McCarthy v. Nooth
Filing
36
OPINION AND ORDER. Petitioners amended habeas corpus petition 14 is DENIED, and this proceeding is DISMISSED, with prejudice. Because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability is DENIED. See 28 U.S.C. § 2253(c)(2). IT IS SO ORDERED. Signed on 10/26/2011 by Judge Garr M. King. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
MILTON DOUGLAS McCARTHY,
Petitioner,
v.
MARK NOOTH, Superintendent,
Snake River Correctional
Institution,
Respondent.
Amy Baggio
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
John R. Kroger
Attorney General
Kristen E. Boyd
Assistant Attorney General
Department of Justice
1162 Court Street N.E.
Salem, Oregon 97301-4096
Attorneys for Respondent
KING, Judge
1 -- OPINION AND ORDER
03:09-cv-1492-KI
OPINION AND ORDER
Petitioner, an inmate at Snake River Correctional Institution,
brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254.
For the reasons set forth below, petitioner’s amended petition for
writ of habeas corpus (#14) is DENIED, and this proceeding is
DISMISSED, with prejudice.
BACKGROUND
On
May
2,
2001,
petitioner
was
indicted
on
charges
of
Attempted Murder, Attempted Assault in the First Degree, Assault in
the Second Degree, Burglary in the First Degree, Unlawful Use of a
Weapon, Assault in the Fourth Degree, and Menacing.
In a second
proceeding, petitioner was indicted on a single charge of Assault
in
the
Second
Degree.
All of
the
charges
arose out
of
an
altercation between petitioner and his estranged girlfriend,
Linda Rhoads.
In a third proceeding, petitioner was indicted of
being a Felon in Possession of a Firearm (3 counts), and Criminal
Mischief in the Second Degree.
Petitioner declined a plea offer,
and the cases were consolidated for trial.
At trial, Linda Rhoads testified the petitioner assaulted her
on April 24, 2001.
Rhoads testified that petitioner threw her to
the ground, struck her repeatedly in the head with his fists,
strangled her, and dragged the tip of a knife from her chest to her
neck while yelling that he was going to kill her.
TR at 251-60.
In his defense, petitioner sought to prove that he lacked the
requisite intent and/or acted in self defense, as a result of Post2 -- OPINION AND ORDER
Traumatic Stress Disorder (PTSD).
Petitioner testified to his
Vietnam service as an infantryman in a combat unit which had a 90%
injury or death rate.
TR at 328-29.
Petitioner testified that Ms.
Rhoads was often aggressive toward him, and that on April 24, 2001,
she approached him with a knife screaming that she wished he were
dead.
TR at 349-50.
Petitioner testified that he “reacted” by
grabbing Rhoads by the throat, pushing her to the ground, and
sitting on her.
TR at 350-52, 399 & 404.
Petitioner admitted that
he held the butt of the knife to her chest and probably struck
Rhoads, but testified that he never intended to kill her.
TR at
352-54 & 401-03.
Petitioner offered the expert testimony of Dr. Robert G.
Stanulis, who testified that petitioner suffers from PTSD caused by
his combat experiences.
TR at 442.
Dr. Stanulis testified that
petitioner’s PTSD could affect his ability to perceive a threat in
such a way that defendant would feel the need to defend himself.
TR at 445, 473, & 493-94.
In rebuttal, the prosecution offered the
expert testimony of Dr. George Suckow.
Dr. Suckow testified that
PTSD is basically an anxiety disorder, that petitioner showed some
elements of PTSD, but did not have “much” of a history of hypervigilence.
TR at 514, 517-18 & 526-27.
Dr. Suckow opined that
defendant was in control, and could form intent, at the time of his
altercation with Rhoads.
3 -- OPINION AND ORDER
TR at 518 & 527.
On December 19, 2001, the jury returned a guilty verdict on
all counts.
TR at 681-83. Petitioner was sentenced to a 226-month
term of imprisonment.
TR at 712-16; Resp. Exh. 101.
Petitioner
filed a direct appeal, challenging the trial court’s refusal to
instruct the jury on Post-Traumatic Stress Disorder, and the
legality of his sentences.
The Oregon Court of Appeals affirmed
without opinion, and the Oregon Supreme Court denied review. State
v. McCarthy, 192 Or. App. 602, 89 P.3d 96, rev. denied, 337 Or. 182
(2004).
Petitioner sought state post-conviction relief, alleging eight
claims of ineffective assistance of trial counsel, and challenging
the constitutionality of his consecutive sentences.
Included in
his second amended petition was a claim that trial counsel “failed
to insure that he called an expert witness who properly evaluated
petitioner and could testify to the effects that his post-traumatic
stress disorder . . . would have given his past patterns of mutual
domestic violence.”
Resp. Exh. 108 at 4.
Petitioner testified in his post-conviction deposition that
trial
counsel
should
have
hired
an
expert
that
would
have
investigated petitioner’s personal history more thoroughly and
should have known, upon reviewing Dr. Stanulis’ report, that his
testimony would not substantiate petitioner’s PTSD defense.
Exh. 114 at 41 & 51-54.
4 -- OPINION AND ORDER
Resp.
Additionally, petitioner offered the deposition testimony of
Dr. Linda M. Grounds who opined that Dr. Stanulis’ evaluation of
petitioner should have included a more extensive consideration of
petitioner’s medical, mental, and criminal records; interviews of
family and friends; and an evaluation of petitioner’s relationships
with women.
Resp. Exh. 117 at 20-21, 40-48, 56-59.
Additionally,
Dr. Grounds opined that Dr. Stanulis had failed to tie petitioner’s
PTSD to the offense conduct at issue.
Id. at 31-32 & 36.
However,
Dr. Grounds conceded that she knows of no information that would
render Dr. Stanulis an unqualified expert, and testified that she
had not conducted an evaluation of petitioner using her suggested
protocol.
Id. at 34-35, 41-45.
Petitioner’s trial counsel, Michael L. Finch, attested to his
investigation and preparation for trial, as it relates to Dr.
Stanulis, as follows:
2.
While investigating Mr. McCarthy’s case and his
background, I learned from investigator Jack Ashworth
that Dr. Robert Stanulis is a psychologist whom defense
attorneys use from time to time to evaluate their
criminal defense clients and, if necessary, testify in
court. I contracted Dr. Stanulis’s office and obtained
a copy of his curriculum vitae. I also contacted Dr.
Stanulis
and,
after
satisfying
myself
of
his
qualifications and experience, arranged for him to
interview Mr. McCarthy and do a preliminary evaluation.
I asked Dr. Stanulis to refrain from doing a written
evaluation until after he and I had had a chance to
discuss his preliminary findings.
3.
I relied upon Dr. Stanulis to perform a
reasonably thorough and competent assessment of Mr.
McCarthy.
I had no reason to doubt Dr. Stanulis’
5 -- OPINION AND ORDER
education or his qualifications, and no evidence to
suggest that Dr. Stanulis would not be a good defense
witness at trial. To assist his review, I supplied Dr.
Stanulis with a complete copy of the police reports and
any medical records I had obtained concerning Mr.
McCarthy. I do not recall every document I provided to
Dr. Stanulis. I know, though, that I never withheld any
documents from Dr. Stanulis.
4.
Dr. Stanulis interviewed Mr. McCarthy on two
separate occasions and had him tested on a third visit.
He produced a written evaluation dated October 21, 2001.
A true and accurate copy of the report, and along with
copies of the tests administered to Mr. McCarthy, are
attached to this affidavit as Exhibit 1.
* * * * *
6.
Dr. Stanulis concluded that Mr. McCarthy was
suffering from moderate to severe PTSD symptoms and that
his mental status was impaired to such an extent on April
24, 2001, he was unable to form the intent to assault Ms.
Rhoads. In essence, Dr. Stanulis found that Mr. McCarthy
had diminished mental capacity, for purposes of a defense
under ORS 161.300, but not a mental disease or defect
defense for purposes of ORS 161.295.
7.
In my opinion, Dr. Stanulis was a good defense
witness and did as well on the stand as could have been
reasonably expected. Similarly, Dr. Suckow was generally
a good witness for the prosecution.
Resp. Exh. 115 at 2-3.
The post-conviction court issued a letter opinion denying
relief as follows:
Trial counsel chose to consult with Dr. Robert
Stanulis to determine if the petitioner suffered from
PTSD.
Dr. Stanulis evaluated the petitioner and
testified that the petitioner suffered from PTSD as a
result of his combat experiences in Vietnam. Further he
testified about how PTSD effects a person’s mental state.
Dr. Stanulis is a licensed psychologist, with extensive
experience testifying as a witness.
In fact the
petitioner’s own expert states that it was reasonable
6 -- OPINION AND ORDER
that Dr. Stanulis be chosen as an expert for the defense.
Given that evidence, the petitioner has failed to meet
his burden of proof to show that trial counsel was
ineffective for choosing Dr. Stanulis as the expert to
testify at the petitioner’s trial.
Resp. Exh. 121 at 2.
The
post-conviction
court
subsequently
issued
a
formal
decision setting forth the following findings of facts:
13. The evidence in the record shows that Michael Finch
made a reasonable choice when he selected Dr. Robert
Stanulis as a defense expert and had Dr. Stanulis
evaluate petitioner’s mental state.
14.
Petitioner did not submit any credible evidence
demonstrating what a different expert would have found,
had Michael Finch selected a different defense expert to
evaluate petitioner’s mental state.
15. Dr. Linda Grounds’ credentials as a psychologist are
impressive, but Dr. Grounds did not actually gather and
examine
records
and
did
not
actually
evaluate
petitioner’s mental state.
Resp. Exh. 122 at 44-5.
The Oregon Court of Appeals affirmed the denial of postconviction relief, without opinion, and the Oregon Supreme Court
denied review.
McCarthy v. Belleque, 226 Or. App. 419, 204 P.3d
177, rev. denied, 346 Or. 363 (2009).
DISCUSSION
In the instant proceeding, petitioner alleges that (1) trial
counsel was ineffective because he presented a defense of self
defense, modified by PTSD, without first adequately investigating
and preparing the defense expert; and (2) petitioner is actually
7 -- OPINION AND ORDER
innocent of “some/all” counts of conviction.
Amended Petition at
3-4; Petitioner’s Supporting Brief at 2 & 6.1
I.
Ineffective Assistance of Counsel.
A
defense
counsel’s
failure
to
adequately
investigate
a
defendant’s potential mental health defense may give rise to a
constitutional claim of ineffective assistance of counsel.
See
Daniels v. Woodford, 428 F.3d 1181, 1202-04 (9th Cir. 2005);
Jennings v. Woodford, 290 F.3d 1006, 1013-16 (9th Cir. 2002); Bloom
v. Calderon, 132 F.3d 1267, 1277-78 (9th Cir. 1997).
In Strickland v. Washington, the Supreme Court established a
two-part
test
to
determine
whether
constitutionally deficient counsel.
a
defendant
has
received
466 U.S. 668, 687 (1984).
Under this test, petitioner must not only prove that counsel’s
representation fell below an objective standard of reasonableness,
but also that the deficient performance prejudiced his defense.
Bell v. Cone, 535 U.S. 685, 695 (2002); Williams v. Taylor, 529
U.S. 362, 390-91 (2000); Strickland, 466 U.S. at 691-92.
In order to satisfy the prejudice prong under Strickland, a
petitioner must show that there is a reasonable probability that,
but
for
counsel's
unprofessional
errors,
the
result
of
the
proceeding would have been different. Strickland, 466 U.S. at 694;
Jennings, 290 F.3d at 1016-17; Bloom, 132 F.3d at 1271.
1
In
Petitioner expressly waived subsections 2(b), 2c, and 3 of
Ground for Relief One. Petitioner’s Supporting Brief at 2 n.2.
8 -- OPINION AND ORDER
evaluating proof of prejudice, this court "must consider the
totality of the evidence" before the jury. Strickland, 466 U.S. at
696; see also Daniels, 428 F.3d at 1201 (to determine whether
petitioner was prejudiced, court compares evidence that actually
was presented to the jury with that which could have been presented
had counsel acted appropriately).
"[A] verdict or conclusion only
weakly supported by the record is more likely to have been affected
by errors than one with overwhelming record support."
Strickland,
466 U.S. at 696.
In the instant proceeding, it is apparent that petitioner has
failed
to
demonstrate
that
he
suffered
prejudice
either
by
counsel’s selection of Dr. Stanulis as an expert, or due to
deficiencies in counsel’s investigation and preparation as it
related to Dr. Stanulis’ expert testimony.2
First and foremost,
petitioner has failed to rebut, with clear and convincing evidence,
the post-conviction court’s factual findings that trial counsel
made a reasonable choice in selecting Dr. Robert Stanulis as a
defense expert, and that there was no credible evidence that a
different expert (including Dr. Grounds) would have reached a
2
This court may properly address the prejudice prong first,
without considering whether counsel's conduct was deficient,
because petitioner must satisfy both prongs of the Strickland
test. Villafuerte v. Stewart, 111 F.3d 616, 630 (9th Cir. 1997),
cert. denied, 522 U.S. 1079 (1998); Crittenden v. Ayers, 624 F.3d
943, 960 (9th Cir. 2010).
9 -- OPINION AND ORDER
different opinion had they conducted a more thorough investigation.
See 28 U.S.C. § 2254(e)(1).
Indeed, rather than attempting to demonstrate that there is a
reasonable probability that the results of his proceeding would
have
been
different,
petitioner
argues
that
“[t]he
need
for
investigation, as well as the severity of counsel’s failure to do
so, is best demonstrated by cases tried in 1854 and 1859.”
Brief in Support at 8.
Pet.’s
Petitioner proceeds to address the facts of
those cases, rather than address the evidence presented to the jury
at
petitioner’s
deficiencies
may
trial
have
and
examine
impacted
how
the
counsel’s
result.
alleged
Consequently,
petitioner’s argument is devoid of any evidence to support a
conclusion
that
had
counsel
engaged
in
a
more
extensive
investigation and review in selecting and/or preparing his expert,
there
is
a
reasonable
probability
that
the
results
of
his
rejection
of
his
proceeding would have been different.
In
sum,
ineffective
the
post-conviction
assistance
unreasonable
application
claim
is
court’s
neither
of, clearly
contrary
established
to,
or
federal
an
law.
Similarly, it is not based on an unreasonable determination of the
facts in light of the evidence presented.
habeas corpus
relief is not warranted.
///
///
10 -- OPINION AND ORDER
Accordingly, federal
See 28 U.S.C. § 2254(d).
II.
Actual Innocence.
In
his
second
ground
for
relief,
petitioner
alleges
as
follows:
Petitioner is actually innocent of some/all counts of
conviction.
Herrera v. Collins, 504 U.S. 390, 417-19
(1993). Undersigned counsel does not yet have access to
complete state court records.
However, this claim is
offered at this time on information and belief, and
counsel is in the process of investigating actual
innocence pursuant to the partial responsibility defense,
Or. Rev. Stat. § 161.300, which appears to provide a
defense to most, if not all, counts of conviction.
Amended Petition at 4.
Assuming
that
a
free-standing
claim
of
actual
innocence
provides a basis for federal habeas relief,3 petitioner has failed
to argue or provide any factual basis for concluding that he is
actually
innocent
of
the
multiple
counts
Accordingly, habeas relief is not warranted.
of
conviction.
See Lambert v.
Blodgett, 393 F.3d 943, 970 n. 16 (9th Cir. 2004) (petitioner bears
burden of proving his case).
CONCLUSION
Based on the foregoing, petitioner’s amended habeas corpus
petition (#14) is DENIED, and this proceeding is DISMISSED, with
prejudice.
Because petitioner has not made a substantial showing
3
See District Attorney’s Office for Third Judicial Dist. v.
Osborne, 129 S.Ct. 2308, 2321 (2009) (noting that whether
petitioner can assert right to federal habeas corpus relief based
upon proof of actual innocence is open question).
11 -- OPINION AND ORDER
of
the
denial
of
a
constitutional
appealability is DENIED.
right,
a
certificate
of
See 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
DATED this
26th
day of October, 2011.
/s/ Garr M. King
Garr M. King
United States District Judge
12 -- OPINION AND ORDER
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