The opinion of the court was delivered by: Deborah M. Smith United States Magistrate Judge
INITIAL REPORT AND RECOMMENDATION REGARDING BRIEF ON THE MERITS OF THE AMENDED PETITION FOR HABEAS CORPUS
I. PETITION PRESENTED...................... Page 1
II. FACTUAL AND PROCEDURAL BACKGROUND............ Page 3
A. State Court Proceedings
1. First Motion for Post-Conviction Relief: Alleged Ineffective Assistance of Trial Counsel
2. Direct Appeal of Conviction
3. Second Motion for Post-Conviction Relief: Alleged Ineffective Assistance of Appellate Counsel
B. Federal Habeas Proceedings
III. STANDARD OF REVIEW FOR HABEAS CORPUS RELIEF........ Page 8
A. Section 2254(d)(1) Standard
B. Applicable Federal Law Regarding Ineffective Counsel
1. Deficient Performance by Counsel
IV. ANALYSIS.............................. Page 13
A. Ineffective Assistance of Appellate Counsel
1. The Decision was not Contrary to Established Federal Law
2. The Decision was not an Unreasonable Application of Federal Law
a. No violation of Strickland
b. Not an Unreasonable Application
B. Exhaustion of Petitioner's Ineffective Assistance of Appellate
V. PETITIONER'S REQUEST FOR AN EVIDENTIARY HEARING..... Page 19
VI. CONCLUSION.............................. Page 20
Paul T. Stavenjord was convicted of two counts of first-degree murder for shooting Carl H. Beery and a person listed in the record solely as D.R. in 1997. Stavenjord v. State, No. A-8966, 2006 WL 120181 at *1 (Alaska App. Jan. 18, 2006) (unpublished) (hereinafter Stavenjord II). Petitioner seeks habeas corpus relief pursuant to 28 U.S.C. § 2254.
Originally, Stavenjord filed his petition on grounds that his conviction was obtained by use of evidence gained by an unconstitutional search and seizure because the warrant lacked probable cause. (Doc. 1 at 5). This Fourth Amendment claim was dismissed by the District Court (See Doc. 17), but his petition was allowed to proceed under a claim of ineffective assistance of appellate counsel. (Doc. 19). In his amended habeas petition, Stavenjord argues that his Sixth Amendment constitutional right to effective assistance of counsel was violated at the state appellate level.
Stavenjord argues that appointed appellate counsel Margi A. Mock (Mock) and Wallace H. Tetlow (Tetlow) were ineffective in their representation of petitioner when they: (a) failed to investigate the constitutionality of evidence gained by Alaska State Troopers' search and seizure from petitioner's person and property, and (b) failed to present to the Alaska Court of Appeals the Fourth Amendment search and seizure issue. Moreover, Stavenjord argues that these failures are an example of deficient performance of counsel and that, but for these unreasonable errors, the result at the appellate level would have been different. Stavenjord, thus, posits that Mock and Tetlow's representation was so lacking that it, "fell below an objective standard of reasonableness," and that this deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). The state opposes the petition. First, it addresses the merits of Stavenjord's ineffective assistance of counsel claim. It argues that Stavenjord has not shown, and cannot show, that the Alaska courts' decisions-concluding he did not establish a prima facie case that he was denied effective assistance of appellate counsel-were contrary to, or involved unreasonable applications of, clearly established Supreme Court precedent. Moreover, it argues that the Alaska courts correctly determined Stavenjord failed to present any evidence showing his appellate counsels' decision to pursue only the change of venue and Malkin claims (see infra) fell below a standard of objective reasonableness or that he was prejudiced by his appellate counsels' conduct. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
Second, the state maintains that Stavenjord's petition should be dismissed because he is procedurally barred from asserting the legal theory he relies upon. The state claims that Stavenjord originally averred his appellate attorneys were ineffective because they did not follow his instructions when choosing the arguments to assert on direct appeal. Petitioner now asserts his appellate attorneys' assistance was ineffective for failing to recognize and argue his Fourth Amendment search and seizure claim based on lack of probable cause.
II. FACTUAL AND PROCEDURAL ...