# Sandoval v. Cain

> District Court, D. Oregon · March 20, 2023

URL: https://www.frixlaw.com/law-library/cases/10395794

## Case

- **Court:** District Court, D. Oregon
- **Decided:** March 20, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

LEONARD CONTRERAS SANDOVAL,
Case No. 2:19-cv-01278-SI
Petitioner,
OPINION AND ORDER
v.

BRAD CAIN,

Respondent.

Susan F. Wilk
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204

Attorney for Petitioner

Ellen F. Rosenblum, Attorney General
James M. Aaron, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310

Attorneys for Respondent
SIMON, District Judge.
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the
legality of his Josephine County murder conviction dated March 6, 2009. For the reasons that
follow, the Amended Petition for Writ of Habeas Corpus (#23) is denied.
BACKGROUND
Petitioner and Jack Whitcraft, two residents of a small town in Josephine County, had an
acrimonious relationship. While Petitioner and his wife, Mary Carlson, were separated but still
married, she became engaged in a romantic relationship with Whitcraft and married him after she

and Petitioner divorced. Thereafter, Petitioner was “forever” harassing and threatening Carlson
and Whitcraft, and had specifically told Carlson, “If I can’t have you, no one can.” Trial
Transcript, pp. 1033, 1035.1 He threatened to kill her, Whitcraft and anyone who was helping
her. Id at 1035. At times, Carlson would be walking down the street while Petitioner was driving
down the same street. He would swerve his vehicle close to her, reach out, and hit whatever she
was carrying in her hand. Id at 1037.
After his divorce from Carlson, Petitioner entered into a relationship with Robin Garten
for approximately three years in the late 1990’s. He then began a relationship with another

woman, Janice Rose. Rose’s mother lived two houses away from the home Carlson and
Whitcraft occupied, placing these four other individuals within frequent proximity to each other.
Petitioner and Rose were “both tearing in and out of the road all the time and making gestures at
[Carlson].” Id. Petitioner would gesticulate, “[u]sually the middle finger,” and this would occur
“[t]here, four, five times a week, every time [Petitioner] came in.” Id.

1 Citations to the trial transcript are to the numbers located at the bottom right of the pages.
Despite the fact that Carlson had obtained a restraining order against Petitioner after he
attempted to hit her with his truck while she was standing in her yard, the confrontations
escalated in late 2000 and 2001. Petitioner would stalk Carlson and “pretty much didn’t let [her]
go anyplace freely.” Id at 1039. Petitioner also demonstrated consistent animosity toward
Whitcraft and, on one occasion, attempted to run him off the road after Whitcraft exited a gas
station. Id at 1039. Whitcraft told Carlson that “one of these times [Petitioner is] actually going
to get [Whitcraft] run off the road and [Whitcraft’s] afraid that one of these times that the
[Petitioner] is going to pull a gun and shoot him when he’s . . . driving.” Id at 1041.

Tensions between Petitioner and Whitcraft continued to run high, and at least one person
heard Whitcraft say he would like to kill Petitioner. Id at 1473. On July 18, 2001, Whitcraft and
Petitioner were both at the Lil Pantry convenience store when they became involved in a
physical altercation. It is not known who instigated the fight and, while Whitcraft was bloody,
his glasses were broken, and his shirt had been ripped off, it is uncontroverted that he prevailed
in the fight. Id at 1041. In the aftermath of that altercation, “it seemed like [Petitioner’s] attitude
had changed . . . he was more anxious and more angry.” Id at 1089. According to Rose, “he
wasn’t the person that I had known. He was very angry, he was very nervous, he couldn’t stay in

one sport very long, very agitated.” Id.
For his part, in the wake of the fight at the Lil Pantry, Whitcraft feared that “because he
had finally got the better of [Petitioner] that [Petitioner] would retaliate and probably shoot him.”
Id at 1041. Approximately eight weeks after the altercation, on September 13, 2001, Whitcraft
called Carlson at home:

He was very agitated, very scared, his voice was very shaky, said
he had just talked to the Police Department – or, the Sheriff’s
Department and told me why.
* * *

. . . the [Petitioner] had caught him at the red light at the Robertson
Bridge Road and pulled a gun on him and then followed him up to
Harvey’s when he went in there, but didn’t follow him in and he
was just afraid that he’d come back and shoot him.

* * *

. . . he told me to watch out because now he’s done this and
[Petitioner will] probably come for me next.
Id.2
Whitcraft and Carlson discussed the incident at length and agreed that Whitcraft should
start carrying a revolver with him when he left the house.3 Carslon gave him a .44-caliber
revolver Petitioner had given her as a present on Valentine’s Day 1984, and Whitcraft kept it on
the seat next to him when he drove, except when Carlson was with him in which case he kept it
on the dashboard of his vehicle.
Two weeks later, on September 27, 2001, Whitcraft was driving on Pickett Creek Road
outside of Merlin, Oregon when Petitioner shot and killed him. There were no witnesses to the
shooting. The evidence showed that Whitcraft had slammed the brakes on his pickup truck in an
uncontrolled stop. When law enforcement showed up at the scene, the back of Whitcraft’s truck
was in contact with the front of Petitioner’s Ford Bronco, and there was damage to the left front
quarter panel of the Bronco. Whitcraft’s truck was still running and the gear selector was in
neutral while the Bronco was not running and the gear selector was in third gear.4 The driver’s

2 It is unclear when, but there was also an incident where Petitioner pointed a pistol at Carlson from the driver’s side
of his car as Carlson was driving in her own vehicle. Trial Transcript, p. 1043.
3 Prior to the incident where Petitioner pointed the firearm at Whitcraft, Whitcraft did not regularly carry a firearm.
Trial Transcript, p. 1043.
4 Petitioner told police that when he left the scene to call 9-1-1, Whitcraft’s truck was still running with the gear
selector in reverse. Respondent’s Exhibit 134, p. 39.
side door of Whitcraft’s truck was open, and his body lay partially in the roadway with his feet
still tangled up in the interior speaker wiring of his truck’s cabin. His .44-caliber revolver was
cocked, loaded, and underneath his body. Petitioner had fired a single shot from his bolt-action
rifle which pierced the rear window of Whitcraft’s pickup, entered the rear of his skull on the
lower left side, and exited above his right eye. Responding officers found an ejected single rifle
shell casing outside and underneath the Bronco. Trial Transcript, pp. 1315-17.
Approximately 90 minutes after the shooting, Detective Rylander interviewed Petitioner.
He claimed he had killed Whitcraft in self-defense. According to Petitioner’s version of events,

he was on his way to visit with Tyrone Montgomery, a service officer for Veterans Affairs, about
increasing his benefits. He then planned to deliver grass seed to a friend who wanted to seed a
muddy portion of his yard.5 He was at a stop sign on a road running perpendicular to Pickett
Creek Road when he saw Whitcraft drive by in front of him. Petitioner claimed that when he
turned right onto Pickett Creek Road (placing him behind Whitcraft), Whitcraft slammed on his
brakes, reversed the vehicle, and intentionally crashed into the front of Petitioner’s Ford Bronco.
Petitioner related that after the collision, he peered through the rear window of
Whitcraft’s pickup truck and saw him reach over and grab a revolver. Whitcraft then allegedly

opened the door of his truck, stepped out with one leg, and began turning toward Petitioner such
that he was facing Petitioner and pointing the revolver at him. Respondent’s Exhibit 134, pp. 29-
33. Petitioner stated that he retrieved his rifle from behind his seat, chambered a round from the
loaded magazine, opened the door of his Bronco, and fired without aiming while still seated in
the vehicle. Id at 33-36. Despite killing Whitcraft with a single, well-placed shot, Petitioner

5 Petitioner did not have any grass seed in his car that day. Trial Transcript, p. 785.
stated that he not only lacked the time to look through his rifle’s scope, but also did not have
time to look down the barrel before firing what he claimed was simply a lucky shot. Id at 37.
Approximately 80 minutes after Petitioner participated in this interview, he changed his
recollection of events. At the time, he was riding in a vehicle with Rylander who was not
questioning him. Petitioner initiated a new conversation where he advised Rylander that,
contrary to his earlier statement during his interview, Whitcraft had never actually exited his
vehicle but was instead preparing to do so.
The Josephine County Grand jury indicted Petitioner on one count of murder with a

firearm. He proceeded to a jury trial where the State highlighted how certain discrepancies in
Petitioner’s recollection of events was inconsistent with the physical evidence at the scene. For
instance, Because Whitcraft had both of his feet tangled in his car’s interior wiring, he could not
have stepped out of the vehicle as Petitioner initially told police. Id at 1212, 1214.
In addition, based upon the position of the vehicles and trajectory of the bullet, the
physical evidence suggested that Whitcraft had either been in the normal driving position with
his head facing forward, or possibly turning his head slightly and starting to make a movement to
grab the door. He had not, however, made any significant movement to exit the vehicle when

Petitioner shot him. Id at 1234-38, 1238, 1257, 1315-17, 1321-22. Contrary to Petitioner’s initial
statements to Rylander, Whitcraft had not been exiting his car, facing Petitioner with his gun
drawn at the time Petitioner killed him. This was important not only because Petitioner stated
that he had been in his Bronco, under attack, when he fired his weapon, but also because his
neighbors testified that they frequently witnessed him practice a shooting maneuver where he
would drive his car at a high rate of speed, abruptly stop the vehicle, jump out, and shoot his
firearm. Id at 1416, 1424, 1428.
Testimony at trial also revealed Petitioner’s fixation with Whitcraft and Carlson. Rose
testified at trial that Petitioner “had a real hatred for Mary” and she “could see the anger in him
building.” Id at 1085. She recalled riding with Petitioner on one occasion when he glimpsed
Whitcraft driving. “[H]e was getting real close to the bumper, getting very aggressive.” Id at
1087. According to Rose, Whitcraft “got so scared that he pulled over into the oncoming lane
and [Petitioner] just hit the gas and got side-by-side’ with him and they were flipping each other
off.” Id. On another occasion, they were out driving when Petitioner saw Whitcraft and Carlson
driving, and “he’d just get real close to the bumper and start cussing. . . and acting very angry

and volatile.” Id. Rose screamed at Petitioner to stop and leave the couple alone. Petitioner did
not explain to her why he was engaging in such aggressive behavior, “he was just angry, just a
rage.” Id. These actions were consistent with a scheme he related to Rose shortly before he killed
Whitcraft. He told her, “‘Mary has a gun in her car at all times so if they come out of the car with
a gun from the car I’ll shoot them, it’ll be self-defense.’” Id.
Garten testified that during her time dating Petitioner, he talked about Whitcraft and
Carlson “constantly,” that he “always had something bad to say about them,” and told her he was
going to kill Whitcraft and Carlson and “make a blood bath out of it.” Id at 1123. She recalled

that Petitioner tried to intimidate Carlson both in town and where she lived, and that he
frequently talked about killing Carlson and Whitcraft. Id at 1125.
Gary Sell, another local resident, testified about the first occasion he met Petitioner. A
third party introduced him to Petitioner, stating that Sell was a friend of Whitcraft’s. According
to Sell, “the first thing that comes out of [Petitioner’s] mouth is he’s going to shoot [Whitcraft]
and fill him full of lead.” Id at 781. Sell stated “it wasn’t joking. Yeah, it was serious.” Id.
The jury convicted Petitioner of intentional murder with a firearm and the trial court
sentenced him to life in prison with a 300-month minimum sentence. The Oregon Court of
Appeals affirmed the trial court’s decision without issuing a written opinion, State v. Sandoval,
204 Or. App. 457, 130 P.3d 808 (2006), but the Oregon Supreme Court granted review, reversed
the conviction, and remanded the case for a new trial based upon an erroneous jury instruction.
342 Or. 506, 156 P.3d 60 (2007).
In 2009, the State retried Petitioner. Once again, a jury convicted him of intentional
murder with a firearm and the trial judge sentenced him to life in prison with a 300-month

minimum. The Oregon Court of Appeals affirmed the conviction without opinion, and the
Oregon Supreme Court denied review. State v. Sandoval, 246 Or. App. 577, 266 P.3d 669
(2011), rev. denied, 351 Or. 649, 275 P.3d 968 (2012).
Petitioner next filed for post-conviction relief (“PCR”) in Malheur County. Among the
many claims he raised, he asserted that his attorney from his 2009 trial had been ineffective for
failing to: (1) investigate Petitioner’s military and Veterans’ Administration records; (2) retain an
expert in self-defense and use of force; and (3) retain an expert in military training and combat
who could have provided evidence about how Petitioner’s killing of Whitcraft might have been a

conditioned response. Respondent’s Exhibit 123. The PCR court concluded that trial counsel
performed deficiently when he did not obtain Petitioner’s military records and consult self-
defense and use-of-force experts. Respondent’s Exhibit 170, p. 211. Noting that this was a very
difficult case, the PCR court did not, however, find that Petitioner had established prejudice. The
Oregon Court of Appeals affirmed the PCR court’s decision without opinion, and the Oregon
Supreme Court denied review. Sandoval v. Nooth, 294 Or. App. 511, 429 P.3d 448 (2018), rev.
denied, 364Or. 535, 437 P.3d 1139 (2019).
Petitioner filed this federal habeas corpus action on August 14, 2019, and the Court
appointed counsel to represent him. On April 6, 2020, Petitioner filed his Amended Petition for
Writ of Habeas Corpus (#23) wherein he raises four grounds for relief containing numerous sub-
parts. Respondent asks the Court to deny relief on the Amended Petition because: (1) with the
exception of Grounds I, III(A), III(B)(b), and III (B)(d), Petitioner failed to fairly present his
claims to Oregon’s state courts and they are now procedurally defaulted; and (2) Oregon’s state
courts denied relief on Petitioner’s fairly presented claims in decisions that are reasonable and
entitled to deference.

DISCUSSION
I. Unargued Claims
In his briefing, Petitioner argues that: (1) the trial court violated his right to due process
when it admitted evidence that was irrelevant and prejudicial (Ground I); and (2) trial counsel
was ineffective for failing to obtain his military records and consult experts on use of force, self-
defense, combat, and military training (Grounds III(A), III(B)(b), and III(B)(d)). He does not,
however, address Respondent’s contention that the remainder of his claims are procedurally
defaulted and ineligible for federal habeas corpus review. Where Petitioner has not addressed

this procedural issue, he has not carried his burden of proof with respect to these unargued
claims. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (Petitioner bears the burden of
proving his claims). Even if Petitioner had briefed the procedural issue, the Court has examined
the unargued claims based upon the existing record and determined that they do not entitle him
to relief.
///
///
II. Standard of Review
Review in this case is governed by the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”) of 1996. An application for a writ of habeas corpus shall not be granted unless
adjudication of the claim in state court resulted in a decision that was: (1) "contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States;" or (2) "based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state
court decision is "contrary to . . . clearly established precedent if the state court applies a rule that

contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court
confronts a set of facts that are materially indistinguishable from a decision of [the Supreme]
Court and nevertheless arrives at a result different from [that] precedent." Williams v. Taylor,
529 U.S. 362, 405-06 (2000).
Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may
grant relief "if the state court identifies the correct governing legal principle from [the Supreme
Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id at
413. The "unreasonable application" clause requires the state court decision to be more than

incorrect or erroneous. Id at 410. Twenty-eight U.S.C. § 2254(d) "preserves authority to issue the
writ in cases where there is no possibility fairminded jurists could disagree that the state court's
decision conflicts with [the Supreme] Court's precedents. It goes no farther." Harrington v.
Richter, 562 U.S. 86, 102 (2011).
Twenty-eight U.S.C. § 2254(d)(2) allows a petitioner to “challenge the substance of the
state court’s findings and attempt to show that those findings were not supported by substantial
evidence in the state court record.” Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). A
state court renders an unreasonable determination of the facts if it “plainly misapprehends or
misstates the record in making its findings or where the state court has before it, yet apparently
ignores, evidence that supports petitioner’s claim.” Andrew v. Davis, 944 F.3d 1092, 1107 (9th
Cir. 2019) (internal quotations omitted). A federal habeas court cannot overturn a state court
decision on factual grounds “unless objectively unreasonable in light of the evidence presented
in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). This is a
“‘daunting standard—one that will be satisfied in relatively few cases,’ especially because we
must be ‘particularly deferential to our state-court colleagues.’” Hernandez v. Holland, 750 F.3d

843, 857 (9th Cir. 2014) (quoting Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)).
When a state court reaches a decision on the merits but provides no reasoning to support
its conclusion, the federal habeas court must conduct an independent review of the record to
determine whether the state court clearly erred in its application of Supreme Court law. Delgado
v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). In such an instance, although the federal court
independently reviews the record, it still lends deference to the state court's ultimate decision and
will only grant habeas relief if the state court’s decision was objectively unreasonable. Richter,
562 U.S. at 98; Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

III. Ground One: Due Process
As Ground One, Petitioner alleges that the trial court improperly admitted testimony from
Michelle Clayburn, a neighbor who lived between Carlson and Rose. He claims that that the trial
court erroneously overruled objections to her testimony that he: (1) sat in Rose’s yard sharpening
knives; (2) carried firearms from his house to his vehicle; (3) intimidated Clayburn; (4) allowed
his pit bulls charged the fence at Clayburn’s children; and (5) threatened both Rose and
Clayburn. Because the Oregon Court of Appeals did not provide any rationale for its affirmance
of the trial court’s decision, this Court conducts an independent review of the record with respect
to this claim.
Petitioner asserts that the trial court’s evidentiary rulings as to Clayburn’s testimony are
contrary to clearly established federal law. However, in 2009, the Ninth Circuit addressed
whether due process claims of this nature can qualify for habeas corpus relief and concluded that
they cannot:

Under AEDPA, even clearly erroneous admissions of evidence that
render a trial fundamentally unfair may not permit the grant of
federal habeas corpus relief if not forbidden by “clearly established
Federal law,” as laid out by the Supreme Court. In cases where the
Supreme Court has not adequately addressed a claim, this court
cannot use its own precedent to find a state court ruling
unreasonable.

The Supreme Court has made very few rulings regarding the
admission of evidence as a violation of due process. Although the
Court has been clear that a writ should be issued when
constitutional errors have rendered the trial fundamentally unfair, it
has not yet made a clear ruling that admission of irrelevant or
overtly prejudicial evidence constitutes a due process violation
sufficient to warrant issuance of the writ. Absent such “clearly
established Federal law,” we cannot conclude that the state court’s
ruling was an unreasonable application.” Under the strict standards
of AEDPA, we are therefore without power to issue the writ on the
basis of [the petitioner’s] additional claims.
Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (internal citations omitted).6
Petitioner argues that clearly established federal law exists that would permit this Court
to grant habeas corpus relief. He directs the Court to Dowling v. United States, 493 U.S. 342, 353
(1990), where the Supreme Court concluded that improper admission of unduly prejudicial
evidence of other bad acts may violate due process. He also points out that in McKinney v. Rees,

6 The Ninth Circuit concluded that, but for the “clearly established federal law” restriction applicable to habeas
corpus cases, it would have granted relief because the admission of irrelevant and prejudicial evidence in Holley
“resulted in a trial that was fundamentally unfair and would warrant issuance of the writ under [the Ninth Circuit’s]
precedent.” Holley, 568 F.3d at 1101 n.2.
993 F.2d 1378 (9th Cir. 1993), the Ninth Circuit stated that the use of “other acts” evidence as
character evidence is “contrary to firmly established principles of Anglo-American
jurisprudence.” Id at 1380.
Both of these cases predate the AEDPA as well as the Ninth Circuit’s decision in Holley
wherein the appellate court had occasion to conclude that there is no clearly established federal
law governing due process claims arising out of state evidentiary rulings. No subsequent en banc
opinion by the Ninth Circuit has overruled Holley, and Petitioner points to no clearly established
federal law the Supreme Court issued in the years following Holley that would provide a basis

for habeas corpus relief. Where precedent establishes that there is no clearly established federal
law on point as to Petitioner’s due process claim, he is not entitled to relief.
IV. Ground III: Ineffective Assistance of Counsel
As Ground Three, Petitioner argues three fairly presented claims of ineffective assistance
of counsel. He asserts that his trial attorney neglected to obtain his military records (Ground
III(A)), consult with and retain an expert in self-defense and use of force (Ground III(B)(b)), and
consult with and retain an expert in military training and combat (Ground III(B)(d)). The Court
uses the general two-part test established by the Supreme Court to determine whether Petitioner

received ineffective assistance of counsel. Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009).
First, Petitioner must show that his counsel's performance fell below an objective
standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 686-87 (1984). Due to the
difficulties in evaluating counsel's performance, courts must indulge a strong presumption that
the conduct falls within the "wide range of reasonable professional assistance." Id at 689.
Second, Petitioner must show that his counsel's performance prejudiced the defense. The
appropriate test for prejudice is whether Petitioner can 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. A reasonable probability is one which is sufficient to undermine
confidence in the outcome of the trial. Id at 696. “The likelihood of a different result must be
substantial, not just conceivable.” Richter, 562 U.S. 86, 112 (2011) (citing Strickland, 466 U.S.
at 693). When Strickland's general standard is combined with the standard of review governing
28 U.S.C. § 2254 habeas corpus cases, the result is a "doubly deferential judicial review."
Mirzayance, 556 U.S. at 122.
After personally reviewing “90 percent” of the trial transcript, the PCR judge determined

that although counsel’s performance fell below an objective standard of reasonableness for
failing to obtain Petitioner’s military records and consult with defense and use-of-force experts,
Petitioner had not established prejudice.

But my goodness, you know he’s a military veteran, I think you
need to get the records. I think you need to at least consider and at
least speak to a self-defense expert and a use-of-force expert.

* * *

. . . when you look at is his performance deficient, in those two
areas, not hiring – and you don’t want to (indiscernible) jury with
eight experts, but in hiring one or two or at least consulting with
them (indiscernible) use-of-force and self-defense and in
conjunction with getting the military records and providing those
to the experts, I find (trial counsel) was deficient.

* * *

The problem . . . in [Petitioner’s] case is finding adequate prejudice
to [Petitioner]. In that I have to look at all of the evidence that was
presented.

* * *

The evidence is extremely strong, circumstantial or not, that this
was a setup – albeit, a really creative and unusual setup. And
maybe if Mr. Whitcraft, the victim, hadn’t acted in the way he did
everybody would have driven off and something would have
happened, possibly happened a week later, who knows.

But the fact of the matter is there is enough evidence for the jury in
this case, even hearing the experts that I’ve said I believe should
have been called or at least consulted, that I don’t – I cannot find
as a matter of law that the deficiencies by trial counsel had a
tendency to affect [any] result under the standards set forth not
only by Strickland, but by Green v. Franke.

So with some reluctance, because this case bothers me – I didn’t –
and I’m very serious this is one of the toughest cases I’ve had, and
I’ve had hundreds. I really think trial counsel should have done a
better job for this gentleman.

But can I find that he prejudiced him to the point where he’s
entitled to post-conviction relief? I just cannot do that and so my
verdict is for the defendant. I will make the appropriate findings
and the judgment.
Respondent’s Exhibit 170, pp. 211-13.
A. Applicability of AEDPA’s Standard of Review
Petitioner first asserts that the AEDPA’s standard of review does not apply to this Court’s
review of his ineffective assistance of counsel claims because the PCR judge, by his own
estimation, read only 90 percent of the trial transcript. The applicability of the AEDPA’s strict
standard of review is governed by whether a state court adjudicated Petitioner’s claims on the
merits, not on the depth of its review of the case file. When a state court has not passed upon the
merits of a claim that a habeas petitioner properly raises in federal court, the claim is reviewed de
novo. Cone v. Bell, 556 U.S. 449 (2009). However, when, as here, a state court has addressed the
merits of a claim, the AEDPA deferential standard of review applies. Kernan v. Hinojosa, 578
U.S. 412, 413 (2016) (per curiam); Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004).
Petitioner also argues that the PCR judge’s failure to read every page of the trial
transcript compels the conclusion that he unreasonably applied Strickland because that case
obligated him to consider the issue of prejudice in light of the totality of the evidence adduced at
trial as well as the evidence counsel should have presented. See Strickland, 466 U.S. at 695. The
fact that the PCR judge did not personally read every page of the trial transcript does not compel
the conclusion that he did not consider the totality of the evidence. The Supreme Court has never
impose such a requirement when evaluating Strickland claims. Moreover, contrary to
constituting a statement that he had not considered the totality of the evidence, this Court views
the PCR judge’s statement that he had personally read the vast majority of the trial transcript as a
reflection of the time and attention he personally devoted to Petitioner’s case. Under Petitioner’s

construction, the Court would have to interpret the PCR judge as stating on the record that
although this case was particularly difficult and troubling, he was also refusing to consider the
totality of the evidence. This is a nonsensical interpretation.
It was within the PCR judge’s discretion to closely examine the portions of the transcript
he felt were most relevant to the issues Petitioner presented. In this respect, the PCR judge did
not unreasonably apply Strickland when he performed a targeted review of the record.
Accordingly, this Court will apply the AEDPA’s standard of review. Where the PCR court
denied Petitioner’s ineffective assistance of counsel claims based upon an insufficient showing

of prejudice, this Court begins its analysis with that same inquiry.
B. Analysis
During his PCR action, Petitioner provided evidence from multiple expert witnesses, two
of whom are at issue in this habeas corpus case.7 Timothy Charpenter, a military training expert,

7 Despite presenting evidence from numerous experts during his PCR hearing, during his PCR appeal he winnowed
his claims down to those involving only Charpenter and Bedard. Respondent’s Exhibits 173 & 175. As a result,
how other expert testimony might have impacted his trial is not preserved for habeas corpus review. See Rose v.
Lundy, 455 U.S. 509, 519 (1982) (only claims fairly presented to a state’s highest court are eligible for habeas
corpus consideration).
reviewed Petitioner’s records and stated that the military had instructed him in rifle
marksmanship and that his training was intended to not only teach a particular skill, but also to
desensitize him to the use of force. He stated that Whitcraft’s actions constituted an ambush of
opportunity by: (1) suddenly stopping his vehicle; (2) reversing the vehicle so as to seal off
Petitioner’s immediate routes of escape and gain an advantage; and (3) immediately opening his
door, prepared to exploit the kill zone he had created with a drawn and cocked pistol.
Respondent’s Exhibit 142, p. 5. He further provided that the military conditions its soldiers to
react to such ambush situations “quickly and aggressively with lethal force,” and that Petitioner’s

combat experiences as an aerial door gunner in Vietnam reinforced that training. Id at 5-6. It
was his opinion that Petitioner reacted to Whitcraft’s purported threat in accordance with his
training. Id at 6-7.
Petitioner also introduced evidence from Roy R. Bedard, an expert in defensive tactics
and use of force. He stated that, assuming Petitioner’s version of events was true, it was
reasonable to assume that his life was in danger and he had to be entirely self-reliant in his own
defense. Respondent’s Exhibit 137, pp. 14-15. He found that all of the physical evidence
supported Petitioner’s statements, found no reason to dispute the credibility or reliability of his

version of events, and concluded that Petitioner’s actions were consistent with accepted
standards of appropriate self-defense.8 Id at 28, 39.
Petitioner argues that the testimony of these two individuals (or similar experts) would
have been particularly important to provide context to his reaction to the threat Whitcraft posed.
He claims that the expert testimony would have made it clear that the position of his Ford

8 Although Bedard also rendered an opinion on “critical incident amnesia,” the PCR court did consider that portion
of Bedard’s Declaration because he was not qualified to render an opinion on that subject. Respondent’s Exhibit
170, p. 22.
Bronco rendered implausible the State’s theory that Petitioner controlled the encounter and shot
from outside his vehicle. He contends that although there were multiple eyewitness accounts to
Petitioner’s frequent practice of jumping from his vehicle and firing his weapon, Charpenter
might have explained at trial that Petitioner had a desire to keep up with his training and not lose
a perishable skill.9
As Petitioner states, this Court must imagine the trial as if the jury had heard the
testimony from both Charpenter and Bedard. However, it must also view the PCR court’s
decision through the deferential lens of the AEDPA which reserves habeas corpus relief only for

unreasonable decisions by the state courts. Here, any testimony by Charpenter or Bedard would
have been of somewhat limited value because their opinions assume the veracity of Petitioner’s
version of events to establish Whitcraft as the aggressor. See, e.g., Respondent’s Exhibit 137,
p. 14 (“Assuming Sandoval’s version of events . . .”).
Even if this were not the case, the PCR court correctly stated that there was strong
evidence of Petitioner’s guilt adduced at trial.10 Despite the fact that Whitcraft prevailed against
Petitioner in the physical altercation at the Lil Pantry and had stated to at least one person that he
would like to kill Petitioner, the testimony at trial generally portrayed Petitioner as the historic

aggressor against Whitcraft. The witnesses testified that Petitioner was angry about losing
Carlson, stalked and terrorized Whitcraft and Carlson for years, and threatened them through
words and actions (including with a firearm). Two of Petitioner’s former girlfriends (Rose and
Garten) and another individual whom he had just met (Sell) all testified that Petitioner personally

9 Charpenter testified at the PCR hearing only that a person who wishes to keep military training can do so through
practice to ensure muscle memory, not that Petitioner had done so. Respondent’s Exhibit 170, p. 176.
10 Petitioner also contends that the PCR court’s implicit finding that Petitioner was not credible is so clearly
incorrect as to constitute an unreasonable determination of the facts. As is evident in this Opinion, there was ample
evidence of Petitioner’s guilt such that the PCR judge’s implicit determination on his credibility was not
unreasonable.
told them he would like to kill Whitcraft. According to Rose, Petitioner told her he had a plan to
prompt Carlson or Whitcraft to brandish a firearm so he could shoot them and claim self-defense.
Petitioner’s many acts of provocation are consistent with Rose’s testimony.
Witnesses also testified that they saw Petitioner practice a shooting maneuver whereby he
would approach his target area in his car at a high rate of speed, abruptly stop, exit his vehicle,
and fire his weapon. Given the trial testimony about the position of the two vehicles and the
trajectory of the bullet that killed Whitcraft, these practice ambush-style maneuvers were not
dissimilar to the evidence that tended to show Petitioner exited his Bronco with a firearm and

shot Whitcraft in the back of the head with a single shot before Whitcraft had a chance to exit his
pickup truck. The accuracy of Petitioner’s round and it’s angle of impact with both the rear
window of Whitcraft’s truck as well as his head belie Petitioner’s statements to Rylander that he
simply fired a lucky, right-handed shot from his driver’s seat without ever having exited his
vehicle, and also without the benefit of aim or even the chance to look down the barrel of his
rifle. The fact that, decades earlier, the military had trained him for combat in Vietnam and that
he had served in combat during that conflict would not have been particularly significant to
explain such incredible accuracy.

In addition to the physical evidence derived from the scene of the killing, Petitioner’s
inconsistent statements were also damaging to the defense. He first told Detective Rylander that
he shot Whitcraft only after Whitcraft had exited his pickup truck, turned toward Petitioner, and
pointed his revolver at him. However, unprompted, Petitioner changed his recollection of events
80 minutes later to more closely align his version of the shooting to fit the physical evidence at
the scene. He likely realized that if he did not alter his first statement, it would be impossible for
him to explain: (1) how Whitcraft stepped outside his truck with one leg yet had both of his feet
tangled in speaker wire in his truck’s interior when he was killed; and (2) how he shot Whitcraft
in the back of the head through the truck’s rear window if Whitcraft had exited his truck with one
leg, was facing him, and pointing a gun at him.!!
The jury in this case made a credibility determination adverse to Petitioner based upon
strong circumstantial evidence that he shot Whitcraft in the back of his head as he sat in his
truck. The production of Petitioner’s military records and resulting expert testimony from
Charpenter and Bedard during Petitioner’s PCR proceedings are not so strong as to establish a
reasonable probability that, but for counsel’s errors, the result of the trial would have been
different. At a minimum, this Court cannot conclude that the PCR judge’s prejudice
determination was not only wrong, but so unreasonable that no fairminded jurist could agree
with his conclusion. Habeas corpus relief is therefore denied.
CONCLUSION
For the reasons identified above, the Amended Petition for Writ of Habeas Corpus (#23)
is denied. The Court does, however, issue a Certificate of Appealability limited to Grounds I,
TH(A), TH(B)(b), and III(B)(d) of the Amended Petition.
IT IS SO ORDERED.

March 20,2023 AM MG
DATE Michael H. Simon
United States District Judge

11 Petitioner argues that Bedard could have explained inconsistencies in Petitioner’s statements to Detective
Rylander in the aftermath of the shooting by opining that individuals can make unintentional misstatements in the
immediate aftermath of a violent confrontation. However, this is the “critical incident amnesia” opinion that the
PCR court excluded. Respondent’s Exhibit 170, p.22. Accordingly, it is not properly before this Court for its
consideration. Even if the Court could consider Bedard’s opinion on this matter, his testimony that witnesses can
make misstatements in the aftermath of violent encounters would not have meaningfully negated the damaging
effects of Petitioner’s shifting account.

20 — OPINION AND ORDER

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10395794. Public record. Not legal advice.