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Stock v. Frink

United States District Court, D. Montana, Helena Division

April 30, 2018




         United States Magistrate Judge John Johnston entered his Findings and Recommendation and Order on August 28, 2017, recommending that Petitioner Donald Rudolph Stock's ("Stock") two surviving habeas claims be denied for lack of merit. (Doc. 39 at 16.) Stock timely filed an objection and is therefore entitled to de novo review of the specified findings and recommendations to which he objects. 28 U.S.C. § 636(b)(1). Those portions of the findings and recommendations not specifically objected to will be reviewed for clear error. 28 U.S.C. § 636(b)(1)(A); McDonnell Douglas Corp. v. Commodore Bus. Mack, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error exists if the Court is left with a "definite and firm conviction that a mistake has been committed." United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000) (citations omitted). For the reasons stated below, Judge Johnston's Findings and Recommendations are adopted in full.

         Discussion [1]

         Pursuant to this Court's August 5, 2016 Order (Doc. 28) adopting Judge Johnston's February 9, 2016 Findings and Recommendations and Order (Doc. 17), the majority of the claims Stock included in his Petition for Writ of Habeas Corpus (Doc. 1) were either denied or dismissed. Nonetheless, Stock was permitted to proceed with two facets of his claim 2 which, as labeled by Judge Johnston, are referred to as Claims 2(e) and 2(g). (Doc. 17 at 10.) Claim 2(e) alleges ineffective assistance of trial counsel for his failure to retain a DNA expert while Claim 2(g) alleges ineffective assistance of trial counsel for his failure to present testimony from a medical expert. (Docs. 17 at 10; 39 at 1.)

         Judge Johnston determined that both Claims 2(e) and 2(g) were procedurally defaulted and that, in order to excuse this default under Martinez v. Ryan, 566 U.S. 1 (2012), Stock needed to demonstrate that these claims were substantial and that his post-conviction counsel was ineffective. (Doc. 17 at 25-26.) Because the record was insufficiently established to allow Judge Johnston to determine whether these claims were substantial, Stock was permitted to proceed with both claims and to develop them further through discovery. (Id. at 34, 37.) After these claims had been further developed, Judge Johnston issued the Findings and Recommendations presently before the Court. (Doc. 39.)

         In order to establish cause to overcome his procedural default under Martinez, Stock must show: (1) the underlying ineffective assistance of trial counsel claim is substantial; and (2) he was not represented or had ineffective counsel during his post-conviction relief proceedings.[2] Dickens v. Ryan, 740 F.3d 1302, 1319 (9th Cir. 2014). The first prong of the test requires that "the underlying ineffective assistance of counsel claim be 'substantial.' Under that standard, an underlying claim is 'insubstantial' if it 'does not have any merit or ... is wholly without factual support.'" Smith v. Ryan, 823 F.3d 1270, 1296 (9th Cir. 2016) (quoting Martinez, 566 U.S. at 15-16). To assess whether a petitioner has satisfied the first prong required to excuse procedural default, courts "conduct a preliminary assessment of [the] underlying claim." Id.

         Judge Johnston recognized that both the test for excusing Stock's procedural default and his underlying claim require the Court to "turn a Strickland analysis." (Doc. 39 at 2.) However, in conducting the preliminary assessment, Judge Johnston determined that the underlying claims for ineffective assistance of counsel did not have merit under Strickland v. Washington, 466 U.S. 668 (1984). Consequently, Judge Johnston bypassed the Martinez substantiality and ineffective assistance of post-conviction relief counsel analysis and recommended that this Court dismiss the underlying claims on their merits. (Doc. 39 at 2.) The Court agrees that, because Stock cannot satisfy the requirements of Strickland in regards to his underlying claims, the Court need not reach an analysis of whether Stock has satisfied his burden to excuse his procedural default under Martinez. Further, judicial economy supports denying Stock's underlying claims on their merits.

         I. The merits of the underlying claims

         Under Strickland, Stock must show two things: (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. Hardy v. Chappell, 849 F.3d 803, 818 (9th Cir. 2016) (citing Strickland, 466 U.S. at 687). To establish deficient performance, Stock must "show that 'counsel's representation fell below an objective standard of reasonableness.'" Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 688). "A court considering a claim of ineffective assistance must apply a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance." Id. (quoting Strickland, 466 U.S. at 689). Stock must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. To establish prejudice, Stock must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. It is not enough for Stock "to show that the errors had some conceivable effect on the outcome of the proceeding, " he must show that counsel's errors were "so serious as to deprive [him] of a fair trial, a trial whose result is reliable." Id. at 687, 693.

         Since both prongs of the test must be satisfied, a court need not address "both components of the inquiry if the defendant makes an insufficient showing in one." Strickland, 466 U.S. at 697. Further, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Id.

         A. Claim 2(e): Failure to retain a DNA expert

         Stock was permitted to further develop the facet of his claim alleging that his trial counsel, Chad Wright ("Wright"), was ineffective for failing to retain a DNA expert to testify regarding the findings made by the State's DNA expert concerning an analysis of E.S.'s bedding materials. Stock deposed Wright and determined that Wright had actually retained a DNA expert, Elizabeth A. Johnson ("Johnson"), but ultimately decided not to call her at trial.

         Wright disclosed that Johnson had reviewed the DNA testing and report before concluding that the testing had been performed properly and that she agreed with the results. Moreover, there was no indication to Johnson that the State's experts had mischaracterized the DNA evidence. (Doc. 27-1 at 186-87.) Nonetheless, Wright indicated that Johnson had told him that because Stock's DNA was on E.S.'s bedding "at least in some part, that the jury would be swayed by that even though there was no connection between [E.S.'s] DNA that they found on the bedding, they could have just overlapped randomly is what she's saying." (Id. at 54.) Johnson and Wright apparently discussed how the prosecution "could expand [the DNA evidence] to mean completely opposite of what [it] did actually mean." (Id. at 57.)

         Judge Johnston determined, and this Court agrees, that Wright's failure to call Johnson did not constitute ineffective assistance of counsel. Judge Johnston found that the concerns expressed in Johnson's conversations with Wright were adequately aired through Wright's cross-examination and re-cross-examination of Megan Ashton ("Ashton"), one of the State's DNA experts, and re-emphasized in Wright's closing argument. (Doc. 39 at 5-6.)

         Wright elicited testimony from Ashton including: that Stock could not be conclusively identified in the tested samples; that at least three individuals contributed to the DNA profile in some of the samples; that the only sperm cells identified in the samples came from E.S.; that her testing could not reveal how a mixture of two sources of DNA came to be deposited on the sample, whether the DNA was mixed together at the time of deposit or one superimposed or deposited upon the other; and that Stock could not be excluded from either the areas stained by E.S.'s sperm cells or the areas outside of those stains. (Doc. 12-5 at 42-43.) Further, Ashton testified on re-cross that Stock's DNA could have been deposited from the contact of the bedding with Stock's skin as a result of Stock changing E.S.'s bedding, and that "any sort of skin to item contact would definitely increase the chance of DNA transfer." (Id. at 45.) Importantly, Wright elicited Ashton's admission that had this sort of DNA transfer occurred from changing the bedding prior to E.S. ejaculating onto the bed, the result would be indistinguishable from the profile resulting from both DNA deposits being made during a sexual act. (Id. at 44.)

         As Judge Johnston found, Wright emphasized these points during his closing argument, clarifying what the DNA evidence could show to the jury. (Doc. 39 at 6.) Wright stated:

Instead, they focus on the DNA on [E.S.'s] mattress, even though it's the same-in the stains, the same amount of DNA in the stains as it is outside of the stains.... Because skin is only relevant-in this circumstance, with [Stock] making the bedding, doing the laundry, changing all these things, skin is only relevant if it's associated with the stain. And those experts came in and said, I can't tell you because the proportions are the same inside the stain, the proportion [sic] are the same outside the stain. That means the skin could have been there, the stain came on top.

         (Doc. 12-7 at 51.) In his deposition, Wright stated that he thought the DNA evidence was "neutral." Further, Wright stated that "this idea that [Stock's] DNA could have been overlapped by [E.S.'s] semen that came in later.... was pretty simple." (Doc. 27-1 at 88.)

         Based upon all of this evidence and the fact that there was no dispute with the actual findings and testimony presented by the State's DNA experts, Judge Johnston determined that Wright's conclusion that Johnson's testimony was unnecessary was objectively reasonable for purposes of Strickland. (Doc. 39 at 6.) "In short, " Judge Johnston concluded, "Stock has failed to demonstrate that Wright's performance fell 'outside the wide range of professionally competent assistance.'" (Id. at 8 (quoting Strickland, 466 U.S. at 690).) Although Judge Johnston correctly determined that he need not analyze whether or not Stock had satisfied the second prong of Strickland-prejudice-Judge Johnston found that Stock could not show the requisite prejudice. (Id. at 13-14 (citing Hendricks v. Calderon, 70 F.3d 1032, 1039 (9th Cir. 1995)). Noting that Johnson agreed with the findings and trial testimony given by the State's DNA experts, Judge Johnston concluded that additional expert testimony relating to the undisputed DNA testing "may not only have been unnecessary, it is unclear whether such testimony would have actually been favorable to Stock." (Id. at 14.) Consequently, Judge Johnston determined that this claim should be denied as "conclusively lacking in merit." (Id. at 15.)

         There are two things worth noting at this juncture. First, based upon her concern that the DNA evidence could be misconstrued, Johnson suggested that Wright file a motion for the DNA evidence to be excluded under Federal Rule of Evidence 403. (Doc. 27-1 at 54.) Although Judge Johnston has discussed why the absence of the suggested motion to exclude does not constitute ineffective assistance by Wright, and although the parties have now argued their positions regarding Stock's claim that this failure does constitute ineffective assistance, the Court will not address this issue further. (Doc. 39 at 6-7.) This issue has not been raised previously and is, therefore, not properly before the Court. The procedurally defaulted claim at issue is whether Wright provided ineffective assistance in failing to call a DNA expert at trial, not whether Wright was ineffective for failing to heed the advice of his retained DNA expert to file a Rule 403 motion. Second, Stock has again attempted to inject his claim that Wright was ineffective for failing to object to the State's statement during closing argument that Stock's DNA was "all over" the bed. This claim has already been denied and Stock will not be allowed to "make an end run ...

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