Chavez v. Uttecht

• Court: District Court, W.D. Washington
• Decided: May 4, 2020
• Docket: 2:19-cv-01033
• Status: Unknown

Opinion

THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 CHRISTOPHER THOMAS CHAVEZ, CASE NO. C19-1033-JCC 10 Plaintiff, ORDER 11 v. 12 JEFFREY UTTECHT, 13 Defendant. 14

15 This matter comes before the Court on Petitioner’s objections (Dkt. No. 47) to the report 16 and recommendation of the Honorable Mary Alice Theiler, United States Magistrate Judge (Dkt. 17 No. 46). Having thoroughly considered the parties’ briefing and the relevant record, the Court 18 hereby APPROVES and ADOPTS the report and recommendation, DENIES Petitioner’s petition 19 for a writ of habeas corpus, and DISMISSES the case with prejudice for the reasons explained 20 herein. 21 I. BACKGROUND 22 Judge Theiler’s report and recommendation sets forth the underlying facts of this case 23 and the Court will not repeat them here. (See id. at 2–6.) The report and recommendation 24 recommends that the Court deny Petitioner’s request for an evidentiary hearing, deny his habeas 25 petition, and dismiss the case. (Id. at 36). Petitioner has filed objections to the report and 26 recommendation. He requests the Court grant him an evidentiary hearing to examine Petitioner’s 1 state court counsel to determine whether his counsel’s allegedly defective performance was due 2 to strategic decisions and to evaluate what testimony Lee Coleman, M.D., would have given in 3 Petitioner’s state court proceedings. (Dkt. No. 47 at 2.) Petitioner also objects to the report and 4 recommendation’s rejection of his ineffective assistance of counsel claims and closing argument 5 claim. (Id. at 5.) Finally, Petitioner objects to the report and recommendation’s alleged failure to 6 address his cumulative error claim under 28 U.S.C. § 2254(d). (Id. at 6.) 7 II. DISCUSSION 8 A. Standard of Review 9 District courts review de novo those portions of a report and recommendation to which a 10 party objects. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). Objections are required to 11 enable the district court to “focus attention on those issues—factual and legal—that are at the 12 heart of the parties’ dispute.” Thomas v. Arn, 474 U.S. 140, 147 (1985). General objections, or 13 summaries of arguments previously presented, have the same effect as no objection at all, since 14 the court’s attention is not focused on any specific issues for review. See United States v. 15 Midgette, 478 F.3d 616, 622 (4th Cir. 2007). 16 B. Evidentiary Hearing 17 Under 28 U.S.C. § 2254(e)(2), if a habeas petitioner fails to develop the factual basis of a 18 claim in state court, the federal court may not hold an evidentiary hearing on that claim unless 19 two prerequisites are met. First, the claim must rely on either (a) a new rule of constitutional law 20 made retroactive to cases on collateral review by the United States Supreme Court and 21 previously unavailable or (b) a factual predicate that could not have been previously discovered 22 through the exercise of due diligence. 28 U.S.C. § 2254(e)(2)(A)(i)–(ii). Second, the facts 23 underlying the claim must establish by clear and convincing evidence that but for constitutional 24 error no reasonable fact finder would have found the petitioner guilty. 28 U.S.C. 25 § 2254(e)(2)(B). 26 A petitioner does not fail to develop a claim’s factual basis in state court unless there is a 1 lack of diligence or some greater fault attributable to the petitioner or his counsel. Williams v. 2 Taylor, 529 U.S. 420, 432, 437 (2000); Baja v. Ducharme, 187 F.3d 1075, 1078–79 (9th Cir. 3 1999). Diligence, at minimum, requires that the petitioner sought an evidentiary hearing in state 4 court pursuant to applicable procedures. Williams, 529 U.S. at 432. The denial of an evidentiary 5 hearing in state court does not constitute failure to develop the factual basis of a claim. Jones v. 6 Wood, 114 F.3d 1002, 1013 (9th Cir. 1997). 7 Even if an evidentiary hearing is not precluded by § 2254(e)(2), that does not necessarily 8 mean a petitioner is entitled to such a hearing. See Downs v. Hoyt, 232 F.3d 1031, 2041(9th Cir. 9 2000). Instead, the court has discretion to determine whether an evidentiary hearing is 10 appropriate or required under the pre- Antiterrorism and Effective Death Penalty Act of 1996 11 standard governing hearings. Id.; see Baja, 187 F.3d at 1078. In deciding whether to grant an 12 evidentiary hearing, the court must consider whether such a hearing could enable an applicant to 13 prove factual allegations that, if true, would entitle the applicant to federal habeas relief. Schriro 14 v. Landrigan, 550 U.S. 465, 474 (2007). The court need not hold an evidentiary hearing where 15 the petition raises solely questions of law or where the issues may be resolved based on the state 16 court record. Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998). “It follows that, if the record 17 refutes the applicant’s factual allegation or otherwise precludes habeas relief, a district court is 18 not required to hold an evidentiary hearing.” Landrigan, 550 U.S. at 474; accord Totten, 137 19 F.3d at 1176. “Because the deferential standards prescribed by § 2254 control whether to grant 20 habeas relief, a federal court must take into account those standards in deciding whether an 21 evidentiary hearing is appropriate.” Landrigan, 550 U.S. at 472–75 (internal citation omitted). 22 Petitioner objects to the report and recommendation’s rejection of his request for an 23 evidentiary hearing regarding his ineffective assistance of counsel claims. (Dkt. No. 47 at 2.) 24 However, Petitioner has not identified a constitutional right that was not previously available or 25 facts that could not have been previously discovered with reasonable diligence. Additionally, 26 Petitioner has not asserted facts that would establish, by clear and convincing evidence, that but 1 for constitutional error no reasonable fact finder would have found him guilty. As such, all issues 2 can be resolved by relying solely on the record developed in Petitioner’s underlying state 3 proceedings. It is clear from the record that the state court adequately considered the merits of 4 Petitioner’s case and conducted an adjudication on those merits before rejecting his claim. Thus, 5 Petitioner’s request for an evidentiary hearing is DENIED. 6 C. Ineffective Assistance of Counsel 7 The Sixth Amendment guarantees a criminal defendant the right to effective assistance of 8 counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). Courts evaluate claims of 9 ineffective assistance of counsel under the two-prong test set forth in Strickland v. Washington, 10 466 U.S. 668 (1984). Under that test, a defendant must prove that (1) counsel’s performance fell 11 below an objective standard of reasonableness and (2) a reasonable probability exists that, but for 12 counsel’s error, the result of the proceedings would have been different. Id. at 687–94. 13 When considering the first prong of the Strickland test, judicial scrutiny must be highly 14 deferential. Id. at 689. There is a strong presumption that counsel’s performance fell within the 15 wide range of reasonably effective assistance. Id. The Ninth Circuit states that “[a] fair 16 assessment of attorney performance requires that every effort be made to eliminate the distorting 17 effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to 18 evaluate the conduct from counsel’s perspective at the time.” Campbell v. Wood, 18 F.3d 662, 19 673 (9th Cir. 1994) (quoting Strickland, 466 U.S. at 689). 20 The second prong of the Strickland test requires a showing of actual prejudice. Thus, a 21 defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional 22 errors, the result of the proceeding would have been different. A reasonable probability is a 23 probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. 24 1. Victim’s Inconsistent Statements 25 The report and recommendation rejected Petitioner’s argument that he received 26 ineffective assistance of counsel in his underlying criminal proceedings, finding that his counsel 1 made “reasonable strategic” decisions in cross-examining A.R., the minor victim. (Dkt. No. 46 at 2 20.) In his objections to the report and recommendation, Petitioner again contends that his 3 counsel’s cross-examination of A.R. rose to the level of ineffective assistance of counsel because 4 counsel failed to conduct the cross-examination “effectively.” (Dkt. No. 47 at 3.) The jury was 5 aware of the inconsistencies of A.R.’s statements. (See Dkt. No. 50 at 7.) In fact, the jury 6 watched a video of A.R.’s forensic interview, heard her admit that “she forgot” about the first 7 time Defendant touched her, and saw her admit that re-watching her interview “‘sort of’ helped 8 her remember what happened.” (Id. at 6–7.) At the time of trial, A.R. was ten years old. (Dkt. 9 No. 46 at 20). Not only did the judge limit the use of certain impeachment tactics, but it is 10 reasonable that Petitioner’s counsel saw no merit in aggressively cross-examining a ten-year-old 11 victim who was likely sympathetic to the jury. (Id. at 6.) As such, Petitioner’s counsel’s 12 allegedly ineffective cross-examination of A.R. did not fall below an objective standard of 13 reasonableness and, even if it had, it would not have changed the outcome of Petitioner’s trial. 14 In fact, Defendant’s case may have been harmed by his counsel aggressively pressing 15 A.R. Counsel’s hesitation and ultimate choice to “punt cross examination” does not display 16 ineffective assistance of counsel, but rather a thoughtful approach to effectively crossing a 17 sympathetic and young victim. (Dkt. No. 47 at 3.) Indeed, Petitioner’s counsel skillfully showed 18 inconsistencies in A.R.’s statements while simultaneously ensuring the jury would not view 19 counsel’s interview tactics as harsh or bullying. Therefore, contrary to Petitioner’s perspective, 20 the record shows that Petitioner’s counsel’s choice was “tactical” and “strategic” given the 21 circumstances and that a more aggressive style of cross-examination would not have changed the 22 outcome of Petitioner’s underlying criminal proceedings. (Id.) Therefore, Petitioner’s objections 23 are OVERRULED on this ground. 24 2. Counseling Evidence and Expert Evidence 25 The report and recommendation rejected Petitioner’s claim that his counsel was 26 ineffective for failing to offer evidence of A.R.’s counseling sessions and expert testimony 1 concerning A.R.’s forensic interview. (Dkt. No. 46 at 28–30.) In his objections, Petitioner asserts 2 that the report and recommendation erred because the decision to not call Dr. Coleman to testify 3 as an expert on the counseling records and the state’s forensic interview of A.R. was “the most 4 erroneous and prejudicial” error by his counsel. (Dkt. No. 47 at 5.) 5 Deciding to not call Dr. Coleman to testify about A.R.’s counseling records was not 6 ineffective. Petitioner could not demonstrate evidence necessary to overcome medical privilege 7 to obtain the documents and Dr. Coleman could not, therefore, testify about documents that were 8 inaccessible. The record shows that A.R.’s counseling sessions were not conducted because of 9 the investigation, an attempt to build a case against Petitioner, or to overcome trauma caused by 10 Defendant molesting her. (Dkt. No. 50 at 8.) Rather, A.R.’s counseling was intended to help with 11 her insomnia. (See id.) As a result, Petitioner was unable to make the necessary showing to 12 overcome medical privilege and access these records. (Id.) Even if Petitioner had access to these 13 documents, they were not relevant to Petitioner’s defense against A.R.’s testimony. Therefore, 14 Dr. Coleman’s review of the records, had he the chance, would not have changed the jury’s 15 decision. Thus, Petitioner’s counsel acted reasonably in not calling a witness to testify to the 16 records when after not having had a chance to review them, and Petitioner has not demonstrated 17 that access to the records would have changed the outcome of his trial. 18 Additionally, as discussed above, the jury watched a recording of A.R.’s state-conducted 19 forensic interview. (Dkt. No. 46 at 30.) The jury also witnessed first-hand the state’s examination 20 of A.R. at trial and Petitioner’s state counsel’s resulting cross-examination of A.R. (Id. at 30) 21 Furthermore, counsel “seriously considered using Dr. Coleman’s proposed testimony” and chose 22 not to. (Id. at 31.) Petitioner’s counsel’s decision to not offer Dr. Coleman’s testimony may have 23 been a strategic decision to avoid unnecessary redundancies and further prolong the trial. This 24 evidences a thoughtful and deliberate decision that one would expect from adequate counsel. 25 Thus, as the Washington Supreme Court astutely noted, “Mr. Chavez cannot demonstrate 26 prejudice” if the evidence he wished to introduce through Dr. Coleman’s testimony was already 1 present in the record. Testimony further highlighting inaccuracies the jury was already aware of 2 was unlikely to alter the jury’s ultimate decision. Therefore, Petitioner’s objections to the report 3 and are OVERRULED on this ground. 4 3. Closing Argument 5 The report and recommendation rejected Petitioner’s argument that his counsel was 6 ineffective based on a lackluster closing argument, finding that his counsel’s closing was not 7 “contrary to or an unreasonable application of clearly established federal law” or that it would 8 have “affected the verdict.” (Id. at 35.) In his objections to the report and recommendation, 9 Petitioner asserts that his counsel’s subpar closing had a “prejudicial effect,” by giving the jury 10 the impression that counsel was “throwing in the towel.” (Dkt. No. 47 at 6.) 11 Petitioner’s argument is not supported by the record. In closing, Petitioner’s counsel 12 argued that the testimony presented by the state did not establish Petitioner’s guilt beyond a 13 reasonable doubt, that A.R. was suggestable, and that A.R.’s disclosures were hastily misjudged 14 and misinterpreted. (Dkt. No. 46 at 34.) In his initial petition, Petitioner argued that counsel’s 15 statement “I’m treading lightly” is indicative of his counsel’s ineffectiveness. (Dkt. No. 1 at 152– 16 53.) When considered without context, counsel’s statement could raise red flags. But an 17 examination of the record shows that counsel was “treading lightly” because they “[did not] want 18 to attack [and did not] want to blame” A.R., who was nine years old at the time Petitioner 19 molested her. (Id. at 152.) As discussed above, counsel’s strategy of avoiding alienating a child 20 victim of sexual assault would have been in Petitioner’s favor. 21 Petitioner’s counsel’s closing does not constitute ineffective assistance of counsel as a 22 different closing would not have changed the outcome of the case. In his objections, Petitioner 23 claims that counsel’s closing “lacked any basis—or reasonable basis—in evidence admitted in 24 the record,” but this assertion is not supported by the record. (Dkt. No. 47 at 6.) While a closing 25 argument can be a powerful tool, all evidence and argument that can be used in closing has 26 already been made over the course of trial. In this case, the state supplied the jury with ample 1 evidence on which they could base their verdict. Thus, while Petitioner may have hoped for a 2 “more powerful” closing argument, he has not established that his counsel “[threw] in the towel” 3 and thus led the jury to its guilty verdict, especially in light of the record. (See Id. at 6.) 4 Therefore, Petitioner’s objections to the report and recommendation are OVERRULED on this 5 ground. 6 D. Cumulative Error 7 In Petitioner’s petition for habeas relief, he alleged that his counsel’s “many defects’ 8 synergistic prejudicial effect was dramatic and it was immense.” (Dkt. No. 1 at 209.) The report 9 and recommendation mentions Petitioner’s claim for cumulative error only in the summary of 10 Petitioner’s claims for habeas relief. (Dkt. Not. 46 at 5–6.) In his objections to the report and 11 recommendation, Petitioner challenges this failure to address his cumulative error claim as 12 further evidence in favor of granting his habeas claim as he alleges “that claim satisfies 28 13 U.S.C. § 2254(d).” (Dkt. No. 47 at 6–7.) 14 One isolated error can be insufficient to warrant reversal of a conviction, but a showing 15 of “the cumulative effect of multiple errors may still prejudice a defendant” and lead to reversal 16 of a conviction. United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996). Sometimes the 17 mere analysis of “issue-by-issue harmless error review” is not sufficient and the court must look 18 at the overall effect of all errors. Id. (quoting United States v. Wallace, 848 F.2d 1464, 1476 (9th 19 Cir. 1988)). Essentially, “[e]rrors that might not be so prejudicial as to amount to a deprivation of 20 due process when considered alone, may cumulatively produce a trial setting that is 21 fundamentally unfair.” Thomas v. Hubbard, 273 F.3d 1164, 1180 (9th Cir. 2001) (quoting 22 Matlock v. Rose, 731 F.2d 1236, 1244 (6th Cir. 1984)); see Alcala v. Woodford, 334 F.3d 862, 23 888–89 (9th Cir. 2003) (finding ineffective assistance of counsel based on cumulative error where 24 defense counsel did not effectively present the defendant’s alibi, did not properly prepare a key 25 witness, and failed to investigate the crime scene); compare with United States v. Acosta, 234 26 Fed. Appx. 647, 650 (9th Cir. 2007) (finding no cumulative errors because alleged errors “were 1 harmless” and “did not materially affect the verdict” because of the “overwhelming evidence of 2 guilt”). 3 Petitioner’s counsel could undoubtably have strategized differently, and perhaps some of 4 their strategy can be called into question. But as the Washington State Court of Appeals noted, 5 Petitioner “fails to demonstrate that the outcome of proceedings could have been different if 6 counsel had proceeded differently.” (Dkt. No. 50 at 12.) As he did before the Washington State 7 Court of Appeals and as found above, Petitioner fails to identify any representation rising to the 8 level of ineffective assistance of counsel. As such, there are not multiple errors to accumulate 9 and the cumulative error doctrine does not apply. Thus, Petitioner’s objections to the report and 10 recommendation are OVERRULED on this ground. 11 III. CONCLUSION 12 The Court has reviewed the balance of the report and recommendation and finds no error. 13 For the foregoing reasons, the Court hereby FINDS and ORDERS as follows: 14 1. Petitioner’s objections to the report and recommendation (Dkt. No. 47) are 15 OVERRULED; 16 2. The Court APPROVES and ADOPTS the report and recommendation (Dkt. No. 46); 17 3. Petitioner’s habeas petition (Dkt. No. 1) and this action are DISMISSED with prejudice; 18 4. Petitioner is DENIED issuance of a certificate of appealability pursuant to 28 U.S.C. 19 § 2253(c)(2) and Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); and 20 5. The Clerk is DIRECTED to send copies of this order to the parties and to Judge Theiler. 21 DATED this 4th day of May 2020 A 22 23 24 John C. Coughenour 25 UNITED STATES DISTRICT JUDGE