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Williams v. Belleque

United States District Court, D. Oregon

August 9, 2018

JEFFERY RAY WILLIAMS, Petitioner,
v.
BRIAN E. BELLEQUE, Superintendent, Oregon State Penitentiary, Respondent.

          Michael R. Snedeker Lisa R. Short Snedeker, Smith & Short Attorneys for Petitioner

          Ellen F. Rosenblum Attorney General Timothy A. Sylwester Michael S. Shin Assistant Attorneys General Department of Justice Attorneys for Respondent

          OPINION AND ORDER

          ROBERT E. JONES, UNITED STATES DISTRICT JUDGE

         Petitioner brings this capital habeas corpus action pursuant to 28 U.S.C. § 2254 in which he challenges his convictions and death sentence for aggravated murder. In this Opinion and Order, I resolve on the merits: (1) claims the parties agree were fairly presented to the Oregon courts; (2) claims for which the State waives its procedural default defense; and (3) certain claims I deem can be denied on the merits regardless of whether they are defaulted. See Lambrix v. Singletary, 520 U.S. 518, 524-25 (l997)(federal habeas court may bypass question of procedural default to deny claim on the merits); 28 U.S.C. § 2254(b)(2)("An application for writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."). I reserve my examination of the remaining claims, including whether Martinez v. Ryan, 566U.S. 1 (2012) excuses the default of certain claims or subclaims, pending final briefing from the parties.[1]

         I. PROCEDURAL BACKGROUND

         A. State Proceedings

         Petitioner was initially tried, convicted and sentenced to death in 1989. On direct review, the Oregon Supreme Court upheld petitioner's convictions but remanded the case for a new penalty-phase trial. See State v. Williams, 313 Or. 19, 828 P.2d 1006 (Williams I), cert, denied, 506 U.S. 858 (1992).

         In August 1993, the second penalty-phase jury again sentenced petitioner to death. On direct review, the Oregon Supreme Court upheld the death sentence. See State v. Williams, 322 Or. 620, 912 P.2d 364 (Williams II), cert, denied, 519 U.S. 854 (1996).

         Petitioner next filed for post-conviction relief ("PCR") in state court. The PCR court held an evidentiary trial and denied relief. Respondent's Exhibits 168 & 169. On appeal, the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Williams v. Palmateer, 184 Or.App. 761, 58 P.3d 244 (2002), rev. denied, 335 Or. 656');">335 Or. 656, 75 P.3d 899 (2003).

         B. Federal Proceedings

         On March 16, 2007, petitioner filed a Petition for Writ of Habeas Corpus [85]. At my request, the parties briefed several of petitioner's strongest claims in an effort to determine whether I could summarily resolve one or more of those claims in petitioner's favor on the current record and without further extensive proceedings. I denied petitioner's partial summary judgment motion on September 8, 2008. Thereafter, on September 13, 2010, 1 granted in part and denied in part the State's Motion for Partial Summary Judgment on procedural default grounds and directed further briefing from the parties on exceptions to procedural default. See Opinion and Order [199]. Due to a conflict bearing on the Oregon Federal Public Defender's ability to continue to represent petitioner, I appointed current counsel.

         On February 18, 2014, 1 granted petitioner's unopposed motion for leave to file an amended petition. The Amended Petition [314');">314');">314');">314');">314');">314');">314');">314');">314');">314');">314');">314');">314');">314');">314');">314] raises twenty-one (21) claims and numerous sub-claims. The parties have briefed the merits of these claims.

         II. Standard of Review

         An application for 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) "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). A state court's findings of fact are presumed correct and petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

         A state court decision is "contrary to . . . clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the "unreasonable application" clause, a federal habeas court may grant relief "if the state court identifies the correct legal principle from [the Supreme Court's] decisions, but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. The state court's application of clearly established law must be objectively unreasonable. Williams, 529 U.S. at 409-10. A federal habeas court reviews the state court's "last reasoned decision." Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).

         For petitioner's claims of ineffective assistance, discussed in sections A, B, C and H of this opinion, 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 that his lawyer's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 686-87 (1984). Due to the difficulties in evaluating counsel's performance, courts must indulge a strong presumption that the conduct falls within the "wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.

         Second, the petitioner must show that his lawyer's performance prejudiced the defense. The appropriate test for prejudice is whether the defendant can show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the trial.

         When considering ineffective assistance of counsel claims under 28 U.S.C. § 2254(d), "it is the habeas applicant's burden to show that the state court applied Strickland to the facts of his case in an objectively unreasonable manner." Woodford v. Visciotti, 537 U.S. 19, 25 (2002)(per curium). Moreover, where a state court has adjudicated an ineffective assistance of counsel claim on the merits, a habeas court's review of a claim under the Strickland standard is "doubly" deferential. Harrington v. Richter, 562 U.S. 86, 88-89 (2011); Knowles v. Mirzayance, 556 U.S. 1111, 123 (2009).

         III. Discussion

         As noted above, the Amended Petition raises 21 claims, along with numerous sub-claims.

         A. First Claim For Relief - Ineffective Assistance of Guilt-Phase Counsel

         1. Claim 1(A)(1) - Guilt-phase counsel failed to fully investigate both the guilt and sentencing phases of the case in order to prepare an adequate defense for petitioner's capital trial. No capital defense team can make a reasonable tactical decision about how to pursue a defense at either phase without first conducting an adequate investigation

         The parties agree that petitioner fairly presented this claim to the Oregon courts. However, for the reasons set forth in my prior Opinion and Order [120');">120], pp. 14-31, 1 conclude that he cannot prevail on this claim which generally alleges that guilt-phase counsel failed to fully investigate both phases of the case in order to prepare an adequate defense for petitioner's capital trial because he cannot demonstrate as a general matter that the PCR court's denial of this claim involved an objectively unreasonable application of Strickland. I note that in several of petitioner's discreet guilt-phase ineffective assistance of counsel ("IAC") subclaims set forth below he alleges specific investigative failings on counsel's part and challenges specific factual findings by the PCR court related to these alleged investigative failures. I will address those subclaims individually.

         Similarly, I have considered petitioner's arguments that no deference is due any of the PCR court's findings of fact or conclusions of law because that court improperly minimized its role in the post-conviction process and placed arbitrary limitations on petitioner's PCR counsel which created a wholly defective process. Having reviewed petitioner's extensive arguments, I decline to find that the entire post-conviction process was constitutionally defective. However, in the context of particular claims, where petitioner specifically challenges certain of the PCR court's findings of fact or conclusions of law on the basis that the process afforded him during his PCR proceedings denied him a constitutionally adequate avenue for presentation of particular claims, I will examine whether deference to the PCR court is warranted as to those individual claims.

         Based on the foregoing, I conclude that petitioner has failed to demonstrate that the PCR court's denial of this subclaim was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Court, or that it was based on an unreasonable determination of the facts in light of the evidence presented in State court. Accordingly, I deny it on the merits.[2]

         2. Claim 1(A)(2)(e) - Guilt-phase counsel failed to move to ensure that all bench conferences were recorded and failed to object when they were not. Counsel also failed to make a record of topics and results of the unrecorded bench conferences

         Relevant to this claim is the following PCR court finding of fact: "[t]he trial court did not discuss substantive issues in bench conferences." Petitioner does not challenge this factual finding.

         When a state chooses to provide for appellate review, it must provide a defendant with "a record of sufficient completeness to permit proper consideration of [his] claims" in order to satisfy the constitutional guarantees of due process and equal protection. Mayer v. City of Chicago, 404 U.S. 189, 193-94 (1971); Britt v. North Carolina, 404 U.S. 226, 227 (1971)("there can be no doubt that the State must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal"). However, a record of sufficient completeness "does not translate automatically into a complete verbatim transcript." Mayer, 404 U.S. at 194. Moreover, the Ninth Circuit adopted Britt's two criteria for determining whether the unavailability of a transcript violates due process: '"(1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought; and (2) the availability of alternative devices that would fulfill the same functions as a transcript.'" Madera v. Risley, 885 F.2d 646, 648 (9th Cir. 1989).

         Here, petitioner fails to contradict the strong presumption that counsel's performance fell within the wide range of reasonable professional assistance. On this record, I cannot conclude that counsel acted unreasonably in failing to move to have all bench conferences recorded. Moreover, I owe deference to the PCR court's factual finding that nothing substantive took place during the unrecorded bench conferences that would have been material to petitioner's appeal and that was not mentioned elsewhere in the record.[3] For these same reasons, petitioner cannot demonstrate that counsel was ineffective in failing to make a record of topics and results of all bench conferences. Finally, petitioner fails to demonstrate that counsel's alleged failures prejudiced him by identifying an issue or claim that he could have successfully pursued had counsel moved to have bench conferences recorded and/or made a record of topics and results covered. Therefore, I conclude that any denial of relief by the PCR court on this ineffective assistance claim was neither contrary to nor did it involve an unreasonable application of, clearly established Federal law, as determined by the Supreme Court, nor was it based on an unreasonable determination of the facts in light of evidence presented in the PCR proceeding. Alternatively, on de novo review I would conclude that this subclaim is without merit.

         3. Claim 1 (A)(2)(f) - Guilt-phase counsel failed to move for change of venue from Coos County where he could not get a fair trial before an impartial jury

         The PCR court made the following relevant Findings of Fact:

27. Counsel did not move to change venue because the case had not created any amount of undue local publicity.
28. The trial court commented on how few of the potential jurors said during voir dire that they had heard anything about the case.
29. Petitioner presented no evidence to support his claim that the case had generated so much publicity that a change of venue would have been warranted.

         Respondent's Exhibit 168, p. 5.

         In Hayes v. Ayers, 632 F.3d 500, 507-11 (9th Cir. 2011), the court outlined the law governing due process violations arising out of a denial for change of venue:

The Sixth and Fourteenth Amendments "guarantee[] to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). When a trial court is "unable to seat an impartial jury because of prejudicial pretrial publicity or an inflamed community atmosphere[, ]... due process requires that the trial court grant defendant's motion for a change of venue." Harris v. Pulley, 885 F.2d 1354, 1361 (9th Cir. l988)(citing Rideau v. Lousiana, 373 U.S. 723, 726, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963)).
In this circuit, we have identified "two different types of prejudice in support of a motion to transfer venue: presumed or actual." United States v. Sherwood, 98 F.3d 402, 410 (9th Cir. 1996). Interference with a defendant's fair-trial right "is presumed when the record demonstrates that the community where the trial was held was saturated with prejudicial and inflammatory media publicity about the crime." Harris, 885 F.2d at 1361. Actual prejudice, on the other hand, exists when voir dire reveals that the jury harbors "actual partiality or hostility [against the defendant] that [cannot] be laid aside." Id. at 1363. The Supreme Court applied this two-pronged analytical approach in [] Skilling v. United States, 561 U.S. ___, 130 S.Ct. 2896, 2907, 177 L.Ed.2d 619 (2010)(considering, first, whether pretrial publicity and community hostility established a presumption of juror prejudice, and then whether actual bias infected the jury).
"A presumption of prejudice" because of adverse press coverage "attends only the extreme case." Shilling, 130 S.Ct. at 2915; see also Harris, 885 F.2d at 1361 ("The presumed prejudice principle is rarely applicable and is reserved for an extreme situation." (citing Neb. Press Ass'n v. Stuart, 427 U.S. 539, 554, 96 S.Ct. 2791, 49 L.Ed.2d 683 (l976)(citation and internal quotation marks omitted)).
Where circumstances are not so extreme as to warrant a presumption of prejudice, we must still consider whether publicity and community outrage resulted in a jury that was actually prejudiced against the defendant. This inquiry focuses on the nature and extent of the voir dire examination and prospective jurors' responses to it. See Shilling, 130 S.Ct. at 2917-23. Our task is to "determine if the jurors demonstrated actual partiality or hostility [toward the defendant] that could not be laid aside." Harris, 885 F.2d at 1363.

         In his briefs, petitioner does not challenge the PCR court's findings of fact relative to this claim. As such, I presume that these findings are correct and conclude that petitioner failed to demonstrate that counsel were ineffective in failing to move for a change of venue. Moreover, in light of the PCR court's findings, petitioner cannot demonstrate that there was a reasonable chance that the trial court would have granted a motion for change of venue such that there is a reasonable probability that the outcome of the proceedings would have been different had counsel moved for change of venue. Consequently, petitioner cannot demonstrate that the PCR court's denial of this claim was contrary to or involved an unreasonable application of Strickland. Even on de novo review I would deny this subclaim on the merits.

         4. Claim 1 (A)(2)(g) - Guilt-phase counsel rendered ineffective assistance when they made a request to go to trial within 60 days from date of arraignment

         The PCR court made the following relevant Findings of Fact:

13. On two occasions, Counsel Brasch requested early trial dates. On both occasions, the prosecution objected, reporting that they needed more time to prepare. On both occasions, the court denied the defense requests.
14. Both defense requests for early trial dates were made with petitioner's consent. Both requests were attempts to get the case to trial before the prosecution was fully prepared to present its case against petitioner.
15. The defense requests for early trial dates do not demonstrate that counsel was not prepared to take the case to trial.

         Respondent's Exhibit 168, pp. 4-5.

         Petitioner contends that counsel's requests for an early trial date illustrate their inexperience in litigating capital cases, and, that despite being given more time, counsel did "nothing" to prepare for the case. However, given the PCR court's above findings coupled with petitioner's failure to show that counsel's requests for an early trial date, which the court denied, prejudiced his case, petitioner cannot demonstrate that the PCR court's denial of this claim was contrary to or involved an unreasonable application of Strickland. Even on de novo review I would deny relief on this subclaim.

         5. Claim 1 (A)(3) - Guilt-phase counsel failed to conduct an independent investigation and relied solely on information provided by law enforcement and the prosecution to defend petitioner

         Relevant to this claim are the following PCR court findings of fact:

33. The state thoroughly investigated the case, and the defense investigation confirmed what the state investigators had discovered.
38. The only new evidence petitioner's post-conviction investigator obtained was two letters from law enforcement agencies that appear to contradict statements made by petitioner to various witnesses that petitioner had engaged in certain criminal activities.
39. In light of the extensive evidence of petitioner's other criminal behavior that was presented at trial, the two letters submitted in this post-conviction proceeding would not have undermined the strength of the state's case if counsel had presented that evidence at trial.
46. Counsel Trew observed most of co-defendant Simonsen's penalty phase trial and took extensive notes about those proceedings. As a result, counsel were fully aware of witnesses from Simonsen's trial whose testimony might have been used in an attempt to rebut the state's argument that Simonsen was petitioner's 'robot' and that Simonsen shot the victims on petitioner's instructions.

         Respondent's Exhibit 168, pp. 6-7.

         Petitioner argues that I should not defer to the PCR court's Findings of Fact 33 and 46 because they are contradicted and/or not supported by the record. However, with regard to this general claim alleging that counsel failed to conduct an independent investigation into petitioner's guilt or innocence of the capital charges, petitioner fails to show how the PCR court's findings are contradicted and/or unsupported by the record. I will consider petitioner's challenges to these particular factual findings where petitioner makes specific arguments in the context of discreet claims. On this record and in light of the PCR court's above findings, petitioner fails to demonstrate that counsel rendered ineffective assistance for failing to independently investigate petitioner's case. Therefore, petitioner cannot show that any denial of this claim by the PCR court was contrary to or involved an unreasonable application of Strickland. Even on de novo review the court would deny relief on this subclaim.

         6. Claim 1(A)(4) - Guilt-phase counsel failed to review discovery provided by law enforcement

         For the reasons set forth in my prior Order [120');">120] at 23-25, 1 deny this subclaim.

         7. Claim 1(B)(1) - Guilt-phase counsel's representation undermined petitioner's presumption of innocence and lowered the burden of proof

         This claim's allegations are conclusory and I deny it on the merits. I will address petitioner's additional discreet allegations of ineffective assistance of guilt-phase counsel in the subclaims below.

         8. Claims 1(C)(2)(a)-(d) - Guilt-phase counsel failed to prepare Van Ootengham to testify regarding: footprints, shotgun evidence, tire tracks and red fibers

         For the reasons set forth in my prior Order [ 120');">120] at 16-19 &amp. 28, 1 deny these subclaims. Even on de novo review I would deny relief on these subclaims.

         9. Claim 1(D)(3)(a)-(e) - Guilt-phase counsel failed to introduce testimony via Nicholas, Mobley, Mier, Griffen and House about Simonsen's independence, explosive temper, and problems with women

         Respondent notes that I, in my consideration of these subclaims on summary judgment, rejected any argument that petitioner's counsel were unaware of the Simonsen-as-violent-independent-actor strategy. I concluded that the PCR court's determination that counsel's decision not to use the Simonsen witnesses was reasonable, is entitled to deference. See Order [120');">120], pp. 27-28.

         Relevant to this claim are the following PCR court findings of fact:

46. Counsel Trew observed most of co-defendant Simonsen's penalty phase trial and took extensive notes about those proceedings. As a result, counsel were fully aware of witnesses from Simonsen's trial whose testimony might have been used in an attempt to rebut the state's argument that Simonsen was petitioner's "robot" and that Simonsen shot the victims on petitioner's instructions.
47. Counsel chose not to call the Simonsen witnesses because counsel did not believe the state's "robot theory" was persuasive, but they believed that if all the drug-related evidence came in, the "robot theory" would be greatly enhanced.
48. The unfavorable 'drug-related evidence' included testimony that Mr. Williams injected Simonsen with methamphetamine because Simonsen was unable to inject the drug himself, and Mr. Williams used that situation to control Simonsen.
49. Petitioner agreed with counsel's decision not to call the Simonsen witnesses at trial.
50. Petitioner presented no credible evidence that this strategic decision was an error of constitutional magnitude. This court does not find persuasive Duane McCabe's testimony that no reasonable defense attorney would have chosen not to present the Simonsen witnesses.
51. Counsel Brasch and Trew weighed the risks inherent in calling the Simonsen witnesses and concluded that the risk of presenting those witnesses was greater than the potential benefit. That decision was not unreasonable.

         Respondent's Exhibit 168, pp. 7-8.

         As an initial matter, petitioner maintains that the above findings of fact, with the exception of FOF 49, are contradicted and/or unsupported by the record and deserve no deference from this court. Specifically, with regard to FOF 46, petitioner argues that Harold Wagy testified at Simonsen's trial that Simonsen used hard drugs in the Spring of 1988 during the period when Wagy, Simonsen and Brian Clevenger were roommates and prior to Simonsen ever meeting petitioner. Petitioner argues counsel's failure to interview Wagy and Clevenger supports his contention that FOF 46 is erroneous and unsupported by the record. I disagree. In addition to counsel's offer of proof from witnesses that could attest to Simonsen as an independent actor, Trew had observed Wagy's testimony and even noted that it might be helpful to petitioner. Accordingly, I reject petitioner's assertion here that counsel's failure to interview Wagy and Clevenger amounts to clear and convincing evidence contradicting the PCR court's finding that counsel were fully aware of how witnesses from Simonsen's trial could be used to rebut the state's theory that petitioner controlled Simonsen such that this court should not defer to FOF 46.

         With regard to FOF 47 and its reference to "all drug-related evidence," petitioner argues that evidence of petitioner's drug use and drug dealing would not have been relevant to refute statements that Simonsen was independent and uncontrollable and that the only relevant evidence referenced by the PCR court in this FOF pertained to an assertion that petitioner used the fact that Simonsen could not inject himself with methamphetamine to control him. In response, respondent asserts that the State had numerous witnesses available to testify that petitioner's control over Simonsen centered on drug use, including statements that petitioner shot Simonsen up with methamphetamine. While petitioner insists that the referenced testimony from Simonsen's trial was either hearsay, irrelevant to the issue of Simonsen's independence or involved testimony from witnesses that actually testified at petitioner's trial, my independent review of the record reveals there was sufficient evidence in the record before the PCR court to support FOF 47.

         In addition, while petitioner seeks to minimize the testimony of Michael Shonk, a longtime friend of Simonsen's who testified at both petitioner's guilt-phase trial and Simonsen's penalty- phase trial, examination of the difference in Shonk's testimony at those two trials on the issue of petitioner's control over Simonsen reveals the significant nature of the drug-related evidence counsel sought to keep out of petitioner's trial.

         First, at petitioner's guilt-phase trial, Shonk testified that he noticed a difference in Simonsen when he was with petitioner. He indicated that petitioner had to be the center of attention and that, "Dave [Simonsen] would do pretty much anything he asked, kind of like his gopher." TD, Part D, Vol. Ill. p. 573. In contrast, at Simonsen's penalty-phase trial, Shonk testified that he noticed a change in Simonsen around the summer of 1988 triggered by his hanging around petitioner. He testified that he had not known Simonsen to use drugs before, but that he believed that he began using methamphetamine around July 1988. Shonk testified that he counseled Simonsen against using hard drugs. Shonk also testified that petitioner, a known drug dealer in the area, supplied Simonsen with drugs and Shonk noticed Simonsen was taking them at an accelerated pace. He further testified to what he characterized as an "emerging dominance" that petitioner had over Simonsen and that the combination of petitioner and drugs could make Simonsen a dangerous person. Finally, Shonk testified that he did not think Simonsen would have committed the crimes without petitioner and drugs. Accordingly, even setting aside the potential hearsay testimony of witnesses like Detective Dalton and Ronald Thurner, I conclude Shonk's testimony supports the PCR court's FOF 47.

         With regard to FOF 48, however, I agree with petitioner that this FOF is not supported by the record at least as it refers to what information Brasch and Trew[4] had when they made their decision about the Simonsen witnesses. There was testimony that petitioner inj ected Simonsen with drugs. However, the court can find no mention in Simonsen's first penalty-phase trial, petitioner's guilt-phase trial or petitioner's first penalty-phase trial, and the State points to none, other than in Simonsen's counsel's opening statement, indicating that Simonsen could not inject himself and petitioner used this fact to control him.[5] During petitioner's second penalty-phase trial, Theresa Villa testified that petitioner injected Simonsen with drugs because he could not do it himself: "[h]e couldn't maneuver it right to be able to do it himself, so Jeff had to do it for him," but she did not specifically testify that petitioner used this fact to control Simonsen. TD, Part N, pp. 709-10.[6]Accordingly, in resolving this claim, I do not defer to FOF 48.

         Petitioner argues FOF 50 involves a legal conclusion not a factual finding and that no evidence was presented to refute McCabe's testimony. In response, respondent maintains that the PCR court made an express credibility finding regarding McCabe's testimony after hearing live testimony and that it concluded petitioner had failed present credible evidence that his counsel's decision not to call the Simonsen witnesses violated petitioner's constitutional rights. There is support in the record for the PCR court's FOF. Moreover, even assuming FOF 50 is a legal conclusion holding that counsel did not render ineffective assistance of counsel when they declined to call the Simonsen witnesses to testify, based on my analysis regarding counsel's decision whether to call these witnesses, I conclude that petitioner cannot demonstrate that the PCR court's determination was contrary to or involved an unreasonable application of Strickland.

         With regard to FOF 51, petitioner insists counsel did not know what the risks of calling the Simonsen witnesses were because they never asked for a specific offer of proof to explore what any rebuttal witnesses may have testified to and never made their own efforts to find out. He further contends that the only relevant evidence mentioned by the PCR court, i.e., that Simonsen needed petitioner to inject him and petitioner used that fact to control him, is unsupported by evidence in the record. These arguments notwithstanding, I conclude that even without evidence that petitioner used the fact that Simonsen allegedly could not inject himself to control him, there was sufficient support in the record, including Shonk's testimony, supporting FOF 51.

         In summary, petitioner argues that I should not defer to the PCR court's factual findings bearing on this claim because they are based on the unsupported findings that: (1) Simonsen relied on petitioner to inject him with drugs because he could not inject himself; and (2) petitioner used this fact to control him. Similarly, petitioner insists that the PCR court erred in deferring to counsel's purported tactical choices because counsel's failure to conduct an adequate investigation left them unaware of the actual risks of calling the Simonsen witnesses and caused them to gravely overestimate the downside of calling these witnesses compared with the benefit of introducing critically important evidence of Simonsen's independence that could have resulted in a different and more favorable outcome for petitioner.

         As a preliminary matter, I reject petitioner's suggestion that the specific finding that Simonsen needed petitioner to inject him with drugs because he could not do it himself and that petitioner used this fact to control Simonsen is the only relevant drug-related rebuttal evidence at issue. My review of the record reveals counsel were aware of and reasonably concerned with a much wider breadth of drug-related evidence. In fact, Trew averred during petitioner's PCR proceeding that they were worried about any mention of drugs and drug dealing. In addition, Trew testified at the PCR hearing that they were concerned about testimony that they had heard about petitioner injecting Simonsen and evidence that the two committed the murders because they were high on drugs. These concerns prompted counsel to make the strategic decision to scrub the evidence before the guilt-phase jury, as much as possible, of any drug-related references.

         While petitioner insists that such testimony was either inadmissible hearsay, irrelevant to issue of control, or ended up being introduced in large part at trial anyway, my review of the record reveals otherwise. Petitioner argues counsel should have introduced the ample evidence demonstrating Simonsen's independence even if it meant the trial court would allow in the drug-related evidence. On this record, however, I cannot conclude that no reasonable lawyer would have acted as petitioner's counsel did.[7] Rather, "some reasonable lawyer" could have determined, as counsel did here, that keeping as much of the drug-related evidence out, even at the expense of not being able to introduce evidence of Simonsen's independence, was a sound trial strategy. See Coleman v. Calderon, 150 F.3d 1105, 1113 (9th Cir.), rev'd on other grounds, 525 U.S. 141 (1998)("The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial.").

         Accordingly, in light of the PCR court's above findings, petitioner fails to demonstrate that counsel rendered ineffective assistance in failing to introduce certain evidence of Simonsen's independence. As such, he cannot show that any denials of these subclaims by the PCR court were contrary to or involved an unreasonable application of Strickland. Even on de novo review I would deny relief on these subclaims.

         10. Claim 1(D)(3)(f) & (h) - By mistakenly believing the rebuttal evidence involving drug use would be too prejudicial, guilt-phase counsel guaranteed petitioner would be convicted of aggravated murder because counsel introduced no evidence that Simonsen was capable of acting independently and violently without petitioner's influence. In addition, because the prosecution introduced rebuttal drug use and drug dealing evidence during the penalty phase, counsel denied petitioner the benefit of the Simonsen witnesses and subjected petitioner to the drug evidence anyway

         This is a new claim. Nevertheless, I bypass the issue of procedural default and on de novo review deny it on the merits.

         As a preliminary matter, petitioner suggests that absent affirmative evidence that Simonsen was capable of acting independently, the jury would necessarily credit evidence suggesting that petitioner influenced and controlled Simonsen's actions. Even if this suggestion is plausible, I disagree that counsel's calculus vis-a-vis the referenced evidence "guaranteed" an aggravated murder conviction. Counsel's proffered alternative theory that a jury would not easily determine that an individual would kill at another's direction and would not easily transfer responsibility from the admitted shooter to petitioner is also plausible. Indeed, petitioner's counsel explicitly stated that they did not find the state's "robot theory" terribly convincing. I cannot say that such view was an unreasonable one. Moreover, while counsel, in an effort to avoid introduction of drug evidence, declined to introduce available evidence of Simonsen's independence at trial, in closing arguments he tried to convince the jury that the case they had heard was the one against Simonsen: "the admitted personal, intentional killer of those two girls." He maintained that the evidence showed that Simonsen killed the girls so quickly that nobody, including petitioner, could have predicted it was going to happen. Specifically, counsel argued:

Now, what kind of guy is Simonsen? Simonsen is a confessed murderer. Simonsen is a guy who, just a few hours before all of this started happening, Burt Tirey said the man got out of control. He said "out of control. He was like a caged animal, not in control, and he said 'I need to kill something.'" And he is 6'4". He's a big boy. He is a pretty intimidating character. "I need to kill something."

TD, Part F, p. 1427.

         Based on the foregoing, I deny these subclaims alleging counsel's failure to utilize evidence of Simonsen's independence guaranteed an aggravated murder conviction. With regard to petitioner's assertion that counsel was ineffective in his tactics because the drug-related evidence came in during the penalty phase anyway, I deny relief for the reasons set out in my prior Opinion and Order [120');">120], pp. 28-30.

         11. Claim 1(D)(3)(g) - Guilt-phase counsel failed to introduce evidence of Simonsen's intense misogyny because counsel mistakenly believed it would open the door to damaging rebuttal evidence

         This too is a new claim. Nevertheless, I bypass the issue of procedural default and on de novo review deny it on the merits.

         Notwithstanding the state's representation on direct appeal[8], my review of the relevant portions of the transcript reveals that the trial court and the parties understood that petitioner's counsel hoped to introduce evidence of both Simonsen's independence and his hatred of women, but that counsel would opt not to do so if it meant opening the door to the prosecution's presentation of drug-related evidence. Based on my review of the record, it is not apparent that the trial court confined its ruling to the evidence that Simonsen was an independent and violent actor. To the contrary, that court indicated that it would have to make a determination as the evidence came in at trial. Moreover, despite knowing what petitioner's counsel sought to accomplish through their offer of proof, the court offered no assurances that only the testimony concerning Simonsen's independence and violence, and not testimony concerning Simonsen's hatred of women, would open the door to possible introduction of drug-related evidence. One would expect more clarity from the court if indeed it had determined that testimony related to Simonsen's misogyny was in a different category and would not open the door to the drug-related evidence.

         In any event, even if it is possible to infer that the trial court distinguished between the evidence as petitioner suggests, I would still conclude that counsel's interpretation, that the trial court's ruling applied equally to both kinds of testimony, was a reasonable one and did not constitute ineffective assistance of counsel. The interpretation was reasonable because counsel's purpose in introducing evidence of misogyny would be to show Simonsen shot the victims on a misogynistic impulse and not at petitioner's direction. As such, the reason for opening the door to the drug-related evidence, i.e., to show petitioner controlled Simonsen, is the same, regardless of whether the testimony involved evidence of Simonsen's independence and violence or evidence of his hatred of women. Indeed, my review of petitioner's brief on the first direct appeal reveals that his appellate counsel, in summarizing the testimony of the witnesses in the offer of proof, did not suggest that the evidence fell into separate categories impacting whether the court would allow rebuttal evidence on the issue of control. Respondent's Exhibit 105, pp. 162-63. Accordingly, I deny this subclaim.

         12. Claim 1(D)(4) - Guilt-phase counsel thought the physical evidence would convict petitioner and counsel failed to develop a theory on the case; instead taking the "hope" approach that the prosecution could not prove petitioner was at the scene

         Were "hope" counsel's only tactic, I might agree with petitioner. But as noted in my prior Order [120');">120], this argument is belied by the record. Counsel argued at trial that: (1) Simonsen was the admitted shooter; (2) the prosecution failed to meet its burden of showing petitioner "got into" the killing; and (3) the prosecution failed to present evidence proving beyond a reasonable doubt that petitioner was present at the scene when the victims were killed. As evidenced by his pre-trial letter to petitioner, Brasch did believe that the physical evidence against petitioner would place him at the scene of the murders and that the circumstantial evidence would lead the jury to find that both he and Simonsen personally killed the victims. Nevertheless, a fair review of the record reveals that counsel he developed a theory of the case wherein he attempted to capitalize on the fact that Simonsen admitted to being the shooter. Accordingly, I deny this subclaim.

         13. Claim 1(E)(5) - Guilt-phase counsel failed to request a jury instruction that correctly defined "reasonable doubt" I deny this claim for the reasons set forth in my prior Order [120');">120], pp. 42-25.

         B. Second Claim For Relief - Ineffective Assistance of First Penalty-Phase Counsel

         First penalty-phase counsel rendered constitutionally deficient representation when they failed to adequately investigate, prepare, and present readily available and powerful mitigating evidence at petitioner's initial penalty-phase trial

         According to petitioner, "[b]ecause of a ruling in the penalty retrial, the errors of Brasch and Trew carried over into that proceeding." Amended Petition [314');">314');">314');">314');">314');">314');">314');">314');">314');">314');">314');">314');">314');">314');">314');">314], p. 28 (emphasis added). Specifically, petitioner argues that the second penalty-phase court limited his counsel's investigation and made other rulings concerning introduction of testimony that allowed the ineffective assistance of Brasch and Trew to carry over into the penalty-phase retrial. In addressing these same or similar arguments, I previously held:

Because the Oregon Supreme Court vacated petitioner's first death sentence and remanded his case for a full re-sentencing trial, that re-sentencing trial necessarily superceded his first penalty phase trial. Moreover, petitioner's allegations that: (1) the re-sentencing court impermissibly limited his ability to develop his mitigation case; and (2) re-sentencing counsel presented Simonsen evidence only through first penalty phase transcripts, constitute due process and ineffective assistance of resentencing counsel claims respectively. Any errors relating to petitioner's ability to procure relevant mitigating information from guilt phase witnesses during his resentencing trial necessarily rest with the re-sentencing trial court or re-sentencing counsel.

         Opinion and Order [120');">120], p. 32.

         Moreover, the Ninth Circuit affirmed the proposition that a re-sentencing court is independently obligated to assure that a petitioner receives a constitutionally fair re-sentencing. See Clabourne v. Ryan, 745 F.3d 362, 380 (9th Cir. 2014), overruled on other grounds by McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015)("The proper admission of evidence based on the law as it stood at the time of trial does not mean that that the admission of that evidence is invulnerable to any future challenge. It has been held for centuries, for example, that even if the law changed following a trial, '[t]he general rule ... is that an appellate court must apply the law in effect at the time it renders its decision.' ")(citations omitted).

         Petitioner argues that had counsel represented him competently in the initial penalty-phase trial, a retrial would have been unnecessary. Presumably he is suggesting that constitutionally effective counsel in the first penalty-phase trial would have secured a non-death sentence. Nevertheless, petitioner concedes, as he must, that "[n]o remedy is available should this claim be granted, since the [first] penalty-phase verdict was set aside." Referencing arguments raised in Claim One, petitioner renews his plea for this court to consider these arguments in its assessment of the overall circumstances surrounding guilt-phase counsel's representation.

         In light of petitioner's concession and for the reasons set out in this court's prior Order and Opinion [120');">120], pp. 31-32, 1 deny this claim.

         C. Third Claim For Relief - Ineffective Assistance of Re-sentencing Counsel

         1. Claim 3(A)(1) - Re-sentencing counsel rendered constitutionally ineffective assistance when they failed to file proper pretrial motions to prevent the prosecution from introducing evidence of uncharged and/or unadjudicated prior bad acts

         Respondent argues that petitioner's allegations are conclusory in that they fail to specify the motions he believes counsel should have made or to identify the uncharged and/or unadjudicated prior bad acts at issue. In addition, respondent argues that evidence of uncharged and unadjudicated prior bad acts is admissible in Oregon during a penalty-phase proceeding to show future dangerousness. Finally, he notes that the Oregon Supreme Court specifically held in petitioner's case that the statute governing what evidence may be considered in the penalty phase "is to be interpreted broadly, to include even unadjudicated bad acts." See Williams II, 322 Or. at 632 (l996)(citations omitted). Based on the foregoing and given counsel is not required to file futile motions, respondent maintains that petitioner cannot demonstrate either that counsel rendered ineffective assistance when they did not file pretrial motions as alleged herein or that he was prejudiced by counsel's failure to file such motions.

         Petitioner does not argue the merits of this subclaim in his briefs. I find that respondent's arguments are well taken. Accordingly, on de novo review, I deny this subclaim.

         2. Claim 3(A)(2) - Re-sentencing counsel rendered constitutionally ineffective assistance when they failed to file proper pretrial motions to prohibit the prosecution from conducting a prejudicial voir dire

         The PCR court made the following relevant findings: (1) the prosecutor did not ask the jurors during voir dire whether they would be able to return a verdict of death if the law required death; and (2) petitioner presented no evidence or argument to support his claim that the prosecutor asked improper questions during voir dire to which counsel should have objected.

         Respondent argues that this court should defer to these findings which preclude a finding that the prosecutor conducted a prejudicial voir dire at all ~ let alone one that counsel could and should have anticipated and preempted via proper pretrial motions. In addition, respondent denies that the record supports petitioner's contention that the prosecutor misstated Oregon's sentencing-scheme law during voir dire and notes that petitioner fails to identify what errors he thinks the prosecutor made in that regard. Finally, respondent contends that petitioner cannot demonstrate on this record either that reasonable counsel would have filed these pretrial motions or that there is a reasonable probability that the re-sentencing court would have granted them.

         As with the prior claim, petitioner does not argue the merits of this claim in his briefs. I find that respondent's arguments are well taken. Accordingly, on de novo review, I deny this subclaim.

         3. Claim 3(D)(1) - Re-sentencing counsel rendered constitutionally ineffective assistance when they failed to propose and ensure the trial court gave the jury constitutionally sufficient preliminary instructions. Trial court did not instruct the jury before taking evidence, and, therefore, they sat through the entire proceeding without direction and information as to how to evaluate evidence

         As a preliminary matter, I note:

A trial judge is required to explain the law correctly to the jury so that it may "apply the law to the facts," United States v. Gaudin, 515 U.S. 506, 514, 115 S.Ct. 2310, 1132 L.Ed.2d 444 (1995), and determine the defendant's guilt as to every element of the crime with which he is charged, id. at 510, 115 S.Ct. 2310. See also Guam v. Marquez, 963 F.2d 1311, 1314');">314');">314');">314');">314');">314');">314');">314');">314');">314');">314');">314');">314');">314');">314');">314-15 (9th Cir. l992)(holding "that all jury instructions must be read aloud to the jury in the presence of counsel and the defendant").

Ho v. Carey, 332 F.3d 587, 593 (9th Cir. 2003)(additional citations omitted).

         Petitioner did not address this claim in his briefs. In his amended petition, however, he suggests that his counsel rendered ineffective assistance as a matter of law when they failed to propose or request preliminary jury instructions. Petitioner cites to no authority, and I am aware of none, supporting the proposition that a trial court must give the jury instructions before the parties present any evidence. Without such authority, petitioner cannot show counsel's performance was ineffective nor can he demonstrate that he was prejudiced by any failure on counsel's part to request preliminary jury instructions. Accordingly, on de novo review, I deny this claim.

         4. Claim 3(D)(4)(a)-(f) - Re-sentencing counsel rendered constitutionally ineffective assistance when they failed to ensure the jury received a true life instruction and the trial court's resultant failure to instruct on this potential sentence constituted reversible error and unfairly restricted mitigating evidence that could be put before the jury

         As a preliminary matter, the parties agree that petitioner was entitled to have his resentencing jury instructed on three sentencing alternatives: death, life with the possibility of parole (hereinafter "life"), and, provided petitioner waived his ex post facto objection, life without the possibility of parole (hereinafter "true life"). The record establishes: (1) that petitioner's counsel submitted proposed jury instructions to the court which included an instruction on the true life alternative; and (2) the court did not give a true life instruction. However, prior to instructing the jury, the court recapped its brief off-the-record conference with counsel held before the proceedings. This on-the-record recap was held outside the presence of the jury but with petitioner present. The court noted that petitioner would be permitted to make a statement to the jury and discussed the instructions. With regard to the instructions, the court indicated that the only questions that came up during the conference involved instructions pertaining to allocution, "witness false in part," aiding and abetting, and the burden of proof on the Fourth Question. At no point in this recap did the court, counsel or petitioner raise the issue of sentencing options, including the true life alternative. TD, Part V, pp. 2600-05. Later, and again outside the presence of the jury, the court discussed the life alternative and how it would present that option to the jury. Again, neither counsel nor petitioner objected to the omission of or otherwise mentioned the true life option. Id. at 2637. Accordingly, this record establishes that petitioner's counsel did not preserve an objection or make a statement on the record regarding a true life jury instruction.

         At the time petitioner committed his crimes, Oregon law provided only two possible sentences for an aggravated murder conviction: death and life. The legislature added a true life option in 1989, but the Oregon Supreme Court in Willie determined that because the true life default sentence under the new scheme, when the jury has not made findings requiring that a defendant be sentenced to death, was harsher than the ordinary life default sentence under the old scheme, retroactive application of the new scheme violated the ex post facto provisions of the Oregon and United States Constitutions. State v. Willie, 317 Or. 487, 503-05 (1993). Accordingly, in those circumstances, a court could only give the jury a true life option if a petitioner waived his or her ex post facto objection to its inclusion as a sentencing option.

         In Gable v. State, 203 Or.App. 710 (2006), the court examined Gable's counsel's actions in a 1991 sentencing proceeding which resulted in a true life sentence.[9] As with petitioner, Gable committed his crimes prior to the enactment of the 1989 statute allowing for a true life sentence such that his ex post facto rights were at issue. Nevertheless, the court gave a true life instruction to the jury in that case. On appeal, the court determined that Gable's counsel rendered ineffective assistance when they failed to advise him of his ex post facto rights and it remanded the case to decide whether Gable was prejudiced by his counsel's action. As is pertinent to petitioner's claim here, that court also determined that Gable never waived his ex post facto objection to the submission of the true life sentencing option.[10] In Gable, evidence of waiver included: (1) defense counsel's reference to the true life option during the initial stages of potential juror voir dire; (2) the trial judge's recollection that the matter had been discussed and that it was his impression that there was a defense strategy to go with the true life option; (3) defense counsel requested the true life option in a written requested jury instruction; and (4) the court prepared proposed jury instructions which included a true life option and these instructions were given in the preliminary instructions to the jury. Id. at 724-25. Nevertheless, the Gable court, in addressing the question of whether the right to be free from ex post facto laws requires that a defendant personally make an informed waiver or if it may be waived by counsel, concluded that "to determine whether [a] petitioner waived the ex post facto objection to the submission of the 'true life' option, we must look to his own words and conduct-and not just to the court's and counsel's statements at trial." It held that counsel alone cannot validly waive a petitioner's ex post facto protections, but rather "the criminal defendant must personally make an informed waiver of his or her ex post facto rights." Id. at 733.

         Accordingly, Gable resolves the question of waiver here and petitioner's argument that his re-sentencing counsel's inclusion of a true life option in the proposed jury instructions constituted a valid waiver of his ex post facto rights is without merit. Accordingly, given that there is no evidence in the record that petitioner personally waived his ex post facto rights, I deny this claim.

         In addition, even if the waiver question did not resolve this claim, I reject petitioner's argument that, in the absence of an adequate record, respondent's position that petitioner did not want his jury instructed on the true life option is supported only by speculation. Beyond his counsel's proposed instructions, nothing in the record indicates that petitioner chose or wanted to submit the true life alternative to the jury or that he otherwise demonstrated through his conduct any intention of waiving his ex post facto objection to this alternative.

         Apparently petitioner would have me credit a scenario wherein, even though he wanted the court to give his jury a true life instruction and re-sentencing counsel affirmatively requested such an instruction via the aforementioned proposed jury instructions, counsel failed to preserve an objection when the court allegedly refused, even as the trial court memorialized an off-the-record meeting with counsel in chambers which included discussion of jury instructions. Furthermore, despite the fact that the trial court did not give a true life instruction, petitioner failed to raise either a trial court error claim on direct appeal, faulting the court with not allowing the instruction; or an ineffective assistance of re-sentencing counsel claim during his PCR proceedings, faulting counsel for failing to have the instruction given and/or failing to preserve the claim by lodging an objection on the record when the trial court refused to give it.[11]

         Far from speculation, I am satisfied that the explanation best supported by the record here for the omission of a true life instruction during petitioner's second penalty-phase trial is that petitioner decided against seeking the instruction.[12] Based on the foregoing, I conclude on de novo review that petitioner has not shown that his counsel rendered ineffective assistance and I deny this subclaim.

         5. Claim 3(D)(5) - Re-sentencing counsel rendered constitutionally ineffective assistance when they questioned a witness in a way that allowed him to respond that he assumed five years on death row would change your attitude somewhat and by this comment impermissibly reduced the jury's sense of responsibility. Re-sentencing counsel then failed to timely move for a mistrial

         For the reasons set out in my prior Order concluding that petitioner's "re-sentencing proceeding was not rendered fundamentally unfair by the witness's comment, and that petitioner has not established that the inadvertent introduction of this evidence violated the Constitution," petitioner cannot demonstrate that he was prejudiced by any action on re-sentencing counsel's part that allegedly prompted the comment. See Opinion and Order [120');">120], pp. 10-13. Accordingly, I deny this subclaim.

         D. Fourth Claim For Relief - Petitioner's 1993 Re-sentencing Violated His Constitutional Rights

         1. Claim 4(A) - Petitioner was sentenced to death in 1988 under a facially unconstitutional statute

         Petitioner challenges the constitutionality of Oregon's 1987 version of the death penalty statute and argues that the Oregon Supreme Court's re-interpretation of the statute in State v. Wagner, 309 Or. 5 (1990)(" Wagner IF) to allow a fourth question to "save" the statute cannot be squared with its earlier interpretation in State v. Wagner, 305 Or. 115 (1988)("Wagner I").

         Discussion

         State courts are the ultimate expositors of state law and federal courts are bound by their constructions except in extreme circumstances. Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). A writ of habeas corpus is unavailable for alleged error in interpretation or application of state law. Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. l994)(citation omitted); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (l99l)("[I]t is not within the province of a federal habeas court to reexamine state-court determinations on state-law questions."). Moreover, the Second Circuit has persuasively reasoned that "it would be perverse for a federal court to discourage a state court from searching for 'every reasonable construction' of a state statute to 'save [the] statute from unconstitutionality.'" Portalatin v. Graham, 624 F.3d 69, 90 (2d Cir. 2010)(quoting. Skilling v. United States, 561 U.S. 358 & n. 41 (2010)(additional citations omitted)). Nevertheless, rejection of a state-court interpretation of state law may be warranted if the interpretation is an "obvious subterfuge to evade consideration of a federal issue." Peltier, 15 F.3d at 862 (quoting Mullaney, 421 U.S. at 691).

         Here, my review of relevant statutory history and case law reveals that the Oregon Supreme Court's interpretation and reinterpretation of Oregon's 1987 version of the death penalty statute in Wagner I and Wagner II are not necessarily inconsistent as petitioner insists.

         Wagner I

         In concluding that the statute provides that "the sentencer must be allowed to consider any relevant mitigating evidence" the court in Wagner I noted:

Having identified one who may be subjected to the death penalty, ORS 163.150 requires the jury to address the same three issues as did the Texas statute and even adopts the Texas court's interpretation of its statute that the jury, in considering the three issues, may hear all relevant mitigating evidence.
In the [sentencing] proceeding, evidence may be presented as to any matter that the court deems relevant to sentence; * * *." ORS163.150(1)(a). Even if the statute were silent, obviously, either defendant or the state would have the right to introduce any evidence relevant to the resolution of all or any of the three questions which frame the jury's resolution of the three issues. We construe the statute to mean that a defendant shall be permitted to introduce any competent evidence related to mitigation on any of the three issues.
Under ORS 163.150(1), the jury may consider all mitigating factors or circumstances that are shown by the evidence.

Wagner I, 305 Or. at 144, 156-57 &amp. 160 (emphasis added).

         Wagner II

         In Wagner II, the court first examined whether the 1987 statute precluded a fourth question. It carefully analyzed both the language of the statute and its own prior interpretations of the statute. It found that on its face, the statute neither precluded nor permitted a general mitigation question. While it noted that the statute did not state that the three statutory questions set out at ORS 163.150(1)(b) were the only issues to be submitted to the jury, the majority conceded that one could argue that ORS 1163.150(1)(e) (providing that if the jury said yes to the three statutory questions the trial judge shall sentence the defendant to death, otherwise defendant shall be sentenced to life) precludes a fourth question. After thorough examination, however, the court determined that ORS 163.150(1)(e) intended a broader reference by its use of "this section" to ORS 163.150 as a whole, rather than being confined to the three statutory questions. In addition, the court recalled that in Wagner I it stated that "ORS 163.150(1) must permit jury consideration of 'any aspect of the defendant's character and record or any circumstances of his offense as an independently mitigating factor.' See State v. Wagner, 305 Or. at 160, 752 P.2d 1136. (Emphasis added.)." Wagner II, 309 Or. 5, 10(1990). The court also relied on the fact that the statute contemplates that ajury will decide the appropriate sentence, including the possibility of a capital sentence, in a separate proceeding. It reasoned that the fourth question would further the intended purposes of these separate proceedings, i. e., to preserve the possibility of a death sentence for convicted aggravated murderers and to permit a jury to decide between life and death.

         Turning next to the question of whether the statute permitted the addition of the fourth question, the court referenced its earlier finding that the statute permits introduction of "all constitutionally relevant mitigation evidence." Importantly, in Wagner II, the court noted that in Wagner I it had not wrestled with the question of whether a fourth question was precluded or permitted, but rather had held that mitigation shall be admissible on all three statutory issues, not just the second future dangerousness question. Ultimately, the court held in Wagner II that:

In view of what we have learned in Penry, it is now clear that mitigating evidence beyond the scope of the statutory issues is indeed constitutionally "relevant to sentence" and, accordingly, statutorily admissible."

Id. at 14. Moreover, in determining that the statute permitted a general mitigation question, the court cited a trial court's statutory authority and responsibility to charge the jury on necessary matters of law and the defendant's right in a death penalty case to an instruction that, notwithstanding affirmative answers to the statutory questions set out at ORS 163.150(1)(b), the jury may conclude that mitigating evidence justifies imposition of a life sentence.

         Based on the foregoing, I conclude that petitioner has failed to show that the Oregon Supreme Court's interpretation of the 1987 statute involves an "extreme circumstance" wherein it has engaged in subterfuge to evade federal consideration of the constitutionality of this death penalty statute. To the contrary, the majority rigorously analyzed the issues to reach its well supported conclusions and did not avoid the arguments raised by dissenting judges, many of which are echoed by petitioner in these proceedings. Accordingly, I must defer to the Oregon Supreme Court's interpretation of its own state laws and its conclusions set out in detail in Wagner II As such, on de novo review, I deny this subclaim.

         2. Claim 4(B)(1)(a) - Application of the 1993 version of the statute violated the ex post facto clause because it provided for capital punishment and in 1988 there was no constitutional capital punishment statute

         Petitioner acknowledges, as he must, that Dobbert v. Florida, 432 U.S. 282, 293 (1977), precludes relief on this claim. He nevertheless presents it as a good faith on-the-record challenge to Dobbert. The Ex Post Facto Clause provides that "no State shall ... pass any ... ex post facto Law." U.S. Const, art I, § 10, cl. 1. The Clause prohibits the legislative enactment of any law that "changes the punishment, and inflicts greater punishment, than the law annexed to the crime, when committed." Rogers v. Tennessee, 532 U.S. 451, 456 (2001)(quoting Colder v. Bull, 3 Dall. 386, 1 L.Ed 648 (1798)). Here, the addition of a fourth question to ensure that the jury could fully consider mitigation evidence was ameliorative in nature. See Dobbert, 432 U.S. at 294 ("It is axiomatic that for a law to be ex post facto it must be more onerous than the prior law.").

         Accordingly, while I acknowledge petitioner's effort to preserve this subclaim for review, I deny it.

         3. Claim 4(B)(1)(b) - Application of the 1993 version of the statute violated the ex post facto clause because the new statute was more burdensome in that under the new version he needed ten (10) votes for a life sentence, but under the prior version, he only needed one (1) vote for the same sentence

         Respondent concedes that because the presumptive sentence under the 1993 version of the statute is more onerous, there was an ex post facto problem for defendants who, like petitioner, committed their crimes before the amendment. However, because no true life instruction was given here, the issue is irrelevant to petitioner's case. Moreover, given that there is no ex post facto problem for defendants who either validly waived their ex post facto objections or who committed their crimes after the amendment, petitioner cannot demonstrate facial infirmity. Accordingly, I deny this subclaim.

         4. Claim 4(B)(1)(c)(I-iii) - Application of the 1993 version of the statute violated the ex post facto clause because: there was no mechanism for a penalty-phase only jury in the original statute and the new statute violates a defendant's Sixth Amendment right to trial by jury; use of transcripts in the re-sentencing violates a defendant's right to confrontation as the jury cannot assess the credibility of the witnesses; and it eliminated vitally important mitigation evidence in the way of lingering doubt

         On the issue of penalty-phase only juries, the Wagner II court noted:

There is no statutory or constitutional requirement or persuasive jurisprudential rationale * * * to require a new guilt trial or default sentencing to something less than death simply because the original guilt-phase jury has been discharged.

309 Or. at 18.

         I am persuaded by this reasoning. Moreover, petitioner does not cite to any authority establishing that under the 1987 version of the statute all cases with penalty-phase only errors were remanded for a whole new guilt and penalty-phase trial. Accordingly, he cannot prevail on this ex post facto claim because he cannot demonstrate that his circumstances under the prior statute would have been different, let alone better, than under the 1993 version of the law.

         Citing Ring v. Arizona, 536 U.S. 584 (2002), respondent argues that penalty-phase only juries are constitutional. Presumably then, that case contemplates the possibilities both that a penalty-phase only jury would preside over re-sentencing without exposure to "residual doubt" evidence raised during the guilt-phase trial and a party could opt to present witness testimony via transcript rather than live testimony. Respondent further maintains that given petitioner had the opportunity and motivation to vigorously cross examine witnesses during the guilt phase, introduction of their testimony via transcript does not raise confrontation clause issues. Finally, on the issue of lingering doubt, he argues that petitioner cannot show circumstances were any different than they would have been under the 1987 version of the statute, and regardless, there is no right to introduce evidence of residual doubt at a re-sentencing trial. See Oregon v. Guzek, 546 U.S. 517, 526 (2006).

         Ultimately, without support for his assertion that he was in a worse position vis-a-vis a change to the 1987 statute, petitioner does not have an ex post facto objection that flows from not receiving a whole new trial and the opportunity to defend his guilt again. Accordingly, whatever the merits of his objections concerning a penalty-phase only retrial, he has not demonstrated that they are any different than those he would have had under the 1987 version of the statute. Therefore, he has no ex post facto complaint. Based on the foregoing, I conclude that respondent's arguments are well taken and on de novo review deny this subclaim.

         5. Claim 4(c) - Petitioner argues that as applied to him: (1) he was not on notice of the future amendment to the statute and therefore could not prepare for a penalty-phase only retrial; and (2) he made decisions during the guilt phase based on an understanding that any reversal would result in a whole new trial

         Respondent asserts that petitioner had the same notice regarding the need to prepare for a penalty-phase retrial as he would have had under the 1987 version. In addition, he argues that the record does not support petitioner's contention that he actually made guilt-phase decisions based on an assumption that he would get a whole new trial in the event of a remand on sentencing only and/or that he would have made different decisions had he known he could get a penalty-phase retrial only. Respondent maintains that under either version of the statute an error in the penalty phase did not entitle petitioner to the windfall of another opportunity to dispute guilt via a whole new guilt-phase trial.

         These arguments are well taken. As discussed above, petitioner cannot show that the 1987 version of the statute would have entitled him to a whole new trial in the event of a sentencing error. Nor can he show that he made decisions during his guilt-phase trial based on that belief. Accordingly, his underlying premiss, that he would have had different or better notice under the 1987 version of the statute and that he made decisions based on his understanding that he would be entitled to a whole new trial in the event of a sentencing error, is neither credible nor is it supported by the record here or relevant history pertaining to how the Oregon courts handled sentencing errors prior to the statutory amendments specifically calling for penalty-phase only retrials. Accordingly, on de novo review, I deny this subclaim.

         E. Sixth Claim For Relief - Prosecutorial Misconduct at Re-sentencing Trial

         1. Claim 6(A)(1) - The prosecutor repeatedly misstated the law in a way that led the jury to believe there was a presumption of death when during voir dire he asked jurors if they could impose a death sentence "if the law required death"

         Clearly established federal law holds that prosecutorial misconduct, such as inappropriate comments during arguments, warrants habeas relief when the conduct '"so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (l986)(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)). "[I]t is not enough that the prosecutor's remarks were undesirable or even universally condemned.'" Id. (quoting Darden v. Wainwright, 699 F.2d 1031, 1036 (11th Cir. 1983)). "[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982). Alleged instances of misconduct must be reviewed "in the context of the entire trial." Donnelly, 416 U.S. at 639. Habeas relief is available only if the error "had a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (l993)(citation omitted).

         Petitioner argues that given Oregon law never requires imposition of the death penalty and the presumed sentence was life imprisonment, the prosecutor misstated the law during voir dire when he asked prospective jurors if they could impose the death penalty if the law required death.

         Petitioner's arguments notwithstanding, my review of the record reveals that the prosecutor's use of the phrase "if the law required death" referred to the circumstance provided for under Oregon law whereby the jury had answered all four penalty-phase questions "yes." As the re-sentencing trial court correctly advised the jury, "[i]f all questions are answered yes, I am required by law - I don't have any choice, I have no discretion - to impose the death penalty. If any question or all of them are answered no, any one of them is answered no, I am required by law - again I have no discretion and no choice in the matter --1 am required to impose life imprisonment." TD, Part L, pp. 592-93. A fair review of the record reveals that this is the "requirement" the prosecutor was alluding to in his voir dire questioning. Seen in that light the comment was not a misstatement of the law.

         Petitioner further faults the prosecutor with posing questions along the following lines to the prospective ...


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