Davidson v. McShane et al

Filing 32

Order. The Court ADOPTS Magistrate Judge Stewart's Findings and Recommendation 27 and, therefore, DENIES Petitioner's Third Amended Petition 14 for Writ of Habeas Corpus, DISMISSES this matter with prejudice, and DENIES a Certificate of Appealability. Signed on 09/09/2011 by Judge Anna J. Brown. See 12 page Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

LENNIE TY DAVIDSON,
Petitioner,

3:10-CV-725-ST
ORDER

v.
STATE OF OREGON, et al.,
Respondents.

BROWN, Judge.
Magistrate Judge Janice M. Stewart issued Findings and
Recommendation (#27) on July 7, 2011, in which she recommends the
Court deny Petitioner Lennie Ty Davidson's Third Amended Petition
(#14) for Writ of Habeas Corpus, dismiss this matter with
prejudice, and decline to issue a Certificate of Appealability.
Petitioner filed timely Objections to the Findings and
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Recommendation.

The matter is now before this Court pursuant to

28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b).
I.

Portion of the Findings and Recommendation to which
Petitioner objects.
When any party objects to any portion of the Magistrate

Judge's Findings and Recommendation, the district court must make
a de novo determination of that portion of the Magistrate Judge's
report.

28 U.S.C. § 636(b)(1).

See also Dawson v. Marshall, 561

F.3d 930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003)(en banc).
A.

Background
At some point a state-court grand jury indicted

Petitioner on two counts of Burglary in the First Degree, one
count of Robbery in the Third Degree, and one count of Theft in
the Second Degree.

Petitioner's trial counsel obtained a

psychiatric evaluation of Petitioner from Les Goldman, Ph.D., in
order to assess a defense of insanity or temporary insanity.
Dr. Goldman opined Petitioner was unable to conform his behavior
to the requirements of the law.

The prosecution also obtained a

psychiatric evaluation of Petitioner from Anne-Marie Smith, M.D.,
who, in contrast, opined Petitioner was able to conform his
behavior to the requirements of the law.
According to an affidavit filed with the state PostConviction Relief (PCR) court, Petitioner's trial counsel
reviewed Dr. Smith's report with Dr. Goldman.
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Dr. Goldman

"agreed it was not a very strong defense and that he would have
to testify it was marginal."

Trial counsel testified in his

affidavit that he advised Petitioner as to Dr. Smith's opinion
and Dr. Goldman's reaction, and, as a result, Petitioner elected
to plead guilty to two counts of Burglary in the First Degree.
On November 16, 2007, Petitioner entered his plea.
On November 19, 2007, Petitioner appeared for sentencing and
moved to withdraw his guilty plea on the ground that he did not
realize at the time he entered his plea that he could have and/or
wanted to present a defense of temporary insanity to a jury.
Petitioner also asked for new counsel.

The trial court denied

both motions.
Petitioner did not file a direct appeal, but he filed a
petition for writ of habeas corpus in Marion County Circuit Court
in which he alleged, among other things, a claim for ineffective
assistance of counsel on the ground that "trial counsel failed to
allow Petitioner an opportunity for a jury trial and coerced a
plea of guilty."
On July 8, 2009, the state PCR court held a court trial on
Petitioner's habeas petition at which Petitioner testified by
declaration that his trial counsel did not discuss the
possibility of presenting a defense of temporary insanity and
scared Petitioner into pleading guilty by focusing on
Petitioner's possible sentence if he was convicted at trial.

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Petitioner further testified in his declaration that trial
counsel did not discuss with him the opinions of Drs. Goldman and
Smith, and the choice of going to trial or pleading guilty came
up "very suddenly" leaving him little time to consider the
consequences of his decision.

Trial counsel, in turn, testified

in an affidavit that he discussed Petitioner's options and the
reports of Drs. Goldman and Smith and advised Petitioner that the
insanity defense was weak in Petitioner's case.

Trial counsel

also testified in his affidavit that after this discussion,
Petitioner believed his best choice was to plead guilty.
On September 3, 2009, the state PCR court issued Findings of
Fact and Conclusions of Law in which it found Petitioner was not
a credible witness and that Petitioner's "claim that trial
counsel never discussed with him the results of the evaluations
from [Dr. Smith] and Dr. Goldman is not credible."

The state PCR

court concluded Petitioner freely and knowingly entered his
guilty plea and did not suffer from ineffective assistance of
counsel.

Accordingly, the state PCR court denied Petitioner

relief.
On June 24, 2010, Petitioner filed a Petition for Writ of
Habeas Corpus pursuant to § 2254 in this Court alleging, among
other things, a claim for ineffective assistance of counsel on
the ground that trial counsel failed to adequately investigate
and to prepare a defense of guilty except for insanity or
temporary insanity.
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As a result, Petitioner involuntarily

entered his guilty plea.
As noted, on July 7, 2011, the Magistrate Judge issued
Findings and Recommendation in which she recommends the Court
deny the Third Amended Petition for Writ of Habeas Corpus
because, among other things, the state PCR found Petitioner's
testimony and his claim that trial counsel failed to discuss with
him the results of the evaluations of Drs. Goldman and Smith were
not credible, and, pursuant to 28 U.S.C. § 2254(e)(1), the PCR
court's credibility determination is binding on this Court absent
clear and convincing evidence to the contrary.
B.

Analysis
Petitioner objects to the Magistrate Judge's finding

that the state PCR court's credibility determination is binding
on this Court on the ground that the state PCR court did not hold
an evidentiary hearing before reaching its credibility
determination.

Petitioner asserted this same argument in his

Third Amended Petition, but he did not cite any authority to
support that position.

In his Objections, Petitioner cites two

cases to support his position:

Nunes v. Mueller, 350 F.3d 1045

(9th Cir. 2003) and Taylor v. Maddox, 366 F.3d 992 (9th Cir.
2004).

The Court finds neither of these cases provides a basis

to modify the Findings and Recommendation.
In Nunes, the petitioner was charged, among other
things, with one count of murder.

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350 F.3d at 1049.

In

petitioner's first two trials, the jury hung on the charge of
murder.

In his third trial the jury found the petitioner guilty

of second-degree murder, but the conviction was reversed on
appeal.

Id.

Shortly before the petitioner's fourth trial on the

murder charge, the prosecutor made a plea offer to the
petitioner's attorney that the petitioner plead guilty to
voluntary manslaughter, waive all presentence credits on that
voluntary manslaughter charge, and serve a sentence of 11 years.
Id. at 1050.

In exchange the prosecutor would drop the

second-degree murder charge, dismiss the firearm enhancement, and
seek full credit for the time the petitioner had already served.
Id.

The petitioner's counsel met with the petitioner briefly to

discuss the plea offer.

According to the petitioner, his

attorney incorrectly advised him that he was being offered a
22-year sentence that included the firearm enhancement and waived
all presentence credits for time served.

Id.

The petitioner

alleged he asked counsel to clarify the offer, but counsel had
already told the prosecutor that the petitioner had rejected the
plea bargain.

Id.

At some point before trial the petitioner's

mother told him the plea offer was different than the petitioner
had been led to believe, but the petitioner was not able to talk
with his attorney until after the plea offer had expired.

Id.

In his fourth trial the petitioner was convicted of second-degree
murder and received a sentence of 15 years-to-life with a two-

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year enhancement for the use of a firearm.

The petitioner filed

a direct appeal and then a state-court petition for PCR in which
he claimed he had received ineffective assistance of counsel when
counsel failed to correctly inform him of the terms of the plea
offer.

The state PCR court "rejected" the petitioner's habeas

claim without an evidentiary hearing on the ground that the
petitioner had not made a prima facie case of prejudice.

Id.

The petitioner then filed a petition for writ of habeas corpus
pursuant to § 2254 in federal court.

The district court granted

the petition on the ground that the state-court's decision was
erroneous and contrary to federal law.
appealed.

Id.

The government

The Ninth Circuit affirmed the district court's

decision, but on the basis that the state court's decision was
objectively unreasonable.

Id. at 1056.

The Ninth Circuit

reasoned:
State court findings are generally presumed
correct unless they are rebutted by clear and
convincing evidence or based on an unreasonable
evidentiary foundation (Sections 2254(e)(1) and
(d)(2); Gonzalez v. Pliler, 341 F.3d 897, 903 (9th
Cir. 2003)). But with the state court having
refused [the petitioner] an evidentiary hearing,
we need not of course defer to the state court's
factual findings - if that is indeed how those
stated findings should be characterized-when they
were made without such a hearing (Killian v.
Poole, 282 F.3d 1204, 1208 (9th Cir. 2002); Weaver
v. Thompson, 197 F.3d 359, 363 (9th Cir. 1999)).
While there may be instances where the state
court can determine without a hearing that a
criminal defendant's allegations are entirely
without credibility or that the allegations would
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not justify relief even if proved, that was
certainly not the case here (see United States v.
Navarro-Garcia, 926 F.2d 818, 822 (9th Cir.
1991)).
* * *
[T]the state court's decision was objectively
unreasonable because that court made factual
findings (that is, it drew inferences against
Nunes where equally valid inferences could have
been made in his favor, and it made credibility
determinations) when it rather claimed to be
determining prima facie sufficiency.
Id. at 1055-56 (emphasis added).
Nunes does not stand for the proposition that a PCR
court's credibility determination is not binding on this Court
whenever the state PCR court does not conduct an evidentiary
hearing.

In Nunes the Ninth Circuit merely concluded the state

PCR court erred in making a credibility determination when it
indicated it was only determining the prima facie sufficiency of
the petitioner's claim.

See Nunes, 350 F.3d 1055, n.7 ("It is

particularly unacceptable for [the state PCR] court to have
eschewed an evidentiary hearing on the basis that it was
accepting [the petitioner's] version of the facts, then to have
given the lie to that rationale by discrediting [the
petitioner's] credibility and rejecting his assertions.").
In the matter before this Court, the PCR court
conducted a court trial as to Petitioner's claims and took
evidence in the form of a declaration and an affidavit.

Thus,

the state PCR court was engaged in a merits determination rather
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than merely addressing the prima facie sufficiency of
Petitioner's claim.

Accordingly, Nunes does not establish the

state PCR court's credibility determination is not binding on
this court merely because the PCR court did not conduct an
evidentiary hearing in this context.
In Taylor the petitioner was charged with first-degree
felony murder and second-degree robbery.

The petitioner's trial

attorney moved to suppress the petitioner's confession on the
grounds that it was coerced and obtained in violation of Edwards
v. Arizona, 451 U.S. 477 (1981).

366 F.3d at 988.

The trial

court denied the petitioner's motion, and the appeals court
affirmed.

Id. at 998-99.

The petitioner filed a petition for

writ of habeas corpus pursuant to § 2254 in federal court.
district court denied the petition.

The

The Ninth Circuit reversed

on appeal and concluded the petitioner's conviction was "based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding."

Id. at 1000.

The Ninth Circuit noted a state-court's fact-finding process may
be defective if a state court makes evidentiary findings without
holding a hearing and giving petitioner an opportunity to present
evidence.

Id. at 1001.

The petitioner in Taylor, however,

asserted the error arose when the state court denied the
petitioner's motion to suppress but failed to consider and to
weigh relevant evidence that was properly presented to it and

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made part of the state-court record.

Id.

The Ninth Circuit

concluded the state court erred because it failed to "acknowledge
significant portions of the record . . . [that were] inconsistent
with the judge's findings."

Id. at 1007.

The Ninth Circuit

concluded "[f]ailure to consider key aspects of the record is a
defect in the fact-finding process."

Id. at 1008.

Here Petitioner does not allege any evidence or
identify any portion of the record that the state PCR court
failed to consider or to address in its findings of fact and
conclusions of law.

Although the Ninth Circuit noted in dicta

that there are circumstances in which a state-court's factfinding process may be defective if a state court makes
evidentiary findings without holding a hearing and giving
petitioner an opportunity to present evidence, those
circumstances did not form the basis for the Ninth Circuit's
decision in Taylor.
In addition, as noted, here the state PCR court held a
court trial as to Petitioner's state PCR claim and took evidence
in the form of a declaration and an affidavit.

Accordingly, the

Court concludes Taylor does not support Petitioner's assertion
that the PCR trial court's credibility determination is not
binding on this Court.
In summary, this Court has carefully considered Petitioner's
Objections and concludes Defendants' Objections do not provide a

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basis to modify the Findings and Recommendation.

The Court also

has reviewed the pertinent portions of the record de novo and
does not find any error in the Magistrate Judge's Findings and
Recommendation.
II.

Portions of the Findings and Recommendation to which
Petitioner does not object.
As to the portions of the Findings and Recommendation to

which Petitioner does not object, this Court is relieved of its
obligation to review the record de novo.

United States v. Reyna-

Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc).

See also

United States v. Bernhardt, 840 F.2d 1441, 1444 (9th Cir. 1988).
Having reviewed the legal principles de novo, the Court does not
find any error.

CONCLUSION
The Court ADOPTS Magistrate Judge Stewart’s Findings and
Recommendation (#27) and, therefore, DENIES Petitioner's Third
Amended Petition (#14) for Writ of Habeas Corpus, DISMISSES this

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matter with prejudice, and DENIES a Certificate of Appealability.
IT IS SO ORDERED.
DATED this 9th day of September, 2011.

/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

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