Monica

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

SUSAN MONICA, Case No. 3:23-cv-01241-AA

Petitioner, OPINION AND ORDER

v.

NICHOLE BROWN,

Respondent.

___________________________

AIKEN, District Judge.

Petitioner filed this habeas action under 28 U.S.C. § 2254 challenging her state court

convictions for Murder, Abuse of a Corpse, and Identity Theft. Petitioner primarily claims that

the trial court’s denial of substitute counsel and counsel’s ineffective assistance violated her

rights under the Sixth Amendment. The Oregon courts rejected these claims in decisions that are

entitled to deference, and Petitioner’s remaining claims are procedurally defaulted and barred

from federal review. Accordingly, the Petition is DENIED.

BACKGROUND

As recounted by the Oregon Court of Appeals, “Petitioner murdered two men and left

their bodies in her pigpen to be eaten by her pigs.” Monica v. Myers, 319 Or. App. 376, 378, rev.

denied, 370 Or. 212 (2022).

In January 2014, the son of a man named Haney reported him missing in Jackson

County. Haney had been residing on petitioner’s property, and so his son visited

petitioner to find his father’s belongings. He found most of his father’s belongings

intact—including vehicles and other items—but could not find his wallet. Law

enforcement visited the property to see Haney’s camper, and as they were leaving

the camper, they noticed large pigs in a pen. Petitioner spontaneously told law

enforcement that she was “in the process of trying to get a government grant for

research with the pigs on how they consume human bodies.” Law enforcement

returned to the property a few days later and…asked if they could look around the

property, which prompted petitioner to joke about the officers needing a warrant.

She then spontaneously stated, “I’ve threat - threatened to kill everybody and feed

them to my pigs. But, um, the thing is pigs - pigs would probably eat you, but it’s

not going to be good for them.” Petitioner again mentioned her interest in

obtaining a grant to research pigs eating humans but then clarified that she was

joking.

Law enforcement investigated Haney’s food benefit card usage and found

evidence suggesting that petitioner had been using the card. As a result, they

obtained a warrant to search the property for evidence regarding identity

theft.…When executing the warrant, officers spoke with petitioner, who admitted

to using the benefit card. Petitioner claimed that Haney had given her the card

previously to buy food and beer for him. Officers walked around the property

with a video camera. Shortly after beginning the recording,…the officer

encountered a human leg. Officers arrested petitioner and applied for a new

search warrant—this time for evidence of murder.

At the police station, petitioner told officers that she had found Haney “half

eaten” by the pigs in her pigpen, with his “guts***all over the place,” but he was

alive. She claimed that she had retrieved a rifle from her home and shot him in the

head to end his suffering. She stated that he was moaning and moving his arm

before she shot him. She claimed that she left him in the pen and went to feed

other animals after shooting him. She explained that the reason she did not call

police was her fear that the police would shoot her pigs. She returned to the pen a

few days later, noting that the pigs do not eat clothes, and picked up his clothes

and his remains to put in her burn barrel.

Petitioner also told officers about another body on her property, that of a man

named Delicino. She told officers that Delicino was an alcoholic and described a

confrontation with Delicino about a missing gun, resulting in a “tussle” over her

.22 pistol. She claimed that during the melee he said that he did not want to return

to prison and shot himself several times in the head. She left his body in the

pigpen “until there was practically nothing left.”

Law enforcement, while executing the second search warrant, found the remains

of both Haney and Delicino in or around the locations that petitioner had

described in her interview. Officers spoke with petitioner again, now having

information about the bodies, and petitioner changed her story about Delicino,

stating that she shot him, but in self-defense. Petitioner was charged with two

counts of murder, two counts of abuse of a corpse in the first degree, and one

count of identity theft.

Id. at 378-80; see also Resp’t 102 (indictment). Petitioner pled not guilty to all charges, and she

was ordered detained pending trial. Christine Herbert and Zachary Light were initially appointed

to represent Petitioner, and in January 2015, Garren Pedemonte replaced Light. Resp’t Ex. 103 at

6, Resp’t Ex. 112 at 39.

Shortly before trial, Petitioner requested that she be permitted to “participate as

essentially the lead attorney.” Transcript of Proceedings (Tr.) 89, 91 (ECF No. 19-1).1 After

discussion with the court, Petitioner decided on “hybrid” representation, where she would

conduct cross-examination of the lead detective and perhaps another law enforcement officer. Tr.

139. The trial court agreed to Petitioner’s requested arrangement, and on April 13, 2015, the case

proceeded to trial.

During its case in chief, the state presented Petitioner’s recorded statements to law

enforcement officials admitting that she shot Delicino and Haney and recounting several

different justifications for doing so. Tr. 281-338, 341-405, 412-447, 450-539, 540-48, 567-779,

791-25, 922-966. The state also presented audio recordings of telephone calls Petitioner made

from the county jail, during which Petitioner again admitted killing Delicino and Haney. Tr.

1 Transcript citations refer to the page number in the bottom right hand corner, e.g.,

“TRANSCRIPT, Page 89 of 1296.”

1101-1110. Among other witnesses, the state called a medical examiner, who testified that

Delicino and Haney suffered bullet wounds consistent with .22 caliber bullets from a handgun or

rifle. Tr. 1134, 1139-41.

Petitioner took the stand in her own defense. Petitioner testified that she and Delicino had

an argument, and he “went nuts” and “attacked” her after she accused him of stealing a pistol and

rifle. Tr. 1179, 1181. Petitioner was holding another rifle and pistol at the time, and she claimed

that Delicino tried to take the rifle. Tr. 1182. Petitioner testified that, as they struggled for control

of the rifle, she decided to shoot Delicino in the arm to “make him let go.” Tr. 1182. Petitioner

testified that after she shot Delicino, he initially fell to the floor but then stood up and threatened

to kill her. Tr. 1182. Petitioner ran to another room and hid, and Delicino followed and

“grabbed” her and the rifle again. Tr. 1182-83. Petitioner then “shot him again in the head” and

fired three more rounds from her pistol. Tr. 1183. Petitioner testified that Delicino kept

struggling, and she wrested the rifle away and struck him with it until he lay on the ground,

grabbing her left leg. Tr. 1183-84. Petitioner testified that Delicino would not let go of her leg,

and she shot him three more times with the rifle. Tr. 1184. Petitioner then retreated to her room

for “a couple of hours,” and when she returned, her pigs were licking Delicino’s head. Tr. 1186-

87. Petitioner testified that the pigs eventually “dragged him outside” and began eating Delicino,

and she later buried his remains. Tr. 1188-89.

Petitioner also testified that Haney left her property in a white car and she next saw him

lying in her pig pen, with her pigs eating his intestines. Tr. 1193-95. Because an expended

shotgun shell was found in the pigpen, Petitioner posited that someone had attempted to “poach”

one of her pigs and wounded Haney in the abdomen in the process. Tr. 1194, 1203. Petitioner

testified that she saw Haney’s arm move, heard him moan, and left to retrieve her rifle. Tr. 1195-

96. When she returned, the pigs had turned Haney onto his stomach, and Petitioner shot Haney in

the back of the head because “there was no way he was going to live more than a couple of

minutes at most and I wanted to put him out of his misery.” Tr. 1196-97.

The jury found Petitioner guilty on all counts. Tr. 1286-88. The trial court sentenced

Petitioner to consecutive terms of life imprisonment with a minimum of twenty-five years on

each murder count, and consecutive terms of thirty days in jail for each of the remaining three

charges. Tr. 1294; Resp. Ex. 101.

Petitioner directly appealed her convictions and raised assignments of error arising from

the trial court’s denial of Petitioner’s requests for substitute counsel and self-representation.

Resp’t Ex. 104. The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme

Court denied review. State v. Monica, 287 Or. App. 465, rev. denied, 362 Or. 300 (2017); Resp’t

Ex. 107-08.

Petitioner then sought post-conviction relief (PCR) and alleged that counsel rendered

ineffective assistance by failing to seek suppression of evidence obtained from the search of her

property, failing to impeach the testimony of a state witness, and failing to challenge the

introduction of pawn receipts allegedly showing that Petitioner pawned two shotguns after being

contacted by law enforcement. Resp’t Ex. 112. The PCR court rejected Petitioner’s claims and

denied relief. Resp’t Ex. 147. The Oregon Court of Appeals affirmed in a written opinion and the

Oregon Supreme Court denied review. Monica v. Myers, 319 Or. App. 376, rev. denied, 370 Or.

212 (2022); Resp’t Exs. 152-54. Petitioner now seeks federal habeas relief.

DISCUSSION

Petitioner asserts four grounds for relief in her Second Amended Petition. Claim 1 alleges

that the trial court violated Petitioner’s Sixth Amendment rights by denying her requests for new

counsel. Claim 2 includes two subparts, 2(a) and 2(b), and alleges that the trial court violated

Petitioner’s Sixth Amendment right to self-representation by failing to conduct a Faretta

colloquy and by interfering with her cross-examination of witnesses. Claim 3 includes three

subparts, 3(a), 3(b), and 3(c), and alleges that counsel rendered ineffective assistance of counsel

by failing to impeach witness testimony, failing to investigate the pawn receipts for two

shotguns, and failing to object to testimony commenting on Petitioner’s credibility. Finally,

Claim 4 alleges that Petitioner’s Sixth Amendment right to counsel was violated because trial

counsel had an undisclosed conflict of interest. See Sec. Am. Pet. at 17-27 (ECF No. 25).

In her supporting Brief, Petitioner presents no arguments to support Claims 2(a) and 3(c).

Pet’r Brief at 1, 22, 25 n.4 (ECF No. 48). Accordingly, Petitioner fails to sustain her burden to

prove that habeas relief is warranted on Claims 2(a) and 3(c). See Mayes v. Premo, 766 F.3d 949,

957 (9th Cir. 2014) (stating that habeas petitioner bears the burden of showing entitlement to

habeas relief); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004) (accord).

With respect to Petitioner’s remaining claims, Respondent argues that Claims 1, 3(a), and

3(b) were rejected by the trial court and the Oregon Court of Appeals in decisions that are

entitled to deference and that Claims 2(b) and 4 are barred from federal review through

procedural default.

A. Deference to State Court Decisions – Claims 1, 3(a), and 3(b)

Pursuant to 28 U.S.C. § 2254(d), this Court may not grant a petition for a writ of habeas

corpus filed by a state prisoner with respect to any claim that was adjudicated on the merits in

state court, unless the adjudication resulted in a decision that was “contrary to, or involved an

unreasonable application of, clearly established Federal law” or “resulted in a decision that was

based on an unreasonable determination of the facts in light of the evidence presented.” 28

U.S.C. § 2254(d)(1) and (2).

A state court decision is “contrary to” clearly established federal law if it fails to apply

the correct Supreme Court authority or reaches a different result in a case with facts “materially

indistinguishable” from relevant Supreme Court precedent. Brown v. Payton, 544 U.S. 133, 141

(2005); Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision is an

“unreasonable application” of clearly established federal law if the state court identifies the

correct legal principle but applies it in an “objectively unreasonable” manner. Woodford v.

Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam). To obtain federal habeas relief, “a state

prisoner must show that the state court’s ruling on the claim being presented in federal court was

so lacking in justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86,

103 (2011). Thus, “even if the federal habeas court concludes that the state court decision

applied clearly established federal law incorrectly, relief is appropriate only if that application is

also objectively unreasonable.” Penry v. Johnson, 532 U.S. 782, 793 (2001).

1. Claim 1

Petitioner alleges that the trial court violated Petitioner’s Sixth Amendment right to

counsel by denying her requests for new or substitute counsel. Petitioner argues that the trial

court utilized an insufficient “process” by repeatedly interrupting her as she tried to vocalize her

complaints and did not allow Petitioner the opportunity to fully explain her dissatisfaction.

Petitioner further argues that counsel took an adverse position to her by asserting that Petitioner’s

complaints were invalid.

“The Sixth Amendment guarantees criminal defendants the right to effective assistance of

counsel at all critical stages of the proceeding.” Carter v. Davis, 946 F.3d 489, 507 (9th Cir.

2019) (citing Coleman v. Alabama, 399 U.S. 1, 7 (1970)). However, that right “does not

guarantee the defendant ‘will inexorably be represented by the lawyer whom he prefers.’” Id.

(quoting Wheat v. United States, 486 U.S. 153, 159 (1988)); see also United States v. Gonzalez-

Lopez, 548 U.S. 140, 146 (2006) (stating that “the right to counsel of choice does not extend to

defendants who require counsel to be appointed for them”); Hendricks v. Zenon, 993 F.2d 664,

671 (9th Cir. 1993) (stating that a defendant “is not necessarily entitled to the appointed counsel

of his choosing”). Likewise, the Sixth Amendment does not guarantee the right to a “meaningful

relationship” between a defendant and counsel. Morris v. Slappy, 461 U.S. 1, 14 (1983).

Instead, the Sixth Amendment is violated when a defendant is forced “to go to trial with

an attorney with whom he has an irreconcilable conflict.” Stenson v. Lambert, 504 F.3d 873, 886

(9th Cir. 2007) (citation omitted). “An irreconcilable conflict in violation of the Sixth

Amendment occurs only where there is a complete breakdown in communication between the

attorney and client, and the breakdown prevents effective assistance of counsel.” Id. “To

determine whether a conflict rises to the level of ‘irreconcilable,’ a court looks to three factors:

(1) the extent of the conflict; (2) the adequacy of the inquiry by the trial court; and (3) the

timeliness of the motion for substitution of counsel.” Id.

On May 22, 2014, Petitioner sent a note to the trial court requesting new counsel.

Petitioner complained that counsel’s investigator would not speak to her until she signed a

release to obtain her mental health records, and Petitioner wanted someone to investigate where

Haney was “for the 6+ weeks he was missing before he turned up in my pig pen.” Resp’t Ex. 104

at 41.

On May 30, 2014, the court held a hearing on Petitioner’s request. Petitioner confirmed

that she wanted a new attorney and stated that “the reason for it is I have been trying to get

[counsel] to let my investigator over here investigate things.” Tr. 3. At the court’s request,

Herbert responded to Petitioner’s complaint:

I have employed [an investigator] on this case to assist and [the investigator] takes

instruction from me on what to do on the case in aid of the defense. And I think

Miss Monica has her own desire of what she would like [the investigator] to do.

And you know, we hear that and we take into consideration what she wants to do,

and we are, in fact, doing what it is that she wants to do. But I have to focus on

the litigation piece and use my investigator to assist in the defense of the litigation

and how that’s structured and how and when I use the investigator is really

litigation tactics. I explained that to Miss Monica. I think she’s really frustrated

with how long this is taking and I’ve tried to convey this is a murder case and it’s

going to take some time.

***

So I don’t know really, what the basis of her complaint is. But she’s—in my

opinion, she’s in excellent hands. We have a good team here and I think Miss

Monica needs to learn to be patient and listen to us and not try to drive what she

believes is important, but instead, to just listen to her attorneys and let us do our

job.

Tr. 4-5. The court asked Petitioner to clarify what she would like counsel to investigate, and

Petitioner responded, “Primarily, a Richard Haney—Robert Haney left my property.” Tr. 5. The

court interjected and explained that “my concern is that potentially you might start talking about

the case as far—and I guess I’m asking you about the case, but as far as the substance of the case

is concerned itself, you probably don’t want to talk too much about it.” Tr. 5-6. Petitioner

responded, “Well, [counsel] keeps telling me not to talk about it and I’m trying to tell what

happened.” Tr. 6.

The court advised Petitioner:

You’re going to be able to make whatever defense you want to make. You’re

going to be able to say whatever you want to say. You’re going to be able to

throw anything out there you want. You have that right in this country and in this

courtroom you can say whatever you want. I’m asking—or I think what you

should do is you need to listen to your attorneys for a little bit of time. If they

think of something that needs to be done or something can’t be done, they’ll let

you know.

Tr. 6. Petitioner further explained that the “crux” of her complaint was counsel’s perceived lack

of urgency in investigating her claims and her fear that evidence would be “lost.” Tr. 7.

The trial court encouraged Petitioner to cooperate with her counsel and denied the request

for substitute counsel, stating, “I’m going to keep the attorneys on this case. They’re going to

work with you. But I want you to work with them; I want you to work with the investigator. I

will give you every opportunity to represent yourself down the line, but right now, I will not do

that.” Tr. 8. Petitioner then told the court that she had “talked to [the investigator] just the other

day and she finally said that [counsel] is going to let her do something about this.” Tr. 11. The

court reassured Petitioner, that “I’m always willing to work with you and always willing to work

and get this thing taken care of. And I think you work with the investigator, you work with the

team, and we’ll see what goes after that.” Tr. 14. Petitioner agreed to cooperate with her counsel

and to “[g]ive them a chance.” Tr. at 15.

One week later, on June 7, 2014, Petitioner again wrote the court complaining that

counsel seemed “more interested in me being insane than in[n]ocent” and stating that she was

“guilty of not reporting a crime of self defen[s]e nothing more.” Resp. Ex. 104 at 44. Petitioner

declared, “I want a new lawyer or the ability to represent myself.” Id.

On June 9, 2014, the court conducted another hearing after Petitioner’s counsel moved

for an evaluation of Petitioner’s ability to aid and assist. Light explained:

I just want to point out that recently Ms. Monica has attempted to contact people

on the outside not affiliated with her defense attorneys to try and communicate

with Your Honor and other people to try and, I think, circumvent the assistance of

her attorneys…. A lot of her behaviors have directly contravened our efforts to

either protect her, protect her from the media, protect her from public exposure

and contamination of the jury pool, to work with her in order to effectively and

efficiently conduct a defense investigation, to work with her in our efforts to

obtain professional evaluations from her, and obtain records that pertain to her

history and the case.

At every step of the way, she’s been very resistant, distrustful. However, one of

the things that’s unusual is that she doesn’t seem to think that it’s inappropriate to

do things that, I think, a rational person would not do, such as communicate on

jail telephones—where it’s clearly posted that those jail telephone calls are

recorded—with outside people about things that she wants people on the outside

to do that are in the nature of a defense investigation, without communicating

those to counsel when she’s been—when we’ve talked to her on multiple

occasions about the proper procedure to work with us and get these things done in

a way that is protected by attorney-client privilege and is therefore safe.

Tr. 21-22. Light also explained that Petitioner believed “she’ll be acquitted if she’s just

given an opportunity to tell her side of the story.” Tr. 21.

Upon questioning by the court, Petitioner stated that she understood the nature of the

proceeding and explained:

The reason I refused the [attorney] visit was that I did not want this attorney as

my attorney. That was why I sent you a “kite” and why I was in here last week to

try to get another attorney. I have been trying to contact other attorneys and as

yet, have been unsuccessful. I do not want to lie to this court. They have been

asking me to go ahead and say that Steve Delicino was a bad person. They have

asked me to go ahead and say that—

Tr. 23. The court interrupted and explained, “We’re not going to get into what the substance of

this case is here today,” and that the court must determine “whether you are unable to aid and

assist or you are unwilling to aid.” Tr. 24. Petitioner admitted that she was “unwilling to assist”

her attorneys and was simply “stating facts on the phone.” Tr. 24-25. The trial court then

explained why Petitioner’s counsel was alarmed by her conduct:

The problem you’re having with your, with a lot of what you’re doing is you have

an absolute constitutional right not to talk. Basically, not to say anything that may

incriminate yourself. And whenever you talk to anybody, whenever you say

anything to anybody on the phone or otherwise, the fear of your attorneys, and

basically, you should—the fear you should have yourself, is that you’re

incriminating yourself somehow. So that’s why your attorneys are asking you not

to do this.

I do not believe that you are unable to aid and assist; I just believe you are

unwilling to do that.

Tr. 25. Petitioner responded, “I am.” Tr. 25. The court then informed Petitioner that it “can’t

keep giving you attorneys if your attorneys are going to basically be doing the same thing these

attorneys are doing.” Tr. at 25. Petitioner acknowledged the court’s comments and admitted, “I

know that, Your Honor. I’ve—I said it last week, I have been trying to get them to do things and

finally, only last week, my private investigator has started doing something.” Tr. 26.

The court eventually denied Petitioner’s request for new counsel and encouraged her to

cooperate with counsel and listen to their advice about talking to others from the jail. Tr. 29-30.

Petitioner responded that she didn’t “want to be lying in court,” and said that counsel asked her

to do that. Tr. 30-31. The court responded, “I don’t believe that” and explained, “I can’t just give

you an attorney and an attorney and an attorney and an attorney at the state’s expense. At some

point, we’ve got to stop. Okay? So at this point, I am going to deny your request. We’ll just keep

this thing on track.” Tr. 31.

On September 8, 2014, the trial court held a hearing regarding the trial date and

Petitioner’s dissatisfaction with the length of time until trial. During the hearing, Petitioner

attempted to ask the prosecutor whether they had performed ballistics testing on two shotguns.

Tr. 40. The court interrupted Petitioner and advised that she could not address the prosecution

directly but must do so through her attorneys. Petitioner responded, “Well, my attorney, I tried to

fire twice.” Tr. 40. Petitioner complained about the delay in bringing her case to trial, and the

court advised Petitioner that “with two murder charges pending against you, it is wise on your

behalf to let your attorneys do their job” and explained why murder cases took longer to prepare

for trial. Tr. 40-41. Petitioner then asserted that she was “not asking for an attorney at this late

date” and was “willing to accept” their representation because she wanted a trial Tr. 43; see also

Tr. 45. Petitioner and the court continued to discuss the trial date and the court commented, “I’m

not going to go into particularly what type of forensics evidence [the prosecutors] have or what

they don’t have, because I don’t really, quite frankly, want all that out in the public.” Tr. 47.

Petitioner responded, “I was trying to get this out in the public six months ago,” and the court

advised her, “No, you don’t want that out in the public. You let the attorneys do their job. And

then you’ll have every right down the line; I guarantee you, every right, every opportunity to say

whatever you want to say.” Tr. 47.

Based on this record, the trial court did not unreasonably apply clearly established federal

law when it denied Petitioner’s request for new counsel. Petitioner’s complaints boiled down to

her disagreements with counsel about investigative tactics and strategy and counsel’s efforts to

constrain Petitioner from talking publicly about her case. “Disagreements over strategical or

tactical decision do not rise to [the] level of a complete breakdown in communication.” Stenson,

504 F.3d at 886. Further, Petitioner later conceded that counsel agreed to pursue her investigative

queries, and, as the trial court emphasized, counsel was rightly concerned about Petitioner’s

efforts to publicize and “explain” her case through recorded phone calls from the county jail.

Petitioner nonetheless maintains that the trial court continually interrupted her and did not

allow her a meaningful opportunity to explain the conflicts with counsel and that counsel took a

position “adverse” to her. However, the record reflects the trial court’s valid concern that

Petitioner would implicate herself in open court, and the court gave Petitioner an adequate

opportunity to describe her conflicts with counsel during the June 9 hearing. Further, the record

does not reflect that counsel took an “adverse” stance against Petitioner; counsel merely

explained that they did not understand the basis for Petitioner’s requests and that they were

working with her and trying to meet her demands, despite Petitioner’s hostility and refusal to

follow their advice.

Ultimately, the record does not suggest that Petitioner’s counsel refused to communicate

with her or failed keep her apprised of their efforts, and Petitioner fails to show a “complete

breakdown” in communication or an “irreconcilable conflict” between Petitioner and counsel

that effectively left her without representation. At most, the record reflects that Petitioner was an

uncooperative and difficult client, and the trial court was not required to appoint new counsel in

those circumstances.

Finally, even if the record supported an “irreconcilable” conflict or inadequate

questioning to determine the depth of Petitioner’s complaints, Petitioner cites no clearly

established law of the Supreme Court holding “that an irreconcilable conflict with one’s attorney

constitutes a per se denial of the right to effective counsel.” Carter, 946 at 508. This failure is

“fatal” to Petitioner’s claim, because § 2254(d) “conditions habeas relief on a determination that

the state-court decision unreasonably applied ‘clearly established Federal law’ as pronounced by

the U.S. Supreme Court.” Id.

Accordingly, the trial court’s denial of substitute counsel was not an unreasonable

application of clearly established federal law.

2. Claims 3(a) and 3(b)

In Claim 3(a) and (b), Petitioner alleges that her trial counsel rendered ineffective

assistance by failing to impeach the testimony of Jordan Farris, a witness called by the state, and

by failing to challenge pawn shop receipts purporting to show that Petitioner pawned two

shotguns to conceal the weapons from law enforcement.

Under the well-established Supreme Court precedent of Strickland v. Washington, 466

U.S. 668 (1984), a petitioner alleging the ineffective assistance of counsel must show that

“counsel’s performance was deficient” and the “deficient performance prejudiced the defense.”

466 U.S. at 687. To establish deficiency and prejudice, a petitioner “must show that counsel’s

representation fell below an objective standard of reasonableness” and “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id. at 688, 694. Unless a petitioner “makes both showings, it cannot be said that

the conviction...resulted from a breakdown in the adversary process that renders the result

unreliable.” Id. at 687.

Judicial review of an attorney’s performance under Strickland is “highly deferential” and

carries a “strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance,” and, under the relevant circumstances, “might be considered sound trial

strategy.” Id. at 689 (citation omitted). Counsel must be afforded “wide latitude…in making

tactical decisions” and “strategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable.” Id. at 689-90. “A fair assessment of

attorney performance requires that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the

conduct from counsel’s perspective at the time.” Id. at 689.

A “doubly deferential” standard applies when “a federal court reviews a state court’s

Strickland determination.” Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010). The state

court “must be granted a deference and latitude that are not in operation when the case involves

review under the Strickland standard itself.” Richter, 562 U.S. at 101; see also Dunn v. Reeves,

594 U.S. 731, 739 (2021) (remarking that the Strickland “analysis is ‘doubly deferential’ when,

as here, a state court has decided that counsel performed adequately”).

a. Failure to Impeach Witness Testimony

Farris was detained at the Jackson County Jail at various times during Petitioner’s pretrial

detention. Tr. 1113. During Petitioner’s trial, Farris contacted law enforcement authorities about

statements Petitioner made regarding the deaths of Delicino and Haney, and the state called

Farris as a witness.

Farris testified that Petitioner admitted shooting Delicino five times in self-defense after

Delicino “attacked” her. Tr. 1113. Farris also testified that Petitioner said that she argued with

Haney after she demanded that Haney leave her property, and when Haney did not leave,

Petitioner shot him with a “shotgun” and left him in the pig pen for her pigs to eat. Tr. 1116.

Farris testified that she decided to contact law enforcement authorities after receiving a birthday

card on April 9, 2015, that Petitioner signed, “Happy B-day from the sweetest murderer in

Jackson County, Susan Monica,” because Farris was “creeped” out by the card and Petitioner’s

comments about Haney. Tr. 1114-15. Petitioner’s counsel did not cross-examine Farris. On

direct examination, Petitioner denied telling Farris that she and Haney argued or that she shot

Haney with a shotgun. Tr. 1197-98.

Petitioner argues that counsel unreasonably failed to impeach Farris’s testimony with

evidence of Farris’s prior criminal convictions and her potential bias arising from an interest in

working with “MADGE,” a Medford narcotics unit comprised of federal and state authorities.

Pet’r Brief at 25-33; Resp’t Ex. 121 at 52-53. During an interview with counsel’s investigator,

Farris described Petitioner’s statements about Delicino’s and Haney’s deaths and confirmed that

she was not “getting any time off for giving this information.” Resp’t Ex. 113 at 164-65; Resp’t

Ex. 123 at 30. Farris also told the investigator she had been contacted by MADGE and reportedly

said “that she looked forward to working with the cops, as it would give her some money, and

she would be able to keep away from selling meth.” Resp’t Ex. 113 at 165. In another

memorandum, the investigator stated that she “definitely picked up that [Farris] was excited

about the opportunity to work for MADGE. She definitely could have embellished the story that

Susan told her. Not sure to what extent.” Resp’t Ex. 121 at 137. Petitioner argues that Farris’s

interest in working with MADGE warranted cross-examination about potential bias.

The Oregon Court of Appeals rejected Petitioner’s claim:

[Petitioner’s ineffective assistance claim arising from the failure to impeach] is a

spurious claim, as Farris first testified to the jury that she had multiple felony

convictions, and her testimony was that she was speaking with petitioner while

incarcerated. Framing the issue as though the jury was unaware of the criminal

background of the witness is disingenuous. Having heard the witness explain that

she has multiple convictions, and that her testimony was based on her

communications with petitioner while both were in jail, a reasonable attorney

could conclude that no further cross examination about the witness’s criminal

record was warranted. Further, the bulk of the evidence against petitioner was her

own statements to law enforcement in multiple recordings. There was little

probability that this particular witness’s testimony had the weight to tend to affect

the outcome of the trial. The trial court was correct to conclude that trial counsel’s

decision was reasonable and not deficient, and, even if the performance was

deficient, it did not tend to affect the outcome of the trial.

Monica, 319 Or. App. 384-85.

Petitioner argues that the Oregon Court of Appeals’ decision is not entitled to deference

because it did not address the issue of Farris’s alleged bias. Petitioner further argues that the

Oregon Court of Appeals unreasonably found no deficiency arising from counsel’s failure to

impeach Farris with her criminal history, because Farris had extensive criminal record, including

felony convictions for burglary, possession of methamphetamine, and theft, a crime of

dishonesty.

During Petitioner’s PCR proceeding, Pedemonte testified that he found Farris’s interest in

working with MADGE “too tenuous” to pursue on cross-examination, because Farris did not

indicate that she actually worked with MADGE or that she received consideration or lenient

treatment in exchange for testifying. Resp’t Ex. 123 at 30-31; see also Resp’t Ex. 121 at 53.

Likewise, Pedemonte explained that “the State confronted [Farris’s criminal history] during

direct examination at least that she had multiple felony convictions on her record” and

Pedemonte “felt that that undermined or took the wind out of our sails when it came to

attempting to impeach her with that information.” Resp’t Ex. 123 at 28. Herbert agreed with

Pedemonte’s decision, because “the prosecutor handled all of that in her direct; that [Farris]

sufficiently covered that she was—why she was in jail, and what her convictions were, so there

wasn’t really any reason for us to bring that back up, and as a trial tactic, I think it would have

been not wise, so we left it alone.” Resp’t Ex. 121 at 52.

The record supports counsel’s strategic decisions and the Oregon Court of Appeals’

findings of no deficiency. On direct examination, Farris admitted that she had prior convictions

and had been detained at the Jackson County Jail on several occasions. Tr. 1111-12, 1115-16.

Farris further testified that she was not offered leniency or any promises in exchange for her

testimony, and nothing in the investigator’s report or elsewhere in the record suggests that the

opportunity to work with a narcotics unit somehow influenced Farris’s decision to contact law

enforcement authorities or testify against Petitioner. Tr. 1116-17. Counsel thus reasonably

concluded that Farris’s perceived excitement “about the opportunity to work for MADGE” was

“too tenuous” to show bias. Further, in light of the overwhelming evidence of Petitioner’s guilt,

the Oregon Court of appeals reasonably found no prejudice arising from counsel’s decision.

Accordingly, habeas relief is not warranted on this ground.

b. Failure to Challenge Pawn Receipts

The state introduced the testimony of Sean Leimanis, who worked for Petitioner from

July to mid-October of 2013, during the time that Haney worked for Petitioner. Tr. 1048.

Leimanis testified that he had pawned two shotguns and Petitioner “was nice enough to pull

them out of the pawnshop” in exchange for labor to repay the debt she incurred to reclaim the

shotguns. Tr. 1052. Leimanis testified that after he performed enough work to pay off the debt,

Petitioner did not return the shotguns and instead gave him new pawn receipts, explaining that

she needed money and had to pawn Leimanis’s shotguns. Tr. 1052-53. The state later introduced

two pawn receipts showing that Petitioner pawned two shotguns on January 2 and January 6,

2014, the day she was contacted by law enforcement. Tr. 1119-1121.

In the middle of trial, Leimanis and his wife, Kathy Clawson, approached the defense

investigator and said that Petitioner had pawned his shotguns in October 2013, not in January

2014. Resp’t Ex. 138-39; see also Resp’t Exs. 124-25.2 Leimanis explained that in January 2014,

he paid money to the pawn shop to avoid forfeiture of the shotguns, and he forged Petitioner’s

name on renewed pawn receipts because it was Petitioner “who brought them in.” Resp’t Ex. 121

at 139. Petitioner argues that counsel was deficient for failing to challenge the authenticity of the

pawn receipts and rebut the inference that she pawned the shotguns in January 2014 to hide them

from law enforcement.

The Oregon Court of Appeals rejected this claim:

[Petitioner’s] argument [regarding the pawn shop receipts] is based on a false

premise because the state did not proceed on a theory that petitioner used a

shotgun to kill either of the victims. The post-conviction court correctly found

that the state’s theory during the jury trial was that petitioner used a rifle and a

2 The investigator’s report refers to October 2014 and January 2015, but Clawson’s and

Leimanis’s declarations and the evidence of record establish that the events occurred in October

2013 and January 2014. Compare Resp’t Ex. 121 at 139 with Resp’t Exs. 124-25.

pistol to kill the victims, referring to petitioner’s own admissions and varying

stories to corroborate the theory. The state did refer to the use of shotguns to kill

one victim during closing argument, but it was in the context of sifting through

the various versions of events that petitioner had provided to police, and the main

thrust of the reference was the improbability of petitioner’s stories. Further,

petitioner’s opening statement conceded that she shot the two victims and

challenged only whether she had caused their deaths. Thus, trial counsel was not

deficient for failing to investigate the receipts because the state was not

employing a theory that would make such an investigation fruitful for petitioner’s

chosen defense. The post-conviction court did not err when it rejected that claim.

Monica, 319 Or. App. 385. Petitioner argues that the Oregon Court of Appeals unreasonably

found that the state did not rely on the shotgun when presenting its case against Petitioner and

that reasonable counsel would have challenged the forged pawn receipts by eliciting testimony

from Leimanis or Clawson. Pet’r Brief at 35, 38.

One of Petitioner’s defense theories was that Haney left Petitioner’s property in

September 2013 to look for the perpetrator who had raped his daughter and that someone related

to the assault could have harmed Haney. Resp’t Ex. 121 at 55-56. On cross-examination,

Leimanis testified that Haney said his daughter had been raped, and that Haney was very angry

and wanted to find the perpetrator. Tr. 1053-54. Because Leimanis’s testimony supported

Petitioner’s theory, counsel did not want to risk opening the door to impeach his testimony by

calling Leimanis back to the stand to admit that he had lied and forged Petitioner’s name on the

pawn slips. Resp’t Ex. 121 at 55-56.3 Counsel also believed, “It didn’t make any difference what

gun [Haney] was shot with, given that [Petitioner] testified and told us all along she shot him

with a .22, and I expected her to say that on the stand.” Resp’t Ex. 121 at 49; see also Resp’t Ex.

123 at 33-34. At trial, a medical examiner testified that Delicino’s wounds were consistent with a

3 Counsel also might have decided against calling Leimanis or Clawson to testify about

the pawn receipts because Clawson told the defense investigator “that Susan and Haney had a

‘huge fight’ the day before he left.” Resp’t Ex. 121 at 138.

.22 caliber rifle or pistol and Petitioner testified that she shot Delicino and Haney with a rifle.

Tr. 1134, 1139-40, 1195-96.

Further, counsel did attempt to rebut the state’s implication that Petitioner pawned the

shotguns in January 2014. Counsel reexamined the detective about the signatures on the January

2014 pawn receipts to show that they did not match Petitioner’s signature. Tr. 1155-56. Further,

Petitioner testified that the signature on the pawns receipts was not hers and that she did not

pawn the shotguns in January 2014. Tr. 1198-99. Had counsel pursued this line of investigation

further, the jury likely would have learned that Petitioner pawned the shotguns in October 2013,

shortly after Haney’s disappearance, which would have supported a similar inference of guilt as

pawning them in January 2014 did. See Ex. 121 at 139 (counsel stating that evidence showing

that Petitioner had pawned the shotguns in October 2013 “would not help [petitioner], but

actually hurt her”).

Given the deference owed to counsel’s decisions and the marginal relevance of the pawn

receipts, the Oregon Court of Appeals reasonably found no deficiency or resulting prejudice

arising from counsel’s failure to pursue further investigation of the pawn receipts.

B. Procedural Default – Claims 2(b) and 4

“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available

state remedies, thereby giving the State the opportunity to pass upon and correct alleged

violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal

quotation marks and citation omitted). In order to exhaust state remedies, a petitioner must

present all federal constitutional claims to the State’s highest court before seeking federal habeas

relief. Id.; Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011) (“Exhaustion requires the

petitioner to ‘fairly present’ his claims to the highest court of the state.”).

If a claim was not fairly presented to the state courts and no state remedies remain

available for the petitioner to do so, the claim is barred from federal review through procedural

default. See Coleman v. Thompson, 501 U.S. 722, 732, 735 n.1 (1991); Sandgathe v. Maass, 314

F.3d 371, 376 (9th Cir. 2002) (“A procedural default may be caused by a failure to exhaust

federal claims in state court.”). A federal court may consider unexhausted and procedurally

barred claims only if the petitioner demonstrates cause for the default and actual prejudice, or if

the lack of federal review would result in a “fundamental miscarriage of justice.” Edwards v.

Carpenter, 529 U.S. 446, 451(2000); Coleman, 501 U.S. at 750. Cause “must be something

external to the petitioner” that impeded efforts to comply with the state’s procedural rules,

Coleman, 501 U.S. at 753, and prejudice is “actual harm resulting from the alleged constitutional

violation.” Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991); see also Coleman, 501 U.S. at

750. A fundamental miscarriage of justice requires a showing that the petitioner was actually

innocent of the underlying crime. Schlup v. Delo, 513 U.S 298, 327 (1995).

1. Claim 2(b)

In Claim 2(b), Petitioner alleges that the trial court violated her Sixth Amendment right to

self-representation by “interfering” with Petitioner’s ability to represent herself at trial. Petitioner

concedes that Claim 2(b) is unexhausted because she failed to raise this claim before the Oregon

courts on direct appeal. Petitioner nevertheless argues that this Court may review Claim 2(b)

under the miscarriage of justice exception to procedural default.

To make a gateway showing of actual innocence, Petitioner must present “new reliable

evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or

critical physical evidence—that was not presented at trial” and that establishes “it is more likely

than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.”

Schlup, 513 U.S at 324, 327.

To support her claim, Petitioner submits a declaration asserting that Delicino beat her

“with the butt of a rifle so hard and so often” that she killed him in self-defense. Pet’r Decl. at 2

(ECF No. 49). This is not “new” evidence. Petitioner testified at trial that she shot Delicino in

self-defense, and this evidence was known to Petitioner at that time. Accordingly, Petitioner does

not establish actual innocence to excuse the default of Claim 2(b).

2. Claim 4

In Claim 4, Petitioner alleges that her Sixth Amendment right to counsel was violated

when Herbert failed to disclose a conflict of interest arising from her representation of Farris in

2014. Petitioner contends that this conflict adversely affected Herbert’s representation and

prevented counsel from impeaching Farris and that prejudice must be presumed under Cuyler v.

Sullivan, 446 U.S. 335 (1980).

Petitioner did not raise Claim 4 during her PCR proceeding, and she concedes that this

claim is unexhausted and procedurally defaulted. Petitioner nonetheless argues that Herbert’s

failure to disclose the conflict of interest establishes cause for the default, because Petitioner had

no way of knowing that Herbert represented Farris. Alternatively, Petitioner argues that PCR

counsel’s failure to raise this claim provides cause to excuse the default. See Martinez v. Ryan,

566 U.S. 1, 11 (2012) (“Inadequate assistance of counsel at initial-review collateral proceedings

may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at

trial.”). Even if Petitioner is able to establish cause on these grounds, she fails to show prejudice.

Herbert apparently represented Farris from February 2014 until July 14, 2014, when

Farris pled guilty to possession of methamphetamine and was sentenced to probation and time

served. Resp’t Ex. 113 at 173-75. The record reflects that Farris did not contact law enforcement

authorities about Petitioner’s statements and was not identified as a state witness until April

2015, many months after Herbert’s representation of Farris ended. Tr. 1114. Thus, to the extent a

conflict existed, it arose from Herbert’s successive representation of Farris and Petitioner.

Under Sullivan, prejudice is presumed when counsel’s representation is burdened by an

“actual conflict of interest.” 446 U.S. 348-49. A petitioner must show that counsel “actively

represented conflicting interests,” id. at 350 and “demonstrate that an actual conflict of interest

adversely affected” counsel’s performance. Id. at 348. However, the rule in Sullivan addressed

the inherent prejudice arising from counsel’s concurrent representation of clients with adverse

interests, and no binding authority holds that Sullivan applies to successive representation. See

Noguera v. Davis, 5 F.4th 1020, 1035-36 (9th Cir. 2021) (explaining that “there is no clearly

established law that successive representation constitutes an ‘actual conflict’ that we would

assess under the Sullivan standard”); see also Mickens v. Taylor, 535 U.S. 162, 175 (2002)

(stating that “the language of Sullivan itself does not clearly establish, or indeed even support,”

the application of Sullivan to successive representation); Rowland v. Chappell, 876 F.3d 1174,

1192 (9th Cir. 2017) (explaining that “the Supreme Court explicitly limited this presumption of

prejudice for an actual conflict of interest (also known as the ‘Sullivan exception’) to cases

involving ‘concurrent representation.’”). Accordingly, Sullivan does not apply to Claim 4 and

prejudice is not presumed.

Where prejudice is not presumed, a claim challenging counsel’s performance “can be

resolved under Strickland’s familiar performance-and-prejudice framework.” United States v.

Walter-Eze, 869 F.3d 891, 906 (9th Cir. 2017). Here, it was Pedemonte, and not Herbert, who

was tasked with the cross-examination of Farris. Resp’t Ex. 121 at 48; Resp’t Ex.123 at 24.

Pedemonte decided against cross-examining Farris because she admitted her criminal history on

direct examination and testified that she received no benefit or promise of leniency in exchange

for her testimony. Resp’t Ex. 123 at 28-30. Although Herbert agreed with Pedemonte’s decision,

no evidence of record suggests that Herbert’s previous representation of Farris affected

Pedemonte’s trial strategy. Resp’t Ex. 121 at 51.

Finally, the Oregon Court of Appeals reasonably found no deficiency of performance or

prejudice arising from counsel’s decision to forgo cross-examination of Farris, in light of the

deference owed to counsel’s strategic choices and the overwhelming evidence of guilt presented

against Petitioner. Accordingly, Petitioner fails to show that Herbert’s previous representation of

Farris establishes prejudice to excuse the default of Claim 4.

CONCLUSION

The Second Amended Petition for Writ of Habeas Corpus (ECF No. 25) is DENIED and

this action is DISMISSED. A Certificate of Appealability is DENIED on the basis that Petitioner

has not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).

IT IS SO ORDERED.

DATED this 2 5 t h day of March, 2026.

________/s_/_A_n_n_ _A_i_k_en________

ANN AIKEN

United States District Judge