Schardt v. Payne

414 F.3d 1025

Dale E. SCHARDT, Petitioner-Appellant, v. Alice PAYNE, Respondent-Appellee.

No. 02-36164.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 2, 2004.

Submission Deferred November 3, 2004.

Resubmitted May 9, 2005.

Filed July 8, 2005.

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Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, WA, for the petitioner-appellant.

Diana M. Sheythe and John J. Samson, Assistant Attorney General, Office of the Washington Attorney General, Criminal Justice Division, Olympia, WA, for the respondent-appellee.

David Zuckerman and Jeffery L. Fisher, NACDL Amicus Committee, Seattle, WA, for amicus NACDL.

Appeal from the United States District Court for the Western District of Washington, Thomas S. Zilly, District Judge, Presiding. D.C. No. CV-02-00301-TSZ.

Before: ALARCÓN, W. FLETCHER, and RAWLINSON, Circuit Judges.

ALARCÓN, Senior Circuit Judge.

We must decide in this matter the novel question whether a Washington state prisoner may challenge the validity of his sentence retroactively on the ground that the trial court based its sentencing decision on facts that were not found to be true by a jury in violation of the constitutional principle subsequently announced by the United States Supreme Court in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We conclude that Blakely does not apply retroactively to convictions that became final prior to its publication. We also hold that the petitioner has failed to demonstrate that he was ineffectively represented by his trial counsel.

I

Mr. Schardt was charged with one count of rape of a child in the first degree,¹ a class A felony under Washington law. The accusatory pleading alleges that Mr. Schardt had sexual intercourse with a child who was less than twelve years old from April 1, 1996 to April 22, 1997, a period of more than a year.

At trial, B.E. ("the victim") testified that Mr. Schardt committed numerous acts upon her person that come within Washington's definition of the term "sexual intercourse."² She stated that this conduct began sometime after she and her mother moved in with Mr. Schardt in early 1996. The victim testified that Mr. Schardt engaged in sexual intercourse with her several times a month. She described the various places in the residence where these acts occurred and the ways in which Mr. Schardt would position their bodies in order to engage in sexual intercourse. She testified that Mr. Schardt committed the last act of sexual intercourse on the morning of April 22, 1997.

The victim testified that on April 22, 1997, she was in bed when Mr. Schardt entered her room. He told her that she "owed" him. He took off her clothes, and placed Vaseline on his penis and attempted to insert it in her vagina. Mr. Schardt also touched her vagina with his mouth and fingers.

The victim's mother, testified that she lived with Mr. Schardt from March 1996 until the end of April 1997. The victim's mother stated that she took the victim to a hospital for a medical examination a day or so after the April 22, 1997 incident.

A nurse practitioner testified that she examined the victim on April 25, 1997 and found "a notch" on her hymen which was "indicative of penetrating trauma, or attempted penetrating trauma" and consistent with sexual abuse.

In his defense, Mr. Schardt testified that as a result of an on-the-job injury to his back, he began taking muscle relaxants that impaired his ability to have an erection. He stated that this problem began to occur around January 1997. Mr. Schardt's counsel did not introduce any medical records into evidence regarding Mr. Schardt's complaint of erectile dysfunction.³

The judge's admonition to the jury contained the following instruction:

There are allegations that the defendant committed acts of rape of a child in the first degree on multiple occasions. To convict the defendant, one or more particular acts must be proved beyond a reasonable doubt and you must unanimously agree as to which act or acts have been proved beyond a reasonable doubt. You need not unanimously agree that all the acts have been proved beyond a reasonable doubt.

Thus, the jury was not required to make a finding regarding whether Mr. Schardt had repeatedly committed rape of a child during the one-year period. Based on this instruction, the members of the jury could have convicted Mr. Schardt if they agreed that only one act of rape had been proven beyond a reasonable doubt. The jury found Mr. Schardt guilty as charged.

The court determined that Mr. Schardt had a standard sentence range of 78 to 102 months under Washington's Sentencing Reform Act.⁴ Under that statute, a court can increase the standard sentence if it finds that there are aggravating factors.⁵ The judge must determine the existence of any aggravating factors "by a preponderance of the evidence." Wash. Rev.Code § 9.94A.530(2). These factors include:

The defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability, or ill health. . . .

. . .

The current offense involved multiple victims or multiple incidents per victim.

Wash. Rev.Code § 9.94A.535 (2004). The state trial court sentenced Mr. Schardt to serve 204 months in prison based on its findings of fact that:

1. The defendant was victim B.E.'s surrogate stepfather and/or father-figure and was one of two primary custodial parents during the entire span of time the offenses were committed.

2. The offenses were committed against B.E. over an approximately one year period when B.E. was between the ages of 10 years and 11 years old.

In its conclusions of law, the trial court stated:

1. In committing these offenses the defendant abused his position of trust and confidence as a surrogate stepfather and custodial parent.

2. The victim was, at the time of the offenses, particularly vulnerable and incapable of resistance due to her extreme youth.

3. The offenses committed were part of an ongoing pattern of sexual abuse of the same victim and involved multiple incidents over a prolonged period of time.

The Washington Court of Appeals affirmed Mr. Schardt's conviction in an unpublished opinion. Mr. Schardt did not petition the Washington Supreme Court for direct review. Mr. Schardt's personal restraint petition was dismissed by the Washington Court of Appeals. The Washington Supreme Court denied Mr. Schardt's motion for discretionary review of the personal restraint petition.

In his state prisoner petition for habeas corpus filed pursuant to 28 U.S.C. § 2254 Mr. Schardt raised three arguments: (1) his sentence violated the Sixth Amendment right to a jury trial as construed by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); (2) more than a preponderance of the evidence was required to enhance his sentence, and (3) his trial counsel was ineffective because he failed to discover and submit reports made by Mr. Schardt's treating physicians showing that he had complained of erectile dysfunction at the time of the alleged rapes. The district court denied the petition. The district court had jurisdiction over this petition for a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241, 2254. We have jurisdiction to review Mr. Schardt's timely appeal under 28 U.S.C. § 1291.

II

Mr. Schardt contends that he received ineffective assistance of counsel at the guilt phase of his trial. We review de novo a district court's denial of habeas corpus relief. Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir.2003). In order to prevail on his claim of ineffective assistance of counsel, Mr. Schardt "must show that counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, he must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 104 S.Ct. 2052.

Mr. Schardt correctly notes that to show prejudice under Strickland, he need only demonstrate "that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Wade v. Calderon, 29 F.3d 1312, 1323 (9th Cir.1994) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052), overruled on other grounds by Rohan ex rel. Gates v. Woodford, 334 F.3d 803, 815 (9th Cir.2003). He argues that counsel's failure to introduce medical records reflecting his complaint of erectile dysfunction prejudiced him because such evidence would have corroborated his testimony, and impeached the victim's testimony regarding penile penetration. He asserts that the doctor's records would be particularly persuasive, because "the reports were made before any allegations or charges of child rape or anything like it were ever brought forward. They were made at a time when there was no suspicion being cast upon Mr. Schardt."

In response, the State first points out that the medical reports did not show that Mr. Schardt's physician diagnosed him as suffering from erectile dysfunction. The medical reports merely record that Mr. Schardt had made "unproven, undiagnosed, and self-serving statements [to his treating physician] who did not have the expertise to diagnose or treat such a dysfunction." The State also notes that the victim described numerous ways in which Mr. Schardt had engaged in sexual intercourse with the victim as defined under Washington law that can be effected without an erection. Furthermore, Mr. Schardt did not complain of erectile dysfunction until after an accident in October 1996, but he was charged with committing rape during a period that began in April 1996.

The record shows that at the time Mr. Schardt complained to his physician regarding erectile dysfunction, he had not been criminally charged. He asserts that it would be...