Clegg v. Premo

Filing 170

ORDER: Adopting the Magistrate Judge's Findings and Recommendation 139 in full. Petitioner's Amended Petition for Habeas Corpus 31 is Denied, and this case is Dismissed with prejudice. The Court declines to issue a Certificate of Appealability. Signed on 9/24/24 by Judge Adrienne Nelson. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
GROVER CLEVELAND CLEGG, JR.,
v.

Case No.: 6:15-cv-02005-JR

Petitioner,
ORDER

JEFF PREMO, Superintendent,
Respondent.

Adrienne Nelson, District Judge
United States Magistrate Judge Jolie A. Russo issued a Findings and Recommendation
("F&R") in this case on March 27, 2023, ECF [139], in which she recommended that this Court deny
petitioner's Amended Petition for Writ of Habeas Corpus, ECF [31], and enter a judgment dismissing this
action and denying a certificate of appealability. Petitioner timely filed objections, to which respondent
responded. The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of
Civil Procedure 72(b).
A district court judge may "accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l). If any party files objections to a
magistrate judge's proposed findings and recommendation, "the court shall make a de novo determination
of those portions of the report." Id. No standard of review is prescribed for portions of the report for which
no objections are filed, and no review is required in the absence of objections. Thomas v. Arn, 474 U.S.
140, 152-54 (1985). A district judge is not, however, precluded from sua sponte review of other portions
of the report, under a de novo standard or otherwise. Id. at 154. The Advisory Committee notes to Federal
Rule of Civil Procedure 72(b) recommend that unobjected to proposed findings and recommendations be
reviewed for "clear error on the face of the record." Fed. R. Civ. P. 72(b) advisory committee’s note to
1983 amendment.
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DISCUSSION
Petitioner first argues that Judge Russo violated procedural due process by refusing to
allow petitioner to supplement his briefings after the Supreme Court decided Shinn v. Ramirez, 596 U.S.
366 (2022), yet allowing respondent to file a responsive brief. Petitioner also makes several objections to
the F&R: (1) it improperly finds that trial counsel did not provide ineffective assistance of counsel; (2) it
improperly finds that petitioner's claims were procedurally defaulted; (3) it improperly finds that there was
no cumulative error; (4) it improperly recommends that this Court deny an evidentiary hearing; and (5) it
improperly recommends that this Court deny a certificate of appealability. These objections are addressed
in turn.
A.

Procedural Due Process
Petitioner first objects that Judge Russo violated procedural due process because she "failed

to allow further briefing [on Ramirez] despite the intervening change of habeas corpus law that occurred
after [petitioner] submitted his briefing and after [Judge Russo] had limited [petitioner's] responsive
pleadings to those issues that had been identified pre-Shinn v. Ramirez." Pet'r Objs. to Magistrate F&R
("Pet'r Objs."), ECF [155], at 6.
Petitioner's characterization is misleading. In April 2022, petitioner filed an unopposed
motion and declaration in support of his request for leave to file a responsive pleading to respondent's surreply. Judge Russo granted the request but limited petitioner's response to the issues identified in the
declaration. Despite this instruction, petitioner addressed an issue that had not been in the declaration,
regarding the then-recently issued decision in Ramirez. "In light of Shinn v. Ramirez," petitioner "explicitly
incorporate[d] paragraphs 9–46 of [the declaration] as part of his legal arguments supporting: (1) cause and
prejudice to excuse his procedural default of his claim for ineffective assistance of counsel for moving to
join and (2) the underlying claim itself." Resp. to Resp't Sur-Reply, ECF [131], at 9-10. In the alternative,
petitioner requested permission to submit a pleading that "explicitly incorporate[d] . . . legal arguments and
authorities as part of his briefings on this case" that were incorporated by reference from the declaration.
Id. 11. Petitioner further argued that under Ramirez, "principles of equity and fairness prevent respondent
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from introducing new evidence . . . [t]herefore, respondent's [declaration in support of his response] must
be struck." Id.
Respondent sought leave to respond to petitioner's Ramirez arguments, which Judge Russo
granted.

Accordingly, respondent filed a response addressing only petitioner's Ramirez arguments.

Petitioner then sought leave to file a reply to respondent's Ramirez response, which Judge Russo denied.
However, in the F&R, Judge Russo deemed the contents of petitioner's declaration incorporated to the
extent that they contained "applicable legal standards," but not "matters of personal experience or opinion."
F&R, ECF [139], at 27 n.7.
Both parties had an opportunity to brief the Ramirez decision. It was not a violation of
procedural due process to deny petitioner additional briefing after each side had already addressed the issue.
Even if the Court had allowed additional briefing, the Court could not consider matters of personal
experience or opinion because they were not evidence before the state courts. Accordingly, the F&R
properly excluded consideration of evidence that was not before the state courts, reviewed petitioner’s claim
of ineffective assistance of counsel for moving for joinder, and determined that petitioner had not
established cause or prejudice to excuse procedural default.
B.

Ineffective Assistance of Counsel
Petitioner objects to the finding that trial counsel was not ineffective in failing to request a

limiting instruction regarding Kendra Hughes's testimony or in failing to object to George Carlson's
testimony. Petitioner also objects to the finding that the post-conviction relief ("PCR") court's decision
denying relief on these claims is entitled to deference. Respondent argues that the F&R correctly afforded
deference to the PCR court's decision.
An application for a writ of habeas corpus shall not be granted unless adjudication of the
claim in state court resulted in a decision that was: (1) "contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United States" or (2) "based
on an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding." 28 U.S.C. § 2254(d). A state court decision unreasonably applies clearly established federal
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law when it "(1) correctly identifies the governing rule but then applies it to a new set of facts in a way that
is objectively unreasonable, or (2) extends or fails to extend a clearly established legal principle to a new
context in a way that is objectively unreasonable." DeWeaver v. Runnels, 556 F.3d 995, 997 (9th Cir.
2009). The federal habeas court must defer to state court factual findings "unless a defect in the process is
so apparent that 'any appellate court . . . would be unreasonable in holding that the state court's factfinding
process was adequate.'" Id. (quoting Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)). The petitioner
has the burden of showing that the state court decision is objectively unreasonable. Cullen v. Pinholster,
563 U.S. 170, 181 (2011); Harrington v. Richter, 562 U.S. 86, 98 (2011). "[A] federal habeas court may
not issue the writ simply because that court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly." Williams v. Taylor, 529
U.S. 362, 411 (2000).
To establish an ineffective assistance of counsel claim, a petitioner must show that a
counsel's performance was deficient and that the deficiency prejudiced the defense.

Strickland v.

Washington, 466 U.S. 668, 687 (1984). A counsel's performance is deficient if it falls below an objective
standard of reasonableness. Id. at 687-88. In evaluating a counsel's performance, a court must be "highly
deferential" and "indulge a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." Id. at 689. Deficient performance prejudices the defense if a counsel's
errors "actually had an adverse effect on the defense" or "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 693-94.
1.

Failure to Request a Limiting Instruction Regarding Hughes's Testimony
Petitioner argues that the PCR court's denial of the claim of ineffective assistance for

counsel's failure to request a limiting instruction was not supported by a plain reading of the state court
decision on the admissibility of Hughes's testimony or by the factual record. However, petitioner fails to
show that the PCR court's decision involved an unreasonable application of clearly established federal law
or was based on an unreasonable determination of facts. Although the PCR court appears to have misstated

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the Oregon Supreme Court's holding regarding the admissibility of Hughes's testimony, 1 it properly
considered both prongs of the Strickland test and concluded that petitioner had not established either prong.
F&R 16.
Petitioner cites Musladin v. Lamarque, 555 F.3d 830 (9th Cir. 2009), to support his
argument that trial counsel's performance fell below an objective standard of reasonableness. In Musladin,
the defendant was convicted of murdering his estranged wife's fiancé. Id. at 833-34. The wife's brother
testified at trial that the defendant's son had told him that the defendant had a gun and was going to shoot
the decedent with it, and this hearsay evidence was admitted. Id. at 845. The defendant's trial counsel did
not request a limiting instruction that the jury could not consider the statement for its truth.

Id.

Subsequently, "during closing arguments, the prosecutor pointed to [the] statements as uncontroverted
evidence of premeditation. . . . [T]he jury was invited to draw the precise inference—that [the] statement
was true—that a limiting instruction would have prohibited." Id. at 846. The state argued that trial counsel
employed a reasonable trial strategy by not requesting the limiting instruction because counsel did not want
to draw the jury's attention to the damaging statement. Id. The court held that because "the prosecutor
drew the jury's attention to the damaging statement and invited them to draw the precise inference that a
limiting instruction would have forbidden, [defendant's] trial counsel's failure to request a limiting
instruction 'fell below an objective standard of reasonableness.'" Id. at 846-47 (citation omitted).
Similarly, here, Hughes's hearsay testimony was admitted over trial counsel's objections,
and counsel did not request a limiting instruction. In closing arguments, the prosecution drew the jury's
attention to the testimony and invited the jury to infer that petitioner placed the phone call to ensure that
the victim remained at her desk, "where [petitioner's codefendants] had been told she was going to be," to

The PCR court understood State v. Clegg to hold that "the prosecution was entitled to use Hughes's testimony and
no limiting instruction was required" and appears to have relied on this understanding in finding that "[t]he evidence
does not establish that trial counsel was ineffective or inadequate in not seeking a limiting instruction . . . ." Findings
of Fact & Conclusions of L., Ex. 182 (Corrected) ("PCR Findings of Fact & Conclusions of L."), ECF [75-1], at 7-8.
In fact, the Oregon Supreme Court held that Hughes's testimony was admissible as relevant state-of-mind evidence
and that because defendant did not request a limiting instruction, the state could use that testimony to prove defendant's
participation in the murder-for-hire scheme. State v. Clegg, 332 Or. 432, 442-43, 31 P.3d 408 (2001).
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ensure the success of the murder scheme. Tr. of State Ct. Proceedings, ECF [25-3], at 42-44. However,
unlike in Musladin, where the witness's statement was the primary evidence of premeditation, here,
Hughes's testimony regarding petitioner's phone call with the victim was innocuous on its own. As the state
argued on appeal, it was only if the state's other evidence convinced the jury that petitioner had solicited
another person to cause the victim's death that the jury would have attributed some criminal intent to the
phone call. Accordingly, the Court is not persuaded that trial counsel's performance in not requesting a
limiting instruction fell below an objective standard of reasonableness.
Even assuming that trial counsel's performance was deficient in not requesting a limiting
instruction, petitioner fails to establish prejudice. Even if the trial court had given a limiting instruction
regarding Hughes's testimony, other evidence reflected that: petitioner repeatedly expressed a desire to see
the victim dead; the victim was contemplating divorce and petitioner wanted to avoid the financial
disadvantages that would create; at petitioner’s behest, petitioner’s brother Randall made arrangements for
the victim’s murder; the night before the murder, petitioner, Randall Clegg, and Larry Matthews examined
a silver gun together at petitioner’s house; Matthews shot the victim with a silver handgun; and petitioner’s
subsequent behavior—including contacting his life insurance provider the same day and showing minimal
sorrow or interest in finding the murderer—suggested that the murder had not surprised or upset him.
Petitioner fails to establish a reasonable probability that, but for the lack of a limiting instruction regarding
Hughes's testimony, the result would have been different.
For the foregoing reasons, the Court adopts Judge Russo's finding that the PCR court's
denial of relief on this claim was entitled to deference.
2.

Failure to Object to Carlson's Testimony
Petitioner also fails to establish that the PCR court's denial of the claim of ineffective

assistance for failure to object to Carlson's testimony involved an unreasonable application of clearly
established federal law or was based on an unreasonable determination of facts. The PCR court's decision
properly applied Strickland to this claim and held that petitioner had not established either prong.
Moreover, even assuming that an objection would have resulted in exclusion of Carlson's testimony, other
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evidence in the factual record amply established petitioner's connection to the crime. Accordingly, the
Court adopts Judge Russo's finding that the PCR court's denial of relief on this claim was entitled to
deference.
C.

Procedural Default
Petitioner objects to the findings that his remaining claims were procedurally defaulted,

including his Confrontation Clause claims and his claim of ineffective assistance of counsel for moving to
join petitioner's case with his co-defendants'.
Generally, when a petitioner brings a claim before a federal habeas court that he did not
raise before the appropriate state courts, that claim is procedurally defaulted. Casey v. Moore, 386 F.3d
896, 915-16 (9th Cir. 2004). If a claim is procedurally defaulted, a federal court will not review the claim
unless the petitioner shows "cause and prejudice" for failure to present the constitutional issue to the state
court or makes a colorable showing of actual innocence. Gray v. Netherland, 518 U.S. 152, 162 (1996);
Sawyer v. Whitley, 505 U.S. 333, 337 (1992); Murray v. Carrier, 477 U.S. 478, 485 (1986).
A procedurally defaulted ineffective assistance of counsel claim can serve as cause to
excuse the procedural default of another habeas claim only if the petitioner can satisfy the "cause and
prejudice" standard with respect to the ineffective assistance claim itself. Edwards v. Carpenter, 529 U.S.
446, 450-53 (2000). Where state law does not permit a defendant to raise ineffective assistance of counsel
on direct appeal, 2 and a petitioner's failure to raise ineffective assistance of trial counsel during his PCR
proceeding was the result of ineffective assistance of PCR counsel, a petitioner may establish cause and
prejudice to excuse a procedural default of an ineffective assistance of trial counsel claim by demonstrating
that PCR counsel was ineffective under the standards of Strickland and that the underlying ineffective
assistance claim has some merit. Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (citing Martinez v. Ryan,
566 U.S. 1, 14 (2012)).

Oregon law does not permit defendants to bring ineffective assistance of counsel claims on direct appeal. State v.
Robinson, 25 Or. App. 675, 675, 550 P.2d 758 (1976).

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1.

Confrontation Clause Claims
a.

Admission of Carlson's Testimony

As previously explained, petitioner is not entitled to habeas relief on the claim of
ineffective assistance of trial counsel for failure to object to Carlson's testimony. Petitioner now objects
that the admission of Carlson's testimony violates the Confrontation Clause under Bruton. This claim is
procedurally defaulted because it was never raised in the state courts. Moreover, petitioner fails to establish
cause and prejudice to excuse the procedural default.
Petitioner argues ineffective assistance of trial counsel as cause, asserting that "it was the
duty of defense to object to any and all Bruton-type evidence," and that trial counsel's failure to object to
the introduction of Carlson's testimony, despite objecting to other hearsay statements by Steward,
constituted deficient performance. Pet'r Objs. 13.
Petitioner is mistaken. Under Bruton, a defendant is deprived of their rights under the
Confrontation Clause when the facially incriminating confession of a non-testifying codefendant is
introduced at their joint trial, even if the jury is instructed to only consider that confession against the
codefendant. Bruton v. United States, 391 U.S. 123, 137 (1968); Richardson v. Marsh, 481 U.S. 200, 207
(1987). However, Bruton did not involve "any recognized exception to the hearsay rule." Dutton v. Evans,
400 U.S. 74, 86 (1970). Under the law in effect at the time of petitioner's trial, the Confrontation Clause
did not bar admission of an unavailable declarant's statement against a defendant if that statement bore
adequate "indicia of reliability." Ohio v. Roberts, 448 U.S. 56, 66 (1980), overruled by Crawford v.
Washington, 541 U.S. 36 (2004). Evidence that fell within a firmly rooted hearsay exception was deemed
sufficiently reliable for Confrontation Clause purposes. Id. The Supreme Court subsequently limited
Bruton to apply only to out-of-court testimonial statements made by a non-testifying codefendant.
Crawford, 541 U.S. at 51-52; Lucero v. Holland, 902 F.3d 979, 988 (9th Cir. 2018).
Here, Reschard Steward had told Carlson, his former high school football coach, that
Matthews had committed the shooting, petitioner had initiated the shooting over insurance money, and
Randall Clegg had acted as the go-between. Although Steward did not testify at the joint trial, Carlson did.
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The trial court admitted Steward's statements as introduced through Carlson's testimony as statements
against penal interest and under the conspiracy exception of Oregon's evidence rules. The PCR court also
concluded that these statements were admissible as a matter of state law, and as Judge Russo properly noted,
that determination is binding on this Court. Under the law in effect at the time of petitioner's trial, the
admission of Steward's statements as introduced through Carlson's testimony would not have violated the
Confrontation Clause because the statements fell under firmly rooted hearsay exceptions and were thus
sufficiently reliable. Under the law now, the admission of Steward's statements as introduced through
Carlson's testimony does not violate the Confrontation Clause because those statements were not
testimonial. Accordingly, petitioner does not show that trial counsel's failure to object to these statements
on Bruton grounds fell under an objective standard of reasonableness.
Petitioner argues that the admission of this evidence was prejudicial because without
Carlson's testimony, there was no corroborating evidence tying petitioner to the murder. However, as
described above, other evidence introduced at trial established petitioner's participation in the crime.
Petitioner fails to demonstrate a reasonable probability that, but for the lack of an objection to Carlson's
testimony on Bruton grounds, the result would have been different.
b.

Admission of Steward and Randall Clegg's Hearsay Statements

Petitioner objects to the findings that his Confrontation Clause claim relating to the
admission of Steward and Randall Clegg's hearsay statements was procedurally defaulted and that Martinez
did not excuse the default. Petitioner asserts as cause only that "[t]he ineffective assistance of [petitioner's]
PCR appellate attorney resulted in the failure to raise these claims before the Oregon Supreme Court" and
"[t]here was no strategic reason for this failure." Pet'r Objs. 17.
Upon review, the Court agrees with Judge Russo's findings that petitioner's Confrontation
Clause claim is procedurally defaulted and that petitioner has not established cause and prejudice excusing
procedural default. Petitioner did not fairly present this claim in state court. Moreover, petitioner fails to
demonstrate that his PCR counsel was ineffective or that his underlying claim of ineffective assistance of
counsel is substantial.
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2.

Claim for Ineffective Assistance of Trial Counsel in Moving for Joinder
Petitioner objects to the findings that his claim that trial counsel was ineffective in moving

to join was procedurally defaulted and that Martinez did not excuse the default. Petitioner objects that "no
'reasonable attorney could believe that, given the close relationship between the three cases, they would
almost certainly have been joined for trial.'" Id. Petitioner further asserts that it was "objectively
unreasonable for PCR counsel to fail to raise this claim." Id. 18.
Upon review, the Court agrees with Judge Russo's findings that this ineffective assistance
of counsel claim was procedurally defaulted and that petitioner did not satisfy either of the Martinez
requirements. Petitioner never raised this claim in state court. Moreover, as Judge Russo details, the record
demonstrates that at the time trial counsel moved to join the cases, it was an informed, strategic decision.
Petitioner fails to show that his PCR counsel was ineffective in failing to raise this claim or that his
underlying claim of ineffective assistance of trial counsel is substantial.
3.

Remaining Claims
Petitioner objects to the findings that he procedurally defaulted his remaining claims and

that his procedural defaults could not be excused. Petitioner argues that Judge Russo erred in "assum[ing]
that because petitioner did not directly challenge respondent's argument that the remaining claims were
procedurally defaulted, 'petitioner has failed to sustain his burden of demonstrating entitlement to habeas
relief on these claims.'" Pet'r Objs. 21 (citing F&R 41). Petitioner is mistaken. As Judge Russo properly
found, petitioner has the burden of establishing entitlement to habeas relief and has failed to do so.
D.

Cumulative Error
Petitioner objects to the finding that there was no cumulative error. For the reasons

described above, the Court agrees with Judge Russo's finding that petitioner's claims do not meet the
threshold for cumulative error.
E.

Request for Evidentiary Hearing
Petitioner objects to Judge Russo's recommendation that this Court deny the request for an

evidentiary hearing.

Petitioner argues that "[t]his Court should conduct an evidentiary hearing on
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[petitioner's] Sixth Amendment Ineffective Assistance of Counsel Claims and Actual Innocence Claims,
including his actual innocence/miscarriage of justice argument to excuse any failures of his PCR counsel."
Pet'r Objs. 22. However, as Judge Russo properly found, petitioner does not indicate what more beyond
the written record would be offered at such a hearing or how it would entitle him to habeas relief.
Accordingly, the Court denies petitioner's request for an evidentiary hearing.
F.

Certificate of Appealability
Finally, petitioner objects to Judge Russo's recommendation that this Court decline to issue

a Certificate of Appealability ("COA"). A COA should be issued when "jurists of reason would find it
debatable whether the underlying . . . petition states a valid claim of the denial of a constitutional right."
Martinez v. Shinn, 33 F.4th 1254, 1261 (9th Cir. 2022), cert. denied, 143 S. Ct. 584 (2023); see Slack v.
McDaniel, 529 U.S. 473, 478 (2000) ("[W]hen the district court denies a habeas petition on procedural
grounds without reaching the prisoner's underlying constitutional claim, a COA should issue . . . if the
prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling."). The petitioner must show that "'the issues are debatable
among jurists of reason; that a court could resolve the issues in a different manner; or that the questions are
adequate to deserve encouragement to proceed further.'" Martinez, 33 F.4th at 1261 (quoting Lambright v.
Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000)) (emphasis in original).
Jurists of reason would not find debatable the Court's findings that petitioner was not
denied procedural due process, did not sustain his burden on his fully exhausted claims, and did not
overcome the procedural default of his remaining claims. Accordingly, the Court declines to issue a COA.

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CONCLUSION
For the foregoing reasons, the Court ADOPTS Judge Russo's Findings and
Recommendation, ECF [139], in full. Petitioner's Amended Petition for Habeas Corpus, ECF [31], is
DENIED, and this case is DISMISSED with prejudice. The Court declines to issue a Certificate of
Appealability.

IT IS SO ORDERED.
DATED this 24th day of September, 2024.
______________________
Adrienne Nelson
United States District Judge

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