FILED
NOT FOR PUBLICATION JUN 28 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
AMOS NOLA OSBORN, No. 08-35631
Petitioner - Appellant, D.C. No. 1:05-CV-01196-CL
v.
MEMORANDUM *
BRIAN BELLEQUE,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Submitted June 11, 2010 **
Portland, Oregon
Before: THOMPSON and McKEOWN, Circuit Judges, and TIMLIN, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Robert J. Timlin, Senior United States District Judge
for the Central District of California, sitting by designation.
Defendant Amos Nola Osborn, a state prisoner, appeals the district court’s
denial of his 28 U.S.C. § 2254 petition alleging ineffective assistance of counsel.
Osborn was convicted of two counts of aggravated murder following a bench trial
and was sentenced to life without the possibility of parole. He contends that his
counsel failed to advise him of the consequences of waiving a jury trial and failed
to call available mitigating witnesses at his sentencing hearing. We have
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.
We review de novo the district court’s decision to deny a 28 U.S.C. § 2254
petition and look to the last reasoned state-court decision—here, the Oregon post-
conviction trial court decision. Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir.
2003), cert. denied, 541 U.S. 1037 (2004). We may grant a writ of habeas corpus
only if the state court’s decision 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.” 28 U.S.C. § 2254(d).
Jury Trial Waiver
Osborn contends the state court unreasonably applied the controlling
standard set out in Strickland v. Washington, 466 U.S. 668 (1984), in denying his
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ineffective assistance of counsel claim with regard to his jury trial waiver. We
disagree.
Under the two-part Strickland test, counsel’s performance must have been
deficient and prejudiced the outcome. Strickland, 466 U.S. at 693-94. To establish
deficiency, Osborn “must show that counsel’s representation fell below an
objective standard of reasonableness.” Id. at 688. To establish prejudice, he “must
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. He
cannot establish either.
Osborn’s contention that his trial attorneys failed to explain the
consequences of waiving a jury trial lacks merit. Osborn signed a written jury trial
waiver acknowledging that he had consulted with counsel and later admitted in a
post-conviction deposition that his counsel reviewed the waiver with him. Osborn
also conceded that he reevaluated his jury waiver decision with new trial counsel,
who advised him to continue with a bench trial for strategic reasons.
Osborn’s contention that his trial counsel unreasonably advised a jury trial
waiver before completing the investigation into his insanity defense also lacks
merit. Although Osborn’s expert neurologist did not evaluate him until after his
waiver, he was evaluated by his expert neuropsychologist two months before his
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waiver. As Osborn had already confessed to the murders, it was not unreasonable
for his counsel to advise a jury trial waiver in order to present his insanity defense
to a judge rather than a jury. That counsel advised Osborn to waive his right to a
jury trial after Osborn was evaluated by one, but not both, of his testifying experts
does not fall below an objective standard of reasonableness under the
circumstances of this case. Strickland, 466 U.S. at 688.
Because Osborn has not established a Strickland error, we need not address
the prejudice prong. Id. at 697. In any event, Osborn cannot show prejudice in
light of the overwhelming evidence at trial that contradicted his insanity defense,
including his admission that he planned the murder and tried to cover it up
afterwards. A jury would have been no more likely to adopt his insanity defense
than the trial judge.
Sentencing
As a threshold matter, Osborn is not entitled to habeas relief under 28 U.S.C.
§ 2254(d)(1) because there is no clearly established Supreme Court precedent in
the noncapital sentencing context. Davis v. Grigas, 443 F.3d 1155, 1158 (9th Cir.
2006); Cooper-Smith v. Palmateer, 397 F.3d 1236, 1244 (9th Cir.), cert. denied
546 U.S. 944 (2005). But, even if the Strickland standard for death penalty cases
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applied to this noncapital sentencing, as Osborn argues, his claim nevertheless fails
because he cannot establish prejudice. Strickland, 466 U.S. at 694.
Osborn contends his counsel was ineffective for failing to present
mitigating witnesses at his sentencing hearing. Osborn relies on the affidavits of
five family members who stated they were available to testify at his sentencing but
were not called to do so. Their testimony, however, was unlikely to change the
result of the sentencing proceeding because the proposed testimony duplicated the
expert testimony given at trial and was outweighed by the evidence against
mitigation.
As the trial judge recounted at sentencing, Osborn planned the murders, had
many opportunities to forgo his plan, was the first to shoot the victims, and tried to
cover-up the murders afterwards. Osborn also admitted that he killed the victims
even though he did not know them or have any problem with them. In light of this
evidence, there is no realistic probability that the result would have been different
had Osborn’s family members testified at his sentencing proceeding. Id. Because
Osborn failed to establish prejudice, his claim fails even when analyzed under
Strickland.
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Mitigating Witnesses
In rejecting Osborn’s ineffective assistance of counsel claim, the state court
concluded there were no mitigating witnesses who would have had the tendency to
affect the outcome of his sentencing proceeding. Osborn contends that this factual
determination was objectively unreasonable under 28 U.S.C. § 2254(d)(2) because
it overlooked, or ignored, the five affidavits from his family members. Osborn is
incorrect.
The state court did not simply conclude that there were no mitigating
witnesses; it determined there were no mitigating witnesses who could have
affected the outcome of the sentencing proceeding. That determination was not
unreasonable given the family witnesses’ redundant testimony and the
overwhelming evidence against mitigation. See Taylor v. Maddox, 366 F.3d 992,
999 (9th Cir.), cert. denied, 543 U.S. 1038 (2004) (“[A] federal court may not
second-guess a state court’s fact-finding process unless . . . it determines that the
state court was not merely wrong, but actually unreasonable.”); 28 U.S.C. §
2254(e)(1).
Conclusion
Osborn’s ineffective assistance of counsel claims lack merit. The state court
decision was not an unreasonable application of clearly established federal law nor
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was it based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d).
Osborn, therefore, is not entitled to habeas relief.
AFFIRMED.
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