Haddix v. Belleque

Filing 31

OPINION & ORDER: The Court DENIES the Petition for Writ of Habeas Corpus and DISMISSES this action. Signed on November 24th, 2009 by Judge Anna J. Brown. (eo)

IN THE UNITED STATES D I S T R I C T COURT FOR THE D I S T R I C T OF OREGON STEPHEN JEROME HADDIX, C i v i l No. 07-1853-BR Petitioner, OPINION AND ORDER

v.
BRIAN BELLEQUE, Respondent. K R I S T I N A HELLMAN Assistant Federal Public Defender 1 0 1 SW M a i n S t r e e t Suite 1700 P o r t l a n d , OR 9 7 2 0 4 Attorney for Petitioner JOHN R. KROGER Attorney General JONATHAN W. DIEHL ~ssistant A t t o r n e y G e n e r a l Department of Justice 1 1 6 2 C o u r t S t r e e t NE S a l e m , OR 9 7 3 0 1 Attorneys for Respondent

1 - OPINION AND ORDER -

BROWN, J u d g e . P e t i t i o n e r b r i n g s t h i s h a b e a s c o r p u s a c t i o n p u r s u a n t t o 28 U.S.C.
§

2254.

For the reasons that follow, the Petition for Writ

o f H a b e a s C o r p u s i s DENIED.
BACKGROUND

On A u g u s t 1 ,

2000,

a Deschutes County grand jury indicted Firearm, two

Petitioner on charges of Attempted Murder with a

counts of Unlawful Use of a Dangerous Weapon with a Firearm, two counts of Assault in the Fourth Degree Witnessed by a Minor Child, and one count of Attempted Assault victim identified wife. in the The in the First Degree. was The the when

indictment, charges

Michele from

Haddix, an

Peti tioner' s

arose

incident

P e t i t i o n e r f i r e d a gun in h i s w i f e ' s d i r e c t i o n as she ran away from their house after Petitioner hit and kicked her in the

presence of their minor son. Prior to t r i a l , Petitioner waived his right to a jury and the case was t r i e d to the court. Although Petitioner did not testify,

the defense acknowledged at t r i a l that Petitioner lost his temper and struck his wife at least four times, but counsel denied that Petitioner fired the gun a t his wife or lntended to do so. The t r i a l judge found P e t i t i o n e r g u i l t y of a l l counts and s e n t e n c e d P e t i t i o n e r t o a t o t a l o f 90 m o n t h s o f i m p r i s o n m e n t , t h e mandatory minimum sentence for Attempted Murder.

2 - OPINION AND ORDER -

Petitioner f i l e d a N o t i c e o f A p p e a l , dismissed the appeal.

but then voluntarily

Petitioner then sought s t a t e post-conviction r e l i e f ("PCR"). Following relief. an evidentiary hearing, the PCR trial judge denied

On a p p e a l , t h e O r e g o n C o u r t o f A p p e a l s a f f i r m e d w i t h o u t
Haddix v.

opinion and the Oregon Supreme Court denied review.
Belleque,

213 Or. App.

391,

161 P.3d 955,

rev.

denied,

343 Or.

223, 168 P.3d 1154 (2007). On D e c e m b e r 1 8 , 2 0 0 7 , P e t i t i o n e r f i l e d h i s P e t i t i o n f o r W r i t of Habeas Corpus in this Court. for relief:
Ground One: Ineffective Assistance of Counsel in that trial counsel failed to exercise reasonable professional s k i l l and judgment, that t r i a l counsel's acts and omissions were not the product of an acceptable t a c t i c a l decision and that counsel's performance f e l l below an obj ecti ve standard of reasonableness for defense counsel in similar felony criminal proceedings under the then prevailing professional norms. Petitioner suffered prejudice as a result of counsel's acts and omissions because under the United States Constitution there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been d i f f e r e n t ( S t r i c k l a n d v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)); t h a t P e t i t i o n e r was denied a f a i r t r i a l a s a r e s u l t (Davis v. Alaska, 415 U . S . 3 0 8 , 94 S . C t . 1 1 0 5 ( 1 9 7 4 ) ) , a n d t h a t t h e s t a t e ' s case was not subjected t o meaningful a d v e r s a r i a l t e s t i n g (Smith v. Wainwright, 777 F.2d 609 (11th Cir. 1985)) where t r i a l counsel:

Petitioner alleges three claims

(i) failed to adequately and competently inform peti tioner of the ramifications and consequences of a bench t r i a l versus a t r i a l by jury or to protect petitioner from an invalid waiver of his rights to a t r i a l by jury; 3 - OPINION AND ORDER -

(ii) a d v i s e d p e t i t i o n e r t o w a i v e j u r y a n d p r o c e e d to a t r i a l by the court even though the t r i a l judge had already heard prej udicial but in-admissible evidence during pre-trial motions; (iii) failed to seek permission from the t r i a l court for a substitute judge to try the case; failed to take the necessary steps to secure another judge; and failed to advise petitioner that i t w a s p o s s i b l e t o s e e k a n o t h e r j u d g e who h a d n o t already hear pre-trial in-admissible evidence; (iv) refused to allow petitioner to testify in his own d e f e n s e a t t r i a l a n d / o r i n a d e q u a t e l y a d v i s e d petitioner of the ramifications of not testifying; and/or did not have valid t r i a l strategy reasons to a d v i s e p e t i t i o n e r n o t t o t e s t i f y o n h i s own b e h a l f ; (v) improperly and unreasonably called Dr. Jerry Larsen as a witness; (vi) failed to obj ect to hearsay statements of [Peti tioner' s son] , whose unavailabili ty was stipulated, that were admitted in violation of the Confrontation Clause of the Sixth Amendment of the United States Constitution and in violation of Crawford v. Washington, 124 S. Ct. 1354 (2004).
Ground Two:

P e t i t i o n e r w a s d e n i e d Due P r o c e s s o f Law under the F i f t h , Sixth, and Fourteenth Amendments to the United States Constitution by the t r i a l court in that the t r i a l court failed to exclude, sua sponte, hearsay evidence of an unavailable witness, [Petitioner's son], t h a t was in v i o l a t i o n of the Confrontation Clause of the Sixth Amendment of the United S t a t e s C o n s t i t u t i o n and Crawford v. Washington, 124 S. Ct. 1354 (2004).
Ground Three:

Actual Innocence Miscarriage of Justice. Because Petitioner is not guilty of attempted murder even under the facts presented by the state the sentence t h a t was imposed upon P e t i t i o n e r i s Cruel and Unusual Punishment proscribed by the United State C o n s t i t u t i o n ' s 8th Amendment. Petitioner is actually innocent of the attempted murder charge he was convicted of and i s therefore eligible for r e l i e f under the miscarriage of justice exception for exhaustion and any t i m e l i n e s s problems t h a t may e x i s t . 4 - OPINION AND ORDER -

In

his

Memorandum

In

Support

of

Petition,

Petitioner ( i v) ,

addresses only the claims alleged in Ground One, p a r t s ( i ) , and "for (vi). this As t o t h e r e m a i n i n g c l a i m s , Court's consideration on

Petitioner submits them the existing record."

Respondent argues claims not

P e t i t i o n e r f a i l e d to meet his burden on the in his Memorandum, that he procedurally

addressed

defaulted all of the claims Ground One, parts (i) and

for relief except that alleged in (iv), and that Petitioner is not

e n t i t l e d to r e l i e f on the merits on those claims.

DISCUSSION I. Unaddressed Claims
Respondent argues Petitioner cannot obtain relief on the

claims not addressed i n P e t i t i o n e r ' s Memorandum because c o u n s e l ' s failure to submit argument resulted in a waiver of those claims. The Court, however, does not agree that counsel's failure to

address all of the claims alleged in the original, pro se Petition automatically results in a waiver. D i s t r i c t Judge Marsh of t h i s court addressed t h i s issue in

E l k i n s v . B e l l e q u e , CV 0 6 - 1 1 8 0 - M A :
Respondent r e l i e s upon 28 U.S.C. § 2248 which provides that the allegations of a return to a habeas p e t i t i o n , or an answer t o an order t o show cause, " i f not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true."

5 - OPINION AND ORDER -

However, t h e A d v i s o r y C o m m i t t e e N o t e s t o R u l e 5 o f the Rules Governing Section 2254 Proceedings, provides t h a t a traverse i s no longer contemplated "except under special circumstances", a n d t h a t t h e common l a w assumption of verity of the allegations of a return u n t i l i m p e a c h e d , a s c o d i f i e d i n 28 U . S . C . § 2 2 4 8 , i s n o longer applicable." Advisory Committee Note to Rule 5, 28 f o l l . § 2 2 5 4 ( 1 9 7 6 ) ( c i t i n g S t e w a r t v . O v e r h o l s e r , 186 F.2d 339, 343 n. 5 (D.C. Cir. 1950)). In light of the foregoing, and in the absence of any case law supporting respondent's position that the failure to furnish legal argument in support of habeas claims renders the claims abandoned, I decline to find the claims not traversed to be waived or subject to denial on t h a t basis alone." Opinion and Order (#35) a t 5-6. Judge Marsh's reasoning i s persuasive and, consequently, this Court rejects Respondent's assertion that Petitioner has waived the grounds for relief not specifically addressed in his

Memorandum i n S u p p o r t .

However, having undertaken a review of the

those claims, the Court concludes they are procedurally defaulted, and, therefore, habeas corpus relief is not warranted. Because Petitioner provides no evidence of cause and

prejudice or a fundamental miscarriage of justice to excuse the procedural default, federal habeas corpus relief may (ii), not be

granted on the claims alleged in Ground One, p a r t s and (v),
II.

(iii),

G r o u n d Two, a n d G r o u n d T h r e e .

Procedural Default A. Legal Standards

Generally, a state prisoner must exhaust a l l available state court remedies either on d i r e c t appeal or through collateral

6 - OPINION AND ORDER -

proceedings b e f o r e a f e d e r a l c o u r t m a y g r a n t h a b e a s c o r p u s r e l i e f . 28 U.S.C. § 2254 (b) (1). in principles of comity; have the first of a The exhaustion requirement i s "grounded in a federal system, to address federal and the States should correct alleged

opportunity state

violations

prisoner's

rights.

Coleman

v.

Thompson, 501 u.S. 722, 731 (1991).
A state prisoner satisfies the exhaustion requirement by

fairly presenting his claims to the appropriate state courts at a l l appellate stages offered under state law.

Baldwin v. Reese,

541 U.S. 27, 29 (2004); Casey v. Moore, 386 F.3d 896, 915-16 (9th Cir. 2004). A "fair presentation" requires' that a petitioner

describe the operative facts and the federal legal theory on which he bases h i s claim i n a procedural c o n t e x t i n which t h e claims may be considered.

Davis v. v.

Silva,

511 F.3d 1005, 489 u.s.

1009

(9th Cir. (1989); A

2008);

accord Castille

Peoples,

346,

351

Peterson v. Lampert,

319 F.3d 1153,

1155-56 (9th Cir. 2003).

p e t i t i o n e r may not "fundamentally a l t e r t h e l e g a l claim already considered by the s t a t e courts." 989-990 365-66

Beaty v. Stewart, 303 F.3d 975,
513 u.S. 364,

(9th Cir. 2002); see also Duncan v. Henry, (1995) (holding that the

"mere similarity of claims i s

·

insufficient to exhaust") . When a s t a t e p r i s o n e r f a i l s t o e x h a u s t h i s f e d e r a l c l a i m s i n s t a t e c o u r t , a n d t h e s t a t e c o u r t w o u l d now f i n d t h e c l a i m s b a r r e d

7 - O P I N I O N AND ORDER -

under a p p l i c a b l e s t a t e r u l e s , t h e f e d e r a l c l a i m s a r e p r o c e d u r a l l y defaulted.
Casey, 386 F.3d a t 920; Coleman, 501 U.S. a t 735 n . l .

Habeas review of procedurally defaulted claims i s barred unless the petitioner demonstrates cause for the procedural default and actual prejudice, or that the failure to consider the claims will result in a fundamental miscarriage of justice. at 750.
Coleman, 501 U.S.

B.

Analysis
part vi, Petitioner alleges trial counsel

In Ground One,

provided constitutionally ineffective assistance because he failed to object to hearsay statements of Petitioner's son that were admitted in violation of the Confrontation Clause of the Sixth Amendment and i n v i o l a t i o n of Crawford v. Washington, 541 U.S. 36 (2004) . P e t i t i o n e r r a i s e d t h i s c l a i m a t a l l l e v e l s o f h i s PCR In h i s Memorandum i n Support of the i n s t a n t P e t i t i o n ,

proceeding.

however, Petitioner concedes that Crawford does not apply to his case because his judgment became final before that
Crawford

was

decided.

Petitioner

argues,

nonetheless,

the

hearsay 56

statements were inadmissible under Ohio v. Roberts,

,

448 U.S.

(1980) because they were not "excited utterances" and did not f a l l under any other firmly rooted hearsay exception. At the peR t r i a l , counsel explained the scope of h i s claim t o the judge as follows:

8 - OPINION AND ORDER -

COUNSEL: The argument i s simply t h a t the child was s t i p u l a t e d to as unavailable, and then hearsay came in that I believe to be testimonial and inadmissible under the [sic] Crawford v. Washington. Resp. Exh. 122, p. 42. Similarly, Petitioner's peR a p p e l l a t e

brief and petition for review did not address excited utterances or other hearsay rules, but instead argued Crawford should apply retroactively on c o l l a t e r a l review. No s t a t e c o u r t a c t u a l l y c o n s i d e r e d w h e t h e r t r i a l c o u n s e l w a s ineffective for failing to object to the statements on any grounds other than the confrontation clause issue addressed in Crawford, a fundamentally different legal theory than that addressed in Because Petitioner did not

P e t i t i o n e r ' s Memorandum i n Support.

fairly present the operative federal legal theory argued in his Memorandum defaulted in this Support claim. to the state courts, he does procedurally not present

Because

Petitioner

evidence of cause and prejudice or a fundamental miscarriage of justice to excuse his procedural default, must be denied on these claims.
I I I . Relief on the Merits A. Legal Standards
§

habeas corpus relief

U n d e r 28 U . S . C .

2254(e) (1), as amended by the Antiterrorism

a n d E f f e c t i v e D e a t h P e n a l t y A c t o f 1 9 9 6 , h a b e a s c o r p u s r e l i e f may not be granted on any claim t h a t was adjudicated on the merits in state court, unless the adjudication: 9 - OPINION AND ORDER -

(1) r e s u l t e d i n a d e c i s i o n involved an unreasonable established federal law, as Court of the United States;

t h a t was contrary t o , or application of, clearly determined by the Supreme or

(2) r e s u l t e d i n a decision t h a t was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
A

state

court

decision

is

not

considered

"contrary

toH

established Supreme Court precedent unless i t "applies a rule that contradicts the governing law set forth in [Supreme Court cases]H or "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court]
Andrade,

precedent. H

Lockyer v.

538 U.S.

63,

73

(2003).

A federal habeas court cannot

overturn a state decision "simply because that court concludes in i t s independent judgment that the relevant state-court decision applied clearly established federal law erroneously or

incorrectly.H The

Williams v. Taylor, 529 U.S. 362, 409 (2000).

Supreme

Court

has

established

a

two-part

test

to

determine whether a defendant has received ineffective assistance of counsel. Under this test, a petitioner an must prove standard that of

counsel's

performance

·

fell

below

objective

reasonableness, and that there i s a reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different. 466 U.S. 668, 687-888 (1987).

Strickland v. Washington,

1 0 - OPINION AND ORDER -

To p r o v e a d e f i c i e n t p e r f o r m a n c e o f c o u n s e l ,

a petitioner

must demonstrate t h a t t r i a l counsel "made e r r o r s t h a t a reasonably competent attorney as a diligent and conscientious advocate would not have made." 1985) . The
Butcher v. Marquez,

758 F.2d 373, 376 (9th Cir. assistance was reasonably

test

is

whether

the

effective under the circumstances, and judicial scrutiny must be highly deferential, with the court indulging a presumption that

the attorney's conduct f a l l s within the wide range of reasonable professional assistance.
Strickland, 466 u.s. a t 689.

To e s t a b l i s h t h e s e c o n d p r o n g o f t h e S t r i c k l a n d t e s t , " [ t ] h e defendant must show t h a t t h e r e i s a reasonable p r o b a b i l i t y t h a t , but for counsel's unprofessional errors, the result of the

proceeding would have been different." 694. In determining assistance whether of a

Strickland,

466 u.s. a t by

defendant the

was

prejudiced should

ineffective

counsel,

court

examine

whether t h e " ' r e s u l t of the proceeding was fundamentally u n f a i r or unreliable.'" (9th Cir.1994) (1993)) .
United States v. Palomba,

31 F.3d 1456,1460-61 506 u.s. 364, 368

(quoting Lockhart v.

Fretwell,

1 1 - OPINION AND ORDER -

B.

Analysis 1. Waiver of Jury Trial

Petitioner constitutionally

alleges

trial assistance

counsel because he

provided did not

ineffective

adequately inform Petitioner of the consequences of waiving his right to a jury trial. follows: FINDINGS OF FACT 1. Peti t i o n e r was convicted, a f t e r a t r i a l by the Court, of Attempted Murder with a Firearm, two counts of Unlawful Use of a Dangerous Weapon with a Firearm, two counts of Assault in the Fourth Degree Witnessed by a Minor Child, and one count of Attempted Assault in the First Degree. After consulting with t r i a l counsel, peti tioner knowingly, voluntarily, and intelligently w a i v e d h i s r i g h t t o a j u r y t r i a l . P e t i t i o n e r h a s a n IQ o f 1 1 2 a n d h e s u c c e s s f u l l y r a n h i s own b u s i n e s s p r i o r t o his arrest and convictions for the aforementioned offenses. P e t i t i o n e r ' s claim that he did not understand his right to a jury t r i a l is not credible. Trial counsel reviewed the written jury waiver with petitioner prior to petitioner signing the jury waiver. Trial c o u n s e l e x p l a i n e d t o p e t i t i o n e r t h a t a j u r y may h a v e a difficul t time differentiating between the emotional aspects of his case and the legal standard of proof required for conviction. 2. The t r i a l court reviewed the written jury waiver wi t h p e t i t i o n e r p r i o r t o accepting p e t i t i o n e r ' s jury wai ver. Trial counsel adequately advised his client that he 'had the right to choose between proceeding with a jury t r i a l or a t r i a l by the court. Trial counsel did not unilaterally usurp petitioner's right to choose between a jury t r i a l and a t r i a l by the Court. The t r i a l court adequately reviewed petitioner's right to a jury t r i a l with him. T h e PCR t r i a l j u d g e r e j e c t e d t h i s c l a i m a s

***
1 2 - OPINION AND ORDER -

CONCLUSIONS OF LAW 1. Based on the findings of fact s e t forth above, in the underlying criminal proceeding resulting in p e t i t i o n e r ' s conviction, p e t i t i o n e r was not denied the right to assistance of counsel, as guaranteed by either the United States Constitution and as articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), or the Constitution of the S t a t e of Oregon and as a r t i c u l a t e d by the Oregon Supreme Court in Krummacher v. G i e r l o f f , 290 Or. 867 (1981).

***
6. Trial counsel adequately and effectively advised petitioner regarding his right to a t r i a l by jury and petitioner knowingly, voluntarily, and intelligently waived his right to a jury t r i a l . Resp. Exh. 124, pp. 3-6. The deference peR judge's findings of fact are not entitled to

under §

2254 (e) (1) .

Peti tioner has

established

clear and convincing proof to overcome them. Petitioner argues t r i a l counsel's advice, the written

waiver signed by him, and the t r i a l judge's colloquy on the jury waiver were not sufficient because they did not inform petitioner of the "fundamental nature" of the jury trial right. He a l s o

argues he thought whether to try the case to a court was ultimately h i s a t t o r n e y ' s decision. Trial counsel stated in his

jury or to the

deposition

for

the

PCR

proceeding t h a t he t o l d P e t i t i o n e r i t was P e t i t i o n e r ' s voluntary right to decide whether to waive a jury. The written Waiver of

Jury Trial form Petitioner signed also stated that Petitioner had

1 3 - OPINION AND ORDER -

the r i g h t t o t r i a l b y j u r y a n d t h a t h e v o l u n t a r i l y w a i v e d t h a t right: I, Stephen Jerome Haddix, understand that I have the right to a t r i a l by jury in t h i s case on the charged Attempted Murder, Unlawful Use of a Dangerous Weapon with a Firearm x2, Felony Assault in the Fourth Degree x2, and Attempted Assault in the First Degree v o l u n t a r i l y w a i v e my r i g h t t o a j u r y t r i a l a n d a g r e e t o have the matter t r i e d by a judge. Resp. Exh. 116. Finally, the t r i a l judge queried Petitioner on

his decision to waive a jury: THE COURT: All right, I want to discuss the waiver of jury t r i a l . I was informed yesterday by defense counsel that the defendant had made the decision t o waive a jury, w a i v e h i s r i g h t t o a j u r y t r i a l . L e t me start again. I was informed yesterday by defense counsel that the defendant had made the decision t o waive h i s r i g h t to a jury t r i a l , and then before five o'clock yesterday defense counsel submitted a written waiver of jury t r i a l signed by the defendant, Mr. Haddix. T h a t a l l c o r r e c t Mr. DeHoog? That i s a l l correct, Your Honor. Okay, and Mr. Haddix I j u s t want t o ask you to confirm t h i s . You h a v e m a d e t h e decision to waive your right to jury trial? Yes, t h a t ' s correct. And you s i g n e d t h i s trial, yesterday? Yes, I did. And d i d you have an o p p o r t u n i t y t o discuss this issue, the issue of whether or not you were going to waive your waiver of jury

COUNSEL: THE COURT:

PETITIONER: THE COURT: PETITIONER: THE COURT:

1 4 - OPINION AND ORDER -

right to a jury t r i a l ? Did you discuss this thoroughly with your attorney before you made t h a t decision? PETITIONER: THE COURT: Yes, I did. Okay, I'm going to go ahead then and accept this, and we'll proceed without a jury this morning.

Transcript, Dec. 12, 2000 a t pp. 2-3. T h e e v i d e n c e b e f o r e t h e PCR t r i a l c o u r t s u p p o r t e d t h e court's finding that t r i a l counsel informed Petitioner he had a right to choose whether to waive a jury, and that he knowingly and voluntarily waived that right. As s u c h , t h e PCR c o u r t ' s d e c i s i o n

that Petitioner received constitutionally effective assistance of counsel in t h i s respect was not contrary to or an unreasonable application of clearly established federal law, and Petitioner i s not entitled to habeas corpus relief in this Court.'
2.
Advice Not to Testify

Finally, Petitioner alleges t r i a l counsel ineffectively advised Petitioner of his right to testify and the ramifications of not testifying. The PCR trial judge found trial counsel

inadequately advised Petitioner concerning his right to testify. The judge found, however, that Petitioner was not prejudiced

'Having found counsel's performance was not d e f i c i e n t as t o the jury waiver issue, this Court need not address prejudice. See S t r i c k l a n d , 466 U.S. a t 697 (noting t h a t c o u r t s may consider e i t h e r prong of the t e s t f i r s t and need not address both i f the petitioner fails one). 1 5 - OPINION AND ORDER -

because

trial

counsel's tactical decision

that

Petitioner not On t h i s c l a i m ,

t e s t i f y was appropriate under the circumstances.

the peR judge f i r s t explained h i s reasoning in a l e t t e r decision: One o f P e t i t i o n e r ' s c l a i m s i s t h a t h e w a s n o t g i v e n the opportunity to t e s t i f y at his bench t r i a l . Petitioner asserts that, had he t e s t i f i e d , he would have provided important information regarding his intent at the time of the incident leading to his arrest. Based on the record, i t doesn't appear that Petitioner's testimony, i f offered, would have had a tendency to e f f e c t the outcome of the t r i a l in any way. I did not find Petitioner's testimony at the postconviction t r i a l to be credible. The c r e d i b i l i t y of wi tnesses, including P e t i t i o n e r , i s an issue of fact d e t e r m i n e d b y t h e p o s t c o n v i c t i o n c o u r t . J a m e s v . Cupp, 5 Or. App. 181, 183, 482 P.2d 543 (1971). Additionally, the record, in more than one place, already contained evidence suggesting that Petitioner did not intend to shoot his wife. Defense counsel at the t r i a l level testified, in h i s opinion "there was no e s s e n t i a l element he [Petitioner] could prove and only he could prove . . . H Additionally, P e t i t i o n e r ' s testimony would have opened the door to prior bad acts, specifically an alleged assault that took place in 1993. Finally, as defense counsel testified in his deposition, Petitioner has an anger problem. H i s p r e s e n c e o n t h e s t a n d may h a v e kindled his anger, e s p e c i a l l y since he had made inconsistent statements to authorities and the prosecution in a l l likelihood would have pressed him on those points. For those reasons, I find that Petitioner's testimony would not have had the tendency to effect the outcome of the t r i a l . I do not find that Petitioner i s e n t i t l e d to r e l i e f on t h i s claim even though I find that defense counsel rendered inadequate assistance in failing to properly inform Petitioner of his constitutional right to testify. Defense counsel's t a c t i c a l decision t h a t P e t i t i o n e r should not t e s t i f y was appropriate under the circumstances.

1 6 - OPINION AND ORDER -

Resp.

Exh.

123,

pp.

1-2

(internal

citations

to

PCR

record

omitted) . Findings

T h e PCR j u d g e d i n c l u d e d t h e s e f i n d i n g s i n h i s f o r m a l of Fact and Conclusions o f Law, and again concluded

P e t i t i o n e r was not denied the r i g h t to counsel. CONCLUSIONS OF LAW

***
4. One o f P e t i t i o n e r ' s c l a i m s i s t h a t he was n o t g i v e n the opportunity to t e s t i f y at his bench t r i a l . Petitioner asserts that, had he t e s t i f i e d , he would have provided important information regarding his intent at the time of the incident leading to his arrest. Based on the record, i t does not appear that P e t i t i o n e r ' s testimony, i f offered, would have had a tendency to a f f e c t the outcome of the t r i a l in any way. 5. This Court does find that t r i a l counsel rendered i n e f f e c t i v e a s s i s t a n c e o f counsel when he inadequately advised petitioner regarding his right to testify during his trial. However, t r i a l counsel's t a c t i c a l decision t h a t p e t i t i o n e r should not t e s t i f y was appropriate under the circumstances and p e t i t i o n e r ' s testimony would not have had a tendency to effect the outcome of his case under Strickland and Krummacher and would not have added anything of benefit to petitioner's case. Resp. Exh. 124, pp. 5-6. The record. PCR t r i a l c o u r t ' s findings are supported by the

At t r i a l ,

one of the investigating officers t e s t i f i e d

Petitioner told him at the time of , he incident t h a t he did not t intend to shoot his wife and t h a t he f i r e d the weapon into the a i r and not at his wife. In addition, Petitioner's expert witness

also t e s t i f i e d that Petitioner did not have the intent to k i l l his

1 7 - OPINION AND ORDER -

wife, s u b s t a n t i a t i n g P e t i t i o n e r ' s s t a t e m e n t s t o p o l i c e t h e n i g h t of the crime. Petitioner argues his testimony would have been c r i t i c a l on the issue of d i f f e r i n g statements he made to i n v e s t i g a t o r s regarding the trajectory of his shots. contends, situation On t h i s i s s u e , P e t i t i o n e r

the t r i a l judge needed to hear Petitioner explain the and provide a reason for why the record contained

different statements. Petitioner explained: COUNSEL: PETITIONER:

D u r i n g c r o s s - e x a m i n a t i o n a t t h e PCR t r i a l ,

And w h a t d i d y o u i n i t i a l l y t e l l o f f i c e r s was the l o c a t i o n t h a t you were shooting? T h e y a s k e d me w h e r e I w a s s h o o t i n g , a n d at that point I started to be concerned about all the questioning about firing a gun, because I d i d n ' t think there was anything wrong with t h a t , so I told them that I shot at the tree initially. And y o u a d m i t t e d y o u l i e d ? Oh, I d i d l i e a t t h a t t i m e . I d i d n o t t e l l them the whole - the whole story. I did shoot at the tree, but I also shot towards the corral. And t h e b a c k b o a r d happens to be in direct line with the corral. 61. As n o t e d , however, t h e PCR t r i a l j u d g e

COUNSEL: PETITIONER:

Resp.

Exh.

122, p.

found Petitioner's testimony not credible. The PCR trial court's decision that Petitioner's

testimony would not have a l t e r e d the outcome of the t r i a l was properly made a f t e r an opportunity t o evaluate the p o t e n t i a l value

18 - OPINION AND ORDER -

of P e t i t i o n e r ' s t e s t i m o n y , i n c l u d i n g P e t i t i o n e r ' s d e m e a n o r .

The

PCR t r i a l j U d g e r e a s o n a b l y f o u n d t h a t a n y e r r o r b y t r i a l c o u n s e l in advising Petitioner about his right to testify did not

prejudice Petitioner. unreasonable

His conclusion was not contrary t o or an of
Strickland and

application

Petitioner

is

not

e n t i t l e d to habeas corpus r e l i e f on t h i s claim.
CONCLUSION

f o r t h e s e r e a s o n s , t h e C o u r t DENIES t h e P e t i t i o n f o r W r i t o f H a b e a s C o r p u s a n d DISMISSES t h i s a c t i o n . I T I S SO ORDERED. DATED t h i s ; L ~

fh-

day of November, 2009.

--~------United States District Judge

1 9 - OPINION AND ORDER -

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