Seitzinger v. Nooth
| Decision Date | 22 December 2016 |
| Docket Number | Case No. 2:14-cv-01705-SB |
| Parties | RANDY JOSEPH SEITZINGER, Petitioner, v. MARK NOOTH, Superintendent, Snake River Correctional Institution, Respondent. |
| Court | U.S. District Court — District of Oregon |
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, the district judge should DENY Petitioner's Amended Habeas Corpus Petition (ECF No. 19). Additionally, the district judge should DENY a Certificate of Appealability because Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).
On March 9, 2006, a man entered the Rogue Federal Credit Union (located in Ashland, Oregon), and forced a teller to give him approximately $6,000.00. See Resp't Exs. (ECF No. 18), Exs. 102 at 1; 103 at 27-28, 32, 39. On or about August 24, 2006, a grand jury indicted Petitioner for the robbery, charging him with Robbery in the Second Degree. Resp't Ex. 102.
At trial, the State offered the testimony of credit union employees Connie Johnson and Sylvia Driskell; eyewitness Deanna Sapp; Petitioner's ex-wife Dawn Childress; DNA technician Christina Stivers; fingerprint analyst Darla Shaver; and several police officers. Resp't Ex. 103 at 4-6. Petitioner's attorney did not call any witnesses. Id. at 6.
Sapp testified that on the day of the robbery she parked her car outside the credit union near the ATM booth. Id. at 62, 66. She saw a man in the booth "kind of staring" at her as he paced back and forth with an envelope in his hand. Id. at 63. During the two minutes she was observing him, he pulled down a ski mask he was wearing and left it around his neck while "glancing at the car [] in a suspicious manner." Id. at 67. Shortly after the robbery, Sapp assisted police in creating a composite sketch. Id. When shown a photo lineup approximately two months later, Sapp identified an individual other than Petitioner. Id. at 65, 80-81; see also Resp't Ex. 117 (photo lineup).
Johnson and Driskell were working at the credit union on the day of the robbery. Resp't Ex. 103 at 34, 54. Johnson testified that at approximately 2:07 p.m., a man wearing a hat and ski mask covering most of his face entered the credit union. Id. at 35, 40. When he did not remove his mask, both employees became concerned. Id. at 36, 55.
Johnson testified that the man approached her counter holding an ATM envelope. Id. at 36, 57. She told him to pull down his mask, which he did, but then he pulled it back up. Id. at 36. When she repeated her request, he said "this is a robbery." Id. The man directed her to give him particular denominations of money, and then demanded the money in her "bottom drawer." When she questioned his reference to the bottom drawer, he "stuck his hand in his pocket andsaid 'don't make me have to shoot you.'" Id. at 36, 39, 58. Johnson complied, but also gave him marked "bait money," which set off a silent alarm. Id. at 36-38.
Johnson testified that the robber had deep eyes, definite cheekbones, a long definite nose, and a moustache. Id. at 39. She testified that he was wearing a blue ski jacket and smelled strongly of cigarettes. Id. at 38, 40. She also confirmed that she had selected Petitioner's photo when shown the lineup, though she had some reservations because the eyes did not look quite right. Id. at 42-43, 50; see also Resp't Ex. 117. Johnson testified that the credit union records did not show Petitioner having transacted any business at the credit union. Resp't Ex. 103 at 42.
When police processed the scene, they found partial fingerprints, id. at 89, and noticed a wet, fresh, "runny nose kind of drop smear on the counter." Id. at 84-85. An officer took a sample of the substance for DNA analysis. Id. Johnson testified that she had not seen the substance on the counter prior to the robbery. Id. at 40, 51. There was no testimony indicating that the robber had sneezed or otherwise transferred the material to the counter.
The fingerprints obtained from the credit union were of no value for identification, but the DNA sample matched Petitioner. Id. at 89, 96-97. DNA technician Stivers testified that there was no indication of cross-contamination in the sample and that "less than one in 10 billion" people would have the same profile as that of the mucosal material on the counter and the swab taken from Petitioner's mouth. Id. at 96-99.
Ashland Police Detective Brent Jensen testified that when he and FBI Special Agent Jeffrey M. Gray questioned Petitioner about the robbery, Petitioner denied ever being in a bank in Ashland. Id. at 78. However, Childress testified that she had obtained a hotel room for Petitioner in Ashland the day before the robbery. Id. at 69, 82. Childress also testified that Petitioner smoked and owned a coat similar to the one worn by the robber. Id. at 69, 71.
With a unanimous verdict, the jury found Petitioner guilty of Robbery in the Second Degree. Id. at 125-26; Resp't Ex. 122. The court sentenced Petitioner to a seventy-month term of imprisonment and three years of post-prison supervision. Resp't Ex. 101 at 2-3.
On March 13, 2007, Petitioner filed a direct appeal alleging that his conviction was based on constitutionally insufficient evidence. Resp't Exs. 104 at 4, 123 at 2. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. Seitzinger, 224 Or. App. 687 (2008), rev. denied, 346 Or. 11 (2009).
On November 5, 2009, Petitioner filed for post-conviction relief on the basis that he received ineffective assistance of trial and appellate counsel. Resp't Exs. 109, 110. The post-conviction trial court denied relief, the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Resp't Exs. 127 at 26-28, 128; Seitzinger v. Premo, 258 Or. App. 907 (2013), rev. denied, 354 Or. 735 (2014).
Petitioner moves this Court to grant habeas relief on the grounds that (1) he received ineffective assistance of trial counsel (in five particulars); (2) he received ineffective assistance of appellate counsel (in two particulars); and (3) there was insufficient evidence to support his conviction. Pet'r's Am. Pet. (ECF No. 19) at 3-4.
Respondent moves the Court to deny habeas relief, because (1) Petitioner has failed to sustain his burden of proof on portions of Grounds One and Two; (2) the remainder of Ground One is procedurally defaulted; and (3) the argued portions of Grounds One and Three are not meritorious. Resp't's Resp. to Am. Pet. (ECF No. 30) at 2, 14; Resp't Sur-Reply (ECF No. 38) at 2.
Pursuant to 28 U.S.C. § 2254(d), a petition for a 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)(1) and (2); White v. Woodall, 134 S. Ct. 1697, 1702 (2014); Harrington v. Richter, 562 U.S. 86, 100 (2011).
A state court's application of clearly established federal law is unreasonable if its decision is "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Woodall, 134 S. Ct. at 1702; Richter, 562 U.S. at 103. A state court's factual determination is not unreasonable merely because the federal habeas court would reach a different conclusion in the first instance. Brumfield v. Cain, 135 S. Ct. 2269, 2277 (2015); Burt v. Titlow, 134 S. Ct. 10, 15 (2013). "Instead, § 2254(d)(2) requires that [this Court] accord the state trial court substantial deference." Brumfield, 135 S. Ct. at 2277. If reasonable minds reviewing the record might disagree about the finding in question, habeas relief is not warranted. Id.
The last reasoned decision by the state court forms the basis of review by the federal habeas court. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Comstock v. Humphries, 786 F.3d 701, 707 (9th Cir. 2015). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir. 2011); Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
The habeas court must "determine what arguments or theories . . . could have supporte[d] the state court's decision," and then ask whether those theories are indisputably incompatible with Supreme Court precedent. Cullen v. Pinholster, 563 U.S. 170, 188 (2011) (citing Richter, 562 U.S. at 101). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which [a court] can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853.
Respondent moves the Court to deny habeas relief as to all of Petitioner's ineffective assistance of counsel (IAC) claims, with the exception of the two discussed below, on the ground that Petitioner did not address the claims in his supporting briefs and, therefore, has failed to sustain his burden to prove that habeas relief is warranted. Resp't Resp. at 2.
This Court has reviewed the state court record and concludes that Petitioner has failed to sustain his burden to prove that habeas relief is warranted on the unargued claims. See Mayes v. Premo, 766 F.3d 949, 957 (9th Cir. 2014) (); Davis v. Woodford, 384 F.3d 628, 637-38 (9th...
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