Weaver v. Amsberry

583 F.Supp.3d 1334

Richard F. WEAVER, Jr., Petitioner,

v.Brigitte AMSBERRY, Respondent.

Case No. 2:16-cv-02226-MO

United States District Court, D. Oregon, Pendleton Division.

Signed February 2, 2022

Nell Brown, Anthony D. Bornstein, Federal Public Defender's Office, Portland, OR, for Plaintiff.

Kristen E. Boyd, James M. Aaron, Oregon Department of Justice, Trial Division, Salem, OR, for Respondent.

OPINION & ORDER

MOSMAN, United States District Judge,

This case comes before me on Petitioner Richard Weaver's Amended Petition for Writ of Habeas Corpus [ECF 62]. For the reasons given below, I GRANT Weaver's petition.

BACKGROUND

I. Pre-Plea Proceedings

In May 2010, a grand jury indicted Petitioner Richard Weaver on ten counts, including one count of attempted aggravated murder, three counts of robbery in the first degree, and two counts of burglary in the second degree. Ex. 102 [ECF 12-1]. Initially, Weaver was represented by attorney Scott Howell. Ex. 125 [ECF 12-1] at 1.

The state had a strong case against Weaver—physical and eye-witness testimony tied him to the burglaries. See Ex. 127 [ECF 12-2] at 4–9 (summarizing investigation); see also Ex. 159 [ECF 12-5] at 1–2 (adopting facts set forth in the government's trial memorandum). Weaver also confessed to one of the robberies. Ex. 127 [ECF 12-2]

Noticing signs of mental illness prior to trial, Howell procured a psychological evaluation for Weaver from Dr. Jerome S. Gordon. Ex. 125 [ECF 12-1] at 1–2. Dr. Gordon diagnosed Weaver with a bipolar disorder and posttraumatic stress disorder (PTSD). Ex. 109 [ECF 12-1] at 6. This led to Weaver's transfer to Oregon State Hospital (OSH), where he was subject to further evaluation. Ex. 127 [ECF 12-2] at 11. These tests concluded that Weaver had "no major mental health disorder" and that he was "able to aid and assist" in his defense. Id. (internal quotation marks omitted). One psychiatrist, Dr. Alexander Millkey, found that "there was very strong evidence ... that Mr. Weaver was malingering" and that it was "highly likely that he was grossly exaggerating" his mental illness. Id. at 12. In the face of these contradictory findings, Dr. Gordon evaluated Weaver again, maintaining his position that Weaver likely suffered from bipolar disorder and PTSD. Ex. 124 [ECF 12-1] at 13. Based on Dr. Gordon's second evaluation, Howell filed a notice of intent to present a diminished capacity defense at trial. Ex. 125 [ECF 12-1] at 1–2. He told Weaver that there would be a "battle of the experts," but continued planning for trial. Ex. 127 [ECF 12-2] at 13.

In July 2011, Howell withdrew as Weaver's attorney. Ex. 127 [ECF 12-2] at 13. The court replaced him with Mark Obert. Id. In preparation for trial, Obert reviewed Howell's file on the case, but otherwise did little else. Ex. 159 [ECF 12-5] at 1–2. He did not speak with or subpoena any witnesses, including Dr. Gordon. Id. Despite numerous calls from Weaver and his mother, Susan Blair, Ex. 121 [ECF 12-1] at 1–2, Obert met with Weaver at most three times: a brief initial meeting in September 2011, then another brief meeting the week before trial, and a third meeting on the morning of trial on October 24, 2011. See Ex. 111 [ECF 12-1]; Ex. 151 [ECF 12-4] at 2; Ex. 156 [ECF 12-4] at 77:5–7. Despite Weaver placing 62 calls to Obert's office, the two connected on the phone twice and spoke for a combined total of nineteen minutes.¹ Ex. 151 [ECF 12-4] at 4.

II. The Plea Deal

On the morning scheduled for trial, Obert, Weaver, and Blair met to discuss plea options. Ex. 146 [ECF 12-4] at 2–3. Obert communicated the state's plea offer for a 25-year sentence and told Weaver that the judge and district attorney did not "want to hear a mental health defense." Id. ; Ex. 156 [ECF 12-4] at 104:2–4. Weaver rejected the state's plea offer and Obert left the room. Ex. 146 [ECF-4] at 3. Obert returned with the state's counteroffer: it would cap its sentencing recommendation to 25 years and allow Weaver to argue for 18.5 years. Id. at 3. Staring down a sentence of up to 40 years if he lost at trial, Weaver acquiesced and pled guilty. See id. The court then sentenced Weaver to 25 years’ imprisonment. Ex. 127 [ECF 12-2] at 13.

III. Post-Conviction Proceedings

In November 2012, Weaver petitioned for postconviction relief in state court. Ex. 105 [ECF 12-1]. In an amended petition, he specified ten grounds for relief. Ex. 106 [ECF 12-1] at 4–7. After conducting a post-conviction trial, the state court denied Weaver's petition. Ex. 159 [ECF 12-5] at 1. Weaver appealed, citing as error the court's denial of one of his grounds for relief under the Sixth and Fourteenth Amendments to the United States Constitution:

Mr. Obert did not investigate the defense of diminished capacity and he did not prepare [Weaver's] case for trial notwithstanding the fact that Mr. Howell had prepared the case for trial and provided Mr. Obert with his entire file. As a result, Mr. Obert pressured [Weaver] into accepting a plea.

Ex. 160 [ECF 12-5] at 15. The Oregon Court of Appeals affirmed without opinion and the Supreme Court of Oregon denied review. Ex. 162 [ECF 12-5] at 8; Ex. 163 [ECF 12-5].

Weaver filed his petition for habeas corpus in federal court in November 2016, amending it in March 2019. Pet. [ECF 2]; Am. Pet. [ECF 62]. In April 2021, I determined that equitable tolling applied to Weaver's petition and that it was timely. Op. & Order [ECF 100]. I ordered additional briefing on the merits, id. , which I address in this opinion.

LEGAL STANDARD

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a court cannot grant a writ of habeas corpus unless the petitioner "has exhausted the remedies available in the courts of the State" or no effective state corrective process exists. 28 U.S.C. § 2254(b)(1)(A)–(B). AEDPA also narrows the scope of federal review of state court decisions. When a petitioner seeks relief from a state court judgment that was adjudicated on the merits, a court may grant relief only if the state court adjudication "was contrary to, or involved an unreasonable application of, clearly established Federal law;" or "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. § 2254(d)(1)–(2).

The "contrary to" and "unreasonable application" prongs of § 2254(d) are distinct. Williams v. Taylor , 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court acts contrary to federal law when its decision "substantially differ[s]" from relevant Supreme Court precedent. Id. at 405, 120 S.Ct. 1495. And a state court applies federal law unreasonably when it "identifies the correct governing legal rule ... but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407, 120 S.Ct. 1495.

The correct governing rule for AEDPA purposes is "clearly established federal law." 28 U.S.C. § 2254(d)(1). Clearly established federal law "refers to ‘the holdings, as opposed to the dicta’ of the Supreme Court's decisions ‘as of the time of the relevant state-court decision.’ " Cheney v. Washington , 614 F.3d 987, 994 (9th Cir. 2010) (quoting Williams , 529 U.S. at 412, 120 S.Ct. 1495 ).

As for the second part of § 2254(d), a state court's determination of fact is unreasonable if "clear and convincing evidence" shows that "reasonable minds reviewing the record" could not agree with the trial court's factual determination. Sifuentes v. Brazelton , 825 F.3d 506, 517–18 (9th Cir. 2016) (internal quotation marks omitted).

DISCUSSION

I. Procedural Default

Weaver's amended petition raises five grounds for relief. Am Pet. [ECF 62] at 3–6. The state argues that all but a portion of Weaver's grounds for relief have been procedurally defaulted. Resp't’s Suppl. Br. on the Merits [ECF 109] at 11–12. Procedural default occurs when a petitioner fails to properly exhaust his remedies in state court and is precluded from doing so by an "independent and adequate state procedural rule." Coleman v. Thompson , 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Federal habeas review of procedurally defaulted claims "is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Id.

A habeas petitioner procedurally defaults on his claims when he fails to timely present them to a state appellate court. O'Sullivan v. Boerckel , 526 U.S. 838, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) ; Park v. California , 202 F.3d 1146, 1150–51 (9th Cir. 2000). The state contends that Weaver failed properly to present most of his claims to Oregon appellate courts and has thus defaulted on them. Resp't’s Suppl. Br. on the Merits [ECF 109] at 11 (citing O'Sullivan, 526 U.S. at 848, 119 S.Ct. 1728 ).

Only grounds two and five of Weaver's amended petition relate to the assignment of error that Weaver raised to Oregon appellate courts. See Ex. 160 [ECF 12-5] at 15; Am. Pet. [ECF 62]. They do so only in fragments; both grounds go beyond what Weaver properly exhausted. But, piecing together the grounds Weaver raises in his amended petition and the assignment of error that he appealed, Weaver has properly exhausted one core claim: that Obert failed to investigate his diminished capacity defense or otherwise prepare for trial.²

Weaver's sole argument against procedural default is an isolated assertion that his "appellate counsel ineffectively omitted" his claim that Obert provided ineffective assistance of counsel due to a conflict of interest. Br. in Supp. of Am. Pet. [ECF 120] at 29. But this is Weaver's first time raising any issue with appellate counsel. See generally Am. Pet. [ECF 62]. Moreover, appellate counsel's "fail[ure] to recognize ... a claim, or fail[ure] to raise the claim despite recognizing it, does not constitute cause for a procedural default." Murray v. Carrier , 477 U.S. 478, 486, 106...