Opinion
Civil No. 01-101-AS.
April 20, 2004
ORDER AND OPINION
On December 21, 2003, Magistrate Judge Ashmanskas issued findings and recommendation in the above captioned case. Petitioner filed timely objections.
Pursuant to 28 U.S.C. § 636(b)(1)(c), this court has reviewed the findings and recommendation and petitioner's subsequent objections. While this court's opinion agrees with that of the Magistrate, I write to clarify certain points within the requisite legal analysis and so that the findings of fact are consistent with petitioner's objections and his previous acquittals on charges associated with the same incident.
I. Introduction
This habeas corpus petition concerns a conviction for assault in the second degree, stemming from events which occurred 18 years ago. At trial, Lovelace was acquitted on charges of rape, kidnaping, and sodomy. Lovelace's assault conviction resulted from a somewhat unusual sequence of events in which Lovelace grabbed and held the victim's arm as she attempted to jump out of Lovelace's moving automobile; as a result of this grab, the victim was dragged for 300 feet or more and suffered severe pavement burns, among other injuries.
Lovelace now asserts three grounds for relief: 1) ineffective assistance of counsel for failing to seek a "choice of evils" jury instruction; 2) insufficient evidence to support the conviction; 3) ineffective assistance of counsel for failing to seek an expert witness to explain that Lovelace's actions in dragging the victim with his car were reasonable under the circumstances.
Based on the following, the court rejects each of these claims.
A. Factual Background
The underlying facts are as follows:
On March 16, 1986, Linda Mumm, the complainant in the underlying criminal case, met Scott Lovelace (petitioner) in a bar in Gresham, Oregon. They had drinks, danced several times, and left the bar together at approximately 2:00 a.m. the next morning. From this point forward, the facts alleged by Mumm diverge from those alleged by Lovelace.
Mumm contends that Lovelace offered her a ride to her car, which was parked nearby. Lovelace allegedly kissed and fondled Mumm against her wishes, refusing to let her out of the car, and driving off, insisting that they go out for breakfast. Mumm alleges that Lovelace proceeded past an open Denny's restaurant and parked his car in a dark parking lot. Mumm contends that Lovelace made further sexual advances. It is undisputed that Lovelace and Mumm had some sexual contact in Lovelace's car after leaving the bar. Lovelace contends that the sexual contact was consensual. Mumm testified such activity was not consensual, that she was taken to the dark parking lot against her will and forced at knife point to take off her clothes and engage in oral sodomy. Mumm further testified that she began to fear for her life and that, to extricate herself from the situation, she concocted a ruse, suggesting that she and Lovelace return to her house. Lovelace agreed, started the car, and began driving. Mumm remained unclothed. Mumm testified that Lovelace refused to allow her to raise her seat, which was fully reclined. Mumm testified that on two occasions she tried to look up and out the window, but Lovelace pushed her down both times.
Shortly thereafter, after driving across some railroad tracks and realizing she knew where they were, Mumm saw headlights and realized there were still people on the road. Mumm turned toward her door, opened it, and began to jump out of the car. Lovelace grabbed her wrist and tried to pull her back into the car, which caused Mumm to be dragged for several seconds before Lovelace released his grasp. Mumm testified that the car seemed to speed up during the course of the drag. Evidence at the scene indicated that the victim was dragged 300 feet or more. Skid marks suggested that Lovelace did not start breaking until 217 feet after Mumm lost her shoe.
Lovelace testified to a different version of the facts. Lovelace testified that what had been a mutually agreeable interlude went sour when he mistakenly produced a knife from the floor of his car, which was amongst some other tools he kept handy in the course of his travels. Lovelace contended that, despite his explanations, Mumm became hysterical upon seeing the knife. Lovelace claims he then endeavored to take Mumm home, until she began to jump out of the car (ostensibly motivated by what Lovelace claims was her mistaken belief that he intended to harm her). Lovelace claimed his grab of Mumm's arm was a reasonable reflex reaction intended to prevent the victim from harming herself, and that the accelerator pedal of his car became stuck, prohibiting him from stopping the car.
Mumm testified that, after picking herself up off the road, she initially hid from Lovelace, then ran to some nearby residences, knocking first on the door of Larry DeSanno, then Jeffery Zuver, who took Mumm into his home, then went to DeSanno's to borrow the phone and call the police. In the meantime, DeSanno had called his stepfather, Larry Grimm, who lived nearby, to come and help. Upon arriving, both Grimm and DeSanno saw Lovelace's car parked across the street, lights out. As they watched, the car slowly drove away.
Mumm was taken to the hospital, where she remained for over a month recovering from pavement burns over eighty percent of her body. While at the hospital, Mumm described Lovelace to police investigators, and a composite sketch was completed. She also picked Lovelace's photo out of a photo line-up, but emphasized that the photo differed because he now had a mustache.
Two days later, Lovelace was arrested in a mall parking lot in Redding, California on unrelated charges. At trial, Lovelace admitted he had left the Portland area because he feared being arrested, and that he had spent the last two days driving south. At the time of his arrest, Lovelace was clean shaven, and indicated that he had recently shaved off his mustache.
Lovelace was charged with one count of kidnaping in the first degree, one count of sodomy in the first degree, one count of attempted rape in the first degree, and one count of assault in the second degree.
B. Procedural Background
Following his arrest in Redding, California, Lovelace was transported back to Multnomah County, where he was indicted on charges of kidnaping in the first degree, sodomy in the first degree, attempted rape in the first degree, and assault in the second degree. The assault charge related to Lovelace's grabbing of Ms. Mumm's wrist as she leapt from the car, and holding her while she was dragged. Lovelace was tried before a jury, who convicted him of assault in the second degree. The jury was unable to reach a verdict on the remaining charges. On retrial, Lovelace was acquitted on the remaining charges.
At sentencing, the trial court determined that Lovelace was a dangerous offender pursuant to Or. Rev. Stat. § 161.275, and sentenced him to serve a maximum term of imprisonment not to exceed 30 years. The trial court also imposed a compensatory fine of $100,000.
Lovelace directly appealed his Assault II conviction, but the Oregon Court of Appeals affirmed in a written opinion. State v. Lovelace, 94 Or. App. 586, 76 P.2d 80 (1989). The Oregon Supreme Court then denied review. State v. Lovelace, 307 Or. 571, 777 P.2d 1021 (1989). In his brief to the Oregon Court of Appeals, Lovelace raised an insufficiency of evidence challenge. He did not, however, pursue this claim in his petition to the Oregon Supreme Court, there raising only claims relating to his sentence.
After nearly 10 years, Lovelace next pursued state post-conviction relief ("PCR"). Following an evidentiary hearing, the PCR trial court denied relief. Lovelace appealed, and the Oregon Court of Appeals affirmed the conviction, but ordered the case remanded for resentencing. Lovelace v. Zenon, 159 Or. App. 158, 976 P.2d 575 (1999). Both parties sought review by the Oregon Supreme Court, which was denied. Lovelace v. Zenon, 19 Or. 589, 994 P.2d 130 (2000). In his petition for review for the Oregon Supreme Court, Lovelace raised only one claim of ineffective assistance of counsel, alleging trial counsel performed ineffectively by failing to request a jury instruction on "choice of evils" or "lawful use of force".
Pursuant to the Oregon Court of Appeals order, the PCR trial court vacated Lovelace's sentence and remanded the case to Multnomah County for re-sentencing. On June 18, 2001, the Multnomah County Circuit Court conducted the re-sentencing, and on July 25, 2001, issued the current Judgment of Conviction, which reduced Lovelace's sentence to ten years maximum.
The sentence had therefore expired as soon as it was imposed. Petitioner remains incarcerated on a consecutive, 20 year maximum sentence stemming from an unrelated rape conviction, which was issued by the Jackson County Circuit Court, Medford, Oregon, on March 19, 1987.
On September 5, 2001, Lovelace filed his petition for writ of habeas corpus with this court, and on March 22, 2002, appointed counsel filed an amended petition. Lovelace asserts three grounds for relief:
Petitioner filed his initial pro se petition on January 18, 2001, prior to the resentencing proceeding in Multnomah County. Pursuant to a joint motion of the parties, however, on September 5, 2001, this court issued an order deeming the petition voluntarily dismissed and re-filed. That order was amended in October of 2003, to reflect that the petition was deemed refiled on September 4, 2001.
Ground One: Conviction resulted from denial of effective assistance of counsel, in violation of the U.S. Constitution, Amendment VI and XIV.
Supporting Facts: Counsel failed to request jury instruction on defense(s) of "choice of evils" or lawful use of force to prevent infliction of serious physical self-injury (see ORS 161.205 (4)) — while nonetheless arguing that Lovelace's actions constituted a non-criminal "panic" response to prevent another from being hurt in an "emergency situation." Had the jury been instructed on either defense, it is probable and/or likely that the jury would have returned a verdict of acquittal rather than of guilt.
Ground Two: There was insufficient evidence to support the conviction rendering the conviction contrary to the U.S. Constitution's Amendment XIV.
Supporting Facts: Evidence adduced at trial failed to establish defendant/Lovelace's acts caused serious physical injury to the victim or that he acted recklessly under the circumstances manifesting extreme indifference to the value of human life. The victim initiated the act that led to her ultimate injury, leaping from the speeding vehicle without Lovelace's assistance or encouragement. Lovelace grabbed her wrist and attempted to hold her and prevent her fall from the vehicle; and his efforts were not shown to be a substantial factor in bringing about her injuries. Her jump from the car was not a natural or probable consequence of any conduct of Lovelace; and his grab at her wrist to restrain her and prevent her fall could not reasonably be construed by any rational trier of fact to be an expression of "extreme indifference to the value of human life" nor of circumstances under which his conduct could be found beyond a reasonable doubt to have been recklessly assaultive.
Ground Three: Trial counsel provided ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments when she failed to seek an expert witness to testify at trial that the physical evidence and/or injuries to the complaining witness were consistent with the [Lovelace's] version of events and consistent with a legal defense.
Supporting Facts: Lovelace presents a new report submitted on his behalf by Franklin E. Wong, P.E., a forensic engineer and accident reconstructionist. Mr. Wong's report states that the entire incident from the time the victim began to jump out of the car until Lovelace let go of her wrist took approximately 4 to 5 seconds. Wong further states that a perception and reaction time in the 4 to 5 second range seems appropriate and reasonable under the complex and stressful circumstances facing Lovelace. Lovelace argues that Wong's report represents new, reliable evidence sufficient to establish a claim of actual innocence of assault in the second degree.
Respondent contends Lovelace procedurally defaulted the claims alleged in Grounds Two and Three, as he failed to fairly present them to Oregon's highest court. Respondent further argues Lovelace is not entitled to relief on the claim alleged in Ground One, as the Oregon state courts' decisions denying relief on this basis were neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the U.S. Supreme Court.
Lovelace concedes that he procedurally defaulted the ineffective assistance of counsel claim alleged in Ground Three. He argues, however, that the procedural default should be excused on the basis that he has produced evidence that he is actually innocent of assault in the second degree. Lovelace further argues that the state courts' decisions on his ineffective assistance of counsel claim alleged in Ground One are not entitled to deference, and that relief should be granted. Lovelace offers no direct argument on the insufficiency of the evidence claim alleged in Ground Two.
Magistrate Judge Ashmanskas reviewed each claim for relief put forth by Lovelace and found them without merit in his findings and recommendation. On December 31, 2003, Lovelace filed objections to the findings and recommendation, which, in essence, state that: 1) the Magistrate's treatment of the facts was overly favorable to the victim; 2) the report of Mr. Wong demonstrates Lovelace's actual innocence by negating the mens rea element of the assault charge. After careful review, this court finds Lovelace's objections to be without merit for the reasons that follow.
DISCUSSION
II. Ground One; Relief on the Merits For Procedurally Exhausted Claims; The "Choice of Evils" Jury Instruction.
A. Legal Standards
A habeas petitioner whose claim was adjudicated on the merits in state court is not entitled to relief in federal court unless he demonstrates that the state court's adjudication: "resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was 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); Lockyer v. Andrade, 123 S.Ct. 116, 1172-75 (2003).
A state court acts "contrary to . . . clearly established federal law" if it arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if it decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412 (2000); Ramdass v. Angelone, 530 U.S. 156, 165-66 (2000). An "unreasonable application of clearly established federal law" occurs if a state court identifies the correct governing legal principle from Supreme Court decisions, but unreasonably applies that principle to the facts of the prisoner's case or unreasonably refuses to extend the governing legal principle. Williams, 529 U.S. at 412; Ramdass, 530 U.S. at 166.
Determinations of factual issues by a state court are presumed to be correct, and a petitioner in federal court has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). A petitioner must present clear and convincing evidence to overcome § 2254(e)(1)'s presumption of correctness; conclusory assertions will not do. See Sumner v. Mata, 449 U.S. 539, 546-47 (1981) (discussing former § 2254(d) presumption of correctness afforded findings of fact).
B. Analysis
1. In light of the facts at trial, omitting a request for choice-of-evils jury instruction does not amount to inadequate assistance of counsel.
In Ground One, Lovelace alleges he received constitutionally ineffective assistance of counsel because his trial attorney failed to request jury instructions on defenses of "choice of evils," or "lawful use of force" to prevent infliction of serious physical injury. In order to prevail on his claim of ineffective assistance of counsel, Lovelace must show both that his attorney's performance fell below an objective standard of reasonableness and that counsel's inadequate performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct 2052 (1984). Inadequate assistance of counsel requires errors "so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment."Williams, 529 U.S. at 390 (quoting Strickland, 466 U.S. at 687). While the burden is not insurmountable, there is a strong presumption that counsel's conduct falls within "the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
Like the decision not to seek a forensic expert, Lovelace's ineffective assistance of counsel for failure to seek a choice of evils jury instruction claim must be viewed within the context that existed at trial. Strickland, 466 U.S. at 689 (citingMichel v. Louisiana, 350 U.S. 91, 100-101 76 S.Ct. 158 (1955) (as discussed, infra). Whether omitting a request for a "choice of evils" jury instruction amounts to inadequate assistance of counsel is informed by the following facts. As noted, as a general matter, Lovelace's counsel obtained acquittal on 3 of 4 charges faced by Lovelace at trial. The acquittals were for the three most serious charges: kidnaping in the first degree, sodomy in the first degree, and attempted rape in the first degree. More importantly, the jury was presented with all the facts and arguments that underpin the "choice-of-evils" jury instruction at trial, where Lovelace's counsel marshaled those facts and arguments into a rather well-developed attack on the mens rea, or "recklessness," element of the assault charge. Despite these efforts of Lovelace's counsel, the jury found recklessness.
This finding of recklessness is inconsistent with the essence of Lovelace's contention — that the jury was willing to find him innocent of Assault II had they been presented with an appropriate instruction that allowed them to do so. In fact, by finding recklessness, the jury rejected the very same treatment of the facts that Lovelace asks to have re-examined. In essence, the inclusion of a "choice of evils" jury instruction would only allow the jury another way of accepting an argument which they clearly rejected.
Furthermore, having reviewed the trial court record, based on the evidence at trial, this court finds as a matter of law that Lovelace would not have been entitled to a choice-of-evils jury instruction even if counsel had asked for it. Under ORS 161.200, in order to establish a choice-of-evils defense, the defendant is required to offer evidence that would be sufficient for the jury to find that:
(1) his conduct was necessary to avoid the threatened injury;
(2) the threatened injury was imminent; and
(3) it was reasonable for him to believe that the need to avoid that injury was greater than the need to avoid the injury that . . . the statute that he was found to have violated seeks to prevent.State v. Boldt, 841 P.2d 1196, 1197-98 (Or.App. 1992) (emphases added).
Here, Lovelace cannot establish the first element because his grabbing and holding of the victim's arm was not "necessary." Lovelace certainly had other alternatives, most notably, stopping the car and letting the victim go. Similarly, we are unable to conclude that Lovelace's conduct — hanging on to someone who is being dragged outside his car — was "reasonable". This court is also unable to conclude that the victim's decision to jump out of Lovelace's moving car was prompted by some sort of hysterical misconception. The jury's guilty verdict on the assault charge is supported the victim's testimony that Lovelace refused to let her sit upright in her car seat, and was menacing her prior to her jump and his grab. Because there was evidence that Lovelace's mens rea preceded the grab, even if this court were willing to accept the assertion that the grab was a reasonable reflex, that conclusion would not negate the jury's finding of recklessness. More importantly, the menacing treatment of the victim that preceded the grab casts a dark cloud over Lovelace's claim that the grab was both "necessary" and "reasonable." Because Lovelace's grab was neither, and the choice-of-evils jury instruction was not available, failure to seek it cannot amount to inadequate assistance of counsel under Strickland.
The "use of force" defense was also unavailable to petitioner at trial for the same reasons. ORS 161.205 (4) also requires that the act in question be both "reasonable" and "necessary."
This comports with the following findings of fact and conclusions of law entered by the trial judge at Lovelace's post-conviction relief hearing:
FINDINGS OF FACT
1. The evidence at petitioner's trial would not have supported a choice of evils defense.2. The evidence at petitioner's trial would not have supported a defense under ORS. 161.205(4) of the use of force upon another to deter the infliction of serious physical self injury.
3. An attorney exercising reasonable professional skill and judgment would not have asserted a choice of evils defense on petitioner's behalf or a reasonable use of force to thwart infliction of serious physical self-injury defense on petitioner's behalf.
4. Petitioner's own testimony at trial negated a possible defense of choice of evils or lawful use of force to avoid the infliction of serious self injury.
5. Petitioner did not demonstrate in this proceeding that trial counsel could have investigated the comparative extent of injuries to a person dragged by a car to the extent of injuries which would be inflicted if the same person had been allowed to bounce free from the car. Petitioner failed to demonstrate that such a comparison would have been possible.
6. An attorney exercising reasonable professional skill and judgment in the underlying criminal trial would not have sought a special jury instruction on petitioner's state of mind while he was dragging the victim from his car.
* * *
34. Trial counsel had no reason to ask petitioner additional questions at trial about whether his grabbing the victim was natural reaction or a reflex, or whether it was a conscious decision on petitioner's part.
CONCLUSIONS OF LAW
1. Petitioner received adequate assistance of trial counsel.
2. The evidence offered at petitioner's trial would not have supported defenses under ORS 161.200, choice of evils, or ORS 161.205(4), justification.
Resp. Exh. 126, pp. 10-11, 14-15 (emphasis added).
As noted, determinations of factual issues by a state court are presumed to be correct, and a petitioner in federal court has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). A petitioner must present clear and convincing evidence to overcome § 2254(e)(1)'s presumption of correctness; conclusory assertions will not do. See Sumner v. Mata, 449 U.S. 539, 546-47 (1981) (discussing former § 2254(d) presumption of correctness afforded findings of fact). Lovelace presents no clear and convincing evidence that the state court's determination on the unavailability of the choice-of-evils instruction was in error. Certainly, Mr. Wong's testimony does not speak to this point. While he may be an expert as to the length of time the victim was dragged, there is nothing in his background that qualifies him to testify as an expert to the reasonableness of hanging on to a naked women who has jumped out of one's car after a sexual encounter gone bad. Any opinion from Mr. Wong on the "reasonableness" of Lovelace's behavior is almost certainly beyond the scope of his scientific expertise and therefore inadmissable for this purpose. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
There is still another important reason why Lovelace's ineffective assistance of counsel for failure to seek a jury instruction argument fails. Even if the choice of evils jury instruction had been available, seeking that instruction would be a tactical choice. Second-guessing legitimate strategic decisions made by trial counsel does not amount to inadequate assistance of counsel under Strickland, which requires that defendant must overcome the "strong presumption" that, under the circumstances, the challenged decision "might be considered sound trial strategy." 466 U.S. at 689. Here, even if the jury instruction had been available, Lovelace doesn't present enough evidence to overcome that presumption. Trial counsel wisely chose to focus most of the effort, and the jury's attention, on the weaknesses in the victim's initial denials of consent. The decision not to focus too much attention on the time when any alleged consent began to unravel was certainly not ineffective, and likely contributed to Lovelace's success at trial.
In sum, this court rejects Lovelace's first claim: ineffective assistance of counsel for not requesting a choice of evils jury instruction. Consistent with the state PCR court, this court finds that the choice of evils jury instruction would not have been available to Lovelace because he cannot show that his conduct-hanging on to a naked women who was dragged outside his car after a sexual encounter gone bad-was either "reasonable" or "necessary." Furthermore, this court finds that the state court's denial of post conviction relief to Lovelace was neither contrary to, nor an unreasonable application of Strickland to the facts of this case. On the contrary, Lovelace's counsel mounted a formidable defense, obtaining acquittal of 3 of the 4 most serious charges. Counsel's treatment of the recklessness element of the assault charge must be understood within the factual context that existed at trial, which suggests that counsel's decision not to spotlight the most culpable moments of Lovelace's behavior was both wise and effective. Accordingly, Lovelace is not entitled to relief on the merits of his first claim that he was denied effective assistance of trial counsel.
III. Grounds Two and Three; Procedurally Defaulted Claims Which Require a Showing of Actual Innocence, Which Lovelace Fails to Present.
A. Legal Standards
Generally, a state prisoner must exhaust all available state court remedies either on direct appeal or through collateral proceeding before a federal court may consider granting habeas corpus relief. See 28 U.S.C. § 2254 (b)(1). To satisfy the exhaustion requirement, a prisoner must fairly present his federal claims to the state courts. Koerner v. Grigas, 328 F.3d 1039, 1046 (9th Cir. 2003); Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th Cir. 2003).
To "fairly" present a federal claim, the prisoner must present both the operative facts and the legal theory on which the claim is based so as to adequately alert the state courts to the federal nature of the claim. Koerner, 328 F.3d at 1046; Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir.). cert. denied, 123 S.Ct. 2094 (2003). This may be accomplished by explicit reference to a constitutional amendment or by citing state or federal case law discussing the federal constitutional right in question. SeePeterson, 319 F.3d at 1158; Reese v. Baldwin, 282 F.3d 1184, 1190 (9th Cir. 2002), cert. granted, 123 S.Ct. 2213 (2003). Further, the Ninth Circuit concluded a claim is "fairly presented" if the petitioner identifies the federal nature of the claim in the lower state court and that court specifically addresses the federal claim in its opinion in a manner sufficient to put the reviewing court on notice of the specific federal claim. Kelly, 315 F.3d at 1067 (citing Reese, 282 F.3d at 1193).
A federal habeas claim is procedurally defaulted if the claim could have been raised in state court, but was not and is now procedurally barred. Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991). If a state prisoner has procedurally defaulted his federal claim in state court, federal habeas review is precluded unless the prisoner can demonstrate cause for the procedural default and actual prejudice, or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman, 501 U.S. at 750.
The "miscarriage of justice" exception to procedural default is limited to habeas petitioners who can show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327 (1995) (citing Murray v. Carrier, 477 U.S. 478, 496 (1986)). Under this exception, a petitioner may establish a procedural "gateway" permitting review of defaulted claims if he demonstrates "actual innocence." Schlup, 513 U.S. at 316 n. 32. "[I]f a petitioner . . . presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of non-harmless constitutional error, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying claims." Id. at 316.
To be credible, a claim of actual innocence must be supported with "new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Id. at 324. The "new" evidence need not be newly available, just newly presented — that is, evidence that was not presented at trial due to unavailability or exclusion." Sistrunk v. Armenakis, 292 F.3d 669, 673 n. 4 (9th Cir. 2002) ( en banc), cert. denied, 537 U.S. 1113 (2003).
The required evidence must create a colorable claim of actual innocence, that the petitioner is innocent of the charge for which he is incarcerated, as opposed to legal innocence as a result of legal error. See id. at 321. It is not enough that the evidence show the existence of reasonable doubt, petitioner must show "that it is more likely than not that no `reasonable juror' would have convicted him." Id. at 329; see Van Buskirk v. Baldwin, 265 F.3d 1080, 1084 (9th Cir. 2001) ("the test is whether, with the new evidence, it is more likely than not that no reasonable juror would have found [petitioner] guilty"),cert. denied, 535 U.S. 950 (2002).
B. Analysis
1. Ground Two, "insufficiency of evidence," was procedurally defaulted.
Respondent argues that Lovelace's Ground Two claim of insufficient evidence is procedurally defaulted because Lovelace failed to fairly present it as federal questions to the highest state court, and the time to do so has now expired. While Lovelace included this claim in his direct appeal to the Oregon Court of Appeals, he did not raise it in his petition for review to the Oregon Supreme Court.
Lovelace does not address respondent's argument as to Ground Two. Because respondent's allegations of procedural default are correct with respect to this claim, and because Lovelace makes no showing of cause and prejudice or fundamental miscarriage of justice to excuse this procedural default, Lovelace is not entitled to relief on Ground Two. See 28 U.S.C. § 2248 ("[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 corpus 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.")
To the extent petitioner's argument that actual innocence excusing his procedural default of the claim alleged in Ground Three can be construed as applicable to Ground Two, because petitioner does not prevail on the actual innocence claim as addressed below, his procedural default of Ground Two is not excused.
2. Ground Three-Ineffective assistance of counsel for failing to seek an expert.
As discussed, Lovelace concedes that he procedurally defaulted the ineffective assistance of counsel claim alleged in Ground Three. Nevertheless, Lovelace argues the procedural default should be excused because he has made a showing of "actual innocence" under Schlup.
The claim of actual innocence rests upon a report submitted on Lovelace's behalf by Franklin E. Wong, P.E., a forensic engineer and accident reconstructionist. Mr. Wong's report states that the entire incident from the time that Mumm began to jump out of the car until Lovelace let go of her wrist took approximately 4 to 5 seconds. Wong further states that a perception and reaction time in the 4 to 5 second range seems appropriate and reasonable under the complex and stressful circumstances facing Lovelace. Lovelace argues that Wong's report represents new, reliable evidence sufficient to establish a claim of actual innocence of Assault in the Second Degree.
First, we must consider whether the new forensic report from Mr. Wong qualifies as "new" evidence. As noted, in the 9th Circuit, the standard for new evidence is rather broad. The "new" evidence need not be newly available, just newly presented — that is, evidence that was not presented at trial due to unavailability or exclusion. Sistrunk, 292 F.3d at 673 n. 4 (9th Cir. 2002) ( en banc), cert. denied, 537 U.S. 1113 (2003). However, any such evidence is subject to the due-diligence requirement set forth in Gandarela v. Johnson, which prohibits petitioners from developing new evidence of "actual innocence" through an evidentiary hearing unless the evidence in question could not have been discovered at trial through due-diligence. 286 F.3d 1080, 1087 (9th Cir. 2002).
Here, we need not reach the "due-diligence" question because we cannot say that the forensic report from Mr. Wong represents "newly presented" evidence, nor can we can say that such evidence was "unavailable" or "excluded" from trial. Although Lovelace's counsel did not present expert testimony from a forensic engineer at trial, the jury heard and rejected equivalent arguments from Lovelace and his counsel. Under cross examination from the state, Lovelace testified as follows:
Q: Now, when you were driving down Division, she jumped from the car, right?
A: Yes.
Q: You didn't let her go?
A: I, I did let her go.
Q: And you grabbed hold of her, didn't you?
A: Yes, I did.
Q: You held her quite a long time didn't you?
A: No, I didn't.
Q: You don't consider over 300 feet a long distance?
A: When you're talking about distance and time, you're talking about two different entities. It was not a long time. (Tr. Tr. 301).
Lovelace's counsel elaborated on the point in closing argument:
As far as the assault charge is concerned, [Lovelace] has to be shown to be reckless in his conduct, and the assault involved according to the State, a dangerous weapon, being the vehicle. In order for that to be the case, he has to be reckless in the way he's using that vehicle, driving down that street as she jumps out because you have to find that his recklessness, recklessness, using a dangerous weapon, being that vehicle caused her serious physical injuries. Not just enough that she got injured, but that he, in his recklessness, caused that.
What did he do with that car? He was driving down the street. She jumped out. Natural reaction if a passenger tried to jump out of a car, is to reach over and grab her. It may be just as reckless not to grab a person. Injuries would have occurred on jumping out of that car whether or not her grabbed that, but he grabbed. Reflex. Tried to prevent her from being hurt.
During opening statement, petitioner's counsel similarly emphasized that Mr. Lovelace was `concentrating on holding her back in the car so she wouldn't injure herself." (Tr. Tr. 60.)
Tr. Tr. 380.
At best, Mr. Wong's testimony would bolster arguments that were the subject of considerable discussion at trial. Accordingly, we cannot say that Mr. Wong's forensic report represents "newly presented" evidence that was "unavailable" or "excluded" from trial.
However, assuming, arguendo, that Mr. Wong's testimony qualifies as "newly presented" evidence, the testimony fails to satisfy the next step of the requisite analysis. In light of the evidence presented at trial, testimony from the forensic engineer does not make it "more likely than not that no reasonable juror would have convicted" Lovelace. United States v. Benboe, 157 F.3d 1181, 1184 (9th Cir. 1998) (citing Bousley v. United States, 523 U.S. 614, 623 (1998)). Also, under Schlup, the evidence presented does not represent "evidence of innocence so strong that a court cannot have confidence in the outcome of the trial." Schlup, 513 U.S. at 316 n. 32. Again, the critical factor in this analysis is that the jury heard and considered the very argument that is re-incarnated in the report of Mr. Wong. This is not new exculpatory evidence. In light of the evidence at trial, this court concludes that neither Mr. Wong's opinion regarding the "reasonableness" of Lovelace's actions, nor the proffered clarification of the time and distance for which the Mumm was dragged, would not have changed the findings of the jury. Having concluded that the "new" evidence falls short of the "no reasonable juror" standard, Lovelace's claim is barred from proceeding through the Schlup gateway.
Again, it is also important to note that Mr. Wong's opinion on the "reasonableness" of petitioner's reaction time is almost certainly beyond the scope of his scientific expertise and therefore inadmissable. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
Because we find that the evidence submitted by the petitioner is insufficient to establish "actual innocence", and because this evidence is not in fact newly presented, this court declines to consider whether the evidentiary hearing requirements of 28 U.S.C. § 2254(e)(2) as enacted by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") affect considerations of claims alleged under Schlup. See Sistrunk, 292 F.3d at 637 N. 3 (declining to decided whether Schlup survives the AEDPA because the petitioner did not seek an evidentiary hearing).
Several judges in this district have ruled that § 2254(e)(2) does not apply to situations where petitioners are only seeking to admit evidence to excuse a procedural default under the "miscarriage of justice" exception. See e.g. Charles v. Baldwin, 1999 WL 694716 at 2 (D. Or. 1999).
Nevertheless, if we assume, arguendo, that Mr. Wong's testimony would have convinced the jury of Lovelace's innocence, because Lovelace's claim is based on alleged inadequate assistance of counsel, Lovelace's claim would require another measure of analysis under Strickland:
A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable, unless a defendant makes both showings, it cannot be said the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.Strickland, 466 U.S. at 687.
Having reviewed the trial transcript, we cannot say that trial counsel's decision not to present testimony from a forensic expert such as Mr. Wong is either "deficient" performance or that Lovelace was "prejudiced" as a result. Again, as a general matter, from the transcript, it is evident that Lovelace's counsel generally performed at a level that far exceeded the requirements of the Sixth Amendment. Lovelace's counsel obtained acquittal on 3 of 4 charges faced by Lovelace at trial. The acquittals were for the three most serious charges: kidnaping in the first degree, sodomy in the first degree, and attempted rape in the first degree. More importantly, in regard to the assault charge, there is evidence that Lovelace's counsel made a strategic decision not to draw the jury's attention to the length of time for which Lovelace held on to the wrist of the assault Mumm, a fact which Wong's testimony would only serve to highlight. In an affidavit submitted for Lovelace's post-conviction relief proceeding, David Hocraffer, trial counsel for the Lovelace commented on the strategic decision not to pursue this argument:
The gist of the argument, legally, as applied to the facts developed at trial and per client's testimony (even if believed), would be that it was better for a person [exiting] a vehicle at 45 to 55 mph to be dragged naked for 300 to 500 feet along the pavement before bouncing free, than it was to simply exit the vehicle at that rate of speed and bounce free. You need to recall that Mr. Lovelace's explanation for not slowing down was that the accelerator pedal stuck on his older model Volvo, and was not possible to slow down (an occurrence which had apparently happened to him in the past, and therefore didn't come as a complete surprise to him). State Ex. at 119 at 1-2.
Where strategic choices at trial are at issue, again,Strickland guides us:
Judicial scrutiny of counsel's performance must be highly deferential. It is all to tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining a counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged decision "might be considered sound trial strategy".Strickland, 466 U.S. at 689 (citing Michel v. Louisiana, 350 U.S. 91, 100-101 76 S.Ct. 158 (1955)) (emphasis added).
Here, Lovelace does not overcome this presumption. Even from the privileged vantage that hindsight affords, it is not clear that Mr. Wong's testimony would have in any way changed the mind of the jury, who considered and rejected an equivalent argument. When we strip away the "distorting effects of hindsight," asStrickland says we must, it is clear that Lovelace's claim falls short of the standard for showing ineffective assistance of counsel. The decision not to seek an expert to elaborate on the way in which Lovelace held the wrist of the assault victim does not represent an error "so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment."
In sum, this court finds that the evidence submitted in the report of Mr. Wong does not qualify as "newly presented" underSistrunk, 292 F.3d at 673 n. 4 (9th Cir. 2002) ( en banc),cert. denied, 537 U.S. 1113 (2003). Furthermore, even if the evidence in Mr. Wong's report was "new," this evidence falls short of the "actual innocence" standard which is required to proceed through the Schlup gateway. Lastly, under Strickland, the decision not to seek an expert to elaborate on the way in which Lovelace held the wrist of the assault Mumm does not represent an error "so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." For these reasons, the court finds Lovelace's third claim for relief to be without merit.
CONCLUSION
Having reviewed all three of Lovelace's claims — 1) ineffective assistance of counsel for failing to seek a "choice of evils" jury instruction; 2) insufficient evidence to support the conviction; 3) ineffective assistance of counsel for failing to seek an expert witness to explain that petitioner's actions in dragging the Mumm with his car were reasonable under the circumstances — this court finds the petition to be without merit.The Amended Petition for Writ of Habeas Corpus (#31) is DENIED and this action is DISMISSED.