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Phandanouvong v. Coursey

United States District Court, District of Oregon, Portland Division

December 15, 2014

VISITH TOBY PHANDANOUVONG, Petitioner,
v.
RICK COURSEY, Respondent.

Anthony D. Bornstein Assistant Federal Public Defender Attorney for Petitioner

Ellen F. Rosenblum Attorney General Samuel A. Kubernick Assistant Attorney General Department of Justice Attorneys for Respondent

OPINION AND ORDER

Garr M. King, United States District Judge

Petitioner, currently an inmate at Oregon State Penitentiary, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons below, I deny his petition [2] and dismiss this proceeding with prejudice.

PROCEDURAL BACKGROUND

A jury convicted petitioner of Murder with a Firearm and Unlawful Use of a Weapon for the October 24, 2004 shooting of Ernest Duncan. Just before the trial started, the trial judge denied petitioner’s motions to substitute counsel and reset the trial. On November 5, 2009, the trial court sentenced petitioner on the murder conviction to life imprisonment with the possibility of parole after 25 years’ incarceration and, on the unlawful use of a weapon conviction, to six months’ incarceration concurrent to the sentence on the murder conviction.

On direct appeal, petitioner raised claims based on the trial judge’s denial of his choice of counsel and admission of particular evidence. The Oregon Court of Appeals affirmed the trial court without opinion, and the Oregon Supreme Court denied his petition for review.

Petitioner filed a petition for post-conviction relief (“PCR”) alleging a claim of ineffective assistance of trial counsel on numerous grounds, including failing to properly preserve the basis for petitioner’s request to retain counsel. After a hearing, the PCR trial court denied relief. Petitioner appealed the decision on the grounds of ineffective assistance of counsel for failing to present expert testimony on intoxication and the ability to form a specific intent. The Oregon Court of Appeals affirmed the PCR trial court without opinion, and the Oregon Supreme Court denied his petition for review.

Petitioner then timely filed this petition for habeas corpus in federal court.

LEGAL STANDARDS

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) was “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). The state court’s findings of fact are presumed correct, and a petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Section 2254(d) is a “‘guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.’” Hibbler v. Benedetti, 693 F.3d 1140, 1148 (9th Cir. 2012) (quoting Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786 (2011)) (additional internal quotation omitted), cert. denied, 133 S.Ct. 1262 (2013). “‘[T]he question under AEDPA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable–a substantially higher threshold.’” Id. at 1146 (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)).

A state court acts “contrary to” clearly-established federal law if it arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if it decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495 (2000).

A state court decision is an “unreasonable application” of clearly-established federal law if the court: (1) identifies the correct governing legal principle from Supreme Court decisions, but unreasonably applies that principle to the facts of the prisoner’s case; or (2) either unreasonably refuses to extend the governing legal principle or unreasonably extends it to a new context where it should not apply. Id. at 407, 413. Under this standard of review, a federal court may not issue a writ of habeas corpus because it concludes the state court applied clearly-established federal law erroneously or incorrectly. The state court decision must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166 (2003).

DISCUSSION

Petitioner alleges two grounds for relief:

Ground One: 1. Did the trial Court erroneously deprive Defendant of his choice of counsel? 2. Did the trial court erroneously admit into evidence prior bad act evidence? 3. The Trial Court’s Error in Admitting the Proffered Evidence was ...

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