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Hall v. Nooth

United States District Court, D. Oregon

March 29, 2019

THERON D. HALL, Petitioner,
v.
MARK NOOTH, Respondent.

          OPINION AND ORDER

          MICHAEL' W. MOSMAN CHIEF UNITED STATES DISTRICT JUDGE.

         On November 9, 2018, Magistrate Judge Stacie F. Beckerman issued her Findings and Recommendation ("F&R") [100], recommending that I grant Mr. Hall's Petition for a Writ of Habeas Corpus [1] 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).[1] Judge Beckerman recommended that I grant a Certificate of Appealability (COA) on ground three only. Mr. Nooth objected [111] 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).[2] 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.

         STANDARD OF REVIEW

         The 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).

         BACKGROUND

         At a 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.

         Mr. 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)

         Defense 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 226[3]. 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.

         Other 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.

         The 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.

         When 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.

         In a 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.

         During 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 degree. Id.

         Mr. 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.

         LEGAL ...


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