Thompson v. Premo

Filing 58

Order: Petitioner has failed to establish that the following defaulted claims are substantial under Martinez or that he is otherwise entitled to have their default excused: Claims One, Two, Four and Seventeen. Accordingly, these defaulted claims are dismissed with prejudice. Claims Sixteen is not ripe for review. Accordingly, this claim is dismissed without prejudice as premature. Signed on 01/16/2018 by Judge Ann L. Aiken. (jw)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
MATTHEW DWIGHT THOMPSON,
6:

15-cv-01313-AA

Petitioner,
v.
ORDER

JEFF PREMO, Superintendent,
Oregon State Penitentiary,
Respondent.
AIKEN, District Judge.

In his brief on exhaustion and procedural default, respondent
identified five claims as procedurally defaulted and thus not subject
First Claim "Death Qualification" of

to federal habeas review:
Petitioner's

Jurors

Unconstitutional;

was

Death-Qualification Voir

Dire

Violated the

Second

Prospective

Claim

Jurors'

Constitutional Rights and Trial Counsel was Ineffective in Failing
to Object on this Ground;

Fourth Claim The Trial Court Wrongly

Discharged Prospective Jurors Nos. 4 and 79, and Trial Counsel Failed
to Object to the Dismissal of these Life-Prone Jurors; Sixteenth
·1

-

ORDER

Claim Cruel and Unusual Punishment; and Seventeenth Claim Cumulative
Impact of Errors.
While petitioner concedes that the aforementioned claims are
procedurally

defaulted,

he

maintains

that

in

accordance

with

Martinez v. Ryan, 566 U.S. 1 (2012) he can show cause and prejudice

sufficient to excuse their default based on his post-conviction
( "PCR")

counsel's

failure

to

raise

related

and

meritorious

ineffective assistance of trial and appellate counsel claims. 1
I.

Applicable Law on Procedural Default and the Martinez
Exception
As a general matter, habeas review of a defaulted claim is barred

unless a petitioner "can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law."
Coleman v. Thompson, 501 U.S. 722, 750 (1991).

Ordinarily, "cause"

to excuse a default exists if a petitioner can demonstrate that "some
objective factor external to the defense impeded counsel's efforts
to comply with the State's procedural rule."

Id.

at 753.

In

Coleman, the Court held that ineffective assistance of counsel in

1

In his Reply [55), p. 5, petitioner stated that ''respondent
is correct that none of the issues it has identified have been
presented to the highest level of the state court." However, in his
Sur-reply [57), p. 1, he asserts for the first time that despite
petitioner's failure to ''fairly present'' Claim One to the Oregon
courts, the Oregon Supreme Court ruled on the merits of this federal
claim and therefore there is no procedural default.

2 -

ORDER

post-conviction

proceedings

does

procedural default of a claim.

Martinez,

In

however,

not

establish

cause

for

the

Id.

the

Court

established

a

"narrow

exception" to the rule announced in Coleman:
Where, under state law, claims of ineffective assistance
of trial counsel must be raised in an initial-review
collateral proceeding, a procedural default will not bar
a federal habeas court from hearing a substantial claim
of
ineffective
assistance
at
trial
if,
in
the
initial-review collateral proceeding,
there was no
counsel or counsel in that proceeding was ineffective.
566 U.S. at 1 7; see also Trevino v. Thaler, 133 S. Ct 1911, 1918 (2013)
(noting

that

Martinez

may

apply

to

a

procedurally

defaulted

trial-phase ineffective assistance of counsel claim if ''the claim
... was a 'substantial' claim [and] the 'cause' consisted of there
being 'no counsel' or only 'ineffective' counsel during the state
collateral review proceeding" (quoting Martinez, 566 U.S. at 1 7) ) .
The
prejudice

Ninth Circuit has held that
under

Martinez

sufficient

to demonstrate cause and
to

excuse

default, a petitioner must make two showings.
cause,

the

procedural

First, to establish

he must show that his PCR counsel was ineffective under

Strickland v. Washington, 466 US. 668 (1984) which requires him to
show that PCR counsel's performance was deficient and that there was
a reasonable probability that, absent the deficient performance, the
result of the PCR proceedings would have been different.
v.

Ryan, 745 F.3d 362, 377 (9th Cir. 2014).
3 -

ORDER

Clabourne

Determining whether

there was

a

reasonable probability of a

different outcome

"is

necessarily connected to the strength of the argument that trial
counsel's assistance was ineffective."

Id. at 377-78.

Second, to

establish prejudice, the petitioner must show that his "underlying
ineffective-assistance-of-trial-counsel claim is a substantial one,
which is to say that the prisoner must demonstrate that the claim
has some merit."

Id.

Under Martinez, a claim is substantial if it meets the standard
for issuing a certificate of appealability.

Martinez, 466 U.S. at

14 (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)).

According

to that standard, "a petitioner must show that reasonable jurists
could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues
presented
further."

were

adequate

Detrich v.

to

Ryan,

deserve

encouragement

740 F. 3d 1237,

145

to

proceed

(9th Cir.

2013)

(quoting Miller-El, 537 U.S. at 336).
II.

Discussion
First Claim:
"Dea th Qualification"
Jurors was Unconstitutional

A.

of

l?eti tioner' s

Petitioner alleges in his First Claim that the trial court's
death

qualification

constitutional

rights.

of

jurors
In

his

at

his

Petition

trial
[43],

violated
pp.

10-11,

his
he

specifically notes that his trial counsel "filed a motion to prohibit

4 -

ORDER

death qualification of jurors," but that the trial court denied the
motion.

In subsequent briefing, however, petitioner suggests that

trial counsel rendered constitutionally deficient performance when
he failed to object based on federal law to the court's use of death
qualification.

To the extent that the Court would find that this

claim is one of trial court error only, he seeks leave to amend his
petition to add an ineffective assistance of trial counsel claim
"challenging

prior

[federal] claim.''

counsel's

failure

to

properly

present

the

Sur-reply [57], p. 3.

Moreover, on this question of default, petitioner contends that
despite his failure to fairly present this federal claim to the Oregon
Supreme Court, that court denied it on the merits when it referenced
its

earlier decisions

discussing

related

challenges,

federal challenges, to Oregon's death penalty scheme.

including
He further

maintains that there is no doubt as to how the Oregon Supreme Court,
exercising its discretion to consider the federal claim, would have
ruled.

Accordingly,

he maintains that where the Oregon Supreme

Court ruled on the merits of the federal claim, despite his failure
to properly present it to that court, there is no procedural default.
Alternatively,

and with regard to his proposed ineffective

assistance of trial counsel claim,

petitioner argues that this

underlying

claim

ineffective

assistance

is

"substantial"

for

purposes of Martinez because the evidence he presents in the Petition
5 -

ORDER

shows

that

death-qualified

jurors

are

significantly

more

conviction-prone than non-death-qualified jurors and that in Oregon
they are "organized to convict".

Cf. Lockhart v. Mccree,

476 U.S.

162 (1986) (Court relied on its refusal to find that the empirical
evidence did anything more than establish that death qualification
produced

juries

somewhat

more

conviction-prone

than

non-death-qualified juries).
First, I reject petitioner's contention that the Oregon Supreme
Court resolved this federal claim on the merits. 2
reviewed the record.

I have carefully

In petitioner's automatic direct appeal he

alleged:
"Death qualification" is the procedure allowing the
prosecution to challenge for cause jurors who oppose the
death penalty.
Death qualification results in the
exclusion of jurors from the guilt phase of the trial who
are objectionable to the state only because they will not
vote to impose the death penalty.
Comprehensive social
scientific studies have demonstrated that a jury selected
after such a process is substantially more conviction
prone than juries in other cases.
The studies also show
that the selection process deprives a defendant of a jury
chosen from a cross section of the community.
This
procedure violates Article I, section 11 of the Oregon
Constitution, because it denies a defendant an impartial
jury drawn from a representative cross section of the
community.
DR 18-3, Ex. 259, p. 157 (emphasis added).

In respondent's answering

brief, he merely quoted petitioner's above arguments regarding death
2

As noted above, petitioner's assertion contradicts his prior
concession that this claim is procedurally defaulted.

6 - ORDER

qualification and cited to Oregon Supreme Court authority rejecting
those arguments.

DR 18-4, Ex. 269, p. 104.

petitioner did not fairly present a

The parties agree that

federal death-qualification

claim to the Oregon Supreme Court on direct review.
In

denying

relief

on

the

death-qualification

claim

that

petitioner did present, the Oregon Supreme Court held:
Finally, defendant contends that the trial court erred in
overruling his demurrer attacking the constitutionality
of Oregon's death-penalty scheme.
Defendant recognizes
that his challenges to Oregon's death penalty have been
rejected by this court in previous death penalty appeals.
See, e.g., State v. Guzek, 310 Or 299, 797 P2d 1031 (1990);
State v. Montez, 309 Or 564, 789 P2d 1352 (1990); State
v. Wagner, 309 Or 5, 786 P2d 93 (1990) .
We decline to
reconsider these issues.
See State v. Barone, 328 Or 68,
98, 963 P2d 667 (1998) (declining to revisit issues
previously decided); State v. Hayward, 327 Or 397, 414,
963 P2d 667 (1998) (same). We hold that the trial court
did not err in overruling defendant's demurrer.
DR 18-4, Ex. 271, p. 37.
Petitioner is correct that fair presentation is not the only
mode of establishing exhaustion of state remedies.

Rather, where

the state courts have reached and passed on the merits of a federal
claim, regardless of whether the petitioner fairly presented it to
them, state remedies are exhausted as to that claim.
v. Peoples, 489 U.S. 346, 351 (1989)

See Castille

(" [i]t is reasonable to infer

an exception where the State has actually passed upon the claim.");
Greene v. Lambert, 288 F. 3d 1081, 1086 (9th Cir. 2002) ("exhaustion

does not require repeated assertions if a federal claim is actually
7 - ORDER

considered at least once on the merits by the highest state court");
Sandstrom v.

Butterworth,

738 F.2d 1200,

1206

(11th Cir.

1984)

("[t]here is no better evidence of exhaustion than a state court's
actual consideration of the relevant constitutional issue"); and
Walton v. Caspari,

916 F.2d 1352, 1356-57 (8th Cir. 1990)

(state

court's sua sponte consideration of an issue satisfies exhaustion).
Critically,

however,

the

record

here

does

not

support

a

contention that the Oregon Supreme Court ever ruled on the merits
of a federal death-qualification claim in this case.
that

court

did

not

cite

or

federal

constitutional provision indicating it was addressing a

federal

death-qualification claim.
(5th Cir.

2004)

to

a

single

federal

As noted above,
case

Cf. Jones v. Dretke, 375 F.3d 352, 355

(state court specifically referenced the Sixth

Amendment and its bearing on jury selection and determined there was
no violation of that constitutional right); Walton v. Caspari, 916
F.2d 1352, 1356-57 (8th Cir. 1990)

(citation to Swain v. Alabama,

380 U.S. 202 (1965), the landmark federal equal protection case on
peremptory challenges at the time);

Sandstrom,

(citation and reliance on Mayberry v.

738 F.2d at 1206

Pennsylvania,

400 U.S.

455

(1971), the leading case on disqualification of judges in contempt
proceedings, in deciding the claim) .

Petitioner's reliance on Engle

v. Isaac, 456 U.S. 107, 135 n.44 (1982) notwithstanding, the above

cases underscore the weakness in petitioner's argument that the
8 -

ORDER

Oregon Supreme Court, merely by citing Montez, an Oregon case which
in turn cited Wainwright v.

Witt,

469 U.S.

412,

Lockhart, addressed his federal claim on the merits.

424

(1985)

and

I conclude that

petitioner did not fairly present this federal claim to the Oregon
courts

and

he

cannot

establish

that

addressed it sua sponte on the merits.

the

Oregon

Supreme

Court

Accordingly, the claim is

As respondent correctly notes, Martinez

procedurally defaulted.

cannot excuse the procedural default of either trial court error or

See Davila v.

ineffective assistance of appellate counsel claims.

Davis, 137 S. Ct. 2058,
underlying
counsel.

claims

of

It applies

2063

(201 7)

ineffective

(Martinez does not apply to
assistance

of

direct

appeal

only to procedurally defaulted claims

of

ineffective assistance of trial counsel).
I turn next to petitioner's proposed ineffective assistance of
trial counsel claim alleging counsel failed to raise and preserve
a federal death-qualification claim.

For the reasons that follow,

I conclude that petitioner cannot show this claim is a "substantial"
one pursuant to Martinez.

Given Lockhart was and is established

Supreme Court authority settling the cons ti tutionali ty of death
qualification, a fact that trial counsel specifically noted in his
pretrial motion,

3

3

any

claim that

counsel

rendered

ineffective

Trial counsel filed a pretrial motion objecting to the use
of death qualification for jury selection on state law grounds and

9 - ORDER

assistance by relying on this authority or that petitioner suffered
prejudice as a result has no merit.
346 (9th Cir. 1994)

See Lowry v. Lewis, 21 F.3d 344,

(counsel was not ineffective because a "lawyer

cannot be required to anticipate our decision" in a later case);

Bullock v. Carver, 297 F.3d 1036, 1052 (10th Cir. 2002)

(rejecting

ineffective assistance claim based upon counsel's failure to predict
future changes in the law because "clairvoyance is not a required
attribute of effective representation'') .

Petitioner points to no

authority supporting the proposition that trial counsel renders
ineffective assistance when he or she fails to anticipate a change
in the law in the face of controlling,

contrary Supreme Court

precedent during the entire course of counsel's representation.
For

these

same

reasons,

petitioner

cannot

show

that

PCR

counsel's representation was deficient when he failed to raise an
ineffective assistance of trial counsel claim on these grounds.
Accordingly,

petitioner's request for leave to amend to add an

ineffective assistance claim based on trial counsel's failure to
for reasons including that studies show that "death qualified" juries
are substantially more conviction prone than juries generally and
that death qualification results in a jury that is not a
representative cross-section of the community.
Counsel did
concede, however, that pursuant to Lockhart v. Mccree, 476 U.S. 162
(1986), death qualification did not violate the Sixth Amendment.
DR
18-1, Exhibits 141-42.
The trial court denied petitioner's
challenge on the basis that his arguments had been settled under
Oregon law by Montez, 309 Or. at 574-76 and State v. Walton, 311 Or.
223, 243 (1991).

10 -

ORDER

raise and preserve a federal death-qualification claim is denied as

See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (a

futile.

court retains discretion to deny leave to amend in a habeas case based
on futility of amendment alone).
B.

Second Claim:
Death-Qualification Voir Dire Violated the
Prospective Jurors' Constitutional Rights and Trial
Counsel was Ineffective in Failing to Object on this Ground

Petitioner concedes that this claim was not presented to the
Oregon Supreme Court, but asserts that Martinez excuses the default
of

the

ineffective

assistance

of

trial

counsel

claim based on

counsel's failure to object to the death qualification of prospective
jurors Minty (12),

Davis

(79)

and Ruth Papineau Williams

(4)

4

as

violating these jurors' rights to equal protection as set forth in

Powers v. Ohio, 499 U.S. 400 (1991) and Brown v. Allen, 344 U.S. 443
(1953).

Petitioner maintains that "[i)ssues involving the rights

of jurors to serve are almost always substantial" and that given that
these jurors were not likely to impose death, the consequences to
him

of

their

improper

exclusion

are

grave.

He contends

that

exclusion of these jurors amounts to structural error and requires
the Court to set aside the penalty verdict.

Moreover, he asserts

that his PCR counsel rendered deficient and prejudicial performance
when,

without
4

having

obtained

and

reviewed

available

juror

There was another prospective juror named Ruth May Williams

(59)

11 -

ORDER

questionnaires,

counsel

raised

no

issues

pertaining

to

jury

selection during the PCR proceedings.
As a preliminary matter and as noted above, to the extent that
this

is a

trial

Martinez cannot excuse

court error claim,

Accordingly,

Davila, 137 S. Ct. at 2063.

procedural default.

its
I

will focus on petitioner's allegations of ineffective assistance of
counsel

for

prospective

failing
jurors

constitutionally

to
at

object

to

the

petitioner's

protected

death

trial

right

to

qualification

as

violating

equal

of

their

protection.

Specifically, I will address petitioner's argument that the right
to sit on a capital jury implicates the jurors' equal protection
rights and as such death qualification at the guilt phase in Oregon
cannot survive either strict scrutiny or rational basis analysis.
For his part, respondent contends that petitioner offers little
substantive analysis of either the performance or prejudice prong
of Strickland with respect to his trial counsel's failure to raise
the "novel claim that death-qualification voir dire is prohibited
in a capital case because it violates the prospective jurors' right
to equal protection under the federal constitution.''
respondent
analysis

argues

that

supporting

petitioner

his

constitutionally ineffective.

12 -

ORDER

has

assertion

presented
that

PCR

Similarly,

virtually
counsel

no
was

Critically, while it is clear that the Equal Protection Clause
prohibits the use of peremptory challenges to excuse jurors on the
basis of race, see Batson v. Kentucky,

476 U.S. 79 (1986) holding

modified by Powers, and gender, see J.E.B. v. Alabama ex rel. T.B.,

511 U.S. 217, 130-31 (1994), and that these equal protection rights
belong to the jurors themselves, no precedent exists extending these
protections to non-death-qualified jurors so as to create a conflict
with

principles

set

out

in

Supreme

Court

constitutionality of death qualification.

cases

affirming

the

Indeed, it is perverse

logic that would have this Court borrow the principle mandating that
qualified and unbiased jurors not be excused from jury service based

solely on their race or gender to protect jurors the trial court has
affirmatively deemed unqualified to serve because they are unwilling
and/or unable to follow the court's instructions and uphold their
oaths as jurors to follow the law.

See Powers, 499 U.S. at 409 ("We

hold that the Equal Protection Clause prohibits a prosecutor from
using

the

State's

peremptory

challenges

to

exclude

otherwise

qualified and unbiased persons from the petit jury solely by reason
of their race.'').
Petitioner confines the arguments in his supporting briefs to
a claim of ineffective assistance of counsel for not objecting to
the death qualification of the aforementioned jurors on the basis
it

violated
13 -

their

ORDER

right

to

equal

protection

vis-a-vis

their

constitutional right to serve on a jury.

In his Petition, he also

suggests that death qualification violates jurors' rights to free
exercise of religion,

jurors' rights to participate in the Eighth

Amendment question surrounding evolving standards of decency and his
own right to an impartial jury.

Briefly addressing petitioner's

suggestion that death qualification compromises jurors' rights to
freely practice
impartial

jury,

their religion and a
I

note

that

the

petitioner's

right

death-qualification

to an
process

eliminates from the prospective juror pool only those persons who
indicate that they are unable to render a verdict based on the
evidence presented during trial and the court's instructions on the
law.

The Supreme Court has held "that a juror who in no case would

vote for capital punishment, regardless of his or her instructions,
is not an impartial juror and must be removed for cause."
v. Illinois, 504 U.S. 719, 728 (1992).
it

focuses

on

whether

the

Morgan

Death qualification, because

jurors'

views

would

prevent

or

substantially impair the performance of their duties as jurors in
accordance with their instructions and oath, does not require the
court or the parties to look to the sources of excluded jurors'
beliefs, religious or otherwise.

See e.g., Ortiz v. Quarterman, 504

F.3d 492, 500 (5th Cir. 2007), cert denied, 553 U.S. 1035 (2008)

("a

veniremember may not be excluded from sitting on a capital jury merely
because

she

14 -

voices

ORDER

general

objection

to

the

death

penalty

or

expresses

conscientious

or

religious

scruples

against

its

infliction") .
Finally, I reject petitioner's argument that these jurors are
being denied their constitutional rights to equal protection because
they are barred from weighing in on the question of evolving standards
of decency under the Eighth Amendment.

I am persuaded that while

the exclusion of non-death-qualified jurors may affect the weight
to be given to jury verdicts recommending death as an indicia of
community standards, it is not alone a basis for finding that the
process violates those jurors' equal protection rights or that the
practice itself violates the Eighth Amendment.
v. Sampson, 2015 WL 7962394, *11 n.11
adopting

this

reasoning,

I

am

See United States

(D. Mass Dec. 2, 2015),

cognizant

that

jurors

who

In
are

personally opposed to the death penalty, regardless of reason, are
permitted
qualified.

to

serve

on

capital

In addition,

juries

provided

non-death-qualified

they

jurors

are

death

have other

avenues, such as voting, to weigh in on the Eighth Amendment community
standards question.

Ultimately, I conclude that when the Supreme

Court affirmed the constitutionality of death qualification
Lockhart,

it

necessarily

determined

that

in

barring

non-death-qualified jurors from serving on capital case juries did
not invoke, let alone violate, any constitutionally protected equal
protection rights of such jurors.
15 -

ORDER

For the reasons discussed above,

I

find no support for the

proposition that death qualifying a jury for the guilt phase of a
capital trial violates either the affected jurors' or the defendant's
rights.

As such, it would have been futile for petitioner's trial

counsel to have challenged the death-qualification process on these

See

grounds.

James

v.

Borg,

24

F.3d

20,

27

(9th Cir.

1994)

("[C]ounsel's failure to make a futile motion does not constitute
ineffective

assistance

of

counsel.").

Accordingly,

petitioner

cannot show either that PCR counsel's representation was deficient
when he failed to raise an ineffective assistance of trial counsel
claim on these grounds or that the underlying ineffective assistance
of counsel claim was a "substantial" one under Martinez.
C.

Fourth Claim:
The Trial Court Wrongly Discharged
Prospective Jurors Nos. 4 and 7 9, and Trial Counsel Failed
to Object to the Dismissal of these Life-Prone Jurors

Pe ti ti oner contends that both trial counsel's failure to object
to the dismissal of Jurors Nos. 4 and 79 and the State of Oregon's
failure to make the juror questionnaires part of the appellate record
excuse the default of this claim.

Substantively, petitioner argues

that Gray v. Mississippi, 481 U.S. 648, 668 (1987) establishes that
the

wrongful

exclusion of these

life-prone

and death-qualified

jurors is structural error that requires the automatic reversal of
petitioner's death sentence.
counsel's
16 -

failure
ORDER

to

object

Accordingly, he maintains that trial
to

the

removal

of

these

jurors

constituted

ineffective

assistance

of

In addition,

counsel.

petitioner asserts that to the extent appellate counsel was at fault
for

failing

to

questionnaires
qualified,

complete
which

counsel

the

record

established

that

on

appeal

these

with

jurors

the

juror

were

death

rendered ineffective assistance of appellate

counsel.

1.

Juror No. 4 (Ruth Papineau Williams)

Petitioner contends that Juror No. 4, Williams, was an ideal
juror for him because while she was morally opposed to the death
penalty, she indicated that she would follow the law as instructed,
regardless of her beliefs.

Petitioner acknowledges that during voir

dire his counsel questioned Williams about a medical condition she
disclosed in her juror questionnaire.

Williams told counsel that

the condition required her to lie down for 30 minutes every afternoon
or early evening.

Ultimately, and upon confirming with Williams

that she needed to lie down for 30 minutes every afternoon, the trial
court excused her for cause as follows:
THE COURT:
I can barely -- and I may as well make the tough
decision.
We just cannot guarantee that every afternoon
you' 11 have that 30 minutes and I appreciate that you need
the 30 minutes and if it were a matter of one day or maybe
two days, I could tell you we could guarantee that to you,
uh, but beyond that I cannot.
So I'm going to excuse you
at this point. Thank you.

17 -

ORDER

Citing The Americans with Disabilities Act ("ADA"), petitioner
faults

trial

counsel

with

failing

to

affirmatively

explore

accommodation for this juror and with failing to object to the trial
court's

failure

to

inquire

further

into

juror's

this

"straightforward need" and to consider whether a piece of carpet
could have been found to accommodate Williams and/or to consider
whether she could have lain down during a lunch break or in the "early
evening" making it possible for her to serve.
In

addition,

petitioner

argues

that

because

the

wrongful

discharge of Williams required automatic reversal of petitioner's
death

sentence

and

her

juror

questionnaire

provided

powerful

evidence of her being an ideal juror, the State should have provided
petitioner's appellate counsel with this questionnaire.

Petitioner

argues that whether appellate counsel was at fault for not requesting
the questionnaires or the State was at fault for not providing them,
the failure should not be attributed to petitioner and should not
bar this Court's review of the merits of this claim.

2.

Juror No. 79 (Carol Davis)

Petitioner contends that the trial court apparently dismissed
Juror No. 79 for cause but that the lack of a complete and intelligible
record makes it impossible to confirm.

He notes that the record

toward the end of jury selection reveals that Davis was previously
excused.
18 -

Petitioner maintains that there is "every indication" that
ORDER

this death-qualified juror was improperly dismissed because of her
reluctance

to

impose

death,

and

sentence should be set aside.

therefore,

petitioner's

death

Petitioner further faults appellate

counsel with failing to obtain a complete record with the juror
questionnaires

supporting a

determination that

Davis was death

qualified.
Finally, with regard to both jurors, petitioner asserts that
PCR counsel rendered deficient and prejudicial performance because,
without having obtained and reviewed available juror questionnaires
supporting this claim, counsel could not have made a viable tactical
decision to omit an ineffective assistance claim based on trial
counsel's

failure

to

object

to

these

structural

errors.

Accordingly, petitioner contends Martinez excuses any default of
this claim.
Federal courts reviewing challenges to voir dire must defer to
the judgment of the trial court.

The Supreme Court has stressed that

the process of jury selection falls "particularly within the province
of the trial judge."
(2010)

Skilling v. United States, 561 U.S. 358, 386

(citations and quotation omitted).

Reviewing
courts
are
properly
resistant
to
second-guessing the trial judge's estimation of a juror's
impartiality, for that judge's appraisal is ordinarily
influenced by a host of factors impossible to capture fully
in the record -- among them, the prospective juror's
inflection, sincerity, demeanor, candor, body language,
and apprehension of duty.
19 -

ORDER

Id.

(citing Reynolds v. United States, 98 U.S. 145, 156-57 (1879)).

Even in death penalty cases, trial courts receive "special deference"
because they actually observe jurors.

Patton v.

1025, 1038

469 U.

(1984); Wainwright v.

Accordingly,

Witt,

s.

Yount,
412,

467 U.S.

426 (1985).

the Court must give due weight to the trial court's

judgment of each juror's qualification.
In Gray, the case petitioner relies on, the Supreme Court held
that the exclusion of a juror in a capital case who expressed general
reservations to capital punishment, but who could have followed the
court's instructions and voted for the death penalty, i.e., exclusion
of a

death-qualified juror,

harmless error analysis.

is

reversible error not subject to

481 U.S.

at 665.

However,

in Ross v.

Oklahoma, 487 U.S. 81, 87-88 (1988), the Supreme Court "decline[d]
to extend the rule of Gray beyond its context:

the erroneous

'Witherspoon exclusion' of a qualified juror in a capital case." 5
Instead, the Court held that so long as the jury that ultimately sits
is impartial, the fact that the defendant had to use a peremptory
challenge to achieve an unbiased jury does not translate into a Sixth

5

In Witherspoon v. Illinois, 391 U.S. 510, 521-23 (1968), the
Supreme Court concluded that it was unconstitutional to exclude a
prospective juror who expressed scruples against the death penalty
but who could, nevertheless, be impartial.
Notably, the defendant
in Ross argued that the loss of a peremptory challenge in and of itself
violated his constitutional right to an impartial jury.

20 -

ORDER

Amendment

violation.

Id.

at

88;

see

also

United

States

v.

Martinez-Salazar, 528 U.S. 304, 317 (2000) (when a defendant elects
to use a peremptory challenge to cure an error and is ultimately
convicted by an impartial

jury,

there has been no due process

violation) . Based on the foregoing,

I conclude that because Gray

applies only to erroneous Witherspoon exclusions, it is inapplicable
to petitioner's claim regarding prospective Juror Williams.

The

record makes clear that the trial court excused her for cause based
on her medical status and its determination that it could not
guarantee her that she could lie down for thirty minutes every
afternoon over the course of a lengthy death penalty trial.

Ms.

Williams' views on the death penalty played no role in her removal.
Petitioner does not dispute that the jury ultimately impaneled in
his case was impartial.

Accordingly, his allegation of error with

regard

juror

to

prospective

Williams

does

not

implicate

his

constitutional right to a fair trial.
With regard to prospective juror Davis, I reject petitioner's
arguments that either Martinez or the State's or appellate counsel's
failure to make the juror questionnaires part of the record on appeal
excuses his default of this claim.
First,

there is an absence of any evidence in the record

indicating that Davis was dismissed based on her death-penalty views.
I recognize that portions of the transcript of voir dire, including
21 -

ORDER

sections related to Davis 6 ,
difficulty

of

recording)

are unintelligible (likely due to the

transcribing

the

voir

dire

proceedings

from

a

and that a record of precisely why Davis was excused

appears to be missing altogether.

Nevertheless, petitioner points

to no evidence, and I find none, supporting his assertion that the
trial court excused Davis for cause based on her death penalty views.
Indeed, there is no evidence that the prosecutor challenged Davis
for cause at all.
(1) excused
sponte based

However, the record does show that the trial court:

prospective juror Lora Ann Minty (12)
on

her

death

penalty

views;

and

for cause sua

(2)

denied

the

prosecutor's challenge for cause of prospective juror Linda Schmidt
(5), which was based primarily on her death penalty views.

Notably

too, both Minty and Schmidt were in Davis' voir dire group.

See

Transcript of Proceedings, Part B, pp. & 137-38.
Second, my review of the available voir dire transcript reveals
that the trial court understood the requirements of Witherspoon and
was

determined

to

apply

the

appropriate

legal

standard.

For

example, during voir dire, Minty and Schmidt indicated concern over
imposing the death penalty and the trial court questioned them.

In

one exchange with Schmidt, the court stated:

6

See Transcript of Proceedings, Part B, pp. 55-58 for pieces
of voir dire questioning pertaining to Davis.

22 -

ORDER

We were covering many questions but we were talking
essentially about the application of the death penalty and
the fact that if you're in disagreement with it that's
acceptable in a juror as long as you're able to apply the
law and the -- in talking about the application, I was
pointing out that you can enforce or you can apply the law
of the death penalty even if you find that there was
aggravated murder that was an aggravated murder that was
committed deliberately, without provocation, and merits
a probability of future dangerousness.
Then you have to
make the decision of shall a death sentence by imposed?
And I was saying the only restriction on that is that it
can't just be an arbitrary whim on your part to we' 11 I' 11
flip a coin to decide whether it should [ ] be imposed or
not.
There has to be some reason for the mitigation and
you can look at the evidence as carefully as you want.
You
can scrutinize it as thoroughly as you want, but if you
don't -- if you've answered everything affirmatively and
despite your scrutiny you can't find anything in this case
to justify mitigation, then you can't mitigate the death
sentence just because you are opposed to capital
punishment.
And there's a distinction there.
The one is
totally abstract.
I'm opposed to the death penalty, so
I'm going to vote against it.
I'm going to mitigate it.
The other is I'm opposed to the death penalty, but still
I find something -- or still I'm able to find something
other than my opposition to the death penalty that causes
me to want to mitigate or causes me to mitigate the death
sentence, but it could be just the opposite.
You could
be opposed to the death penalty and find nothing in the
evidence that would cause you to mitigate and the only
thing you could say is that [ ] I'm opposed to the death
penalty but I see nothing here in anything that's been
presented to me in this court room that I can point to as
a ground to mitigate this sentence from death.
And then
you'd be required to return a [ ] death penalty verdict.
In the end, after much discussion and questioning, Minty stated
that she did not think she could follow the law.
excused her.

And Schmidt, despite significant equivocation, stated

she could follow the law.

23 -

The trial court

ORDER

As noted above, the trial court denied

the prosecution's for cause challenge to this juror.

Accordingly,

in the absence of any contrary evidence and even assuming Davis'
representations

during

voir

dire

were

expressed in her juror questionnaire,
transcript,

7

consistent

with

those

my review of the available

including the trial court's treatment of Minty and

Schmidt, persuades me that the trial court would not have excused
Davis for cause based on her death penalty views.
In addition, as noted above, I owe the trial court's judgment
of Davis' qualification to serve on the jury special deference.

See

Woodford v. Viscotti, 537 U.S. 19 (2002) (a "readiness to attribute
error [to the state court] is inconsistent with the presumption that
state courts know and follow the law.") (internal citations omitted).
Accordingly, at a minimum, in the absence of any evidence indicating
the trial court improperly excused Davis based on her death penalty
views

and

with

the

contextual

benefit

of

the

trial

court's

understanding of relevant legal principles coupled with examples of
how it approached the issue with other jurors,

I

petitioner's

claim is

ineffective

assistance

of

counsel

conclude that
not

a

substantial one under Martinez.

7

In her questionnaire, Davis said she did not believe in taking
someone else's life, but could understand it in some cases.
While
she thought it was a really hard question, she indicated she would
follow the law and would not vote against the death penalty because
of her beliefs regardless of the evidence and instructions.

24 -

ORDER

Finally, to the extent this claim involves allegations of either
trial court or appellate counsel error, Martinez cannot excuse its
procedural default.

Davila,

137 S. Ct. at 2063.

Also, because

there is no evidence that the trial court excused either Williams
or Davis based on their death penalty views,
demonstrate

that

either the state's or his

petitioner cannot

appellate counsel's

failure to make the juror questionnaires part of the record on appeal
prevented petitioner from complying with any procedural rule in the
presentation of this claim to the Oregon courts.

D.

Sixteenth Claim: Cruel and Unusual Punishment

Respondent argues that this claim is procedurally defaulted
because petitioner failed to present each of its sub claims to the
Oregon courts either on direct review or during his PCR proceedings.
Petitioner maintains that these claims are not ripe for review, but
that he presents them now to preserve them for consideration when
and if an actual date for his execution is set.
I agree that these claims are not ripe for review.
I

Accordingly,

deny this Claim without prejudice as premature.

E.

Seventeenth Claim:

Cumulative Impact of Errors

Petitioner does not dispute respondent's contention that he
failed to fairly present a cumulative error claim to the Oregon courts
either

on

direct

appeal

or

during

his

PCR

proceedings.

Nevertheless, he argues that this Court's refusal to consider this
25 -

ORDER

claim on the merits merely because his direct appellate counsel
failed to raise it in state court ''would be a gross violation of a
long line of authority, and of due process of law."

Reply (57), p.

10. 8
The Ninth Circuit has held that briefing a number of isolated
errors that turn out to be insufficient to warrant reversal does not
automatically

require

a

habeas

court

to

consider

whether

the

cumulative effect of the alleged errors prejudiced the petitioner.
Wooten v. Kirkland,

540 F.3d 1019, 1025 (9th Cir. 2008).

To the

contrary, that court suggested that a cumulative error claim must
be clearly identified in a petitioner's brief before a state court
to be exhausted.

Id. at 1026 (citing Solis v. Garcia, 219 F.3d 922,

930 (9th Cir. 2000), cert. den., 534

U.S. 839 (2001)).

Petitioner failed to exhaust this cumulative error claim by
presenting it to the state courts and he cannot now return to the
state courts to properly exhaust this claim.

See Wooten, 540 F.3d

at 1025-26 (finding cumulative error claim procedurally defaulted
because it was not presented to the highest state court on appeal).
Accordingly, federal habeas review of this claim of cumulative trial

8

I
note that the "long line of authority" petitioner
references in his brief is to the law surrounding the validity of
cumulative error claims generally and not to authority supporting
his suggestion that the Court should excuse the procedural default
of this stand-alone cumulative error claim.

26 -

ORDER

court error is procedurally barred and I deny it with prejudice on
that basis.

Moreover, as noted above, Martinez cannot excuse the

procedural default of any related claim due to appellate counsel
ineffectiveness.
CONCLUSION

For these reasons, I resolve the issues pertaining to exhaustion
and procedural default as follows:
1.

Petitioner has failed to establish that the following
defaulted claims are substantial under Martinez or that
he is otherwise entitled to have their default excused:
Claims One, Two, Four and Seventeen. Accordingly, these
defaulted claims are dismissed with prejudice.

2.

Claim Sixteen is not ripe for review.
Accordingly, this
claim is dismissed without prejudice as premature.

IT IS SO ORDERED.
I

DATED this

.

~/\_

_Lf:ij_

day of January, 2018.

/)

(AA.A.A.,.{./

I)

t

Ltvld//A /

Ann Aiken
United States District Judge

27 - ORDER