# Lee v. Lampert

> Court of Appeals for the Ninth Circuit · July 6, 2010 · 610 F.3d 1125

URL: https://www.frixlaw.com/law-library/cases/8411612

## Case

- **Full name:** Richard R. LEE v. Robert O. LAMPERT
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** July 6, 2010
- **Citations:** 610 F.3d 1125; 2010 U.S. App. LEXIS 13722; 2010 WL 2652505
- **Precedential status:** Published
- **Opinion:** Concurrence by Smith
- **Judges:** Diarmuid, Scannlain, Smith, Wolle
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8411612

## How later opinions describe it (automated extraction)

- stating that the fact that “Congress created three exceptions to the general rule that the limitations period begins upon the conclusion of direct review indicates it did not intend other exceptions”

## Opinion text

N.R. SMITH, Circuit Judge,
concurring in the judgment:
The district court failed to accord the Oregon state courts the deference due them under AEDPA. Under AEDPA, an application for habeas corpus will not be granted unless the adjudication of the 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.” 28 U.S.C. § 2254 (d). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Lockyer v. Andrade, 538 U.S. 63, 75-76 , 123 S.Ct. 1166 , 155 L.Ed.2d 144 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 411 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000)) (internal quotation marks omitted). “Rather, that application must be objectively unreasonable.” Id. Applying this standard of review to the decisions of the Oregon state courts, Lee has failed to demonstrate an entitlement to habeas relief. Therefore, I concur in the judgment reversing the district court’s grant of Lee’s petition.
The district court failed to identify where the Oregon state courts issued a decision that was contrary to clearly established Supreme Court precedent. The district court also failed to identify an unreasonable determination of the facts in light of the evidence before the Oregon state courts. Instead, the district found that “AEDPA’s usual deferential standard for reviewing state court findings is inapposite, at least when the reliable new evidence casts doubt upon those findings.” Lee v. Lampert, 607 F.Supp.2d 1204, 1222 (D.Or.2009). Such finding was error. First, AEDPA prohibits the district court from holding an evidentiary hearing in order to develop a record for a determination *1137 on the merits, except in a few express circumstances, none of which exist here. Second, even if federal courts were allowed to consider this evidence, the district court’s analysis constitutes little more than a questioning of the reason and wisdom of duly appointed Oregon jurors.
The district court failed to make a finding entitling it to accept additional facts for a determination on the merits. Under 28 U.S.C. § 2254 (e), a state court determination of a factual issue shall be presumed to be correct. The petitioner has the burden of rebutting that presumption by clear and convincing evidence. Id. Furthermore, a federal court, reviewing a state court conviction in a habeas proceeding, “shall not” conduct a hearing to develop facts as to the merits of a habeas claim, unless the petitioner shows that (a) his claim relies on a new rule of retroactive constitutional law or “a factual predicate that could not have been previously discovered through the exercise of due diligence,” and (b) “the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2254 (e).
Schlup does not constitute an amendment or an addition to this statute. In Schlup, the Supreme Court determined whether a showing of actual innocence excuses a procedural default involving a second or successive petition. It did not address the necessary showing for obtaining habeas relief on grounds of actual innocence. See Schlup, 513 U.S. at 314, 115 S.Ct. 851 . Thus, Schlup provides no authority guiding a court’s AEDPA determination of the merits of the petition. Further, Schlup should not be read so as to amend the subsequent and clear Congressional language of AEDPA.
The district court discusses no new rule of retroactive constitutional law. The district court does not discuss how any of this “new” evidence establishes, by clear and convincing evidence, the existence of a constitutional error resulting in Lee’s conviction. There is no factual predicate that could not have been previously discovered through an exercise of due diligence. Thus, the district court lacked the authority to supplement the record with facts not developed in the state court proceedings.
The district court granted Lee habeas relief on the grounds of ineffective assistance of counsel. To grant such relief, a reviewing court must determine “(1) whether the performance of counsel was so deficient that he was not functioning as ‘counsel’ as guaranteed under the Sixth Amendment; and (2) whether this deficient performance prejudiced the defendant by depriving him of a fair trial.” United States v. Davis, 36 F.3d 1424, 1433 (9th Cir.1994) (citing Strickland v. Washington, 466 U.S. 668, 691-92 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984)). Without interacting with the Oregon state courts’ findings, the federal district court found that Lee had received ineffective assistance and that he was prejudiced by such ineffective assistance. The district court based its prejudice finding on its conclusion that, had the new evidence been presented to the jury, there is a reasonable probability that the result of the proceeding would have been different. Lee, 607 F.Supp.2d at 1226 . The district court primarily relied upon two pieces of new evidence: (1) expert testimony regarding the reliability of child witnesses and a critique of the techniques used in this case; and (2) additional details regarding Robert Nae-hand and the police’s investigation of Lee. Neither of these pieces of evidence truly appears to be “new.” The jury had evidence before it, at the time of rendering its *1138 verdict, that there existed a second molester and that the victim was experiencing some confusion between the second molester and Lee. Lee knew about the unreliability of child testimony and was allowed to explore through examination and argue in closing argument about the victim’s confusion between Richard Lee and Robert Nachand. Further, while an Oregon court may have appropriately denied the request, it appears that Lee never even requested to call an expert witness on his behalf to support an argument that the victim’s testimony was unreliable. Lee’s later presentation of expert testimony to the federal district court does not constitute new evidence; instead, it was further development of existing evidence. See Griffin v. Johnson, 350 F.3d 956, 962-63 (9th Cir.2003). Thus, the evidence upon which the district court relied in holding that the jury would have changed its verdict, was before the jury. Here, the jury had evidence of the victim’s confusion and the second molester before rendering its verdict. We presume the jury to have considered the evidence before it when rendering a verdict. Therefore, the district court erred in holding that Lee was entitled to habeas relief on this ground.
It is not enough that the district court disagreed with the findings of the Oregon state courts. “The question ‘is not whether a federal court believes the state court’s determination’ under the Strickland standard ‘was incorrect but whether that determination was unreasonable — a substantially higher threshold.’ ” Knowles v. Mirzayance, — U.S. -, 129 S.Ct. 1411, 1420 , 173 L.Ed.2d 251 (2009) (quoting Sc hriro v. Landrigan, 550 U.S. 465, 473 , 127 S.Ct. 1933 , 167 L.Ed.2d 836 (2007)). The court must identify 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 “was 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). No other finding will entitle Lee to habeas relief. Because the district court failed to identify how Oregon’s denial of Lee’s claims for relief violated one of these standards, I join in the judgment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8411612. Public record. Not legal advice.