Opinion
CV. 02-599-HU.
February 4, 2004
Christopher J. Schatz Assistant Federal Public Defender Portland, Oregon, Attorney for Petitioner.
Hardy Myers Attorney General Carolyn Alexander Assistant Attorney General Department of Justice Salem, Oregon. Attorneys for Respondent.
FINDINGS AND RECOMMENDATION
Petitioner, an inmate at Snake River Correctional Institution, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons set forth below, petitioner's habeas corpus petition (#2) should be denied and this proceeding dismissed.
BACKGROUND
On February 3, 1997, petitioner was indicted for Assault in the First Degree. Petitioner was accused of hitting Kha Minh Vu in the face with the butt of a gun. On March 24, 1997, petitioner appeared for trial. Petitioner's trial counsel, Lynne Dickison, advised the court that she had been appointed to represent petitioner on February 19, 1997, and that petitioner was unwilling to waive his state right to a trial within 60 days of his arrest. Dickison elaborated:
I am putting this on the record just to let the Court know that there are some concerns and to make sure that Mr. Dang knows his rights at this point. This is a Ballot Measure 11 case, mandatory 90 months' imprisonment if convicted of the charges alleged.
We've been having some trouble running down some of the witnesses. I've talked to Mr. Dang about that. Further, Judge, there are questions of interpreters and their abilities and also of doctors and getting ahold of them for their testimony that we haven't been able to do given the short amount of time of representation.
And I want to be sure that Mr. Dang is aware that he has a right to waive his 60 days but also that he has a right to go to trial within 60 days even given the substitution of Counsel. (TR at 3-4.)
In response, the trial judge inquired if petitioner understood he had a right to waive the 60-day rule in order to allow counsel to better prepare for trial, and to follow every investigative lead that might be available. Petitioner responded that he understood and indicated his desire to proceed to trial:
I just want to have my 60-day coming up. Because I been in there 60 day already and I don't feel it needs that much time to go over simple case like this for just self-defense. So I shouldn't sign the waiver. (TR at 5.)
The trial judge inquired further asking whether petitioner wished to proceed to trial despite defense counsel's desire to have more time to prepare. Petitioner responded "[t]hat's correct." The case proceeded to trial on that day.
Petitioner defended against the charge on the basis that he acted in self defense, and that he hit Vu with his fist rather than a gun. Two interpreters appeared at trial to translate the testimony of several witnesses. Neither defense counsel nor petitioner requested an interpreter for petitioner. The jury rejected petitioner's defense and convicted him of Assault I.
At the time of trial, petitioner was 23 years old and had been in the United States for 13 years. His father is American and his mother is Vietnamese. He dropped out of high school in the Eleventh Grade. (TR at 178-79.)
Petitioner filed a direct appeal alleging that his sentence was unconstitutional. The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. State v. Dang, 153 Or. App. 704, 960 P.2d 395, rev. denied, 327 Or. 448 (1998). Petitioner subsequently sought state post-conviction relief raising, inter alia, the constitutional claims at issue in the instant proceeding. The post-conviction court denied relief, the Oregon Court of Appeals summarily affirmed and the Oregon Supreme Court denied review.
In the instant proceeding, petitioner seeks habeas relief on the basis that he received ineffective assistance of trial counsel and was denied due process by virtue of the trial court's failure to sua sponte appoint him an interpreter. Respondent moves to dismiss the petition on the basis that the state court's findings of fact and conclusions of law are entitled to deference under 28 U.S.C. § 2254(d) and (e)(1).
STANDARD OF REVIEW
A petition for writ of habeas corpus, filed by a state prisoner, shall not be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication resulted in a decision that was "contrary to, or involved an unreasonable application of, clearly established Federal law"; or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented". 28 U.S.C. § 2254(d).
A state-court decision is "contrary to" clearly established Federal law if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a Supreme Court decision and nevertheless arrives at a different result. Bell v. Cone, 535 U.S. 685, 694 (2002); Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam); Himes v. Thompson, 336 F.3d 848, 852 (9th Cir. 2003). A state court decision is not "contrary to" clearly established Federal law simply because the state court fails to cite Supreme Court precedent. Early, 537 U.S. at 8; Mitchell v. Esparza, ___ U.S. ___, 124 S.Ct. 7, 10, 157 L.Ed.2d 263 (2003). A state court need not even be aware of Supreme Court precedent "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early, 537 U.S. at 8;Mitchell, 124 S.Ct. at 10.
A state court decision involves an unreasonable application of clearly established Federal law if it correctly identifies the governing legal standard, but unreasonably applies it to the facts of the prisoner's case. Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1174, 155 L.Ed.2d 144 (2003); Bell, 535 U.S. at 694. A state-court decision also involves an unreasonable application of Federal law "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. 362, 407 (2000).
"An unreasonable application of federal law is something more than an incorrect or even clearly erroneous application; the application must be `objectively unreasonable.'" Himes, 336 F.3d at 852-53 (quoting Lockyer, 123 S.Ct. at 1174); Price v. Vincent, 538 U.S. 634, 123 S.Ct. 1848, 1853, 155 L.Ed.2d 877 (2003). If the state court supplies no reasoned decision, the Ninth Circuit instructs this court to "perform an `independent review of the record' to ascertain whether the state court decision was objectively unreasonable." Himes, 336 F.3d at 853.
I reject petitioner's suggestion that a clear error standard should be applied in this context. As noted by the Supreme Court, "objectively unreasonable" and "clear error" are different standards. Lockyer, 123 S.Ct. at 1175. "The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."Id.
DISCUSSION
I. Ineffective Assistance of Counsel.Petitioner contends that trial counsel was ineffective for failing to have the two guns found in petitioner's possession tested by a forensic scientist for trace elements of the victim's blood, skin or hair. The post-conviction court rejected this claim as follows:
Petitioner, forced the matter to trial. Petitioner was advised that forcing the matter to trial would place his defense Counsel at a disadvantage in preparing for trial.
* * * * *
The petitioner . . . wants to blame his Counsel for not doing many, many things, when he himself forced the matter to trial. His dialog with the Court shows that Petitioner Dang viewed the case in rather simple, succinct terms, . . . demonstrating that he had a fair command of English. . . .
He didn't have it right with respect to concluding that his attorney should be able to handle this simple case without more preparation. He can't blame her for that. (Respondent's Exh. 117 at 25-26.)
A claim of ineffective assistance of counsel, requires petitioner to prove that counsel's performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.Bell, 535 U.S. at 695; Williams, 529 U.S. at 390-91;Strickland v. Washington, 466 U.S. 668, 687-88 (1987).
To prove deficiency of performance, petitioner "`must show that counsel's representation fell below an objective standard of reasonableness.'" Taylor, 529 U.S. at 390-91 (quotingStrickland, 466 U.S. at 688). "To establish prejudice [petitioner] `must 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 391 (quotingStrickland, 466 U.S. at 694). In evaluating proof of prejudice, this court "must consider the totality of the evidence" before the jury. Strickland, 466 U.S. at 696.
Petitioner has failed to satisfy either prong of theStrickland test. With regard to deficient performance, petitioner has made no showing that trial counsel's failure to conduct the forensic tests was caused by attorney error rather than the time restrictions caused by petitioner's decision to proceed to trial approximately 30 days after counsel's appointment. Accordingly, the state post-conviction court's factual conclusion that petitioner forced the matter to trial thereby causing counsel to proceed without further preparation is presumed correct. See 28 U.S.C. § 2254(e)(1).
Even if counsel's performance was deficient, petitioner has failed to demonstrate that he was prejudiced by counsel's failure to order forensic tests on the two guns. Petitioner not only failed to demonstrate the probable results of such tests, he has failed to demonstrate that had the test results been negative for trace elements of the victim's blood, skin or hair, there is a reasonable probability that the jury would have concluded that petitioner struck petitioner with his fist rather than a gun.
At the state post-conviction proceeding, petitioner offered the affidavit of J. Scott Escujuri, rejected by the court as hearsay, wherein Escujuri stated that he spoke to petitioner's trial attorney and she indicated that she could not recall why the guns were not tested for DNA evidence.
In reaching this conclusion, I consider the evidence presented at trial. Khanh Hong Vo, and the victim Kha Minh Uv, testified that petitioner hit Vu with the butt of a gun. An additional witness, Tuan Van testified that he heard Vu state that petitioner had a gun. Moreover, the importance of DNA tests on the two guns found in petitioner's possession was diminished by petitioner's testimony that he owned a third gun, but sold it to an unknown person two weeks prior to the assault. The prosecutor conceded in his closing argument that he did not know whether one of the two guns found in petitioner's possession, or the third gun allegedly sold by petitioner to an unknown person, was the gun used to strike Vu. The prosecution simply argued that a gun was used.
In light of the strength of the foregoing evidence, petitioner has failed to demonstrate that there is a reasonable probability that the results of his trial would have been different had counsel conducted the forensic tests on the two guns found in petitioner's possession. Accordingly, based upon my independent review of the record, I conclude that the state court's rejection of petitioner's ineffective assistance of counsel claim is neither contrary to, nor an unreasonable application of clearly established Federal law. See 28 U.S.C. § 2254(d).
Although I conclude that the post-conviction court adequately expressed its rationale for rejecting petitioner's ineffective assistance of counsel claim, because petitioner argues otherwise, I conducted an independent review of the record in determining whether the post-conviction court's decision was objectively unreasonable. See Himes, 336 F.3d at 853.
II. Due Process — Failure to Appoint Interpreter.
Petitioner contends that his due process rights were violated by the trial court's failure to appoint an interpreter to assist petitioner in communicating with his attorney and during trial. Petitioner alleges that, as a result, he did not understand the ramification of refusing to waive the 60-day rule, and was denied the right to a jury trial. The state post-conviction court rejected this claim as follows:
With regard to the lack of an interpreter for the Petitioner, to put it in simple terms, I find this contention to have a certain phoniness about it. It [has] become increasingly apparent, as we have examined the record, that Petitioner has a much better command of the language than what I even envisioned when I first went through these materials. The face of the record shows that the Petitioner, although perhaps not being totally proficient in his second language of English, he is nevertheless fairly proficient in English. (Respondent's Exh. 117 at 25-26.)
The Supreme Court has yet to decide what degree of interpretive assistance is constitutionally required for non-English speaking defendants. United States v. Si, 333 F.3d 1041, 1043 n. 3 (9th Cir. 2004); United States v. Johnson, 248 F.3d 655, (7th Cir. 2001). However, circuit courts have held that Supreme Court precedent supports "a right to an interpreter when a defendant's inability to communicate in English interferes with the defendant's Sixth Amendment right to confrontation or the defendant's Fifth Amendment due process right or his right to testify on his own behalf." Si, 333 F.3d at 1042-43; see United States v. Mayans, 17 F.3d 1174, 1180-81 (9th Cir. 1994); Johnson, 248 F.3d at 663; United States v. Carrion, 488 F.2d 12, 14-15 (1st Cir.), cert. denied, 416 U.S. 907 (1974); United States ex rel Negron v. State of New York, 434 F.2d 386, 389-91 (2nd Cir. 1970). Hence, a convincing argument can be made that it is an "unreasonable application" of clearly established Federal law to hold that a non-English speaking defendant has no due process right to an interpreter. See Williams, 529 U.S. at 407 (unreasonable application includes refusal to extend Supreme Court precedent to new context where it should apply).
The proper resolution of the instant case, however, does not necessitate a determination of whether the failure to sua sponte appoint an interpreter for a non-English speaking defendant violates well established Federal law. Rather, petitioner's claim fails in light of the state post-conviction court's factual finding that petitioner was sufficiently proficient in the English language to understand the proceedings, and that his claim to the contrary was disingenuous. Petitioner has failed to rebut this finding of fact with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). Moreover, there are no indications in the state record that language difficulties inhibited petitioner's understanding of the trial. Neither counsel nor petitioner requested an interpreter. See United States v. Shin, 953 F.3d 559, 561 (9th Cir. 1991) (as a constitutional matter, the appointment of interpreters is within the court's discretion, and a lack of objection weighs against a finding of abuse of discretion). Accordingly, I conclude that habeas corpus relief on this claim is not warranted.
Finally, petitioner's request for an evidentiary hearing, to further develop factual support for his claims should be denied on the basis that petitioner has made no showing that the factual predicate could not have been previously discovered through the exercise of due diligence. 28 U.S.C. § 2254(e)(2)(A)(ii).
CONCLUSION
Based on the foregoing, petitioner's petition for writ of habeas corpus (#2) should be denied and this proceeding dismissed.
SCHEDULING ORDER
The above Findings and Recommendation are referred to a United States District Judge for review. Objections, if any, are due February 18, 2004. If no objections are filed, the Findings and Recommendations will go under advisement on that date.
If objections are filed, a response to the objections is due March 3, 2004, and the review of the Findings and Recommendation will go under advisement on that date.