Bends v. Nooth
Filing
38
OPINION AND ORDER: The Amended Petition for Writ of Habeas Corpus 14 is DENIED, and this proceeding is 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). See 24-page opinion and order attached. Ordered by Judge Marco A. Hernandez. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
DAVID WAYNE BENDS,
Petitioner,
v.
MARK NOOTH,
Respondent.
ANTHONY D. BORNSTEIN
Office of the Federal Public Defender
101 S.W. Main St., 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 Respondent
1 - OPINION AND ORDER -
Civil No. 10-129-HZ
OPINION AND ORDER
Hernandez, District Judge.
Petitioner, an inmate at Snake River Correctional Institution,
brings this habeas corpus action pursuant to 28 U.S.C. § 2254.
challenges
his
2001
conviction
and
sentencing
for
He
Aggravated
Murder, alleging he was denied his right to due process under the
Fourteenth Amendment, and his right to the effective assistance of
trial
and
Amendments.
appellate
(#14.)
counsel
under
the
Sixth
and
Fourteenth
In his supporting memorandum, Petitioner
argues he is entitled to relief because trial counsel failed to
thoroughly investigate and prepare for trial, particularly with
respect
to
an
alternative
suspect,
and
because
there
is
no
indication trial counsel investigated mitigation for the penalty
phase.
(#31, at 13; 15-16.)
For the reasons set forth below, the
Amended Petition for Writ of Habeas Corpus (#14) is DENIED, and
this proceeding dismissed.
BACKGROUND
In 1997, Petitioner and his wife lived with his wife's sister,
Robin Whitehurst, and her two children.
The afternoon of March 4,
1997, Petitioner and his wife found Ms. Whitehurst strangled in
their apartment.
In 2001, Petitioner was charged with Aggravated
Murder and Murder in the strangulation death of his sister-in-law.
The indictment alleged Petitioner fraudulently cashed checks and
used the victim's debit card on March 1, 1997; assaulted her on
March 4, 1997; and killed her on March 4, 1997 to conceal his
2 - OPINION AND ORDER -
criminal acts.
(Respt.'s Ex. 102.)
attorneys
represent
to
The trial court appointed two
Petitioner.
After
a
period
of
investigation, counsel moved to withdraw due to an unwaivable
ethics conflict.
(#23, Tr. Vol. 1.)
Petitioner consented to
having counsel turn over discovery to new attorneys. (Id. at 7.)
Replacement counsel was appointed, and Petitioner proceeded to
trial before a jury.1
At trial, the State argued Petitioner had the motive and
opportunity to murder his sister-in-law and presented evidence of
his conflicting and inconsistent accounts of his whereabouts and
activities in the days before the murder and on the day of the
murder.2
Petitioner's wife testified, in relevant part, that on
March 3, 1997, the day before her sister was killed: Petitioner was
supposed to pick her up from work at 5 p.m. but called to say he
was tied up at work, so her sister picked her up; Petitioner came
home at approximately 10:30 p.m. and told her he had been helping
his boss pull his vehicle from a ditch and it would earn him $200,
and that his boss's wife, who worked at Kmart, gave him the shoes
he brought home for her; around midnight, Petitioner told her he
1
After a number of settlement conferences and against the
advice of counsel, Petitioner rejected the State's plea offer of a
stipulated 12 year sentence for Manslaughter in the First Degree.
(#22 Ex. 125.)
2
By the time of the trial, Petitioner and the victim's sister
had divorced. The Court refers to her as Petitioner's wife, her
status at the time of the events she testified to.
3 - OPINION AND ORDER -
had less than a quarter gram of meth.
(Tr. Vol. 4 at 83-86.)
With
respect to events on March 4, 1997, Petitioner's wife testified:
(1) Petitioner took her nephew, Michael, to school between 7:45 and
7:50 a.m.; while he was gone, she saw her sister empty her purse on
the dining room table and thoroughly search it and her wallet
looking for her missing debit card, but her sister did not find the
card (id. at 88-89); (2) her sister told her she "couldn't figure
out how her account was overdrawn because other than her debit
card, in the last month she had only written five checks" (id. 88);
(3) when Petitioner returned, he and his sister-in-law discussed
meeting at her bank at noontime so he could give her rent money and
"a quarter" of meth (id. at 89-90); (4) the noontime meeting was
cancelled after Petitioner told his wife he didn't have enough meth
to give her sister, and he didn't want to go to Oregon City to get
it (id. at 89-90; 109-111); (5) that morning she gave her sister
$25 cash for half the cable installation, scheduled for between 1
and 5 p.m. that day (id.; and at 92); (6) her sister called from
work at approximately 9:10 a.m. to make sure she and Petitioner
would be able to pay their share of the rent (id. at 90-91); (7)
she, Petitioner, and her 2-year-old niece took their truck [Chevy
Blazer] to do laundry at approximately 11 a.m. (id. at 92); (8) the
laundromat in Sellwood was too busy so they went to the Alpine
Laundry on Highway 99, arriving at approximately 11:30 a.m. (id. at
4 - OPINION AND ORDER -
95); (9) Petitioner left at approximately 11:40 a.m., saying he was
going to a transmission shop nearby, and she reminded him it would
only take her 30 minutes to do the laundry and to return quickly
(id. at 95-96); (10) Petitioner returned to the laundromat, on
foot, at approximately 1:10-1:15 p.m. and she was furious (id. at
96); (11) Petitioner told her he had run out of gas and the truck
wouldn't start after he put gas in because the flywheel wasn't
lining up properly (id. at 96-97); (12) she challenged him, telling
him she had just seen him drive past "like five minutes ago" (id.
at 97); (13) at approximately 1:30 p.m. they called a cab to go to
the freeway ramp where Petitioner left the truck (id. at 98); (14)
Petitioner started the truck and she insisted they go to McDonald's
to get lunch for her niece (id. 98-99); (15) at about 2:35 p.m. she
asked Petitioner to go to the phone booth and call home to see if
her nephew was home from school and if the cable installer had been
by (id. at 99); (16) Petitioner returned saying Michael wasn't home
yet and he was going to go pick-up the laundry (id. at 99); (17)
Petitioner returned to the McDonald's within 10 minutes, with
Michael (id.); (18) at 2:55 p.m. she told the kids they had to
leave in 5-10 minutes (id. at 100); (19) they left to pick up the
laundry, then drove to Beaverton where Petitioner told her he would
be picking up his pay-check from his boss (id. at 100-101); (20)
Petitioner went into a building and upon returning told her he was
5 - OPINION AND ORDER -
paid $300 cash, but that the $200 he earned for pulling his boss's
car out the day before had not yet been approved (id. at 101); (21)
she was upset because they didn't have their share of the rent;
they arrived home around 4:15-4:30 p.m., and noticing her sister's
car in the driveway she told the kids their mom was home early
(id.); (22) upon entering, the house was quiet, the dog was
scratching at the garage door, and Petitioner attended to the dog
(id. at 102); (23) she sent the kids upstairs, then walked through
the kitchen and noticed the dining room table was shattered;
Petitioner said her name "a couple of times in a very eery voice"
and as she went through the kitchen, he stepped to the side and she
saw her sister on the floor (id.); (24) she immediately told
Petitioner to call 911 and she started CPR, at which time she found
a cord wrapped around her sister's neck (id.); she continued CPR
until paramedics arrived (id. at 104).
The cab driver testified Petitioner told her his vehicle's
starter overheated.
mechanics
testified
(Tr. Vol. 6 at 93-102.)
that
upon
inspection
An expert in auto
and
testing
of
Petitioner's 1974 Chevy Blazer he did not find any evidence of the
mechanical problems the witnesses testified Petitioner claimed
existed.
(Tr. Vol. 6 at 23-59.)
The expert attributed any
difficulty in starting the vehicle to a loose battery cable, which
could be overcome by jiggling it.
6 - OPINION AND ORDER -
(Id.)
It was undisputed that Petitioner, his wife, and his sisterin-law used methamphetamine.
The medical examiner testified there
was evidence the victim used methamphetamine in a window of five to
ten minutes to no more than two hours prior to her death; because
of the levels of meth detected in the autopsy, the drug use was
more likely to have occurred five to ten minutes prior to death;
the victim's debit card was in her purse when the purse was
inventoried.
(Tr. Vol. 7, at 17-18.)
The cable installer testified:
he initially arrived at the
victim's residence early, at approximately 11:15 a.m.; there was no
car in the driveway; no one answered the door; in checking around
back, he noticed the curtains on the sliding door partially open
and toys on the floor; he called to have someone telephone the
residence, could hear the phone ring, but no one answered; he left
at approximately 11:30 a.m. (Tr. Vol. 6 at 6-10).
He further
testified he returned to the residence at approximately 1:15 p.m.;
there was an older Corolla station wagon in the driveway; no one
answered the front door so he looked around back and noticed the
curtains were now closed; he again called to have someone telephone
the residence, he could hear the phone ring, but no one answered;
he filled out a door tag marking the time as 1:25 p.m.
22.)
The door tag was entered into evidence.
(Id. at 10-
(Id.)
A coworker testified that around noon she conveyed a telephone
message from a male with a deep voice, asking that Ms. Whitehurst
7 - OPINION AND ORDER -
call home; shortly thereafter Ms. Whitehurst was on the phone.
(Tr. Vol. 4 at 65-66.)
Another coworker also testified to the
phone calls, and to the victim leaving work saying she needed to
take care of something and leaving her lunch on her desk.
59.)
(Id. 58-
The victim's boss testified he left the workplace at 12:15
p.m. and in a brief exchange as he was leaving the victim mentioned
she was also leaving. (Id. at 71.)
A
neighbor
moving
into
one
of
the
adjacent
apartments
testified she saw the victim's dog chained to the back deck at
12:30 p.m. and heard "a constant yap" while she and her dad quickly
ate lunch.
At approximately 12:45 p.m. she noticed the dog had
stopped barking and saw that he was gone.
A
carpenter
who
employed
Petitioner
(Tr. Vol. 6, 117-126.)
for
a
week
in
late
February 1997 testified: on March 4, 1997, he owed Petitioner
approximately $110 for one day's work but he did not have an
appointment to meet Petitioner that day; Petitioner knew to call
his home to reach him; he never had any affiliation with any
business at the location in Beaverton where Petitioner took his
wife on March 4th; he was not with Petitioner on the evening of
March 3, 1997, and at no time did Petitioner help pull his or his
wife's vehicle out of a ditch; his wife did not work at K-mart; he
never paid any employee in cash; Petitioner left a message at his
home sometime in mid-March; Petitioner called back sometime near
April and he met and paid Petitioner the next day. (Tr. Vol. 6 at
8 - OPINION AND ORDER -
151-161.)
The parties stipulated to the testimony of the victim's son,
Michael, 11-years old at the time of the murder.
7,
at
54.)
The
stipulation
established
(Trial Tr. Vol.
Michael
would
have
testified: (1) he always rode the bus home from school; (2) on
March 4, 1997, Petitioner picked him up at school; (3) when Michael
asked why he was being picked up, Petitioner told him: he made a
wrong turn and ended up at the school, that the boy's Aunt Melanie
was waiting at a McDonald's, and that Petitioner was suppose to
pick up laundry nearby so Petitioner just thought he would pick him
up; and (4) at the McDonald's, Petitioner went under the hood of
the car to get it started and his aunt told him the starter and the
transmission to the truck were bad.
(Id.)
The school bus driver testified: school let out at 2:30;
Michael always rode the bus home; Petitioner told her he was
Michael's uncle, that it was very important Michael not get on the
bus, and that Michael knew he was picking him up that day; Michael
looked surprised to be getting picked up, but confirmed the person
picking him up was his uncle; Petitioner's car started right away.
(Tr. Vol. 5 at 61-68.)
A detective testified: the distance from the victim's work to
her apartment was 2.3 miles and took approximately 5 minutes to
drive; the distance from the apartment to the Sellwood laundromat
was 2.5 miles and took roughly 6 minutes; the distance from the
9 - OPINION AND ORDER -
Sellwood laundromat to the Alpine Laundry on Highway 99 was 6.3
miles and took roughly 14 minutes; the distance from the Alpine
Laundry to the apartment was 3.8 miles and took about 8 minutes;
the distance from the 217 ramp where the truck allegedly broke down
to the Alpine Laundry was a 10-12 minute walk.
(Tr. Vol. 6 at 130-
134.)
The
defense
conceded
Petitioner
used
and
supplied
methamphetamine; and that he fraudulently used the victim's debit
card and improperly cashed checks on her bank account.3
Prior to
trial, the defense moved to suppress Petitioner's statements to
investigators the day of the murder, the following day, and on
March 7, 1997.
(Tr. on Appeal; Tr. Vol. 3 at 26-34.)
The trial
court denied the motion, finding Petitioner was not in custody and
was free to come and go when he made the statements.
at 30-34.)
(Tr. Vol. 3
During the trial, the defense challenged the State's
evidence that Petitioner committed the murder, eliciting testimony
from the investigating officers that they did not observe blood or
3
A corporate investigator with Washington Mutual Bank
authenticated financial transaction documents and photographs
showing Petitioner cashing checks off the victim's account: #1626,
for $100 at 9:57 a.m. 3/1/1997 - Oak Grove Branch; #1627, for $160
at Tigard Branch; #1631 for $250 on 3/3/1997 at Barbour Blvd.
Branch; #1632 for $250 at 2:27 p.m. 3/3/1997 at Clackamas South
Branch. She also authenticated merchant sales slips debiting the
victim's account for ATM transactions: on 3/2/1997, at 16:53 at
KC's Tobacco Town for $19.45; on 3/3/1997, at 18:17 at Steve's
Market in Oregon City for $47.60; on 3/3/1997, at 8:17 p.m. at
KMart in Milwaukie for $65.96.
(Tr. Vol. 6 at 103-116.)
The
documents were entered into evidence.
10 - OPINION AND ORDER -
scratches on Petitioner when they interviewed Petitioner in the
hours after the murder; they did not test his clothing for blood;
that Petitioner let them photograph him and search his vehicle.
(Tr. Vol. 8 at 70-78; 82-83.)
Summarizing the defense position in
a motion for directed verdict/acquittal on both counts, counsel
argued, "What we have is a period of time where there's dispute as
to [Petitioner's] whereabouts.
There is no physical evidence
connecting him to the crime, no witnesses to the crime, and no
witnesses placing him in the apartment."
(Tr. Vol. 8 at 85.)
The jury returned a unanimous verdict finding Petitioner
guilty of Aggravated Murder and Murder. (Respt.'s Ex. 123.) After
the verdict, the prosecution offered not to seek the death penalty
if Petitioner would agree to a sentence of life without the
possibility of parole. Petitioner signed a Stipulation of Sentence
on April 9, 2001, which specified:
David Wayne Bends, the defendant, with the advice
and agreement of his attorneys, Robert Goffredi and Jon
Martz, hereby agrees with the State of Oregon, through
Deputy District Attorneys Norman Frink and John Copic, to
the following stipulation of sentence pursuant to ORS
163.150(3)(b):
The defendant will be sentenced by the court on the
charge of Aggravated Murder in Count 1 of the indictment
to life imprisonment without the possibility of release
or parole as described in ORS 163.105(1)(b).
The sentence that the court imposes for Count 2
Murder will run concurrent with this sentence.
Further, the defendant understands that he has an
absolute right to a jury sentencing proceeding on Count
11 - OPINION AND ORDER -
1 Aggravated Murder and he voluntarily waives his right
to such a sentencing proceeding and agrees to be
sentenced by the court pursuant to this stipulation of
sentence.
Finally, the defendant expresses his full and
complete satisfaction with the representation and advice
he has received from his attorneys and states firmly his
belief that they have both competently represented him.
(Respt.'s Ex. 103.)
For sentencing, the trial court merged Count
2 - Murder, with Count 1 - Aggravated Murder.
Petitioner
appealed
evidentiary error.
his
conviction
(Respt.'s Ex. 104.)
(Respt.'s Ex. 101.)
raising
one
claim
of
The Oregon Court of
Appeals affirmed Petitioner's conviction from the bench, and the
Oregon Supreme Court denied review.
(Respt.'s Exs. 106; 108.)
Petitioner filed for Post-conviction Relief ("PCR") alleging
19 instances of ineffective assistance of trial counsel in Claim 1;
9 instances of ineffective assistance of appellate counsel in Claim
2; and trial court error in Claim 3.
(Respt.'s Ex. 109.)
He filed
two supporting exhibits: Exhibit One, consisting of 21 pages with
a detailed explanation of each claim; and Exhibit Two, consisting
of 319 pages of legal documents.
(Respt.'s Exs. 111-113.)
The
PCR trial court denied relief on all claims, issuing an opinion
letter, and Findings of Fact, Conclusions of Law.
(Respt.'s Exs.
127; 128.)
Petitioner
appealed,
presenting
one
claim
of
ineffective
assistance of trial counsel in a counseled appellate brief, and in
a pro se supplemental brief sought to present the other claims by
12 - OPINION AND ORDER -
listing them and directing the Court of Appeals to his PCR brief.
(Respt.'s Exs. 130; 131.)
The Oregon Court of Appeals granted the
State's Motion for Summary Affirmance, and the Oregon Supreme Court
denied review.
(Respt.'s Exs. 135; 137.
In this habeas action, with the assistance of appointed
counsel, Petitioner filed an Amended Petition for Writ of Habeas
Corpus (#14) alleging violation of his Fourteenth Amendment right
to due process when the trial court excluded evidence, and alleging
numerous instances of ineffective assistance of trial and appellate
counsel in violation of his rights under the Sixth and Fourteenth
Amendments.
DISCUSSION
In his Brief in Support of the amended petition, Petitioner
argues he is entitled to relief because trial counsel provided
ineffective assistance in failing to thoroughly investigate, in
particular, Chris Burrata as the most likely suspect, (Ground Two
(e)); and because trial counsel provided ineffective assistance by
failing to pursue mitigation evidence and "thus were unprepared for
the penalty phase of the capital proceeding," (Ground Two(m)).
(#31, at 13-16.)
Petitioner contends the state court adjudication
of
was
his
claims
an
unreasonable
application
of
clearly
established Federal law and, with respect to the mitigation claim,
based on an unreasonable determination of the facts in light of the
evidence presented in state court.
13 - OPINION AND ORDER -
(Id. at 13, 15.)
Respondent argues Petitioner has failed to meet his burden of
proof for habeas relief as to the claims he does not argue in the
supporting brief.
(#35, at 2.)
Respondent further contends
Petitioner's claims, with the exception of Ground Two (m), are
procedurally defaulted and, to the extent the two claims Petitioner
argues in his brief were fairly presented to the state courts, the
state
court
adjudication
was
neither
contrary
unreasonable application of established Federal law.
I.
to,
nor
an
(Id.)
Unargued Claims
A petitioner seeking federal habeas relief bears the burden of
showing the court he is entitled to relief. Woodford v. Visciotti,
537 U.S. 19, 24 (2002); Davis v. Woodford, 384 F.3d 628, 638 (9th
Cir. 2004), cert. denied 545 U.S. 1165 (2005).
Under § 2254(d), a
petitioner must show that the adjudication of his claims 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 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."
Petitioner has not satisfied the burden of proof for habeas
relief with respect to the claims that are not argued in his
supporting brief. The Court has, nevertheless, reviewed the record
14 - OPINION AND ORDER -
as to these grounds for relief and determined they would not
entitle Petitioner to relief.
Therefore, habeas relief on the
unargued claims is precluded.
II.
The Merits
A.
Standards of Review
Following passage of the Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA"), 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
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.
provision
§
as
2254(d).
requiring
The
Supreme
federal
Court
habeas
has
courts
construed
to
deferential to the state court decisions under review.
v. Taylor, 529 U.S. 362, 386-389 (2000).
be
this
highly
Williams
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."
15 - OPINION AND ORDER -
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).
application
of
.
. .
law
must
be
"The state court's
objectively
Williams, 529 U.S. at 411 (emphasis added).
unreasonable."
"[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."
Woodford, 537 U.S. at 24-25 (2002)(internal citations omitted).
Rather, "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 [Supreme Court] decision."
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).
16 - OPINION AND ORDER -
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.
In reviewing a state court decision, "a federal court may not
second-guess a state court's fact-finding process unless, after
review of the state-court record, it determines that the state
court was not merely wrong, but actually unreasonable."
Taylor v.
Maddox, 366 F. 3d 992, 999 (9th Cir. 2004).
This is a standard
that will be met in few cases.
When unchallenged,
Id. at 1000.
State court determinations of factual issues "shall be presumed to
be correct."
28 U.S.C. §2254(e)(1); Miller-el v. Cockrell, 537
U.S. 322, 340 (2003).
A Petitioner may rebut the presumption of
correctness with clear and convincing evidence.
The
clearly
established
federal
law
Id.
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
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); Strickland, 466
17 - OPINION AND ORDER -
U.S. at
687-88.
"A
reasonable
probability
is
a probability
sufficient to undermine confidence in the outcome[,]" that is,
"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."
Strickland, 466 U.S. at 694; 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.
quotation
at
omitted.)
1407
The
(quoting
Strickland)
reasonableness
of
(internal
counsel's
conduct
marks
must
be
evaluated in light of the facts of the case and the circumstances
at the time of representation.
Strickland, 466 U.S. at 690.
For
a petitioner to show prejudice from counsel's deficiencies, more
than speculation is required.
Gonzalez v. Knowles, 515 F.3d 1006,
1016 (9th Cir. 2008) citing Grisby v. Blodgett, 130 F.3d 365, 373
(9th Cir. 1997)("speculation about what an expert could have said
is not enough to establish prejudice"); Wildman v. Johnson, 261
F.3d 832 (9th Cir. 2001)(speculation that an expert could be found
and
would
be
willing
to
testify
on
petitioner's
behalf
insufficient).
Overall, a doubly deferential standard of review applies to
federal habeas review of ineffective assistance of counsel claims:
18 - OPINION AND ORDER -
deference under § 2254 and deference under Strickland.
Knowles v.
Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1420 (2009); Cheney v.
Washington, 614 F.3d 987, 995 (9th Cir. 2010).
II.
Ground Two (e)
In Ground Two (e) (claim one (h) in the state PCR proceedings)
Petitioner alleges he was denied effective assistance of trial
counsel because counsel failed to thoroughly investigate Chris
Burrata as the most likely suspect. Petitioner argues, had counsel
investigated Chris Burrata, "there is a reasonable probability the
outcome of the jury trial would have been different."
(#31, at
14.)
In the
PCR
court,
Petitioner
argued
the
fact
his
first
appointed counsel withdrew due to an insurmountable conflict from
having been counsel for Mr. Buratta in other matters is evidence
counsel was deficient for not arguing Mr. Buratta was the murderer.
(Respt.'s Ex. 110, at 7-8.)
The PCR court denied Petitioner's
claim that trial counsel failed to investigate Christopher Buratta,
specifying in the Findings of Fact, Conclusions of Law: "In claim
(h) of the First Claim for Relief, petitioner has presented no
evidence
to
prove
counsel
could
have
Christopher Buratta committed the murder.
produced
evidence
that
There is no evidence to
suggest Mr. Buratta committed the murder and all evidence points to
petitioner as the person who committed the murder."
128, at 9.)
(Respt.'s Ex.
The PCR court also found Petitioner failed to present
19 - OPINION AND ORDER -
the testimony of any of the witnesses he argued should have been
investigated and called to testify, and therefore did not meet his
burden of showing counsel erred in not pursuing these witnesses.
(Id.)
The record shows that in withdrawing, Petitioner's first
counsel told the trial court: "One way or another [Buratta] will be
a witness in the case.
From our perspective he will be accused of
being the person who committed the act, so we were in a position of
doing what we do [sic] could to decimate our prior client."
Tr. Vol. 1 at 4, emphasis added.)
researching
the
case
and
the
(#23,
Counsel explained that after
possibility
there
would
be
no
conflict, they found "[t]he case is based entirely on a time line
on a given day of where people were at such and such a time, and
the hope was that this individual [Buratta] was seen at a time
completely disparate from the time of death and then this would not
be a problem, but that is not how it is."
(Id. at 5.)
A court reviewing counsel's performance must presume counsel
made
significant
decisions
professional judgment.
in
the
exercise
of
Pinholster, 131 S.Ct. at 1407.
reasonable
There is
evidence in the trial transcript from which the PCR court could
find counsel investigated potential witnesses and, for reasons of
trial strategy, decided not to call them.
Tr. Vol. 9 at 3.)
(Tr. Vol. 8 at 52, 84;
Moreover, trial counsel's affidavit to the PCR
trial court specified counsel thought "the case would best be tried
20 - OPINION AND ORDER -
by
raising
evidence;
reasonable
doubt
especially
methamphetamine addicts."
and
attacking
because
the
the
main
circumstantial
witnesses
(Respt.'s Ex. 125, at 2.)
were
This Court's
review of the PCR record confirms that Petitioner failed to show
the PCR court counsel could have produced evidence that Christopher
Buratta committed the murder or that counsel's representation was
constitutionally inadequate.
Nor did he show the PCR court there
was a reasonable probability the outcome of the trial would have
been
different
Buratta.
had
counsel
Accordingly,
it
more
was
thoroughly
neither
investigated
contrary
to,
nor
Mr.
an
unreasonable application of Strickland for the PCR court to deny
relief, and habeas relief is precluded.
III. Ground
Two(m)
In Ground Two (m) (claim one (q) in the state PCR proceedings)
Petitioner alleges he was denied effective assistance of trial
counsel because counsel failed to thoroughly investigate mitigation
evidence for the sentencing phase.
He argues this failure coerced
him into waiving his rights to have the jury decide his sentence.
(#31, at 16.)
The PCR court denied Petitioner's claim finding, in relevant
part, Petitioner was not credible; he raised the possibility of a
sentencing agreement on his own; the sentencing court reviewed the
agreement with Petitioner; Petitioner knew what his options were
and was aware of the consequences of the agreement; and counsel did
21 - OPINION AND ORDER -
not coerce him or pressure him to accept it.
10.)
(Respt.'s Ex. 128 at
These findings are presumed to be correct absent Petitioner
refuting them with clear and convincing evidence.
Cockrell, 537 U.S. 322, 340 (2003).
this burden.
Miller-El v.
Petitioner has not satisfied
Moreover, upon review of the record, the Court finds
evidence supporting the PCR courts findings.
In written argument to the PCR court, Petitioner asserted: he
told his attorneys he preferred Death Row to Life in prison with no
appeal action; he heard from his attorneys multiple times regarding
a deal proffered by the State between April 2, 2001, when the jury
returned its verdict, and April 9, 2001, when the sentencing phase
began; upon appearing in court on April 9th, his attorneys told him
his first wife was present and prepared to testify against him,
which would bolster the State's case; while incarcerated and
awaiting trial he provided his investigator information about his
family and friends in California, and the investigator told him he
"always
prepared
his
sentencing
mitigation
ahead
of
time."
(Respt.'s Ex. 112 at 14-16.)
The trial record shows trial counsel told the court at the
outset of the sentencing proceeding that Petitioner started talking
to them about the plea option the previous week; that they talked
about it over the course of several days, including that morning;
that counsel believed the plea agreement before the court was the
result of an informed decision.
22 - OPINION AND ORDER -
(Tr. Vol. 11 at 3.)
Petitioner
told the trial court he understood the agreement and that he was
giving up his right to have the jury decide his sentence; he stated
he was taking the plea on the advice of counsel, but counsel had
not coerced him to do so.
(Id. at 5-6.)
The record also shows
that several of Petitioner's family members from California were
called as defense witnesses at trial.
Petitioner has not shown that the PCR court's adjudication was
based on an unreasonable determination of the facts in light of the
evidence before the court. Moreover, Petitioner failed to show the
PCR court that counsel did not investigate mitigation evidence, and
failed to show what evidence mitigation investigation would have
yielded.
Accordingly
it
was
neither
contrary
to,
nor
an
unreasonable application of Strickland, for the PCR court to deny
his claim and habeas relief is precluded.
IV.
Evidentiary Hearing
Under Pinholster, review under § 2254(d) is limited to the
record before the state court.
131 S.Ct. at 1398.
Petitioner has
not shown he is entitled to an evidentiary hearing under 28 U.S.C.
§ 2254(e)(2)(A)(i)-(ii).
/ / /
/ / /
23 - OPINION AND ORDER -
CONCLUSION
The Amended Petition for Writ of Habeas Corpus (#14) is
DENIED, and this proceeding is 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.
DATED this
8th
day of February, 2012.
/s/ Marco A. Hernandez
Marco A. Hernandez
United States District Judge
24 - OPINION AND ORDER -
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