United States District Court, D. Oregon
THERON D. HALL, Petitioner,
MARK NOOTH, Respondent.
OPINION AND ORDER
MICHAEL' W. MOSMAN CHIEF UNITED STATES DISTRICT JUDGE.
November 9, 2018, Magistrate Judge Stacie F. Beckerman issued
her Findings and Recommendation ("F&R") ,
recommending that I grant Mr. Hall's Petition for a Writ
of Habeas Corpus  as to ground one (ineffective assistance
of trial counsel) and deny it as to grounds two (unknowing
and involuntary guilty plea), three (ineffective assistance
of appellate counsel), and four (constitutional violation
based on a jury instruction). Judge Beckerman recommended that
I grant a Certificate of Appealability (COA) on ground three
only. Mr. Nooth objected  to the F&R on the grounds
that it (1) bases its grant of relief on a claim that Mr.
Hall neither raised in his federal habeas petition nor fairly
presented to the habeas court; and (2) fails to afford
appropriate deference to the state court's decision
denying relief on ground one as required by 28 U.S.C. §
224(d). Mr. Hall responded to Mr. Nooth's
objections. As discussed below, I agree with Mr. Nooth that,
applying AEDPA's deferential standard of review, the
state court's decision denying Mr. Hall's ineffective
assistance of counsel claim was not contrary to clearly
established law. Accordingly, I reject Judge Beckerman's
recommendation that I grant ground one of Mr. Hall's
Petition. I, however, adopt her recommendation that I deny
grounds two, three, and four of the Petition and grant a CO A
as to ground three.
magistrate judge makes only recommendations to the court, to
which any party may file written objections. The court is not
bound by the recommendations of the magistrate judge, but
retains responsibility for making the final determination.
The court is generally required to make a de novo
determination regarding those portions of the report or
specified findings or recommendations as to which an
objection is made. 28 U.S.C. § 636(b)(1)(C). However,
the court is not required to review, de novo or under any
other standard, the factual or legal conclusions of the
magistrate judge as to those portions of the F&R to which
no objections are addressed. Thomas v. Am, 474 U.S.
140, 149 (1985); United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003). While the level of scrutiny
with which I am required to review the F&R depends on
whether or not objections have been filed, in either case, I
am free to accept, reject, or modify any part of the F&R.
28 U.S.C. § 636(b)(1)(C).
gathering on March 3, 2003, Mr. Hall shot and killed Carlos
Hernandez-Sanchez in the course of robbing him and Alejo
Laura-Villanueva. While in custody in New Mexico on separate
felony charges, Mr. Hall admitted to two Portland Police
Bureau detectives that he shot Mr. Hernandez-Sanchez. New
Mexico extradited Mr. Hall to Oregon where a Multnomah County
grand jury indicted him on charges of aggravated murder and
two counts of robbery in the first degree with a firearm. Two
appointed lawyers, (collectively referred to as defense
counsel), represented him. Before trial, the trial judge
denied Mr. Hall's motion to substitute counsel, noting,
"I am confident that [defense counsel] have done
everything they need to do to prepare for trial in this
case" and "They clearly are prepared for trial, I
think both legally and through their investigation."
[25-1 at41 of315]. The trial judge also denied Mr. Hall's
pre-trial motion to suppress all the statements he made while
in custody in New Mexico.
Hall's trial began in May 2006. Mr. Hall's defense
counsel asserted an affirmative defense at trial of guilty
except for insanity (GEI) under Or. Rev. Stat. §
161.295. At the time of trial, this defense required Mr. Hall
to prove that "as a result of mental disease or defect
at the time of engaging in criminal conduct [he] lack[ed]
substantial capacity to either appreciate the criminality of
the conduct or to conform the conduct to the requirements of
law." Or. Rev. Stat. § 161.295(1). In 2004, about
two years before Mr. Hall's trial, the Oregon Court of
Appeals held that Or. Rev. Stat. § 161.295 "does
not provide that the [GEI] defense is available upon proof of
a lack of capacity as a result of mental disease or defect
m combination with other factors such as voluntary
alcohol consumption." State v. Peverieri, 192
Or.App. 229, 232-33, 84 P.3d 1125 (2004) (emphasis in
original). The Peverieri court rejected the
defendant's claim that the trial court erred in rejecting
his insanity defense that was not "a result of mental
disease or defect" but instead was "a result of the
mental disease or defect and voluntary
intoxication." Id. (emphasis in original)
counsel offered four expert witnesses in support of Mr.
Hall's GEI defense, including Dennis Swiercinsky, a
psychologist specializing in neuropsychology. Dr. Swiercinsky
concluded Mr. Hall lacked the "substantial capacity to
appreciate the criminality of his conduct or conform his
conduct to the requirement of the law." [25-3 at
He testified on cross-examination that Mr. Hall did not
understand that killing someone with a pistol was wrong under
the law. Id. at 227. Dr. Swiercinsky acknowledged
that Mr. Hall told him he had "consumed a considerable
amount of alcohol on the night of the crime," and he
agreed that Mr. Hall's consumption of alcohol would
"contribute to a marked reduction in his ability to
reason." Id. at 227-228. Dr. Swiercinsky
clarified that "the alcohol would be a factor, but I
wouldn't - - and I don't know if this is what
you're implying or not - - but it wouldn't require
the alcohol to produce that type of behavior."
Id. at 228. He conceded that the alcohol with Mr.
Hall's "type of brain . . . makes things
worse," but again made clear that "the alcohol was
a factor but it was not a necessary factor" and that
"mental disease and defect is sufficient."
Id. at 228-229 and 231-232]. Dr. Swiercinsky
explained that "[t]he alcohol could exacerbate, could
create other factors, but that it does not - - it was not
required at that moment in order to substantiate my opinion
that he has a mental disease or defect." Id.
witnesses generally agreed that Mr. Hall was intoxicated at
the time of the shooting. On cross-examination, Irving
Robinson, who attended the March 3 gathering, testified that
Mr. Hall "appeared to be intoxicated and loaded on
weed." [25-2 at 181]. One of Mr. Hall's friends,
Anthony Mason, stated that Mr. Hall had been drinking earlier
that day and had also used marijuana. Id. at 239,
247-248. Wendelin Elliott, at whose home the March 3
gathering occurred, also testified that Mr. Hall was
intoxicated when he shot Mr. Hernandez-Sanchez. Id.
at 214. Only Mr. Lara-Villanueva stated that Mr. Hall
"didn't look like he was very drunk." After the
defense rested, the prosecutor moved for a directed verdict
on the GEI defense on the grounds Peverieri barred a
defendant from "claiming] the defense of guilty except
for insanity if he was also voluntarily intoxicated at the
time that the incident took place." 26-1 at 164-165. One
of Mr. Hall's attorneys, argued that, taken in a light
most favorable to the defense, the evidence showed
"there is an issue of a not guilty by insane
defense." Id. at 165-166. The trial judge
stated he was "satisfied that [defense counsel]
established that there's some evidence -- some evidence
to establish a mental disease or defect. . . [but] the
question is . . . when it is in combination with alcohol use,
can you go forward on the defense." Id. The
trial judge stated defense counsel had "the most
wishy-washy expert on the issue that I think you could ever
imagine" who "was back-peddling like nobody's
business on the issue of alcohol use once it became clear to
him what the law was." Id. at 167. Mr.
Hall's counsel countered that "the people that were
testifying that Mr. Hall was drunk or under the influence of
alcohol were people who were themselves so drunk that they
could barely stand up" and that "[was] not
credible testimony to say for sure that Mr. Hall was in fact
intoxicated to that level or degree that it would take away
an insanity defense." Id.
trial judge found "in the brightest light most favorable
to the Defense in this case, it is a fact for the jury . . .
for them to determine what level of intoxication exists and
how to balance of [sic] the intoxication against the issue of
insanity and mental illness." Mat 168-169. The trial
judge added that "it's pretty clear law right now
from the Court of Appeals as to where this defense is
going" and that he would "allow the Defense to go
forward with some reservation in terms of how I see the
evidence in this case." Id. at 169.
discussing jury instructions with the parties at the close of
trial, the trial judge asked defense counsel to clarify
whether they planned to ask for a lesser included offense;
the trial judge noted his understanding was "you were
asking for Felony Murder as a lesser included of Aggravated
Murder, and I wasn't sure of what exactly you meant at
that time." [26-2 at 209]. In response, one of Mr.
Hall's attorneys asked for a felony murder instruction
because the state argued that under Peverieri Mr.
Hall's voluntary intoxication precluded his GEI defense.
Id. at 209-210. Defense counsel noted that
intoxication could negate intent, which would allow a jury to
find Mr. Hall guilty of felony murder, not aggravated murder.
Id. at 210. One of Mr. Hall's attorneys also
asked, for the first time, for a manslaughter instruction.
Id. The trial judge expressed annoyance that the
attorney had not previously requested a manslaughter
instruction and ruled that he would include an instruction on
"intentional murder" but would deny the request for
a lesser included instruction of manslaughter. Id.
at 210-211, 216.
later discussion about jury instructions, the trial judge
decided "out of an abundance of caution" to include
all the lesser-included instructions, including manslaughter
because the state wanted them included. [26-3 at 28-29]. The
prosecutor asked the trial judge to include these
instructions because she worried defense counsel planned to
argue in closing that the state had not meet its burden of
proof on the aggravated murder charge and did not "want
to have any possibility that there would be reversible error
because there was at least some small evidence of
intoxication on the part of the defendant." Id.
at 30. In response, Mr. Hall's counsel reminded the court
that two of the eyewitnesses to the crime "indicated
that Mr. Hall was drunk." Id. The trial judge
agreed to give the "lesser included" instructions
because the state conceded them. Id. at 31.
closing arguments, the prosecutor argued that if the jury
found Mr. Hall "hasn't demonstrated that he
wasn't intoxicated, then you can't - - then he simply
cannot apply the [GEI] defense." [26-3 at 43]. Defense
counsel did not object to the prosecutor's
characterization of the law on the GEI defense, and Mr.
Hall's lawyer who gave the closing argument did not
mention Mr. Hall's alleged intoxication during the
defense's closing. The trial judge instructed the jury
that "if you find the defendant's voluntary
intoxication, if any, contributed to defendant's lack of
substantial capacity to appreciate the criminality of his
conduct or conform his conduct to the requirements of the
law, then you must reject his defense of guilty except for
insanity." Id. at 107. The jury rejected Mr.
Hall's GEI defense and returned a verdict of guilty on
all counts. [24-1 at 2-4]. The jury declined to impose the
death penalty, and the trial judge imposed a sentence of life
without parole for the aggravated murder conviction and two
concurrent ninety-month sentences for robbery in the first
Hall sought state post-conviction relief (PCR) on the ground,
among others, that his trial counsel performed below a
reasonable standard by not adequately investigating the facts
and properly preparing to put on a viable defense. [24-2 at
29]. In its response, the state relied in part on affidavits
from Mr. Hall's trial counsel. Both his trial attorneys
stated they had a full understanding of the law regarding the
defenses of GEI and voluntary intoxication and that they
believed a GEI defense was stronger than voluntary
intoxication because the evidence did not support a claim
that Mr. Hall accidentally shot Mr. Hernandez-Sanchez. [24-2
at 155 (¶¶ 14, 17-18)]. and 161(11 8-10)]. In its
December 2011 Findings of Fact, Conclusions of Law, the PCR
court found "presentation by trial counsel of the
defense of [GEI] was reasonable under the circumstances of
the case." Id. at 314. The PCR court noted that
despite admitting the murder for which he was charged, Mr.
Hall refused to accept the plea deal offered by the state;
therefore, "trial counsel had to come up with some kind
of defense." Id. The PCR court concluded that
"[Mr. Hall] was not denied the right to assistance of
counsel... as articulated by the United States Supreme Court
in Strickland v. Washington, 466 U.S. 668
(1984)." Id. at 315.