United States District Court, D. Alaska
ORDER RE PENDING MOTIONS
SHARON
L. GLEASON UNITED STATES DISTRICT JUDGE
This is
a habeas corpus action brought by Petitioner Suzette Welton
pursuant to 28 U.S.C. § 2254(d). Ms. Welton's First
Amended Petition is at Docket 27.[1] Ms. Welton makes two claims
of ineffective assistance of counsel.[2] Claim 1 centers on her trial
counsel's decision not to cross-examine Jeremiah Welton
regarding prior statements about the use of sleeping
pills.[3] In Claim 2, Ms. Welton argues that her
trial counsel was ineffective for failing to consult with a
cause-and-origin fire expert.[4]
Currently
before the Court are two motions. At Docket 28 is Ms.
Welton's (Renewed) Motion to Stay and Hold in Abeyance
First Amended Petition for Writ of Habeas Corpus. Respondent
opposed the motion at Docket 31.
At
Docket 29 is Respondent's Motion to Dismiss First Amended
Petition. Ms. Welton opposed at Docket 32, to which
Respondent replied at Docket 33.
On
September 4, 2017, at Docket 34, Magistrate Judge Deborah M.
Smith issued a Final Report and Recommendation on the
motions. The Magistrate Judge determined that Ms.
Welton's first claim “has been exhausted because
there are no longer any state remedies available to
her.”[5] The Magistrate Judge added, “This
Court need not decide whether Claim 1 has been procedurally
defaulted because Welton's petition is mixed, and must be
dismissed or stayed unless she elects to delete her
unexhausted claims.”[6]Neither party objected to the Magistrate
Judge's findings with regard to Claim 1.
As to
Claim 2, the parties agree it has not been exhausted as it is
currently before the Alaska Court of Appeals. The Magistrate
Judge concluded that Ms. Welton did not meet the requirements
for a stay of an unexhausted claim set out in Rhines v.
Weber.[7]The Magistrate Judge's analysis focused
on whether Ms. Welton had demonstrated good cause for her
failure to exhaust. Ms. Welton argued that she had
demonstrated good cause because her first post-conviction
relief counsel was ineffective in failing to raise the
ineffective assistance claim as to trial counsel's
failure to consult a cause-and-origin expert.[8] Pointing to the
trial record, the Magistrate Judge noted that the trial judge
had “squarely rejected” the prosecutor's
argument that defense counsel's expert witness was not
qualified to make “actual cause-and-origin
determinations.”[9] Accordingly, the Magistrate Judge was
“unable to find that the trial attorneys' choice to
call Dr. Babrauskas as their only expert regarding the
fire's cause was ineffective under Strickland,
or that Smith was ineffective for failing to allege the
ineffectiveness of trial counsel.”[10] As for the
other requirements for a stay under Rhines, the
Magistrate Judge stated that there was “no indication
in the record that Welton has engaged in intentional dilatory
tactics.”[11] As to whether Ms. Welton's
unexhausted claim was “plainly meritless, ” the
Magistrate Judge declined to rule.[12]
Based
on the foregoing, the Magistrate Judge recommended that the
District Court deny Ms. Welton's Motion to Stay and Hold
in Abeyance at Docket 28. The Magistrate Judge also
recommended that the District Court give Ms. Welton two weeks
to decide whether to delete the unexhausted claim and
litigate the Jeremiah Welton claim. If Ms. Welton declined to
delete the second claim, the Magistrate Judge recommended
that Respondent's Motion to Dismiss at Docket 29 be
granted.[13] At Docket 35, Ms. Welton filed
objections to the Final Report. At Docket 36, Respondent
filed a response to Ms. Welton's objections.
The
matter is now before this Court pursuant to 28 U.S.C. §
636(b)(1), which provides that a district court “may
accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.” A
district court is to “make a de novo determination of
those portions of the [magistrate judge's] report or
specific proposed findings or recommendations to which
objection is made.”[14] But on topics where no
objections are filed, “[n]either the Constitution nor
the statute requires a district judge to review, de novo,
findings and recommendations that the parties themselves
accept as correct.”[15]
Ms.
Welton's objections to the Final Report and
Recommendation maintain that she made the required showing of
good cause so as to warrant a stay under Rhines v.
Weber.[16] In support, Ms. Welton relies on
Hinton v. Alabama, a case in which the Supreme Court
found that a defendant's trial attorney rendered an
unconstitutionally deficient performance.[17] In
Hinton, the defendant's counsel in a murder
prosecution hired an expert with minimal qualifications,
because he mistakenly believed that funding for the expert
was limited to $1, 000. The Court found that that the
attorney's mistaken belief that he was limited to $1, 000
and his failure to discover that he could seek additional
funding amounted to “ignorance of a point of law that
is fundamental to his case[, ] [which] combined with his
failure to perform basic research on that point is a
quintessential example of unreasonable performance under
Strickland [v. Washington, 466 U.S. 668
(1984)].”[18] The Court held “it was
unreasonable for Hinton's lawyer to fail to seek
additional funds to hire an expert where that failure was
based not on any strategic choice but on a mistaken belief
that available funding was capped at $1,
000.”[19]
Here,
Ms. Welton does not argue that her trial counsel's
decision to hire Dr. Babrauskas was based on a mistaken
belief of available funding. Moreover, Dr. Babrauskas held a
Ph.D. in fire protection engineering, had lectured on fire
dynamics at two universities, had developed widely-used
devices and computer programs related to fire research, and
had testified as a fire science expert in approximately two
dozen civil depositions and two civil cases.[20] At Ms.
Welton's trial he was asked whether his expertise
included issues of fire origin and cause. He responded,
“That is very typically a question that's . . .
asked of me, that I must answer. . . . That's what I do
on a routine basis.”[21]
In
Hinton, the Supreme Court stressed that a
lawyer's decision of which expert to retain would rarely
support an ineffective assistance claim: “The selection
of an expert witness is a paradigmatic example of the type of
‘strategic choice' that, when made ‘after
thorough investigation of the law and facts, ' is
‘virtually unchallengeable.'”[22] The Court
added, “We wish to be clear that the inadequate
assistance of counsel we find in this case does not consist
of the hiring of an expert who, though qualified, was not
qualified enough.”[23] Ms. Welton maintains that “Dr.
Babrauskas' experience was laboratory-based and he was
therefore not qualified to critique the methodologies and
conclusions of the state's fire
investigators[.]”[24] But Hinton and
Strickland establish that trial counsel's
decision to rely on Dr. Babrauskas was the “type of
strategic choice” that is “virtually
unchallengeable.” Accordingly, the failure of Ms.
Welton's first post-conviction relief counsel to raise
this issue does not constitute ineffective assistance of
counsel. For the foregoing reasons, based on de novo review,
the Court finds that good cause for the failure to exhaust
has not been established.
Accordingly,
the Court ACCEPTS the Final Report and Recommendation as to
Ms. Welton's Motion to Stay and Hold in Abeyance. The
motion at Docket 28 is DENIED.
As to
Respondent's Motion to Dismiss First Amended Petition at
Docket 29, the Court ACCEPTS the analysis of the Final Report
and Recommendation. The Court FURTHER ORDERS that Ms. Welton
shall have 7 days from the date of this
order in which to decide whether to delete the second,
unexhausted claim (Claim 2) and proceed solely on Claim 1. If
Ms. Welton fails to timely delete Claim 2, the Motion to
Dismiss at Docket 29 will be granted. If Ms. Welton ...