel at resentencing.").
The court may address either inquiry first, and resolution
of one prong may obviate the need to address the other.

See

Martinez, 132 S. Ct. at 1319 ("When faced with the question
whether there is cause for an apparent default, a State may
answer the ineffective-assistance-of-trial-counsel claim is
insubstantial, i.e., it does not have any merit or it is wholly
without factual support, or the attorney in the initial-review
collateral proceeding did not perform below constitutional
standards.").

9 - OPINION AND ORDER

C.

Prongs Three and Four: Initial PCR Proceeding and
State Law Requiring Claims of Ineffective Assistance of
Counsel To Be Brought in Initial Review Collateral
Proceeding

The third prong (establishing the Martinez exception applies
only to lack of counsel or ineffectiveness of counsel in the
initial post-conviction review proceeding) and the fourth prong
(establishing state law must require claims of ineffective
assistance of counsel to be brought in an initial-review
collateral proceeding rather than on direct appeal) are rarely in
dispute and are not at issue here.

With the exception of Claims

VI.F and VI.G, which are claims of trial-court error pertaining
to the validity of Petitioner's waiver of Christopher Burris's
alleged deficient representation, Petitioner’s claims involve
allegations that initial PCR counsel was ineffective for failing
to raise certain claims of ineffective assistance by guilt-phase
and second penalty-phase trial counsel.

Moreover, the fourth

prong of Martinez applies in Oregon because under Oregon law the
initial PCR proceeding is the first forum in which a petitioner
may claim ineffective assistance of counsel based on matters
outside of the record.

10 - OPINION AND ORDER

DISCUSSION
I.

Prejudice Arising From Missing Portion of Second PenaltyPhase Voir Dire Transcript
Petitioner concedes the Court cannot presume prejudice based

solely on the fact that a portion of the second penalty-phase
voir dire transcript is missing.
asserts:

Nevertheless, Petitioner

(1) It is evident that the transcript is not

sufficiently complete to allow for a constitutionally fair review
of Petitioner's death sentence and (2) a review of the available
partial transcript reveals counsel rendered constitutionally
ineffective assistance during voir dire and Petitioner was
prejudiced by this because one or more "substantially impaired"
jurors sat on his jury.

Petitioner maintains he has presented

"evidence of specific incidents indicating bias among seated
jurors."

Petitioner's Br. [#330] at 17.

Respondent argues the record does not even support an
inference that any seated jurors were biased in favor of the
death penalty.

To the contrary, Respondent maintains the record

reflects the seated jurors for whom there is not an available
voir dire transcript would listen to the facts of the case, would
be reluctant to impose a death sentence, and would not impose a
death sentence if the evidence did not support it.

In addition,

Respondent insists the record reflects counsel appropriately used
voir dire to educate the jury about the requirements under the

11 - OPINION AND ORDER

law to impose a death sentence, secured each juror's agreement
that he or she would impose a life sentence if the evidence did
not support the findings required under the law to impose death
beyond a reasonable doubt, appropriately used peremptory
challenges, and knew how to use a “for cause” challenge.
In summary, Respondent states on this record that Petitioner
cannot even support an inference that any jurors with a "death
bias" were seated on the jury, and, therefore, Petitioner cannot
establish he suffered prejudice based on the missing portion of
the voir dire transcript that requires the Court to excuse his
default of any related claims.
A.

Death-Penalty Jurors and "Substantial Impairment"

"A juror in a capital case is appropriately excluded where
'the juror's views would prevent or substantially impair the
performance of his duties as a juror in accordance with his
instructions and his oath.'"

Gentry v. Sinclair, 705 F.3d 884,

912 (9th Cir. 2013)(quoting Wainwright v. Witt, 469 U.S. 412, 424
(1985)(internal quotation omitted)).

A juror's personal

objection or belief that the death penalty is wrong is an
insufficient ground to exclude the juror for cause as long as the
juror states he or she can set aside this objection and/or
belief.

See Lockhart v. McCree, 476 U.S. 162, 176 (1986).

"Although it is impermissible to exclude a juror who is not
substantially impaired, a juror's bias does not have to be proven
12 - OPINION AND ORDER

with 'unmistakable clarity.'"

Gentry, 705 F.3d at 912 (citing

Witt, 469 U.S. at 424).
Here Petitioner seeks to show that one or more substantially
impaired jurors were seated on his jury.

He attempts to prove

this primarily by comparing the answers in the pre-voir dire
juror questionnaires of several seated jurors for whom there is
not an available voir dire transcript ("the no voir dire jurors")
to the questionnaire answers of potential juror Edward Bolger,
who it appears the State dismissed via peremptory challenge.2
Petitioner argues Bolger "was an example of a juror whose
answers evidenced substantial impairment and voir dire indicated
he was subject to challenge for cause."

For example, in his

questionnaire Bolger answered "don't know" when he was asked
whether he held some view of the criminal law that would impair
his ability to be fair and impartial and "not sure" when asked
whether a verdict in the guilt phase would make him strongly
inclined to impose a death sentence.

In Question 383 Bolger

disagreed our society would be stronger if the death penalty were
2

Petitioner indicates defense counsel used one of its
peremptory challenges to strike Bolger. Petitioner's Br. [#330]
at 22 n.6; Ex. 125. From the Court's review of the record,
however, it appears the State actually used one of its own
peremptory challenges to excuse Bolger. Tr. of Proceedings
[#231](Voir Dire, Mar. 19, 1992) at 95.
3

In Question 38 potential jurors
statements intended to describe their
death penalty. Jurors had the option
disagree, or strongly disagree with a
13 - OPINION AND ORDER

were asked to rank
personal beliefs about the
to strongly agree, agree,
given statement.

imposed more often, strongly agreed he personally is in favor of
capital punishment, and agreed he could vote for the death
sentence in some cases if he were on a jury.

Bolger also

strongly disagreed most murders ought to receive the death
penalty or murder is murder and understanding motives and
circumstances are not important.

The Court notes these responses

to Question 38 in and of themselves do not support a conclusion
that Bolger was substantially impaired within the meaning of
Witt.

During voir dire, however, Bolger confirmed he believed in

capital punishment and appeared intent on advising the Court and
counsel that he was leaning prematurely toward a death sentence:
Q. Well, the purpose of this hearing is for you to
hear those things so that you can decide if death
penalty, true life in prison, or life with the
possibility of parole after 30 years?
[Bolger]. I understand what you are just saying,
if I'm put on, I will do what I can. But I still
you to know my personal feelings right now before
hear any of the arguments pro or con -- that's my
that's my stand as of right now.

and
want
I
--

* * *
I mean, but, by golly, my feeling is that -- well, it's
a very crude feeling -- very crude -- but it's just a
personal thought. That's one less person to care for
in our prison if capital punishment is given and [ ]
the person or the situation is proven beyond a
reasonable doubt -- and that's what I hear all the time
-- guilty -- that's my thinking.
Significantly, the Court called a bench conference in the midst
of defense counsel's questioning of Bolger.

Following this

unrecorded conference, defense counsel asked only two more
14 - OPINION AND ORDER

questions and then passed Bolger for cause.

The State declined

to ask Bolger any questions and also passed for cause.
Thereafter, as noted, it appears the State exercised one of its
peremptory challenges to excuse Bolger.
Petitioner maintains the similar questionnaire answers of
some of the no voir dire jurors and Bolger indicate one or more
of the seated jurors exhibited the same substantial impairment as
Bolger.

Thus, Petitioner contends his counsel rendered

ineffective assistance in failing to move to dismiss those
substantially-impaired jurors for cause.

In addition, Petitioner

contends a review of the available transcripts reveals counsel
also rendered constitutionally deficient assistance in their voir
dire questioning of other jurors (including Bolger), which
supports a conclusion that counsel would have been similarly
deficient in their questioning of the no voir dire jurors.
According to Petitioner, it is likely, therefore, that one or
more impaired jurors were seated on Petitioner's jury.
Petitioner further maintains the similarity between the responses
of Bolger and the responses of no voir dire jurors Kathryn
Baxter, Rhonda Davis, Joan Mulder, and David Muralt on their
questionnaires provides the "modicum of evidence"4 necessary to
4

See Bransford, 806 F.2d at 87 (concluding "even if counsel
could have obtained the transcripts, we have before us not even a
modicum of evidence that the transcripts would have revealed
reversible error."). See also Moore v. Carlton, 74 F.3d 689, 693
(6th Cir. 1996)(claim fails when "there is not even a modicum of
15 - OPINION AND ORDER

conclude that a transcript of those jurors' responses in voir
dire would have revealed they were impaired like Bolger, that
Petitioner's counsel failed to detect such impairment and to move
to have the jurors removed for cause, and that impaired jurors
were seated on his jury as a result.
1.

Kathryn Baxter

Baxter, like Bolger, indicated she was unsure whether
her opinions about the criminal law would impair her ability to
be fair and impartial.5
Petitioner further compares the responses of Baxter and
Bolger to Question 38 and concludes Baxter "presents as a juror
with a clear bias towards imposing death."

In Question 38 Baxter

agreed our society would be stronger if the death penalty were
imposed more often, she personally is in favor of capital
punishment, and she could vote for the death sentence in some
cases if she were on a jury.

Baxter disagreed most

murders ought to receive the death penalty and strongly disagreed
murder is murder and understanding motives and circumstances are
not important.
Baxter was undecided about the death penalty and stated
it would depend on the case.

She also stated whether she would

evidence here that the incomplete transcript resulted in actual
prejudice.").
5

Notably, Baxter stated the question was too vague.

16 - OPINION AND ORDER

be strongly inclined to impose death would depend on the case.
In answering "no" to a question asking whether she would vote
against the death penalty because of her beliefs regardless of
the evidence presented and the Court's instructions, Baxter
stated:

"No -- I would look at the facts presented and decide

from there."
2.

Rhonda Davis

Davis expressed her view that certain crimes warranted
the death penalty.

According to Petitioner, Davis's answers to

Question 38 show her views were "considerably similar" to
Bolger's views and constitute evidence of her substantial
impairment.

In Question 38 Davis agreed she personally is in

favor of capital punishment and that she could vote for the death
sentence in some cases if she were on a jury.

Davis disagreed

most murders ought to receive the death penalty and strongly
disagreed murder is murder and understanding motives and
circumstances are not important.
Davis further stated "[c]ertain crimes should be
considered for the death penalty, but the proof must be absolute
with no room for question or doubt" (emphasis in exhibit).

In

Question 57F Davis disagreed with the statement that "individuals
should be held responsible for their actions regardless of what
their intentions were when they took those actions" because she
said it left "no room for fairness or human understanding."

17 - OPINION AND ORDER

3.

Joan Mulder

Mulder expressed her view that the death penalty was
justified in certain circumstances:

"In extreme cases I believe

the death penalty is justified -- repeated violent offenses when
the accused appears incorrigible and continues to pose a threat
to society."

According to Petitioner, a comparison of the

answers to Question 38 by Mulder and Bolger reveals they held
similar opinions about the death penalty.

In Question 38 Mulder

disagreed our society would be stronger if the death penalty were
imposed more often, but she agreed she personally is in favor of
capital punishment and could vote for the death sentence in some
cases if she were on a jury.

Mulder disagreed most murders

ought to receive the death penalty and strongly disagreed murder
is murder and understanding motives and circumstances are not
important.
4.

David Muralt

Muralt indicated he thought the death penalty was
appropriate in some, even "many," cases.

Like Bolger, he

expressed uncertainty whether he as a juror would be "strongly
inclined" to render a verdict resulting in a death sentence if he
found a defendant guilty of murder.

In response to Question 37,

which asked whether a potential juror who was personally opposed
to the death penalty could still abide by Oregon law, follow the

18 - OPINION AND ORDER

court's instructions, and consider imposition of a death sentence
fairly in particular circumstances, Muralt stated:
If you do not believe
could you be asked to
believe a juror could
State of Oregon if he
of our Great State of

in the death penalty how
even consider it? I don't
abide by the law of the
didn't believe in the laws
Oregon.

Petitioner notes Muralt's responses were nearly identical to
Bolger's responses.

In Question 38 Muralt disagreed our society

would be stronger if the death penalty were imposed more often,
strongly agreed he personally is in favor of capital punishment,
and agreed he could vote for the death sentence in some cases if
he were on a jury.

Muralt disagreed most murders ought to

receive the death penalty and strongly disagreed murder is murder
and understanding motives and circumstances are not important.
Muralt gave a lengthy response to Question 57F in which
he was asked whether he agreed or disagreed with the view that
individuals should be held responsible for their actions
regardless of their intentions when they took those actions.
Muralt circled "Agree," but he inserted:
with an arrow in front of "Agree."

"In some cases I would"

He explained:

I believe that we should be held responsible for
what we do, but if we didn't do it on purpose we
shouldn't be penalized sever[ely]. example = if a
smoker burned a house down because some ashes fell
on the carpet when he's been smoking = there was
not intent to burn the house down right? But if
he got out & his wife and kids were burned up, I
believe the personal grief that he would go
thr[ough] would be plenty.

19 - OPINION AND ORDER

Also if a hunter shot a deer or elk & the bullet
glazed off a rock and killed someone. = That is an
accident No penalty should be placed on the man.
But if someone plotted for a long time to kill
someone & did it, there should definitely be a
severe penalty. He shouldn't get away with that.
According to Petitioner, Muralt's view in favor of the death
penalty is even more fixed than Bolger's view.

Petitioner

asserts Muralt's responses to the juror questionnaire indicate he
would find the death penalty appropriate for any intentional
murder.

Accordingly, Petitioner maintains Muralt's responses

indicate his substantial impairment within the meaning of Witt.
Without access to the voir dire transcript to see how counsel
dealt with Muralt's questionnaire responses, Petitioner asserts
at the very least he has not been afforded constitutionally
sufficient appellate review.
B. Counsel's Voir Dire Performance
In further support of his prejudice argument, Petitioner
asserts counsel did not understand the distinctions between
noncapital and capital-jury selection.

In support of his

assertion Petitioner refers to the fact that counsel spent just
14.77 hours or 1% of the time on voir dire research in the
penalty-phase only trial.

In addition, Petitioner notes the part

of counsel's pretrial brief that is devoted to voir dire did not
make any reference to "impaired jurors automatically imposing
death."
20 - OPINION AND ORDER

Petitioner further argues a review of the available portion
of the voir dire transcript reveals counsel failed to ask
clarifying questions of jurors or to move to exclude jurors for
cause in violation of Petitioner's Sixth Amendment right to
counsel.

For example, in questioning Brossard, Petitioner faults

counsel for taking what amounted to fifteen pages of transcript
to get to his first death-penalty question, and then counsel only
delved superficially into the subject.

Petitioner maintains if

counsel had explored the jurors' questionnaire responses during
voir dire, their biases to impose a death sentence and their
inability to abide by their oath and instructions would have been
exposed.

Petitioner suggests counsel's questions were confusing

and constituted an unfocused strategy without a reasonable basis
in law or in fact.

Finally, Petitioner asserts counsel's use of

peremptory challenges to excuse other impaired jurors highlights
the fact that counsel did not recognize the jurors were impaired
and that they should have been removed for cause.

Petitioner

maintains counsel's use of peremptory challenges cannot cure
counsel’s failure to recognize that other seated jurors provided
answers on voir dire indicating substantial impairment.
At the heart of Petitioner's argument is his assertion
that counsel acted deficiently in their use of the juror
questionnaires, particularly in failing to recognize and to
explore responses such as those in Muralt's questionnaire.

21 - OPINION AND ORDER

These arguments notwithstanding, the record belies Petitioner's
assertion that counsel would not have recognized or explored the
suspect questionnaire responses during their questioning of the
no voir dire jurors.
As a preliminary matter, Petitioner attempts to demonstrate
prejudice by suggesting that the similarity between the answers
to Question 38 by certain no voir dire jurors and Bolger
necessarily means the specific views on the death penalty of
those no voir dire jurors would have been similar to the views of
Bolger for purposes of determining their fitness to serve on the
jury.

The Court, however, concludes Petitioner is engaging in

gross speculation.

As noted, Bolger's responses to Question 38

were not in and of themselves indicative of impairment, so the
fact that the no voir dire jurors gave similar answers on this
question does not raise impairment concerns.

To suggest other

jurors shared Bolger’s seemingly inflexible, premature bias in
favor of imposing death in Petitioner's case is not supported by
logic or the record even though those jurors may have been firm
proponents of capital punishment and confident that they could
impose a death sentence if warranted.

Instead the Court

concludes after careful review of the voir dire transcript that
is available, particularly with regard to defense counsel's
references to and exploration of potential jurors' questionnaire
responses, that it is more likely counsel questioned the jurors
22 - OPINION AND ORDER

who were eventually seated as to concerns about their responses
in their questionnaires and were satisfied those jurors were
capable of honoring their oaths and following the Court's
instructions.
Although the Court is cognizant of Petitioner's dilemma in
trying to show prejudice without support of the complete
transcript, the Court concludes on this record that Petitioner
has not met his burden to demonstrate by more than gross
speculation that he was prejudiced.

The record in fact, supports

an inference that the no voir dire jurors were not substantially
impaired based on their representations in the juror
questionnaires that they would follow the law and the Court's
instructions.

See Responses to Question 37:

Davis ("The oath we

took states we will uphold Oregon laws, not our own opinions.");
Muralt ("I don't believe a juror could abide by the law of the
State of Oregon if he didn't believe in the laws of our great
State of Oregon.");6 Mulder ("I would hope to do my best to be
fair and conscientious in any decision."); Baxter ("Yes - again
it would depend on the situation.").

Furthermore, the record

reflects counsel liberally utilized the questionnaires, did not
shy away from exploring questionable responses, and worked to
6

Muralt appears to have answered "No" to Question 37 on
the basis that he thought a person who did not believe in the
death penalty could not be asked to consider it. In fact, there
is every indication in his answer that he would abide by the laws
of Oregon and follow the instructions of the trial judge.
23 - OPINION AND ORDER

convince potential jurors of what counsel deemed to be the law's
preference for a non-death sentence even in the face of an
aggravated-murder conviction.
In summary, the Court's review of the available voir dire
transcript reveals counsel (1) had read the questionnaires,
(2) had them in hand for reference during the voir dire itself,
and (3) did not shy away from exploring issues that concerned
them.

Between the no voir dire jurors' questionnaire responses

and the available examples of how counsel questioned potential
jurors in voir dire,7 the Court finds Petitioner has failed to
present evidence that demonstrates prejudice due to the lack of a
complete second penalty-phase voir dire transcript sufficient to
excuse his procedural default of Claims III(B)(6), X(C),
XI(D)(4), and XXI(A).8

Accordingly, the Court dismisses these

defaulted claims without prejudice.
7

Petitioner's second penalty-phase counsel aver as follows:
"[Co-counsel] and I developed a set of questions to use during
voir dire. I have been shown selected excerpts from the voir
dire proceedings. The questions I asked would have been based
upon my set of questions. These questions would have been
repeated to all jurors that I questioned." The Court's review of
the available voir dire transcript confirms counsel’s statement
that counsel followed a relatively consistent formula in their
questioning of potential jurors.
8

Because the Court concludes Petitioner cannot demonstrate
prejudice based on the missing portion of the second penaltyphase voir dire transcript, the Court need not analyze whether
Petitioner was prejudiced by any failure on his PCR counsel's
part to secure the transcript and/or to raise claims of
ineffective assistance of trial or any failure on the part of his
direct appellate counsel for not securing same.
24 - OPINION AND ORDER

II.

"Cause and Prejudice" under Martinez v. Ryan
According to Petitioner, he can demonstrate cause and

prejudice pursuant to Martinez to excuse any default of the
following ineffective assistance of guilt-phase and second
penalty-phase trial counsel claims:
Ineffective Assistance of Guilt-Phase Trial Counsel Claims
1.

Guilt phase counsel, Christopher Burris, was
unqualified, did not have sufficient time to prepare,
and failed to obtain a qualified capital defense team.
Claim VI.A.1-4.9

2.

Burris failed to review evidence contained in the
prosecution files within six weeks of trial. Claim
VI.B.3.

3.

Burris failed to call critical witnesses or present
evidence to support a defense theory that petitioner's
use of drugs left him unable to form intent and to
support a diminished capacity defense. Claim
VI.C.5.B(vii).10

9

Briefly, in Subclaim One Petitioner alleges under the
then-existing American Bar Association (ABA) policies that two
qualified attorneys should have been appointed to represent
Petitioner in this death-penalty case; in Subclaim Two Petitioner
alleges Burris was not qualified to represent Petitioner as lead
counsel based on the fact that he did not have any capital
experience and had never handled an aggravated-murder trial; in
Subclaim Three Petitioner alleges Burris had too little time to
prepare for trial and failed to do so; and in Subclaim Four
Petitioner alleges neither Burris nor his predecessor ever
obtained appointment of a capital-defense team, including a
mitigation specialist.
10

The parties agree Petitioner fairly presented this claim
to the state courts and that it is fully exhausted. Accordingly,
the Court will consider Claim VI.C.5.B(vii) on the merits in due
course.
25 - OPINION AND ORDER

4.

Burris failed to seek and obtain an instruction that
witnesses Meadows, Mace and Varzali should be viewed as
accomplices and their testimony evaluated in that
light. Claim VI.C.8.

5.

Burris failed to ensure the preservation of an adequate
state court record for appeal, post-conviction, and
Federal Habeas proceedings. Claim VI.E.

6.

Petitioner did not and could not have, knowingly and
intelligently waived any claims regarding Burris'
deficient performance. Claim VI.F.

7.

In requiring petitioner to sign the waiver, the trial
court interfered with petitioner's constitutional right
to the assistance of counsel, resulted in a conflict
with, and abandonment by, counsel, and requires a grant
of relief without any further assessment of prejudice.
Claim VI.G.11

Ineffective Assistance of Second Penalty-Phase Trial Counsel
Claims
1.

Second Penalty-Phase Counsel, Keith Walker and Ray
Bassel, failed to obtain a transcript of the medical
examiner's testimony at co-defendant's trial and to
have the medical examiner testify at petitioner's
resentencing on specific issues. Claim XI.E.1.B.

2.

Walker and Bassel failed to present all available
evidence bearing on petitioner's guilt of aggravated
murder versus felony murder, or appropriateness of the
death penalty, including: evidence of co-defendant's
prior history of hog-tying and the medical examiners
admissions there was likely no intent to kill and
certainly no torture-murder. Claim XI.E.2.A.

3.

Walker and Bassel failed to adequately voir dire the
jury about their attitudes about the death penalty, and
their ability to give a life sentence to an individual

11

The Court notes Claims VI.F and VI.G are not claims of
ineffective assistance of counsel and, therefore, would not fall
under the purview of Martinez. Nevertheless, the Court's
analysis of the waiver issue in Claim VI.E. below applies equally
to these claims, and the Court dismisses them without prejudice.
26 - OPINION AND ORDER

who had already been convicted of six counts of
aggravated murder. Counsel failed to lay a foundation
for challenges for cause for such jurors, and failed to
present those challenges when necessary. Claim XI.D.3.
4.

Walker
second
of the
habeas

and Bassel failed to ensure the voir dire of the
penalty-phase jury was transcribed and made part
record for appeal, post-conviction and capital
proceedings. Claim XI.D.4.

5.

Walker and Bassel failed to obtain every transcript,
and to designate a full and complete record for
appellate, post-conviction and federal habeas review of
petitioner's death sentence. Claim XI.H.3.

Petitioner's Br. [330] at 4-5.
Respondent, in turn, argues:

(1) Martinez should not apply

here because Petitioner had PCR counsel who litigated claims on
his behalf, including claims of ineffective assistance of trial
counsel and claims against appellate counsel for failing to
request the voir dire transcript and to raise an issue on appeal
concerning the denial of these transcripts and (2) even if the
Martinez exception applies, it is not satisfied because none of
the ineffective-assistance claims are "substantial" and
Petitioner cannot show PCR counsel was constitutionally
ineffective for failing to raise them.
A.

Guilt-phase counsel, Christopher Burris, was
unqualified, did not have sufficient time to prepare,
and failed to obtain a qualified capital-defense team.
Claim VI.A.1-4.

Petitioner does not elaborate on this claim in his briefs.
The Court, however, addressed a similar argument in its Order
[#168] issued June 26, 2009:
27 - OPINION AND ORDER

The Ninth Circuit has held an ineffective
assistance of counsel claim cannot be based solely
on counsel's inexperience. While "'[t]he
character of a particular lawyer's experience may
shed light on an evaluation of his actual
performance, it does not justify a presumption of
ineffectiveness in the absence of such an
evaluation.'" Ortiz v. Stewart, 149 F.3d 923, 933
(9th Cir. 1998)(quoting United States v. Cronic,
466 U.S. 648, 665 (1984)). This reasoning
underscores the principle that this Court must
examine counsel's actual performance to discern
whether Petitioner's Sixth Amendment right to
counsel has been adequately preserved.
Moreover, with regard to Petitioner's suggestion that Burris
performed ineffectively by failing to seek appointment of second
counsel pursuant to the prevailing standard of care set forth in
the relevant ABA guidelines, such failure can give rise to habeas
relief only if the Court first determines the absence of cocounsel prejudiced the defense.

Cf. Allen v. Woodford, 395 F.3d

979, 993 (9th Cir. 2005)(explaining there cannot be deficient
performance unless the record shows counsel was unable to try the
case alone); Riley v. Taylor, 277 F.3d 261, 306 (3d Cir.
2001)("The Constitution does not specify the number of lawyers
who must be appointed.

If a single attorney provides reasonably

effective assistance, the Constitution is satisfied, and if a
whole team of lawyers fails to provide such assistance, the
Constitution is violated.").
Similarly, to support his assertion that counsel had
inadequate time to prepare, Petitioner must show specific
prejudice resulted from counsel's alleged lack of time.
28 - OPINION AND ORDER

See

United States v. Cronic, 466 U.S. 648, 665-66 (1984).

Petitioner

also asserts in Subclaim Three that counsel "did not seek to
retain experts to evaluate the case until April 29, 1988, less
than three weeks prior to voir dire" and that this dramatically
impaired counsel’s performance.

Petitioner, however,

fails to

identify the way in which counsel’s performance was impaired.
Finally, as noted, Petitioner alleges Burris failed to
assemble a capital-defense team, including a mitigation
specialist.

Petitioner, however, has not supported his

allegation factually or shown the way in which counsel's alleged
omission resulted in a reasonable probability of prejudice to
Petitioner.

Moreover, with regard to counsel's alleged failure

to obtain a mitigation specialist, the Oregon Supreme Court
granted Petitioner sentencing-phase relief on its first direct
review of his initial death sentence and provided him with a
second penalty-phase trial.

Thus, Petitioner cannot show he was

prejudiced by any failure of Burris to hire a mitigation expert.
Accordingly, because Petitioner fails to describe how
counsel's alleged acts or omissions resulted in prejudice
independent from his other allegations of ineffective assistance,
Petitioner has not shown these subclaims are substantial under
Martinez, and, therefore, the Court concludes the procedural
default of these subclaims is not excused.

29 - OPINION AND ORDER

B.

Burris failed to review evidence contained in the
prosecution files within six weeks of trial. Claim
VI.B.3.

Petitioner alleges "Burris failed to make any effort to see
the prosecution files held by the district attorney, and had not
seen those files less than six weeks prior to trial--in marked
contrast to counsel for Cornell, who had visited the district
attorney to review the material at least twice.

(State's

Transcript Designation Part L, Omnibus Hearing Vol. IV, at
712.)."

Am. Pet. [#85] at 115.

According to Petitioner, a

review of the prosecutor's entire file would have "disclosed
significant information about the crime and the potential defense
of voluntary intoxication."

Br. [#330] at 8.

Petitioner argues

the following information in the file would have led counsel to
conduct further fruitful investigation as to (1) information
regarding co-defendant Cornell, (2) reports from Petitioner's
correctional counselor outlining Petitioner’s alcohol and drug
addictions, and (3) presentence reports reflecting Petitioner
attended Maclaren School for Boys and had an extensive history of
alcohol-related offenses.

Petitioner maintains there cannot be a

strategic rational for counsel's failure to discover and to
utilize this evidence in support of the involuntary-intoxication
instruction included in the jury instructions at trial.
Petitioner further argues counsel's failures prejudiced
Petitioner because even though counsel pursued that defense,

30 - OPINION AND ORDER

counsel failed to support the defense with readily available
evidence.

The State, however, contends Petitioner's PCR counsel

raised a claim of ineffective assistance based on Burris's
failure to investigate and to present available evidence
supporting an involuntary-intoxication defense, and, therefore,
any such claim is fully exhausted.
To the extent that this claim involves counsel's failure to
discover and to present evidence supporting an involuntaryintoxication defense, which the Court finds is the main thrust of
Petitioner’s claim, it overlaps with fully-exhausted Claim
VI.C.5.B(vii).

Thus, the State's argument is well-taken.

To the

extent that Petitioner argues there might have been additional
useful evidence contained in the prosecutor's complete file
related to co-defendant Cornell or to Petitioner's history at
Maclaren, Petitioner has failed to elaborate on the import of
this evidence or to demonstrate how counsel's failure to discover
and to utilize this evidence resulted in a reasonable probability
of prejudice.

The Supreme Court has held "the duty to

investigate does not force defense lawyers to scour the globe on
the off chance something will turn up; reasonably diligent
counsel may draw a line when they have good reason to think
further investigation would be a waste."
U.S 374, 383 (2005).

31 - OPINION AND ORDER

Rompilla v. Beard, 545

Accordingly, the Court concludes Petitioner has failed to
demonstrate that this claim is substantial under Martinez, and,
therefore, its procedural default is not excused.
C.

Burris failed to seek and to obtain an instruction that
witnesses Meadows, Mace, and Varzali should be viewed
as accomplices and that their testimony should be
evaluated in that light. Claim VI.C.8.

According to Petitioner, the same accomplice instruction
given in co-defendant Cornell's case was available to Petitioner
at trial.

Petitioner maintains the instruction would have meshed

with Burris's trial theory that the victim, Ruffner, was alive
after any robbery, and, therefore, there was not any strategic
reason to omit such an instruction.

Br. [#330] at 9.12

The

State maintains this claim fails for lack of proof because
Petitioner does not argue the witnesses could have been charged
as aiders-and-abettors for Ruffner's murder and he fails to show
there was "no other evidence other than their testimony on key
points necessary for his conviction."
Even assuming counsel rendered ineffective assistance by
failing to request the referenced accomplice instructions, "the

12

In his argument in support of his accomplice-instruction
claim, Petitioner also asserts the jury instructions did not
include an instruction that Petitioner personally had to commit
the murder in order to satisfy the requirements for aggravated
murder. In its Order [#168] at 42-45, however, the Court
specifically examined the adequacy of the trial court's
instruction defining "personally" in the context of an
aggravated-murder charge. Accordingly, Petitioner’s argument is
without merit.
32 - OPINION AND ORDER

controlling issue remains whether the attorney's failure to
request the instructions prejudiced the defendant."
Vasquez, 794 F. Supp. 957, 970 (C.D. Cal 1992).

See Bonin v.

"In assessing

prejudice, the reviewing court should consider such factors as
whether the accomplices' testimony was corroborated, whether the
trial court gave general credibility instructions, and whether
defense counsel questioned the accomplices' credibility during
closing argument."

Id. (citing United States v. Bosch, 914 F.2d

1239, 1248 (9th Cir. 1990)).
Petitioner highlights the fact that these witnesses gave
virtually the same testimony in the trials of both Petitioner and
Cornell.

Petitioner then summarily concludes if Petitioner's

counsel had requested the instruction as defense counsel did in
Cornell’s case, there is a reasonable probability that the trial
court also would have given the instruction in Petitioner’s case.
Petitioner also asserts if the accomplice instruction had been
given and the jury had been instructed to view the testimony from
these accomplices with skepticism, it "would have undermined
Varzali's credibility and weakened the State's argument with
respect to Petitioner's planning of the Ruffner crime and his
demeanor afterwards."

Petitioner, however, neither supports this

statement with reference to evidence in the record nor addresses
the above-noted factors to support his allegations that he was
prejudiced because of counsel’s failure to request the

33 - OPINION AND ORDER

instruction; i.e., Petitioner does not address whether the
witnesses' testimony was corroborated, whether the trial court
gave general credibility instructions (it did), and whether
petitioner's counsel challenged the witnesses credibility in
closing (he did).

See Tr. of State Ct. Proceedings [#44] at 48-

50, 55-56, 81-82.

In short, Petitioner does not credibly

demonstrate, as he must do, that omission of the referenced
accomplice instruction resulted in a reasonable probability of
prejudice to him.
Accordingly, the Court concludes Petitioner has not
satisfied Martinez with regard to this claim, and, therefore, its
procedural default is not excused.
D.

Burris failed to ensure the preservation of an adequate
state-court record for appeal, post-conviction, and
federal habeas proceedings. Claim VI.E.

Petitioner argues counsel was ineffective for failing to
obtain a complete transcript of voir dire and a transcript of
what Petitioner characterizes as the waiver of conflict of
counsel inquiry.
The missing voir dire transcript is from the second penaltyphase trial, however, and Burris cannot be faulted for failing to
preserve that record.

The Court also comprehensively addressed

the issue of missing documents in its previous Order [#168] at
54-59, including the alleged missing transcript of the waiver
hearing.

In that Order the Court specifically held the waiver

34 - OPINION AND ORDER

hearing involved Petitioner's waiver of his right to later
challenge the appointment of Burris based on the fact that Burris
was married to a deputy district attorney in Washington County
where the aggravated-murder charges against Petitioner were
pending.

The Court rejected any notion that Petitioner had

waived his ability to raise any claims for ineffective assistance
of counsel and ultimately found "there is not any basis to
conclude the absence of this record had any meaningful impact on
Petitioner's ability to exhaust some or all of his claims."
Accordingly, the Court concludes Petitioner has not
satisfied Martinez with regard to this claim, and, therefore, its
procedural default is not excused.
E.

Second Penalty-Phase Counsel, Keith Walker and Ray
Bassel, failed to obtain a transcript of the medical
examiner's testimony at co-defendant's trial and to
have the medical examiner testify at Petitioner's
resentencing on specific issues. Claim XI.E.1.B.

In Petitioner's First Amended Petition [#85] at 180
Petitioner alleges:
B.

Counsel failed to proper[l]y address the
testimony of medical examiner, Dr. Lewman.
As noted supra in the Second and Sixth Claim
for Relief, Dr. Lewman testified at Cornell's
trial to several critical facts: that the
gag did not have to kill Mr. Ruffner, so his
death was possibly accidental; that Mr.
Ruffner would have been rendered unconscious
within 20 seconds after the gag occluded his
airway; and that none of the wounds on Mr.
Ruffner were likely to have caused severe
physical pain. All of this testimony was
already of-record in the Cornell transcript,

35 - OPINION AND ORDER

but counsel failed to obtain that transcript
and have Dr. Lewman testify on these issues.
The State asserts PCR counsel, Ralph Smith, raised this claim in
Petitioner's Third Amended Petition for Post-Conviction [51-1],
Volume 4, Exhibit 127.

Specifically, Smith alleged Petitioner's

second penalty-phase counsel:
24.

Failed to prepare for and properly cross
examine prosecution witness Dr. Larry Lewman
by failing to adequately emphasize from
Dr. Lewman's testimony that the deceased, John
Ruffner, was uncon[s]cious within 30 seconds and
dead within short minutes and, therefore, did not
suffer prior to his death.

During the PCR proceeding the State argued in its responsive
brief that counsel adequately examined Dr. Lewman and elicited
testimony on cross-examination that Ruffner may have lapsed into
unconsciousness within 30 seconds.

The State maintained this was

sufficient to raise the possibility that the victim did not
suffer very long.
There is an obvious overlap between the federal habeas claim
at issue here and the one that Smith raised in the PCR
proceeding.

Although Petitioner alleged in his federal claim

that second penalty-phase counsel was ineffective for failing to
elicit testimony from the medical examiner that Ruffner could
have lost consciousness within 30 seconds and may not have
suffered long, Smith, in fact, raised this claim during the PCR
proceedings, and, therefore, this claim does not fall under the
purview of Martinez.

On careful examination, however, the Court

36 - OPINION AND ORDER

concludes the claim is a new one to the extent that it raises
allegations faulting second penalty-phase counsel with failing to
elicit additional testimony from Dr. Lewman conceding that (1)
the gag did not have to kill Ruffner and his death could have
been an accident and (2) none of the victim's injuries were
likely to cause him intense physical pain.13

Notwithstanding the

fact that Petitioner had already been convicted on multiple
counts of aggravated murder, this testimony in which Dr. Lewman
conceded a possibility of accidental death was relevant in the
second penalty-phase trial to the question as to whether
Petitioner acted deliberately and with the reasonable expectation
that death would result.

Moreover, the State repeatedly

highlighted evidence that allegedly showed Petitioner tortured
Ruffner and caused him to suffer the same level of excruciating
pain as Randy Brown, which placed the murder, as the State argued
in closing, in the category of one of the "most cold-blooded
killings" warranting the death penalty.14

If the medical

13

At Cornell's trial Dr. Lewman testified that moisture may
have caused the large wad of tissue paper to drift back slightly
and block the victim’s airway. He also testified the air
blockage, head blow, defensive hand wounds, and miscellaneous
abrasions likely did not cause intense physical pain. Finally,
he testified he did not know whether he would characterize the
pain associated with either the neck ligature or other bindings
as "intense."
14

Brown testified Petitioner and another man hogtied and
robbed him approximately ten days before the Ruffner murder.
Brown testified the pain from the bindings was excruciating.
37 - OPINION AND ORDER

examiner had conceded on cross-examination, as he did in
Cornell’s trial, that moisture may have caused the large wad of
tissue paper jammed in the back of the victim's throat to drift
back slightly and to block the airway, that testimony may have
carried weight with one or more jurors.

In addition, if the

medical examiner had testified, as he did in Cornell's trial,
about the level of pain experienced by the victim, that testimony
would have contradicted the State's argument that the torturemurder and the resultant pain experienced by the victim elevated
this murder to the category of “one of the worst killings” and
warranted the death penalty.
As the State noted during the PCR proceeding, Smith raised a
claim faulting second penalty-phase counsel with doing what
counsel actually did:

eliciting testimony from

Dr. Lewman that the victim could have lost consciousness fairly
quickly and did not suffer long.

Smith, however, failed to

allege that counsel was ineffective for failing to elicit
testimony from the medical examiner that (1) the gag did not
necessarily have to kill Ruffner and his death could have been an
accident and (2) Ruffner's injuries likely did not cause him
intense physical pain.15

15

As noted, this testimony was relevant

Smith submitted a copy of the transcript of Cornell’s
trial as an exhibit during the PCR proceedings. Accordingly, he
had ready access to Dr. Lewman’s testimony therein.
38 - OPINION AND ORDER

to issues raised by the State during the second penalty-phase
trial.
The Court, therefore, concludes Petitioner has demonstrated
Petitioner’s underlying claim of ineffective assistance of
counsel has some merit; that it was objectively unreasonable for
PCR counsel not to raise this "substantial" claim; and that there
is a reasonable probability that, but for PCR counsel’s error,
the result of the PCR proceeding would have been different.
Accordingly, the Court concludes the procedural default of
this claim is excused pursuant to Martinez, and the Court will
consider this claim on the merits in due course.
F.

Walker and Bassel failed to present all available
evidence bearing on Petitioner's guilt of
aggravated murder versus felony murder or the
appropriateness of the death penalty, including
evidence of co-defendant's prior history of hog-tying
and the medical examiner's admissions that there was
likely no intent to kill and certainly no torturemurder. Claim XI.E.2.A.

Respondent argues Dr. Lewman's testimony during Cornell's
guilt-phase trial did not have any bearing on the issues before
Petitioner's second penalty-phase jury because the State did not
have to show the victim suffered "intense physical pain," which
is a requirement for proving torture-murder.

Although it is true

that the State did not have to prove this specific element in the
penalty phase, nevertheless, the State highlighted evidence
(presumably to justify the appropriateness of a death sentence)

39 - OPINION AND ORDER

that showed the victim was tortured and that he suffered the same
excruciating pain as Brown.

The Court, therefore, concludes the

evidence was, at a minimum, relevant to counter the State’s
argument.
In addition, Petitioner's second penalty-phase counsel
sought to counter the State's contention that Petitioner was the
leader or "mastermind" of the Brown and Ruffner crimes.

In

closing arguments counsel supported their argument that Cornell
was the leader with evidence that he carried the knife, had
Ruffner's checkbook and credit cards, signed for the meal at the
Fish Grotto, wore Ruffner's rings, and had Ruffner’s suitcases.
Counsel, however, failed to introduce evidence that Cornell had a
prior history of hog-tying a robbery victim years before the
Brown and Ruffner crimes.16

This evidence suggesting that hog-

tying was Cornell's brainchild would have been relevant to show
Cornell rather than Petitioner was the leader and that Cornell
was the more culpable actor responsible for Ruffner's hog-tying
death.
The Court concludes on this record that Petitioner has shown
his claim faulting counsel with failing to introduce this readily

16

The State introduced evidence at Cornell's trial that he
was identified as one of two individuals who robbed a clerk at a
Plaid Pantry store in Portland in 1976 by taking the clerk into a
back room of the store and hog-tying his hands and feet behind
his back with a shoelace and electrical cord (two of the same
items used to truss Ruffner).
40 - OPINION AND ORDER

available evidence has some merit; that it was objectively
unreasonable for PCR counsel not to raise this "substantial"
claim; and that there is a reasonable probability that, but for
PCR counsel’s error, the result of the PCR proceeding would have
been different.

Accordingly, the Court concludes the procedural

default of Petitioner’s claim is excused pursuant to Martinez,
and the Court will consider this claim on the merits in due
course.
For the reasons already discussed regarding second penaltyphase counsel's performance during voir dire, the missing portion
of the second penalty-phase voir dire transcript and any
transcript related to Petitioner's waiver concerning Burris's
representation, the Court concludes Petitioner has not
demonstrated Claims XI.D.3, XI.D.4, and XI.H.3 are substantial
under Martinez, and, therefore, their procedural default is not
excused.

CONCLUSION
For these reasons, the Court resolves the questions whether
Petitioner has established prejudice due to the missing portion
of the second penalty-phase voir dire transcript and whether he
has established cause and prejudice to excuse the default of
41 - OPINION AND ORDER

certain claims of ineffective assistance of trial counsel
pursuant to Martinez v. Ryan as follows:
1.

Petitioner has failed to establish that he has been
prejudiced due to the missing portion of the second
penalty-phase voir dire transcript. Thus, the Court
DISMISSES without prejudice Petitioner’s defaulted
Claims III(B)(6), X(C), XI(D), and XXI(A).

2.

Petitioner has failed to establish that the following
defaulted claims of ineffective assistance of trial
counsel are substantial under Martinez: Claims VI.A.14, VI.B.3, VI.C.8, and VI.E. Accordingly, the Court
DISMISSES without prejudice these defaulted claims. In
addition, the Court DISMISSES without prejudice
defaulted Claims VI.F. and VI.G.

3.

The Court will address the merits of Claim
VI.C.5.B(vii) in due course.

4.

Except as to that part of Claim XI.E.1.B. in which
Petitioner alleges second penalty-phase counsel failed
to elicit testimony from Dr. Lewman that the victim
could have lost consciousness within 30 seconds and may
not have suffered long, Petitioner has demonstrated
Claim XI.E.1.B. has some merit, that PCR counsel
rendered ineffective assistance in failing to raise
this claim, and that its procedural default is excused
pursuant to Martinez. The Court, therefore, will
address the merits of Claim XI.E.1.B. in due course.

5.

Petitioner has demonstrated Claim XI.E.2.A. has some
merit, that PCR counsel rendered ineffective assistance
in failing to raise this claim, and that its procedural
default is excused pursuant to Martinez. The Court,
therefore, will address the merits of Claim XI.E.2.A.
in due course.

42 - OPINION AND ORDER

The Court notes this matter has been pending for more than
eight years.

The time has come to address merits briefing on a

firm schedule that the Court is about to set.

The Court,

therefore, directs counsel to confer and to submit no later than
February 2, 2015, a detailed, jointly-proposed case-management
schedule that enumerates the merits issues still to be resolved
and that proposes a briefing and hearing schedule to do so
without further delay.
IT IS SO ORDERED.
DATED this 15th day of January, 2015.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

43 - OPINION AND ORDER