Baker v. Turley et al
Filing
51
MEMORANDUM DECISION and DISMISSAL ORDER: It is therefore ordered that Petitioners habeas corpus petition under 2254 is DENIED. Signed by Judge Tena Campbell on 10/27/2011. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
_________________________________________________________________
) MEMORANDUM DECISION &
) DISMISSAL ORDER
Petitioner,
)
) Case No. 2:08-CV-510 TC
v.
)
) District Judge Tena Campbell
STEVEN TURLEY,
)
)
Respondent.
)
_________________________________________________________________
ROBERT ROY BAKER,
Petitioner, Robert Roy Baker, an inmate at Utah State
Prison, petitions for habeas corpus relief.1
The Court denies
him.
BACKGROUND
Petitioner stands convicted of two counts of child rape, for
which he is serving two terms of ten to life; one count of
aggravated sexual abuse of a child, for which he is serving a
five-to-life sentence; and one count of sexual exploitation of a
minor, for which he is serving a one-to-fifteen-year sentence.
The Utah Court of Appeals affirmed his convictions.2
The Utah
Supreme Court then denied his petitions for certiorari review.3
In this timely amended federal habeas corpus petition,
Petitioner raises two properly exhausted issues of alleged
ineffective assistance of counsel:
1
See 28 U.S.C.S. § 2254 (2011).
2
(1) Whether counsel should
State v. Baker, 2007 UT App 35U.
3
State v. Baker, 189 P.3d 1276 (Utah 2008); State v. Baker, 168 P.3d
1264 (Utah 2007)
have ensured a psychosexual evaluation of Petitioner was obtained
to use as mitigating evidence during sentencing; and (2) whether
counsel should have challenged the prosecutor's statements at
sentencing that assertedly exaggerated the nature and amount of
child pornography found in Petitioner's home.4
ANALYSIS
I.
Standard of Review
The standard of review to be applied in federal habeas cases
is found in § 2254, under which this habeas petition is filed.
It states:
(d) An application for a writ of habeas
corpus on behalf of a person in custody
pursuant to the judgment of a State court
shall not be granted with respect to any
claim that was adjudicated on the merits in
State court proceedings unless the
adjudication of the claim-(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.5
"Subsection (d)(1) governs claims of legal error while subsection
(d)(2) governs claims of factual error."6
Further, "a
4
(See Docket Entry # 41.)
5
28 U.S.C.S. § 2254(d) (2011).
6
House v Hatch, 527 F.3d 1010, 1015 (10th Cir. 2008).
2
determination of a factual issue made by a State court shall be
presumed to be correct.
The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence."7
The Court's inquiry here begins with whether the court of
appeals's rejection of Petitioner's claims "was contrary to, or
involved an unreasonable application of, clearly established
Federal law."8
The Court is not to determine whether the court
of appeals's decision was correct or whether this Court may have
reached a different outcome.9
"The role of federal habeas
proceedings, while important in assuring that constitutional
rights are observed, is secondary and limited."10
Under Carey v. Musladin,11 the first step is determining
whether clearly established federal law exists relevant to
Petitioner's claims.12
Only after answering yes to that
"threshold question" may the Court go on to "ask whether the
7
28 U.S.C.S. § 2254(e)(1) (2011).
8
Id. § 2254(d)(1).
9
See Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003).
10
Barefoot v. Estelle, 463 U.S. 880, 887 (1983).
11
549 U.S. 70 (2006).
12
House, 527 F.3d at 1017-18.
3
state court decision is either contrary to or an unreasonable
application of such law."13
[C]learly established [federal] law consists
of Supreme Court holdings in cases where the
facts are at least closely-related or similar
to the case sub judice. Although the legal
rule at issue need not have had its genesis
in the closely-related or similar factual
context, the Supreme Court must have
expressly extended the legal rule to that
context.14
In deciding whether relevant clearly established federal law
exists, this Court is not restricted by the state court's
analysis.15
If this threshold is overcome, this Court may grant habeas
relief only when the state court has "unreasonably applied the
governing legal principle to the facts of the petitioner's
case."16
This deferential standard does not let a federal habeas
court issue a writ merely because it determines on its own that
the state decision erroneously applied clearly established
13
Id. at 1018.
14
Id. at 1016.
15
See Bell v. Cone, 543 U.S. 447, 455 (2005) ("Federal courts are not
free to presume that a state court did not comply with constitutional dictates
on the basis of nothing more than a lack of citation."); Mitchell v. Esparza,
540 U.S. 12, 16 (2003) ("[A] state court need not even be aware of our
precedents, 'so long as neither the reasoning nor the result of the statecourt decision contradicts them.'") (citation omitted).
16
Walker v. Gibson, 228 F.3d 1217, 1225 (10th Cir. 2000) (citing
Williams v. Taylor, 529 U.S. 362, 412-13 (2000)).
4
federal law.17
"'Rather that application must also be
unreasonable.'"18
Moreover, "a determination of a factual issue made by a
State court shall be presumed to be correct.
The applicant shall
have the burden of rebutting the presumption of correctness by
clear and convincing evidence."19
Finally, "[i]t is, of course, well settled that the fact
that constitutional error occurred in the proceedings that led to
a state-court conviction may not alone be sufficient reason for
concluding that a prisoner is entitled to the remedy of
habeas."20
This Court must "give effect to state convictions to
the extent possible under law."21
Still, "errors that undermine
confidence in the fundamental fairness of the state adjudication
certainly justify the issuance of the federal writ."22
II. Ineffective Assistance of Counsel
Petitioner urges this Court to overturn the Utah Court of
Appeals's decision that his counsel was not ineffective.
poses two claims:
He
(1) counsel did not ensure a psychosexual
17
See id.
18
Id. (quoting Williams, 529 U.S. at 411).
19
28 U.S.C.S. § 2254(e)(1) (2011).
20
Williams, 529 U.S. at 375.
21
Id. at 386.
22
Id. at 375.
5
evaluation was available for consideration during sentencing; and
(2) counsel did not challenge the prosecution's allegedly false
statements at sentencing about the nature and amount of child
pornography found in Petitioner's home.
Noting again that review is tightly circumscribed by the
standard of review for federal habeas claims by state prisoners,
this Court observes that the court of appeals selected the
correct governing legal principle with which to analyze the
ineffective-assistance-of-counsel issues.23
It is the familiar
two-pronged standard of Strickland v. Washington24:
(1)
deficient performance by counsel, measured by a standard of
"reasonableness under prevailing professional norms"; and, (2)
prejudice to the defense caused by counsel's deficient
performance.25
The prejudice element requires a showing that
errors were so grave as to rob the petitioner of a fair
proceeding, with a reliable, just result.26
As required by the standard of review, the Court now
analyzes whether the court of appeals's application of Strickland
was reasonable.
23
Baker, 2007 UT App 35, at ¶¶ 2, 4.
24
466 U.S. 668 (1984).
25
Id. at 687-88.
26
Id.
6
A. Counsel's Failure to Submit Psychosexual Evaluation
Petitioner maintains counsel was ineffective when he did not
insist on a psychosexual evaluation of Petitioner to present as
mitigating evidence at sentencing.
In analyzing this issue under
Strickland, the Utah Court of Appeals determined:
In State v. Thorkelson, 2004 UT App 9, 84
P.3d 854, this court held "it is within the
discretion of the [trial] court to determine
whether it has sufficient information to
impose sentence." Id. at ¶ 11 (citing State
v. Brown, 771 P.2d 1067, 1067-68 (Utah
1989)). "Furthermore, while a psychosexual
evaluation may be useful in sentencing, it is
not mandatory." Id. (citing State v.
Gentlewind, 844 P.2d 372, 375 (Utah Ct. App.
1992) (recognizing that a court is not
compelled to consider additional
psychological information, even if relevant
and helpful, if the court otherwise has
sufficient information to impose sentence)).
Here, Baker does not address what "relevant
mitigating evidence" a psychosexual
evaluation may have contained, and fails to
discuss why counsel was ineffective when he
did not "insist" that the court consider such
information. Accordingly, Baker has failed
to show that counsel was ineffective and has
"failed to demonstrate that any purported
prejudice [d]efendant suffered as a result of
trial counsel's omissions was 'a demonstrable
reality and not a speculative matter.'"
State v. Person, 2006 UT App 288, ¶ 14, 140
P.3d 584 (quoting State v. Chacon, 962 P.2d
48, 50 (Utah 1998)).27
Petitioner does not even argue that the court of appeals got
this wrong.
He merely restates his belief that his attorney's
failure to ensure a psychosexual evaluation of Petitioner, in
27
Baker, 2007 UT App 35, at ¶ 3.
7
itself, was deficient, prejudicial performance.
However, based
on Strickland, the court of appeals was right to observe that
counsel's failure to insist upon the evaluation was not
necessarily deficient performance.
After all, Utah law did not
require such an evaluation be considered at sentencing.28
The
trial court had discretion to determine whether it had sufficient
information to issue a particular sentence, and that is what the
trial court determined here.
Further, the court of appeals correctly analyzed
Petitioner's failure to assert an argument regarding the
requisite prejudice prong (e.g., he did not suggest what facts
the psychosexual evaluation likely would have shown that would
have been "relevant mitigating evidence"), and, on that basis as
well, rejected his ineffective-assistance-of-counsel claim.29
This Court is therefore not at all persuaded that the court of
appeals's application of relevant Supreme Court precedent was
unreasonable.
B. Failure to Object to Prosecutor's Remarks
Petitioner contends that counsel rendered ineffective
assistance of counsel when he did not "object to the prosecutor's
28
Id.
29
Id.
8
statements that 'thousands upon thousands of very graphic, very
detailed pictures' were found in [Petitioner's] home."30
Citing Strickland, the court of appeals analyzed this
applicable Supreme Court precedent against the facts of the case.
The court of appeals thus determined the parameters of Strickland
were not breached:
Baker's only argument in this regard is that
"there is no evidence in the record
supporting the State's allegations." To the
contrary, various statements in Baker's
presentence investigation report support the
State's assertion. Indeed, when given an
opportunity at sentencing, Baker himself did
not contest this statement but instead
attempted to explain the existence of the
pictures. Thus, it appears that any
objection to the prosecutor's statements
would have been futile. "Failure to raise
futile objections does not constitute
ineffective assistance of counsel." State v.
Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546. In
addition, Baker makes no showing that the
absence of an objection prejudiced him. In
its sentencing decision, the trial court made
clear that the presence of pornography was a
concern, without any reference to quantity.
As noted above, Baker did not dispute the
presence of pornography in his home. Thus,
Baker's argument fails both prongs of the
Strickland test. See Strickland v.
Washington, 466 U.S. 668, 690-91 (1984).31
Again, Petitioner does not attack the court of appeals's
conclusion but instead only cursorily reargues his belief that an
objection should have been made.
30
Id. ¶ 4.
31
At inappropriate times, on
Id.
9
appeal and habeas review--as opposed to at the appropriate time
of sentencing--he tried to cast doubt on the number of
pornographic images actually found in his home.
And, the
presentencing report, upon which the prosecutor relied in making
his comments, has never been adequately challenged.
Thus, when
the number of pornographic images was not placed at issue at
sentencing, it would have been futile for counsel to object to
the prosecutor's statement.
The court of appeals correctly
recognized the well-seasoned rule that, when there is no
violation, there is no ineffective assistance for failing to draw
attention to the "violation."32
Further, again, Petitioner does not indicate how the court
of appeals misanalyzed the prejudice prong.
Indeed, despite
counsel's failure to object, the trial court's decision specified
that it was based on the "presence of pornography," not
quantity.33
And, Petitioner had never disputed that pornography
was in his home,34 which is a factual determination for which
Petitioner has offered no clear and convincing evidence to
rebut.35
Again, this Court sees no way in which the court of
32
Id.
33
Id.
34
Id.
35
28 U.S.C.S. § 2254(e)(1) (2011).
10
appeals's application of relevant Supreme Court precedent was
unreasonable.
CONCLUSION
Petitioner raises no valid grounds for federal habeas
relief.
IT IS THEREFORE ORDERED that Petitioner's habeas corpus
petition under § 2254 is DENIED.
DATED this 27th day of October, 2011.
BY THE COURT:
__________________________
TENA CAMPBELL
United States District Judge
11
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