United States District Court, D. Oregon
Aiken United States District Judge.
brief on exhaustion and procedural default, respondent
identified five claims as procedurally defaulted and thus not
subject to federal habeas review: First
Claim "Death Qualification" of
Petitioner's Jurors was Unconstitutional;
Second Claim Death-Qualification
Voir Dire Violated the Prospective Jurors' Constitutional
Rights and Trial Counsel was Ineffective in Failing to Object
on this Ground; Fourth Claim The
Trial Court Wrongly Discharged Prospective Jurors Nos. 4 and
79, and Trial Counsel Failed to Object to the Dismissal of
these Life-Prone Jurors; Sixteenth
Claim Cruel and Unusual Punishment;
and Seventeenth Claim Cumulative
Impact of Errors.
petitioner concedes that the aforementioned claims are
procedurally defaulted, he maintains that in accordance with
Martinez v. Ryan, 566 U.S. 1 (2012) he can show
cause and prejudice sufficient to excuse their default based
on his post-conviction ("PCR") counsel's
failure to raise related and meritorious ineffective
assistance of trial and appellate counsel
Applicable Law on Procedural Default and the
general matter, habeas review of a defaulted claim is barred
unless a petitioner "can demonstrate cause for the
default and actual prejudice as a result of the alleged
violation of federal law." Coleman v. Thompson,
501 U.S. 722, 750 (1991). Ordinarily, "cause" to
excuse a default exists if a petitioner can demonstrate that
"some objective factor external to the defense impeded
counsel's efforts to comply with the State's
procedural rule." Id. at 753. In
Coleman, the Court held that ineffective assistance
of counsel in post-conviction proceedings does not establish
cause for the procedural default of a claim. Id.
Martinez, however, the Court established a
"narrow exception" to the rule announced in
Where, under state law, claims of ineffective assistance of
trial counsel must be raised in an initial-review collateral
proceeding, a procedural default will not bar a federal
habeas court from hearing a substantial claim of ineffective
assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that
proceeding was ineffective.
566 U.S. at 17; see also Trevino v. Thaler, 133
S.Ct. 1911, 1918 (2013) (noting that Martinez may
apply to a procedurally defaulted trial-phase ineffective
assistance of counsel claim if "the claim ... was a
'substantial' claim [and] the 'cause'
consisted of there being 'no counsel' or only
'ineffective' counsel during the state collateral
review proceeding" (quoting Martinez, 566 U.S.
Ninth Circuit has held that to demonstrate cause and
prejudice under Martinez sufficient to excuse the
procedural default, a petitioner must make two showings.
First, to establish cause, he must show that his PCR counsel
was ineffective under Strickland v. Washington, 466
US. 668 (1984) which requires him to show that PCR
counsel's performance was deficient and that there was a
reasonable probability that, absent the deficient
performance, the result of the PCR proceedings would have
been different. Clabourne v. Ryan, 745 F.3d
362, 377 (9th Cir. 2014). Determining whether there was a
reasonable probability of a different outcome "is
necessarily connected to the strength of the argument that
trial counsel's assistance was ineffective."
Id. at 377-78. Second, to establish prejudice, the
petitioner must show that his "underlying
ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner must
demonstrate that the claim has some merit." Id.
Martinez, a claim is substantial if it meets the
standard for issuing a certificate of appealability.
Martinez, 466 U.S. at 14 (citing Miller-El v.
Cockrell, 537 U.S. 322 (2003)). According to that
standard, "a petitioner must show that reasonable
jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve
encouragement to proceed further." Detrich v.
Ryan, 740 F.3d 1237, 145 (9th Cir. 2013) (quoting
Miller-El, 537 U.S. at 336).
First Claim:"Death Qualification" of
Petitioner's Jurors was
alleges in his First Claim that the trial court's death
qualification of jurors at his trial violated his
constitutional rights. In his Petition , pp. 10');">p. 10-11, he
specifically notes that his trial counsel "filed a
motion to prohibit death qualification of jurors, " but
that the trial court denied the motion. In subsequent
briefing, however, petitioner suggests that trial counsel
rendered constitutionally deficient performance when he
failed to object based on federal law to the court's use
of death qualification. To the extent that the Court would
find that this claim is one of trial court error only, he
seeks leave to amend his petition to add an ineffective
assistance of trial counsel claim "challenging prior
counsel's failure to properly present the [federal]
claim." Sur-reply [57');">57');">57');">57], p. 3.
on this question of default, petitioner contends that despite
his failure to fairly present this federal claim to the
Oregon Supreme Court, that court denied it on the merits when
it referenced its earlier decisions discussing related
challenges, including federal challenges, to Oregon's
death penalty scheme. He further maintains that there is no
doubt as to how the Oregon Supreme Court, exercising its
discretion to consider the federal claim, would have ruled.
Accordingly, he maintains that where the Oregon Supreme Court
ruled on the merits of the federal claim, despite his failure
to properly present it to that court, there is no procedural
and with regard to his proposed ineffective assistance of
trial counsel claim, petitioner argues that this underlying
ineffective assistance claim is "substantial" for
purposes of Martinez because the evidence he
presents in the Petition shows that death-qualified jurors
are significantly more conviction-prone than
non-death-qualified jurors and that in Oregon they are
"organized to convict". Cf. Lockhart v.
McCree, 6 U.S. 162');">476 U.S. 162 (1986)(Court relied on its refusal
to find that the empirical evidence did anything more than
establish that death qualification produced juries
somewhat more conviction-prone than
I reject petitioner's contention that the Oregon Supreme
Court resolved this federal claim on the
merits. I have carefully reviewed the record. In
petitioner's automatic direct appeal he alleged:
"Death qualification" is the procedure allowing the
prosecution to challenge for cause jurors who oppose the
death penalty. Death qualification results in the exclusion
of jurors from the guilt phase of the trial who are
objectionable to the state only because they will not vote to
impose the death penalty. Comprehensive social scientific
studies have demonstrated that a jury selected after such a
process is substantially more conviction prone than juries in
other cases. The studies also show that the selection process
deprives a defendant of a jury chosen from a cross section of
the community. This procedure violates Article I,
section 11 of the Oregon Constitution, because it denies a
defendant an impartial jury drawn from a representative cross
section of the community.
DR 18-3, Ex. 259, p. 157');">57');">57');">57 (emphasis added) . In
respondent's answering brief, he merely quoted
petitioner's above arguments regarding death
qualification and cited to Oregon Supreme Court authority
rejecting those arguments. DR 18-4, Ex. 269, p. 10');">p. 104. The
parties agree that petitioner did not fairly present a
federal death-qualification claim to the Oregon
Supreme Court on direct review.
denying relief on the death-qualification claim that
petitioner did present, the Oregon Supreme Court held:
Finally, defendant contends that the trial court erred in
overruling his demurrer attacking the constitutionality of
Oregon's death-penalty scheme. Defendant recognizes that
his challenges to Oregon's death penalty have been
rejected by this court in previous death penalty appeals.
See, e.g., State v. Guzek, 310 Or 299, 797 P.2d 1031
(1990); State v. Montez, 309 Or 564, 789 P.2d 1352
(1990); State v. Wagner, 309 Or 5, 786 P.2d 93
(1990). We decline to reconsider these issues. See State
v. Barone, 328 Or 68, 98, 963 P.2d 667 (1998)(declining
to revisit issues previously decided); State v.
Hayward, 327 Or 397, 414, 963 P.2d 667 (1998)(same).
We hold that the trial court did not err in overruling
DR 18-4, Ex. 271, p. 37.
is correct that fair presentation is not the only mode of
establishing exhaustion of state remedies. Rather, where the
state courts have reached and passed on the merits of a
federal claim, regardless of whether the petitioner fairly
presented it to them, state remedies are exhausted as to that
claim. See Castillev. Peoples, 489 U.S.
346, 351 (1989) ("[i]t is reasonable to infer an
exception where the State has actually passed upon the
claim."); Greene v. Lambert,288 F.3d 1081,
1086 (9th Cir. 2002)("exhaustion does not require
repeated assertions if a federal claim is actually considered
at least once on the merits by the highest state
court"); Sandstxom v. Butterworth, 738 F.2d
1200, 1206 (11th Cir. 1984) ("[t]here is no better
evidence of exhaustion than a state court's actual
consideration of the ...