Fritsche v. Legrand
| Decision Date | 24 October 2018 |
| Docket Number | Case No. 3:15-cv-00425-MMD-WGC |
| Parties | CHARLES FRITSCHE, Petitioner, v. ROBERT LeGRAND, et al., Respondents. |
| Court | U.S. District Court — District of Nevada |
This represented habeas matter under 28 U.S.C. § 2254 comes before the Court for a decision on the merits. Petitioner Charles Fritsche seeks to set aside his 2009 Nevada state conviction, pursuant to a jury verdict, of sexual assault and lewdness with a child under the age of fourteen. He was sentenced to consecutive sentences of life with the possibility of parole after a minimum thirty-five years served and life with the possibility of parole after a minimum ten years served. He challenged the conviction on direct appeal and state postconviction review. The federal petition, as amended, presents five claims of ineffective assistance of trial counsel.
When the state courts have adjudicated a claim on the merits, the Antiterrorism and Effective Death Penalty Act ("AEDPA") imposes a "highly deferential" standard for evaluating the state court ruling that is "difficult to meet" and "which demands that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). Under this highly deferential standard of review, a federal court may not grant habeas relief merely because it might conclude that the state court decision was incorrect. Id. at 202. Instead, under 28 U.S.C. § 2254(d), the court may grant relief only if the state court decision: (1) was either contrary to or involved an unreasonable application of clearly established federal law as determined by the United States Supreme Court; or (2) was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. Id. at 208.
A state court decision is "contrary to" law clearly established by the Supreme Court only if it applies a rule that contradicts the governing law set forth in Supreme Court case law or if the decision confronts a set of facts that are materially indistinguishable from a Supreme Court decision and nevertheless arrives at a different result. E.g., Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003). A state court decision is not contrary to established federal law merely because it does not cite the Supreme Court's opinions. Id. Indeed, the Supreme Court has held that a state court need not even be aware of its precedents, so long as neither the reasoning nor the result of its decision contradicts them. Id. Moreover, "[a] federal court may not overrule a state court for simply holding a view different from its own, when the precedent from Court is, at best, ambiguous." Id. at 16. At bottom, a decision that does not conflict with the reasoning or holdings of Supreme Court precedent is not contrary to clearly established federal law.
A state court decision constitutes an "unreasonable application" of clearly established federal law only if it is demonstrated that the state court's application of Supreme Court precedent to the facts of the case was not only incorrect but "objectively unreasonable." E.g., Esparza, 540 U.S. at 18; Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004).
/// To the extent that the state court's factual findings are challenged, the "unreasonable determination of fact" clause of § 2254(d)(2) controls on federal habeas review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause requires that the federal courts "must be particularly deferential" to state court factual determinations. Id. The governing standard is not satisfied by a showing merely that the state court finding was "clearly erroneous." Id. at 973. Rather, AEDPA requires substantially more deference to the state court factual finding:
[I]n concluding that a state-court finding is unsupported by substantial evidence in the state-court record, it is not enough that we would reverse in similar circumstances if this were an appeal from a district court decision. Rather, we must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.
Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also Lambert, 393 F.3d at 972.
Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be correct unless rebutted by clear and convincing evidence.
On Petitioner's claims of ineffective assistance of counsel, he must satisfy the two-pronged test of Strickland v. Washington, 466 U.S. 668 (1984). He must demonstrate that: (1) counsel's performance fell below an objective standard of reasonableness; and (2) counsel's defective performance caused actual prejudice. On the performance prong, the issue is not what counsel might have done differently but rather is whether counsel's decisions were reasonable from his perspective at the time. The reviewing court starts from a strong presumption that counsel's conduct fell within the wide range of reasonable conduct. On the prejudice prong, the petitioner must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. E.g., Beardslee v. Woodford, 327 F.3d 799, 807-08 (9th Cir. 2003).
Pinholster, 563 U.S. at 196; see also Richter, 562 U.S. at 109-10.
When the deferential review of counsel's representation under Strickland is coupled with the deferential standard of review of a state court decision under AEDPA, Richter instructs that such review is "doubly" deferential:
The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S., at 123, 129 S.Ct. at 1420. . . . . When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.
The petitioner bears the burden of proving by a preponderance of the evidence that he is entitled to habeas relief. Pinholster, 563 U.S. at 569.
In Ground 1(a), Fritsche alleges that he was denied effective assistance when trial counsel failed to present an alibi defense, after having given pretrial notice of the defense.
Fritsche's claim regarding an alibi defense is based in substantial part on what he maintains that the child victim said or was reported to have said in two initial interviews. (See ECF No. 13 at 11; ECF No. 28 at 21.) He maintains that he was on the road working as a professional truck driver during the times that the child allegedly stated that he committed the charged acts. This background recital therefore includes the earliest statements or reports of statements by the child on through, inter alia, her preliminary
///hearing and trial testimony. The recital focuses on her degree of specificity, or lack thereof, as to the number of incidents and when incidents occurred.1
On May 9, 2008, Sparks Police Department Officer Lehigh responded to a call regarding an alleged sexual assault not then in progress. Officer Lehigh was told that eight-year-old K.L. told her friend H.H. about prior incidents and that H.H. then spoke with H.H.'s mother, who spoke with K.L.'s mother, who then spoke with K.L. During the investigation, K.L.'s mother, Shannon L., told Officer Lehigh that K.L. told her that: (1) her grandmother Joanne L.'s boyfriend, Charlie Fritsche, "would enter her room at night and with his mouth lick her vaginal area and also touch it with a vibrator between her legs on and near her vagina and anus;" (2) that Charlie told her that "it 'helps him and that it was their secret;'" and (3) that K.L. "was very worried for her grandmother because suspect Charlie may get in trouble." (ECF No. 14-2 at 2-5.)2
Shannon L. stated further that: (1) her mother and Fritsche were truck drivers; (2) they had been on the road working and had left again that morning; and (3) K.L. had "not been over to the [grandmother's] residence in the past month due to her grandmother's work schedule, and it is unknown when the last contact [K.L.] had with" Fritsche. (Id.)
The other child, nine-year-old H.H., stated that Since that time, she had received instruction at school aboutinappropriate touching. She therefore informed her mother when K.L. discussed inappropriate touching that evening. (Id. at 3, 5.)
Officer LeHigh did not interview K.L. directly, and the police made no referral for a sexual assault examination at that time due to the interval involved. (Id. at 4-6.)
Detective John Patton was assigned the case on May 13, 2008. Patton conducted a recorded interview with K.L. on May 15, 2008. (ECF No....
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