Opinion
6:15-cv-02005-JR
03-27-2023
GROVER CLEVELAND CLEGG, JR., Petitioner, v. JEFF PREMO, Superintendent, Respondent.
FINDINGS AND RECOMMENDATION
JOLIE A. RUSSO, UNITED STATES MAGISTRATE JUDGE
Petitioner, an adult in the custody of the Oregon Department of Corrections, brings this habeas corpus action pursuant to 28 U.S.C. § 2254 challenging his convictions for aggravated murder, solicitation to commit aggravated murder, felony murder, and first-degree assault. For the reasons that follow, the Amended Petition for Writ of Habeas Corpus (ECF No. 31) should be DENIED.
BACKGROUND
Petitioner's convictions stem from the murder of his wife and injury to a witness of that murder. The Oregon Supreme Court summarized the facts adduced at petitioner's trial as follows:
On July 30, 1993, [petitioner]'s wife, Christina (Tina) Clegg, was shot and killed by two gunman wearing ski masks who burst into the Albina Head Start office where Tina worked as a receptionist. One of the men walked directly toward Tina and shot her several times, the last three shots were in a straight line down her back, in a manner that indicated that the shooter had stood over her and shot downward. After shooting, the men asked for money, but left without taking anything of value. One of Tina's coworkers also was shot in the chest in the incident. One of the intruders carried a silver gun, but police never found the murder weapon. At least in part because of the manner in which Tina was murdered, police soon began to suspect that the motive for the attack was not robbery as first thought, but Tina's murder.
Ultimately, [petitioner] was indicted and charged with aggravated murder, conspiracy to commit aggravated murder, felony murder, intentional murder, assault, burglary, and two counts of solicitation to commit aggravated murder. The charges were based on allegations that [petitioner] arranged for the murder of his wife. At trial, the state's theory of the case was that [petitioner] had orchestrated the foregoing events because he was unhappy in his marriage to Tina, but did not want to risk either losing his home or paying child support as a result of divorce, and because he wished to collect the proceeds of a $100,000 insurance policy on Tina's life. According to the state, [petitioner] asked his brother, Randall Clegg, to find someone to kill his wife.
The state presented evidence that Randall had made more than one effort to find a killer. Randall first hired a man named Deskins to murder Tina for about $1,000. Deskins borrowed a gun from a friend, and Randall loaned Deskins a car and provided him with a photo album containing pictures of Tina. Deskins did not carry out his assignment, however. On one occasion, Deskins failed to carry out the plan because Tina unexpectedly went to church. The next day, Randall again loaned Deskins his car, telling him to return it after he had committed the murder. However, Deskins instead picked up a few friends, began drinking, and ultimately drove Randall's car into a pole. The police officer who dealt with the collision found assorted unfired bullets in the car and, in the trunk, a box of shotgun shells, a long-sleeved black T-shirt, and a black ski mask.
About two weeks later, Randall hired two other individuals, [Reschard] Steward and [Larry] Matthews, to kill Tina. The two also were to be paid $1,000 for the job. Tina's teenage daughter testified that, on the night before the murder, she saw [petitioner] with Randall and Matthews in the basement of [petitioner]'s house; the Cleggs were showing Matthews a small silver gun. After the murder, Steward told friends that he had stolen the car that was used in the murder and that Matthews was the shooter. Two of Tina's fellow employees confirmed that Steward was one of the two intruders on the day of the murder, but was not the one who shot Tina.
Although there was direct evidence linking Randall, Steward, and Matthews to Tina's murder, the state's case against [petitioner] was circumstantial. The state presented evidence that, in the year before the murder, [petitioner] often had talked to coworkers about his marital unhappiness and frequently stated that he would have his wife killed rather than pay child support. In addition, [petitioner] told coworkers that, if his wife were to die, he would
receive $100,000 in life insurance benefits, his mortgage would be paid off, and he would be able to keep his children. [Petitioner]'s insurance agent testified about [petitioner]'s efforts, within hours of Tina's murder, to inquire about the extent of the coverage. Finally, various witnesses, including the investigating police officers and [petitioner]'s friends and coworkers, testified about [petitioner]'s relative lack of grief over Tina's death and his lack of interest in apprehending the killers.
The piece of evidence tending most directly to connect [petitioner] with the crime was testimony concerning a telephone conversation between [petitioner] and Tina only moments before the murder. From that conversation, a jury could infer that [petitioner] was attempting to ensure that Tina would be present in the office at the time that her killers arrived. The testimony came from one of Tina's coworkers, [Kendra] Hughes.
Hughes testified that, about two to five minutes before the murder, she walked up to Tina's window just as Tina was hanging up the telephone after a conversation with [petitioner]. Hughes observed that Tina looked happy; Hughes asked Tina what accounted for her good mood. Hughes stated that Tina “told me that her husband loved her.” Hughes then testified as follows:
“And I said, ‘Oh and what brought that on?' And she said, ‘I just talked to [petitioner] and told him Gladys was going to take me to the bank, and he said, “No, no, no,” and insisted that I not let Gladys take me, that he was going to take me when he took me to lunch.'”State v. Clegg (Clegg II), 332 Or. 432, 434-36 (2001) (footnotes in original).
Randall and Steward were charged with and convicted of crimes related to the murder and the assault on the coworker. The Court of Appeals affirmed those convictions without opinion, and this Court subsequently denied review. State v. Clegg, 153 Or.App. 718, 957 P.2d 1231, rev. den., 327 Or. 431, 966 P.2d 222 (1998); State v. Steward, 151 Or.App. 804, 960 P.2d 394 (1997), rev. den., 326 Or. 465, 952 P.2d 65 (1998). Matthews was killed a few weeks after the murder in an unrelated incident and never brought to trial.
Other witnesses testified that Tina earlier had reported that she had been planning to go out to lunch with defendant. Still others confirmed that defendant telephoned his wife in the moments before the murder, and they had observed Hughes and Tina engaging in a conversation around that time.
Petitioner was tried by a jury in a joint trial with Randall and Steward. The jury found petitioner guilty but did not find him eligible for the death penalty. Resp. Exh. 176, 177. The trial court merged several of the verdicts and sentenced petitioner to life without the possibility of parole for aggravated murder, 60 months concurrent for solicitation to commit aggravated murder, life with a minimum of 25 years for felony murder, and 120 months, consecutive, for first-degree assault. Resp. Exh. 101.
Petitioner filed a direct appeal, asserting nineteen assignments of error, eleven of which challenged the admission of various hearsay statements including Hughes's testimony about Tina's phone call with petitioner. Resp. Exh. 103. The Oregon Court of Appeals affirmed in a written opinion which addressed only the assignment of error related to the admissibility of Hughes's testimony. State v. Clegg (Clegg I), 161 Or.App. 201 (1999). The court affirmed, finding that Hughes's testimony was hearsay and that the state-of-mind exception in OEC 803(3) did not apply, but that the error was harmless in light of the considerable, compelling evidence of petitioner's guilt. Id.
Petitioner then sought review, asking the Oregon Supreme Court to decide solely “whether the Court of Appeals correctly concluded that the erroneous admission of hearsay evidence was harmless in this lengthy, complex aggravated murder case.” Resp. Exh. 107, p. 4. The Oregon Supreme Court granted review. Petitioner argued that Hughes's testimony was not harmless, and that various other statements made by Tina (which the Oregon Court of Appeals had not addressed in its opinion) were erroneously admitted under Oregon's state-of-mind exception.
The Oregon Supreme Court agreed with the Oregon Court of Appeals that Tina's statements to Hughes (that petitioner called Tina and that, when she suggested she might leave the office, he tried to persuade her to stay) were hearsay and therefore inadmissible unless an exception to the hearsay rule applied. Clegg II, 332 Or. at 439. The Oregon Supreme Court overruled the Court of Appeals, however, finding that the state-of-mind exception applied because, although Tina's statements in the phone call did not directly comment on her state of mind, they reflected or supported a reasonable inference about her state of mind. Id. at 441. The court further held the statements were relevant and because petitioner had not requested a limiting instruction, the jury could use the statements for any purpose. Id. at 441-43.
Petitioner then sought state post-conviction relief (“PCR”). Counsel ultimately filed a Fifth Amended Petition alleging a violation of the Confrontation Clause of the Sixth Amendment, fifteen claims of ineffective assistance of trial counsel, twelve claims of ineffective assistance of appellate counsel, five claims of trial court error, one claim of prosecutorial misconduct, and cumulative error. Resp. Exh. 117. Following an evidentiary hearing, the PCR trial court denied relief in a 54-page letter opinion and a formal 40-page Findings of Fact and Conclusions of Law. Resp. Exh. 181; Resp. (Corrected) Exh. 182. As to the claims of trial court error and prosecutorial misconduct, the PCR trial court concluded they were procedurally barred. Resp. Exhs. 181-183. The PCR trial court concluded the Confrontation Clause rule set forth in Crawford v. Washington, 541 U.S. 36 (2004) did not apply retroactively on collateral review and that petitioner's rights to confrontation were not violated thereunder. Resp. (Corrected) Exh. 182, p. 6. Finally, the PCR trial court concluded that petitioner was not denied the right to effective assistance of trial or appellate counsel, and that petitioner was not prejudiced by counsels' representation. Resp. (Corrected) Exh. 182, pp. 6-40, 42-43.
Petitioner appealed, asserting three assignments of error: (1) the PCR trial court erred in failing to find the criminal trial court denied petitioner's right to confront witnesses; (2) the PCR trial court erred in denying relief on petitioner's ineffective assistance of trial counsel in several respects; and (3) the PCR trial court erred in denying relief on petitioner's claims of ineffective assistance of appellate counsel in several respects. Resp. Exh. 184. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Clegg v. Premo, 269 Or.App. 175, rev. den., 357 Or. 143 (2015).
On October 23, 2015, petitioner filed his habeas corpus action in this court. The Court appointed counsel, and on January 25, 2017, petitioner filed his First Amended Petition for Writ of Habeas Corpus (ECF No. 31). Petitioner alleges the following claims for relief:
Ground One: Petitioner's Fifth, Sixth, and Fourteenth Amendment rights to a fair trial were violated when the trial court:
a. Denied the defense motion to sever petitioner's trial from that of Randall Clegg and Reschard Steward.
b. Denied the defense motion to exclude or objections to hearsay statements by the following prosecution witnesses: Kendra Hughes; Michelle Luey; Tenicea Amos-Combs; Lisa Guy; Charlotte Sanders; Joyce Buchanan; Carol Johnson; Jan Williams; Karol Klingbile; Michelle Kelly; Gloria Boone; James Bellah; Marilyn Schultz; Neithan Stanley; Shyra Wade; George Carlson; Valerie Alvin; Dr. Glen Wheler.
c. Denied the defense access to prosecution witness Hughes's therapist records wherein she discussed the conversation she recalled after hypnosis with the deceased on the day of the murder.
d. Denied the defense motion to exclude or objections to prosecution witness Rebecca Wooten's testimony on the grounds that it was irrelevant and without foundation, and that it characterized the evidence in the case. This evidence failed to meet the evidentiary foundations for expert testimony and violated due process.
e. Denied the defense motion to exclude or objections to prosecution witness James Bellah's testimony that certain conversations with petitioner and others and other evidence was “unusual,” his conclusion that “that son of a bitch [petitioner] knows something about it” his personal opinion about what he would have done had his wife been killed, and his hearsay statements from unidentified “black people [who] have told me that [petitioner] did not grieve like a black person.”
f. Denied the defense motion to exclude or objections to the testimony prosecution witnesses John Lotking and Lowell Todd that petitioner's behavior was “unusual.”
g. Denied the defense motion for discovery of all of Reschard Steward's prior statements, including those made during plea negotiations, and failed to allow the defense to make an offer of proof or conduct an in camera review of said statements.
h. Denied the defense the ability to cross-examine prosecution witnesses Reschard Steward and Curtis Deskins concerning their statements to others, including law enforcement.
i. Allowed Curtis Deskins to testify as a witness despite the court's expressed concern about his competency.
j. Denied petitioner the ability to present a defense to rebut the prosecution's theory that this was an “unusual” set of circumstances, therefore it was a contract murder because no valuables were taken. The court refused to allow the defense to present evidence of other shooting deaths in the same neighborhood where valuables were not taken, yet people were killed.
k. Allowing and facilitating the prosecution's use of certain portions of testimony and arguments from the videotaped record during the prosecution's closing arguments.
Ground Two: Petitioner's trial attorneys provided ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments as follows:
a. Prejudicial motion to join petitioner's case with Reschard Steward and Randall Clegg's case.
b. Failure to raise a for-cause or peremptory challenge to Juror Christ in voir dire.
c. Failure to move to preserve all evidence, including but not limited to the detective notes.
d. Failure to object to jury selection procedures that violated due process.
e. Failure to object to hearsay testimony of prosecution witnesses Jeri Lynn Ledbetter, Melvin Spencer, Charlotte Sanders, and Hashim Rhodes.
f. Failure to request limiting instructions with regard to hearsay statements of Kendra Hughes, Michelle Luey, Tenicea Amos-Combs, Lisa Guy, Charlotte Sanders, Joyce Buchanan, Carol Johnson, Jan Williams, Karol Klingbile, Michelle Kelly, Gloria Boone, James Bellah, Sean Starkey, Shyra Wade, Neithan Stanley, Remondo Stanley, Marilyn Schultz, Hashim Rhodes, Jeri Lynn Ledbetter, and Melvin Spencer.
g. Failure to properly argue the issues of hearsay and redaction of unavailable co-defendant Steward's statements so as to redact any reference to petitioner and unavailable co-defendant Randall Clegg.
h. Failure to impeach witnesses with prior inconsistent statements and evidence of prior perjuries and other means of impeachment of prosecution witnesses, including but not limited to Kendra Hughes.
i. Failure to object to testimony of Rebecca Wooten as lacking evidentiary foundation as an expert witness on this matter - “execution style” of this incident.
j. Failure to elicit as evidence that Lisa Guy had identified Hunter as the perpetrator of the murder, which would have disproved the prosecution theory that petitioner and his brother hired Matthews/Deskin to commit the murder.
k. Failure to object to testimony of Lowell Randolf Todd and James Lotking regarding the “unusual nature” of petitioner's interest in the life insurance money of the deceased so soon after the murder without laying requisite expert evidentiary foundation.
l. Failure to object to James Bellah's testimony that petitioner's actions were “unusual” the evening of the murder and after the murder.
m. Failure to object to testimony of James Bellah when he testified that it was his “initial feeling that this was an intentional homicide” and “not a robbery.”
n. Failure to properly advise petitioner about his right to testify in his own defense at trial.
o. Failure to request funding and testimony of an expert to testify about Portland's African-American culture.
p. Failure to request funding and testimony of an independent expert to analyze the fingerprints and palm prints found at the crime scene and the suspects' vehicle.
q. Failure to request funding and testimony of an expert witness on memory recall regarding Kendra Hughes's testimony.
r. Failure to effectively cross-examine Dr. Frank Colistro.
Ground Three: Petitioner's appellate attorney provided ineffective assistance of counsel in violation of the Fifth, Sixth, and Fourteenth Amendments when she failed to raise the following claims:
a. Trial court's error for denial of defense discovery of psychologist/psychiatrist information, including the name of the treating doctor for Kendra Hughes.
b. Trial court error for denial of motion to produce grand jury notes.
c. Trial court error for denial of motions to sever as violation of right to a fair trial.
d. Trial court error for denial of motions to suppress petitioner's statements that were obtained through the use of an unlawful wiretap under Oregon law and the due process clause.
e. Trial court error for denial of motion to exclude hearsay statements of Christina Clegg as offered through Kendra Hughes, and Larry Matthews as offered through Gloria Boone, James Bellah, and George Carlson.
f. Trial court error for denial of motion to exclude expert testimony without proper expert foundation of prosecution witness Rebecca Wooten.
g. Trial court error for allowing Reschard Steward's hearsay statements (and trial court's denial of petitioner's attempts to exclude the ones that came in through Shyra Wade) without redaction of references to petitioner or Randall Clegg.
h. Trial court error for ruling that Reschard Steward was “unavailable” as a witness under OEC 804(3)(c) in violation of petitioner's due process and confrontation rights.
i. Trial court error for denial of motion for full disclosure of all Reschard Steward's prior statements.
j. Trial court error for denial of motion to cross-examine Curtis Deskins regarding his statements about his pending attempted murder charges.
k. Trial court error for exclusion of defense evidence of prior instances wherein individuals were killed during robberies in which no money was taken.
l. Trial court error for improperly provided jury instructions suggesting that they had to unanimously agree on the mitigation factors in order to grant petitioner life with the possibility of parole.
m. Trial court error for playing back portions of the record during the prosecution's closing argument.
n. Trial court error for imposing consecutive sentences.
o. Trial court error for denial of motion for new trial based on newly-discovered evidence, co-defendant Reschard Steward's post-trial statements.
Ground Four: Prosecution misconduct which violated the Sixth and Fourteenth Amendments in the following manners:
a. Failure to provide timely discovery in general, including but not limited to Dr. Colistro's reports, and complete discovery of Reschard Steward's statements.
b. Failure to preserve potentially exculpatory evidence by failing to notify law enforcement agents not to destroy their interview and investigation notes, allowing the destruction of the clothing and evidence from Randall Clegg's car, and failing to have law enforcement vacuum the car for hairs and fibers.
c. Misuse of the grand jury process by using it as a means of investigation for trial and failing to disclose favorable evidence from the grand jury to the defense.
d. Becoming an unsworn witness by expressing highly prejudicial “evidence,” through the prosecutor's closing argument, that prosecution witness Ikaim Glover gave Randall Glover a gang symbol from the stand.
e. Arguing during closing arguments that “some of the [defense] attorneys have not been quite candid,” providing unsworn statements that the prosecution had given the defense all of the discovery, including the prosecutors' “personal notes.”
f. Vouching for the prosecution's evidence during rebuttal.
g. Becoming an unsworn witness passing judgment on the defense investigator providing a witness with police reports and disparaging the defense.
h. Disparaging the defense function by arguing that the defense attorneys “don't like the rules of hearsay.”
i. Vouching for prosecution witness Gloria Boone.
j. Arguing that the defense should have presented more evidence by investigating the owners of the car, thereby distorting the burden of proof.
k. Misstating the defense's arguments concerning prosecution witnesses Jones, Johnston, and McGuire's statements.
l. Becoming an unsworn witness by stating in rebuttal that it was unusual for the spouse of a murder victim not to come to the district attorney's office and erroneously attributing this to prosecution witness Greg Patton.
m. Becoming an unsworn witness by stating in closing argument that the men playing basketball near the Head Start office were not associated with the incident because they weren't associated with a car.
n. Appealing to the passions of the jury by arguing in closing that the jury should keep in mind the other shooting victim's testimony.
o. Mischaracterizing the defense theory as all of the prosecution witnesses being part of a “big conspiracy we have against the Clegg brothers.”
p. While arguing that the jury shouldn't believe that the “Clegg family, the extended family, is not on trial,” nonetheless emphasizing in closing argument Christina Clegg's statements about them calling her a half-breed and scar chest.
q. Appealing to the jurors as parents by arguing in closing that prosecution witness Jones was not a rat because he set up a college fund for the Clegg children.
Ground Five: Petitioner's due process rights under the Fifth and Fourteenth Amendments were violated because his trial was fundamentally unfair due to the cumulative errors.
Ground Six: Petitioner is actually innocent and his continued incarceration violates the Eighth Amendment's prohibition against cruel and unusual punishment and the Fifth and Fourteenth Amendments' guarantees of due process of law.
In his Reply and Supplemental Memorandum of Law in Support of § 2254 Habeas Corpus Petition (ECF No. 110), petitioner withdraws “claims 2b, 2s, 4a as it pertains to Dr. Colistro's report and discovery of Steward's statements during plea negotiations.” The claims are included here solely for ease of reference and continuity; the Court does not otherwise address these claims.
In his initial Memorandum in Support of Amended Petition for Writ of Habeas Corpus and subsequent briefing, petitioner does not address all of the claims alleged in the Amended Petition; nor does he specifically identify the claims he does address by reference to the Amended Petition. In the Response to Petitioner's Memorandum in Support, respondent understands petitioner's Memorandum as addressing the following grounds: 1(b), 2(a) and (e), 4(d)-(n) and (p), and 5. The Court agrees, noting that petitioner also appears to address grounds 2(f) and (g). In petitioner's subsequent Reply & Supplemental Memorandum, petitioner specifically identifies and references grounds 2(f) and 2(g); also, although not specifically referenced, petitioner addresses ground 2(a).
Of the claims petitioner does address, respondent contends that all but two (ground 2(f) in part, and ground 2(g)) are procedurally defaulted, and that the state court decisions denying relief on these two claims are entitled to deference. Respondent further contends that petitioner failed to satisfy his burden of proof on the unaddressed claims.
DISCUSSION
I. Relief on the Merits - Fully Exhausted Claims
Petitioner alleges trial counsel was ineffective in failing to request limiting instructions for Hughes' testimony (ground 2(f)) and in failing to object to the hearsay testimony of George Carlson concerning statements made by Reschard Steward (ground 2(g)). Respondent concedes that these claims were fully exhausted in petitioner's state PCR proceedings but argues that the PCR court's denial of the claims must be afforded deference and that petitioner is not entitled to habeas corpus relief on the merits.
A. Legal Standards
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 confront 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. Section 2254(d) “preserves authority to issue the writ in cases where there is no possibility fair-minded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents. It goes no further.” Harrington Richter, 562 U.S. 86, 102 (2011).
Section 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.” Hibbler 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 colleagues.” Hernandez v. Holland, 750 F.3d 843, 857 (9th Cir. 2014) (quoting Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)).
In assessing claims of ineffective assistance of counsel, the Court uses the general two-part test established by the Supreme Court. Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). First, a petitioner must show that his counsel'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.” Id. at 689.
Second, a petitioner must show that his counsel's performance prejudiced the defense. The appropriate test for prejudice is whether the petitioner can show “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the trial. Id. at 696. When Strickland's general standard is combined with the standard of review governing 28 U.S.C. § 2254 habeas corpus cases, the result is a “doubly deferential judicial review.” Mirzayance, 556 U.S. at 122.
B. Analysis
1. Failure to Request Limiting Instruction Regarding Kendra Hughes's Testimony
Petitioner alleges trial counsel provided ineffective assistance by failing to request a limiting instruction to the jury concerning Kendra Hughes's testimony about the telephone call with petitioner that Tina Clegg described to Hughes shortly before the murder. Over trial counsel's objection, the trial court allowed Hughes to testify that shortly before Tina Clegg was shot in her office by intruders, Tina Clegg told Hughes that she had just spoken with her husband by telephone and when she told him she was going to the bank with a co-worker, petitioner told her not to go because he would take her when they had lunch together later that day. Tr. 1022, 1082-83.
The trial court found that this statement fell within Oregon's then-existing OEC 803(3) intent-or-plan exception to the hearsay rules because it showed that Tina Clegg intended to go with her husband to lunch and the bank, and why she had that intent. The Oregon Evidence Code allowed the trial court to admit this evidence to provide Tina Clegg's state of mind or intent or plan but prohibited the evidence to be used to “prove the fact remembered or believed” or to prove the past events that caused the state of mind. OEC 803(3); Kirkpatrick at § 803.03[3][a]. Had counsel requested a limiting instruction, the trial court was required to give it. See OEC 803(3) (“When evidence which is admissible . . . for one purpose but not admissible . . . for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly”) (emphasis added).
Petitioner presented this claim to the state PCR trial court. In a detailed written decision, the PCR trial judge denied relief:
1(a)(1). Trial counsel properly addressed the issue of admissibility of the victim's statements to Kendra Hughes and other witnesses during pre-trial proceedings.
1(a)(2). Trial counsel argued that the victim's statements were inadmissible hearsay and not relevant to any matter at trial.
1(a)(3). The trial court ruled that the victim's statements were admissible under OEC 803(3), citing State v. Brown, 310 Or. 347 357-38 (1990).
1(a)(4). The Court of Appeals subsequently found that the statements were inadmissible, but their admission constituted harmless error because evidence of [petitioner]'s guilt was substantial and convincing.
1(a)(5). The Supreme Court, on the other hand, held that the victim's statement was admissible under OEC 803(3) and OEC 401. See State v. Grover Clegg, 332 Or. 432 (2001).
1(a)(6). Trial counsel did not ineffectively or inadequately fail to object to such testimony, and trial counsel's actions did not prejudice petitioner's case or tend to affect the outcome.
1(a)(7). Trial counsel did not request an OEC 105 limiting jury instruction regarding the deceased victim's hearsay statements, offered through Kendra Hughes and other witnesses.
1(a)(8). The evidence establishes little or no likelihood that the absence of such a limiting instruction tended to affect the verdict in petitioner's case.
1(a)(9). On appeal, the Supreme Court held that the prosecution was entitled to use Hughes's testimony and no limiting instruction was required. State v. Clegg, 332 Or. 432, 442 (2001).
1(a)(10). The evidence does not establish that trial counsel was ineffective or inadequate in not seeking a limiting instruction, or that petitioner was prejudiced by trial counsel's actions.Resp. Exh. 181, pp. 11-12.
After addressing petitioner's remaining ineffective assistance of counsel claims, the PCR trial court reached (and explained) the following general conclusion:
16(a). The United States Supreme Court sets out the clearest principles by which a claim of constitutionally ineffective assistance of counsel is to be measured in Strickland v. Washington, 466 U.S. 668 (1994).
16(b). To prevail in post-conviction proceedings, petitioner must prove that trial counsels' performance was deficient, and that counsels' errors were so serious that they prejudiced petitioner to the extent that he was deprived of a fair trial and reliable result. Strickland at 678.
16(c). In assessing whether counsel achieved the required level of representation, performance must be evaluated from counsel's perspective at the time of the alleged error. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986).
16(d). Trial counsel need not automatically do a defendant's bidding or suspend his or her professional judgment, because “the strategy, tactics, and manner of advocacy of the defense are for counsel to determine based upon the exercise of professional skill and judgment.” Krummacher v. Gierloff, [290 Or. 867, 874-75 (1981)].
16(e). Petitioner's convictions did not result from trial counsels' unreasonable and prejudicial failure to diligently and conscientiously exercise skill and professional judgment in the proceedings.
16(f). In petitioner's case, the evidence establishes that he received his right to effective assistance of counsel under the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States and Article I, section 11 of the Constitution of the State of Oregon.Resp. Exh. 181, pp. 31-32.
The PCR trial court considered both prongs of the Strickland test, and concluded petitioner had not established either prong, and could not prevail on his ineffective assistance claim that counsel should have requested a limiting instruction. This conclusion is entitled to deference, as petitioner cannot establish he was prejudiced by counsel's alleged shortcoming.
As noted, on direct appeal, the Oregon Court of Appeals concluded that the trial court erred in admitting Hughes's testimony as it did not fall within the OEC 803(3) state-of-mind exception to the hearsay rule. The Court of Appeals nonetheless affirmed the conviction, finding that petitioner was not prejudiced by admission of the testimony in light of the totality of evidence against petitioner. As the Court of Appeals explained:
After considering all of the evidence in the record, we conclude that the evidence of [petitioner]'s guilt was substantial and convincing, and that there was little likelihood that the erroneously admitted evidence affected the verdict. Although the evidence here was circumstantial, it was compelling and was incompatible with defendant's innocence. As noted above, there was considerable evidence of problems in [petitioner]'s marriage. The evidence shows that the victim had expressed her unhappiness with defendant and how he was treating her. More significantly, defendant had told numerous coworkers that he wished that his wife were dead, that he wanted to kill her himself, and that “it would be nice to find somebody that would put a bullet in her head.” He had also related to coworkers his dual motive of obtaining life insurance proceeds and avoiding divorce and child support payments. Close to the time of these statements by [petitioner], his brother, Randall, made two successive hires of hitmen to “put the bullet” in [petitioner]'s wife. Randall told the first of the hitmen, Deskins, that [petitioner] wanted the victim killed. Randall's statement about [petitioner]'s involvement was heard by Deskin's cousin, as well as by Deskins himself. There was absolutely no indication that Randall did-or had any reason to-plan the murder of [petitioner]'s wife, independently of [petitioner]'s own expressed intention to bring about her death.
In addition, the evidence shows that defendant met with Randall and one of the hired killers the night before the killing and that the three examined a gun together. Although Randall apparently had earlier associations with one or more of the men that he hired, there was no evidence to suggest that there was any previous contact between [petitioner] and any of the actual or aspiring killers. Finally, as noted above, there was considerable evidence of [petitioner]'s apathy regarding his wife's death and the investigation of her death. It is telling that within hours of his wife's murder, [petitioner]'s prompt reaction was to contact his life insurance agent in pursuit of what he had revealed in his before-the-fact statements to be one of his goals in achieving her death. In sum, the circumstantial evidence here follows a very direct and uncomplicated inferential path: [Petitioner] acted on his expressed desire to have his wife killed, by having his brother hire killers and meeting with one of them, and defendant then acted in the immediate aftermath of the murder to realize the gain that he had sought. We conclude that there was substantial and compelling evidence of guilt and, in view of that, there was little, if any, likelihood that the trial court's error in admitting the testimony of Kendra Hughes affected the verdict.Clegg I, 161 Or App. at 209-10.
The Oregon Supreme Court then reversed the Court of Appeals' decision. Clegg II, 332 Or. 432. The Oregon Supreme Court found that Hughes's testimony did, in fact, fall squarely within the state-of-mind hearsay exception set forth in OEC 803(3). Id. In doing so, the Oregon Supreme Court noted that petitioner “did not ask the trial court to give the jury an instruction limiting the use of Hughes's testimony. Generally, once evidence has been admitted without restriction, it can be used by the jury for any purpose.” Id. at 443 (citations omitted). Petitioner argues that this statement by the court establishes that a limiting instruction should have been requested, that had one been requested the jury would have been allowed to use the evidence of the conversation only to show Tina Clegg's plan and would not have been able to use the timing of the call to demonstrate that petitioner spoke with her to keep her in the office, and thus it created a reasonable probability that the result of the case would have been different.
However, as the Oregon Supreme Court also noted, “[o]ther witnesses testified that Tina earlier had reported that she had been planning to go out to lunch with defendant. Still others confirmed that defendant telephoned his wife in the moments before the murder and that they had observed Hughes and Tina engaging in a conversation around that time.” Id. at 436 n.2. With this other evidence of the fact and timing of the call, the court stated, “as we have shown, the very timing of [petitioner]'s telephone call, even without information respecting its contents, had some tendency to prove what the contents demonstrated more clearly, viz., that [petitioner] wanted to keep Tina at the office.” Id. at 443 (emphasis in original). The Oregon Supreme Court concluded:
As the foregoing discussion demonstrates, Hughes's testimony concerning what Tina told her was admissible. The Court of Appeals' contrary ruling was in error. As noted, that court nevertheless affirmed [petitioner]'s conviction, because it ruled that admission of ‘Hughes's testimony, although error, was harmless. Thus, the Court of Appeals reached the correct result-affirmance.Id. (footnote omitted).
Given the Oregon Court of Appeals' and Oregon Supreme Court's explicit findings that admission of Hughes's testimony did not prejudice petitioner, and upon consideration of all of the evidence in the record, petitioner has not established a reasonable likelihood that the outcome of the case would have differed had a limiting instruction been requested. As such, he cannot prevail upon a claim that trial counsel was ineffective in failing to request a limiting instruction regarding that testimony and the PCR court's denial of relief on this claim is entitled to deference.
2. Failure to Object to Carlson's Hearsay Statements
Petitioner alleges that trial counsel was ineffective in failing to object to hearsay statements of co-defendant Reschard Steward that were offered through the testimony of George Carlson. Petitioner asserts that, but for counsel's error, there is a reasonable probability that at least one juror would have declined to convict petitioner of aggravated murder.
George Carlson, who formerly coached Steward in football, testified that sometime in September 1993 Steward spoke with Carlson and told him, “Larry Matthews had done the shooting . . . And he thought that the reason for the shooting was for insurance money and that [petitioner] had set it up and that - or, [petitioner] had initiated it and Randall [Clegg] had gone -acted as a go-between to help set it up. . . . He said the murder weapon was - belonged to Larry Matthews dad and that Larry had asked him to steal the gun back from his dad's car, where it was alleged to have been,” but Steward said he would not because he was afraid of Matthews's dad. Tr. 3608-3612. On cross-examination, Carlson testified that Steward “just indicated that he had some personal knowledge about the situation and who did it,” and nothing led Carlson to believe that Steward was personally involved in the murder. Tr. 3623.
Petitioner contends Steward's statement to Carlson were hearsay and not otherwise admissible. The PCR trial court considered this claim and denied relief, again with a lengthy explanation:
(6)(a). Trial counsel did not ineffectively or inadequately fail to verse themselves in or argue the relevant law relating to issues of hearsay and redaction of unavailable co-defendant Reschard Steward's statements.
(6)(b). Trial counsel objected and filed a pre-trial memorandum seeking to exclude evidence of Steward's hearsay statements to a variety of witnesses, as did trial counsel for petitioner's co-defendant, Randall Clegg.
(6)(c). Trial counsel objected to Steward's hearsay statements offered through Detective Bellah, Detective Schultz, Nathanial [sic] Stanley and Shyra Wade.
(6)(d). Nevertheless, the trial court admitted Steward's statements, including his 7/28/93 statement to Shyra Wade, his 7/31/93 statements to Shawn Starkey; his late July or early August 1993 statement to Neithan Stanley; his August 1993 statement to Romondo Stanley; his 12/1/93 statements to Det. Schulz; and his 12/1/93 statements to detectives Bellah and Taylor.
(6)(e). Steward's unredacted statements were admitted at trial through Detective James Bellah, Detective Marilyn Schultz, Nathaniel Stanley, Shyra Wade, George Carlson, and State's Exhibits 31 and 59.
(6)(f). Trial counsel did not ineffectively or inadequately fail to object to additional hearsay statements offered through the testimony of George Carlson.
(6)(g). Carlson testified that he had known and coached Steward in his capacity as athletic director at Jefferson High School.
(6)(h). Carlson testified that in September of 1993, Steward had approached him with knowledge of the Head Start shooting.
(6)(i). Steward told Carlson that Larry Matthews had done the shooting and that Steward was at odds with Matthews at the time over a street debt.
(6)(j). Steward told Carlson that petitioner had initiated the shooting over insurance money and Randall Clegg had acted as a go-between.
(6)(k). Steward told Carlson that the murder weapon belonged to Larry Matthews' dad and Matthews wanted Steward to steal the gun back from his dad's car.
(6)(1). The trial court would have treated any objection by trial counsel to Carlson's testimony in a manner consistent with its rulings on statements to other witnesses.
(6)(m). The absence of such an objection did not prejudice petitioner or tend to affect the outcome of his case.
(6)(n). Steward's statements are not hearsay because they are the reliable and trustworthy statements of an unavailable witness, made either in furtherance of a conspiracy or statements against penal interest, and are therefore admissible under OEC 804(3)(c). See State v. Nielsen, 316 Or. 611, 618-632 (1993).
(6)(o). Petitioner has failed to meet his burden of establishing that Steward's statements were inadmissible hearsay, that trial counsel was ineffective in making objections, or that he was prejudiced by trial counsels' actions.Resp. Exh. 181, pp. 17-19.
The PCR court's decision was not an unreasonable application of Strickland and, accordingly, is entitled to deference. Where the deficient performance alleged is trial counsel's failure to rase an objection, a habeas petitioner must establish that the decision to forego objection fell below an objective standard of reasonableness, and that if counsel had objected, there is a reasonable probability that the objection would have been sustained and the outcome of the trial would have been different. See Juan H. v. Allen, 408 F.3d 1262, 1273-74 (9th Cir. 2005) (noting that counsel is not ineffective for failing to raise a meritless objection). The PCR court found that Steward's statements, introduced through Carlson's testimony, were admissible as a matter of Oregon law, a determination that is binding on this court. See Estelle v. McGuire, 502 U.S. 62, 67-8 (1991) (“It is not the province of a federal habeas court to reexamine statecourt determinations on state-law questions”) (citations omitted). As such, petitioner has not established prejudice or constitutionally defective performance by trial counsel. See Thumm v. Tewalt, No. 1:19-cv-00389-DCN, 2023 WL 2308248, at *17 (D. Idaho Mar. 1, 2023) (where state court determined evidence was admissible as a hearsay exception under state evidence rules, trial counsel was now ineffective in failing to object to the admission of out-of-court statements as hearsay). In any event, as discussed above, even assuming that an objection would have resulted in the exclusion of Carlson's testimony, petitioner has not shown a reasonable probability that the outcome of his trial would have been different. Accordingly, petitioner is not entitled to habeas relief on this claim.
II. Procedurally Defaulted Claims
With the exception of the two claims discussed above, respondent argues petitioner procedurally defaulted the remaining claims for relief.
A. Legal Standards
A habeas petitioner must exhaust his claims by fairly presenting them to the state's highest court, either through a direct appeal or collateral proceedings before a federal court will consider the merits of those claims. Rose v. Lundy, 455 U.S. 509, 519 (1982). “As a general rule, a petitioner satisfies the exhaustion requirement by fairly presenting the federal claim to the appropriate state courts . . . in the manner required by the state courts, thereby ‘affording the state courts a meaningful opportunity to consider allegations of legal error.'” Casey v. Moore, 386 F.3d 896, 915-916 (9th Cir. 2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 257 (1986)). If a habeas litigant failed to present his claims to the state courts in a procedural context in which the merits of the claims were actually considered, the claims have not been fairly presented to the state courts and therefore are not eligible for federal habeas corpus review. Edwards v. Carpenter, 529 U.S. 446, 453 (2000); Castille v. Peoples, 489 U.S. 346, 351 (1989).
A petitioner is deemed to have “procedurally defaulted” his claim if he failed to comply with a state procedural rule or failed to raise the claim at the state level. Carpenter, 529 U.S. at 451; Coleman v. Thompson, 501 U.S. 722, 750 (1991). If a petitioner has procedurally defaulted a claim in state court, a federal court will not review the claim unless the petitioner shows “cause and prejudice” for failure to present the constitutional issue to the state court or makes a colorable showing of actual innocence. Gray v. Netherland, 518 U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992); Murray v. Carrier, 477 U.S. 478, 485 (1986). To be credible, a claim of actual innocence must be supported by new reliable evidence that was not presented at trial, and the actual innocence exception may excuse procedural default only if the court concludes that, considering all the evidence, “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 324, 327 (1995).
B. Analysis
1. Ground 1(b) - Confrontation Clause
Petitioner contends the trial court erred in admitting hearsay statements of Reschard Steward, Randall Clegg, and Larry Matthews because allowing those statements violated petitioner's rights under the Confrontation Clause of the Sixth Amendment. Petitioner did assign error to the admission of numerous hearsay statements on direct appeal, including statements attributed to Reschard Steward, Randall Clegg, and Larry Matthews. Petitioner did not, however, argue that the admission of those statements violated the Confrontation Clause of the federal constitution; his arguments were limited to state evidentiary law claims. In the absence of any reference to federal authority relating to the Confrontation Clause, petitioner did not fairly present this federal claim on direct appeal.
Although respondent recognized this claim as alleged in ground 1(b) of the Amended Petition, it appears in fact to address a combination of the claims alleged in ground 1(b) and ground 1(h)-ground 1(h) is the only ground for relief which references the right to confrontation, and that ground specifies only the statements made by Reschard Stewart and Curtis Deskins to others, not statements made by Randall Clegg or Larry Matthews. Ground 1(b), however, alleges the trial court erred in denying the defense motion to exclude and overruled objections to hearsay statements from prosecution witnesses which include statements from Randall Clegg and Larry Matthews.
In his state PCR proceeding, petitioner alleged he was denied the opportunity to confront witnesses against him in violation of the Confrontation Clause. Resp. Exh. 117, p. 4. In his trial memorandum, he argued that the decision in Crawford, which was decided some ten years after petitioner's trial, applied retroactively on review and that, under Crawford, the admission of various hearsay statements violated the constitution. Resp. Exh. 118, pp. 21-39. He did not, however, argue that under the law in effect at the time of trial, the admission of the hearsay statements violated the Confrontation Clause. Here, petitioner argues the trial court violated his right to confrontation under the law in effect at the time of trial. This argument is distinct from the claim alleged in the state PCR proceedings, and thus was not fairly presented to the state court.
Indeed, a claim that the admission of hearsay statements violated petitioner's right to confrontation under law in effect at the time of trial would have been procedurally barred in the state PCR proceeding. See Palmer v. State, 318 Or. 352, 357-58 (1994) (holding that Or. Rev. Stat. § 138.550(1) bars claims in PCR proceedings that could reasonably have been raised at trial and on direct appeal).
Accordingly, petitioner's Confrontation Clause claims alleged in grounds 1(b) and 1(h) are procedurally defaulted. Because petitioner has not established cause and prejudice or a fundamental miscarriage of justice excusing the procedural default, he is not entitled to habeas relief.
2. Ground 2(a) - Ineffective Assistance of Trial Counsel in Moving to Join Petitioner's Criminal Case With His Co-Defendants
In ground 2(a), petitioner alleges that trial counsel was ineffective in moving to join his case with Randall Clegg's and Reschard Stewart's. Petitioner procedurally defaulted this claim, as it was not presented in the state PCR proceeding. Petitioner argues, however, that cause and prejudice excuse the procedural default under Martinez v. Ryan, 566 U.S. 1 (2012).
“When a claim is procedurally defaulted, a federal habeas court can review the merits of the claim only if the petitioner is ‘able to make two showings: (1) “cause” for the default, where the cause is something external to the prisoner that cannot be fairly attributed to him; and (2) prejudice.'” Wahl v. Ryan, __F.4th__, 2023 WL 2523619, at *1 (9th Cir. Mar. 15, 2023) (quoting Clabourne v. Ryan, 745 F.3d 362, 375 (9th Cir. 2014), overruled in part on other grounds by McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015)). In states where ineffective assistance of trial counsel claims must be raised in post-conviction collateral proceedings, as is the case in Oregon, “such ‘cause' sufficient to excuse a procedural default may exist ‘if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.'” Wahl, 2023 WL 2523l619, at *1 (quoting Martinez, 566 U.S. at 17).
Under Martinez, a habeas petitioner may establish cause and prejudice to excuse a procedural default by demonstrating that (1) PCR counsel was ineffective and (2) the underlying ineffective assistance claim has some merit. Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (citing Martinez, 566 U.S. at 14). A petitioner must demonstrate that PCR counsel was ineffective according to the standard set out in Strickland v. Washington, 466 U.S. 668 (1984), which requires a demonstration “that both (a) post-conviction counsel's performance was deficient, and (b) there was a reasonable probability that, absent the deficient performance, the result of the post-conviction proceedings would have been different.” Clabourne, 745 F.3d at 377 (citation omitted). A petitioner must also demonstrate that his underlying ineffective assistance of trial counsel claim is “substantial,” i.e., that it “has some merit;” the standard for finding a claim “substantial” is analogous to the standard for issuing a certificate of appealability. Martinez, 566 U.S. at 14. Under that standard, a claim is “substantial” if “reasonable jurists could debate whether the issue should have been resolved in a different manner or that the claim was adequate to deserve encouragement.” Id. (citing Miller-El v. Cockerell, 537 U.S. 322, 336 (2003)).
In Shinn v. Ramirez, 142 S.Ct. 1718 (2022), the Supreme Court altered the landscape of Martinez by “greatly restricting the circumstances in which a federal habeas court deciding Martinez claims may consider evidence beyond that already contained in the state record.” Creech v. Richardson, 40 F.4th 1013, 1028 (9th Cir. 2022). Before Ramirez, a federal habeas court could consider new evidence supporting a claim of ineffective assistance of PCR counsel in determining whether a petitioner satisfies the requirements of Martinez without running afoul of 28 U.S.C. § 2254(e)(2) and Cullen v. Pinholster, 563 U.S. 170 (2011). After Ramirez, however, where § 2254(e)(2) applies “and the prisoner cannot satisfy its ‘stringent requirements,' a federal court may not hold an evidentiary hearing-or otherwise consider new evidence-to assess cause and prejudice under Martinez.” Ramirez, 142 S.Ct. at 1739 (quoting Williams v. Taylor, 529 U.S. 420, 433 (2000)).
Under § 2254(e)(2), “if a prisoner ‘has failed to develop the factual basis of a claim in State court proceedings,' a federal court may hold ‘an evidentiary hearing on the claim' in only two limited scenarios.” Id. at 1734. “Either the claim must rely on (1) a ‘new' and ‘previously unavailable' ‘rule of constitutional law' made retroactively applicable by [the Supreme] Court, or (2) ‘a factual predicate that could not have been previously discovered through the exercise of due diligence.'” Id. (quoting 28 U.S.C. § 2254(e)(2)(A)) (alterations in original).
Prior to the Supreme Court's decision in Ramirez, both petitioner and respondent offered extrinsic evidence in support of their respective Martinez arguments. See Resp. Exh. 190, ECF No. 76; Pet. Exhs. 202-205. Under Ramirez, however, this Court may not consider the new evidence in assessing cause and prejudice under Martinez; as such the Court limits its review to the record before the state court.
Petitioner suggests the Court may consider the information contained in Exhibit 202, the Declaration of Marc Sussman as “legal argument,” and petitioner “incorporates” its contents into petitioner's briefing. To the extent the contents of the declaration contain applicable legal standards the Court deems that content incorporated. All matters of personal experience or opinion contained in the declaration are not, however, properly before the Court and will not be considered.
Here, petitioner contends that trial counsel was ineffective in moving to join his case with that of his co-defendants, Reschard Steward and Randall Clegg. In a joint indictment, a grand jury indicted Randall Clegg and Reschard Steward on January 27, 1994. Resp. Exh. 132. The same grand jury indicted petitioner about a week later. Resp. Exh. 1. Notwithstanding the separate indictments, the trial court held a single bail hearing for petitioner and Randall Clegg on March 16 and 17, 1994. Tr. 5. Petitioner's trial counsel noted at that bail hearing that the cases had not been joined, and stated, “We're not acceding to joinder for trial or even joined for purposes of these bail hearings.” Tr. 7. Already at that point, however, the court was “contemplating trying all three of [the] defendants at the same time in October.” Tr. 228.
By May 1994, petitioner's trial counsel changed positions and indicated to the court at a conference that they would be seeking joinder. Tr. 241. The parties agreed then that joinder was “a preliminary issue that had to be decided before evidentiary issues could be ruled upon.” Tr. 241. In June 1994, petitioner's trial counsel filed a formal motion to join the cases and, in a memorandum in support of that motion, argued, “The state has announced its intentions of first trying Randall Clegg and Steward jointly, then subsequently requiring [petitioner] to stand trial alone. [Petitioner] objects and moves for joinder of his trial with that of his alleged co- conspirators.” Resp. Exh. 165, Pet. Exh. 201, at p. 2. At a joint hearing on the motion to join and other motions, trial counsel explained:
And as for the memorandum, I think, makes clear, this is an absolutely appropriate case for joinder, and the State's absolutely unable to demonstrate any prejudice whatsoever from not doing so.
Apparently [the prosecutor] disagrees, but rather than filing a response, he just ignored it. So what I propose is this: this is clearly what the federal courts would recognize as a case in which quote, “initial joinder is appropriate.” So the Court should just consolidate the indictments and should join the case preliminarily for trial.
And if the State has some concerns over evidentiary issues that might be raised by joinder, it should file a motion in limine; although, generally, these sorts of issues involve questions of prejudice to defendants, rather than to the State.
And perhaps my client would simply stipulate to the admissibility of whatever evidence the Court - the State's concerned about. And these issues could be resolved by the Court in any event. And then maybe, ultimately, the cases will have to be severed. You know, I can't predict.
But I will say that given the law on the subject and, you, Zafiro [v. United States, 506 U.S. 534 (1993)], certainly seems to suggest that any amount of prejudice to the defendant can be cured by appropriate limiting instructions or some other remedy, it seems unlikely.
And what I think this really is is part of a continuing force of delaying tactics on the part of the State to make it impossible for [petitioner] to prepare for trial. And the tactics began, in my opinion, with not turning over discovery that had been ordered by the Court. And I'd like to remind you about the wire taps, for example, that we didn't get until after the bail hearing and which the State was eventually forced to concede were unusable as they were provided. And the State had usable copies all along. And I think the tactics continue to this date.
And I urge the Court to put a stop to the game playing. This not tactical warfare. This is not a game. It's life and death. It's my client's life and death.Tr. 241-42.
The state initially opposed joinder, arguing that the trial court should resolve the admissibility of Reschard Steward's statements as substantive evidence against petitioner and Randall Clegg before resolving the joinder issue. Tr. 246-47. Depending on how those evidentiary rulings went, the state could be required to redact some of Steward's statements if there was a joint trial, which it would not want to do. Tr. 248. The court responded that, “whether or not statements are redacted would depend an awful lot on whether there was joinder. And, therefore, a joinder decision is made first and redaction or non-redaction is made subsequently.” Tr. 250. The court stated that it did not “see any reason not to try all three defendants together at this point” and that the parties could file motions in limine if the joinder jeopardized their cases. Tr. 251. Counsel for Reschard Steward and Randall Clegg indicated that they did not want their trials separated. Tr. 253-56. At the conclusion of the hearing, the trial court granted the motion to join. Tr. 256-57.
Near the end of August 1994, Randall Clegg moved to sever his trial from that of petitioner and Reschard Steward. Resp. Exh. 178. In October 1994, the court held an omnibus hearing regarding a number of motions filed by the parties. Tr. 322-554. As part of that hearing, the parties argued whether various statements made by Reschard Steward would be admissible, and Randall Clegg's counsel argued:
And I would ask the Court to go through that exercise and see if there is a possibility that these statements can be redacted without losing the context of the statements and so that part will make sense in court.
And if you can do that, we'll ask that you do that, and if you can't, then we'll stand by our motion for our severance.Tr. 468. The court concluded that Reschard Steward's statements were admissible as substantive evidence against Randall Clegg and petitioner under the “statement against penal interest” and the conspiracy exceptions to the hearsay rule, obviating the need either to redact the statements or to sever Reschard Steward from the other two co-defendants. Resp. Exh. 151, pp. 10-12. The court reaffirmed the decision to allow Steward's statements to be introduced at trial in a May 1, 1995, letter ruling. Resp. Exh. 179.
In November 1994, just four days before the trial was scheduled to begin, Randall Clegg moved to continue the trial date due to late discovery, and to sever Reschard Steward's case because the state had been negotiating with Steward but would not disclose any of the statements Steward made as a part of those negotiations. Tr. 560-63. Petitioner's trial counsel joined in both motions, explaining that due to the ongoing prosecution negotiations with Steward and other issues, “I'm really concerned about the Defense theory, selecting a jury, opening statement. I don't know what shoe's going to drop next, and I really don't feel in good conscience that I can proceed and not object to the joinder and not object going to trial.” Tr. 572. Counsel went on to further explain and engaged in the following colloquy with the court:
TRIAL COUNSEL: We've been ready to go trial and wanting to go to trial. My client has been anxious to go to trial. But here just days before jury selection there's some major things happening with the co-defendant and with the prosecution team that just puts me in a situation where I think I would be committing malpractice if I didn't ask for a setover or ask for a severance or ask for some type of disclosure as to what's going on.
THE COURT: Well, you asked for severance quite some time ago, and I have -
TRIAL COUNSEL: We moved for - we moved for joinder originally before all this happened. The State opposed joinder.
THE COURT: Is that right?
TRIAL COUNSEL: That's right.
THE COURT: Well, okay. I - historically, I mean, the file will show what it shows, but I recall denying motions to sever more recently than that. And I've sort of assumed that subsequently there's always been a desire to sever the cases and that's sort of an ongoing issue, but I've denied it and ordered joint trials to continue.Tr. 572. The court ultimately granted the motion for continuance, implicitly denied the motion to sever, and set trial for January 9, 1995. Tr. 579-81, 609.
On December 28, 1994, Randall Clegg's counsel moved to withdraw because of an “ethical conflict of interest,” and the trial court granted the motion and appointed new counsel. Tr. 666-68. Reschard Steward's counsel argued that, rather than continuing the case against all three defendants, the court should sever Randall Clegg's case from Steward and petitioner's. Tr. 670. Petitioner's trial counsel also opposed a continuance, stating that the defense team “very much want[ed] to maintain the current trial date for a variety of reasons.” Tr. 670-71. The state asked that the court keep all of the cases together, notwithstanding the inconvenience to the parties caused by a second continuance. Tr. 671-72. The trial court continued all three cases, explaining, “It's my perception, Counsel, that the public is better served and the cause of justice is better served if there is one trial in front of one jury, and I will not separate the trials.” Tr. 674.
About a month later, Randall Clegg moved to continue the trial again, his counsel stated that he would not be ready for trial on the scheduled date. Tr. 684-86. Petitioner and Steward both opposed a further continuance. Tr. 686-87. Petitioner's counsel also argued that severing Randall Clegg's trial from that of petitioner and Steward would be preferable to a continuance. Tr. 693-94. The court disagreed, repeating its opinion “that justice would be served and the community would be served by having a joint trial,” and stating, “it would take some rather unusual developments to have the Court change its mind.” Tr. 695.
In May 1995, petitioner's counsel submitted proposed redactions of several statements made by Reschard Steward but maintained their position that the statements were inadmissible. Resp. Exh. 145. At a hearing on that and other issues, petitioner's counsel reiterated that they were objecting to “being forced to redact these statements” and “renew[ed] [their] motion to sever.” Tr. 726. Following the hearing, the court reaffirmed its prior decision that Steward's statements were admissible as substantive evidence against petitioner and Randall Clegg and denied the motion to redact the statements. Resp. Exh. 179. The trial court did not specifically address the renewed request to sever, but the cases remained joined.
On the day jury selection began, an article in the local newspaper stated that Randall's Clegg's initial attorney had withdrawn because of an ethical conflict. The article also stated that the court understood that counsel believed Randall Clegg intended to perjure himself. Petitioner's counsel moved to sever Randall Clegg's case, arguing that the article would have a prejudicial effect because Randall Clegg was petitioner's brother. Tr. 816-17. The trial court denied the motion and proceeded with voir dire. Tr. 819.
After trial began, the state proposed that three of Steward's statements be redacted to remove reference to petitioner or Randall Clegg. Petitioner's counsel objected, noted that doing so at that late date changed the course of the evidence at trial and would cause serious tactical problems inasmuch as counsel had made opening statements and was pursuing a defense strategy based on the court's prior rulings that the unredacted statements were admissible. Tr. 1723-25. Counsel also moved for severance or for the right to introduce the statements unredacted. Tr. 1725. The court denied severance and granted the state's request to redact the statements, but allowed that if petitioner and Randall Clegg withdrew their prior objections and requests for redaction, the unredacted statements could come in. Tr. 1733-35. Petitioner renewed his request for a severance or mistrial the following day, which the court denied. Tr. 1762-63. Ultimately, the court admitted the statements in redacted form and gave a limiting instruction providing that the statements were being offered only against Steward. Tr. 1810-11, 1901, 1906, 1925.
Petitioner's counsel moved for a mistrial or severance one last time, when prevented from cross-examining Detective Bellah about Steward's statements on the basis that the statements had not been introduced against petitioner. Tr. 2362-63. Once again, however, the court denied the motion. Tr. 2364.
As noted, petitioner contends that the procedural default of his claim that counsel was ineffective in moving to join his case with the co-defendants is excused under Martinez. In order to prevail on this argument, petitioner must “make two related showings about the strength of his particular IAC claim.” Runningeagle v. Ryan, 825 F.3d 970, 982 (9th Cir. 2016). First, the ineffective assistance claim must be “a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.” Martinez, 566 U.S. at 14. Second, he must show that post-conviction counsel was “ineffective under the standards of Strickland v. Washington” in failing to raise the defaulted claim. Id.
Although the first requirement may be met with only a “substantial showing” that trial counsel was ineffective, the second requirement sets a higher bar. Petitioner must affirmatively demonstrate that his PCR counsel performed deficiently, and that petitioner was prejudiced as a result. Runningeagle, 825 F.3d at 982. That is, he must show that it was not only objectively unreasonable for PCR counsel not to have raised this claim, but also that there is a “reasonable probability that the trial-level [ineffective assistance of counsel] claim would have succeeded had it been raised” during the post-conviction proceeding.
Here, petitioner has not satisfied either of the Martinez requirements. First, his underlying claim of ineffective assistance of trial counsel is not “substantial.” Again, in order to establish this, petitioner must show that, but for counsel's objectively unreasonable performance, the outcome of the case would have been different. Strickland, 466 U.S. at 687.
Petitioner can establish deficient performance by his counsel only by showing that “no competent attorney” in trial counsel's place would have taken the same action. Premo v. Moore, 562 U.S. 115, 124 (2011). The record demonstrates that at the time trial counsel moved to join the cases, it was an informed, strategic decision. As explained in counsel's memorandum in support of the motion, the state intended to try Randall Clegg and Reschard Steward jointly, and then require petitioner “to stand trial alone.” Pet. Exh. 201. A reasonable attorney could believe that having separate trials would give the state an opportunity to revise its trial presentation, resulting in a stronger case against petitioner. See, e.g., United States v. Cardenas, 735 Fed.App'x 235, 237 (9th Cir. 2018) (holding that counsel was not ineffective for not moving to sever where counsel “did not want to allow the government two trials, giving it a chance to perfect its case during the first”).
Moreover, at the time counsel moved to join the cases, the court had yet to rule on any of the parties' many evidentiary motions and the parties' trial strategies were far from settled. The fact that subsequent events and evidentiary rulings caused counsel to attempt later to sever the claims does not detract from the reasonableness of moving to join at the outset. See Cheney v. Washington, 614 F.3d 987, 994-95 (9th Cir. 2010) (“In reviewing counsel's performance for deficiency, courts ‘must be highly deferential' and avoid the temptation to ‘conclude that a particular act or omission of counsel was unreasonable' simply because in hindsight the defense has proven to be unsuccessful”) (quoting Strickland, 466 U.S. at 688). Finally, a reasonable attorney could believe that, given the close relationship between the three cases, they would almost certainly have been joined for trial unless doing so would be legally impermissible.
Petitioner also has not established a reasonable probability that, but for counsel's motion to join the cases, the outcome of the trial would have been different. First, Oregon law allows a court to consolidate two or more charging instruments if they are based on “two or more acts or transactions connected together or constituting parts of a common scheme or plan,” whether or not on a party's motion. Or. Rev. Stat. § 132.560. After its initial objection to joinder, as the case developed and proceeded toward trial, the state repeatedly objected to petitioner and his co-defendants' motions to sever the case; it is highly likely that had petitioner not moved to join, the state would have done so. In addition, the fact that the trial judge repeatedly denied motions to sever from each of the defendants evidences the court's determination to try the cases jointly; indeed, the trial court did not recall at one point that petitioner had made the original motion to join.
Even if this Court were to assume that joinder would never have occurred in the absence of trial counsel's motion, petitioner has not established prejudice. Petitioner argues broadly that most of an enormous amount of prejudicial evidence would not have been admissible if petitioner had been tried separately. However, as discussed above, the trial court concluded that co-defendant Reschard Stewart's statements were admissible as substantive evidence against petitioner, notwithstanding petitioner's inability to crossexamine Steward, so those statements would have been admissible even if petitioner had been tried separately. The state did acknowledge that three statements it sought to be redacted would not have been admissible in a separate trial, but those statements were in fact redacted, and the court gave limiting instructions regarding them. Petitioner does not identify with any specificity any other evidence that would not have been admissible in a separate trial. Finally, in light of the amount of other evidence against petitioner, he has not established a reasonable probability that he would not have been convicted in a separate trial.
Even if petitioner's claim of ineffective assistance of trial counsel had “some merit,” petitioner must still establish that his PCR counsel was ineffective in failing to raise the claim. Counsel in a post-conviction proceeding “is not necessarily ineffective for failing to raise even a nonfrivolous claim.” Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012). “The process of winnowing out weaker arguments on appeal and focusing on those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536 (internal quotation marks omitted); see also See White v. Nooth, 770 Fed. App'x 412, 414 (9th Cir. 2019) (applying Smith in the context of evaluating PCR counsel's performance). Thus, to overcome the presumption of effective assistance, a petitioner must show that “the ignored issues are clearly stronger than those presented.” Smith v. Robbins, 528 U.S. 259, 288 (2000) (quotation omitted).
Here, the alleged prejudice petitioner suffered from joinder stemmed from the admission of evidence that otherwise would have been inadmissible in a separate trial. PCR counsel raised numerous claims concerning the admission of that evidence. Resp. Exh. 117, pp. 4, 5-6. A reasonable attorney could have believed that including the additional joinder claim would have no practical effect and could have instead focused on the underlying admissibility issues. Moreover, because the PCR court concluded that those statements were largely admissible against petitioner in any event, petitioner has not established that the outcome of the PCR proceeding would have been different had the joinder claim been included. Accordingly, petitioner has not established that his PCR trial counsel was ineffective in failing to assert this claim, and petitioner's procedural default of the claim is not excused under Martinez.
3. Ineffective Assistance for Failure to Object to Testimony of Hearsay Statements of Curtis Deskins
In petitioner's Memorandum in Support, he argues that trial counsel failed to object to the testimony of hearsay statements of Curtis Deskins offered by several witnesses. In response, respondent contends that this claim is procedurally defaulted, an argument petitioner does not address in subsequent briefing.
Hearsay statements of Curtis Deskins are not specifically identified in the Amended Petition, but petitioner does allege in ground 2(e) that trial counsel was ineffective in failing to object to hearsay testimony of Jeri Lynn Ledbetter, Melvin Spencer, Charlotte Sanders, and Hashim Rhodes, who are the individuals identified in the Memorandum in Support.
Petitioner presented this claim to the PCR trial court and on appeal to the Oregon Court of Appeals. In his Petition for Review to the Oregon Supreme Court, however, petitioner presented three distinct and discrete issues, none of which referred to this claim. Resp. Exh. 187. Petitioner did not present any argument about trial counsel's handling of the admission of Deskin's statements.
To be sure, petitioner's PCR appellate counsel purported to raise each of the issues argued to the Oregon Court of Appeals to the Oregon Supreme Court:
Petitioner continues to request relief on the basis of all of the issues raised in the PCR trial court and on direct appeal [sic] and asks this court to accept review to
reverse the trial court and Court of Appeals' denial of PCR relief on all those issues. See ORAP 9.20(4) (Court of Appeals' briefing to be “considered as the main briefs in the Supreme Court”). Without waiving any of those issues, petitioner will highlight only three of the issues appropriate or review.Resp. Exh. 187, p. 4. This attempt to incorporate by reference the claims raised before the PCR trial court and the Oregon Court of appeals, however, was not sufficient to fairly present the claim to the Oregon Supreme Court. See Williams v. Belleque, No. 3:03-cv-01678-JO, 2010 WL 3603781, at *5 (D. Or. Sept. 13, 2010) (finding that the petitioner's ineffective assistance of counsel claims were not fairly presented to the Oregon Supreme Court as discrete claims in counseled petition for review; the holding in Farmer v. Baldwin, 346 Or. 67 (2009) that the Oregon Supreme Court would consider claims raised by incorporation in a pro se Balfour briefwould not be extended to claims “incorporated by reference” in a counseled brief); see also Reese v. Baldwin, 541 U.S. 27, 32 (2004) (“a state prisoner does not ‘fairly present' a claim to a state court if that court must read beyond a petition or a brief . . . that does not alert it to the presence of a federal claim in order to find material . . . that does so”).
State v. Balfour, 311 Or. 434 (1991) provides procedures, later codified at ORAP 5.90, allowing for the submission of a brief in which appointed counsel submits a “section A” containing, among other things, a statement that counsel could not identify any arguably meritorious issue on appeal, followed by a “section B” drafted and signed by the client.
Accordingly, petitioner has procedurally defaulted his claim that counsel was ineffective in failing to object to hearsay statements of Curtis Deskins from various witnesses. Petitioner does not argue any cause and prejudice or fundamental miscarriage of justice to excuse this procedural default and, therefore, is not entitled to habeas corpus relief on this claim.
4. Claims of Prosecutorial Misconduct
Petitioner argues numerous claims of prosecutorial misconduct. In response to these arguments, respondent contends that all of the claims are procedurally defaulted because they were never fairly presented to the Oregon Supreme Court, either on direct appeal or in the state PCR proceedings. In reply, petitioner argues that Oregon post-conviction law does not recognize prosecutorial misconduct claims as cognizable claims for relief, such that it would have been futile for petitioner to have done so. He further contends that “[f]ailure to review these claims would result in a miscarriage of justice, particularly given the fact that petitioner passes [sic] a polygraph about whether he was involved with his wife's murder,” and goes on to request “an opportunity to brief this exception after this Court has ruled on the other claims for relief.” Pet. Rep., ECF No. 110, p. 41-2.
Initially, the Court notes that claims of prosecutorial misconduct may be raised in Oregon at trial and on direct appeal, which petitioner did not do. See Kellotat v. Cupp, 719 F.2d 1027, 1030 (9th Cir. 1983) (in Oregon, claims of prosecutorial misconduct must normally be raised in a direct appeal). Moreover, where trial counsel was “excusably unaware of facts that would have disclosed a basis for the assertion of the right” or the right asserted “was not generally recognized to be in existence at the time of trial,” such a claim may be raised in post-conviction relief. Palmer v. State of Oregon, 318 Or. 352, 355-58 (1994); see also Eklof v. Steward, 360 Or. 717, 728 (2016) (summarizing application of Palmer principles to a Brady claim that prosecutor withheld exculpatory evidence); Pinnell v. Belleque, 638 F.Supp. 1231, 1240 (D. Or. 2009) (court was not persuaded that Oregon law bars a state post-conviction court from resolving a true stand-alone claim of prosecutorial misconduct that could not have been raised at trial or on direct appeal). Accordingly, petitioner's claims of prosecutorial miscarriage are procedurally defaulted, and in the absence of cause and prejudice or a fundamental miscarriage of justice, petitioner is not entitled to habeas relief on these claims.
Petitioner's bare statement that the failure to review these claims would result in a miscarriage of justice given that he passed a polygraph examination in 1993, is not sufficient to establish a fundamental miscarriage of justice sufficient to excuse his procedural default. See Williams v. Covello, No. CV 21-0935 MWF(PVC), 2021 WL 4594227, at *5 (C.D. Cal. Oct. 6, 2021) (“numerous courts have found that polygraph evidence is not the kind of reliable exculpatory evidence that can show that ‘it is more likely than not that no reasonable juror would have convicted [the petitioner] in the light of the new evidence, as required for an actual innocence claim'”) (emphasis in original, citing Schlup, 513 U.S. at 327, collecting cases holding as such). Moreover, given the length of time that has elapsed since this case was initiated, let alone since the date of petitioner's conviction, additional briefing on an issue that could have previously been addressed will not be allowed, as to do so would contravene one of the core purposes of the AEDPA. See Rhines v. Weber, 544 U.S. 269, 276-77 (2004) (recognizing the “twin purposes” of the AEDPA, which was intended “to promote the finality of state court judgments” by requiring petitioner to fully exhaust each federal claim in the state courts and then timely seek federal habeas corpus review); Eftenoff v. Ryan, No. CV-14-01023-PHX-NVW(MHB), 2015 WL 1951659, at *13 (D. Ariz. Apr. 28, 2015) (recognizing one of the AEDPA's twin purposes, that of reducing delays in the execution of state and federal sentences).
III. Cumulative Error
In ground 5, petitioner alleges “cumulative error.” In some cases, although no single trial error is sufficiently prejudicial to warrant reversal, the cumulative effect of several errors may still prejudice a petitioner so much that his conviction must be overturned. See Alcala v. Woodford, 334 F.3d 862, 893-95 (9th Cir. 2003) (reversing conviction where multiple constitutional errors hindered the petitioner's efforts to challenge every important element of proof offered by the prosecution). For the reasons set forth above, however, the Court finds no constitutional error, let alone multiple errors. Where there is no single constitutional error, nothing can accumulate to the level of a constitutional violation. See Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011) (concluding that where “no error of constitutional magnitude occurred, no cumulative prejudice is possible”). Accordingly, petitioner is not entitled to habeas relief on the claim alleged in ground 5.
IV. Claims Not Addressed by Petitioner
As noted, petitioner alleges numerous claims in the Amended Petition which are not addressed in the briefs filed with the Court. In his Memorandum in Support, petitioner purports to rely upon the arguments as presented in his PCR Trial Memorandum and Supplemental PCR Trial Memorandum in support of at least some of these claims. Resp. Exhs. 118 and 119. Petitioner does not, however, challenge respondent's arguments that those grounds are procedurally defaulted. Accordingly, habeas relief is precluded on the claims not directly addressed by petitioner because they are procedurally defaulted and because petitioner has failed to sustain his burden of demonstrating entitlement to habeas relief on those claims. See 28 U.S.C. § 2248 (instructing that “[t]he allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true”); see also Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (recognizing that a habeas petition carries the burden of proving his case).
V. Request for Evidentiary Hearing
Finally, petitioner suggests that, if this Court does not grant the petition for writ of habeas corpus on the existing record, it should conduct an evidentiary hearing. Beyond the bare statement that petitioner passed a polygraph test as discussed above, petitioner has not shown what more beyond the written record would be offered at such a hearing or how it would entitle him to habeas relief. As such, he has not established he is entitled to a hearing. See e.g., Gandarela v. Johnson, 286 F.3d 1080, 1087 (9th Cir. 2002) (concluding that the district court had properly denied the petitioner's request for an evidentiary hearing, in part because he had “failed to show what more an evidentiary hearing might reveal of material import”).
CONCLUSION
For the reasons stated above, the Court should DENY the Petition for Writ of Habeas Corpus and should enter a judgment dismissing this action and denying a certificate of appealability. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.