Smith v. Hill, Civil No. 09-1020-MO
| Decision Date | 21 March 2011 |
| Docket Number | Civil No. 09-1020-MO |
| Parties | MICHAEL SMITH, Petitioner, v. JEAN HILL, Respondent. |
| Court | U.S. District Court — District of Oregon |
Ellen C. Pitcher
Attorney for Petitioner
Andrew Hallman
Attorneys for Respondent
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 in which he challenges the legality of his underlying state convictions for Assault and Burglary. For the reasons that follow, the Petition for Writ of Habeas Corpus (#1) is denied.
On April 15, 2003, the Marion County Grant Jury charged petitioner by indictment with Kidnapping in the First Degree, Robbery in the Third Degree, Assault in the Second Degree, and Kidnapping in the Second Degree. Respondent's Exhibit 102. The criminal charges against petitioner were based on his actions involving two victims, Keir Mellor and Colin Fisher.
At the time of petitioner's scheduled jury trial, Fisher could not be located, but Mellor had been subpoenaed to testify. On the morning of trial, petitioner opted to forego his right to a jury trial and agreed to a court trial, prompting the trial court to postpone the trial until June 30, 2003.
On the morning set for petitioner's court trial Mellor contacted the courthouse to tell them she had been locked our of her house, but that she was on her way to the courthouse. Mellor, however, never appeared. The State requested a continuance until it was able to physically present Mellor, but the trial court declined to grant the request "since the defendant is in custody and this case has begun...." Respondent's Exhibit 103, p. 46.As a result, the State called a single witness, Salem Police Officer Jason Coyle, who was permitted to testify over defense counsel's hearsay objection to the contents of his crime scene interview with Mellor.
At the close of the State's case, the trial judge granted the defense's motion for a judgment of acquittal as to the Kidnapping in the Second Degree charge. Respondent's Exhibit 103, pp. 68-69. The trial court found petitioner not guilty of Kidnapping in the First Degree, but guilty of Assault in the Second Degree and Robbery in the Third Degree and sentenced him to 96 months in prison. Id at 99-100.
Petitioner took a direct appeal, and the Oregon Court of Appeals affirmed his convictions and remanded the case for resentencing. State v. Smith, 204 Or. App. 113, 129 P.3d 208 (2006). The Oregon Court of Appeals granted the State's motion seeking reconsideration and affirmed both the sentences and convictions without a written opinion. 207 Or. App. 318, 140 P.3d 1196 (2006). The Oregon Supreme Court denied review. 342 Or. 474, 155 P.3d 52 (2007).
Petitioner next filed for post-conviction relief ("PCR") in Umatilla County where the PCR trial court denied relief. The Oregon Court of Appeals affirmed the lower court without opinion, and the Oregon Supreme Court denied review. Smith v. Mills, 228Or. App. 756, 210 P.3d 945, rev. denied 346 Or. 589, 214 P.3d 821 (2009).
Petitioner filed this federal habeas corpus action on August 27, 2009 raising a variety of claims. Respondent asks the court to deny relief on the claims because: (1) many of the grounds for relief were not fairly presented to Oregon's state courts and are now procedurally defaulted; (2) those claims that were fairly presented were properly denied in state court decisions that are entitled to deference pursuant to 28 U.S.C. § 2254(d).
There are a number of claims in the pro se Petition which respondent addressed in her Response, but which petitioner has not supported with any briefing. The court has nevertheless reviewed petitioner's unargued claims on the existing record and determined that they do not entitle him to relief. See 28 U.S.C. § 2248 (); see also Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) ().
Petitioner has filed briefing in support of a single claim: whether the trial court violated his rights under the Confrontation Clause by admitting hearsay statements from the investigating police officer contrary to the rule announced in Crawford v. Washington, 541 U.S. 36, 59 (2004). Respondent asserts that this claim was not properly preserved at the trial court level, and therefore was never fairly presented to Oregon's Supreme Court during direct review.
A habeas petitioner must exhaust his claims by fairly presenting them to the state's highest court, either through a direct appeal or collateral proceedings, before a federal court will consider the merits of those claims. Rose v. Lundy, 455 U.S. 509, 519 (1982). "As a general rule, a petitioner satisfies the exhaustion requirement by fairly presenting the federal claim to the appropriate state courts... in the manner required by the state courts, thereby 'affording the state courts a meaningful opportunity to consider allegations of legal error.'" Casey v. Moore, 386 F.3d 896, 915-916 (9th Cir. 2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 257, (1986)). If a habeas litigant failed to present his claims to the state courts in a procedural context in which the merits of the claims were actually considered, the claims have not been fairly presented to the state courts and aretherefore not eligible for federal habeas corpus review. Castille v. Peoples, 489 U.S. 346, 351 (1989).
A petitioner is deemed to have "procedurally defaulted" his claim if he failed to comply with a state procedural rule, or failed to raise the claim at the state level at all. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). If a petitioner has procedurally defaulted a claim in state court, a federal court will not review the claim unless the petitioner shows "cause and prejudice" for the failure to present the constitutional issue to the state court, or makes a colorable showing of actual innocence. Gray v. Netherland, 518 U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992); Murray v. Carrier, 477 U.S. 478, 485 (1986).
Defense counsel objected to the introduction of Mellor's prior statements through Officer Coyle, but did so based only on his belief that whether Mellor was or was not available, the hearsay exceptions of OEC 803 and OEC 804 did not permit Coyle's testimony as to her prior statements. Respondent's Exhibit 103, pp. 47-48. Defense counsel's view of the case would also have supported a Confrontation Clause objection pursuant to Ohio v. Roberts, 448 U.S. 56 (1980), where the Supreme Court determined that the admission of hearsay evidence made by an unavailable declarant did not violate the Confrontation Clause only if the statement boresufficient indicia of reliability, i.e. if there was an applicable hearsay exception. Id at 66. However, at no time did counsel ever frame his objection to Coyle's testimony in terms of the Confrontation Clause or any other constitutional provision.
Almost nine months after petitioner's trial, the Supreme Court decided in Crawford that, "[t]estimonial statements of witnesses absent from trial [are admissible] only where the witness is unavailable, and only where the defendant has had a prior opportunity to cross-examine [the witness]." 541 U.S. 36, 59 (2004). This decision prompted petitioner to raise a Confrontation Clause claim for the first time in his Appellant's Brief on direct review. Respondent's Exhibit 104. However, in Oregon, an appellate claim predicated upon the Confrontation Clause is not adequately preserved by a trial court hearsay objection. State v. Jensen, 313 Or. 587 (1992); see also State v. King, 307 Or. 332, 338 (1989) (). In his Appellant's Brief, petitioner conceded to the Oregon Court of Appeals that he "did not specifically articulate the constitutional argument that he makes on appeal." Id at 9.
Petitioner did briefly argue that he implicitly raised a confrontation issue when defense counsel asserted at trial that Mellor was not unavailable. He reasoned that in State v. Moore, 334 Or. 328, 49 P.3d 785 (2002), the Oregon Supreme Court had heldthat Article I, Section 11 of the Oregon Constitution required the state to either produce the declarant or demonstrate the declarant's unavailability. Petitioner also asserted that within the same opinion, the Oregon Supreme Court had discussed how the Oregon constitutional test mirrors the federal Sixth Amendment test. Assuming this all to be true, petitioner never once directed the trial court to this case, nor did he ever raise a confrontation claim or federal constitutional claim of any sort. Simply raising an objection based on the Oregon Evidence Code with the expectation that the trial court would make a series of legal leaps to a federal confrontation issue contained in an uncited state case is not sufficient to preserve a federal constitutional issue for appellate review in Oregon. See State v. Lotches, 331 Or. 455 (2000), cert denied 534 U.S. 833 (2001) ("[a]n objection to the admission of evidence on one ground does not preserve an objection on other grounds").
Petitioner's Appellant's Brief also framed his Confrontation Clause issue as one constituting plain error, thus he argued that it was addressable on appellate review despite his failure to properly preserve it. Appellate review in Oregon's state courts is governed by ORAP 5.45(1) which states that "[n]o matter claimed as error will be considered on appeal unless the claimed error was preserved in the lower court...." ORAP 5.45(1)...
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