Eric Presley v. Jeff Premo , 701 F. App'x 619 ( 2017 )

FILED
NOT FOR PUBLICATION
JUL 12 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIC PRESLEY, No. 15-35420
Petitioner-Appellant, D.C. No. 6:12-cv-02169- PK
v.
MEMORANDUM*
JEFF PREMO, Superintendent,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, Chief District Judge, Presiding
Submitted June 8, 2017**
Portland, Oregon
Before: TASHIMA, GOULD, and RAWLINSON, Circuit Judges.
Eric Presley was indicted for his role in separate robberies of the Thatcher
Tavern and the Wilshire Tavern. Presley moved to sever the charges stemming
from these two robberies. The state trial judge denied the motion. Presley then
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
waived his right to a jury trial on the Thatcher Tavern charges, but requested a jury
as to the Wilshire Tavern charges.
On the morning the Wilshire Tavern trial was set to begin, Presley requested
new counsel, citing a conflict of interest with his current attorney. After a colloquy
with Presley, the trial judge denied his request. Shortly thereafter, however,
Presley’s counsel renewed his request to sever the charges, this time taking issue
with statements made by the trial judge during the colloquy. The trial judge
reversed his earlier decision and agreed to sever the cases: another judge would
hear the Thatcher Tavern case, while he would continue to oversee the Wilshire
Tavern trial. A jury convicted Presley on the Wilshire Tavern charges and he pled
no contest to two of the Thatcher Tavern charges. Presley was sentenced to 340
months’ incarceration. The Oregon Court of Appeals denied Presley’s direct
appeal and the Oregon Supreme Court denied review.
After unsuccessfully seeking post-conviction relief in Oregon state courts,
Presley filed the instant petition pursuant to 28 U.S.C. § 2254. The district court
denied Presley’s petition. This appeal followed. A Certificate of Appealability
was granted on the issue of “whether the trial judge’s failure to recuse himself
despite the appearance of judicial bias violated [Presley’s] due process rights.”
2
Assuming, without deciding, that Presley’s § 2254 petition adequately raised
a claim of judicial bias and, assuming further, that this claim was not procedurally
barred, see Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (noting that a
procedural bar issue need not always be resolved first), we consider the merits of
his claim. We have jurisdiction pursuant to 28 U.S.C. § 2253(a) and we affirm.
In his state post-conviction petition, Presley argued he was denied due
process when he was not afforded an impartial judge. The Oregon Circuit Court
rejected his argument as insufficiently supported by evidence, a decision affirmed
on appeal.
Under the Antiterrorism and Effective Death Penalty Act of 1996, where, as
here, “a state court has adjudicated a claim on the merits, we may grant relief only
if the adjudication of that 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, or (2) 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.’” Hurles v. Ryan, 752 F.3d 768,
777 (9th Cir. 2014) (quoting 28 U.S.C. § 2254(d)).
Presley’s judicial bias claim is premised on three purportedly improper
statements by the trial judge. The first statement came during a pre-trial settlement
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conference, wherein the trial judge asked whether Presley would accept a plea offer
of 180 months’ incarceration. The second statement came in response to Presley’s
motion to substitute counsel. Presley sought new counsel because his current
attorney had an alleged conflict of interest: engaging in plea negotiations despite
Presley’s stated preference for proceeding to trial. In denying the motion, the trial
judge explained that he had encouraged plea negotiations because the evidence
against Presley, including DNA evidence, was relatively strong and that a
conviction could result in a life sentence. The third statement came in response to
Presley’s renewed motion to sever. The trial judge again referenced the DNA
evidence, of which he learned from the parties’ briefing. Out of an abundance of
caution, however, the judge granted Presley’s renewed motion to sever.
According to Presley, these statements revealed a biased judge who had
made a “fixed, anticipatory judgment” as to his guilt, and who had become “so
enmeshed” in the parties’ plea negotiations that he was no longer a “neutral
arbiter.” Presley argued that the presence of a biased judge is a structural error
that demands reversal, even absent a showing of prejudice.
Presley’s argument fails for two reasons. First, he fails to show how the
Oregon Circuit Court’s decision was “contrary to” or otherwise “involved an
unreasonable application of,” a controlling Supreme Court precedent. To be sure,
4
Presley cites for support the Supreme Court’s decision in Bracy v. Gramley, 520
U.S. 899, 904 (1997). But Bracy merely reiterates the broad rule that a biased
judge may well give rise to a due process violation. See id. at 904–05. And its
facts – which involved the bribery of a judge, id. at 901–04 – are far afield from
those at issue here. The AEDPA standard is a demanding one and Presley’s
reliance on Bracy fails to satisfy it.
Second, we have previously considered – and rejected – an analogous
§ 2254 petition that raised a claim of judicial bias premised on facts more
egregious than those at issue here. In Crater v. Galaza, 491 F.3d 1119, 1131 (9th
Cir. 2007), petitioner Crater alleged bias where a trial judge: (1) stated that Crater
would likely be found guilty; (2) encouraged Crater to accept the government’s
plea offer because it reflected a “major concession”; (3) explained that he had
“already heard all of the witnesses” and knew “everything that happened that
night” such that he was “real sure that [Crater was] going to be convicted of all of
those robberies . . . [and] of shooting the first robbery victim”; and (4) opined that
“[a] jury is not going to like [Crater]” and, therefore, that Crater “will die in
prison” should he go to trial. Id. at 1130–31. After reviewing the cases in which
the Supreme Court had found judicial bias, we affirmed the state court’s denial of
Crater’s claim. Id. at 1131–32. Because the statements in Crater were more
5
egregious than those now challenged by Presley, we must reach the same
conclusion here.
The district court’s denial of Presley’s habeas petition is
AFFIRMED.
6
FILED
Presley v. Premo, Case No. 15-35420
JUL 12 2017
Rawlinson, Circuit Judge, concurring:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the result.