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Ogburn v. Wengler

United States District Court, Ninth Circuit

August 27, 2013



B. LYNN WINMILL, Chief District Judge.

Pending before the Court is Petitioner Keith Alan Ogburn's Petition for Writ of Habeas Corpus (Dkt. 3.) Respondents have filed an Answer and Brief in Support of Dismissal (Dkt. 12), and Petitioner has filed a Reply (Dkt. 13). Petitioner has also filed a Motion for Order to Augment Lodging of State Court Record (Dkt. 14), seeking a copy of a recording of the 911 call played at his trial.

Having carefully reviewed the record, including the state court record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that the decisional process would not be significantly aided by oral argument. Therefore, the Court shall decide this matter on the written motions, briefs and record without oral argument. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order denying Petitioner's Motion, denying the Petition, and dismissing this case.


The description of the crime for which Petitioner is imprisoned can be found in the decision of the Idaho Court of Appeals, which affirmed the state district court's judgment denying Petitioner state post-conviction relief:

On January 24, 2006, three masked men wearing dark clothing, one with a blue bandana, entered the Lotus Garden restaurant brandishing firearms. They demanded money from the owner, Hong Ha, and Ha's daughter, Karen, and threatened to shoot them if they did not comply. When the men realized that Hong's wife was on the telephone with the police in another portion of the restaurant, they fled the building, got into a white Pontiac Grand Prix, and sped away.
The police soon located the automobile, and a high-speed chase ensued during which one or more of the Pontiac's occupants shot at the pursuing officers. The chase ended when the Pontiac's driver lost control and drove into an irrigation canal. The vehicle occupants fled on foot and avoided immediate apprehension. A short time later, however, [Petitioner] Keith Ogburn was found lying in a field and taken into custody. Johnny Gonzalez was arrested after he was discovered hiding in the weeds on the bank of the canal. He was sporting a blue bandana around his neck. About two and one-half hours after the search was initiated, [Frank] Gerardo was seen walking down a residential street near the crash scene and was also arrested. All three of the men were wearing dark clothing and were cold, muddy, and wet from the waist down.
The three men were indicted for burglary, Idaho Code section 18-1404, and attempted robbery, I.C. §§ 18-6501, -306, and the indictment sought an enhancement of their burglary sentences for use of a firearm in the course of that crime, I.C. § 19-2520. The three men were tried together and none of them testified.

(State's Lodging D-3, pp. 1-2) (quoting Idaho v. Gerardo, 205 P.3d 671, 673 (Idaho Court. App. 2009)).

The field where Petitioner was found was about half of a mile from the crash site. He was found approximately 45 minutes after the crimes, which occurred around 10:00 p.m. ( Id., p. 2.) In closing argument, Petitioner's counsel argued that he was not involved in the crimes; rather, he got high on methamphetamine and simply woke up in the field. (State's Lodging A-3, p. 778.) Petitioner's trial counsel also argued that some testimony of the police officers who found Petitioner was inconsistent and the evidence showed that Petitioner's pants were dryer than those of the other two men, suggesting that Petitioner had been outside longer. ( Id., p. 777-79.) Counsel pointed out that there were no fingerprints found at the scene, that the owners of the restaurant were never asked to identify Petitioner's voice, that several items that the robbers were carrying were never found, and that Petitioner is shorter than the eyewitness descriptions of the robbers. ( Id., 776-82.)

All three defendants were found guilty. Petitioner was initially sentenced to consecutive prison terms of 10 years with 5 years fixed for the burglary count; 15 years with 12 and one-half years fixed for the robbery count; and 15 years with 12 and one-half years fixed for a firearm enhancement. ( Id., p. 821.) Petitioner appealed his sentence, which the Idaho Court of Appeals affirmed. (State's Lodging B-4, p. 2.) Petitioner filed a petition for review in the Idaho Supreme Court. (State's Lodging B-5.) The petition was denied. Petitioner's sentence was later reduced to 10 years with five years fixed for burglary and 15 years with 7 and one-half years fixed for robbery; the firearm enhancement was vacated. (State's Lodging C-3, p. 10.)

Petitioner returned to the state trial court with a pro se post-conviction petition. (State's Lodging C-1, p. 18.) He was appointed post-conviction counsel, and Petitioner's second amended petition alleged that trial counsel was ineffective for failing to present an alibi defense and failing to object to the testimony of one of the police officers as violating the Confrontation Clause and the rule against hearsay. ( Id., p. 148-49.) After an evidentiary hearing, the trial court denied the petition. ( Id., p. 198-99.) The Idaho Court of Appeals affirmed. (State's Lodging D-3, p. 1.) Petitioner filed a petition for review with the Idaho Supreme Court, which was denied.

Petitioner filed his Petition for Writ of Habeas Corpus in this Court on April 17, 2013. He claims that his trial counsel was ineffective for not investigating, developing, and presenting an alibi defense.

Petitioner asserts that the decision of the Idaho Court of Appeals-that Petitioner was not denied his Sixth Amendment right to effective assistance of counsel-was both an unreasonable application of clearly established Supreme Court precedent and based on an unreasonable determination of the facts as presented in the state court proceeding. See 28 U.S.C. § 2254(d).


1. Petitioner's Motion to Augment Lodging of State Court Records

Petitioner requests that the Court order Respondents to lodge Exhibit 38 from his criminal trial, the recording of the 911 call alerting police to the robbery. Petitioner argues that

the data contained within the 911 recording is central to the issues at bar, and will provide unequivocal data upon which this Court can rely in the disposition of this case.
Petitioner would state that this data would support the allegations of error & ineffective assistance of counsel, and that Respondent was put on notice that this data recording would be sought for inclusion in this case..., yet such was not included within the lodgings made by the respondents.

(Mot. to Augment, Dkt. 14, at 1-2) (brackets omitted).

Respondents state that the 911 call was admitted into evidence at trial and played for the jury, but "because the contents of the recording were not transcribed by the court reporter, the recording was not part of the trial transcript generated for Ogburn's direct appeal. Further, the clerk of the trial court did not lodge the audio recording with the Idaho Supreme Court...." (Opp. to Mot. to Augment, Dkt. 15, at 2.) Respondents assert that they do not have the recording and that it is not a part of the record of either Petitioner's direct appeal or his appeal from the denial of his state petition for post-conviction relief. ( Id. at 2-3.)

The Court will deny Petitioner's Motion. His stated reasons for seeking the recording are vague and general and do not support his request. Further, Petitioner "failed to develop the factual basis" in state court of any claim regarding the 911 call. 28 U.S.C. § 2254(e)(2). Therefore, the court cannot hold a hearing to take evidence regarding the recording unless Petitioner can show that (1) the "factual predicate [for a claim based on the 911 call] could not have been previously discovered through the exercise of due diligence" and (2) "the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found [Petitioner] guilty of the underlying offense." Id. Petitioner fails to explain how the recording of the 911 call would support his claim of ineffective assistance of trial counsel. He also does not attempt to justify his failure to seek the recording at his post-conviction evidentiary hearing or to request that the recording be included in the state record on his direct or post-conviction appeal. Therefore, Petitioner's Motion will be denied, and the Court will proceed to the merits of the Petition.

2. Standard of Law

Federal habeas corpus relief may be granted on claims adjudicated on the merits in a state court judgment when the federal court determines that the petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A federal habeas court reviews the state court's "last reasoned decision" in determining whether a petitioner is entitled to relief. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).

Under § 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), federal habeas relief is generally limited to instances where the state court's adjudication of the petitioner's claim

(1) 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

When a party contests the state court's legal conclusions, including application of the law to the facts, § 2254(d)(1) governs. Section 2254(d)(1) has two clauses, each with independent meaning. That section consists of two alternative tests: the "contrary to" test and the "unreasonable application" test.

Under the first test, a state court's decision is "contrary to" clearly established federal law "if the state court applies a rule different from the governing law set forth in [the Supreme Court's] cases, or if it decides a case differently than [the Supreme Court] [has] done on a set of materially indistinguishable facts." Bell v. Cone, 535 U.S. 685, 694 (2002).

Under the second test, to satisfy the "unreasonable application" clause of § 2254(d)(1) the petitioner must show that the state court-although identifying "the correct governing legal rule" from Supreme Court precedent-nonetheless "unreasonably applie[d] it to the facts of the particular state prisoner's case." Williams v. Taylor, 529 U.S. 362, 407 (2000). A federal court cannot grant habeas relief simply because it concludes in its independent judgment that the decision is incorrect or wrong; rather, the state court's application of federal law must be objectively unreasonable to warrant relief. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Bell, 535 U.S. at 694.

The Supreme Court has clarified "that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). This limitation applies to cases that were adjudicated on the merits in state court and to cases in which the factual determination of the state court is not unreasonable. See Detrich v. Ryan, 677 F.3d 958, 972 (9th Cir. 2012).

When a petitioner contests the reasonableness of the state court's factual determinations, a federal court must undertake a § 2254(d)(2) analysis. To be eligible for relief under § 2254(d)(2), the petitioner must show that the state court decision was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." The United States Supreme Court has admonished that a "state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 130 S.Ct. 841, 849 (2010).

The United States Court of Appeals for the Ninth Circuit has identified four types of unreasonable factual determinations in state court proceedings: (1) when state courts fail to make a finding of fact; (2) when state courts mistakenly make factual findings under the wrong legal standard; (3) when "the fact-finding process itself is defective"; or (4) when state courts "plainly misapprehend or misstate the record in making their findings, and the misapprehension goes to a material factual issue that is central to petitioner's claim." Taylor v. Maddox, 366 F.3d. 992, 1000-01 (9th Cir. 2004).

If the state court's decision was based on an unreasonable determination of the facts, then the Court is not limited by § 2254(d)(1), but proceeds to a de novo review of the petitioner's claims, which may include consideration of evidence outside the state court record. See Detrich, 677 F.3d at 972; Maxwell v. Roe, 628 F.3d 486, 494-95 (9th Cir. 2010).

3. Post-Conviction Proceedings

Plaintiff claims that trial counsel should have investigated, developed, and presented an alibi defense. He states in his Petition that he informed his trial attorney, Mark McHugh, that he was attending a graduation ceremony at the time of the robbery, along ...

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