Lanny Smith v. Lawrence Wasden ( 2018 )

FILED
NOT FOR PUBLICATION
AUG 23 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LANNY SMITH, No. 16-35273*
Petitioner-Appellant, D.C. No. 4:08-cv-00227-EJL
v.
MEMORANDUM**
LAWRENCE WASDEN and BRENT
REINKE,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted November 14, 2017
San Francisco, California
*
The initial number for this case was 12-35275. However, following a
remand by this court and a subsequent appeal, the case was mistakenly given a new
number: 16-35273. The initial case number should have remained with the case
during this subsequent appeal and we clarify this history here to avoid any
potential confusion.
** This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: N.R. SMITH,*** MURGUIA, and CHRISTEN, Circuit Judges.
Petitioner-Appellant Lanny Smith appeals the district court’s denial of his 28
U.S.C. § 2254 habeas petition, which challenged his 1996 conviction for the first-
degree murder of Leo and Mary Downard. We have jurisdiction under 28 U.S.C.
§§ 1291 and 2253, and we affirm.
1. Petitioner first argues trial counsel rendered ineffective assistance with
respect to Eric Greenwade’s testimony about shoeprint evidence. Even assuming
Petitioner could show cause and prejudice to excuse this claim’s procedural
default, this claim fails. Defense expert, Richard Fox, presented a “different
opinion” about the characteristics of the shoe that Greenwade compared with
corresponding “abnormalities” on the image; offered an alternate explanation for
the similarity between the bottom of the size 8 1/2 FootJoy and the dust-print
photograph; asserted that so much detail was lost in Greenwade’s adjusted
photograph that “we really can’t do a comparison”; opined that the “better” method
was to review the high-contrast photograph taken by the State; and asserted that
Fox “[did] not believe . . . [Greenwade is] qualified as a forensic footwear
examiner at all.” Fox also disputed Greenwade’s conclusion that the photograph
***
Judge N.R. Smith was drawn to replace Judge Pregerson on the panel
following Judge Pregerson’s death. Judge Smith has read the briefs, reviewed the
record, and listened to the oral argument.
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showed an “identifying characteristic” of the particular shoe worn by the murderer,
and contested Greenwade’s view that the supposed abnormalities in the size 8 1/2
FootJoy corresponded to particular points in the photograph.
Defense counsel also vigorously challenged Greenwade on his lack of
qualifications and experience with footprint identification, eliciting testimony that
Greenwade had no background or experience in footwear identification. Defense
counsel’s reliance on Fox’s testimony and cross-examination of Greenwade was
not outside the bounds of “reasonable professional judgment.” Strickland v.
Washington, 466 U.S. 668, 690 (1984). Petitioner has not shown that defense
counsel was deficient for failing to retain another shoe impression expert. See
Harrington v. Richter, 562 U.S. 86, 106–07 (2011) (highlighting the “wide latitude
counsel must have in making tactical decisions” and in formulating “a strategy . . .
[that] balance[s] limited resources in accord with effective trial tactics and
strategies” (citation and internal quotation marks omitted)).
2. Petitioner also advances an ineffective assistance of counsel claim
concerning counsel’s failure to adequately investigate a variety of forensic
evidence. See 28 U.S.C. § 2253. Petitioner first asserts trial counsel was
ineffective by failing to test the shoes seized from Petitioner and Jeff Smith for
blood. But the State’s expert testified that no blood was found on either pair of
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shoes, and the decision to forgo further testing may have been tactical, since any
blood found on Petitioner’s shoes could have implicated him. See Jennings v.
Woodford, 290 F.3d 1006, 1014 (9th Cir. 2002) (counsel may choose not to
investigate, provided the decision is “reasonable and informed”).
Petitioner argues trial counsel was deficient for failing to inquire into Fox’s
work in previous criminal cases. But defense counsel discussed the decision to
hire Fox with several attorneys, received a written recommendation from a
colleague, reviewed Fox’s curriculum vitae, and spoke with him about his
background. He also purchased several books on footprint and ballistics evidence
so he could be informed and have a meaningful interview with Fox. Counsel’s
decision to hire Fox was not constitutionally deficient.
Petitioner asserts that counsel should have hired another expert to rebut
specific ballistics evidence. But Fox examined the casings and the Fieldmaster
rifle and agreed with the State’s experts’ conclusions. See, e.g., Winfield v. Roper,
460 F.3d 1026, 1041 (8th Cir. 2006) (“Counsel is not required to shop for experts
who will testify in a particular way, and . . . counsel’s decision not to investigate
the issue further was reasonable given the two concurring opinions of different
[experts].”). And as the district court concluded, the prosecutor’s inappropriate
conduct in asking Fox a question outside the scope of direct examination “shows
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neither that Fox was incompetent nor that his attorneys were ineffective,” because
“[n]either defense counsel nor his expert need anticipate bad behavior from the
prosecution.”
Petitioner argues trial counsel’s failure to independently examine and test
other forensic evidence, such as hair, fiber, and semen, as well as sex crimes kits,
constitutes ineffective assistance. But the State’s experts did not testify that any of
this forensic evidence implicated Petitioner. Defense counsel had limited
resources at his disposal. Harrington, 562 U.S. at 107. Whether the hair and fiber
evidence would have exonerated Petitioner was speculative at best, and at worse
might have inculpated him.
3. Petitioner raises a number of other claims asserting that his trial counsel
rendered deficient performance. None are meritorious. Concerning Beverly
Huffaker’s testimony, Petitioner has not shown that counsel’s decision to stipulate
to the admission of a receipt was constitutionally deficient. Furthermore, defense
counsel sought to soften the blow of Huffaker’s testimony by eliciting testimony
suggesting he was fond of “grandmother types” because they “accept[ed] him and
love[d] him for the way he is[.]” Counsel’s reliance on cross-examination to rebut
Huffaker’s testimony was not unreasonable.
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4. Petitioner also asserts various due process claims. First, Petitioner argues
the trial court violated his right to due process under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), by permitting Greenwade to offer an
opinion that the size 8 1/2 FootJoy matched the adjusted image “extremely
closely,” This claim, however, was both procedurally defaulted and waived. Trial
counsel properly objected to Greenwade’s qualifications and testimony at trial, but
the issue was not raised on direct appeal, nor was his state petition for
postconviction relief ever amended to add a Daubert claim. Petitioner did not
provide the Idaho Supreme Court “the operative facts and the federal legal theory
on which his claim is based” sufficient to satisfy the exhaustion requirement,
Koerner v. Grigas, 328 F.3d 1039, 1046 (9th Cir. 2003) (citation and quotation
marks omitted), nor has Petitioner demonstrated that this default should be
excused.
Petitioner also asserts the trial court’s exclusion of evidence of Jeff Smith’s
prior bad acts violated due process, but the trial court’s rulings did not render the
trial “fundamentally unfair in violation of due process.” Johnson v. Sublett, 63
F.3d 926, 930 (9th Cir. 1995). The trial court permitted defense counsel to ask
about specific instances of Jeff’s violent behavior to impeach his statement that he
had a “fair” reputation, and to support the theory that Jeff was the actual
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perpetrator. See Idaho R. Evid. 608(b). The court ultimately excluded extrinsic
evidence of Jeff’s violent character because it concluded that the proffered
evidence did not tie Jeff to the crime charged or the victims in the case, see Idaho
R. Evid. 608(b), but the court did not prohibit Petitioner from presenting a defense
in other ways (e.g., by cross-examining Jeff about the information contained within
police reports). The exclusion of some evidence of Jeff’s bad acts therefore did not
deprive Petitioner of a fair trial, nor were Idaho’s Rules of Evidence “arbitrary or
disproportionate to the purposes they are designed to serve” such that his right to
present a defense was abridged. United States v. Scheffer, 523 U.S. 303, 308
(1998) (citation and internal quotation marks omitted).
Petitioner asserts that allowing James Swogger to testify violated due
process, but he cites no law supporting his argument that the district court violated
his constitutional rights by allowing a witness who equivocated on the stand. The
use of a jailhouse informant does not automatically render a trial unfair. See Hoffa
v. United States, 385 U.S. 293, 311–12 (1966).
5. Petitioner raises several claims concerning the prosecution’s failure to
disclose exculpatory or impeaching information under Brady v. Maryland, 373
U.S. 83 (1963). He first asserts the prosecution’s failure to disclose chain of
custody information constituted a Brady violation. But he does not offer an
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affidavit from trial counsel or other evidence indicating that the chain-of-custody
record was not disclosed before trial, and trial counsel did not object to the State’s
assertion in its closing argument that there had “[n]ot [been] one mistake in the
chain of custody. Not one item lost in the chain of custody.” Petitioner argues
there were irregularities in Detective Rodriguez’s handling of the crime scene, and
asserts that several documents regarding the size of the shoes seized from Jeff
Smith’s apartment and those seized from Petitioner’s apartment were not disclosed
to trial counsel. But a different detective collected the shoes, realized he made an
error in his report, corrected it in a supplemental report, and testified at trial that
the shoes seized from Jeff Smith were a size 9 1/2. In light of this testimony, and
that of a defense witness who testified that Petitioner was aware that Petitioner’s
shoeprint had been found at the Downards’ home, we cannot conclude the
allegedly withheld evidence was material. Since Petitioner has not shown he
would have a “colorable or potentially meritorious Brady claim” if the allegedly
withheld information were considered, we decline to remand the claim to state
court. Gonzalez v. Wong, 667 F.3d 965, 980 (9th Cir. 2011).
Federal habeas counsel asserts that documents available to the prosecution
detailing Jeff Smith’s prior bad acts were not disclosed to the defense, but does not
show which facts or incidents were unknown to trial counsel. Trial counsel cross-
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examined Jeff about specific instances of violent behavior and elicited an
admission that he had broken into and stolen things from his father’s home before.
Much of the allegedly suppressed material was cumulative of facts trial counsel
already knew.1 Even assuming the prosecution failed to disclose some evidence of
Jeff’s bad acts, we cannot conclude the additional evidence was material. United
States v. Sedaghaty, 728 F.3d 885, 900 (9th Cir. 2013).
Petitioner’s Brady claims concerning the prosecution’s alleged failure to
disclose possible alternate perpetrators and its alleged failure to disclose Swogger’s
recantation also fail. The information about alternate perpetrators would not, if
disclosed, have undermined confidence in the fairness of the trial or the verdict.
Sedaghaty, 728 F.3d at 900. Swogger’s statement to federal habeas counsel was
unsworn; there is no corroborating evidence that Swogger initiated contact with the
police; Swogger acknowledged at trial that he wanted “a deal” in exchange for
testifying; and on cross-examination, the defense brought out Swogger’s letter to
Detective Rodriguez. In short, the defense thoroughly impeached Swogger’s
1
For instance, a General Offense Report from April 8, 1990 describing
an incident in which Robin Smith alleges Jeff came to her place of employment
and threatened her was included in the defense’s Exhibit AA at trial, and a
corresponding Complaint Report was disclosed in the most recent discovery. Since
this incident was known to trial counsel, the alleged failure to disclose the
Complaint Report detailing the same incident fails Brady’s materiality prong.
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credibility. Swogger’s recantation would not have raised a “reasonable
probability” of a different result. Kyles v. Whitley, 514 U.S. 419, 434 (1995).
Finally, Petitioner asserts a Brady violation related to the prosecution’s
failure to disclose Jaime Hill’s statement to police. This is the only Brady claim
that was properly raised and exhausted in state proceedings. Given the
inconsistencies in Hill’s testimony, her father’s uncertainty about when the
incident took place, and the lack of evidence that officials working on the Downard
case knew about the incident such that they would have had a duty to disclose it to
the defense, we cannot conclude the issue is “debatable among jurists of reason.”
Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (internal quotation
marks omitted).
6. Petitioner also argues the district court’s denial of his requests for testing
and investigation constituted an abuse of discretion. Petitioner’s discovery request
related only to his unmeritorious ineffective assistance of counsel claim for failing
to independently test forensic evidence. Because we hold trial counsel did not
render ineffective assistance in his investigation of forensic evidence, the district
court did not abuse its discretion by denying Petitioner’s request for funding and
discovery.
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Petitioner argues the district court’s denial of his federal habeas counsel’s
request to depose James Swogger constituted an abuse of discretion. The only
claims remaining in Petitioner’s Amended Petition when the court denied his
discovery request concerned the right to present a defense and ineffective
assistance of trial and appellate counsel, and Petitioner did not indicate how
deposing Swogger would be germane to these substantive claims. He therefore has
not made a substantial showing of the denial of a constitutional right. See 28
U.S.C. § 2253.
7. Finally, Petitioner has not shown there is a “‘unique symmetry’ of
otherwise harmless errors, such that they amplify each other in relation to a key
contested issue in the case,” Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir.
2011) (quoting Parle v. Runnels, 505 F.3d 922, 933 (9th Cir. 2007)), nor otherwise
explained why this rarely successful doctrine is applicable here, see Harris ex rel.
Ramseyer v. Wood, 64 F.3d 1432, 1438 (9th Cir. 1995). Accordingly, he did not
show cumulative error.
AFFIRMED.
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