UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA
March 15, 2012
STANLEY J. MUTE,
The opinion of the court was delivered by: Scott A. Oravec United States Magistrate Judge
FINAL REPORT AND RECOMMENDATION REGARDING PETITIONER'S SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS (Dkt. 45), MERIT BRIEF (Dkt. 122) AND MOTION FOR EVIDENTIARY HEARING (Dkt. 133)
Stanley Mute was convicted of two counts of sexually assaulting his girlfriend, M.E., as well as one count of assaulting M.E.'s brother, Herman. After litigating a number of claims in state court, Mute filed a petition for a writ of habeas corpus in federal court. Two of Mute's three claims were dismissed because Mute failed to raise them in any state court proceeding. The remaining claim is that the relationship between Mute and his attorney had broken down to the point where Mute was effectively denied his right to counsel, Docket 122. Mute has also requested an evidentiary hearing, at Docket 133, claiming that he should be able to develop additional facts supporting this claim.
1. Did the Alaska Court of Appeal's opinion in "Mute I"*fn1
result in a decision that was contrary to, or an unreasonable
application of, clearly established Federal law as determined by the
Supreme Court of the United States?
2. Did the Alaska Court of Appeal's opinion in "Mute I"result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding?
3. Is Mute entitled to an evidentiary hearing to develop the factual issues underlying his claims?
FINDINGS OF FACT*fn2
1. Underlying Criminal Offense and Charges
Stanley Mute lived in Napaskiak, a Yupik village a few miles away from
Bethel, Alaska, with his girlfriend, M.E.*fn3 On
November 17, 1995, Mute, M.E., and M.E.'s brother, Herman, were
drinking alcohol.*fn4 Mute and M.E. began to argue,
and when Herman tried to intervene, Mute and Herman fought.*fn5
Herman's arm was broken as a result of the
altercation.*fn6 Herman left the residence to get help
removing the children from the household.*fn7 Sometime
after Herman left, M.E. was severely injured.*fn8 Mute
was arrested, and charged with several offenses, including two counts
of sexual assault against M.E., one count of simple assault against
Herman, and one count of kidnapping.*fn9
2. Criminal Trial
At the beginning of his trial, Mute objected to being represented by
his court-appointed attorney, Victor Carlson.*fn10
Mute claimed, among other things, that Carlson did not file certain
motions that Mute wanted to file. But when asked what those motions
were, Mute could not identify them, or even explain his specific
concern with Carlson's pre-trial planning and strategy.*fn11
Mute did claim that he felt Mr. Carlson was not providing him
a zealous defense.*fn12 Mute stated that he and his
attorney had not discussed any defense strategy, and disagreed about
calling Paul Mute (Stanley's brother) as a witness.*fn13
The trial court judge denied Mute's motion for a new
attorney, and indicated that she would appoint counsel to investigate
Mute's claims at the conclusions of the trial if he was still unhappy
with Carlson's performance.*fn14 Towards the
conclusion of the trial, Mute objected to Carlson's efforts to
subpoena M.E. to testify, because their child was sick and M.E. did
not want to fly to Bethel to testify.*fn15 After M.E.
was eventually brought to Bethel, she refused to testify, and Mute
informed both Carlson and the court that he would refuse to testify.
Mute also said that he did not want Carlson to call his brother, Paul
Mute, as a witness.*fn16
At this point, both sides presented their closing arguments; after closing arguments were complete, Mute changed his mind and decided that he wanted himself and Paul to testify. This request was denied by the judge, who noted that the time for Mute to present evidence had passed.*fn17 Mute was convicted by the jury of one count of first-degree sexual assault and one count of second-degree sexual assault.*fn18 He was also convicted of one count of assault for the altercation with Herman.*fn19 After the jury had returned its verdict, Mute told the judge that he wanted to file a motion for post-conviction relief.*fn20 The trial court judge appointed counsel to investigate Mute's claim, and that counsel represented Mute in his direct appeal.*fn21
3. Direct Appeal ("Mute I")
Mute's convictions were affirmed on direct appeal.*fn22
Mute's counsel did not file a Petition for Hearing with the
Alaska Supreme Court.*fn23 Mute filed a pro se
Petition for Hearing in the Alaska Supreme Court on September 29,
1998.*fn24 The Petition was denied on December 28,
4. State Post-Conviction Proceedings
Mute, again represented by appointed counsel*fn26 , filed an application for post-conviction relief in state court on December 27, 1996.*fn27 The application was dismissed on October 27, 1997.*fn28 The dismissal was appealed to the Alaska Court of Appeals.*fn29 The Court of Appeals denied the appeal on January 10, 2001.*fn30 No Petition for Hearing was filed in the Alaska Supreme Court.*fn31
Mute filed a second application for post-conviction relief.*fn32 This second application was denied.*fn33 An appeal was filed with the Alaska Court of Appeals.*fn34 The Court of Appeals again affirmed the lower court.*fn35 Mute filed a Petition for Hearing in the Alaska Supreme Court on December 28, 2007, which was later denied.*fn36
5. Federal Habeas Corpus Proceedings
a. Petition and First Amended Petition
On April 15, 2008, Mute filed a Petition for Habeas Corpus in the U.S. District Court for the District of Alaska.*fn37 Mute filed a motion to be appointed counsel, which was granted on April 24, 2008.*fn38 Mute's counsel filed an Amended Petition on September 15, 2008.*fn39 Schmidt filed a motion to dismiss the petition on December 23, 2008, alleging that Mute failed to exhaust his state remedies as required by 28 U.S.C. § 2254(b)(1).*fn40 Mute filed a response in opposition on February 11, 2009.*fn41 Schmidt moved to withdraw the motion to dismiss on June 9, 2009.*fn42 Magistrate Judge Oravec granted the motion to withdraw on July 15, 2009.
b. Second Amended Petition and Motion to Dismiss
Mute filed a second amended petition on April 24, 2009.*fn43
Schmidt filed a second motion to dismiss on August 28, 2009,
claiming that Mute procedurally defaulted his claims because they were
never presented to the Alaska state courts.*fn44 Mute
filed an opposition on December 2, 2009. Magistrate Judge Oravec filed
an Initial Report and Recommendation
denying the motion to dismiss as to the first ground for habeas
relief, but granting the motion to dismiss as to the second and third
grounds.*fn45 Both Mute and Schmidt filed objections
to the Report and Recommendation.*fn46 Magistrate
Judge Oravec issued a Final Report and Recommendation on September 2,
2011, which addressed the objections filed by the parties but did not
alter the recommendations to the District Court.*fn47
c. Interlocutory Appeal
Schmidt filed a Motion for De Novo Review of the Final Report and Recommendation.*fn48
Mute filed a Response in Opposition on September 19, 2011.*fn49
Judge Beistline, after conducting a de novo review, concurred
with Magistrate Judge Oravec, and dismissed the second and third
grounds for habeas relief, but denied the motion to dismiss as to the
first ground.*fn50 Schmidt filed a motion to stay the
proceedings pending interlocutory review of the order denying the
motion to dismiss.*fn51 Schmidt filed a Response in
Opposition on October 17, 2011.*fn52 Judge Beistline
denied the Motion to Stay on November 2, 2011.*fn53
Schmidt filed a Motion for Certification of Issues for Interlocutory
Review as required by 28 U.S.C. § 1292(b) on November 18,
Mute filed a Response in Opposition on November, 23, 2011.*fn55
Judge Beistline granted the motion for certification on
December 6, 2011.*fn56
d. Merits Brief
Mute filed his merits brief on November 20, 2011.*fn57
Schmidt filed his merit brief on December 29, 2011.*fn58
Mute also filed a motion for an evidentiary hearing on
December 27, 2011.*fn59 Schmidt has not filed an
opposition to the motion for hearing.
CONCLUSIONS OF LAW
1. The Antiterrorism and Effective Death Penalty Act Limits the Ability of the District Court to Grant a Writ of Habeas Corpus when the Petitioner's Claims were Adjudicated on the Merits in State Court.
In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA),*fn60 legislation which "introduced a myriad of exceedingly complex procedural requirements. that a petitioner must satisfy in order to obtain merits review of claims set forth in a federal habeas petition."*fn61 Prior to AEDPA, state court interpretations or applications of federal law were not binding in federal habeas proceedings.*fn62 One of the primary changes in AEDPA is that a writ of habeas corpus ".shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the 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."*fn63
When the State court*fn64 decides a petitioner's claim on the merits, the federal district court is limited to the record before the state court,*fn65 and may only grant habeas relief if the requirements of § 2254(d) are satisfied. However, § 2254(d) does not apply if the State court did not decide the claim on the merits.*fn66 In that case, the district court should review the claim de novo.*fn67 In reviewing the record before the state court, the District Court is limited to the evidence and arguments presented to the state court that adjudicated the claim on the merits.*fn68
Thus, the District Court may not consider any evidence or arguments not presented to the highest state court that adjudicated the petitioner's claims on the merits.*fn69
2. The District Court is Limited to the Facts and Arguments Made in Mute's Direct appeal.
In this case, the highest state court to adjudicate Mute's claim on
the merits was the Alaska Court of Appeals during Mute's direct
appeal.*fn70 During this appeal ("Mute I"), the Court
of Appeals only considered the issue of whether Mute was denied his
right to counsel under the Sixth Amendment when the state Superior
Court refused to remove Carlson after Mute alleged the attorney-client
relationship had broken down.*fn71 The Court of
Appeals did not consider the majority of Mute's present claims, namely
that Carlson's performance fell below an objectively
reasonable standard under Strickland v. Washington.*fn72
In fact, the Court of Appeals specifically noted that "Mute
is currently litigating a post-conviction relief action based on the
assertion that Carlson failed to provide him effective
This Report and Recommendation will be limited to determining if the breakdown in the relationship between Mute and Carlson, and the trial court's subsequent refusal to replace Carlson, constituted a denial of Mute's right to counsel under the Sixth Amendment. Mute's arguments, both in his Second Amended Petition and in his merits brief focus primarily on the argument that Carlson's representation was inadequate under Strickland. For example, the opening sentence of Mute's merits brief states "The standard for ineffectiveness of counsel which the Supreme Court set out in Strickland v. Washington, 466 U.S. 668 (1984), established a two-prong test i.e., that counsel's fell below an objectively reasonable standard, and that his performance prejudiced the outcome of the trial."*fn74 However, for the reasons above, this Report and Recommendation will not address Mute's Strickland claims.
3. The State Court Decision in "Mute I" Did Not Violate Clearly Established Federal Law as Decided by the United States Supreme Court.
In order to grant Mute's petition for a writ of habeas corpus, I must find that the adjudication of Mute's claim in state court resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the U.S. Supreme Court, or that it 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.*fn75 The only U.S. Supreme Court case cited by Mute, in either his Second Amended Petition or his merit brief, is Strickland, a case dealing with the issue of Carlson's performance (which is an issue not considered here).*fn76 Thus, Mute's petition may not be granted on the basis of §2254(d)(1).
4. The State Court Decision was not Based on an Unreasonable Determination of the Facts in Light of the Evidence Presented in the State Court Proceeding.
The other proposed basis for granting Mute's petition, §2254(d)(2) is equally unavailing. Mute does not allege, in either his Second Amended Petition or his merit brief, that the Alaska Court of Appeals in Mute I made any unreasonable factual determinations. Even taking a de novo review of Mute I, none of the Court of Appeals' findings of fact appear to be unreasonable. The only factual determination made by the Court of Appeals was that the relationship between Mute and Carlson had not deteriorated to the point where Carlson was incapable of effective communication or objective decision-making.*fn77
In reviewing the record before the Court of Appeals in Mute I, it does not appear that the trial court's decision not to replace Carlson denied Mute of his right to counsel. It is axiomatic that indigent defendants are entitled to appointed counsel.*fn78 However, indigent defendants are not entitled to have a "meaningful relationship" with their appointed counsel.*fn79 In this case, the relationship between Mute and Carlson may have been strained, but the record does not show that the factual determination of the Alaska Court of Appeals was unreasonable.
5. Mute is not Entitled to a Hearing because he did not Develop the Factual Basis for his Claim during State Court Proceedings.
Mute has requested that the District Court hold an evidentiary hearing to establish the facts necessary to decide his motion for a writ of habeas corpus.*fn80 Mute claims that "[t]here are facts to be determined in order to rule on Defendant's motion."*fn81 AEDPA strictly limits the ability of the federal District Court to hold an evidentiary hearing "[i]f the applicant has failed to develop the factual basis of a claim in State court proceedings."*fn82 The Court may only hold an evidentiary hearing if the claim relies on a new rule of constitutional law which was made retroactive by the Supreme Court, or relies on a factual predicate that could not have been previously discovered through the exercise of due diligence.*fn83 The Petitioner must also show by clear and convincing evidence that, but for the constitutional error, no reasonable factfinder would have found the Petitioner guilty.*fn84
In this case, Mute is not entitled to an evidentiary hearing because he did not develop the factual basis for his claims in State court, and none of the §2254(e) exceptions apply to his case. Mute now claims that there are facts that need to be determined in order to rule on his motion. Specifically, he cites the substance of the conversations between him and Carlson, the preparation and strategy behind Carlson's actions and trial, and Mute's allegation that Carlson failed to put on a defense.*fn85 However, these are all facts that Mute could (and should) have developed in a prior state court proceeding. Mute offers no justification for his failure to do so, not does he explain why his request for an evidentiary hearing isn't barred by § 2254(e). Thus, Mute is only entitled to an evidentiary hearing if he falls into one of the two exceptions. The first exception, a claim that relies on a new, retroactive rule of constitutional law, is not relevant here. Mute makes no claim to relief under any new constitutional rule. The second exception, newly discovered facts that could not have been previously discovered, is also unavailable. All of the facts that Mute now seeks to develop relate to events that occurred during his criminal trial in 1996. Mute makes no showing that any of these facts could not have been previously discovered. Thus, § 2254(e) serves to bar Mute from being granted an evidentiary hearing.*fn86
Mute is not entitled to a writ of habeas corpus because his claim was adjudicated on the merits in state court, and he does not qualify for relief under 28 U.S.C. §2254(d). Furthermore, Mute is not entitled to an evidentiary hearing under 28 U.S.C. §2254(e)(2). Therefore, I recommend that Mute's motion for an evidentiary hearing be DENIED. I also recommend that Mute's petition for a writ of habeas corpus be DENIED.
IT IS SO RECOMMENDED.
SCOTT A. ORAVEC
Pursuant to Local Magistrate Rule 6(a), a party seeking to object to this proposed finding and recommendation shall file written objections with the Clerk of Court no later than NOON on March 23, 2012 as any objections will be considered by the district judge. The failure to object to a magistrate judge's findings of fact may be treated as a procedural default and waiver of the right to contest those findings on appeal.*fn87 The Ninth Circuit concludes that a district court is not required to consider evidence introduced for the first time in a party's objection to a magistrate judge's recommendation.*fn88 Objections and responses shall not exceed five (5) pages in length, and shall not merely reargue positions presented in motion papers. Rather, objections and responses shall specifically designate the findings or recommendations objected to, the basis of the objection, and the points and authorities in support. Response(s) to the objections shall be filed on or before NOON on March 30, 2012. Reports and recommendations are not appealable orders. Any notice of appeal pursuant to Fed.R.App.P. 4(a)(1) should not be filed until entry of the district court's judgment.*fn89