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Dorotik v. Davidson

June 12, 2009


The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge


Petitioner Jane M. Dorotik, a state prisoner appearing pro se, filed a Petition for Writ of Habeas Corpus ("Petition") with this Court pursuant to 28 U.S.C. § 2254. [Doc. No. 1.] Pursuant to 28 U.S.C. § 636(b)(1) and CivLR HC.2 of this District, the Honorable Louisa S. Porter, United States Magistrate Judge, submitted a report and recommendation ("R&R") recommending that this Court deny the Petition. [Doc. No. 20.] Petitioner timely filed Objections to the Report. [Doc. No. 29.] This Court subsequently overruled Petitioner's objections, adopted the Report, and denied the Petition ("Denial"). [Doc. No. 30.] Petitioner now seeks a certificate of appealability ("Application") pursuant to 28 U.S.C. § 2253 and Federal Rule of Appellate Procedure 22(b) [see doc. no. 33] and moves for Leave to Appeal in Forma Pauperis ("IFP") [doc. no. 34].

Legal Standard

A state prisoner may not appeal the denial of a § 2254 habeas petition unless she obtains a certificate of appealability from a district or circuit judge. 28 U.S.C. § 2253(c)(1)(A). In deciding whether to grant a certificate of appealability, a court must either indicate the specific issues supporting a certificate or state reasons a certificate is not warranted. See United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). A certificate of appealability is authorized "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To meet this standard, a petitioner must show that: (1) the issues are debatable among jurists of reason, (2) a court could resolve the issues in a different manner, or (3) the questions are adequate to deserve encouragement to proceed further. Lambright v. Stewart, 220 F.3d 1022, 1024-25 (9th Cir. 2000) (internal citations omitted). A petitioner does not need to show that he "should prevail on the merits. He has already failed in that endeavor." Lambright, 220 F.3d at 1025 (citing Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). The Court has a duty to construe the pleadings liberally and must afford the plaintiff the benefit of any doubt where the plaintiff appears pro se. See Jackson v. Carey, 353 F.3d 750, 757 (9th Cir. 2003).


In her Application, Petitioner raises the following issues: (1) "whether the state court's resolution of Petitioner's claim for ineffective assistance of counsel, including failure to investigate, was the product of an unreasonable application or contrary to U.S. Supreme Court precedent"; (2) "whether the state court acted with an unreasonable application or contrary to U.S. Supreme Court authority by denying Petitioner's claim that she was denied the right to present a defense by not allowing a key witness to provide her information to the jury and by denying DNA testing"; and (3) "whether the state court acted with an unreasonable application or contrary to U.S. Supreme Court authority by denying Petitioner's right to overcome a procedural default based on delayed discovery and actual innocence." (Application at 2.)

I. Ineffective Assistance of Counsel

Petitioner claims that she is entitled to a certificate of appealability on the grounds that defense counsel's assistance was constitutionally substandard. (Application at 5.) Claims of ineffective assistance of counsel are governed by Strickland v. Washington, 466 U.S. 668 (1984). To make out a claim of ineffective assistance of counsel under Strickland, Petitioner must show (1) "that counsel's performance was deficient" and (2) "the deficient performance prejudiced the defense." Id. The court need not address both the performance prong and the prejudice prong if the petitioner fails to make a sufficient showing of either. Strickland, 466 U.S. at 700. The Strickland test applies in full force in federal collateral proceedings. Id. at 697.

The first prong of the Strickland test for deficiency of counsel requires a plaintiff to demonstrate that counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Strickland, 466 U.S. at 687. "[T]he defendant must show that counsel's representation fell below an objective standard of reasonableness ... under prevailing professional norms." 688. Furthermore, judicial scrutiny of counsel must be highly deferential because of the risk that the benefit of hindsight would make the counsel's performance seem unreasonable. Id. at 689.

The second prong of the Strickland test requires that any deficiency of counsel also be prejudicial. Id. at 692. Therefore, even if a defendant is able to show that counsel acted unreasonably, he still must show that counsel's actions had an adverse effect on the outcome. Id. at 693. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

Petitioner argues that her Sixth Amendment right to receive effective assistance of counsel was violated in that counsel failed to: (1) make a sufficient investigation before pursuing the flawed theory that Petitioner's daughter was the killer; (2) strenuously challenge the prosecution's theory of time of death; (3) provide meaningful adversarial analysis by presenting independent forensic evidence at trial; (4) prepare and call Petitioner as a witness; (5) demonstrate that Petitioner was physically incapable of committing the murder as theorized by the prosecution; (6) object or move for a mistrial when a police detective testified that he believed that Petitioner was the murderer; (7) obtain DNA testing on several items of physical evidence; (8) present alternate scenarios consistent with the physical evidence; (9) provide innocent explanations for the apparently incriminating evidence; (10) present evidence that the police focused on Petitioner from the beginning of the investigation and failed to follow other leads which would have led them to the real killer; and (11) make good on promises to the jury regarding what the evidence would show, refrain from admitting to the jury that Petitioner was guilty, and refrain from stating that counsel personally did not believe in the evidence he presented at trial. (Application at 5-14; Denial at 8-9; Petition at 16-46.) Petitioner fails to make a substantial showing of the denial of a constitutional right by ineffective assistance of counsel, as interpreted through Strickland, with respect to all allegations enumerated in said claim.

A. Deficiency of Counsel

Petitioner fails to show that counsel's representation was deficient under Strickland. First, counsel is strongly "presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. Therefore, this Court must begin its analysis on the presumption that counsel acted reasonably with regard to the enumerated allegations.

When determining whether counsel's assistance is deficient, the Court must consider "whether counsel's assistance was reasonable considering all the circumstances." Strickland, 466 U.S. at 688. Here, the circumstances support the presumption that defense counsel made reasonable strategic decisions with regard to his handling of expert testimony and forensic evidence. Forensic evidence found in Petitioner's bedroom showed an impact spatter of the victim's blood; bloodstains consistent with the victim's blood were found in the bed of a truck used at the ranch; and Petitioner's fingerprint was found in the victim's blood on a syringe found in the bathroom. (See Denial at 9--13.) This and other voluminous evidence against Petitioner made it objectively reasonable for counsel to believe that acquiring any additional forensic testing or testimony could be harmful to the ...

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