Weighall v. Middle

• Decision Date: 01 May 2000
• Docket Number: No. 99-35657,99-35657
• Parties: (9th Cir. 2000) CRAIG F. WEIGHALL, Petitioner-Appellant, v. DIANE MIDDLE, Respondent-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1058

215 F.3d 1058 (9th Cir. 2000)

CRAIG F. WEIGHALL, Petitioner-Appellant, v. DIANE MIDDLE, Respondent-Appellee.

No. 99-35657

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted May 1, 2000--Portland, Oregon

Filed June 1, 2000

Thomas J. Hester, Assistant Federal Public Defender, Portland, Oregon, for the petitioner-appellant.

Jennifer S. Lloyd, Assistant Attorney General, Salem, Oregon, for the respondent-appellee.

Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, District Judge, Presiding. D.C. No. CV-97-00156-MRH

Before: Donald P. Lay,¹ A. Wallace Tashima, and M. Margaret McKeown, Circuit Judges.

McKEOWN, Circuit Judge:

Craig Weighall appeals the district court's denial of his 28 U.S.C. S 2254 petition. Weighall was convicted in Oregon state court of first degree assault for stabbing another man in a bar fight. At trial, he pursued a theory of self-defense and the jury was instructed on the permissible use of deadly force in self-defense. Weighall now maintains that his trial counsel's failure to request an additional instruction to further clarify the defense constituted ineffective assistance of counsel. We have jurisdiction pursuant to 28 U.S.C. S 2253, and we affirm the district court's denial of Weighall's petition.

BACKGROUND

Weighall was convicted of first degree assault for the stabbing of James McPherson. The charges arose out of a fight at the River View Lounge in Columbia County, Oregon. McPherson, who appeared to be intoxicated, approached Weighall in the bar and supposedly mistook him for another individual, "Cocaine Dave," whom McPherson thought had previously insulted his wife. According to McPherson, Weighall immediately stabbed him. Other witnesses agreed that Weighall initiated the physical contact, after which McPherson began to fight back. Weighall, who as the result of a severe accident has only one leg and various other serious physical disabilities, testified that McPherson began the physical altercation. One witness testified that McPherson was behaving in a threatening manner, but he did not see the fight start. After the fight, Weighall fled the bar. He later told police that someone else committed the stabbing.

At trial, Weighall advanced a theory of self-defense, claiming that he was especially vulnerable to attack due to his injuries. The court instructed the jury generally that reasonable physical force is justified for self-defense. Based on Oregon law, the court further instructed that the use of deadly force in self-defense is permitted only where the defendant reasonably believed that the other person was: (1) committing or attempting to commit a felony involving the use or threatened use of physical force against a person; or (2) committing or attempting to commit a burglary in a dwelling; or (3) using or about to use unlawful deadly physical force against a person. See Or. Rev. Stat. S 161.219. The court did not define "felony" with regard to the first circumstance.

Weighall maintains that the facts of his case fall within the first circumstance, namely that he had a reasonable belief that McPherson was going to commit a felonious assault on him. Weighall further argues that his counsel violated his Sixth Amendment right to effective assistance of counsel by failing to request an instruction on the elements of second degree² and third degree³ assault--the felonies that Weighall feared. After exhausting his state post-conviction remedies, Weighall filed a federal habeas petition. The magistrate judge reviewed both the trial transcript and Weighall's post-conviction testimony and concluded that Weighall failed to demonstrate that his trial counsel was ineffective or, presuming counsel was ineffective, that he was prejudiced by the error. The district court adopted the magistrate judge's findings and recommendation and denied the petition.

DISCUSSION

1. Application of AEDPA

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), Weighall must demonstrate that the state court adjudication of the merits of his claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C.S 2254(d). The parties agree that Strickland v. Washington, 466 U.S. 687 (1984), is the relevant "clearly established federal law." The district court, following this court's statement in Moore v. Calderon, 108 F.3d 261, 265 n.3 (9th Cir. 1997) ("contrary to" applies to questions of law and "unreasonable application of" applies to mixed questions of law and fact), determined that because ineffective assistance of counsel is a mixed question of law and fact, Weighall's claim should be evaluated under the "unreasonable application" prong. The court then explained that although conclusions of law are reviewed de novo, mixed questions of law and fact are reviewed under a more deferential standard.

The question whether there exists a dichotomy between the "contrary to" prong and the "unreasonable application of" prong has been unresolved in this circuit. See Davis v. Kramer, 167 F.3d 494, 500 & n.7 (9th Cir. 1999) (explaining that Moore was dicta and that there is no rigid distinction between the two prongs), vacated on other grounds, 120 S. Ct. 1001 (2000); Baker v. Blaine, 205 F.3d 1138, 1140 n.2 (9th Cir. 2000) (following Moore, disavowing Davis, and leaving for another day the resolution of the issue); id. at 1143 (Canby, J., dissenting) ("Davis now stands as the law of this circuit; I therefore consider myself bound by its conclusion that the Moore reference was dictum and no firm dichotomy is to be applied in reviewing state decisions under AEDPA."); Wade v. Terhune, 202 F.3d 1190, 1195 (9th Cir. 2000) ("Although we have not yet defined the precise reach of these overlapping standards, it is clear that both are met when the state court has failed to follow the law as set forth by the Supreme Court."); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999) (following Davis); Wilson v. Henry, 185 F.3d 986, 988 (9th Cir. 1999) (leaving open question of how to resolve issue).

The Supreme Court largely resolved the issue in Williams v. Taylor, 120 S. Ct. 1495 (2000), and held that the two clauses are separate and generally apply to different circumstances⁴. Writing for a five Justice majority, Justice O'Connor explained that

[u]nder the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreason able application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

120 S. Ct. at 1523⁵. After providing several examples of situations in which the "contrary to" prong would apply, the Court stated that "a run-of-the-mill state-court decision applying the correct legal rule from our cases to the facts of a prisoner's case would not fit comfortably within S 2254(d)(1)'s `contrary to' clause." Id. at 1520. The Court then cited a state court's Strickland analysis as an example of a situation that generally would not fall within the "contrary to " clause. See id.; see also id. at 1525 (Rehnquist, C.J., concurring in part and dissenting in part) ("Generally, in an ineffective assistance-of-counsel case where the state court applies Strickland, federal habeas courts can proceed directly to `unreasonable application' review."). In accord with Williams, we hold that Weighall's Strickland challenge should be analyzed under the "unreasonable application" prong of S 2254(d) and that the district court did not err in this regard⁶.

Weighall further asserts that even if his claim were properly reviewed under the "unreasonable application of" prong, the district court applied the wrong standard of review, namely that "[a]n unreasonable application of federal law is one that is so clearly incorrect that it would not be debatable among reasonable jurists." We agree that the district court applied the wrong standard but conclude that it does not change the result.

In Williams, the Supreme Court rejected the "reasonable jurists" test⁷. "The `all reasonable jurists' standard would tend to mislead federal habeas courts by focusing their attention on a subjective inquiry rather than on an objective one." 120 S. Ct. at 1521. The Court explained that "a federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. The Court did not provide much additional explanation but did make clear that "an unreasonable application of federal law is different from an incorrect application of federal law . . . a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 1522.

Following Williams, we recently held that in order for a state court's application of federal law to be unreasonable, it must have been clearly erroneous. Tran v. Lindsey, 212 F.3d 1143, 1152-54 (9th Cir. May 16, 2000). Even though the district court used the incorrect test for determining whether the state post-conviction court unreasonably applied Strickland,⁸ we affirm the district court's decision because, as discussed below, the state court did not unreasonably apply clearly established federal law.

2. Ineffective Assistance of Counsel

To prevail on a claim of ineffective assistance of counsel, Weighall must show...