MICHAEL J. McSHANE, District Judge.
Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that his counsel rendered ineffective assistance during trial. Respondent argues that petitioner's claims were either denied in a state court decision entitled to deference or procedurally defaulted and barred from federal review. For the reasons explained below, the petition is denied.
In 1997, petitioner was charged with six counts of Aggravated Murder, three counts of Robbery in the First Degree, three counts of Burglary in the First Degree, and one count of Felon in Possession of a Firearm. Resp't Ex. 102. The charges against petitioner "arose out of a single incident in an after-hours gambling club," as recounted by the Oregon Court of Appeals:
State v. Ramsey, 184 Or.App. 468, 470, 56 P.3d 484 (2002) (Ramsey I); Resp't Ex. 106.
On December 14, 1999, after trial by jury, petitioner was convicted of all charges. Tr. Vol. 16 at 13-15; Resp't Ex. 146. The State sought the death penalty.
On January 11, 2000, after a sentencing trial, the jury found that petitioner should serve life in prison without the possibility of parole. Tr. Vol. 23 at 4-5. The trial court merged the six robbery and burglary convictions into the six related aggravated murder convictions and imposed concurrent life sentences without the possibility of parole; the court also imposed an 18-month concurrent sentence on the felon-in-possession conviction. Tr. Vol. 23 at 13-14; see also Ramsey I, 184 Or.App. 470-71, 56 P.3d 484.
Petitioner appealed and asserted that the trial court committed reversible error by failing to instruct the jury on a "claim-of-right" defense — that "using self-help to recover specific personal property is not robbery if the person has an honest claim of right to possess the property." Ramsey I, 184 Or. App. at 472, 56 P.3d 484. Petitioner argued that he had a "claim of right" to the money Mayes had stolen from him by cheating. Resp't Ex. 103 at 19-20, 39-40.
The Oregon Court of Appeals agreed, in part, and found that the trial court's failure to give a claim-of-right instruction constituted reversible error with respect to the burglary charges and the robbery and murder charges associated with Mayes and Robinson. Ramsey I, 184 Or. App. at 475-77, 56 P.3d 484. The Court of Appeals explained:
Id. at 473-74, 56 P.3d 484. Further, the Court of Appeals could not determine on which "intent to commit theft" the jury had based its burglary verdicts and reversed petitioner's convictions on these charges as well. Id. at 476.
However, the Court of Appeals found that petitioner was not entitled to a claim-of-right instruction with respect to the robbery and murder charges associated with Levier:
Id. at 474-75, 56 P.3d 484. The Court of Appeals remanded the case to the trial court for a new sentencing trial on the affirmed convictions. Id.
On remand, the State did not retry petitioner on the reversed convictions and did not seek the death penalty at resentencing. After a second sentencing trial, a jury again found that petitioner should serve life in prison without the possibility of parole. Tr. on Appeal at 2922.
In 2008, petitioner sought post-conviction relief (PCR) in state court. In his fourth amended PCR petition, petitioner asserted that trial counsel was ineffective by failing to obtain grand juror notes of Mayes's testimony and by failing to present evidence that petitioner believed he had claim of right to Levier's money. Resp't Ex. 124, Ex. 125 at 15-16, 18. The PCR court denied petitioner's claims, the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Resp't Exs. 156, 163-64; Ramsey v. Premo, 259 Or.App. 206, 315 P.3d 447 (2013), rev. denied, 355 Or. 317, 327 P.3d 1167 (2014).
On September 23, 2014, petitioner filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254. This Court subsequently appointed counsel, and on November 17, 2017, after several extensions and other procedural rulings, petitioner filed an Amended Petition.
In his Amended Petition, petitioner alleges that his trial counsel rendered ineffective assistance by: 1) failing to "obtain records relating to James Mayes's testimony before the grand jury"; 2) failing to "present evidence that Mr. Ramsey believed that Antoine Levier had cheated him out of money, because that evidence would have provided a basis for a jury instruction on an honest claim of right defense; and 3) failing to "cross-examine David Knight, or call him to testify as a defense witness, on his knowledge that Mr. Ramsey believed Antoine Levier, along with James Mayes, was cheating Mr. Ramsey out of money." Am. Pet. at 4 (ECF No. 91).
Respondent maintains that the PCR court rejected petitioner's first two grounds for relief in a decision that is entitled to deference by this Court. Respondent further argues that petitioner's third ground is a reiteration of his second ground and likewise was rejected by the PCR court. Alternatively, if this Court considers petitioner's third ground as a "new" claim, respondent argues that it is procedurally defaulted and barred from federal review.
In his PCR proceeding, petitioner alleged that trial counsel was ineffective by failing to obtain grand jury notes relating to Mayes's testimony and by failing to elicit testimony from petitioner regarding his belief that Levier was cheating. Resp't Exs. 124, 160, 162. Respondent maintains that the PCR's court's rejection of these claims was reasonable and entitled to deference. I agree.
A federal court may not grant a habeas petition regarding any claim "adjudicated on the merits" in state court, unless the state court ruling "was contrary to, or involved an unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254(d)(1). A state court decision is "contrary to" established federal law if it fails to apply the correct Supreme Court authority, or if it reaches a different result in a case with facts "materially indistinguishable" from relevant Supreme Court precedent. Brown v. Payton, 544 U.S. 133, 141 (2005); Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision is an "unreasonable application" of clearly established federal law if the state court identifies the correct legal principle but applies it in an "objectively unreasonable manner." Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam); Williams, 529 U.S. at 407-08, 413; see also Early v. Packer, 537 U.S. 3, 11 (2002) (per curiam) (state court decisions that are not "contrary to" clearly established Supreme Court law may be set aside only "if they are not merely erroneous, but `an unreasonable application' of clearly established federal law, or based on `an unreasonable determination of the facts'").
Under well-established Supreme Court precedent, a habeas petitioner alleging ineffective assistance of counsel must show that 1) "counsel's performance was deficient," and 2) counsel's "deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish deficient performance, a petitioner "must show that counsel's representations fell below an objective standard of reasonableness." Id. at 688. To demonstrate prejudice, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Unless a petitioner "makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Id. at 687.
The State called Mayes as a witness during its case in chief. On direct examination, Mayes testified that he saw the shooter fire two shots at Robinson, who fell to the right as the shooter moved to the left. Tr. Vol. 6 at 56-57. Mayes testified that he then saw the shooter come from behind a furnace and stand over Robinson, firing several more shots at Robinson as he lay motionless on the floor. Tr. Vol. 6 at 60 (testifying that the shooter "came out and he just boom, boom, boom"). In Mayes's prior statements to police, he stated that the shooter turned and fired at Robinson several times, either at once or in two quick bursts, then stepped over Robinson and ran out the back door.
During her cross-examination, petitioner's counsel asked Mayes whether he had ever told law enforcement officers that he saw the shooter stand over Robinson and shoot him.
Tr. Vol. 6 at 84.
Subsequently, petitioner's counsel elicited testimony from a detective indicating that Mayes's trial testimony was inconsistent with his prior statements to the police. Tr. Vol. 8 at 183-88. Specifically, Detective Svilar, who interviewed Mayes shortly after the shooting, testified that Mayes never mentioned to any police officer that the shooter stood over Robinson and shot him several times.
Tr. Vol. 8 at 186-88.
To rehabilitate Mayes, the State called two members of the grand jury who testified that Mayes's trial testimony was consistent with his grand jury testimony given two years earlier. Tr. Vol. 9 at 12-20. Petitioner's counsel strenuously objected to the State's introduction of grand juror testimony to rehabilitate a witness, and the trial court overruled her objections. Tr. Vol. 8 at 197-206; Tr. Vol. 9 at 3-9. During closing argument, petitioner's counsel addressed Mayes's testimony and that of the rebuttal witnesses:
Tr. Vol. 14 at 101-03. Counsel also argued that Mayes's trial testimony was inconsistent with the physical evidence and the testimony of the medical examiner. Tr. Vol. 14 at 103-06.
After the jury returned its verdict, counsel moved for a mistrial, arguing that the State's failure to provide grand jury notes regarding Mayes violated petitioner's constitutional rights. Tr. Vol. 17 at 4-6, 18. The trial court rejected this motion, finding that the issue was not "well preserved," that Mayes's testimony was "very difficult to predict," and that the testimony of the two grand jurors was not "that critical." Tr. Vol. 17 at 19-20.
In his PCR proceeding, petitioner asserted that counsel should have obtained notes of Mayes's grand jury testimony before she cross-examined him. The PCR court rejected this claim and found:
Resp't Ex. 156 at 6, 9.
Petitioner argues that the PCR court's decision is not entitled to deference, because the court "failed to appreciate the true nature of the claim." Pet'r Br. at 41 (ECF No. 92). Rather than request the notes for impeachment purposes, petitioner maintains that counsel should have requested the grand jury notes to determine whether Mayes's trial testimony was inconsistent with his grand jury testimony. Despite the confidentiality of grand jury proceedings, petitioner emphasizes that the disclosure of grand jury notes is permitted "when the testimony of a witness at a criminal trial may be inconsistent with his testimony before the grand jury." State ex rel. Johnson v. Roth, 276 Or. 883, 886, 557 P.2d 230 (1976); see also Or. Rev. Stat. § 132.220(1) (providing that a court may require a grand juror to disclose the "testimony of a witness examined before the grand jury, for the purpose of ascertaining whether it is consistent with that given by the witness before the court"). According to petitioner, if counsel had "known that Mr. Mayes's trial testimony was, in fact, consistent with prior testimony she could have targeted her cross-examination of Mr. Mayes differently" and avoided questioning him in way that allowed the State to call grand jurors as rebuttal witnesses. Pet'r Br. at 38-39.
To accept petitioner's argument would require this Court to view counsel's performance through "the distorting lens of hindsight," contrary to the Supreme Court's admonition in Strickland. Hendricks v. Calderon, 70 F.3d 1032, 1036 (9th Cir. 1995). As the Court explained, "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689.
From counsel's perspective at the time of trial, an eye witness had provided trial testimony that differed vastly from his previous statements to the police, and no evidence suggested Mayes had witnessed petitioner bend over and shoot Robinson as he had described. Presented with Mayes's apparent inconsistent testimony in the midst of trial, trial counsel chose to impeach Mayes with his prior inconsistent statements rather than speculate about his grand jury testimony and pursue an uncertain strategy to obtain confidential grand jury notes.
Given the circumstances, the PCR court did not unreasonably find that, from the perspective of counsel at the time, her choice did not constitute deficient performance. Harrington v. Richter, 562 U.S. 86, 101 (2011) (on habeas review, a state court decision "must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.").
Moreover, petitioner presents no persuasive argument that he suffered prejudice — that the outcome of trial would have been different had petitioner's counsel discovered Mayes's grand jury testimony before she cross-examined him. With knowledge of his grand jury testimony, counsel would have had three choices on cross-examination: 1) raise Mayes's grand jury testimony and his prior inconsistent statements to police and question his changing version of events; 2) not raise the grand jury testimony or his prior inconsistent statements and leave Mayes's trial testimony unchallenged; or 3) not raise the grand jury testimony and impeach Mayes with his prior inconsistent statements, which is the action counsel took. Had counsel decided not to impeach Mayes to avoid introduction of his grand jury testimony, the jury would have been presented with Mayes's unrebutted trial testimony that petitioner stood over Robinson and shot him several times. Had counsel chosen to raise Mayes' grand jury testimony along with his inconsistent statements to police — ostensibly to avoid grand jury rebuttal witnesses — the jury would have been presented with much the same evidence that was actually presented at trial: that Mayes's grand jury and trial testimony were inconsistent with his prior statements made to the police. As it was, counsel highlighted Mayes's inconsistent statements during closing argument to question his credibility and recollection of events, which is the only reasonable course of action counsel could have taken, even with the grand jury notes.
Accordingly, petitioner fails to establish that the PCR court unreasonably applied Strickland by finding no deficiency and no prejudice arising from counsel's failure to obtain grand jury notes.
On direct appeal, the Oregon of Appeals found that petitioner was not entitled to a claimof-right instruction regarding the robbery and murder counts associated with Levier and affirmed those counts of conviction. Ramsey I, 184 Or. App. at 474-75, 56 P.3d 484 (concluding that "nothing in the record, including defendant's testimony, implicates Levier in cheating defendant"). Petitioner maintains that his trial counsel should have presented evidence — including testimony from petitioner — implicating Levier in Mayes's cheating scheme to support a claim-of-right defense on the affirmed convictions. Pet'r Br. at 2 (arguing that "counsel was ineffective when she failed to introduce additional available evidence in support of the defense to robbery and burglary," including petitioner's "perception of the events").
The PCR court rejected this claim:
Resp't Ex. 156 at 6.
Petitioner maintains that this finding was not reasonable because he "did present evidence that he had an honest claim of right against Mr. Levier" through his PCR deposition testimony. For example, petitioner was asked "what additional evidence could trial counsel have presented regarding Mr. Levier?" and petitioner answered:
Resp't Ex. 153 at 40-41. Petitioner primarily questioned Levier's "unwillingness to come forward about what actually took place that night, and the reason he left, and the reason Mr. Mayes left as well." Resp't Ex. 153 at 41.
Resp't Ex. 153 at 41-42.
Notably, petitioner's PCR deposition testimony was based on facts discovered after the shooting, such as Levier's conduct after the shooting, Levier's lack of cooperation with investigators, and the testimony or statements of witnesses. Petitioner did not cite evidence showing that, at the time he approached Mayes and Levier, he believed that Levier was cheating or he was entitled to Levier's money. In fact, when asked at his PCR deposition whether it was "fair to say that you just don't know whether Mr. Levier took money from you?" petitioner answered, "No, I don't actually know. But I'm just saying from the way it looked they could have been in it together." Resp't Ex. 153 at 42. Accordingly, the PCR court reasonably found that petitioner did not present additional evidence to support a claim-of-right defense regarding the counts associated with Levier. See Or. Rev. Stat. § 164.035(1)(b) (in a prosecution for a crime involving theft, "it is a defense that the defendant acted under an honest claim of right, in that . . . the defendant reasonably believed that the defendant was entitled to the property involved").
Petitioner also argues that counsel should have asked petitioner more direct questions about Levier to elicit testimony that petitioner believed Levier may have been cheating. Because counsel did not to ask petitioner those direct questions, petitioner maintains that the record failed to contain sufficient evidence about his belief that Levier was cheating to support an honest claim-of-right defense. The record belies petitioner's argument.
During his direct and cross-examination, petitioner had numerous opportunities to testify that he believed Levier was involved in Mayes' alleged cheating. After counsel asked petitioner to tell the jury "What happened that night?" petitioner began recounting the events leading up to the shooting of Robinson. Tr. Vol. 10 at 35. Petitioner testified that he and Mayes were playing dice at the same table, and petitioner noticed Mayes was rolling the dice in a manner that he considered cheating.
Tr. Vol. 10 at 40-41. Petitioner then testified that Robinson approached the table, whispered something in Mayes's ear, and Mayes left the table. Tr. Vol. 10 at 42. Counsel continued:
Tr. Vol. 10 at 42-45.
Despite counsel's open-ended questions and opportunities to tell the jury what the "issue" was for him, petitioner did not testify that he believed Levier had helped Mayes cheat or that he had a claim of right to Levier's money. As a result, counsel could not have been deficient by failing to elicit testimony that was not forthcoming.
Accordingly, the PCR court's decision on petitioner's second ground for relief was neither contrary to nor an unreasonable application of Strickland.
In his third ground for relief, petitioner again asserts that his trial counsel failed to introduce evidence supporting a claim-of-right defense with respect to the counts associated with Levier. Specifically, petitioner argues that counsel should have introduced the statement of David Knight, a witness who was present at the after-hours club, indicating that petitioner had accused Mayes and Levier of being on the "same team" when he approached them. Petitioner maintains that if this statement had been in the record, the Oregon Court of Appeals would have found that petitioner was entitled to a claim-of-right instruction on counts associated with Levier and would have reversed those convictions as well. In support of this claim, petitioner submits three documents that were not presented to the PCR court: 1) a report prepared by trial counsel's investigator on November 22, 1999, memorializing his interview with Knight; 2) an affidavit from Knight signed on June 29, 2018, indicating he would have testified consistent with his statement had he been reminded of it; and 3) an affidavit from current counsel's investigator signed on July 8, 2018, explaining why Knight's affidavit could not have been obtained earlier. Pet.'s Br. Ex. 1 (ECF No. 92-1); Pet'r Exs. 2 and 3 (ECF No. 112-1).
Petitioner and respondent disagree about 1) whether this claim was raised in the PCR proceeding; 2) whether the claim is "new" or simply a reiteration of petitioner's second ground for relief; and 3) whether this Court may review this claim and the new evidence petitioner presents to support it.
Respondent maintains that petitioner raised this claim — the failure to adequately crossexamine witnesses — before the PCR trial court but not on PCR appeal, and it is therefore procedurally defaulted. Resp't Reply at 3-5 (ECF No. 103); see 28 U.S.C. § 2254(b)(1)(A) (a federal habeas petitioner must exhaust state court remedies); Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam) (a petitioner must "fairly present" his federal claims to the State's highest court "to give the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights."). Alternatively, respondent contends that this claim is simply a reiteration of petitioner's second ground for relief based on evidence that was not developed during the PCR proceeding and is not reviewable in this habeas action. Resp't Reply at 6 ("petitioner's new claim is really a reassertion of Claim (b), supported with a new document"), 15-17; 28 U.S.C. § 2254(e)(2) (limiting review of new evidence to support a claim presented to the state courts); Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (holding that the review of state court decisions under § 2254(d)(1) "is limited to the record that was before the state court that adjudicated the claim on the merits").
Petitioner maintains that evidence of Knight's statement places his second ground for relief in a "significantly different and substantially improved evidentiary posture" so as to establish a "new" claim excepted from Pinholster's prohibition and the standards of review under §§ 2254(d)(1) and (e)(2). Pet'r Sur-Reply at 2-3 (ECF No. 107); Dickens v. Ryan, 740 F.3d 1302, 1320-21 (9th Cir. 2014) (en banc) (explaining that Pinholster's prohibition against federal review of new evidence "applies only to claims previously `adjudicated on the merits in State court proceedings,'" and not to claims "fundamentally altered" by new evidence).
Petitioner concedes that this claim, if "new," is unexhausted and procedurally barred absent a showing of cause and prejudice. Pet'r Br. at 28; Dickens, 740 F.3d at 1318 ("A claim has not been fairly presented in state court if new factual allegations . . . place the case in a significantly different and stronger evidentiary posture than it was when the state courts considered it.") (citations omitted). Nonetheless, petitioner maintains that his default is excused by PCR counsel's ineffective assistance in failing to introduce Knight's statement during the PCR proceeding, and this Court may review the new evidence to determine whether PCR counsel's performance was constitutionally deficient. See Martinez v. Ryan, 556 U.S. 1, 17 (2012) (holding that procedural default "will not bar" a "substantial" ineffective assistance of trial counsel claim if post-conviction counsel rendered ineffective assistance by failing to raise or develop the claim); Dickens, 740 F.3d at 1321 (stating that § 2254(e)(2) "does not bar a hearing before the district court to allow a petitioner to show `cause' under Martinez").
Assuming without deciding that petitioner's third ground for relief is "new" and his new evidence is reviewable under Martinez, petitioner fails to establish that PCR counsel's ineffective assistance excuses his procedural default. In addition to showing the ineffective assistance of post-conviction counsel, "Martinez requires that a petitioner's claim of cause for a procedural default be rooted in `a potentially legitimate claim of ineffective assistance of trial counsel.'" Lopez v. Ryan, 678 F.3d 1131, 1137-38 (9th Cir. 2012) (quoting Martinez, 566 U.S. at 9). In other words, petitioner must demonstrate that his ineffective assistance of trial counsel claim is "a substantial one" and "has some merit." Martinez, 556 U.S. at 14.
According to petitioner's new evidence, on November 10, 1999, counsel's investigator interviewed and obtained statements from Knight, who was present at the after-hours club on the night of the shooting. Knight told the investigator that he and a companion decided to join petitioner and his friend at the after-hours club. Knight admitted that "he had been drinking" and "was intoxicated at the time," though he "remembered that everyone was losing money to an older guy wearing glasses." Pet'r Br. Ex. 1 at 2. Knight stated that the older man with glasses eventually left the table, along with another "taller older man," and the man with glasses began counting his money. Knight remembered petitioner yelling at "the two older men" and "accusing them of being on the `same team'" before pulling out the gun. Id.
During his direct examination on December 1, 1999 — only three weeks after the interview with trial counsel's investigator — Knight testified that he saw petitioner approach an older gentleman who had been winning "most of the money" at the after-hours club. Tr. Vol. 7. at 55-57.
Tr. Vol. 7 at 57-58.
On cross-examination, petitioner's counsel asked Knight whether people at the dice game talked about cheating.
Tr. Vol. 7 at 75. Petitioner's counsel also asked Knight about petitioner's interaction with Mayes and Levier:
Tr. Vol. 7 at 76. Counsel did not question Knight about his previous statement to the investigator and did not recall Knight as a defense witness to raise this issue.
Petitioner contends that counsel's failure to "refresh" Knight's memory about his statement to the investigator constitutes deficient performance because his testimony would have provided evidence to support a claim-of-right defense regarding Levier. I disagree and find that petitioner fails to rebut the "strong presumption" that trial counsel's decision was "sound trial strategy." Strickland, 466 U.S. at 689.
Based on the transcript at trial, counsel apparently was in possession of the investigator's report containing Knight's statements and utilized it during her cross-examination of Knight. See Tr. Vol. 7 at 79-80 (discussion between the trial court and counsel referring to a report of Knight's interview with counsel's investigator that had not been reviewed by the prosecutor). Petitioner does not present an affidavit from petitioner's counsel indicating why she did not ask Knight whether he heard petitioner accuse Mayes and Levier of being on the "same team," and petitioner does not present other evidence to show that counsel had no good reason to ignore the statement Knight provided to her investigator.
Regardless, based on the record before the court, I find that counsel was not deficient by failing to introduce Knight's statement at trial, for the simple reason that Knight's statement directly contradicted petitioner's own testimony.
As noted above, on direct examination, petitioner did not testify that he accused Mayes and Levier of being on the "same team" or made any type of comment to Levier. Instead, petitioner testified that he spoke solely with Mayes and "never had a conversation with Mr. Levier at all." Tr. Vol. 10 at 44. On cross-examination, petitioner again was questioned about his interactions with Mayes and Levier:
Tr. Vol. 11 at 41-44. Petitioner also testified that he "didn't take any money" from Mayes or Levier.
Tr. Vol. 11 at 51-52.
In other words, petitioner's testimony was directly at odds with Knight's statement that petitioner accused Mayes and Levier of being on the "same team." Petitioner repeatedly emphasized that he confronted only Mayes about his money, never had a conversation with Levier, and was not "paying attention to" Levier. Petitioner was also insistent that he did not rob Levier (or Mayes for that matter) and did not attempt to recover money from Levier. "Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant." Strickland, 466 U.S. at 691. In light of petitioner's version of events, trial counsel may have reasonably believed that introducing Knight's contradictory statement would hurt petitioner's case more than help it, particularly if Knight had made other statements inconsistent with that given to counsel's investigator. See Tr. Vol. 7 at 60 (prosecutor asking Knight, "Do you recall having a conversation with detectives in this case about what you actually heard [the night of the shooting], sir?").
Granted, in light of the Court of Appeal's decision, the risk of introducing Knight's statement might have been warranted. However, counsel cannot be tasked with anticipating a future ruling on appeal and this Court cannot view counsel's actions in hindsight. "Strickland does not mandate prescience, only objectively reasonable advice under prevailing professional norms." Sophanthavong v. Palmateer, 378 F.3d 859, 870 (9th Cir. 2004); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (finding that counsel "cannot be required to anticipate decisions" in subsequent cases). Given the circumstances, trial counsel's failure to introduce a witness statement wholly inconsistent with her client's sworn testimony "might be considered sound trial strategy." Strickland, 466 U.S. at 689.
Accordingly, petitioner does not overcome the "strong presumption" that trial counsel's conduct fell "within the wide range of reasonable professional assistance" in order to establish a substantial claim of ineffective assistance. Strickland, 466 U.S. at 689; see also Martinez, 566 U.S. at 14. Absent a substantial claim, petitioner cannot "show that PCR counsel's failure to raise claims of ineffective assistance of trial counsel was such a serious error that PCR counsel `was not functioning as the "counsel" guaranteed' by the Sixth Amendment." Sexton v. Cozner, 679 F.3d 1150, 1159 (9th Cir. 2012) (quoting Strickland, 466 U.S. at 687). Petitioner's procedural default is not excused, and he is not entitled to habeas relief.
Petitioner's Motion for Leave to File (ECF No. 112) is GRANTED, and the Amended Petition for Writ of Habeas Corpus (ECF No. 91) is DENIED. A Certificate of Appealability is denied on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2).
