United States District Court, D. Oregon
TERESA A. HAMPTON, Federal Defender Services of Idaho, Capital Habeas Unit, Boise, ID, Attorney for Petitioner.
ELLEN F. ROSENBLUM, Oregon Attorney General, CAROLYN ALEXANDER, TIMOTHY A. SYLWESTER, Assistant Attorneys General, Department of Justice, Appellate Division, Salem, OR, Attorneys for Respondent.
OPINION AND ORDER
ANNA J. BROWN, District Judge.
The parties' briefing is complete on the limited issues as to whether Petitioner can establish prejudice due to the missing portion of the Second Penalty-Phase Voir Dire Transcript and whether he can establish cause and prejudice to excuse procedural default of certain claims of ineffective assistance of trial counsel pursuant to Martinez v. Ryan, 132 S.Ct. 1309 (2012). For the reasons that follow, the Court DISMISSES without prejudice certain defaulted claims as specified herein and will address other specified claims on the merits in due course.
I. Missing Transcript
In Jackson v. Renico, 179 F.App'x 249, 252 (6th Cir. 2006), the Sixth Circuit Court of Appeals explored the issue of missing trial transcripts in depth. The court reasoned as follows:
Although the Supreme Court has held that the due process clause is violated if an indigent defendant is denied a transcript, Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. [__] 891 (1956)(plurality opinion), that a state may not block an indigent petty offender's access to an appeal afforded others, Mayer v. Chicago, 404 U.S. 189, 195-96, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971), and that a new court-appointed attorney who represents an indigent [defendant] on appeal (but not at trial) is entitled to the entire transcript at public expense, Hardy v. United States, 375 U.S. 277, 279-80, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964), it has never held that the absence of a portion of a trial transcript automatically entitles the defendant to a retrial. In fact, in Mayer, the Supreme Court acknowledged that a "complete" record did not necessarily require a verbatim transcript, so long as the state found another means of providing an adequate record. Mayer, 404 U.S. at 194, 92 S.Ct. 410. In other words, " Mayer does not stand for the proposition, implicit in [Jackson's] argument, that where a portion of a trial transcript is missing and unobtainable, and where a defendant makes a claim that could possibly implicate that portion of the transcript, a retrial is always necessary." Scott v. Elo, 302 F.3d 598, 604 (6th Cir. 2002)(rejecting that the failure to transcribe a significant portion of the closing argument denied the petitioner due process).
This Court has held that federal habeas relief based on a missing transcript will only be granted where the petitioner can show prejudice. Bransford v. Brown, 806 F.2d 83, 86 (6th Cir. 1986). In Bransford, as in this case, this Court considered whether the unavailability of transcripts of jury instructions was a per se violation of due process. The trial court in that case had determined that the transcript of the instructions was irretrievable. The petitioner made no specific allegation of error, however. The Court held that there was no per se violation of prejudice, and stated that a petitioner "must show prejudice resulting from the missing transcripts." Id. at 86. The Court added that "[a]lthough this court recognizes the inherent difficulty in demonstrating prejudice where the transcripts are missing, petitioner must present something more than gross speculation that the transcripts were requisite to a fair appeal." Id.
Similarly, the Ninth Circuit has held a petitioner has the burden of establishing prejudice from the lack of a complete transcript in light of the alleged value of the transcript and the availability of alternatives that would fulfill the same functions. Madera v. Risley, 885 F.2d 646, 648-49 (9th Cir. 1989). See also United States v. Wilson, 16 F.3d 1027, 1031 (9th Cir. 1994 (when the court reporter failed to record all proceedings verbatim, the defendant had to demonstrate that specific prejudice resulted in order to obtain reversal).
II. "Cause and Prejudice" under Martinez v. Ryan
A habeas petitioner does not have a federal constitutional right to the effective assistance of counsel during state postconviction proceedings. Pennsylvania v. Finley, 481 U.S. 551 (1987). See also Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). As a result, the general rule is that any errors of counsel during a post-conviction action cannot serve as a basis for cause to excuse a procedural default. Coleman v. Thompson, 501 U.S. 722, 752 (1991).
In Martinez the Supreme Court established a limited exception to the general rule that applies only to Sixth Amendment claims of ineffective assistance of counsel. The Court held as a matter of equity that inadequate assistance of post-conviction counsel or lack of counsel "at initial-review collateral review proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." 132 S.Ct. at 1315. In Nguyen v. Curry the Ninth Circuit found the Martinez holding included claims of ineffective assistance of direct-appeal counsel. 736 F.3d 1287, 1293 (9th Cir. 2013), In Trevino v. Thaler the Supreme Court held as follows:
We consequently read Coleman as containing an exception, allowing a federal habeas court to find "cause, " thereby excusing a defendant's procedural default, where (1) the claim of "ineffective assistance of trial counsel" was a "substantial" claim; (2) the "cause" consisted of there being "no counsel" or only "ineffective" counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the "initial" review proceeding in respect to the "ineffective-assistance-of-trial-counsel claim"; and (4) state law requires that an "ineffective assistance of trial counsel [claim]... be raised in an initial-review collateral proceeding."
133 S.Ct. 1911, 1918 (2013)(citing Martinez, 132 S.Ct. at 1318-19, 1320-21)(alterations in original)).
A. Prong One: Substantiality of Underlying Claim of Ineffective Assistance of Counsel
For the Martinez exception to apply a petitioner must bring forward facts that demonstrate his underlying claim of ineffective assistance of counsel is substantial. The United States Supreme Court has defined "substantial" as a claim that "has some merit." Martinez, 132 S.Ct. at 1318 (comparing the substantiality question with the standard for certification of appealability set out in Miller-El v. Cockrell, 537 U.S. 322 (2003)). Stated inversely, a claim is " in substantial" if "it does not have any merit or... is wholly without factual support." Id. at 1319. Determining whether a claim of ineffective assistance of counsel is substantial requires a federal court to examine the claim under Strickland v. Washington, 466 U.S. 668 (1984).
The Supreme Court has established a two-part test to determine whether a petitioner has received ineffective assistance of counsel. First, the petitioner must show his lawyer's performance fell below an objective standard of reasonableness. Id. at 686-87. Due to the difficulties in evaluating counsel's performance, courts must operate under a strong presumption that counsel's conduct falls within the "wide range of reasonable professional assistance." Id. at 689. Second, the petitioner must show his lawyer's performance prejudiced the defense. The appropriate test for prejudice is whether the defendant can show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id. at 696.
These standards from Strickland for determining deficient performance and prejudice are the same standards for an eventual review of the merits of the underlying claim of ineffective assistance of counsel. The issue whether a claim of ineffective assistance is substantial under Martinez, however, is not the same as a merits review. Instead it is more akin to a preliminary review of a Strickland claim for purposes of determining whether a certificate of appealability should issue. Martinez, 132 S.Ct. at 1318-19. A court, therefore, may conclude a claim is substantial when a petitioner has shown resolution of the merits of the Strickland claim would be "debatable amongst jurists of reason" or that the issues presented are "adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 336 (internal quotes omitted). Thus, to determine whether a claim is substantial, Martinez requires the district court to review (but not to decide) whether trial or direct appellate counsel's acts or omissions resulted in deficient performance with a reasonable probability of prejudice. Under Martinez the district court determines only whether the issues are sufficiently deserving to encourage further examination and whether resolution of the merits of the claim would be debatable among jurists of reason.
B. Prong Two: Lack of PCR Counsel or Ineffective Assistance of PCR Counsel
In addition to showing that the underlying claim of ineffective assistance of counsel is substantial, a petitioner seeking to invoke Martinez also must show either that he did not have counsel on the initial post-conviction review (PCR) or that his PCR counsel was "ineffective under the standards of Strickland. " 132 S.Ct. at 1318. See also Trevino, 133 S.Ct. at 1918. If the PCR "attorney in the initial-review collateral proceeding did not perform below constitutional standards, " his or her error does not constitute "cause." 132 S.Ct. at 1319. Thus, any error or omission by the petitioner's PCR counsel will not satisfy the "deficient performance" standard under Martinez. Moreover, PCR counsel "is not necessarily ineffective for failing to raise even a nonfrivolous claim." Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012).
If PCR counsel's performance is deficient, then the court must consider whether that performance was prejudicial under Strickland. See Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014). In other words, the Strickland standards for analyzing deficient performance apply with equal force to PCR counsel in the context of a Martinez argument. Even if a petitioner shows his ineffective-assistance claims are substantial under the first Martinez prong, he still must show that post-conviction counsel rendered deficient performance and, "but for post-conviction counsel's failure to raise [the substantial ineffective assistance] claims, there is a reasonable probability that the result of the post-conviction proceeding would have been different" under the second prong. Id. at 378. At times these two inquiries will collapse into one. Id. at 382 ("Under the circumstances of this case, if [the petitioner] succeeds in demonstrating that he was prejudiced by the failure of his postconviction counsel, he will necessarily have established that there is at least some merit' to his claim that he suffered ineffective assistance of counsel at resentencing.").
The court may address either inquiry first, and resolution of one prong may obviate the need to address the other. See Martinez, 132 S.Ct. at 1319 ("When faced with the question whether there is cause for an apparent default, a State may answer the ineffective-assistance-of-trial-counsel claim is insubstantial, i.e., it does not have any merit or it is wholly without factual support, or the attorney in the initial-review collateral proceeding did not perform below constitutional standards.").
C. Prongs Three and Four: Initial PCR Proceeding and State Law Requiring Claims of Ineffective Assistance of Counsel To Be Brought in Initial Review Collateral Proceeding
The third prong (establishing the Martinez exception applies only to lack of counsel or ineffectiveness of counsel in the initial post-conviction review proceeding) and the fourth prong (establishing state law must require claims of ineffective assistance of counsel to be brought in an initial-review collateral proceeding rather than on direct appeal) are rarely in dispute and are not at issue here. With the exception of Claims VI.F and VI.G, which are claims of trial-court error pertaining to the validity of Petitioner's waiver of Christopher Burris's alleged deficient representation, Petitioner's claims involve allegations that initial PCR counsel was ineffective for failing to raise certain claims of ineffective assistance by guilt-phase and second penalty-phase trial counsel. Moreover, the fourth prong of Martinez applies in Oregon because under Oregon law the initial PCR proceeding is the first forum in which a petitioner may claim ineffective assistance of counsel based on matters outside of the record.
I. Prejudice Arising From Missing Portion of Second Penalty-Phase Voir Dire Transcript
Petitioner concedes the Court cannot presume prejudice based solely on the fact that a portion of the second penalty-phase voir dire transcript is missing. Nevertheless, Petitioner asserts: (1) It is evident that the transcript is not sufficiently complete to allow for a constitutionally fair review of Petitioner's death sentence and (2) a review of the available partial transcript reveals counsel rendered constitutionally ineffective assistance during voir dire and Petitioner was prejudiced by this because one or more "substantially impaired" jurors sat on his jury. Petitioner maintains he has presented "evidence of specific incidents indicating bias among seated jurors." Petitioner's Br. [#330] at 17.
Respondent argues the record does not even support an inference that any seated jurors were biased in favor of the death penalty. To the contrary, Respondent maintains the record reflects the seated jurors for whom there is not an available voir dire transcript would listen to the facts of the case, would be reluctant to impose a death sentence, and would not impose a death sentence if the evidence did not support it. In addition, Respondent insists the record reflects counsel appropriately used voir dire to educate the jury about the requirements under the law to impose a death sentence, secured each juror's agreement that he or she would impose a life sentence if the evidence did not support the findings required under the law to impose death beyond a reasonable doubt, appropriately used peremptory challenges, and knew how to use a "for cause" challenge.
In summary, Respondent states on this record that Petitioner cannot even support an inference that any jurors with a "death bias" were seated on the jury, and, therefore, Petitioner cannot establish he suffered prejudice based on the missing portion of the voir dire transcript that requires the Court to excuse his default of any related claims.
A. Death-Penalty Jurors and "Substantial Impairment"
"A juror in a capital case is appropriately excluded where the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Gentry v. Sinclair, 705 F.3d 884, 912 (9th Cir. 2013)(quoting Wainwright v. Witt, 469 U.S. 412, 424 (1985)(internal quotation omitted)). A juror's personal objection or belief that the death penalty is wrong is an insufficient ground to exclude the juror for cause as long as the juror states he or she can set aside this objection and/or belief. See Lockhart v. McCree, 476 U.S. 162, 176 (1986). "Although it is impermissible to exclude a juror who is not substantially impaired, a juror's bias does not have to be proven with unmistakable clarity.'" Gentry, 705 F.3d at 912 (citing Witt, 469 U.S. at 424).
Here Petitioner seeks to show that one or more substantially impaired jurors were seated on his jury. He attempts to prove this primarily by comparing the answers in the pre- voir dire juror questionnaires of several seated jurors for whom there is not an available voir dire transcript ("the no voir dire jurors") to the questionnaire answers of potential juror Edward Bolger, who it appears the State dismissed via peremptory challenge.
Petitioner argues Bolger "was an example of a juror whose answers evidenced substantial impairment and voir dire indicated he was subject to challenge for cause." For example, in his questionnaire Bolger answered "don't know" when he was asked whether he held some view of the criminal law that would impair his ability to be fair and impartial and "not sure" when asked whether a verdict in the guilt phase would make him strongly inclined to impose a death sentence. In Question 38 Bolger disagreed our society would be stronger if the death penalty were imposed more often, strongly agreed he personally is in favor of capital punishment, and agreed he could vote for the death sentence in some cases if he were on a jury. Bolger also strongly disagreed most murders ought to receive the death penalty or murder is murder and understanding motives and circumstances are not important. The Court notes these responses to Question 38 in and of themselves do not support a conclusion that Bolger was substantially impaired within the meaning of Witt. During voir dire, however, Bolger confirmed he believed in capital punishment and appeared intent on advising the Court and counsel that he was leaning prematurely toward a death sentence:
Q. Well, the purpose of this hearing is for you to hear those things so that you can decide if death penalty, true life in prison, or life with the possibility of parole after 30 years?
[Bolger]. I understand what you are just saying, and if I'm put on, I will do what I can. But I still want you to know my personal feelings right now before I hear any of the arguments pro or ...