Tommy Crow, Jr. v. Ron Haynes ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 4 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOMMY LEE CROW, Jr., No. 20-35911
Petitioner-Appellant, D.C. No. 3:16-cv-05277-RJB
v.
MEMORANDUM*
RON HAYNES, Superintendent,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Argued and Submitted October 8, 2021
Seattle, Washington
Before: PAEZ, M. SMITH, and NGUYEN, Circuit Judges.
Petitioner Tommy Crow appeals the district court’s denial of his 28 U.S.C.
§ 2254 habeas petition. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253.
Reviewing de novo, Kipp v. Davis, 971 F.3d 939, 948 (9th Cir. 2020), we affirm.
Certified Issues
Crow challenges his conviction on several grounds. We first address the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
issues for which the district court issued a certificate of appealability, all of which
relate to the trial court’s admission of evidence that he participated in the assault of
Cover. The State moved to admit the assault evidence, arguing that it established
Crow’s motive for murdering Miller, the victim who told the police about the
Cover assault.
We address whether 1) the trial court violated Crow’s due process rights by
admitting the Cover assault evidence; 2) his counsel was ineffective for failing to
object vigorously to that evidence; 3) the trial court violated his due process rights
by providing the jury with an improper limiting instruction; and 4) his counsel was
ineffective for failing to object to that instruction. Pursuant to AEDPA’s strict
standard of review,1 we conclude that the state court’s denial of Crow’s claims was
not contrary to, or an unreasonable application of, clearly established U.S.
Supreme Court precedent. 28 U.S.C. § 2254(d)(1).
1. Crow contends that the admission of the Cover assault evidence
violated clearly established federal law as prejudicial propensity evidence. We
review the Washington Court of Appeals’ decision denying Crow’s appeal of the
admission of the Cover assault evidence as the last reasoned decision on the merits.
The U.S. Supreme Court has held that prior acts evidence is constitutional where it
1
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs
Crow’s petition. See Kipp, 971 F.3d at 948.
2
is “relevant to an issue in the case” and expressly declined to rule on whether prior
acts evidence violates due process if used “to show propensity to commit a charged
crime.” Estelle v. McGuire, 502 U.S. 62, 70, 75 n.5 (1991). Thus, the Supreme
Court has not clearly established the due process right Crow seeks to vindicate, and
he cannot prevail on this claim. The district court did not err in denying Crow’s
first claim.
2. Relatedly, Crow contends that trial counsel’s failure to object
vigorously to the Cover assault evidence constituted ineffective assistance of
counsel, and that the state court summarily dismissed this claim such that AEDPA
deference is inappropriate.
AEDPA deference is required for claims “adjudicated on the merits in State
court proceedings.” 28 U.S.C. § 2254(d). We look “to the last reasoned decision”
that resolves the claim at issue in order to determine whether that claim was
adjudicated on the merits. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991). A state
court may decide a habeas claim on the merits “unaccompanied by an explanation”
of its reasoning. Harrington v. Richter, 562 U.S. 86, 98, 102 (2011).
The Washington Court of Appeals denied Crow’s ineffective assistance of
counsel claim in two sentences: “Finally, Mr. Crow contends his lawyer was
ineffective for failing to raise the issues we have discussed here in the first instance
on appeal. We need not address that challenge given our disposition here.”
3
Harrington requires that on habeas review we consider all reasonable bases for the
state court’s holding, even if unstated. 562 U.S. at 98. The state court’s reasoning
is apparent. To show ineffective assistance of trial counsel, a defendant must show
deficient performance and actual prejudice. Strickland v. Washington, 466 U.S.
668, 687 (1984). The state court assumed that Crow could not demonstrate actual
prejudice where the evidence was admissible. This was a decision on the merits:
Crow could not satisfy one of the two Strickland prongs, and therefore there was
no need for the state appellate court to further discuss the issue. AEDPA deference
therefore applies to our review.
Crow fails to show prejudice. The Cover assault evidence was admissible
under Washington law. Thus, counsel’s failure to object “vigorously” to that
evidence did not prejudice Crow. See Mahrt v. Beard, 849 F.3d 1164, 1172 (9th
Cir. 2017) (holding, under AEDPA review, that failure to bring motion to suppress
did not constitute ineffective assistance of counsel where it was “reasonable for the
state courts to conclude that a motion to suppress, if brought, would likely have
been denied”). Counsel’s performance did not violate clearly established federal
law. The district court did not err in denying Crow’s second claim.
3. Crow contends that the trial court’s limiting instruction as to the
Cover assault evidence violated his right to due process. The decision by the
Washington Court of Appeals is again the last reasoned decision. Jury instructions
4
are unconstitutional where “the ailing instruction by itself so infected the entire
trial that the resulting conviction violates due process” when viewed in the
“context of the instructions as a whole and the trial record.” McGuire, 502 U.S. at
72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).
At Crow’s trial, the court gave the following instruction, based on
Washington’s model instructions:
I have allowed evidence and will allow evidence regarding an earlier
assault upon Scott Cover to be admitted in this case for only a limited
purpose. This evidence may be considered by you only on the issue
of defendant’s motive. You may not consider it for any other purpose.
Any discussion of this evidence during your deliberations must be
consistent with this limitation.
Crow did not object.
“While the instruction was not as clear as it might have been,” id. at 74, it
appropriately informed the jury that the Cover assault evidence went to motive, not
propensity. The meaning of “motive” is clear from the trial evidence: Crow killed
Miller in revenge for reporting the Cover assault. Thus, the limiting jury
instruction did not “infect” the entire trial and therefore did not violate clearly
established law. We affirm the district court’s denial of relief on this claim.
4. Crow contends that his counsel’s failure to object to the limiting jury
instruction constituted ineffective assistance. Crow again contends that this issue
does not warrant AEDPA deference because the Washinton Court of Appeals took
a summary approach; as above, this argument is unavailing. Additionally, Crow’s
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counsel’s performance did not constitute ineffective assistance under Strickland
because the limiting instruction was appropriate, and so Crow cannot show
prejudice. Thus, counsel’s performance did not violate clearly established federal
law. We affirm the district court’s ruling on this claim.
Uncertified Issues
5. Crow presents two uncertified issues in his opening brief. See Cir.
Rule 22-1. Crow contends that his counsel rendered ineffective assistance by 1)
failing to request a lesser-included offense instruction and 2) spending just two
hours counseling Crow, a shortcoming that potentially deprived Crow of a plea
deal.2 We decline to issue a certificate of appealability (“COA”) on either issue.
To obtain a COA, Crow must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To do so, Crow “must demonstrate
that the issues are debatable among jurists of reason; that a court could resolve the
issues in a different manner; or that the questions are adequate to deserve
encouragement to proceed further.” Lambright v. Stewart, 220 F.3d 1022, 1025
(9th Cir. 2000) (alterations omitted) (quoting Barefoot v. Estelle, 463 U.S. 880,
893 n. 4 (1983)).
2
Crow styled this as an ineffective assistance of appellate counsel claim before the
district court but an ineffective assistance of trial counsel claim on appeal. We
need not determine which is correct because either fails.
6
Failure to request a lesser-included offense instruction may violate
Strickland where counsel’s choice is not clearly strategic. See Crace v. Herzog,
798 F.3d 840, 852 (9th Cir. 2015). Here, however, counsel’s performance was
strategic: at trial, Crow’s counsel stated on the record that he had thought “for a
long time” about whether to request a manslaughter instruction but declined to do
so because he did not think the facts of the case “would fit into either the reckless
or negligence slot.” Crow v. Haynes, No. 3:16-cv-05277-RJB-JRC, 2020 WL
5371375, at *15 (W.D. Wash. Aug. 20, 2020). Crow therefore does not make a
substantial showing that the state court’s determination was an unreasonable
application of Strickland.
Crow points to no Supreme Court case requiring counsel to visit or meet
with a client for a certain amount of time or secure a certain plea deal. Crow thus
does not make a substantial showing that the state court’s decision was an
unreasonable application of federal law, and we deny Crow’s request for a COA.
AFFIRMED.
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