Andes v. Nooth
Filing
32
OPINION AND ORDER: The Petition for Writ of Habeas Corpus (# 2 ) is DENIED. 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). Signed on June 16th, 2011 by Judge Michael W. Mosman. (eo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
MICHAEL PAUL ANDES,
Civil No. 10-142-MO
Petitioner,
v.
MARK NOOTH,
OPINION AND ORDER
Respondent.
Kristina Hellman, Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
John R. Kroger, Attorney General
Andrew Hallman, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent
1 - OPINION AND ORDER
MOSMAN, District Judge.
Petitioner brings this habeas corpus case pursuant to 28
U.S.C. § 2254 challenging the legality of his underlying state
conviction for Murder.
For the reasons that follow, the Petition
for Writ of Habeas Corpus [2] is denied.
BACKGROUND
In February 2000, Angela Cook broke off her relationship with
petitioner.
Immediately thereafter, Cook's 17-year-old daughter,
Krystle, went missing.
Petitioner was the last person seen with
Krystle, and he informed the police that he had last seen her when
he dropped her off at her boyfriend's apartment in Longview,
Washington.
When police attempted to follow up with petitioner on June 27,
2000, he informed them that he was going to hire an attorney to
bring a civil suit against Angela Cook for defamation.
Transcript, p. 223.
Trial
In September 2000, the police received a
letter from attorney John McMullen informing them that petitioner
had retained him as counsel, and any questions pertaining to the
investigation should be directed to McMullen.
Id at 225, 227.
Krystle remained missing for more than a year, but in February
2001, petitioner's father, George, told the police that petitioner
had killed Krystle by bludgeoning her to death with a baseball bat,
and George had helped petitioner bury the body.
George assisted
the police in their search for Krystle's body, taking them to a
2 - OPINION AND ORDER
remote location in Columbia County where Krystle's remains were
discovered on February 9, 2001.
On February 10, 2001, petitioner was arrested and taken to the
police station where he was interviewed at approximately 12:30 a.m.
by
Detectives
Eric
Altman
and
Jerry
Simmons,
both
identified themselves to petitioner as police officers.
18, 142.
of
whom
Id at 16-
The detectives explained to petitioner that he was under
arrest for Krystle's murder, and petitioner told the detectives
that he wished to speak with his girlfriend, and then to his
attorney.
Id at 19, 21, 143.
Detective Altman told petitioner
that it was "abundantly clear" that he had invoked his right to
counsel, and the detectives discontinued their interview.
20-21, 145.
Id at
Detective Simmons advised petitioner that he would be
transported to the Columbia County Jail, and he could make his
phone call from that location.
Id at 21, 145.
At this point, petitioner told the detectives that he was
concerned about his girlfriend, and if they would allow him to call
her, he would speak with them about their investigation.
Id at 22-
23, 146-47. As a result, the detectives allowed petitioner to call
his girlfriend.
After the phone call had concluded at 12:39 a.m.,
Detective Simmons asked petitioner whether he would still be
willing to speak about the investigation, and petitioner agreed to
do
so.
Id
at
27,
149.
Detective
Altman
re-administered
petitioner's Miranda rights from a form which he placed in front of
3 - OPINION AND ORDER
petitioner, and petitioner agreed to waive those rights. Id at 3132, 151-152.
After petitioner waived his Miranda rights, he proceeded to
talk with the detectives about the case, but did not confess.
Consistent with what he had previously related to the authorities,
petitioner indicated that he last saw Krystle when he dropped her
off at her boyfriend's apartment complex.
159.
Id at 42-44, 48, 156,
He claimed that when he returned 30 minutes later to pick
her up, Krystle's boyfriend claimed she had never arrived at his
apartment.
Id at 52, 162-63.
At 1:15 a.m., petitioner asked for permission to call his
uncle, and claimed he would not say any more until he spoke with
him.
Id at 54-55, 165, 168.
Police allowed petitioner to make
this call, and petitioner told his uncle to call his grandfather as
well as his attorney, John McMullen.
Id at 58, 168.
After
petitioner completed his call, he continued speaking with the
detectives.
On February 21, 2001, petitioner was charged with one count of
murder.
Respondent's
petitioner
detectives.
moved
The
to
Exhibit
suppress
trial
court
103,
all
p.
of
1.
his
concluded
Prior
to
statements
that
trial,
to
the
petitioner
had
initially invoked his right to remain silent, at which point the
detectives ended the interview.
10.
The
court
also
found
4 - OPINION AND ORDER
Respondent's Exhibit 104, at SER
that
when
Detective
Simmons
told
petitioner he would be transferred to the Columbia County Jail, he
was not threatening him, but instead advising him of the next step
in the process.
Id.
The court determined that petitioner's offer
to speak with the detectives about their investigation if they
would allow him to call his girlfriend was an initiation for
further communication with the detectives, thus his statements
after that point were admissible.
Id.
The court did, however,
suppress all statements petitioner made after he had asked his
uncle to call his attorney for him, reasoning that while this was
not an explicit request for counsel, the detectives were obliged to
inquire further as to whether petitioner was seeking to invoke his
right to remain silent.
Id.
At trial, petitioner changed his story and admitted killing
Krystle, but claimed he had done so only after she had attacked
him.
The jury found petitioner guilty of Murder, and the trial
court sentenced him to life imprisonment with a mandatory minimum
sentence of 300 months.
Respondent's Exhibit 101.
Petitioner took a direct appeal, but the Oregon Court of
Appeals affirmed the trial court without issuing a written opinion,
and the Oregon Supreme Court denied review.
State v. Andes, 198
Or. App. 534, rev. denied 339 Or. 66 (2005).
Petitioner next filed for post-conviction relief ("PCR") in
Malheur
County
where
the
PCR
trial
court
denied
relief.
Respondent's Exhibit 158. The Oregon Court of Appeals affirmed the
5 - OPINION AND ORDER
lower court without issuing a written opinion, and the Oregon
Supreme Court denied review.
Andes v. Nooth, 229 Or. App. 740,
rev. denied 347 Or. 258 (2009).
Petitioner filed this 28 U.S.C. § 2254 habeas corpus action on
February 8, 2010 raising three grounds for relief:
1.
All of petitioner's statements made after
his invocation of counsel were obtained
in violation of the Fifth and Fourteenth
Amendments and therefore should have been
suppressed;
2.
Trial
counsel
rendered
ineffective
assistance by failing to object or move
for a mistrial after at least one juror
saw petitioner in shackles; and
3.
The statute under which petitioner was
sentenced, ORS 137.700, was enacted in
violation of the U.S. Constitution.
Respondent asks the court to deny relief on the Petition
because
petitioner's
claims
lack
merit,
and
the
state
court
decisions denying relief on those claims are entitled to deference
pursuant to 28 U.S.C. § 2254.
DISCUSSION
I.
Standard of Review
An application for a writ of habeas corpus shall not be
granted unless adjudication of the claim in state court resulted in
a decision that 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) "based on an
unreasonable determination of the facts in light of the evidence
6 - OPINION AND ORDER
presented in the State court proceeding."
28 U.S.C. § 2254(d).
A
state court's findings of fact are presumed correct, and petitioner
bears the burden of rebutting the presumption of correctness by
clear and convincing evidence.
A
state
court
decision
28 U.S.C. § 2254(e)(1).
is
"contrary
to
.
.
.
clearly
established precedent if the state court applies a rule that
contradicts the governing law set forth in [the Supreme Court's]
cases" or "if the state court confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme] Court
and
nevertheless
precedent."
arrives
at
a
result
different
from
[that]
Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
Under the "unreasonable application" clause, a federal habeas court
may grant relief "if 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."
Id at 413.
The "unreasonable application" clause requires
the state court decision to be more than incorrect or erroneous.
Id at 410.
The state court's application of clearly established
law must be objectively unreasonable.
Id at 409.
When a state court reaches a decision on the merits but
provides no reasoning to support its conclusion, the federal habeas
court must conduct an independent review of the record to determine
whether the state court clearly erred in its application of Supreme
Court law.
Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
7 - OPINION AND ORDER
In such an instance, although the court independently reviews the
record, it still lends deference to the state court's ultimate
decision.
II.
Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
Unargued Claims
Although respondent filed a Response in which he addressed the
merits of petitioner's Ground Three claim, petitioner has neither
refuted these arguments nor provided the court with any kind of
briefing to support this claim.
The court has nevertheless
reviewed petitioner's Ground Three claim on the existing record and
determined that it does not entitle him to relief.
See 28 U.S.C.
§ 2248 ("The allegations of a return to the writ of habeas corpus
or of an answer to an order to show cause in a habeas corpus
proceeding, if not traversed, shall be accepted as true except to
the extent that the judge finds from the evidence that they are not
true."); see also Silva v. Woodford, 279 F.3d 825, 835 (9th Cir.
2002) (petitioner bears the burden of proving his claims).
III. Ground One: Decision to Admit Statements to Detectives
According
suppressed
not
to
petitioner,
just
those
the
trial
statements
he
court
made
should
to
have
detectives
following his phone call to his uncle, but all of the statements he
made during his post-arrest interrogation on the basis that he had
invoked his right to counsel and did not voluntarily reinitiate the
conversation.
He argues that his statements were unlawfully
admitted at trial because they were the result of coercive police
8 - OPINION AND ORDER
pressure insofar as the interviewing detectives: (1) threatened him
with immediate placement in the Columbia County Jail when he
invoked his right to counsel; and (2) improperly induced his
cooperation through a promise to allow him to speak with his
girlfriend.
A suspect subject to custodial interrogation has a Fifth
Amendment right to consult with an attorney, and the police must
explain this right prior to questioning.
U.S. 436, 469-473 (1966).
Miranda v. Arizona, 384
"When an accused invokes his right to
have counsel present during custodial interrogation, he may not be
subjected to further questioning by the authorities until a lawyer
has
been
made
conversation."
available
or
the
suspect
himself
reinitiates
Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.
2003) (citing Edwards v. Arizona, 451 U.S. 477, 484-485 (1981)).
If the suspect chooses to reinitiate the conversation, he must do
so in a manner that is knowing, intelligent, and voluntary.
Miranda, 348 U.S. at 476-79; Edwards, 451 U.S. at 482.
In this case, petitioner clearly invoked his right to counsel
at the beginning of his interview, and the detectives appropriately
honored this request.
detectives
threatened
Although petitioner contends that the
him
with
a
transfer
to
a
correctional
facility due to his invocation of his right to counsel, the
criminal trial court specifically found this not to be a threat.
Instead, it reasoned that the statement about the transfer was
9 - OPINION AND ORDER
merely an advisory statement as to the next step in the process.
Pursuant to 28 U.S.C. § 2254(e)(1), this factual finding is
entitled
to
a
presumption
of
correctness
absent
clear
and
convincing evidence to the contrary.
According to petitioner, the trial court's factual finding was
unreasonable in light of the evidence because the record clearly
shows that the interviewing detectives were willing to allow
petitioner to make a call to his girlfriend, whereas their reaction
to his request to speak with his attorney was to transfer him to
the Columbia County Jail.
These actions do not show that the
detectives were attempting to penalize petitioner for invoking his
right to counsel. His request to speak with his girlfriend, unlike
a request for counsel, was not one that legally obligated the
detectives
to
terminate
the
interview.
The
fact
that
the
detectives were not going to turn a newly-arrested murder suspect
free after invoking his right to counsel simply does not compel the
conclusion that they penalized petitioner for invoking his right to
counsel.
With respect to petitioner's allegation that the detectives'
decision to allow petitioner to call his girlfriend constituted an
improper promise designed to induce petitioner's cooperation, it is
clear that petitioner voluntarily reinitiated his interview in this
respect when he offered to continue the interview if the detectives
would allow him to make the phone call. Even after petitioner made
10 - OPINION AND ORDER
his call, the detectives asked petitioner if he would still be
willing to speak with them.
When he replied in the affirmative,
the detectives re-administered the Miranda warning, and petitioner
expressly waived his right to counsel and voluntarily spoke with
the detectives.
Because petitioner knowingly, voluntarily, and intelligently
waived his right to counsel and reinitiated the dialogue with
Detectives Altman and Simmons, the trial court's decision to admit
the
resulting
statements
is
neither
contrary
to,
nor
an
unreasonable application of clearly established federal law.
IV.
Ground Two: Ineffective Assistance of Counsel
Petitioner alleges that he was the victim of ineffective
assistance of counsel when his trial attorneys failed to move for
a mistrial after at least one juror observed him in shackles.
He
asserts that counsel did not conduct any voir dire to determine the
impact upon the jurors, and no curative steps were taken because
counsel simply did not address the issue at all.
The PCR trial
court denied relief on this claim, but did so without explanation.
As a result, the court conducts an independent review of the record
with respect to this claim.
Because no Supreme Court precedent is directly on point that
corresponds to the facts of this case, the court uses the general
two-part test the Supreme Court has established to determine
whether petitioner received ineffective assistance of counsel.
11 - OPINION AND ORDER
Knowles v. Mirzayance, 129 S. Ct. 1411, 1419 (2009).
First,
petitioner must show that his counsel's performance fell below an
objective standard of reasonableness.
Strickland v. Washington,
466 U.S. 668, 686-87 (1984). Due to the difficulties in evaluating
counsel's performance, courts must indulge a strong presumption
that the conduct falls within the "wide range of reasonable
professional assistance."
Id at 689.
Second, petitioner must show that his counsel's performance
prejudiced the defense.
The appropriate test for prejudice is
whether the petitioner can show "that there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different."
Id at 694.
A reasonable probability is one which is sufficient to undermine
confidence
in
the
outcome
of
the
trial.
Id
at
696.
When
Strickland's general standard is combined with the standard of
review governing 28 U.S.C. § 2254 habeas corpus cases, the result
is a "doubly deferential judicial review."
Mirzayance, 129 S.Ct.
at 1420.
As an initial matter, petitioner, who bears the burden of
proving his claims in this proceeding, has not established that any
juror actually saw him in restraints.
Petitioner testified during
his PCR proceedings that two jurors saw him in shackles outside of
the courtroom.
Respondent's Exhibit 156, pp. 56-57.
He further
stated that his attorneys pulled him back, rushed the jurors away,
12 - OPINION AND ORDER
and discussed this incident with him and presented it to the judge.
Id.
However, none of this testimony independently corroborated at
his PCR trial. Indeed, only one of his defense attorneys addressed
this issue in an affidavit for the PCR proceedings, and that
attorney
did
transpiring.
Even
not
have
any
recollection
of
such
an
event
Respondent's Exhibit 119, p. 3.
if
petitioner's
uncorroborated
PCR
testimony
was
sufficient to demonstrate that one or two jurors saw him shackled
outside of the courtroom, this would be insufficient to prove his
claim of ineffective assistance of counsel.
The Ninth Circuit has
repeatedly determined that a jury's brief glimpse of a shackled
criminal defendant outside of the courtroom is not prejudicial.
Williams v. Woodford, 384 F.3d 567, 593 (9th Cir. 2004); Ghent v.
Woodford, 279 F.3d 1121, 1133 (9th Cir. 2002); United States v.
Olano, 62 F.3d 1180, 1190 (9th Cir. 1995); Castillo v. Stainer, 983
F.2d 145, 148 (9th Cir. 1992); United States v. Halliburton, 870
F.2d 557, 560-562 (9th Cir. 1989).
case
that
the
incident
As there is no showing in this
petitioner
describes
was
uniquely
prejudicial to him, he cannot prevail upon his claim of ineffective
assistance of counsel.
Accordingly, upon an independent review of
the record, the PCR trial court's decision denying relief on
petitioner's Ground Two claims is neither contrary to, nor an
unreasonable application of clearly established federal law.
///
13 - OPINION AND ORDER
CONCLUSION
For the reasons identified above, the Petition for Writ of
Habeas Corpus [2] is DENIED.
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
16
day of June, 2011.
/s/Michael W. Mosman
Michael W. Mosman
United States District Judge
14 - OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?