Satterfield v. Mills
Filing
50
OPINION AND ORDER. The Amended Petition for Writ of Habeas Corpus 23 is DENIED, and this proceeding dismissed with prejudice. The court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). IT IS SO ORDERED. Signed on 05/10/2011 by Judge Garr M. King. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
RAYMOND SHAWN SATTERFIELD,
Petitioner,
v.
DON MILLS
Respondents.
KRISTINA HELLMAN
Assistant Federal Public Defender
101 SW Main Street, Suite 1700
Portland, OR 97204
Attorney for Petitioner
JOHN KROGER
Attorney General
KRISTEN E. BOYD
Oregon Department of Justice
1162 Court Street, NE
Salem, OR 97301
Attorneys for Respondents
1 - OPINION AND ORDER -
Civil No. 08-1133-KI
OPINION AND ORDER
KING, District Judge.
Petitioner,
in
custody
of
the
Oregon
Department
of
Corrections, brings this habeas corpus action pursuant to 28 U.S.C.
§ 2254.
He challenges his state conviction asserting he did not
receive effective assistance of trial counsel or of appellate
counsel as guaranteed by the Sixth Amendment to the United States
Constitution, and that the state post-conviction court's denial of
relief was objectively unreasonable. (#34, at 2.)
For the reasons
set forth below, the Amended Petition for Writ of Habeas Corpus
(#23) is DENIED, and this proceeding is dismissed.
BACKGROUND
In 1997, Petitioner was indicted on one count of Rape in the
First Degree, two counts of Sodomy in the Second Degree, and two
counts of Sexual Abuse in the First Degree for acts alleged by his
girl-friend's daughter.
hung jury.
(#34, at 2.)
His first trial ended in a
In July 1998, a second jury trial in which Petitioner
was represented by the same attorney resulted in his conviction on
all counts.
(Id.)
Through a combination of consecutive and
concurrent sentences the trial court imposed a sentence totaling
200 months imprisonment.
(#42.)
Petitioner directly appealed his conviction and sentence, but
the Oregon Court of Appeals affirmed without opinion, and the
Oregon Supreme Court denied review.
State v. Satterfield, 162
Or.App. 299, 985 P.2d 240, rev. denied 329 Or 479 (1999).
2 - OPINION AND ORDER -
Petitioner filed for post-conviction relief ("PCR") but the PCR
court denied relief issuing an opinion letter and accompanying
findings of fact and conclusions of law.
and 142.)
(Respt's Exs. 137, 141,
Petitioner appealed, but the Oregon Court of Appeals
affirmed without opinion, and the Oregon Supreme Court denied
review. (Respt's Exs. 149, 148.) Appellate judgment issued May 7,
2008.
(Id.)
Petitioner filed for federal habeas relief on September 29,
2008.
In his Amended Petition for Writ of Habeas Corpus (#23),
Petitioner presents two grounds for relief:
(1) Petitioner was
denied the effective assistance of trial counsel because counsel
failed to "call a necessary expert witness to rebut the state's
expert on a key issue at trial;"
and (2) Petitioner was denied the
effective assistance of appellate counsel because counsel "failed
to appeal the trial court's ruling that permitted
expert witness's] testimony."
(#34, at 10 and 16.)
[the state
He argues it
was objectively unreasonable for the PCR court to deny relief on
these claims.
DISCUSSION
I.
Standards of Review
An application for a writ of habeas corpus shall not be
granted unless the adjudication on the merits in State court was:
(1) contrary to, or involved an unreasonable application
of, clearly established Federal law as determined by the
Supreme Court of the United States; or
3 - OPINION AND ORDER -
2)resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
In Williams v. Taylor, 529 U.S. 362, 386-389
(2000), the Supreme Court construed this provision as requiring
federal habeas courts to be highly deferential to the state court
decisions under review. In Cullen v. Pinholster, ___ U.S. ___; 131
S.Ct. 1388, 1398-1402 (April 4, 2011) the Court reiterated the
highly deferential nature of federal habeas review, and limited
federal review "to the record that was before the state court that
adjudicated the claim on the merits."
"'Clearly established Federal law' is the governing legal
principle or principles set forth by the Supreme Court at the time
the state court renders its decision."
Lambert v. Blodgett, 393
F.3d 943, 974 (9th Cir. 2004) cert. denied, 126 S. Ct. 484 (2005).
An "unreasonable application" of clearly established federal law
occurs when "the state court identifies the correct governing legal
principle from [the Supreme] Court's decisions but unreasonably
applies that principle to the facts of the prisoner's case."
Lambert, 393 F.3d at 974 (citing Williams).
"The state court's
application of . . . law must be objectively unreasonable."
Williams, 529 U.S. at 411 (emphasis added).
"[A] federal habeas
court may not issue the writ simply because that court concludes in
its independent judgment that the state court decision applied
clearly established federal law erroneously or incorrectly."
4 - OPINION AND ORDER -
Id.
"[A] habeas court must determine what arguments or theories ...
could have supporte[d] the state court's decision; and then it must
ask whether it is possible fairminded jurists could disagree that
those arguments or theories are inconsistent with the holding in a
prior decision of this Court."
Pinholster, 131 S.Ct. at 1402
(citing Harrington v. Richter, 562 U.S. ___,___, 131 S.Ct. 770, 786
(2011)).
A state court's determination that a claim lacks merit
precludes federal habeas relief so long as 'fairminded jurists
could disagree' on the correctness of the state court's decision."
Richter,
___
U.S.
___,
131
S.Ct.
770,
786
(2011)
(quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
The last reasoned decision by the state court is the basis for
review by the federal court.
See Ylst v. Nunnemaker, 501 U.S. 797,
803-04 (1991); Franklin v. Johnson, 290 F.3d 1223, 1233 n.3 (9th
Cir. 2002).
In this proceeding, the Court reviewed the state PCR
trial court decision.
II.
Ground for Relief One
Petitioner alleges he was denied the effective assistance of
trial counsel because counsel failed to "call a necessary expert
witness to rebut the state's expert on a key issue at trial."
(#34, at 10.)
This claim encapsulates the following claims in
Petitioner's Third Amended Petition for PCR Relief:
(23) Failed to bring in an expert to talk about sources
of contamination which is admitted to by the
victim.
5 - OPINION AND ORDER -
(24) Failed to have the expert testify regarding all the
causes
of
contamination
which
effected
the
testimony of the victim in this case.
(25) Failed to have an expert come in regarding the
issue of suggestibility and false memory which were
present in this case.
(Respt.'s Ex. 108 at 8-9).1
Petitioner argues counsel knew the
state planned to call an expert witness, that counsel recognized
the danger of the expert's testimony, and that counsel "fought
vigorously to keep her testimony from the jury," but failed to call
a
defense
expert
to
counter
the
testimony.
(Id.
at
12.)
Petitioner further argues that his first trial, at which the state
did not call an expert witness and which resulted in a hung jury,
is evidence there is a reasonable probability that counsel's
failure to call an expert to rebut the state's expert witness led
to his conviction in the second trial.
contends
the
unreasonable.
state
PCR
court
(Id. at 22.)
denying
(Id. at 15.)
relief
was
Petitioner
objectively
For the reasons set forth below, the
Court disagrees.
The
clearly
established
federal
law
governing
claims
of
ineffective assistance of counsel is Strickland v. Washington, 466
U.S. 668, 687-88 (1984).
Pinholster, 131 S.Ct. at 1403.
Under
Strickland, a petitioner must prove 1) that counsel's performance
fell below an objective standard of reasonableness and, 2) that
1
These claims were discussed in Petitioner's PCR Memorandum as
numbers 21, 22, and 23. (Respt.'s Ex. 109 at 10-11.)
6 - OPINION AND ORDER -
there
is
a
reasonable
probability
that,
but
for
counsel's
unprofessional errors, the result of the proceeding would have been
different.
Bell v. Cone, 535 U.S. 685, 695 (2002); Williams, 529
U.S. at 390-91; Strickland, 466 U.S. at 687-88.
"A reasonable
probability is a probability sufficient to undermine confidence in
the outcome."
Strickland, 466 U.S. at 694.
"The benchmark for
judging any claim of ineffectiveness must be whether counsel's
conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a
just result."
Id. at 686.
"Judicial scrutiny of counsel's
performance must be highly deferential," id. at 689, and "a court
must
indulge
[the]
strong
presumption
that
counsel
made
all
significant decisions in the exercise of reasonable professional
judgment."
Pinholster,
131
S.Ct.
at
1407
(quoting
Strickland)(internal quotation marks omitted.) The reasonableness
of counsel's conduct must be evaluated in light of the facts of the
case
and
the
circumstances
Strickland, 466 U.S. at 690.
at
the
time
of
representation.
In addition, a doubly deferential
standard of review applies to federal habeas review of ineffective
assistance of counsel claims.
Cheney v. Washington, 614 F.3d 987,
995 (9th Cir. 2010) (deference under § 2254 and deference under
Strickland).
The record before the PCR court included, in relevant part,
7 - OPINION AND ORDER -
the
trial
transcript
for
both
of
Petitioner's
jury
trials,
Petitioner's PCR deposition, the deposition of psychologist Robert
Stanulis, Ph.D., an expert witness Petitioner engaged for the PCR
proceeding, and a number of other depositions and affidavits
submitted
by
the
parties.
(Respt.'s
Exs.
110
and
115.)
Petitioner's expert witness, Robert Stanulis, also testified in
person during the PCR trial.
(Respt.'s Ex 135 at 14-40.)
After
the PCR trial, with permission from the court, Petitioner submitted
a Supplemental Trial Memorandum to further support his claim of
ineffective assistance of appellate counsel.
(Respt.'s Ex. 137 at
2; Ex. 136.)
The PCR court "considered the record evidence submitted by the
parties, made determinations as to its relevancy and materiality,
assessed the credibility of witnesses whether written or oral and
ascertained for its purposes the probative significance of the
evidence presented." (Respt.'s Ex. 137, at 2.)
In 20 page opinion
letter detailing the case, discussing and analyzing the claims, and
presenting the court's basis for denying relief on all claims, the
PCR court stated:
[W]hether trial counsel had contacted, but decided not to
call an expert would appear to be a trial tactic.
(Id. at 19.)
Petitioner claims that trial counsel was deficient in not
bringing "in an expert to talk of sources of
contamination which is admitted to by the victim". The
argument is that this was deficient representation
8 - OPINION AND ORDER -
because she was allowed to testify and persuade the jury
to convict the petitioner "without the jury knowing of
the contaminated testimony" (emphasis added). The main
problem beyond that already discussed is that the jury
was aware of the sources of contamination[.]
Petitioner's expert at the [PCR] trial agreed that
several if not all of the sources were in evidence.
(That the victim had spoken with the mother, that she had
received a video tape etc.)
(Id. at 20.)
The PCR court also issued extensive Findings of Fact and
Conclusions of Law, holding:
Petitioner also has failed to prove trial counsel was
ineffective for failing to call an expert witness
regarding "sources of contamination" the victim may have
been subjected to when testifying about petitioner's
sexual abuse. Trial counsel did make the jury aware of
the "sources of contamination" which petitioner's expert
offered at the post-conviction trial (namely that the
victim had spoken to her mother about the allegations,
that the victim had reviewed her video-taped interview
with law enforcement protective workers, that the victim
was aware her mother wanted petitioner in jail, etc.)
(Respt.'s Ex. 138 at 18-19.)
Based on the record, the Court finds: (1) it was not
unreasonable for the PCR court to conclude trial counsel's decision
not to call a defense expert could be attributed to trial strategy
given the PCR trial testimony of Petitioner's expert; (2) the PCR
trial court findings are supported by the record; and (3) the PCR
court reviewed counsel's performance deferentially, as is required
under Strickland. Applying the deferential standard of review that
governs federal habeas claims of ineffective assistance of counsel,
the Court finds Petitioner has not shown it was an unreasonable
9 - OPINION AND ORDER -
application of Strickland for the PCR court to deny Petitioner
relief.
Accordingly, habeas relief is precluded.
III. Ground for Relief Two
Petitioner alleges he was denied the effective assistance of
appellate counsel because counsel failed to appeal the trial
court's ruling that permitted the prosecution's expert witness to
testify.
(#34 at 16.)
Petitioner argues "it was an objectively
unreasonable determination of the facts [for the PCR court] to
conclude that [Petitioner] 'produce[d] no facts or law to support
any specific claim of a failure by counsel which would have made
any difference in the outcome of the case."
2.)
(Respt.'s Ex. 140 at
Petitioner notes he had directed the PCR court's attention to
State v. Marrington, 335 Or. 555, 73 P.3d 911, 916 (Or. 2003)
(holding expert's testimony possessed the potential to influence
trier of fact as scientific assertions and required an appropriate
foundation as established in State v. Brown, 297 Or. 404, 687 P.2d
751 (1984) and State v. O'Key, 321 Or. 285, 899 P.2d 663 (1995)).
The
Strickland
standards
outlined
previously
apply
to
reviewing claims of deficient representation by appellate counsel,
with the distinction that prejudice is found when there is a
reasonable probability that, but for counsel's failure to raise the
issue, the petitioner would have prevailed on appeal.
Smith v.
Robbins, 528 U.S. 259, 285-86 (2000); Moormann v. Ryan, 628 F.3d
1102, 1106 (9th Cir. 2010)(citing Smith).
10 - OPINION AND ORDER -
Appellate counsel's
representation must be reviewed in the context of the circumstances
existing at the time of representation.
690.
Strickland, 466 U.S. at
And federal habeas review is limited to the record on which
the state court adjudication of Petitioner's claim was based.
Pinholster, 131 S.Ct. at 1398-1402.
In addressing Petitioner's claims related to "testimony" of
[the state's expert witness] in its opinion letter, the PCR court
stated:
Petitioner claims that [the state's expert] witness
should not have been allowed to testify because there was
no scientific basis for the testimony citing State v.
Brown, 297 Or 404, 687 P2d 751 (1984) and similar cases.
[T]he objection that the trial counsel made to the
introduction of expert testimony was: "There's nothing
in evidence about the existence of any scientific
evidence that supportive". (Ex. 102, Vol.5, pg. 306,
lines 3-5.)
Further, counsel had filed a motion in limine and also
argued that the testimony was not relevant because the
facts were not supported. (supra pg. 307, lines 3-8).
In that Petitioner does not claim any specific
"testimony" as error in the context of the claim, it must
be interpreted to go to the entire testimony (or at least
any testimony which would require some foundation as an
expert).
Just how trial counsel could have objected
properly" is not claimed or argued.
This claim is
without merit.
The record further establishes that the Court did
interpret the objection as requiring the State v. Brown
test (supra, pg. 311, lines 10-12). And, that the trial
court found these criteria to exist. (supra pgs. 315316, lines 21-2).
***
11 - OPINION AND ORDER -
Petitioner claims various things related to the State's
expert, [ ], (Claims 18-20) including that there was no
scientific basis for her testimony and that trial counsel
failed to object. As discussed above, under Petitioner's
claim 5, Petitioner is wrong.
***
The argument is that this was deficient representation
because she was allowed to testify and persuade the jury
to convict the petition "without the jury knowing of the
contaminated testimony" (emphasis added).
The main
problem beyond that already discussed is that the jury
was aware of the sources of contamination[.]
Petitioner's expert at the post conviction trial agreed
that several if not all of the sources were in evidence.
Petitioner has not established that had the matter been
raised on appeal that it was likely to have prevailed.
It is not reasonably probable that any acts of failures
of appellate counsel would have affected the outcome.
(Respt.'s Ex. 137 at 18-20.) (Emphasis added.)
Petitioner argues that despite "clear holdings from the Oregon
courts" the trial court permitted the state's expert to testify
without
the
necessary
foundational
requirement,
and
"had
the
[trial] court conducted the required analysis under Brown and O'Key
the result would have been the exclusion of [the] testimony." (#34
at 16-17.)
The PCR court, however, found the trial court did
conduct
required
finding.
the
analysis,
and
the
record
supports
that
(Trial Tr. at 307-316.)
The record shows the PCR court devoted considerable attention
to Petitioner's claims challenging the testimony of the state's
expert witness, and the purpose for which Petitioner was presenting
12 - OPINION AND ORDER -
an expert witness at the PCR proceeding.
23.)
(Respt.'s Ex. 135 at 16-
The PCR court also heard the parties argue the applicability
of various Oregon court cases governing the admissibility of expert
testimony.
(Id. at 43-47.)
Under Strickland, appellate counsel's performance must be
reviewed in light of the law existing at the time Petitioner's
appeal was filed.
466 U.S. at 689.
Petitioner directed the PCR
trial court to a 2003 Oregon Supreme Court opinion supporting his
interpretation
of the
law on
expert
testimony.
His
appeal,
however, was filed in 1999, and final appellate judgement issued
January 4, 2000.
Appellate counsel cannot be faulted for not
anticipating changes in the law.
Smith v. Murray, 477 U.S. 527,
536 (1986).
On review of the record, the Court finds the PCR record
supports the PCR trial court's finding that Petitioner did not show
there was a reasonable probability that, but for appellate counsel
failing to raise as error the admission of expert testimony, he
would have prevailed on appeal.
Under Strickland, failure to show
either deficient representation or prejudice causes a claim to
fail. Accordingly, it was not objectively unreasonable for the PCR
court to deny Petitioner relief.
precluded.
/ / /
/ / /
13 - OPINION AND ORDER -
Habeas relief is therefore
CONCLUSION
Based on the foregoing, the Amended Petition for Writ of
Habeas Corpus (#23) is DENIED, and this proceeding dismissed with
prejudice.
The
Appealability
substantial
on
court
the
showing
of
declines
basis
the
that
denial
to
issue
petitioner
of
a
a
Certificate
has
not
constitutional
pursuant to 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
DATED this
10th
day of May, 2011
/s/ Garr M. King
Garr M. King
United States District Judge
14 - OPINION AND ORDER -
made
of
a
right
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