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Thompson v. Premo

United States District Court, D. Oregon

January 16, 2018

JEFF PREMO, Superintendent, Oregon State Penitentiary, Respondent.


          Ann Aiken United States District Judge.

         In his 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.

         While 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 claims.[1]

         I. Applicable Law on Procedural Default and the Martinez Exception

         As a 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.

         In Martinez, however, the Court established a "narrow exception" to the rule announced in Coleman:

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. at 17)).

         The 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.

         Under 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).

         II. Discussion

         A. First Claim:"Death Qualification" of Petitioner's Jurors was Unconstitutional

         Petitioner alleges in his First Claim that the trial court's death qualification of jurors at his trial violated his constitutional rights. In his Petition [43], 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.

         Moreover, 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 default.

         Alternatively, 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 non-death-qualified juries).

         First, I reject petitioner's contention that the Oregon Supreme Court resolved this federal claim on the merits.[2] 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.

         In 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 defendant's demurrer.

DR 18-4, Ex. 271, p. 37.

         Petitioner 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 ...

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