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Berliner v. Geers

United States District Court, D. Oregon

January 22, 2019

STEVEN JAMES BERLINER, Petitioner,
v.
BRIAN GEERS, et al., Respondents.

          OPINION AND ORDER

          Miclael H. Simon United States District Judge

         Nell Brown Assistant Federal Public Defender 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 Attorney for Petitioner Ellen F. Rosenblum, Attorney General Kristen E. Boyd, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondents SIMON, District Judge.

         Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of several state-court convictions. For the reasons that follow, the Amended Petition for Writ of Habeas Corpus (#1) is denied.

         BACKGROUND

         The background facts, as stated by the Oregon Court of Appeals during Petitioner's direct appeal, are as follows:

Defendant attended a party at the home of a neighbor in rural Lincoln County. He began drinking beer and smoking marijuana shortly after he arrived and continued to do so until around 10:00 p.m. when he and two friends decided to leave the party to go to a bar. They started off in defendant's vehicle, a 1972 sport utility vehicle that defendant used to go "mudding." The vehicle had a roll bar, but no doors and no top. Defendant was driving. Nobody was wearing a seat belt, and defendant was carrying a cup of beer in one hand. As he started down a hilly, wooded road, he lost control of the vehicle. It hit a tree and rolled down a steep embankment. All three occupants were injured and taken to a hospital where one of the passengers died from his injuries. Also at the hospital, a laboratory technician supervised a test to determine defendant's blood alcohol content (BAC) based on the alcohol content of his blood plasma, but not his whole blood. That test showed a BAC of .086.

State v. Berliner, 232 Or.App. 539, 222 P.3d 744 (2009).

         The Lincoln County Grand Jury indicted Petitioner on one count of each of the following: Manslaughter in the First Degree, Manslaughter in the Second Degree, Assault in the Third Degree, Driving Under the Influence, Reckless Driving, Recklessly Endangering Another, and Driving While Suspended. Respondents' Exhibit 102. Petitioner's first trial resulted in a hung jury, and the State re-tried him.

         Petitioner's primary strategy was to establish that he had not actually been the driver of the vehicle. Secondarily (and the focus of this Opinion), he sought to challenge the State's representation that his BAC exceeded Oregon's legal limit of .08. The vehicular accident occurred at 10:10 p.m. The hospital performed a plasma test of Petitioner's blood at 11:50 pm and reported a .086 BAC result. Authorities obtained a warrant for two additional blood draws which the Oregon State Crime Lab analyzed using a "whole blood" method and found Petitioner's BCA to be .02 at 1:15 a.m. and .01 at 2:20 a.m.

         At trial, the State offered only the 11:50 p.m. hospital .086 BAC result to establish that Petitioner was intoxicated at the time of the accident. Petitioner's attorney called Dr. Raymond Grimsbo, a forensic scientist, to testify about the hospital's method of testing Petitioner's blood. Dr. Grimsbo was prepared to testify that the hospital did not use the whole blood "gold standard" of testing as utilized by the Oregon State Crime Lab, and instead determined BAC based- off of the plasma portion of the blood sample only. The State objected to Dr. Grimsbo's testimony before he could fully present it, and the prosecutor examined Dr. Grimsbo outside the presence of the jury.

         Dr. Grimsbo was of the opinion that the plasma testing method employed by the hospital would produce a result 15% higher than the whole blood test used by the Crime Lab. He was therefore prepared to testify that where the plasma-based hospital test revealed a .086 BAC, when adjusted to reflect gold standard testing where the plasma has not been "spun off" from the whole blood, Petitioner's BAC was actually .073, placing him below the legal limit of .08. Trial Transcript, p. 1718. In the event the jury concluded Petitioner was the driver of the vehicle, trial counsel intended to demonstrate that he did not behave in a manner that manifested an extreme indifference to the value of human life so as to justify a Manslaughter conviction because his BAC was within permissible limits.

         The trial judge repeatedly explained to Petitioner's attorney that he needed to lay a proper foundation for the testimony, that he needed to "draw that nexus between [Dr. Grimsbo's] opinion and, urn, that which actually occurred in this case on one level or another." Id. at 1751. The judge noted that his "comfort level, even now, is being tested as far as what I've said, uh, because I don't know that it's my role to provide the answers." Id. at 1751-52. It appears the judge was waiting for counsel to seek leave to admit the whole blood tests from the Crime Lab, but counsel never did. The judge ultimately refused to permit Dr. Grimsbo to testify for lack of a proper foundation, id at 1759, the jury convicted Petitioner on all counts, and the trial court sentenced him to 120 months in prison.

         During his direct appeal, Petitioner argued in relevant part that: (1) the evidence adduced from the BAC hospital test was inadmissible because the testing was not done pursuant to statutory requirements; and (2) the trial court erred when it did not allow Dr. Grimsbo to testify that the .086 BAC was artificially elevated because the test relied on blood plasma, not whole blood. The Court of Appeals found that although the issues "present interesting questions," it did not need to address them because a person is considered to be driving under the influence of intoxicants in Oregon either with a .08 BAC, or if the person is under the influence of liquor or a controlled substance. It noted that Petitioner testified at trial not only that he consumed ten cups of beer and smoked marijuana at the party, but also that he was intoxicated and impaired when he left. Berliner, 232 Or.App. at 545. It therefore concluded that any error regarding the BAC was harmless. Petitioner sought further review in the Oregon Supreme Court, which was denied. 348 Or. 291, 231 P.3d 795 (2010).

         Petitioner next filed for post-conviction relief ("PCR") in Umatilla County where he claimed that a competent trial attorney would have recognized the exculpatory value of the Crime Lab's whole blood tests and offered them as evidence. The PCR court denied relief on this claim as well as others not relevant to this habeas proceeding. The Oregon Court of Appeals affirmed the PCR court's decision without opinion, and the Oregon Supreme Court denied review. Berliner v. Coursey, 266 Or.App. 229, 337 P.3d 204 (2014), rev. denied, 356 Or. 689, 344 P.3d 1111 (2015).

         Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on September 21, 2015, and the Court appointed counsel to represent him shortly thereafter. With the assistance of counsel, Petitioner argues that he received ineffective assistance of trial counsel when his attorney failed to: (1) introduce valid, exculpatory BAC evidence in the form of the Crime Lab results; (2) adequately object to the hospital's plasma test; and (3) elicit relevant testimony from Dr. Grimsbo regarding the invalid BAC evidence.

         I. Unargued Claims

         The Petition for Writ of Habeas Corpus raises 19 grounds for relief, and Petitioner's argued claims represent Grounds Eight and Ten. Petitioner does not argue the merits of his remaining claims in his briefing, nor does he address any of Respondents' arguments as to why relief on these claims should be denied. The Court has examined these claims on the existing record and the pro se Petition and concluded that Petitioner has not carried his burden of proof. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (Petitioner bears the burden of proving his claims).

         II. Claims Properly Before This Court

         Respondents assert that Petitioner failed to fairly present his argued claims that counsel failed to move to suppress the hospital draw, or introduce expert testimony from Dr. Grimsbo challenging the plasma test, [1] leaving them procedurally defaulted. See Rose v. Lundy, 455 U.S. 509, 519 (1982) (requiring a habeas petitioner to present his claims to a state's highest court in order to preserve them for federal habeas review) . He directs this Court's attention to the PCR Petition for Review filed in the Oregon Supreme Court where Petitioner clearly framed the issue presented as whether counsel was constitutionally ineffective "for failing to offer the results of an exculpatory blood alcohol test into evidence during a jury trial when the test contradicts the results of a blood test offered by the state and the defendant's level of intoxication is directly at issue[.]" Respondents' Exhibit 142, p. 15.

         As Petitioner points out, his argued claims are all necessarily reliant upon whether counsel failed to appreciate the significance of, and present evidence of, the results from the Crime Lab blood testing. The Court views the claim broadly to state that trial counsel's failure to recognize the importance of the Crime Lab results and introduce them prevented him from effectively presenting Dr. Grimsbo's testimony so as to mount a challenge to the State's plasma test result. Ill. Standard of Review An application for a writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) "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 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 of § 2254(d)(1), a federal habeas court may grant relief "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. Id. at 410.

         Twenty-eight U.S.C. § 2254(d) "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents. It goes no farther." Harrington v. Richter, 562 U.S. 86, 102 (2011).

         Twenty-eight U.S.C. § 2254(d)(2) allows a petitioner to "challenge the substance of the state court's findings and attempt to show that those findings were not supported by substantial evidence in the state court record." Kibbler v. Benedetti,693 F.3d 1140, 1146 (9th Cir. 2012). A federal habeas court cannot overturn a state court decision on factual grounds "unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell,537 U.S. 322, 340 (2003). This is a ""daunting standard-one that will be satisfied in relatively few cases,' especially because we must be "particularly deferential to our state-court ...


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