Franklin v. Johnson

• Decision Date: 30 May 2002
• Docket Number: No. 00-36108.,00-36108.
• Citation: 290 F.3d 1223
• Parties: Charles Harvey Joseph FRANKLIN, Petitioner-Appellant, v. Dan JOHNSON, Superintendent, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

290 F.3d 1223

Charles Harvey Joseph FRANKLIN, Petitioner-Appellant, v. Dan JOHNSON, Superintendent, Respondent-Appellee.

No. 00-36108.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 4, 2002.

Filed May 30, 2002.

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Christoper J. Schatz, Assistant Federal Public Defender, Portland, OR, for the petitioner-appellant.

Erika L. Hadlock, Office of the Attorney General of the State of Oregon, Salem, OR, for the defendant-appellee.

Appeal from the United States District Court for the District of Oregon, Michael R. Hogan, District Judge, Presiding.

Before B. FLETCHER, O'SCANNLAIN, and BERZON, Circuit Judges.

Opinion by Judge BERZON; Concurrence by Judge O'SCANNLAIN.

OPINION

BERZON, Circuit Judge.

Charles Harvey Joseph Franklin appeals the denial of his petition for habeas relief under 28 U.S.C. § 2254. After a stipulated-facts bench trial, Franklin was convicted of one count of sodomy in the first degree and sentenced to 9 years, 8 months in prison and 3 years of supervised release. Franklin unsuccessfully appealed his conviction in the state courts and then filed a pro se petition under 28 U.S.C. § 2254, arguing only that his trial counsel was ineffective for failing to investigate or pursue a possible mental state defense. The district court denied the claim on the merits and dismissed Franklin's habeas petition. Franklin appeals to this court.

Respondent ("the state") contends for the first time on appeal that Franklin's claim was not exhausted in state court and has been procedurally defaulted. We hold that the ineffectiveness claim is not procedurally barred, but affirm the denial of the habeas petition on the merits.

I. BACKGROUND

In April of 1992, Franklin was charged, in a case we will call "Franklin I," with raping his oldest stepdaughter. Represented by court-appointed attorney David Haasenstab, Franklin pleaded no contest to the rape charges. When asked in the pre-sentencing interview whether he could have sexually abused his stepdaughter, Franklin responded that he did not know because, as an alcoholic, he sometimes drank so much that he could not remember anything. Franklin did adamantly insist that his stepchildren did not lie.

The Pre-Sentence Report ("PSR") in Franklin I stated that Franklin had been treated for alcohol abuse, that he had attempted suicide, and that his psychiatric evaluation revealed he was suffering from pedophilia and from an anti-social personality disorder. The report included the victim's statement that "sometimes her dad had been drinking when he does things to her." The PSR also noted that Franklin did not seek any treatment until the allegations of abuse had surfaced and that "[t]he fact that Franklin has a chemical abuse problem does not excuse or mitigate his sexual deviancy. It only identifies him as a sex offender with a chemical addiction problem." Franklin was sentenced in Franklin I to 58 months in prison and 36 months of supervised release.

Franklin was later charged, in a case we will call "Franklin II," with several counts of sexual misconduct involving his younger stepdaughter. Haasenstab again represented Franklin, who pleaded no contest to sodomy in the first degree. In August 1992, Franklin was sentenced in Franklin II to 55 months in prison, to run consecutively to the term imposed in Franklin I.

A month after Franklin's second conviction, his stepson reported to police that he had also been sexually abused by Franklin. Franklin was charged with six counts of sodomy in the first degree against a child under 12 years of age. See Or.Rev.Stat. § 163.405(1)(b). The indictment charged two counts each, for the years 1989, 1990, and 1991, of engaging in or causing his stepson to engage in acts of deviate sexual intercourse.

The court appointed Charles Berg, a law firm associate of Haasenstab's, to represent Franklin. Represented by Berg, Franklin moved to dismiss the charges, arguing former jeopardy and double jeopardy violations under the state and federal constitutions, respectively. The contention was that bringing the charges involving Franklin's stepson after the state had obtained the two prior convictions involving his stepdaughters had a negative impact on his ability to defend himself.

At the hearing on Franklin's motion to dismiss the indictment, the government stated that it did not obtain any evidence that Franklin had sexually abused his stepson until the child reported the abuse to police on September 10, 1992, after Franklin's earlier convictions. The government also explained that "[u]sually, in fact, almost always, disclosure by a child is a condition precedent to initiating a prosecution." Without a report by the victim, the state could only prosecute if it had "some outside source of evidence that the crime had occurred," yet in this case, there were no photographs, no eye-witnesses other than Franklin and his stepson, and no physical evidence. Franklin did not contest the state's representations.

The judge denied the motion to dismiss. Finding "no indication that no matter what sort of investigation had been conducted, that there would have been evidence prior to August 18th of 1992 that could have served as a basis for initiating a prosecution," the court held that "there is no bar to this present prosecution based on either of the earlier prosecutions."

After failing to obtain dismissal, Franklin agreed to a stipulated-facts trial. Franklin conceded that if witnesses testified, it would be established beyond a reasonable doubt that while under the influence of alcohol he had engaged in unlawful deviate sexual intercourse — sodomy — with his stepson in 1989. In exchange, the prosecution agreed to drop five of the six counts alleged in the indictment and to recommend that the sentence run concurrently with the sentences imposed in Franklin I and Franklin II. Franklin waived his right to a jury trial, and the judge found Franklin guilty of sodomy in the first degree.

At sentencing, Berg argued that Franklin should receive a sentence at the low end of the state's guidelines range of 116-120 months because he had received in-patient treatment for substance abuse, had attempted suicide, and "ha[d] no memory of these criminal acts with the children." The judge did sentence Franklin at the low end, to 9 years, 8 months in prison and 3 years of supervised release, and ordered that the sentence run concurrently with the previously imposed sentences.

Franklin then filed a pro se habeas petition in state court, contending among other things that he had received ineffective assistance of counsel because Berg "never advised [him] of any defenses, but insisted Petitioner plead guilty and/or nolo contendre [sic]." Both Franklin and Berg testified at the state evidentiary hearing. When asked what defenses Berg should have discussed with him, Franklin responded: "I told my attorney I was innocent of this charge and I asked him what we could do to bring this to trial, and my attorney didn't do anything except ask me to take a no contest plea."

Berg testified that the reason he advised Franklin to agree to a stipulated-facts trial was to preserve an appeal on former jeopardy grounds. Berg never filed a direct appeal on Franklin's behalf, however, and could not recall doing anything to ensure that Franklin's appeal rights were preserved. When asked if he considered a drug and mental state defense based on drug and alcohol addiction, Berg testified: "I recall talking with Mr. Franklin about it and in particular, that the child reported that usually these activities occurred after Mr. Franklin had plenty to drink. And that's what I remember about it." Berg did interview Franklin's stepson in preparation for trial but never interviewed the victim's mother, Franklin's wife at the time. Berg did not request a pre-sentence investigation or engage any mental health expert.

The state trial court denied relief, finding that "Defense Counsel did cover potential defenses with Petitioner although Defense Counsel cannot recall any discussion about an alibi defense. Petitioner was a drug addict and alcoholic and there was a possibility of a potential mental defense." The trial court concluded:

Defense Counsel under both Federal and State Constitutional standards exercised professional skill and judgment on behalf of the Defense. There has been no showing that Counsel's assistance was unreasonable or that Petitioner was prejudiced or that the result of the proceeding would have been different with respect to any of Petitioner's allegations.

The Oregon Court of Appeals granted the state's motion to affirm without opinion, and the Oregon Supreme Court denied Franklin's petition for review.

Franklin then filed a petition for habeas relief under 28 U.S.C. § 2254, raising one claim — that his counsel was ineffective for failing to pursue a mental state defense. The magistrate judge to whom the case was referred concluded, based on the state court record, that "there was insufficient evidence to put counsel on notice that petitioner was suffering from a mental defect or disease." Despite the evidence of alcohol abuse and suicidal tendencies, the magistrate judge determined, the absence of evidence of a history of mental illness hospitalization or medication for mental illness, or highly unusual behavior precluded a finding that counsel was on notice of a possible mental state defense. The magistrate judge concluded that "any failure to investigate petitioner's mental condition by defense counsel was not unreasonable," both because there was no evidence that Franklin's alcohol or drug abuse resulted in a mental disease or defect, and because, even if there were such evidence sufficient to put counsel on notice that a mental state defense was a possibility, counsel "reasonably chose to pursue a defense based on prior jeopardy." The magistrate judge decided, last, that if there was...