Schroeder v. Premo
Filing
113
OPINION AND ORDER: This Court ADOPTS Judge Coffin's F&R, ECF No. 93 in full. Petitioner Schroeder's petition, ECF No. 2 is DENIED. A certificate of appealability in each petition is DENIED because petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). Signed on 7/30/15 by Judge Michael J. McShane. (Mailed copy to petitioner) (dsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JOHN PAUL SCHROEDER,
Petitioner,
Civ. Nos.
6:10-cv-00505-TC
6:10-cv-06197-TC
6:10-cv-06198-TC
v.
OPINION AND ORDER
JEFF PREMO,
Respondent.
_____________________________
MCSHANE, Judge:
Petitioner filed three petitions 1 for writ of habeas corpus pursuant to 28 U.S.C. § 2254,
challenging his various convictions in three underlying cases.
In the first petition, Civ. No. 6:10-cv-06197-TC (Pet. 1),2 petitioner challenges a jury
conviction of Burglary in the First Degree and Sodomy in the First Degree in Lane County
Circuit Court Case No. 10-80-01863. See Exs. to Answer Pt. A, Ex. 101, Pet. 1, ECF No. 18
(conventionally filed). Magistrate Judge Thomas M. Coffin issued a Findings and
Recommendation (F&R) on August 19, 2014, in which he recommended that this Court deny
this petition. See F&R 1–18, Pet. 1, ECF No. 82.
1
Petitioner originally filed a single petition challenging jury convictions in all three underlying cases. See Pet. Writ
of Habeas Corpus 1–72, Pet. 1, ECF No. 2.
2
For ease of convenience, this Court will cite to a specific petition by using either “Pet. 1,” “Pet. 2,” or “Pet. 3.”
1 – OPINION AND ORDER
In the second petition, Civ. No. 6:10-cv-00505-TC (Pet. 2), petitioner challenges a jury
conviction of Burglary in the First Degree and Attempted Rape in the First Degree in Lane
County Circuit Court Case No. 10-80-02651. See Exs. to Answer Pt. A, Ex. 101, Pet. 2, ECF No.
33 (conventionally filed). Judge Coffin issued an F&R on August 22, 2014, in which he
recommended that this Court deny this petition. See F&R 1–16, Pet. 2, ECF No. 93.
In the third petition, Civ. No. 6:10-cv-06198-TC (Pet. 3), petitioner challenges a jury
conviction of Burglary in the First Degree, Robbery in the First Degree, two counts of Rape in
the First Degree, and two counts of Sodomy in the First Degree in Marion County Circuit Court
Case No. 124003. See Exs. to Answer Pt. A, Ex. 101, Pet. 3, ECF No. 18 (conventionally filed).
Judge Coffin issued an F&R on August 25, 2014, in which he recommended that this Court deny
this petition. F&R 1–14, Pet. 3, ECF No. 84.
Because these matters are now before this Court, see 28 U.S.C. § 636(b)(1)(B); Fed. R.
Civ. P. 72(b), this Court reviews all portions of the F&Rs subject to objection de novo, 28 U.S.C.
§ 636(b)(1); McDonnell Douglas Corp. v. Commodore Bus. Machs. Inc., 656 F.2d 1309, 1313
(9th Cir. 1981). Petitioner timely filed objections to each F&R. See Objections F&R 1–65, Pet. 1,
ECF No. 96; Objections F&R 1–55, Pet. 2, ECF No. 106; Objections F&R 1–85, Pet. 3, ECF No.
97. Upon review, this Court finds no error in the F&Rs issued by Judge Coffin.
FACTUAL AND PROCEDURAL BACKGROUND
In the late 1970s and early 1980s, the Eugene Police Department (EPD) investigated
approximately 130 residential burglaries and sexual assaults involving a similar modus operandi:
a masked intruder operating primarily in the west university neighborhood near the University of
Oregon.
2 – OPINION AND ORDER
On February 16, 1980, Rick Tanner contacted EPD to report an attempted burglary at his
apartment on East 17th Street near the University of Oregon. Based upon information provided
by Mr. Tanner, EPD tracked down petitioner’s vehicle and apprehended petitioner. An inventory
and subsequent search of petitioner’s vehicle and home revealed, among other items, a
homemade mask, a nickel plated revolver, a surgical glove, garments with eye holes cut out of
them, and a blender matching one reported stolen by a sexual assault victim.
Petitioner was subsequently indicted on February 27, 1980, in Case No. 10-80-01863
(Pet. 1); March 21, 1980, in Case No. 1240033 (Pet. 3); and May 1, 1980, in Case No. 10-8002651 (Pet. 2). The Lane County Court appointed John Halpern as counsel for petitioner in all
three matters.
On May 2, 1980, a hearing was held in Case Nos. 10-80-01863 (Pet. 1) and 10-80-02651
(Pet. 2) to consider petitioner’s motions for authorization of expert witness expenses. Tr.
Designation Pt. A., R. 1–12, May 2, 1980, Pet. 1, ECF No. 21 (conventionally filed). Petitioner’s
motions were denied.
On May 7, 1980, a hearing was held in all three cases to consider petitioner’s motions for
change of venue. See Tr. Designation Pt. A, R. 2–44, May 7, 1980, Pet. 1, ECF No. 21.
Petitioner’s motions were denied.
On June 2, 1980, a hearing was held in Case Nos. 10-80-01863 (Pet. 1) and 10-80-02651
(Pet. 2) to consider petitioner’s motions to substitute counsel. Tr. Designation Pt. A., R. 1–18,
June 2, 1980, Pet. 1, ECF No. 21. Petitioner’s motions were denied.
Between June 10 and 11, 1980, a hearing was held in all three cases to consider
petitioner’s motions for authorization of expert witness expenses and suppression of evidence.
3
This case was originally assigned Case No. 10-80-02652.
3 – OPINION AND ORDER
See Tr. Designation Pt. A, R. 1–151, June 10, 1980, Pet. 1, ECF No. 21; Tr. Designation Pt. A.,
R. 1–41, June 11, 1980, Pet. 1, ECF No. 21. These motions were denied in relevant part. On June
11, 1980, Mr. Halpern orally moved to withdraw as counsel. See id. at R. 5–12, June 11, 1980.
This motion was denied.
Between June 17 and 20, 1980, a jury trial was held in Lane County for Case No. 10-8001863 (Pet. 1). Petitioner, who was represented by Mr. Halpern, was convicted of Burglary in the
First Degree and Sodomy in the First Degree, and sentenced to 20 years’ imprisonment.
Between July 9 and 10, 1980, a jury trial was held in Lane County for Case No. 10-8002651 (Pet. 2). Petitioner, who was represented by Mr. Halpern, was convicted of Burglary in the
First Degree and Attempted Rape in the First Degree, and sentenced to 20 years’ imprisonment.
Following petitioner’s second jury trial, petitioner renewed his motion for change of
venue in Case No. 124003 (Pet. 3). Petitioner’s motion was granted and Case No. 124003 was
transferred from Lane County to Marion County. Petitioner was subsequently appointed new
counsel, Michael Mills.
Between May 27 and June 5, 1981, a jury trial was held in Marion County for Case No.
124003 (Pet. 3). Petitioner, who was represented by Mr. Mills, was convicted of Burglary in the
First Degree, Robbery in the First Degree, two counts of Rape in the First Degree, and two
counts of Sodomy in the First Degree, and sentenced to 100 years’ imprisonment.
STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),4 habeas
corpus relief “shall not be granted with respect to any claim that was adjudicated on the merits in
State court proceedings” unless such adjudication:
4
Pub. L. No. 104–132, 110 Stat. 1214 (codified as amended in scattered sections of U.S.C.).
4 – OPINION AND ORDER
1. resulted in a decision that was 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. § 2254(d).
Section 2254(d)(1) includes two alternative tests: the “contrary to” test and the
“unreasonable application” test. Under the “contrary to” test, a “state court decision is ‘contrary
to our clearly established precedent if the state court applies a rule that contradicts the governing
law set forth in our cases’ or ‘if the state court confronts a set of facts that are materially
indistinguishable from a decision of this Court and nevertheless arrives at a result different from
our precedent.’” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529
U.S. 362, 405–06 (2000)). Under the “unreasonable application” test, this Court “may grant the
writ if the state court identifies the correct governing legal principle from this Court’s decisions
but unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at
413. To be unreasonable, the state court decision must be “more than incorrect or erroneous,” it
must be an “objectively unreasonable” application of clearly established law. Andrade, 538 U.S.
at 75–76 (citations omitted).
Section 2254(d)(2) involves purely factual questions resolved by the state court. Such
factual determinations “are presumed correct absent clear and convincing evidence to the
contrary,” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (citations omitted), and are not
unreasonable merely because a federal court may have reached a different conclusion as an
initial matter, Cullen v. Pinholster, 131 S. Ct. 1388, 1411 (2011).
5 – OPINION AND ORDER
DISCUSSION
Petitioner challenges jury convictions in three underlying cases: Civ. Nos. 6:10-cv06197-TC (Pet. 1); 6:10-cv-00505-TC (Pet. 2); and 6:10-cv-06198-TC (Pet. 3). This Court
addresses specific grounds for relief in each petition, but otherwise relies on the findings of
Judge Coffin in the respective F&Rs, ECF Nos. 82 (Pet. 1), 93 (Pet. 2), 84 (Pet. 3). 5
I. First Petition: Civ. No. 6:10-cv-06197-TC
In the first petition, petitioner alleges eight grounds for relief: (1) violative denial of
petitioner’s pretrial motion to change venue; (2) violative use of identification procedures; (3)
violative refusal to authorize funds for an expert witness and exclusion of expert testimony; (4)
violative prosecutorial misconduct during closing argument; (5) ineffective assistance of counsel
regarding failure to object to prosecutorial misconduct during closing argument; (6) violative
failure to substitute counsel; (7) ineffective assistance of counsel regarding failure to object to
prosecutor’s references to a single composite of petitioner’s facial features; and (8) deprivation
of petitioner’s right to a fair trial through the cumulative effect of these errors. See Br. Supp. Pet.
Writ Habeas Corpus 1–70, Pet. 1, ECF No. 36; Supplemental Br. 1–11, Pet. 1, ECF No. 55. This
Court addresses each ground in sequence.
As to the first ground, denial of petitioner’s motion to change venue,6 petitioner argues
that his trial was prejudiced by pretrial publicity. 7 The Oregon Appellate Court, in State v.
5
To the extent that petitioner attempts to raise new grounds for relief in his voluminous objections to the F&Rs, this
Court declines to consider those grounds. See United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000) (“[A]
district court has discretion, but is not required, to consider evidence presented for the first time in a party’s
objection to a magistrate judge’s recommendation.”). Petitioner, who filed these petitions in 2010, had
approximately four years to brief his additional grounds for relief. In fact, in all three underlying cases, Judge Coffin
granted petitioner leave to file oversize briefs and replies in support of his petitions for habeas corpus. Petitioner’s
inferred explanation—conflict with counsel—is insufficient to give rise to this Court’s consideration of his new
grounds for relief. Petitioner was represented by counsel for nearly two years, yet he failed to notify Judge Coffin of
his conflict with counsel and he failed to brief the additional grounds for relief prior to the issuance of the F&Rs.
6
See Tr. Designation Pt. A, R. 2–44, May 7, 1980, Pet. 1, ECF No. 21.
6 – OPINION AND ORDER
Schroeder, 55 Or. App. 932, 935–36 (Schroeder I), review denied, 293 Or. 373 (1982),
concluded that it could not “say that the media coverage of defendant’s arrest was so prejudicial
and so pervasive that it was an abuse of discretion to deny the motion for a change of venue.”
The Appellate Court further noted that it “reviewed the transcript of the voir dire, and it appears
that the defense did not encounter difficulty in finding jurors who were impartial.” Id. at 936.
This Court, having independently reviewed the record,8 finds that denial of petitioner’s motion to
change venue did not satisfy 28 U.S.C. § 2254(d). The state decision was neither “contrary to”
nor involved an “unreasonable application” of clearly established federal law at that time. See
Murphy v. Florida, 421 U.S. 794, 800 (1975) (concluding that the exclusion of 20 out of 78
persons “by no means suggest[ed] a community with sentiment so poisoned against petitioner as
to impeach the indifference of jurors who displayed no animus of their own”); Irvin v. Dowd,
366 U.S. 717, 722 (1961) (“It is not required, however, that the jurors be totally ignorant of the
facts and issues involved.”); see also F&R 7–9, Pet. 1, ECF No. 82. Nor was the state decision an
unreasonable determination of the facts. See, e.g., Tr. Designation Pt. A, R. 107–08, June 17,
1980, Pet. 1, ECF No. 21. 9
7
Petitioner relies primarily on a police press conference held on February 29, 1980, television newscasts, and
newspaper articles.
8
See, e.g., Exs. to Answers Pt. A, Ex. 105-B, R. 404–21, 423, Pet. 1, ECF No. 18 (conventionally filed); Tr.
Designation Pt. A, R. 92–256, Pet. 1, ECF No. 21; Tr. Designation Pt. B, R. 258–522, Pet. 1, ECF No. 22
(conventionally filed).
9
For example, during voir dire, the following dialogue took place between plaintiff’s counsel Mr. Halpern and a
prospective juror:
[Q] Have you heard anything about this case or read anything about it, T.V. or
newspaper?
A The -- only thing I can recall is there was some problem with a Court-appointed
attorney not too long ago.
Q That would be myself.
A . . . I didn’t follow the charges in the news media.
7 – OPINION AND ORDER
As to the second ground, violative use of identification procedures, petitioner argues that
the identifications obtained from Ms. Bowen, and then later, Ms. Cummins, were the product of
an impermissibly suggestive photographic lineup. See Br. Supp. Pet. Writ Habeas Corpus 48–51,
ECF No. 36. 10 As to Ms. Bowen, petitioner claims that his image was larger than that of any of
the other seven individuals in the photographs presented. See Tr. Designation Pt. A, R. 6, June
17, 1980, Pet. 1, ECF No. 21. 11 The Oregon Appellate Court considered these photographs and
determined that they were “of quite similar-looking individuals, and [that the] defendant [was]
not emphasized in such a way as to make the process unduly suggestive.” Schroeder I, 55 Or.
App. at 936. As to Ms. Cummins, petitioner claims that Ms. Cummins was “made to feel [that]
she had to or should choose one of” the photographs. Br. Supp. Pet. Writ Habeas Corpus 48,
ECF No. 36. The Oregon Appellate Court agreed that the photographic identification procedure
was unduly suggestive under State v. Classen, 285 Or. 221 (1979), as it related to Ms. Cummins,
but determined that the identification itself was nonetheless “made on the basis of a source
independent of the suggestive procedure.” Schroeder I, 55 Or. App. at 936–37; see also Manson
Q I see.
A I really didn’t do that. I did read the article about the problem with yourself. And that’s
it.
Id.
10
Officer Melinda Richardson created a photographic lineup that included eight different numbered photographs.
This lineup was shown to Ms. Cummins on February 19, 1980, and to Ms. Bowen on February 21. 1980. Both Ms.
Cummins and Ms. Bowen identified petitioner’s photograph. See Tr. Designation Pt. A, R. 12–86, June 17, 1980,
Pet. 1, ECF No. 21. This photographic lineup was not preserved as evidence.
11
Petitioner’s counsel Mr. Halpern argued:
So it would be our position . . . that the photographs that were shown to Miss Bowen are
suggestive. They’re impermissibly suggestive. And that the nature of the photographs . . .
is such that Mr. Schroeder’s picture is by far the largest one. It’s a full face view, so to
speak. The face in the picture is quite a bit larger in that than any of the larger pictures.
And that unquestionably draws attention to that picture.
Id.
8 – OPINION AND ORDER
v. Brathwaite, 432 U.S. 98, 114 (1977) (holding that “reliability is the linchpin in determining
the admissibility of identification testimony.”). The Court explained:
The witness had a clear view of the man who came to the door of the
apartment that day, and she spoke with him face to face. Although the
conversation was short, lasting from 30 seconds to two minutes, the
witness paid particular attention, because she was suspicious of this longhaired man coming to see the “clean-cut” residents of the apartment. She
gave a description to the police right after the assault was reported.
Although there was an interval of eight months between the crime and the
identification in the throw-down, Cummins identified defendant without
hesitation and was certain of that identification.
Id. at 937. This decision was neither “contrary to” nor involved an “unreasonable application” of
clearly established federal law at that time. As indicated in Brathwaite, the factors to be
considered in determining admissibility include: “the opportunity of the witness to view the
criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior
description of the criminal, the level of certainty demonstrated at the confrontation, and the time
between the crime and the confrontation.” 43 U.S. at 114. Those factors, which cannot be said to
have been unreasonably considered by the Oregon Appellate Court as to Ms. Cummins’s
identification, are also met as to Ms. Bowen’s identification.
Ms. Bowen initially observed a man for five to ten seconds as she passed him in the hall
while carrying her laundry on June 22, 1979. Tr. Designation Pt. A, R. 30, June 17, 1980, Pet. 1,
ECF No. 21. Ms. Bowen, who was frightened by the man’s size and odor, paid special attention
to his physical characteristics. 12 Ms. Bowen returned to her apartment approximately five
minutes later. See Tr. Designation Pt. A, R. 30–31, June 17, 1980, Pet. 1, ECF No. 21. The same
12
Ms. Bowen initially described the assailant as: about six feet three inches tall, about 230 to 250 pounds; in his late
twenties; with dirty reddish brown hair in a ponytail down to his shoulder blades; a full unkept beard and mustache;
and wearing blue overalls, blue jeans, and a blue shirt. See id. at R. 28; Tr. Designation Pt. B, R. 566–67, June 18,
1980, Pet. 1, ECF No. 22. On February 16, 1980, petitioner informed officer Merle Olson that he was “six two,”
between “220 and 230” pounds, and twenty-nine years of age. See Tr. Designation Pt. B, R. 688–89, June 18, 1980,
Pet. 1, ECF No. 22.
9 – OPINION AND ORDER
man,13 but wearing a mask that revealed his beard, jumped out of her kitchen hallway armed
with a gun. See Tr. Designation Pt. B, R. 571–73, June 18, 1980, Pet. 1, ECF No. 22. That man
then forced Ms. Bowen to perform oral sex at gunpoint. See id. at R. 575. During trial, Ms.
Bowen repeatedly indicated that there was “no question” in her mind that petitioner was the
assailant. See id. at R. 579, 583. Combined, these factors can reasonably be interpreted to support
admission of Bowen’s identification testimony independent of the alleged suggestive procedure.
See Coleman v. Alabama, 399 U.S. 1, 3–6, 13 (1970) (plurality opinion) (holding admissible an
in-court identification where a witness briefly viewed two assailants in the headlights of a
passing car).
As to the third ground, violative refusal to authorize funds for an expert witness and
exclusion of expert testimony, petitioner argues that he was denied due process and compulsory
process. See Br. Supp. Pet. Writ Habeas Corpus 51–57, ECF No. 36. Petitioner moved for
authorization of expert witness 14 expenses totaling $500 on May 2 and June 10, 1980. See Tr.
Designation Pt. A, R. 1–12, May 2, 1980, Pet. 1, ECF No. 21; Tr. Designation Pt. A., R. 1–34,
June 10, 1980, Pet. 1, ECF No. 21. The trial court denied the initial motion, explaining:
One, I think it is clear from [State v. Calia, 15 Or. App. 110 (1973)], and I
agree . . . I can’t conceive of how over objection the evidence would be
admissible from an expert such as this in an identification case.
But secondly . . . I’m not prepared to start appointing experts in a case
[such as this]. Identification defense is a defense that’s been in existence
13
Ms. Bowen connected her assailant to the man she had earlier passed in the hall based upon his clothing, body
type, facial hair, eyes, and body odor. See id. at R. 34; Tr. Designation Pt. B, R. 571–72, 598–99, June 18, 1980, Pet.
1, ECF No. 22.
14
Petitioner’s attorney, Mr. Halpern, noted that the proposed expert, Dr. Harold Hawkins, was expected to provide
“a definitive statement” as to whether he believed “the victim’s recognition was accurate or inaccurate,” and
whether the photographic identification process was visually suggestive. Tr. Designation Pt. A, R. 4–6, May 2,
1980, Pet. 1, ECF No. 21. On June 10, 1980, Mr. Halpern renewed petitioner’s request for authorization of expert
witness expenses. See Id. at R. 1–34, June 10, 1980. Pursuant to that renewed request, Mr. Halpern examined Dr.
Hawkins, who testified that he was prepared “to discuss a number of factors that are unique to these cases which will
have an impact on the accuracy with which people can recall.” Id. at R. 7.
10 – OPINION AND ORDER
ever since criminal law was instituted. There has been no need in all these
years to have psychiatrists, psychologists, or what have you help them.
Id. at R. 9–10, May 2, 1980; see also id. at R. 149, June 10, 1980 (denying renewed motion for
authorization of expert witness expenses). These decisions were neither “contrary to” nor
involved an “unreasonable application” of clearly established federal law at that time. As
indicated in Chambers v. Mississippi, 410 U.S. 284, 294–303 (1973), a state evidentiary law can
deprive a criminal defendant of a fair trial. 15 This matter, however, differs in significant respects
from Chambers. Unlike in Chambers, petitioner was neither prevented from cross-examining
and impeaching key witnesses,16 nor from calling witnesses to refute the state’s description of
the assailant. See, e.g., id. at R. 713–720; id. at R. 766–779, June 20, 1980.
As to the fourth and fifth grounds, prosecutorial misconduct involving closing arguments
and ineffective assistance relating to that misconduct, this Court relies on Judge Coffin’s F&R
procedural default findings. See F&R 12–14, Pet. 1, ECF No. 82.
As to the sixth ground, denial of petitioner’s motion to substitute counsel, petitioner
argues that this denial violated his right to counsel under the Sixth Amendment. See Br. Supp.
Pet. Writ Habeas Corpus 65–67, ECF No. 36. This Court, having independently reviewed the
record,17 finds that denial of petitioner’s motion to substitute counsel did not satisfy 28 U.S.C. §
2254(d). The state decision was neither “contrary to” nor involved an “unreasonable application”
of clearly established federal law at that time. Petitioner explained seven different factual
15
In Chambers, a jury convicted the defendant of murdering a police officer. 410 U.S. at 285. During trial,
defendant was prevented from introducing testimonial evidence that a third-party, Gable McDonald, was the
assailant. Id. at 289. Mississippi’s evidentiary rules, i.e., “party witness” or “voucher” rule and hearsay rule,
prevented defendant from cross-examining McDonald, and presenting the testimony of three witnesses who had
heard McDonald confess to the murder on three separate occasions. See Id. at 291–94, 298. The Court determined
that under those facts and circumstances, “the trial court deprived Chambers of a fair trial.” Id. at 303.
16
For example, Mr. Halpern cross-examined Ms. Bowen, Donald Schuessler, and Ms. Cummins. See Tr.
Designation Pt. B, R. 587–608, 614–16, 655–64, 700–08, June 19, 1980, Pet. 1, ECF No. 22.
17
See Tr. Designation Pt. A, R. 1–19, June 2, 1980, Pet. 1, ECF No. 21; Tr. Designation Pt. A, R. 5–12, June 11,
1980, Pet. 1, ECF No. 21.
11 – OPINION AND ORDER
grounds for his motion to dismiss his counsel. See Tr. Designation Pt. A, R. 1–8, June 2, 1980,
Pet. 1, ECF No. 21. Those grounds, insofar as they are credited,18 most accurately reflect a
souring attorney-client relationship and concern with trial strategy, and not a denial of
petitioner’s right to counsel under the Sixth Amendment. 19 Even had petitioner’s factual grounds
established irreconcilable conflict under contemporary case law, such law was not clearly
established in 1980. See Slappy, 461 U.S. at 12, 15 (upholding the trial court’s denial of
petitioner’s motion for continuance under the Sixth Amendment despite petitioner’s “adamant—
even contumacious—refusal to cooperate with [his counsel] or to take the stand as [his counsel]
advised . . . [and] [petitioner’s] numerous outbursts and disruptions”).
As to the seventh ground, alleged ineffective assistance of counsel relating to a composite
of petitioner’s facial features, petitioner argues that his attorney provided ineffective assistance
by failing to object to the prosecutor’s references to a single composite during opening and
closing statements. See Supplemental Br. Supp. Pet. Writ Habeas Corpus 1–11, ECF No. 55. As
indicated in Strickland v. Washington, 466 U.S. 668, 689 (1984), this court “must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Petitioner’s attorney, Mr. Halpern, when faced with testimony from Ms. Cummins
that raised the possibility 20 that two composites of petitioner’s facial features had been created,
18
Compare id. at R. 6–7 (Mr. Schroeder testified that his attorney “provide [him] with his complete denial of a deal
offered some weeks ago.”), with id. at R. 17 (“[A]t no time contrary to any indication were any deals ever offered to
Mr. Schroeder.”).
19
See Morris v. Slappy, 461 U.S. 1, 14 (1983) (holding that the Sixth Amendment does not guarantee a
“‘meaningful relationship’ between an accused and his counsel”); United States v. White, 451 F.2d 1225, 1226 (6th
Cir. 1971) (“The right of an accused to court-appointed counsel does not carry with it the right to select a particular
attorney.” (citation omitted)); see also Peter W. Tague, An Indigent’s Right to the Attorney of his Choice, 27 STAN
L. REV. 73, 79 (1974) (“[T]he right to effective representation is not interpreted to guarantee the defendant the best
representation but only a certain minimum level of competence that an attorney . . . is expected to provide.”
(citations omitted)).
20
Ms. Cummins testified that that there were two composites, but she believed that State Ex. 36, which was the
composite presented to her at trial, was the composite that she assisted in creating. See Tr. Designation Pt. B, R. 702,
12 – OPINION AND ORDER
cannot be said to have acted unreasonably. Mr. Halpern cross-examined Ms. Cummins to
confirm whether two composites had been created, see id. at R. 700–08, June 19, 1980; he
moved for production of the possible second composite, id. at R. 709–10, June 19, 1980; and he
called and examined Detective Griesel, id. at R. 731–52, 761–65, June 20, 1980. Petitioner has
not demonstrated that Mr. Halpern’s “representation fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688.
As to the eighth ground, deprivation of petitioner’s right to a fair trial through the
cumulative effect of alleged errors, this Court does not recognize a basis for cumulative error.
See Boyde v. Brown, 404 F.3d 1159, 1176 (9th Cir.) (“Because we find no merit in [petitioner]s]
claims of constitutional error . . . we also reject his contention that he was prejudiced by the
cumulative effect of the claimed errors), amended on reh’g, 421 F.3d 1154 (9th Cir. 2005).
II. Second Petition: Civ. No. 6:10-cv-00505-TC
In the second petition, petitioner alleged eight grounds for relief: (1) violative denial of
petitioner’s pretrial motion to change venue; (2) violative use of identification procedures; (3)
violative exclusion of expert testimony; (4) ineffective assistance of counsel regarding failure to
object to criminalist’s testimony; (5) ineffective assistance of counsel regarding failure to
impeach victim with prior inconsistent statements; (6) ineffective assistance of counsel regarding
failure to object to prosecutorial misconduct during closing argument; (7) violative failure to
substitute counsel; and (8) deprivation of petitioner’s right to a fair trial through the cumulative
June 19, 1980, Pet. 1, ECF No. 22. Ms. Bowen also testified that State Ex. 36 was an “accurate representation of”
the composite she assisted in creating. See id. at R. 567. Detective Ronald Griesel, the individual who recorded State
Ex. 36, testified that Cummins and Bowen made the same composite. Id. at R. 758, June 20, 1980; see also id. at R.
710, June 19, 1980 (“[Prosecutor]: As far as I know, what’s been represented to me, there’s one composite. And
that’s it.”).
13 – OPINION AND ORDER
effect of these errors. See Br. Supp. Pet. Writ Habeas Corpus 1–73, Pet. 2, ECF No. 63. This
Court addresses each ground in sequence.
As to the first ground, denial of petitioner’s motion to change venue, petitioner again
argues that his trial was prejudiced by pretrial publicity. See Br. Supp. Pet. Writ Habeas Corpus
29–37, Pet. 2, ECF No. 63. Petitioner’s motion to change venue was addressed in the hearing on
May 7, 1980, discussed in section I above. See Tr. Designation, R. 2–44, May 7, 1980, ECF No.
36 (conventionally filed). Because petitioner relies on the same evidence addressed in section I,
this Court relies on its previous analysis. 21
As to the second ground, violative use of identification procedures, petitioner argues that
the photographic lineup and in-court identifications obtained from Leslie Brumley were the
product of an impermissibly suggestive procedure. See Br. Supp. Pet. Writ Habeas Corpus 37–
41, Pet. 2, ECF No. 63. Ms. Brumley, who was sexually assaulted on July 14, 1978, was
presented with a clothing lineup on February 20, 1980, and presented with a photographic lineup
on March 1, 1980. See Tr. Designation, R. 3, 5–19, 21–22, 25–28, July 8, 1980, Pet. 2, ECF No.
36. At the clothing lineup, Ms. Brumley identified a surgical glove and blue plaid shirt as similar
to those worn by her assailant. Id. at R. 18, 22, 27. At the photographic lineup, Ms. Brumley
identified petitioner’s photograph, which depicted petitioner in a shirt that was included in the
earlier clothing lineup. Id. at 26–27. Ms. Brumley testified that she had seen a picture of
petitioner in a newspaper article dated January 29, 1980, prior to her photographic lineup
identification. Id. at R. 13–14, 19. 22 The trial court considered this evidence and found:
[T]he photo lineup was conducted and was presented in a manner that was
not impermissibly suggestive and was properly conducted. In fact, there
21
Voir dire during this second trial was not transcribed.
The record is ambiguous as to when Ms. Brumley briefly saw a side view of petitioner on television. See id. at R.
89–90, July 9, 1980.
22
14 – OPINION AND ORDER
was no influence brought to bear by those conducting it to suggest or lead
the witness to an identification, and further that the witness’s in-court
identification is based upon independent memory and reflection of the
identity of the defendant, and is not tainted in any way by having viewed
the photographic lineup, and that she will be entitled to identify the
defendant during the course of the trial if she is able to do so at that time
in the presence of the jury.
Id. at R. 34; see also State v. Schroeder, 55 Or. App. 1030, 1030 (affirming trial court decision),
review denied, 293 Or. 456 (1982). This decision was neither “contrary to” nor involved an
“unreasonable application” of clearly established federal law at that time. Utilizing the
Brathwaite factors discussed in section I, this Court is persuaded that those factors can
reasonably be interpreted to support admission of Brumley’s identification testimony
independent of the alleged suggestive procedure.
Ms. Brumley awoke at approximately 8:20 a.m. and discovered a strange man in her
living room. Tr. Designation, R. 25–27, July 9, 1980, Pet. 2, ECF No. 36. Ms. Brumley observed
that man at a distance of approximately five feet for thirty seconds in well-lit conditions. Id. at R.
27. Upon realizing that the man was an intruder, Ms. Brumley paid special attention to his
physical characteristics. See id. at R. 29, 32, 42. Ms. Brumley was ordered to return to her
bedroom. Id. at R. 32. The man later entered the bedroom, but was wearing a mask and gloves.
Id. at R. 33. That man then forced Ms. Brumley to remove her clothing and laid on top of her
until he ejaculated. 23 During this assault, Ms. Brumley again paid special attention to his
physical characteristics. Id. at R. 33–37. Prior to and during trial, Ms. Brumley repeatedly
indicated that she was certain that petitioner was the assailant. See, e.g., id. at R. 8, 12–13, July 8,
1980; id. at R. 57, July 9, 1980.
23
The assailant did not penetrate Ms. Brumley. Id. at R. 40.
15 – OPINION AND ORDER
As to the third ground, violative exclusion of expert testimony, petitioner again argues
that he was denied due process and compulsory process. See Br. Supp. Pet. Writ Habeas Corpus
41–45, Pet. 2, ECF No. 63. Petitioner’s motion for authorization of expert witness expenses was
addressed in the hearings on May 2 and June 10, 1980, discussed in section I above. Petitioner
subsequently obtained independent funding and sought to introduce the same expert’s testimony
on July 9 and July 10, 1980. See Tr. Designation, R. 180–184, July 9, 1980, Pet. 2, ECF No. 36;
Tr. Designation, R. 184–87, 198–218, July 10, 1980, Pet. 2, ECF No. 36. The trial court,
following an in-camera examination of the expert, denied the motion. See id. at R. 218, July 10,
1980. The trial court relied upon its previous statement regarding the proposed testimony:“[i]t
sounds to the Court like [Dr. Hawkin’s testimony] is a violation of the providence of the jury to
determine those facts.” Id. at R. 184, July 9, 1980. This decision was neither “contrary to” nor
involved an “unreasonable application” of clearly established federal law at the time. Again, as
discussed in section I, this matter differs in significant respects from Chambers. See supra § I
n.15 (discussing Chambers). Petitioner was neither prevented from cross-examining and
impeaching key witnesses,24 nor from calling witnesses to refute the state’s description of the
assailant. See, e.g., id. at R. 143–47, 151–53, 153–58, 159–62, 163–68, 172–76.
As to the fourth, fifth and sixth grounds, ineffective assistance of counsel relating to
witness testimony and prosecutorial misconduct during closing argument, this Court relies on
Judge Coffin’s F&R procedural default findings. See F&R 12–15, Pet. 2, ECF No. 93.
As to the seventh ground, denial of petitioner’s motion to substitute counsel, petitioner
again argues that he was denied his right to counsel under the Sixth Amendment. See Br. Supp.
24
For example, Halpern cross-examined Ms. Brumley, Officer Richardson, and James Pex. Tr. Designation, R. 58–
79, 102–04, 134–39, July 9, 1980, Pet. 2, ECF No. 36.
16 – OPINION AND ORDER
Pet. Writ Habeas Corpus 67–70, Pet. 2, ECF No. 63. Petitioner’s motion to substitute counsel in
this matter was addressed in the same hearings on June 2 and June 11, 1980, discussed in section
I above. See Tr. Designation Pt. A, R. 1–19, June 2, 1980, Pet. 1, ECF No. 21; Tr. Designation
Pt. A, R. 5–12, June 11, 1980, Pet. 1, ECF No. 21. Because petitioner relies on the same
evidence addressed in section I, this Court relies on its previous analysis.
As to the eighth ground, deprivation of petitioner’s right to a fair trial through the
cumulative effect of alleged errors, this Court does not recognize a basis for cumulative error.
See Boyde, 404 F.3d at 1176.
III. Third Petition: Civ. No. 6:10-cv-06198-TC
In the third petition, petitioner alleges eight grounds for relief: (1) deprivation of
petitioner’s right to a fair trial because of shackling; (2) violative exclusion of expert testimony;
(3) ineffective assistance of counsel regarding failure to impeach witnesses with prior
inconsistent statements; (4) ineffective assistance of counsel regarding failure to object to bite
mark evidence based upon inadequate foundation; (5) ineffective assistance of counsel regarding
statements made in petitioner’s closing argument about possession of the assailant’s clothing and
counsel’s failure to elicit differences in the descriptions provided by the witnesses; (6)
ineffective assistance of counsel regarding the prejudicial introduction of inculpatory testimony;
(7) ineffective assistance of appellate counsel regarding failure to assign as error the admission
of other crimes evidence; (8) deprivation of petitioner’s right to a fair trial through the
cumulative effect of these errors. See Br. Supp. Pet. Writ Habeas Corpus 1–64, Pet. 3, ECF No.
54. This Court addresses each ground in sequence.
As to the first ground, deprivation of petitioner’s right to a fair trial through shackling,
petitioner argues that he was shackled without a constitutionally adequate showing of need
17 – OPINION AND ORDER
during trial. See Br. Supp. Pet. Writ Habeas Corpus 29–32, ECF No. 54. Petitioner moved to
remove his leg shackles on May 27, 1981, and subsequently for mistrial based upon his
continued shackling on June 8, 1981. See Tr. Designation Pt. A, R. 43, May 27, 1981, Pet. 3,
ECF No. 22 (conventionally filed); Tr. Designation Pt. B., R. 1373, June 8, 1981, Pet. 3, ECF
No. 23 (conventionally filed). The trial court denied the motions, explaining:
I’m going to deny taking off your leg irons. They are not noticeable, first
of all, and the sheriff is charged with the responsibility for the safety of the
courtroom personnel, witnesses and relying upon his advi[c]e that you
represent a security risk, Mr. Schroeder, it leaves me no other choice.
Tr. Designation Pt. A., R. 50, May 26, Pet. 3, ECF No. 22; see also Tr. Designation Pt. B., R.
1374, June 8, 1981, Pet. 3, ECF No. 23 (denying motion for mistrial based on “the reasons
indicated previously”). The Oregon Appellate Court reviewed this reasoning and determined that
the trial court’s denial was an abuse of discretion. See State v. Schroeder. 62 Or. App. 331, 338
(Schroeder III), review denied, 295 Or. 161 (1983). Nonetheless, the Court concluded that the
error was harmless under the standard articulated in Chapman v. California, 386 U.S. 18, 24
(1976). See Schroeder III, 62 Or. App. at 338–39. This decision was neither “contrary to” nor
involved an “unreasonable application” of clearly established federal law at that time. As
indicated in Brecht v. Abrahamson, 507 U.S. 619, 636-38 (1993), this Court assesses
“constitutional error of the trial type” under the Kotteakos 25 harmless-error standard. Under that
standard, petitioner is “not entitled to habeas corpus relief” unless he “can establish that [the trial
error] resulted in actual prejudice.” Brecht, 507 U.S. at 637 (citation and internal quotation marks
omitted). Petitioner has not made such a demonstration; the State’s evidence was, if not
overwhelming, certainly weighty. See Schroeder III, 62 Or. App. at 338 (“[G]iven the
25
Kotteakos v. United States, 328 U.S. 750 (1946).
18 – OPINION AND ORDER
overwhelming evidence of defendant’s guilt, we conclude that the trial court’s error in denying
defendant’s motion to remove his shackles during trial was harmless beyond a reasonable
doubt.”).
As to the second ground, violative exclusion of expert testimony, petitioner argues that he
was denied due process and compulsory process. See Br. Supp. Pet. Writ Habeas Corpus 33–36,
ECF No. 54. Petitioner moved to introduce expert testimony, which had been deemed
inadmissible in the earlier trials discussed in sections I and II above, on June 8, 1981. Tr.
Designation Pt. B., R. 1368–70, June 8, 1981, Pet. 3, ECF No. 23. The trial court denied the
motion. See id. at R. 1370. The Oregon Appellate Court affirmed the denial, concluding that “[i]t
is the province of the jury to weigh the evidence and to evaluate credibility.” Schroeder III, 62
Or. App. at 340 (citation omitted). Again, as discussed in section I and II, this matter differs in
significant respects from Chambers. See supra § I n.15 (discussing Chambers). Petitioner was
neither prevented from cross-examining and impeaching key witnesses,26 nor from calling
witnesses to implicate a third-party as the assailant in the sexual assaults. See, e.g., id. at R.
1259–67, 1272–76, 1302–08, 1316–19, 1320, 1322–26, 1328, 1329–34, 1340–41, 1344, 1345–
49, 1354, June 5–June 8, 1981, Pet. 3, ECF No. 23.
As to the third, fourth, fifth, and sixth grounds, ineffective assistance of counsel relating
to witness impeachment, bite mark evidence, statements made in closing arguments, and the
introduction of inculpatory evidence, this Court relies on Judge Coffin’s F&R findings. See F&R
7–12, Pet. 3, ECF No. 84.
26
For example, Mr. Mills cross-examined Ms. Hoffman, Ms. Thompson, Dr. Oliver G. Harris, Ms. Creighton, Ms.
Wymer, and Mr. Ware. See Tr. Designation Pt. A, R. 298–341, 383–411, 583–634, 786–803, May 28–June 2, 1981,
Pet. 3, ECF No. 22; Tr. Designation Pt. B., R 827–41, 857–65, 887–901, 1021–42, 1047–49, 1072–75, 1105–26,
1155–63, June 2–June 4, 1981, Pet. 3, ECF No. 23.
19 – OPINION AND ORDER
As to the seventh ground, ineffective assistance of appellate counsel relating to the
introduction of other crimes evidence, this Court relies on Judge Coffin’s F&R procedural
default findings. See F&R 12–13, Pet. 3, ECF No. 84.
As to the eighth ground, deprivation of petitioner’s right to a fair trial through the
cumulative effect of alleged errors, this Court does not recognize a basis for cumulative error.
See Boyde, 404 F.3d at 1176.
CONCLUSION
This Court ADOPTS Judge Coffin’s F&Rs, ECF Nos. 82 (Pet. 1), 93 (Pet. 2), 84 (Pet. 3),
in full. Petitioner Schroeder’s petitions, ECF Nos. 1 (Pet. 1), 2 (Pet. 2), and 1 (Pet. 3), are
DENIED. A certificate of appealability in each petition is DENIED because petitioner has not
made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
DATED this 30th day of July, 2015.
__________
__________________
Michael J. McShane
United States District Judge
20 – OPINION AND ORDER
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