Opinion
2:20-cv-01508-CL
06-08-2023
NICHOLAS EMILIO LUNETTA, Petitioner, v. BRIDGETTE AMSBERRY, Respondent.
FINDINGS AND RECOMMENDATION
MARK D. CLARKE UNITED STATES MAGISTRATE JUDGE
Petitioner, an individual in custody at Eastern Oregon Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. Because Petitioner's claims are procedurally defaulted or otherwise do not involve an unreasonable application of clearly established federal law, the district judge should deny the Petition for Writ of Habeas Corpus (ECF No. 1).
BACKGROUND
In September 2012, a Multnomah County grand jury indicted Petitioner - along with codefendants Jamir Ibabao, Damien Rose and Dillon Sparks - for several counts of first-degree robbery with a firearm, second degree robbery with a firearm, first-degree burglary, and first-degree kidnapping with a firearm. Resp't Ex. 102. The charges resulted from an incident in which Petitioner, Ibabao, Rose and Sparks “entered a home where five people resided and stole property” at gunpoint. Resp't Exs. 102, 106 at 3.
Police executed a search warrant at Sparks' apartment on July 19,2012. Id. at 391-92. In a bedroom containing correspondence with Petitioner's name on it, police found evidence relating to the robbery, including the safe, a handgun, a leather holster, and ammunition. Id. at 391-96, 585-87, 589. Sparks was arrested and implicated the others, including Petitioner. Id. at 465-67. Sparks and Rose pled guilty and were each promised 110 months of imprisonment in exchange for their cooperation and testimony against Petitioner and Ibabao. Resp't Ex. 103 at 456, 458-59,533-36.
Petitioner and Ibabao were tried jointly. Resp't Exs. 101,103. At trial, Sparks testified that he, Petitioner, Ibabao, and Rose drove to an address in Portland, Oregon on the night of the robbery wearing hoodies and masks to cover their faces. Resp't Exs. 102; 103 at 410-12, 416-420. They entered the home through the kitchen door, and each carried guns. Resp't Ex. 103 at 413,427-29. All five occupants were taken to and held at gunpoint in the primary bedroom. Id. at 430-32. Meanwhile, Sparks and Petitioner gathered items from the home, including a gun safe from inside the primary bedroom closet, and took them to the car. Id. at 429-33, 437-38.
Sparks testified that, after the robbery, they all returned to his apartment and opened the safe with a hammer and screwdriver. Id. at 438-41. Sparks' girlfriend, Nicole Young, also testified that she saw the safe and its contents - “alcohol, guns and pom” - in their apartment that night. Id. at 318-20. According to Young, Petitioner and Sparks took the guns, Rose took the alcohol and Ibabao took the pornography, Id. at 320. Sparks and Young both testified that Petitioner was in the apartment when the safe was opened. Id. At 318, 441.
Detective Michael Smith of the Portland Police Bureau testified that he arrested and interviewed Ibabao on September 18, 2012. Id. at 641. Detective Smith testified that throughout the interview Ibabao denied his involvement in the robbery. Id. Notably, Detective Smith recalled that although Ibabao “insisted he didn't do a robbery,” he told him, “‘But if I did, I know for a fact that [Petitioner] and [Rose] would not talk and say I did.'” Id. at 644. Detective Smith testified that Ibabao ultimately admitted to opening the gun safe in Sparks' apartment, but said Petitioner was not there when it was opened. Id. at 649-51.
While Petitioner was in jail, he gave another inmate a packet of letters addressed to various individuals, including his two brothers and Diana Mahia, his then girlfriend. Id. at 247-49. Rather than deliver them as Petitioner requested, the inmate gave the letters to his own lawyer and they were admitted at trial. Id. at 249. The letters were incriminating and included discussions about persuading Young not to testify, suggesting that she recant, and identifying ways that other witnesses and co-conspirators could make statements or deals that would benefit Petitioner. See Resp, Ex. 118.
The State also introduced into evidence a recorded jail phone call from Ibabao to Mahia. Resp't Ex. 103 at 658; see Resp't Ex. 121. In its closing argument, the State argued that Ibabao used coded language to tell Mahia to “Let [Petitioner] know I haven't said anything,” and admitted that “we were expecting” to be arrested after learning that Sparks had been arrested. Resp't Ex. 103 at 711-14. The State also argued that Ibabao referred to Petitioner when he said, “I know for sure Nicky didn't say nothing.” Id. at 714.
At the conclusion of the jury trial, Petitioner was convicted of all counts charged and was sentenced to 270 months in prison. Resp't Exs. 101, 103 at 791-797, 867-877.
Petitioner filed a direct appeal assigning error to the trial court's denial of his motions for judgment of acquittal. Resp't Ex. 104. In its response, the State conceded that the trial court should have granted the motions for judgment of acquittal as to the kidnapping counts, but argued that the trial court correctly denied the motions on the remaining counts. Resp't Ex. 105. The Oregon Court of Appeals accepted the State's concession, reversed Petitioner's kidnapping convictions, and remanded for resentencing. State v. Lunetta, 269 Or.App. 512 (2015). The Court of Appeals affirmed Petitioner's robbery and burglary convictions, finding that the totality of the evidence corroborated the accomplice testimony and supported the convictions. Id. The conoborating evidence included the following:
On remand, the trial court again sentenced Petitioner to a total of 270 months of imprisonment. Resp't Exs. 101, 123.
(1) the letters [Petitioner] wrote while awaiting trial; (2) testimony that police found the gun safe in the room where [Petitioner] slept; (3) testimony from one of the victims that [Petitioner's] build was consistent with one of the men who committed the crimes; (4) and [Young5] testimony about the distribution of the guns, alcohol, and pornography contained in the safe.Id. at 517. Petitioner sought review regarding the affirmed convictions, which the Oregon Supreme Court denied. Resp't Exs. 107,108.
Petitioner next filed for post-conviction relief (“PCR”). Resp't Ex. 110. Appointed counsel filed an Amended Petition raising twenty claims based on the ineffective assistance of trial counsel. Resp't Ex. 111. As relevant here, Claims One and Two in the Amended Petition alleged that trial counsel was ineffective when she:
i. Failed to move to exclude pre-trial and/or failed to object to, under both the evidence code and the 6th Amendment of the United States Constitution, the hearsay statements of co-defendant Ibabao that were offered by the detective who conducted Ibabao's interview, including but not limited to the Ibabao's statement that “if I did [commit the robbery], I know for a fact that Nick [petitioner] and Damien [testifying co-defendant] would not talk and say I did.”
ii. Failed to move to exclude pre-trial, under both the evidence code and the 6th Amendment to the United States Constitution, the hearsay statements of codefendant Ibabao arising out of Ibabao's recorded calls from the jail.Id. at 3. After a brief evidentiary hearing, the PCR court denied relief. Resp't Exs. 130, 131.
Petitioner appealed, alleging the PCR court erred in denying Claims One and Two. Resp't Ex. 133. The Oregon Court of Appeals affirmed without an opinion and the Oregon Supreme Court denied review, Resp't Exs. 134,135.
On September 2, 2020, Petitioner filed a pro se habeas corpus petition in this Court asserting two grounds for relief:
After the pro se petition was filed, the Court appointed counsel to represent Petitioner herein. ECF No. 21.
Ground One: Denial of effective assistance of trial counsel.
Supporting Facts: Failed to object to hearsay statements by co-defendant Ibabao, failed to object to co-defendant testimony, failure to properly cross-exam[ine] or object to victim statements, failed to call Portland Police as witness, failed to obtain notes taken by police officer, failed to properly cross-examine State's witnesses, failed to ask that witnesses be sequestered during trial, failed to ask for proper jury instruction, failed to object to prosecutor's closing argument, failed to object to the re-constitution of Petitioner's criminal history score following each conviction, provided ineffective assistance of counsel through the cumulative effect of the errors above.
Ground Two: Denial of effective assistance of [PCR appellate counsel].
Supporting Facts: For only raising my failed to object to hearsay and incriminating co-defendant Ibabao's statements. Failed to raise all claims that were raised in postconviction that could have changed the outcome of my appeal and preserved all claims.Pet. at 5.
Respondent urges this Court to deny habeas relief, arguing that Petitioner's claims are procedurally defaulted or otherwise were denied in a state-court decision that is entitled to deference. Resp. to Pet. at 5-15 (ECF No. 14).
DISCUSSION
L Unargued Claims
In Ground One, Petitioner alleges several claims ineffective assistance of trial counsel including that counsel failed to object to Ibabao's “hearsay statements,” co-defendant testimony, victim statements, closing argument or to Petitioner's criminal history score, failed to call or cross-examine certain witnesses, failed to obtain certain evidence, and failed to ask for the jury to be sequestered or for curative jury instructions. Pet. at 5. Petitioner raised these claims in his PCR proceedings. See Resp't Ex. 111. On PCR appeal, Petitioner renewed only his claim that trial counsel failed to object to the admission of Ibabao's out-of-court statements. See Resp't Ex. 133. This portion of Ground One is addressed as a separate ground for relief below.
In Ground Two, Petitioner alleges that he was denied effective assistance of counsel on PCR appeal. Specifically, Petitioner argues PCR appellate counsel “failed to raise all claims that were raised in postconviction that could have changed the outcome of my appeal and preserved all claims.” Pet. at 5.
Petitioner does not challenge Respondent's arguments that these grounds are procedurally defaulted or are otherwise not cognizable on habeas review. Accordingly, habeas relief is precluded as to Ground One - except for Petitioner's claim that trial counsel failed to object to the admission of Ibabao's out-of-court statements - and Ground Two 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 petitioner carries the burden of proving his case).
II. The Merits
A. Legal Standards
1. Deference to State-Court Decisions
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's findings of fact are presumed correct, and Petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
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 confronts 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, 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. When applying these standards, the federal court should review the “last reasoned decision” by a state court that addressed the issue. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).
2. Ineffective Assistance of Counsel
The Sixth Amendment provides defendants with the right to assistance of counsel in all criminal prosecutions, which implies the right to effective assistance of counsel. Missouri v. Frye, 566 U.S. 134, 138 (2012). To establish a claim of ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984), a habeas petitioner must satisfy a two-pronged test. First, the petitioner must show that counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 686. Such a showing requires the petitioner to overcome a strong presumption that the challenged conduct falls within the “wide range of reasonable professional assistance; that is the [petitioner] must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Id., at 689. The first prong thus is satisfied only if “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed ... by the Sixth Amendment.” Id. at 687.
Second, a petitioner must demonstrate prejudice; “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 “a probability sufficient to undermine confidence in the outcome.” Id. Therefore, it is not enough if counsel's errors had only “some conceivable effect on the outcome of the proceeding.” Id. at 693. Counsel's errors must have been “so serious as to deprive [the petitioner] of a fair trial, a trial whose result is reliable.” Id. In making the prejudice determination, the court must “consider the totality of the evidence before the judge or jury.” Id. at 695. 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.” Knowles v. Mirzayance, 556 U.S. 111, 122 (2009).
Where, as here, the deficient performance alleged is trial counsel's failure to raise 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).
B. Analysis
In Ground One, Petitioner asserts that trial counsel was ineffective for failing to object to Ibabao's “hearsay statements.” Pet. at 5. Petitioner raised this claim in his PCR proceedings, identifying specific statements Ibabao made to Detective Smith during an interview and to Mahia during a jail phone call. See Resp't Exs. 111 at 3; 133 at 8.
1. Ibabao's Statement to Detective Smith
In his PCR proceedings, Petitioner argued that trial counsel was ineffective for not objecting to the Detective Smith's testimony that Ibabao had repeatedly denied his involvement in the robbery, but later said “if I did [commit the robbery], I know for a fact that [Petitioner] and [Rose] would not talk and say I did. Resp't Ex. 103 at 644; see also Resp't Exs. 111 at 3; 115 at 12-14. Petitioner argued that the only reasonable inference that could be drawn from this testimony was that Petitioner and Rose “were involved in the robbery and would never provide evidence against [Ibabao].” Resp't Ex. 115 at 14.
In response, the State submitted trial counsel's affidavit, Resp't Ex. 121, which the PCR court found to be credible, Resp't Ex. 131 at 4. Trial counsel attested that she did not object to Detecitve Smith's testimony about Ibabao's statement because she “viewed that evidence as favorable” to Petitioner. Resp't Ex. 121 at 1. She explained that, in her view, it excluded Petitioner from the robbery and that, in the same conversation with Detective Smith, Ibabao had explicitly stated that Petitioner was not present when the safe was opened in Sparks' apartment:
[Ibabao] said that it was him, Sparks and “some other white guys” and explicitly said that [Petitioner] and Rose were not there. This statement gutted Young's testimony and supported my argument that she changed her testimony to match Sparks' confession.Id. at 2. Trial counsel also attested that the evidence was admitted only against Ibabao. Id. at 1.
The PCR court denied relief, concluding that “[t]rial counsel was not unreasonable in viewing the evidence in this manner and not moving to exclude it.” Resp't Ex. 131 at 5. The PCR court also determined that Petitioner could not establish prejudice, explaining:
In light of the significant evidence against the Petitioner in this case, he has also failed prove that he was prejudiced by the introduction of Ibabao's comment. As noted by the Court of Appeals on direct review, the accomplice testimony was corroborated by significant independent evidence. This evidence includes the testimony of Nicole Young and the recovery of part proceeds from petitioner's bedroom. It also included petitioner's self-written statements from jail in which he tries to prevent witnesses from testifying or encouraging perjured testimony. Petitioner has failed to prove that the introduction of Ibabao's statements had a tendency to affect the outcome of the trial.Id. at 4-5.
Petitioner argues that the PCR court based its decision on an unreasonable determination of the facts because Ibabao's statement to Detective Smith was “tantamount to an admission that [Petitioner and Rose] were his co-conspirators.” Br. in Supp. at 15 (ECF No. 39). Petitioner thus contends that the PCR court's determination that trial counsel was not ineffective in failing to move to exclude or limit consideration of Ibabao's statement was objectively unreasonable.
Even assuming trial counsel's failure to seek the exclusion or limited consideration of Ibabao's statement was deficient, Petitioner cannot establish prejudice. As the PCR court explained, there was “significant evidence” independent of Ibabao's statement that inculpated Petitioner. Resp't Ex. 131 at 5. Indeed, Petitioner cannot establish that the introduction of Ibabao's statement to Detective Smith “had a tendency to affect the outcome of the trial,” given the weight of the other evidence against him. The PCR court's decision thus was not objectively unreasonable and is entitled to deference. Accordingly, the district judge should deny habeas relief with respect to this portion Ground One.
2. Ibabao's Recorded Phone Calls from the Jail
In his PCR proceedings, Petitioner also argued that trial counsel was ineffective for failing to exclude Ibabao's recorded jail phone call to Mahia. Resp't Ex. 115 at 16-18. In his closing argument, the prosecutor argued that Ibabao used coded language in his phone call with Mahia. Resp't Ex. 103 at 711-14. Petitioner asserted that Ibabao implicated Petitioner in his admission that “we were expecting” to be arrested after Spark's arrest, and when he said, “I know for sure Nicky didn't say nothing.” Resp't Ex. 115 at 16-18. Petitioner also argued that the prosecutor explicitly stated that “Nick's the other part of the ‘we' who was expecting it.” Id. at 17.
Trial counsel attested in her affidavit that she did not move to exclude Ibabao's phone call because it allowed her to suggest during her closing argument that “Ibabao could have been talking about Nicole Young (who goes by Nikki),” and who “witnessed the safe being opened and took photos of herself with one of the guns.” Resp't Ex. 121 at 2. Trial counsel again attested that “the State argued this evidence against Ibabao only.” Id.
The PCR court denied relief, finding that the telephone call was not testimonial and was admissible against Ibabao. Resp't Ex. 131 at 5. The PCR court explained:
In the phone call Ibabao does not say “Let Nick know I haven't said anything.” See [PCR Trial Exhibit] 105. Ibabao contacted [Mahia] because he wanted Mahia to ask [Ibabao's] girlfriend to remove the robbery proceeds from his home before it was searched by police. Ibabao also wanted Mahia to contact petitioner and tell him not to say anything to police because they had no evidence, and were trying to get the co-conspirators to testify against each other. Both defense attorneys argued that the “Nicky” mentioned in the phone call could have been “Nicki” Young. The phone call was not barred by [Oregon Evidence Code (“OEC”)] 403. While
prejudicial in the sense that the statements make a guilty verdict more likely, they are not unfairly prejudicial under OEC 403.
As indicated above, Petitioner] has failed to prove prejudice. There was significant evidence against the Petitioner in this including the testimony of two accomplices. The exclusion of this reference to “Nick” in the telephone call was minor compared to the other evidence. The inclusion of this evidence did not have a tendency to affect the outcome of the trial.Id. (emphasis in original).
Upon review, the PCR court's ruling was not objectively unreasonable. Trial counsel's performance did not fall below an objective standard of reasonable where, as here, the PCR court found that the evidence was admissible under OEC 403. This Court must defer to that ruling. See Woods v. Sinclair, 764 F.3d 1109,1138-39 (9th Cir. 2014) (noting that a federal habeas court must defer to a state court's ruling if it is based on state law); see also Mendez v. Small, 298 F,3d 1154, 1158 (9th Cir. 2002) (acknowledging that “[s]tate courts are the ultimate expositors of state law, and [federal habeas courts are] bound by the state's construction” on state law matters). Indeed, Strickland and its progeny do not require trial counsel to make futile objections. See Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989) (finding that a challenge to a futile objection fails both prongs of Strickland). Because the PCR court's decision does not involve an unreasonable application of clearly established federal law, the district judge should deny habeas relief as to this portion of Ground One.
CONCLUSION
Based on the foregoing, the district judge should DENY the Petition for Writ of Habeas Corpus (ECF No. 1), and should DISMISS this proceeding, with prejudice. Petitioner has not made a substantial showing of the denial of a constitutional right, and therefore the district judge also should DENY a Certificate of Appealability. See 28 U.S.C. § 2253(c)(2).
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 have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered 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 the Magistrate Judge's recommendation.