United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
CANDY W. DALE, Magistrate Judge.
Petitioner Donald Roger Rossignol, Jr., filed a Petition for Writ of Habeas Corpus challenging his state court conviction. (Dkt. 1.) Respondent has filed an Answer and a Brief in Support of Dismissal (Dkt. 20), and Petitioner has filed a Reply. (Dkt. 22.) The Petition is now fully briefed and ready for adjudication.
Both parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 9.) See 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. Having reviewed the record, the state court record, and the parties' briefing, the Court enters the following Order.
REVIEW OF PETITION
1. Standard of Law for Review of Petition
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). Under § 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act (AEDPA), federal habeas corpus relief is further limited to instances where the state-court adjudication of the merits:
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.
When a party contests the state court's legal conclusions, including application of the law to the facts, § 2254(d)(1) governs. That section consists of two alternative tests: the "contrary to" test and the "unreasonable application" test.
Under the first test, for a decision to be "contrary to" clearly established federal law, the petitioner must show that the state court applied "a rule of law different from the governing law set forth in United States Supreme Court precedent, or that the state court confronted a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrived at a result different from the Court's precedent." Williams v. Taylor, 529 U.S. 362, 404-06 (2000).
Under the second test, to satisfy the "unreasonable application" clause of § 2254(d)(1), the petitioner must show that the state court was "unreasonable in applying the governing legal principle to the facts of the case." Williams, 529 U.S. at 413. A federal court cannot grant relief simply because it concludes in its independent judgment that the decision is incorrect or wrong; 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 v. Cone, 535 U.S. 685, 694 (2002).
In Harrington v. Richter, 131 S.Ct. 770 (2011), the United States Supreme Court reiterated that a federal court may not re-determine a claim on its merits after the highest state court has done so, just because the federal court would have made a different decision. Rather, the review is necessarily deferential. The Supreme Court explained that under § 2254(d), a habeas court (1) "must determine what arguments or theories supported or... could have supported, the state court's decision;" and (2) "then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786. If fairminded jurists could disagree on the correctness of the state court's decision, then a federal court cannot grant relief under § 2254(d)(1). Id. The Supreme Court emphasized: "It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (internal citation omitted).
The United States Supreme Court has recently 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 cases in which the factual determination of the state court is not unreasonable.
When a party contests the reasonableness of the state court's factual determinations, the 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 upon factual determinations that were "unreasonable in light of the evidence presented in the State court proceeding." Id. 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, 558 U.S. 290, 301 (2010) (citations omitted).
The United States Court of Appeals for the Ninth Circuit has identified five types of unreasonable factual determinations that result from procedural flaws that occurred in state court proceedings: (1) when state courts fail to make a finding of fact; (2) when courts mistakenly make factual findings under the wrong legal standard; (3) when "the fact-finding process itself is defective, " such as when a state court "makes evidentiary findings without holding a hearing"; (4) when 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; or (5) when "the state court has before it, yet apparently ignores, evidence that supports petitioner's claim." Taylor v. Maddox, 366 F.3d. 992, 1000-01 (9th Cir. 2004). State court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Petitioner was convicted after trial by jury of three counts of lewd conduct and one count of sexual abuse, arising from criminal charges filed in the Second Judicial District Court in Moscow, Idaho. The victim was Petitioner's seven-year-old daughter, S.R., who had come to live with him for the first time after her mother died. Petitioner was also found to be a persistent violator in the same criminal proceeding. On May 31, 2007, a judgment of conviction was entered, and Petitioner received sentences amounting to 30 years fixed, with 10 years indeterminate. He filed both a direct appeal and a post-conviction action in state court prior to filing his Petition for Writ of Habeas Corpus in federal court.
Petitioner brings three claims: (1) that Petitioner's attorney did not allow him to testify, or, alternatively, that Petitioner did not knowingly or voluntarily waive his right to testify; (2) that trial counsel did not properly prepare for trial, including a failure to subpoena a key witness; and (3) that the state district court hindered Petitioner's ability to present a viable defense regarding admission of an incomplete taped interview with the victim.
3. Denial of Right to Testify at Trial and Ineffective Assistance Claim
A. Standard of Law
An accused's right to testify is a constitutional right of fundamental dimension, but a right that is not without limitations. Rock v. Arkansas, 483 U.S. 44, 51-54 (1987). The Rock court acknowledged that the right to testify "may, in appropriate cases, bow to accommodate other legitimate interest in the criminal trial process.'" Id. at 56 (quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973)).
The right to testify may be waived by the defendant. United States v. Mezzanatto, 513 U.S. 196, 201 (1995). A waiver is valid as long as it is knowing, voluntary, and intelligent. United States. v. Ruiz, 536 U.S. 622, 629 (2002).
In a criminal case, the defendant "has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal. See Jones v. Barnes, 463 U.S. 745, 751 (1983). In Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938), in the context of determining whether a defendant had waived his right to counsel, the United States Supreme Court opined that a defendant's relinquishment of a constitutional right must be voluntary and knowing, and "[w]hether there has been an intelligent waiver of a constitutional right must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background experience, and conduct of the accused."
Counterbalancing the right to testify are important implications arising from a defendant's choice to be represented by counsel. The Jones Court explained: "The purpose of the constitutional guaranty of a right to counsel is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights." 304 U.S. at 465. Whether a defendant testifies is usually attributed to the tactical strategy of counsel, who has weighed the benefits and risks of testifying, including exposing the defendant to cross-examination. The Supreme Court has opined that, "absent exceptional circumstances, a defendant is bound by the tactical decisions of competent counsel." Reed v. Ross, 468 U.S. 1, 13 (1984).
In cases where a court finds that a defendant was denied the right to testify, there is no indication from the United States Supreme Court that harmless error would not apply to determine whether relief was warranted. See Rose v. Clark, 478 U.S. 570, 576-79 (1986); Brooks v. Tennessee, 406 U.S. 605, 613 (1972).
In Petitioner's case, the Idaho Court of Appeals rejected the constitutional claim, but alternatively performed a Chapman  harmless error analysis to determine that, even assuming Petitioner was deprived of the right to testify, he would not be entitled to relief. The Court of Appeals "was convinced beyond a reasonable doubt that, even if Rossignol had testified, the jury would still have found Rossignol guilty of all counts." (State's Lodging D-5, p. 13.)
The United States Supreme Court has clarified that, when a state appellate court has undertaken a Chapman harmless error review, the federal district court reviewing the decision under § 2254 applies the Brecht harmless error analysis. See Fry v. Pliler, 551 U.S. 112, 120 (2007) (" Brecht obviously subsumes AEDPA/ Chapman review") (citing Brecht v. Abrahamson, 507 U.S. 619 (1993)). Under Brecht, a federal habeas court that determines constitutional error occurred cannot grant a writ of habeas corpus unless the error "had substantial and injurious effect or influence in determining the jury's verdict." 507 U.S. at 638.
The Idaho Court of Appeals also reviewed the right-to-testify issue as a claim that Petitioner was deprived of the effective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). The first prong of the Strickland test, "deficient performance, " requires a showing that counsel's performance "fell below an objective standard of reasonableness, " id. at 688, or was "outside the wide range of professionally competent assistance, " id. at 690.The test is "highly deferential, " evaluating the challenged conduct from counsel's perspective at the time at the time counsel acted. Id. at 689.
The second prong of the Strickland test, "actual prejudice, " requires the petitioner to demonstrate a "reasonable probability that, but for counsel's unprofessional errors, the result of the [trial] would have been different." 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
Ineffective assistance of counsel claims fall under the "doubly deferential" lens of habeas corpus. See Cullen v. Pinholster, 131 S.Ct. at 1403. That is, a court must take " a highly deferential look at counsel's performance,  through the deferential lens of § 2254(d)." Id. (internal citation and punctuation omitted).
Where Strickland governs the constitutional question, a harmless error analysis need not be performed, because a showing of actual prejudice, which is a reasonable probability that the outcome would have been different, is enough to find the error harmful. Walker v. Martel, 709 F.3d 925, 939 n.4 (9th Cir. 2013). However, where a federal district court is reviewing the underlying constitutional issue, without the Strickland overlay, Brecht is the appropriate standard to use.
As the Court will explain, under the facts and circumstances of this case, Petitioner cannot show that his right to testify at trial was violated, and, even assuming that he can, he cannot prevail on habeas corpus review under the Brecht "substantial and injurious effect" standard. Nor can Petitioner prevail under the Strickland actual prejudice standard when his claim is cast as an ineffective assistance claim.
B. State Court Proceedings and Idaho Court of Appeals's Decision
Petitioner was represented by Seattle attorney David Marshall and Idaho attorney Sunil Ramalingam at both trials. The failure-to-testify claim was the subject of an evidentiary hearing in Petitioner's post-conviction proceedings.
At the post-conviction hearing, Petitioner testified that his counsel had not informed him that he, as the defendant (rather than the defense attorneys), had the right to make the ultimate decision whether he would testify at trial. (State's Lodging C-2, p. 26.) His lawyers did not contradict that testimony. The state district court reviewed all of the circumstances of the case to determine whether-despite the failure of counsel to verbalize to Petitioner that the ultimate decision rested with him-Petitioner knew he had that right. There is no United States Supreme Court precedent particularly supporting Petitioner's argument that, even though he knew he had the right to testify, the lawyers' failure to verbalize the ultimate decision-making power to the client automatically requires a grant of the writ. Therefore, the Court looks at the totality of the record to determine whether Petitioner knowingly, voluntarily, and intelligently waived the right to testify at trial in the context of his choice to be represented by counsel, as Johnson v. Zerbst instructs.
At the evidentiary hearing, Petitioner testified:
I knew I had a right to testify, but my understanding all the way even through the second trial is whatever happened the decisions for whatever goes on in my case is my attorneys [sic]. He makes the ultimate decision. I mean, he's - you pay him to make the proper decisions in the case. I knew I have a right, but he's the decision maker as to what needs to be done or what's best to be done in a case.
(State's Lodging C-2, pp. 13-14.)
Petitioner testified that his belief that the lawyers were to make the final decision on whether he testified at trial was based either on television or from his observation that the attorneys were "in charge" in court, rather than from anything his attorneys told him. (State's Lodging C-2, pp. 13-14.) He admitted that his attorneys never told him it was their decision whether he would testify, nor did they state to him that they were refusing to put him on the stand. ( Id., pp. 40-41, 46.) Rather, when Petitioner told his attorneys that he wanted to testify, they (1) expressed concern because of his prior convictions and a perjury allegation arising from child protection proceedings regarding abuse of his daughter, (2) indicated that the attorneys would meet and discuss whether he should testify, and (3) told Petitioner they would inform him of their collective decision as to whether he should testify.
Despite Petitioner's current position that he really wanted to testify, he never decided to testify in contravention to what his counsel had decided was best for his defense, and he never attempted to fire his attorneys. (State's Lodging C-2, p. 42.) Neither did Petitioner notify the trial judge that his attorneys would not allow him to testify. ( Id. ) On rebuttal at the post-conviction hearing, Petitioner clarified that "neither Mr. Marshall nor Mr. Ramalingam ever told [Petitioner], no, you may not testify." ( Id., p. 46.)
Both of Petitioner's counsel, David Marshall and Sunil Ramalingam, testified that they advised Petitioner not to testify because it would be devastating to his case, and the prosecutor would be able to impeach him and destroy his defense. (State's Lodging C-2, pp. 48 to 69.) On examination, lead counsel Mr. Marshall testified as follows:
Q: and DID [pETITIONER] EVER INSIST TO YOU OR DEMAND OF you that he testify?
Q. Did you ever tell him that you were refusing to let him testify?
Q. And to - to your knowledge at least did Mr. Ramalingam ever say Mr. Rossignol cannot testify?
( Id., p. 55.)
On examination at the post-conviction hearing, second-chair counsel Mr. Ramalingam testified:
Q. And did [Petitioner] ever state to you that he insisted to testify?
A. He stated to me that he was very upset that he wasn't going to be able to testify; that we didn't want him to testify. I know he didn't like that, but I thought he understood why we had come to that decision. I don't think it made him happier, but I thought he had understood that.
* * *
Q. If Mr. Rossignol had maintained to you his intent to testify that he insisted, if you will, that he testify would you have let him testify.
A. I think we had to.
Q. So ultimately that's a yes?
( Id., pp. 67-78.) Mr. Ramalingam further testified that, on the night before the last day of trial: "Don made his feelings very clear to me that he wanted to testify, and I told him why we didn't want him to." ( Id., p. 69.)
Mr. Marshall, lead counsel with about 20 years of experience as a criminal defense attorney and 50 jury trials under his belt, testified that he had never prevented a criminal defendant from testifying nor told a defendant it was not the defendant's choice whether to testify. ( Id., pp. 48-51.)
On post-conviction review, the state district court analyzed and decided the claim not as an ineffective assistance of counsel claim, as it was pleaded, but as a claim of whether Petitioner waived or was denied his constitutional right to testify at trial. (State's Lodging C-1, pp. 232-33.)
In a written memorandum decision issued after the post-conviction hearing, the state district court determined: "I do find that the facts of this case show Mr. Rossignol waived his right to testify." This finding was based on several facts: (1) Petitioner "knew he had the right to testify"; (2) the court "personally informed him during his arraignment that he had the right to testify"; (3) Petitioner was "clearly not the type of person to give in when he believes somebody is obstructing his rights"; (4) Petitioner previously had asserted, without any reticence, that the court was denying him his rights; (5) the trial record reflected that Petitioner constantly conferred with counsel throughout trial and throughout the post-conviction hearing; (6) Petitioner never testified that either counsel told him he could not testify at trial; and (7) Petitioner characterized the relationship between himself and counsel as one in which he deferred to their decision-making because he was paying them to make the right decisions for him. (State's Lodging C-1, pp. 232-33.)
The state district court also made a credibility determination: "I simply do not believe that a man that has repeatedly shown himself to be assertive and intimately involved with his own trial strategy, even interrupting his lawyer while his lawyer cross-examines an opposing witness, would not have asserted his known right to testify if he wished to." (State's Lodging C-1, p. 234.) The state district court further found that "although Mr. Rossignol did ...