Petition for Writ of Certiorari — James Byron Coon, Petitioner v. Mark Nooth, Superintendent, Snake River Correctional Institution

No.

IN THE SUPREME COURT OF TIIE UNITED STATES

JAMES BYRON COON,

Petitioner

v

MARK NOOTH, Superintendent,

Snake River Correctional Institution,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Oliver W. Loewy

Assistant Federal Public Defender

101 SW Main Street, Suite 1700

Portland, Oregon 97204

(s03) 326-2123

Attorney for Petitioner

Mr. Coon claimed through counsel in state postconviction proceedings

challenging his murder conviction that trial counsel had been ineffective in failing

to adequately investigate the victim's cause of death. State postconviction counsel

neither alleged nor otherwise proffered any expert opinion that differed from that

of the State's expert ("probable traumatic asphyxiation"). In federal habeas

proceedings Mr. Coon proffered an expert opinion materially different from that of

the State's expert-that the cause of death was at least as tikely an asthma attack as

traumatic asphyxiation-which would have supported a defense to the charge of

intentional murder. Despite this critical difference between the claims, the District

Court rcjccted Mr. Coon's argument that the state postconviction claim did not

exhaust his federal habeas claim, and the Ninth Circuit Court of Appeals denied a

Certifi cate of ApPealabilitY.

The question presented is: Whether a Court of Appeals' denial of a

certificate of appealability conflicts with this Court's rulings in Vasquez v. Hillery,

47 4 U .5. 254, 260 ( 1 986), and Miller-El v. Coclcrell, 537 U. S. 322, 336

(2003),

where the district court determined in a murder case that an ineffective assistance

of counsel claim was exhausted even though the state postconviction claim did not,

but the federal claim did assert an expert cause-of-death opinion materially

different from that of the State's expert.

I

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED

1

OPIMONS BELOW

1

ruRI SDICTIONAL S TATEMEN1

1

CONSTITUTIONAL AND STATUTORY PROVISIONS........

.........1

2

STATEMENT OF TFIE CASE...

A.

State Court Proceedings .

..2

B.

Federal Habeas Proceetlings...

..3

REASONS FOR GRANTING THE WRIT.....

..5

The Lower Courts Employ Various Inconsistent Interpretations Of Hilleryln

Determining Whether A Claim Is Ne-w, As Compared To One Adjudicated in

State Postconviction Proceedings

CONCLUSION

lt

5

APPENDIX

PAGE

A. Ninth Circuit's Order Denying Certificate of Appealability

B. Motion for Certificate ofAppealability

C. Diskict Court's Opinion and Order

D. District Court's Judgment

lil

............1

.....'...-.-.2

.21

.30

TABLE OF AUTHORITIES

PAGE

iv, I

U.S. Const. Amend. VI

Cases

Coon v. Nooth,

344 P.3d 1149, (Or. Ct. App.)

J

Coon v. Nooth,

2019 WL 1118545 (D. Or. March 11,2079)

1

Coon v. Nooth,

2019 WL 4945409 (gth Cir. July 22,2019) .....

I

Cullen v. Pinholster,

s63 U.S. 170 (2011)

6

Dickens v. Ryan,

740F.3d 1302 (2014) ..........

9

Gonzalez v. Wong,

667 F.3d965 (9th Cir. 2011)

9

Gray v. Zook,

806 F.3d 783 (4th Cir. 2015)

7

Kernan v. Hinojosa,

136 S.Ct. 1603 (2016)

6

a

Martinez v. Ryan,

s66 U.S. t (2012)

....6

Miller-El v. Coclcrell,

537 U.S. 322 (2003) .

I

Moore v. Mitchell,

708 F.3d 760 (6th Cir.2013)

8

Penry v. Lynaugh,

4e2U.5.302 (1e8e)

7

lv

Rhines v. Young,

8e9 F.3d 482 (2018)

7

Vasquez v. Hillery,

474U.5.2s4 (te86)

Statutes

18 U.S.C. $ 3006 (2012) ..

1

18 U.S.C. $ 3006A (2012)

1

28 U.S.C. S r2s4 (2012)

I

28 U.S.C. S 22s3 (2012)

1,2

a

J

28 U.S.C. g 22s4

1

I

Rule 39

v

OPINIONS BELOW

The United States District Court for the District of Oregon denied

Mr. Coon's petition for writ of habeas corpus in an unpublished opinion and order.

App. at2l (coonv. Nooth,2019 wL 1118545 (D. Or. March 11,2019) ("D. ct.

*

Order,,). That Court also denied a certificate of appealability. D. Ct. Order at I 1.

On appeal, the United States Court of Appeals for the Ninth Circuit also denied a

certificate of appealability. App . at I (Coon v. Nooth, 2019 WL 4945409 (9th Cir.

July 22,2019).

JURISDICTIONAL STATEMENT

This Court has jurisdiction to review this petition for writ of certiorari under

2g U.S.C. g 1254(1) (2012). The Ninth Circuit filed its order sought to be

reviewed on July 22,2019. APP. at 1.

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Const. Amend. VI Provides:

In all criminal prosecutions, the accused shall enjoy the right

have the Assistance of Counsel for his defense.

to

28 U.S.C. $ 2253(c)(1) (2012) provides:

Unless a circuit justice or judge issues a certificate of appealability,

an appeal may not be taken to the court of appeals from-

(A) the final order in a habeas corpus proceeding in which

the detention complained of arises out ofprocess

issued by a State court. . .

I

28 U.S.C. $ 2253(c)(2) (2012) provides:

A certificate of appealabilrty may issue . . . only if the

applicant has made a substantial showing of the denial of a

constitutional right.

STATEMENT OF THE CASE

A. State Court Proceedings

On August7,2001, a Deschutes County, Oregon, grand jury returned an

amended indictment, the three top counts of which charged Mr. Coon with

aggravated murder of a single victim. The state medical examiner opined thatthat

the cause of death was "probable traumatic asphyxiation." D. Ct. Dkt.20-2 at35

(death certificate). Ott October 4,2001, a day-long judicial settlement conference

was conducted during which the settlement judge and defense counsel urged Mr

Coon to accept the State's plea offer because they believed his case was hopeless.

Mr. Coon maintained his innocence and, that evening, entered an Alfurd plea.

In2002, Mr. Coon commenced state post-conviction proceedings. ML Coon

asserted that he was entitled to relief because trial counsel had been ineffective by,

among other things, failing to adequately investigate the victim's cause of death:

D. Trial counsel failed to investigate other possible causes of the

victim's death to show that Petitioner was not responsible for the

victim's death. The autopsy report listed probable traumatic

asphyxiation as cause of death but was highly ambiguous and

inconclusive. The victim had severe asthma, smoked three packs of

cigarettes per day, and had stopped breathing on at least one

occasion prior to her death. Her breathing difficulties were

aggravated by alcohol and methamphetamine, which she had

2

consumed shortly before her death

D. C1 Dl<t. 20-1 at330 (Fourth Amended Petition for Post-Conviction Relief)

However, postconviction counsel never asserted or proffered an expert cause-ofdeath opinion which differed from that of the state's medical examiner in the

autopsy report. D. Ct. Dkt. 203 at 1 (autopsy report finding'probable ftawatic

asphyxiation" as cause of death). The state Circuit Court denied post-conviction

relief. D. Ct. Dl<t.21-2 at 482. The Oregon Court of Appeals denied relief, and

the Oregon Supreme Court denied review. Coon v. Nooth,344P.3d 1149, (Or. Ct.

App.), review denied,358 P.3d 1001 (2015)

B. Federal Habeas Proceedings

Mr. Coon's habeas proceedings commenced on November 12,2015, when

he filed his pro se Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. 5 2254

(D. Ct. Dkt. 2). He later filed, through counsel, his First Amended Petition for

Writ of Habeas Corpus. D. Ct. Dl<t.47. As he had in state post-conviction

proceedings, Mr. Coon claimed that trial counsel's investigation into the victim's

cause of death was inadequate. However, in addition to the state postconviction

claim's general assertion thattrial counsel had inadequately investigated the

victim's cause of death, the federal habeas claim included the specific and concrete

allegation that an adequate investigation would have revealed an independent

forensic pathologist's expert opinion that the victim's cause of death was at least as

3

likely an asthma attack as traumatic asphyxiation - an opinion which would have

squarely supported a defense that the prosecution had failed to prove beyond a

reasonable doubt that the victim had been intentionally murdered. In particular, in

his Claim I.A., Mr. Coon asserted:

A. Trial counsel Failed To Investigate Asthma As A Cause Of

Death

33. Trial counsel was on notice that the deceased suffered

sufficiently severe asthma that she used an inhaler available only

through her physician's prescription. Trial counsel failed to consult

with an independent forensic pathologist to determine whether the

Medical Examiner's post-mortem examination was consistent with

the deceased dying from an asthma attack, especially given her

chronic drug and alcohol abuse, and the comparative likelihoods of

an asthma attack and smothering having been the cause of death.

upon information and belief, had trial counsel sought an

independent forensic pathologist's expert opinion on these

questions, they would have learned that the post-mortem

examination report was entirely consistent with the deceased

having died from an asthma attack and that her cause of death

was at least as likely an asthma attack as smothering (the

state's thcory).

Corrected Petition at 10 (boldface added).

The District Court ruled that because Mr. Coon had "alleged during PCR

proceedings that counsel failed to conduct adequate investigation into alternative

causes of death, including the victim's asthma conditionf,]" he had "fairly

presented,,the habeas claim at issue here. D. ct. order at 16 n.4.

In seeking a Certificate of Appealability from the Ninth Circuit Court of

Appeals, Mr. Coon argued that reasonable jurists would find it debatable whether

4

the District Court had correctly assessed Claim I.A. as having been fairly presented

in state proceedings rather than as a new claim. Noting that the District Court had

compared the legal theory of the postconviction claim to that of Claim I.A. to

determine that the claims were the same, Mr. Coon argued that the uiticalfactual

difference between the two claims rendered Claim I.A. new: to support Claim I.A.

Mr. Coon alleged afactneither alleged nor supported by evidence in

postconviction proceedings,viz.,that an independent forensic pathologist would

have opined that the deceased's cause of death was at least as likely an asthma

attack as asphyxiation. App. at lI-12 (Motion for Certificate of Appealability).

REASONS FOR GRANTING THE WRIT

The Lower Courts Employ Various Inconsistent Interpretations Of

Hiltery In Determining Whether A Claim Is Newo As Compared To One

Adjudicated In State Postconviction Proceedings.

How to determine whether a federal habeas claim is new, as compared to a

related claim adjudicated in state postconviction proceedings, is an important

federal question because whether a claim is new drives how a court treats it. It has

profound effects on whether the claim may be reviewed on its merits at all and,

assuming merits review is available, on what standard of review is employed and

what evidence may be considered in deciding the claim. If a claim has been

adjudicated in state court, then federal habeas courts must review with deference

the state court decision and may not consider any evidence outside the state court

5

record unless certain requirements are satisfied. Kernan v. Hinojosa,136 S.Ct.

1603, 1604 (2016) (AEDPA mandates "deference, rather than de novo, review" of

merits adjudicated claims unless either S 2254(d)(1) or (dX2) is satisfied); Cullen

v. Pinholster,563 U.S. 170 (2011) (federal habeas court considering the merits of a

state court adjudicated claim ordinarily may not consider evidence beyond the state

court record). However, if a claim has not been adjudicated in state court, the

default may be excused by showing cause and prejudice. An ineffective assistance

of trial counsel ("IATC") claim may be excused, in an initial review jurisdiction,

by showing that postconviction counsel was ineffective in failing to raise the IATC

claim. Martinez v. Ryan,566 U.S. I (2012). Thus, generally, whether an IATC

claim is new governs whether a habeas petitioner may be able to present new

evidence and whether his claim will be reviewed de novo.

Over two decades ago, the Court held that a habeas claim is new if it

"fundamentally alter[s]" the claim as presented to the state courts. Vasquez v.

Hillery, 474rJ.5.254,260 (1986). With no subsequent guidance from this Court

on how to determine when a claim is fundamentally altered, the lower courts have

developed different apProaches.

The Fourth Circuit holds that"apetitioner may not support a claim in state

court with 'mere conjecture' and subsequently provide the necessary evidentiary

support for the claim on federal habeas review." Gray v. Zook,806 F.3d 783,799

6

(4th Cir. 2015) (quoting Winston v. Kelly, 592 F .3d 535 ( thcir. 2010)).

Similarly, the Eighth Circuit holds that "merely provid[ing] additional

evidentiary support" did not "fundamentally akef'the claim presented in state

court. Rhines v. Young,899 F.3d 482,495 (2018). This could simply be an

unremarkable statement that where the "additional evidentiary support" is

immaterial, then it does not fundamentally alter the claim. But the Rhines opinion

did not note that the additional proffered evidence was of a type quintessentially

mitigating and that it had not been presented to the state courts. Specifically,

habeas counsel presented evidence of childhood exposure to environmental toxins,

of brain damage, and of military service and its resulting trauma. Rhines v. Young,

case 00-5020-KES (S.D. Western Div.) at Dkt. 282 (motion for leave to amend

and exhibits). Each of these factors is classic mitigation, as each may reduce moral

culpability . See Penry v. Lynaugh,492 U.S. 302, 319 (1989) ("defendants who

commit criminal acts that are attributable to . . . mental problems[] may be less

culpable than defendants who have no such excuse") (internal quotation marks and

citation omitted). Thus, in ruling that the claim had been adjudicated in state court,

the Eighth Circuit is fairly read to have rejected in principle that a claim

adjudicated in state court can be fundamentally altered and, therefore, rendered

new and unexhausted by alleging or presenting supporting evidence for the first

time in federal court.

7

The Sixth Circuit, too, has rejected in principle that new facts presented in

federal habeas proceedings in support of a claim adjudicated in state court can

render it new and unexhausted. In Moore v. Mitchell,708 F.3d 760 (6thCirZ113),the Court of Appeals ruled that petitioner's state court argument that

counsel spent insufficient time preparing his expert who, as a result, gave

damaging testimony exhausted his federal court claim based on depositions from

trial counsel, a mitigation specialist, and apsychologist. The Sixth Circuit ruled

that because the claim had been adjudicated in state court, new supporting

evidence could not render it new and unexhausted. Id. at 780 ("Thus we are faced

with the novel question stemming from Pinholster:May a federal habeas court

consider additional evidence not before the state courts[?] . . . We hold that it may

not." Id.

In the case at bar, the Ninth Circuit denied a Certificate of Appealability on

whether Mr. Coon's ineffective assistance of counsel for failure to adequately

investigate the victim's cause of death was exhausted. While state postconviction

counsel alleged thattrial counsel had inadequately investigated the cause of the

victim,s death, they neither alleged nor supported by evidence in postconviction

proceedings what an adequate investigation would have revealed. The relevant

federal habeas corpus claim, however, did assert what an adequate investigation

would have revealed, that a qualified forensic pathologist would have opined that

8

the deceased's cause of death was at least as likely an asthma attack as

asphyxiation. App. at Il-12 (Motion for Certificate of Appealability). This

opinion would have supported a defense to the charge of intentional murder. See

also Gonzalez v. Wong,667 F.3d 965, 980 (9th Cir. 20ll) (determining that habeas

claim is not new even though "if the new evidence were considered, [the

petitioner] could make a colorable or potentially meritorious Brady claim fon

which, in its state court iteration, the petitioner lost]"). Of course, the Ninth

Circuit has sometimes adhered to the Court's test set out in Hillery. See Dickens v.

Ryan,740F.3d,1302 (20L4). Nevertheless, as the instant case and Wong illustrate,

it does not always do so, and the cases discussed above from other Circuit Courts

of Appeal make clear that Hilleryhas been variously interpreted. Lower courts

and litigants need further guidance on how to distinguish new claims from related

elaims adjudioated in state court.

9

CONCLUSION

For these reasons, this Court should grant certiorari to resolve how to

distinguish new claims from related claims adjudicated in earlier state court

proceedings2 or, in light of Hiltery, grantthe writ, vacate the judgment, and remand

for further proceedings.

Respectfully submitted on October 21,2019.

Oliver W. Loewy

Assistant Federal Public Defender

Attorney for Petitioner

10