United States District Court, D. Alaska
GARRY R. ARCHEY, JR., Petitioner,
v.
JOHN CONANT, Respondent.
REPORT AND RECOMMENDATION REGARDING MERITS PETITION
FOR WRIT OF HABEAS CORPUS 28 U.S.C. § 2254(D) (DOCKETS
19 AND 39)
SCOTT
A. ORAVEC UNITED STATES MAGISTRATE JUDGE
I.
INTRODUCTION
Before
the court is Petitioner Garry R. Archey's First Amended
28 U.S.C. §2254 Petition for Writ of Habeas
Corpus.[1] He filed a merits brief in support of his
petition.[2] John Conant (“the State
Custodian”) entered an opposition.[3] Archey makes two
arguments. First, he asserts that Alaska unreasonably applied
clearly established Supreme Court Authority when it
adjudicated a Fifth Amendment due process Strickland
ineffective assistance of counsel claim.[4]Second, he claims,
for the first time in his merits brief, that the Alaska Court
of Appeals made an unreasonable determination of the facts in
light of the evidence presented at trial when it adjudicated
Archey's post-conviction relief appeal.[5]
Archey
filed his initial habeas petition in District Court on
November 4, 2015.[6] On November 24, 2015, this Court ordered
counsel appointed to represent Archey and ordered deadlines
for Archey to file an amended petition and for the respondent
to file an answer or response.[7] On November 30, 2015, the Federal
Defender was appointed to represent Archey.[8] On September 26,
2016, Archey, represented by counsel, filed his first amended
petition.[9] The respondent opposed.[10] Archey filed
a reply in support of his first amended petition on November
9, 2016.[11] On August 24, 2017, Archey filed his
merits brief.[12] On October 23, 2017, the state custodian
filed his merits brief.[13] Archey did not file a reply. Neither
party requested oral argument and it was not necessary for
determination of the issues.
For the
reasons set forth below, considering the arguments of each
party, this court RECOMMENDS DENIAL of the Petition.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A.
Pre-Trial.
On
September 8, 2006, the State of Alaska indicted Garry R.
Archey, Jr., on five counts related to the manufacture of
methamphetamine in Soldotna, Alaska.[14] Count I charged
Misconduct Involving a Controlled Substance in the Second
Degree for producing methamphetamine.[15] Counts II,
III, and IV charged Misconduct Involving a Controlled
Substance in the Second Degree for possession of precursor
chemicals, namely red phosphorous, acetone, and iodine, used
for manufacturing methamphetamine.[16] Count V alleged
Misconduct Involving a Controlled Substance in the Fourth
Degree for maintaining a structure to manufacture
methamphetamine.[17]
Archey
entered pleas of not guilty and was represented by Office of
Public Advocacy attorney Hatton Greer.[18] Before going
to trial, Archey moved to dismiss the indictment based on the
prosecutor's statements to the grand jury regarding a
witness's credibility.[19] The trial court denied the
motion; the Alaska Court of Appeals later
affirmed.[20]
Archey's
former girlfriend, Lisa Samson, was also charged with various
drug distribution offenses, and pleaded guilty to two reduced
counts of Misconduct Involving a Controlled Substance in the
Fourth Degree for possession of methamphetamine and for
Maintaining a Dwelling for the Keeping or Distributing of
Controlled Substances.[21] As a condition of her plea agreement,
she agreed to testify at Archey's trial.[22]B. Trial
and Sentencing.
At
trial, the State presented evidence that in 2006, Archey
worked as a handyman for a family friend, Gary
Grover.[23] Grover had two adult step-daughters,
Lisa Samson and her sister Joanna Samson-Sills (Sills),
[24]
who lived in separate residences on Grover's one-acre
Soldotna property. Sills lived in a cabin on the property
with her children.[25] Samson lived in a trailer with a plywood
structure attached to it.[26]
Samson
testified that she and Archey began a romantic relationship
that lasted approximately four months.[27] Archey
sometimes stayed at Samson's trailer.[28] Samson,
Sills, and Archey used crystal methamphetamine during this
time.[29]
Officers
testified that in August 2006, the Soldotna Police Department
reviewed pharmacy drug sales logs and noticed that Archey,
Samson, and Sills had purchased Sudafed frequently, and
police believed that the Sudafed was probably used in
manufacturing methamphetamine.[30] Law enforcement responded to
the Grover property, arresting Samson on outstanding
warrants.[31] Police interviewed Sills, who said that
methamphetamine had been manufactured in Samson's
trailer.[32] Archey, when contacted by police: first,
closed the door of Samson's trailer; next, left the
property to go to a neighbor's house; then asked the
neighbor, Pat Price, to lock Samson's trailer with a
padlock; and finally, after Price returned with police after
reporting that Archey had requested he install the padlock,
Archey fled into the woods.[33] Archey was later arrested for
violating conditions of his parole.[34]
Police
obtained a warrant to search the property, [35] and found a
black duffel bag in a “bear hole” in the ground,
about 30 feet from the back of the main cabin and 40 feet
from Samson's trailer.[36] The bag held equipment and
liquids used in the manufacture of methamphetamine as well as
bi-phase liquids containing methamphetamine.[37] The
prosecution referred to this duffel bag at trial as the
“mobile meth lab.”[38] Police also searched the
trailer and discovered items used in the manufacture of
methamphetamine.[39] The prosecution argued that these items
were Archey's, and that he discarded the bag in the hole
during his flight from police.[40]
The
prosecution presented witness testimony from Lisa Samson and
Sills, among others. Samson testified that she had used
methamphetamine with Archey, though she said she had never
used it before meeting Archey.[41] Samson denied manufacturing
methamphetamine and denied recognizing that certain chemicals
and materials for manufacturing methamphetamine were in her
trailer.[42] Samson admitted purchasing Sudafed,
saying she had because Archey had asked her and her sister to
do it.[43] Sills also admitted purchasing Sudafed
and using methamphetamine.[44] Sills testified that Samson
knew that Archey was using Sudafed to manufacture
methamphetamine.[45]
Samson
testified that she had hidden a black bag once before, when
Archey had gone to jail, unrelated to the methamphetamine
charges, in July 2006.[46] She testified that Archey's
friend “Lester” called to ask her to hide a bag
that was underneath her trailer.[47] Samson and her sister hid
the bag in a hole on the property.[48] Sills's testimony
corroborated the report that the sisters had buried a bag in
a hole in the ground, though according to Sills, the sisters
originally found the bag in the trailer's
bathroom.[49]
During
recross examination by Archey's counsel, Samson
identified “Lester's” last name as
Pentecost.[50] Archey claims in his brief that defense
counsel asserted “on several occasions” that he
would call Pentecost to cast doubt on Samson's and
Sills's testimony that incriminated Archey.[51] The defense
did not promise Pentecost's testimony in his opening
argument.[52] Nor did defense counsel's closing
argument rely on Pentecost, though he mentioned
“Lester” when recounting Samson's and
Sills's testimony about hiding the duffel
bag.[53] After prosecution rested, the defense
made two motions for judgment of acquittal: one as to Count
III, which alleged possession of acetone, a listed prohibited
precursor chemical used in the production of methamphetamine,
and one as to Count V, which alleged maintaining premises-
the black bag-for manufacturing
methamphetamine.[54] The trial court denied both
motions.[55]
The
defense case focused on debunking Samson's claim that
Archey had called her in July 2006 from jail asking her to
hide a black bag. He presented evidence that Archey was in
jail during the time Samson said that Archey had contacted
her indirectly through Pentecost.[56]The defense theory on this
point relied on an assumption that Samson initially told
prosecutors that Archey had called her directly to ask her to
hide the bag when he was in jail.[57] The defense apparently
believed that, at some point before giving testimony, Samson
learned that this statement would not be credible because of
jail rules against calling cell phones. A corrections officer
testified that Archey was not able to call any cell phones
while incarcerated.[58] The defense demonstrated that Archey
would not have been able to call Samson directly from jail
because she did not have a landline.[59] Defense counsel also
attempted to undermine Samson's testimony that a third
party, Pentecost, had called to give her Archey's
directions to hide the bag.[60] However, the defense did not
present Pentecost's testimony at trial.
Whether
Pentecost was actually available to testify at trial came out
several years later. Gordon Pentecost executed an affidavit
on March 1, 2012 relating to his knowledge of Samson and
Archey at the time of Archey's trial.[61] In his
affidavit, he wrote:
I, Gordon Pentecost, also known as Lester Pentecost, being
first duly sworn, depose and state that:
I am personally acquainted with Lisa Samson and Gary [sic]
Archey. I have known them since 2006. During the spring and
summer of 2006, I observed Lisa Samson making methamphetamine
in her residence, the trailer Samson lived in]. It appeared
to me that she was in control of the meth lab at all times.
In addition to the fact that it was located at her residence,
she was the person who operated it, and she made statements
which indicated to me that she believed it to be her property
and under her control.
When Gary [sic] Archey was charged with crimes related to the
lab, I told his attorney, Hatten [sic] Greer, that I had
personal knowledge that the lab really belonged to Lisa
Samson. I told him that, if necessary I would testify for the
defense.
I was available as a witness during Mr. Archey's trial,
but Mr. Greer never called me to testify.[62]
At
around the same time, [63] defense trial counsel also submitted
an affidavit, dated April 19, 2012, detailing his best memory
of the circumstances surrounding his decision whether to call
Pentecost as a witness.[64] Defense counsel could not remember if
he interviewed Pentecost at the time of the
trial.[65] Defense counsel did recall that he spoke
to a local defense attorney about Pentecost, who had
represented a co-defendant of Pentecost's in a recent
case.[66] He recalled that attorney “was of
the opinion that if Mr. Pentecost was facing legal trouble,
he would try to help out the State in hope of getting
consideration on his case.”[67]
In
light of these sworn statements, this court finds that
defense counsel Greer did talk directly to Pentecost at the
time of Archey's trial. Although Greer doesn't
remember whether they talked or not, Pentecost states that
they had. Greer in 2012 no longer had access to his case
files because the principal in his former firm had moved out
of state.[68] Pentecost's unequivocating statement
appears credible, and Greer's lack of memory is
reasonable given the time that had passed.
At
trial, the state sought to present a rebuttal case. To rebut
the suggestion that Archey did not contact, nor arrange to
have someone contact, Samson from jail, Alaska requested DOC
recordings of inmate calls attributed to Archey in July
2006.[69] Wildwood Correctional Complex, where
Archey had been imprisoned, did not have recordings from the
requested period.[70] They did, however, produce two recorded
phone calls between Archey and his son, and two phone calls
between Archey and his mother, made August 31, 2006-September
1, 2006.[71] The State sought to admit two phone
calls between Archey and his son, but not those between
Archey and his mother.[72] The defense objected to the admission
of the recordings.
After
an evidentiary hearing, the court allowed the State to
introduce excerpts of the two jail phone calls between Archey
and his son as rebuttal evidence.[73] The two phone calls to
his mother were not admitted.
The
jury convicted Archey on all counts.[74] He was sentenced to 20
years on each of the first four counts, and five years on the
fifth count, all to run concurrently.
C.
Direct Appeal - Alaska Court of Appeals and Alaska
Supreme Court.
Archey
I
Archey
appealed his conviction and sentence. He argued that (1) the
prosecutor improperly vouched for a witness at grand jury;
(2) insufficient evidence supported the conviction on Count
V, maintaining a structure for the manufacture of
methamphetamine; (3) insufficient evidence supported Count
III, possession of acetone; (4) the trial court erred in
admitting Archey's jail phone calls in violation of
discovery rules; and (5) his sentence was
excessive.[75] In Archey I, the Court of
Appeals reversed the conviction for Count V, maintaining a
structure containing a methamphetamine lab. The Court denied
the rest of Archey's claims.[76]
Relevant
to the instant habeas petition, the court in Archey
I engaged in an analysis of the recorded jail phone
calls. The Court of Appeals found:
Although the State was unable to find any evidence of a call
to Pentecost, the State did discover calls that Archey made
to his son. On the tapes, Archey's son mentioned that the
police had found the black bag, and Archey responded that
someone should tell Sills to stop talking to the police. This
evidence suggested that Archey knew about the bag, and that
he blamed Sills for its discovery . . . Archey's defense
suggested that Sills owned the black bag and that he did not
make any phone calls from jail asking Samson to move it. The
State's rebuttal evidence indicated that Archey did make
a phone call from jail suggesting that he knew about the
black bag. This newly discovered evidence fell well within
the judge's authority to allow new evidence to support
the State's case-in-chief for good reason and to make the
presentation effective for the ascertainment of the
truth.[77]
Archey
petitioned the Alaska Supreme Court to review the decision
finding evidence sufficient to uphold his conviction on Count
III. The petition was denied on August 31,
2010.[78]
D.
Post-Conviction Relief Proceedings.
On
February 7, 2008, while his direct appeal was pending, Archey
filed a pro se post-conviction relief
application.[79] Through appointed counsel he filed an
amended post- conviction relief application on August 30,
2011.[80] Alaska filed a motion to dismiss for
failure to state a prima facie case, and Archey
filed a second amended post-conviction relief application on
March 19, 2012.[81] His applications raised several
arguments that his trial and appellate attorneys had been
ineffective: (1) trial counsel failed to challenge the
admission of the jail phone call Archey made to his son; (2)
he failed to object to the lack of evidence corroborating the
testimony of accomplice witnesses; (3) he failed to call
potential exculpatory witnesses; (4) he failed to investigate
potential exculpatory witness Gordon Pentecost; and (5)
appellate counsel failed to challenge the admission of the
jail phone call in Archey's petition for review to the
Alaska Supreme Court.[82] The trial court dismissed the
post-conviction relief application for failure to state a
prima facie case on February 6, 2013.[83]
Regarding
Pentecost, the trial court reasoned that Pentecost's
affidavit did not specify that Pentecost could testify that
Archey had not possessed or manufactured methamphetamine, and
therefore Pentecost's testimony would have little bearing
on Archey's guilt.[84] The court found that defense trial
counsel did conduct a pre-trial investigation with respect to
Pentecost.[85] The court concluded that Archey
“had not rebutted the presumption that his trial
attorney's decisions were not the result of a sound trial
strategy.”[86]
In
Archey II, Archey appealed the superior court's
dismissal of his PCR application. He argued that his trial
counsel's affidavit did make a prima facie
showing that his attorney performance was deficient because
he relied on a representation by another attorney in deciding
that Pentecost would not be a good witness.[87] He also
renewed his claim that his attorney was ineffective for
failing to exclude the jail phone call to his
son.[88]
The
Court of Appeals affirmed the superior court's decision.
Regarding Pentecost's testimony, the court held that even
if Archey's attorney failed to investigate Pentecost and
his potentially exculpatory contribution to Archey's
case, Archey did not show prejudice.[89] The Court reasoned that
Pentecost would testify about Archey's lack of ownership
of the trailer, and not about Archey's involvement, or
lack of it, in manufacturing methamphetamine.[90] Pentecost
could only testify that Samson “controlled [and
operated] the methamphetamine
laboratory.”[91] Because the conviction for maintaining
premises to manufacture methamphetamine had been dismissed on
direct appeal in Archey I, “there is no
reasonable possibility that his testimony would have altered
the outcome of Archey's case.”[92]
The
Court of Appeals also agreed with the superior court that
Archey did not support his claim that the admission of the
jail phone calls violated discovery rules because he made
only cursory, unsupported statements that the evidence was
available to the prosecution as ordinary pretrial
discovery.[93] “The superior court was not
obligated to accept Archey's ‘pro forma
assertions of the ultimate facts to be proved, ' even at
the pleadings phase.”[94]
Archey
petitioned the Alaska Supreme Court for review on July 27,
2015. He again argued that trial counsel was ineffective for
failing to investigate Pentecost and for relying on another
attorney's assessment of Pentecost's
credibility.[95] Archey asserted that the Court of
Appeals did not properly consider the prejudice to Archey
with respect to his convictions for Counts I-IV in light of
the evidence presented at trial.[96] The Court denied the
petition for review.[97]
Now
before the court is the instant habeas petition.
E.
Federal Court Proceedings.
Archey's
28 U.S.C. § 2254 amended habeas petition, filed
September 26, 2016, makes one claim. He asserts that his
trial counsel's failure to independently investigate
Pentecost's possible exculpatory testimony prejudiced
Archey and violated his Sixth Amendment right to effective
counsel.[98] In Archey's August 24, 2017 merits
brief, Archey's arguments expand to two claims: (1) the
same ineffective assistance of trial counsel claim as in his
petition;[99] and (2) that the Alaska courts made an
unreasonable determination of the facts in light of the
evidence presented when it mischaracterized evidence at trial
regarding Archey's recorded statements during jail phone
calls.[100]
The
state custodian opposes.[101] He argues that Archey is
not entitled to relief under AEDPA for his ineffective
assistance of counsel claim because the Alaska courts
reasonably applied Strickland in adjudicating Archey's
claim.[102] His merit brief in opposition only
addresses Archey's first claim from “his first
amended application, which is at issue
here.”[103] The state custodian contends that
Archey has not demonstrated that his trial counsel's
performance was deficient nor that Archey was prejudiced by
any incompetence.[104]
Archey
did not file a reply brief.
III.
ISSUES PRESENTED FOR REVIEW
1. Was
Alaska's resolution of Archey's Strickland
claim contrary to, or an unreasonable application of, clearly
established United States Supreme Court authority?
2. Was
Alaska's rejection of Archey's Strickland
claim based on an unreasonable determination of the facts in
light of the evidence presented in the State court
proceedings?
IV.
DISCUSSION
After
careful consideration of Archey's claims, this court
finds controlling Supreme Court authority requires that his
§ 2254 petition for writ of habeas corpus be denied.
A.
This report addresses both of Archey's claims as
described in his merits brief, but primarily whether Alaska
courts unreasonably applied Strickland in deciding
Archey's claim of ineffective assistance of counsel.
Archey
raises for the first time in his merits brief the contention
that the Alaska Court of Appeals made an unreasonable
determination of facts in denying his post-conviction relief
appeal.[105] Alaska responds that Archey raised
only a single claim in his first amended habeas petition,
that his trial counsel did not provide effective assistance
for failing to investigate Pentecost.[106] Alaska
does not brief whether the court's decisions were based
on an unreasonable determination of the facts in light of the
evidence, presumably relying on Archey's failure to plead
the claim in either his initial habeas petition at Docket 1
or his first amended petition at Docket 19.[107]
We
treat Archey's merits brief at Docket 39 as amending his
habeas petition to include the second claim.[108]
B.
The Standard of Review Used by Federal Courts for a Writ
of Habeas Corpus Depends on Whether the Petitioner's
Claims were Adjudicated on the Merits.
The
district court's authority to issue a writ of habeas
corpus is limited in scope by the Antiterrorism and Effective
Death Penalty Act (AEDPA), codified at 28 U.S.C. § 2254.
The
Supreme Court has interpreted the statute as existing to
guard against only the most “extreme malfunctions in
the state criminal justice systems, not [as] a substitute for
ordinary error correction through
appeal.”[109] Of course, “even a single
federal judge may overturn the judgment of the highest court
of a State insofar as it deals with the application of the
United States Constitution or laws to the facts in
question[.]”[110] Yet, this court gives significant
deference to the state court, and despite whether the
district court finds a petitioner's grounds for the writ
compelling, “[i]t bears repeating that even a strong
case for relief does not mean the state court's contrary
conclusion was unreasonable.”[111]
28
U.S.C. § 2254 provides that when a state court has
adjudicated a criminal petitioner's claim on the merits,
the district court may not grant a habeas petition unless the
state court's 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; (2)
or 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.”[112]Under that
statutory framework, a state court decision contravenes
clearly established federal law when it arrives at a
conclusion that is “opposite to that reached by the
Supreme Court on a question of law or if the state court
decides a case differently than the Supreme Court has on a
set of materially indistinguishable
facts.”[113]
As
relevant to the instant petition, the state court
unreasonably applies clearly established federal law where it
“identifies the correct governing legal rule . . . but
unreasonably applies it to the facts of the particular state
prisoner's case.”[114] Where the state court has
rendered judgment that a claim lacks merit, such judgment
“precludes federal habeas relief so long as fair-minded
jurists could disagree on the correctness of the state
court's decision.”[115] Put another way, the
finality of a state court's judgment will not be
disturbed unless there is “no possibility
fair-minded jurists could disagree that the state court's
decision conflicts with this Court's
precedents.”[116] This standard is “difficult to
meet . . . because it was meant to be.”[117]
Nonetheless,
if the district court finds error in a state trial
court's decision, and it is “in grave doubt about
whether [the] error had substantial and injurious effect or
influence on verdict and therefore finds itself in virtual
equipoise about such issue, error is not harmless, ”
and habeas corpus relief would be warranted.[118]
C.
The State Court Adjudicated Petitioner's Claim of
Ineffective Assistance of Counsel on the Merits.
When
the State court decides a petitioner's claim on the
merits, the federal district court is limited to the record
before the State court, [119] 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.[120] In that
case, the district court should review the claim de
novo.[121] For the reasons set forth below, this
court concludes that Archey's claim of ineffective
assistance was decided on the merits at the state court, and
thus this court's review is limited to the state record
and under the deferential constraints set forth in §
2254 (d).
1.
The operative decision under review is the Alaska Court
of Appeals decision in Archey II.
In the
event the highest state court denies a claim without
explanation, the relevant state court decision for the
purposes of AEDPA is the “last reasoned state court
decision.”[122] Such is the case with Archey's
claim of unreasonable application of the Strickland
standard in our case. The Alaska Supreme Court denied his
petition without explanation, [123] and thus the
last-reasoned state court decision was the decision of the
Alaska Court of Appeals.[124]
The
parties do not dispute this.
2.
The Alaska Court of Appeals decided Archey's case
while cognizant of its “federal constitutional
dimensions” and it thus reached the merits of
petitioner's claim; accordingly, this court must apply
AEDPA's deferential standard of review.
The
state court need not cite federal law, nor even be aware of
relevant federal law.[125] Citing state court decisions which
rest on Supreme Court precedent is sufficient to constitute
adjudication on the merits.[126] Indeed, in
Johnson, [127] the Supreme Court reversed a Ninth
Circuit decision and held that the California Court of
Appeals reached the merits where it did not “expressly
purport to decide a federal constitutional question,
”[128] but extensively discussed a state
supreme court opinion and where that opinion extensively
discussed three federal cases.[129] In Johnson,
it was of no consequence that the state supreme court
ultimately rejected the cited federal courts' holdings on
the presented issue - what mattered was that they knew they
were grappling with a question exhibiting “federal
constitutional dimensions.”[130] In other words, when
the last reasoned state court opinion primarily relies on
seminal state precedent to address a claim, but that state
precedent at least substantially considered federal case law,
a federal habeas court must find the merits to have been
reached. The state Court of Appeals reached the merits in
this case.
When
deciding Archey's case, the Alaska Court of Appeals
evaluated whether his trial counsel was ineffective for
failing to establish proper grounds for excluding the jail
phone call recording using the framework of Alaska cases
Burton v. State, [131] Risher v. State,
[132] and State v.
Jones.[133] Thereunder, the court engaged a brief
analysis that the “defendant must plead facts showing
that (1) the attorney's performance fell below the
standard of minimal competence for a criminal lawyer and (2)
there is a reasonable possibility that the outcome of the
trial would have been different but for the attorney's
incompetence.”[134] The court attributed this statement
to Burton.[135] Second, the Court cited
Jones, a prominent state case, for its strong
presumption that counsel acted competently.[136]
Jones compiles several state and - most importantly
- several federal[137] cases in comparing and contrasting
their respective standards and rules for ineffective
assistance claims. Here, the Court of Appeals considered at
least eleven federal cases concerning ineffective assistance.
While some of the cases address secondary ineffective
assistance issues not directly relevant to the Court of
Appeals' presumption of competence analysis, these many
cases inform this court that the state Court of Appeals was
acutely aware that it was deciding an issue that had
“federal constitutional dimensions.” Therefore,
this court finds that the issue related to ineffective
assistance during the admission of the phone calls, was
decided on the merits by the Alaska Court of Appeals.
D.
Archey has not demonstrated that he is entitled to relief
on the merits with respect to his ineffective assistance of
counsel claim.
1.
The Alaska Court of Appeals Did Not Unreasonably Apply
Clearly Established Federal Law When it Resolved Archey's
Strickland Claim.
Archey
argues, invoking Strickland, that the Alaska Court
of Appeals' decision “was based on an unreasonable
application of clearly-established federal
law.”[138] To establish a prima facie claim for
ineffective assistance of counsel, a petitioner must
demonstrate that the attorney's performance fell below
the standard of minimal competence and also show a reasonable
possibility that the outcome of the trial would have been
different.[139] Archey claims that trial counsel
“was ineffective when he decided not to call Pentecost
as a witness without conducting adequate
investigation.”[140] He claims that the Court of Appeals
did not adjudicate whether trial counsel's performance
was deficient because it focused on whether there had been
prejudice to Archey.[141] Archey urges this Court to
therefore evaluate whether trial counsel's performance
was deficient de novo.[142] Yet there is no need
for this Court “to address both [the performance and
prejudice] components of the inquiry if the defendant makes
an insufficient showing on one.”[143] Even if
this court were to agree that the trial counsel performed
deficiently, and it does not, Archey cannot prevail because
he has not shown prejudice. As discussed below, this court
finds that Archey has failed to show a reasonable possibility
that the outcome of his trial would have been different had
his trial counsel presented the witness testimony of
Pentecost, considering all the other evidence presented at
trial.
2.
Application of the Highly Deferential Standard.
A
federal habeas court may grant habeas relief on the ground of
ineffective assistance of counsel, over a lower state
court's earlier judgment to the contrary, if the
appellant shows that the state court's decision was
contrary to or misapplied clearly established federal
law.[144] In February 2016, the Ninth Circuit,
sitting en banc, declared the Strickland test for
ineffective assistance to be clearly established federal law
for the purposes of habeas corpus in noncapital cases, and
expressly overruled its earlier decisions to the
contrary.[145] The Court also overruled the
three-judge panel's opinion in the case before it, then
remanded the case to the panel to reconsider its affirmance
of the district court's denial of the writ. On remand,
the panel denied relief for a final time. In so doing, it
reviewed the district court's decision de novo and
applied[146] the Strickland test. The test
is two pronged, and requires an appellant to show first that
her trial counsel's performance was unreasonable under
the totality of the circumstances.[147] If counsel's
performance was unreasonable, then, second, the appellant
must show that, but not for trial counsel's poor
performance, the result of the trial would have been
different.[148] Attached to trial counsel's
actions is a rebuttable presumption that they constituted
“sound trial strategy.”[149]Indeed, at trial,
counsel for the defendant is granted “wide
latitude” in making “tactical decisions” on
behalf of his client.[150]
The
pivotal question is whether the state court's application
of the Strickland standard was unreasonable. This is
different from asking whether defense counsel's
performance fell below Strickland's standard.
Were that the inquiry, the analysis would be no different
than if, for example, this Court were adjudicating a
Strickland claim on direct review of a criminal
conviction in a United States District Court. Under AEDPA, it
is a necessary premise that the two questions are different.
For purposes of § 2254(d)(1), “an
unreasonable application of federal law is different
from an incorrect application of federal
law.”[151] “A state court must be granted a
deference and latitude that are not in operation when the
case involves review under the Strickland standard
itself.”[152]
Accordingly,
this court's inquiry is not to conduct a de novo
Strickland analysis. Instead, its two duties are to,
first, “determine what arguments or theories supported
or . . . could have supported, the state court's
decision;” and, second, to “ask whether it is
possible fair- minded jurists could disagree that those
arguments or theories are inconsistent with” the
Supreme Court's Strickland
jurisprudence.[153]
3.
Defense counsel in Archey's case exercised reasonable
professional judgment.
Archey
asserts that his trial attorney was incompetent for failing
to investigate Pentecost or to call him as a
witness.[154] He relies on Pentecost's affidavit
which states that he would have been available to testify at
Archey's trial and he had knowledge that Samson,
Archey's former girlfriend, manufactured methamphetamine
in the trailer that Archey sometimes shared with her. Archey
challenges his trial counsel's decision to move away from
Pentecost's testimony based on, the attorney later
recalled, statements of another attorney that Pentecost had
troubling legal charges of his own. He states that trial
counsel had a duty to investigate Pentecost's testimony
himself and decide for himself whether Pentecost would be a
helpful witness.[155]
Confounding
the issue is a statement Pentecost makes in his affidavit,
stating that he did talk to trial counsel at the time of
trial and he did disclose then what he knew about Samson.
Neither Archey nor the state custodian discuss the
significance of this statement in their merits briefing. This
statement is evidence of some investigation into Pentecost by
trial counsel at the time of trial, and that it is reasonable
that the attorney, who presumably met with dozens if not more
witnesses each year, would not recall speaking with Pentecost
during the lead-up to Archey's trial. Pentecost's
mention of the meeting with the trial attorney establishes
that counsel investigated Pentecost and made his own
professional judgment at the time about whether to call him
as a witness.
Pentecost
was simultaneously facing criminal charges in another matter.
Samson was not sure of his name when she testified that
“Lester” had called her on behalf of Archey,
asking her to move his black bag. It was not clear that
Pentecost was the person Samson testified about, or that he
would testify that he did or did not participate in the call
asking Samson to move the bag.[156] Pentecost, according
to his affidavit, would only have been able to testify about
having seen Samson manufacture methamphetamine.[157] This
would have highlighted inconsistencies in Samson's
testimony that she was not even aware of
methamphetamine-making materials in her trailer. However,
Pentecost did not have information that would necessarily
exculpate Archey. Pentecost's affidavit did not state
that he had not seen Archey manufacture methamphetamine. The
prosecutor could have cross-examined Pentecost on that issue.
Had Pentecost denied seeing Archey manufacture
methamphetamine, the State could have attempted to impeach
him, perhaps with his previous criminal convictions. Or, as
counsel's defender colleague had suggested to defense
counsel, Pentecost could have provided inculpatory testimony
in consideration of Pentecost's open state case. On these
facts, trial counsel's decisions are reasonable strategic
choices. Considering the presumption that his attorney acted
competently, [158] Archey cannot establish that his
attorney's performance was deficient.
4.
There is not a reasonable possibility that the outcome of
Archey's trial would have been different had trial
counsel further investigated and examined Pentecost.
Under
Strickland, to show ineffective assistance of counsel, Archey
must demonstrate “reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.”[159]
“Reasonable probability” means “probability
sufficient to undermine confidence” in the jury
verdict.[160] Archey overstates the significance of
Pentecost's proposed testimony in light of all other
evidence presented at trial. He states that Pentecost would
have implicated Samson in methamphetamine production in the
trailer and in ownership or use of the contents of the black
duffel bag.[161] He also asserts that Pentecost's
testimony would have been critical in impeaching Samson, who
testified that she did not see any chemicals or manufacture
methamphetamine herself.[162]
But
Pentecost's testimony would have done little to discount
the remainder of the evidence against Archey at trial. Samson
disclosed that she had entered into a plea agreement with the
state, and jurors could infer that she had some
responsibility for the contents of the trailer and the black
duffel bag. However, even if all of Samson's testimony
was discounted, Sills testified that she saw Archey bring
items used in the manufacture of methamphetamine to the
trailer. Pat Price, the neighbor, testified that Archey
visited his house and asked Archey to lock up the trailer
before walking into the woods. Jurors could infer Archey did
not want police to discover the contents of the trailer. In
the jail phone calls with Archey's son, Archey talked in
what could be characterized as a ‘resigned tone'
about the black bag found on the property. Archey's
comments to his son about the bag could reasonably suggest
Archey was distressed at its discovery. Jurors could
reasonably infer Archey owned the bag and its contents.
Archey
argues that the jury could have heard Pentecost's
testimony and still have credited Samson's and
Sills's testimony, but that the standard is that the
testimony taken as a whole might have influenced the
jury's appraisal about the testimony of both
sisters.[163] He does not explain why this is true,
especially with respect to Sills's testimony. On this
record, Pentecost would merely have offered information that
Samson had made methamphetamine and had control of the
trailer that contained products for making methamphetamine.
Standing alone, this information may inculpate Samson, but it
is too tenuous to undermine a determination of Archey's
guilt on the four counts related to methamphetamine
production.
In the
present case, there is no possibility that “fairminded
jurists could disagree” with Alaska's resolution of
Archey's Strickland claim, and as such his
habeas claim must be denied.[164] Pentecost's proposed
testimony is ...