GARR M. KING, District Judge.
Petitioner, an inmate at Warner Creek Correctional Facility, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. Petitioner alleges six grounds of ineffective assistance of appellate counsel. Respondent moves the Court to deny habeas relief on the basis that Petitioner procedurally defaulted Grounds One through Four, and the state courts' denial of Grounds Five and Six is not contrary to, or an unreasonable application of, clearly established federal law. For the reasons set forth below, Petitioner's Amended Habeas Corpus Petition (ECF No. 27) is DENIED.
On October 14, 2008, a grand jury indicted Petitioner on charges of Robbery in the Second Degree (two counts), Robbery in the Third Degree (five counts), Assault in the Fourth Degree (one count), and Failure to Report as a Sex Offender (one count). Resp't Exs. to Answer (ECF No. 14), Ex. 104.
Hatley testified that on the morning of September 26, 2008, she was walking near Emanuel Hospital. An older Toyota or Datson abruptly pulled over in front of her. Tr. at 133-36. The driver of the car exited the vehicle and asked how to get to the emergency room. Id. at 13 6-3 7. As she was directing him, he rushed toward her and grabbed her canvas work bag and purse. Id. at 137-40. The car had a Washington license plate and was similar in appearance to the car pictured in the State's exhibits. Id. at 142-43.
Hatley testified that a police officer showed her a photo montage on the day of the robbery. Id. at 148-49, 150. She told the officer that "perhaps" one of the men pictured in photographs numbers two or six was the robber. Id. at 149-50. Petitioner's photograph was number six. Id. at 300. At trial, Hatley identified Petitioner as the robber. Id. at 144. In so doing, she testified that it was "definitely" easier to identify Petitioner in person. Id.
Teresa Smith witnessed the robbery. Id. at 156. She testified that the robber's car was a lighter-colored, four-door sedan similar to the car pictured in the State's exhibits. Id. at 157-58. She reported the license plate number of the car to a hospital security guard. Id. at 158.
Esther Woods witnessed the robbery from the window ofher second-floor office. Id. at 160-61. She testified that the robber's car was silverish and similar to the car pictured in the State's exhibits. Id. at 161. Woods identified Petitioner as the robber. Id. at 162. On cross examination, Woods testified that a week or more after the robbery, she spoke to a male police officer and a female detective and was shown a photo montage. Id. at 163-66. When defense counsel asked whether she was "able to identify anyone," she responded "yes." Id. at 166. At that point, defense counsel stated that he had "a matter for the court" and the jury was excused. Id.
After a discussion off the record, the prosecutor stated that he had no questions for Woods, and she was dismissed as a witness. Id. at 167-68. The trial judge then addressed defense counsel's concern that he had not been given a police report concerning a photo throw-down with Woods:
Id. at 168-70. The prosecutor agreed not to use the evidence and not to question Detective Coffey about a photo throw-down with Woods. Id. at 170-71.
During cross examination of Detective Coffey, however, defense counsel asked whether she showed Woods a photo montage. Coffey testified that she did not conduct a photo throw-down because she did not believe Woods would "be able to identify somebody from a second story window." Tr. Vol. II at 19-20. However, Coffey testified that she had the photo montage with her when she spoke to Woods and didn't recall whether Woods looked at it. Id. at 20. Coffey also could not recall whether Woods stated she could identify the robber. Id.
West testified that on the morning of September 26, 2008, she was walking to a funeral when a grayish blue car drove up near her. Id. at 246-47, 254. The driver got out of the car and asked her a question. Id. at 24 7. She answered him, continued walking, and then felt something on her left side. Id. at 248. She turned to see a man grab her purse, rush back to the car, and drive off. Id. at 248-49. West identified Petitioner as the robber. Id. at 249-50.
On cross examination, West testified that the prosecutor showed her a picture of Petitioner at the grand jury proceeding. Id. at 255. She testified that she probably told the prosecutor that the person in the picture was the robber, although the hairline was different. Id. at 256-57.
Norvell Reed testified that he witnessed the purse snatching from his car. Id. at 259-60. He described the robber as a black man with short or no hair. Id. at 260.
On the day of the robberies, Portland Police Sergeant Doug Gunderson received information that a robbery suspect was driving a light blue Toyota Corolla with Washington license plate number 015RNJ. Id at 275-77. Gunderson located the car and executed a stop at 11:46 a.m. Id at 277-79, 282. Petitioner was driving the car and Officer Gunderson arrested him. Id. at 278-79. Petitioner told the officer that the car belonged to a friend. Id. at 280-81. Detective Coffey subsequently searched the vehicle and found a small piece of paper underneath the front passenger seat cover with the name V. West and a phone number written on it. Id. at 303-04.
Petitioner offered no witnesses in his defense. The jury found Petitioner guilty of committing the first and third purse snatching. He was convicted of Robbery in the Second and Third Degree for the first robbery (counts one and two), and Robbery in the Third Degree for the third robbery (count eight). Resp't Ex. 133. The trial court imposed an 86-month term of incarceration. Resp't Ex. 101 at 21-25.
Petitioner filed a direct appeal challenging the trial court's failure to merge counts one and two into a single conviction. Resp't Ex. 106 at 5-6. Petitioner filed a Pro Se Supplemental Brief raising additional claims related to his conviction on those counts. Resp't Ex. 107. On appeal, the State conceded that the trial court erred in failing to merge Petitioner's convictions on counts one and two. Resp't Ex. 108. Accordingly, the Oregon Court of Appeals reversed Petitioner's convictions on counts one and two, and remanded with instructions to enter a judgment of conviction for one count (second-degree robbery) and for resentencing. State v. Robinson, 241 P.3d 309 (Or. App. 201O); Resp't Ex. 109.
Petitioner subsequently sought state post-conviction relief (PCR) on the grounds that he received ineffective assistance of trial counsel (four particulars) and ineffective assistance of appellate counsel (seven particulars). Resp't Ex. 117. With respect to appellate counsel, Petitioner alleged that counsel was ineffective for failing to raise on appeal:
Id. at 4-5.
At the conclusion of the PCR proceeding, the court denied Petitioner's in-court identification and double jeopardy claims as follows:
Resp't Ex. 135 at 36-37. In a subsequent written decision, the PCR court held that appellate counsel's decision not to raise the in-court identification and double jeopardy claims on appeal was reasonable because the issues have no legal merit, and there was no prejudice. Resp't Ex. 136 at 2.
PCR appellate counsel filed an appeal, but certified there were no non-frivolous issues to raise on appeal. Resp't Ex. 137 at 4; see State v. Balfour, 814 P.2d 1069, 1080 (Or. 1991) (setting forth procedure to be followed when counsel believes appeal has no merit); see also Or. R. App. Proc. 5.90. Petitioner filed a Section B to the Balfour brief assigning two errors. Petitioner alleged that the PCR court erred in rejecting his claims that appellate counsel was ineffective for failing to raise on appeal the trial court's denial of (1) Petitioner's Motion to Exclude In-Court Identifications; and (2) Petitioner's "Motion for Jeopardy Protection." Resp't Ex. 137 at 6, 10-13, 35.
Id. at 10.
Petitioner also challenged the trial court's admission of in-court identifications by witness Hatley, Woods, and West in his "Summary Argument," "Preservation of Error," and throughout the argument section of his brief. Id. at 11-13; see also id. at 18, 21-24, 29, 32-33. The Oregon Court of Appeals affirmed without opinion. Resp't Ex. 141; Robinson v. Nooth, 342 P.3d 181 (Or. App. 2014). Petitioner filed a Petition for Review to the Oregon Supreme Court incorporating his appellate brief by reference. Resp't Ex. 139. The Oregon Supreme Court denied review. Resp't Ex. 140; Robinson v. Nooth, 344 P.3d 1111 (Or. 2015).
In the instant proceeding, Petitioner alleges six grounds of ineffective assistance of appellate counsel. Respondent moves the Court to deny habeas relief on the basis that Petitioner procedurally defaulted Grounds One through Four, and the state courts' denial of Grounds Five and Six is not contrary to, or an unreasonable application of, clearly established federal law.
In Petitioner's Grounds One through Four, Petitioner alleges that appellate counsel was ineffective for failing to raise on appeal (1) the trial court's denial of his motion to suppress in-court identifications; (2) "issues related to Esther [W]oods" who did not identify Petitioner prior to trial;
(3) that "the Judge and D.A. decided to use suggestive [identification] procedures;" and (4) prosecutorial misconduct by proceeding to trial knowing that the trial testimony "would be significantly different from the initial identification." Pet'r's Am. Pet. (ECF No. 27) at 7-8. Respondent moves the Court to deny habeas relief on the basis that Petitioner did not raise these claims on appeal from the denial of post-conviction relief.
Generally, a state prisoner must exhaust all available state court remedies either on direct appeal or through collateral proceedings before a federal court may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(l). A state prisoner satisfies the exhaustion requirement by "fairly presenting" his claim to the appropriate state courts at all appellate stages afforded under state law. Castille v. Peoples, 489 U.S. 346, 351 (1989); Baldwin v. Reese, 541U.S.27, 29 (2004); Carrillo-Carrillo v. Coursey, 823 F.3d 1217, 1220 (9th Cir. 2016); Casey v. Moore, 386 F.3d 896, 915-16 (9th Cir. 2004). If the petitioner procedurally defaults his available state remedies, habeas relief is precluded absent a showing of cause and prejudice, or that the failure to consider the defaulted claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
This Court agrees that Grounds for Relief Three and Four were not raised on appeal from the denial of post-conviction relief. Accordingly, those grounds are procedurally defaulted. Petitioner has not shown cause and prejudice to excuse his default, or that the failure to consider the claims will result in a miscarriage of justice. Accordingly, habeas relief is precluded on those grounds.
Additionally, this Court agrees with Respondent's concession that Grounds One and Five "appear to allege the same claim." Resp't Resp. to Am. Pet. at 2, n.3. Accordingly, because Ground Five was properly exhausted, the Court concludes that Ground One was exhausted and will address the merits of both grounds together.
However, contrary to Respondent's argument, Petitioner fairly presented Ground Two relating to whether Esther Woods should have been permitted to make an in-court identification. The propriety of Woods' testimony was addressed repeatedly in Petitioner's appellate brief, albeit in sections other than his "Assignment of Errors." Nevertheless, Oregon appellate courts give prose appellants filing a Balfour brief "leeway," and do not require exact compliance with the rules of appellate briefing. Carrillo-Carrillo, 823 F.3d at 1222. Hence, the fact that the Petitioner included argument on Ground Two under the wrong headings does not dictate the conclusion that the ground was not fairly presented. Accordingly, Ground for Relief Two was fairly presented to the state appellate courts.
Pursuant to 28 U.S. C. § 2254(d), a petition for writ of habeas corpus filed by a state prisoner shall not be granted, with respect to any claim that was adjudicated on the merits in state court, unless the adjudication resulted in a decision that was "contrary to, or involved an unreasonable application of, clearly established Federal law;" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d)(l) & (2); Harrington v. Richter, 562 U.S. 86, 100 (2011); White v. Woodall, 134 S.Ct. 1697, 1702 (2014). Because the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court summarily denied review, this Court looks to the last reasoned state court decision when applying this standard, which here is the decision of the state PCR court. See Carrillo-Carrillo, 823 F.3d at 1222.
The Supreme Court has established a two-part test to determine whether a petitioner has received ineffective assistance of counsel (IAC). Strickland v. Washington, 466 U.S. 668, 686-687 (1984). Petitioner must demonstrate that (1) appellate counsel was objectively unreasonable in failing to discover the non-frivolous issue for appeal; and (2) there is a reasonable probability that, but for appellate counsel's failure to raise the issue, Petitioner would have prevailed on appeal. Smith v. Robbins, 528 U.S. 259, 285-86 (2000); Moormann v. Ryan, 628 F.3d 1102, 1106 (9th Cir. 2010). This Court's review of counsel's assistance is "doubly deferential" in that this Court takes a highly deferential look at counsel's performance under the deferential lens of § 2254(d). Cullen v. Pinholster, 563 U.S. 170, 196 (2011); Zapien v. Martel, 805 F.3d 862, 869 (9th Cir. 2015).
In Grountls for Relief One and Five, Petitioner alleges that appellate counsel was ineffective for failing to appeal the trial court's denial of his motion to exclude in-court identifications. Petitioner argues that permitting witnesses to identify him in court, after failing to identify him pretrial from a photo montage or individual photograph, violated his right to due process. Pet'r's Am. Habeas Pet. at 13; Pet'r's Memo. of Auth. in Support of Federal Habeas Pet. (ECF No. 28) at 20, 24-28.
Id. at 15.
The trial judge held a preliminary hearing, and denied Petitioner's motion to exclude Hatley and West's in-court identifications because there was no evidence that they were subject to suggestive pretrial identification procedures. Tr. at 103-06.
Appellate counsel's refusal to raise the in-court identification issue on appeal was neither deficient performance nor prejudicial because there is no evidence that the pretrial identification procedures (1) violated the Due Process Clause because they were so unnecessarily suggestive to give rise to a substantial likelihood of irreparable misidentification;
Further, Petitioner offers no state or federal case law to support his claim that the Due Process Clause is violated by the admission of an in-court identification by a witness who did not make a pretrial identification. Although the Supreme Court has recognized that eyewitness testimony may be flawed, "the potential unreliability of a type of evidence does not alone render its introduction at [a] defendant's trial fundamentally unfair." Perry v. New Hampshire, 132 S.Ct. 716, 728-29 (2012) (upholding admission of in-court eyewitness testimony by witness who was unable to identify defendant in pretrial photo throw-down). Hence, appellate counsel's failure to challenge the in-court identifications on the basis that the witnesses did not make positive pretrial identifications was neither deficient performance nor prejudicial. Accordingly, the PCR courts' rejection of this IAC claim is neither contrary to, nor an unreasonable application of, clearly established federal law.
Petitioner contends that appellate counsel was ineffective for failing to raise on appeal "issues related to Esther Woods." Pet'r's Am. Habeas Pet. (ECF No. 27) at 11. Petitioner explains that his right to due process was violated because Woods was not shown a photo montage, and falsely testified that she identified Petitioner's photograph:
Id. at 13.
Contrary to Petitioner's allegation of perjury, the record is unclear whether Woods was shown a photo throw-down prior to trial. On cross examination, Woods testified that she was shown a photo montage by a male police officer and a female detective. Tr. at 163-66. Detective Coffey testified that she did not conduct a photo throw-down with Woods, but that Woods may have seen a photo montage sitting on the outside of Coffey's folder. Id., Vol. II at 19-20. Coffey was unable to recall whether Woods stated she could identify Petitioner. Id at 20. Officer McLoughlin, who showed at least one other witness a photo montage, was not available to testify at trial to clarify the issue. See id at 27-29, 52-53, 171.
In any event, when Woods testified to identifying Petitioner in a photo throw-down, there was a discussion outside the presence of the jury concerning the prosecutor's failure to produce a report of the throw-down. Id at 167-70. The prosecution agreed not to ask Woods any questions about the possible throw-down and did not reference it in closing argument. See id at 168, 170, Vol. II at 61, 83. The foregoing procedure did not violate Petitioner's right to due process.
It is for the jury to determine the reliability of Woods' testimony. See Perry, 132 S. Ct. at 728. Any prejudice caused by the prosecutor's failure to disclose a report during discovery concerning the throw-down does not give rise to a constitutional claim and, in any event, was remedied by the prosecutor's agreement not to question Woods about the throw-down and not to mention it in closing argument. Consequently, appellate counsel was not deficient in failing to raise an assignment of error concerning Woods' testimony, and there is no reasonable probability that the assignment would have been successful. Accordingly, the PCR court's rejection of this claim is neither contrary to, nor an unreasonable application of, clearly established federal law.
In his Sixth Ground for Relief, Petitioner alleges that appellate counsel was ineffective for failing to raise the "double jeopardy issue preserved at sentencing." Pet' r's Am. Pet. at 8. Petitioner argues that although counts one and two merged, double jeopardy precluded his conviction for Robbery in the Second Degree after being convicted of Robbery in the Third Degree. Petitioner's double jeopardy argument is premised on Oregon's former jeopardy statute, Or. Rev. Stat. § 131.515(4), which provides that"(a] finding of guilty of a lesser included offense on any count is an acquittal of the greater inclusive offense only as to that count." (Emphasis added.)
Petitioner reasons that pursuant to Or. Rev. Stat. § 131.515(4), his guilty verdict of Robbery in the Third Degree (count two) operated as an acquittal of his Robbery in the Second Degree (count one). Hence, Petitioner contends that he should serve the 16-month sentence originally imposed by the trial court on count two, and not the 70-month sentence on count one. Moreover, Petitioner argues that the Oregon Court of Appeals' decision on direct appeal, merging his convictions on counts one and two, did not remedy the double jeopardy violation. Pet' r's Am. Habeas Pet. at 16-17; Pet'r's Mem. of Auth. in Supp. of Federal Habeas Pet. at 67-69, 75-78.
Appellate counsel refused to raise Petitioner's double jeopardy argument on appeal, explaining to Petitioner that "the `former jeopardy' provisions do not apply to counts brought at the same time before the same jury." Resp't Ex. 125. The PCR court agreed, denying Petitioner's ineffective assistance of appellate counsel claim on the basis that there was no double jeopardy violation and the merger of the two counts was "the correct procedure." Resp't Ex. 135 at 36.
Oregon's former jeopardy statute, Or. Rev. Stat. § 131.515, prohibits consecutive prosecutions. See State v. Sawatzky, 125 P.3d 722, 696-97 (Or. 2005) (double jeopardy did not preclude re-sentencing on remand because it is a single prosecution); State v. Lyons, 985 P.2d 204, 208 (Or. App. 1999) (statute bars consecutive prosecutions for same offense and successive prosecutions for all known charges arising out of the same criminal episode). The same is true of the Oregon and U.S. Constitutions. See Warner, 153 P.3d at 680 (Article I, section 12, of the Oregon Constitution prohibits successive prosecutions); Bluefordv. Arkansas, 132 S.Ct. 2044, 2048 (2012) ("Double Jeopardy Clause protects against being tried twice of the same offense").
Petitioner was not subjected to a consecutive prosecution on the charge of Robbery in the Second Degree, after being convicted of Robbery in the Third Degree. Moreover, he was not charged with Robbery in the Second and Third Degrees in a single count so as to trigger Or. Rev. Stat. § 131.515(4). See State v. Warner, 112 P.3d 464, 470 (2005)("[F]or ORS 131.515(4) to operate on a greater offense, the greater offense must be charged in the same count as the lesser-included offense for which the defendant is convicted."). Accordingly, appellate counsel was not deficient, and there is no reasonable probability that, but for appellate counsel's failure to raise the double jeopardy claim, there is a reasonable probability that Petitioner would have prevailed on appeal. The PCR court's rejection of his claim is neither contrary to, nor an unreasonable application of, clearly established federal law.
Based on the foregoing, Petitioner's Amended Habeas Corpus Petition (ECF No. 27) is DENIED, and this proceeding is DISMISSED, with prejudice.
Because Petitioner has not made a substantial showing of the denial of a constitutional right, a Certificate of Appealability is DENIED. See 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
