Friday, February 18, 2005

Cooper-Smith v. Palmateer

Cooper-Smith v. Palmateer, No. 03-35794 (2-16-05). Petitioner raised IAC claims, arguing that counsel failed to mount a suppression hearing, and call his own mental expert. In assessing the IAC claim, the 9th found error in the use of the state’s (Oregon’s) IAC standard: the state used “more probable than not” rather than Strickland’s “reasonable probability” standard for prejudice. Alas, using a de novo approach, no ineffectiveness was found because the petitioner had agreed to a bench trial with stipulated facts, so the abandonment of the suppression claim was like a 4th amendment claim waived by a plea colloquy: its gone. Moreover, the petitioner had mounted another challenge, to photo i.d., and so the decision for a bench trial was knowingly and with eyes open. The failure to call a mental health expert (as for dangerous offender) wasn’t prejudicial, because the defense doctor’s report was submitted. The district court declined to expand the record for an affidavit from the doctor under Rule 7, finding that the requirements of 28 USC 2254(e)(2) applies, and the 9th affirmed that decision. Lastly, the 9th brushed off the Apprendi challenge, finding it wasn’t retroactive under Sanchez-Cervantes or Ring or Blakely.


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