Slape v. Haase

Background

Darrell Slape filed a petition without a lawyer under 28 U.S.C. § 2254, challenging his California conviction. A Humboldt County Superior Court jury found him guilty of sexual penetration by a foreign object, sexual battery by fraud, and misdemeanor battery involving multiple women. He was sentenced to seven years in prison and was later released on parole. The opinion states that his parole status and continuing sex-offender registration requirement allowed the federal court to keep jurisdiction over the case.

The California Court of Appeal affirmed the judgment. Slape later sought state post-conviction relief, but the California courts denied his petitions. The federal petition raised 11 claims involving actual innocence, ineffective assistance of trial and appellate counsel, propensity evidence, expert testimony, jury instructions, hearing accommodations, and notice of the charges.

Procedural default

The court held that Claims 1, 3, 6, 8, and 9 were procedurally defaulted. Those claims were not raised on direct appeal, and the Humboldt County Superior Court rejected them under California’s Dixon rule, which generally requires a defendant to raise available claims on direct appeal before seeking state habeas relief. The federal court treated that rule as an adequate and independent state ground that barred federal review.

The court found that Slape did not establish cause and prejudice to excuse the default of Claims 3, 6, 8, and 9. Although he established cause for Claim 1 based on his allegation that appellate counsel failed to argue that the crime elements were not met, he did not show prejudice. The court also rejected his argument that failure to consider the claims would result in a fundamental miscarriage of justice because the document he offered as new evidence was created before trial, apparently had been available to defense counsel, lacked demonstrated reliability, and did not show factual innocence.

The court stated that, even if the procedurally defaulted claims were considered, they would fail for the reasons discussed elsewhere in the opinion. It nevertheless concluded that Claims 1, 3, 6, 8, and 9 were procedurally defaulted and that Slape was not entitled to relief on them.

Claims considered on the merits

The court considered Claims 2 and 4, alleging ineffective assistance of trial counsel; Claim 5, challenging exclusion of defense expert testimony; Claim 7, challenging hearing accommodations; Claim 10, alleging ineffective assistance of appellate counsel; and Claim 11, alleging that new evidence showed the exclusion of expert testimony produced an unfair trial.

For Claim 7, the court found that Slape received a realtime transcript and a headset during trial. The record showed that he used the realtime transcript and had a headset available while testifying, although he chose not to use it and did not request a realtime transcript while testifying. The court also stated that no clearly established United States Supreme Court authority required granting habeas relief on the particular hearing-accommodation claim.

For Claims 5 and 11, the court upheld the rejection of Slape’s challenge to excluding testimony from Dr. Podboy and Dr. Friedman. Dr. Podboy’s proposed testimony concerned the effects of prior trauma on perception and memory, while Dr. Friedman’s proposed testimony concerned referred sensations during massage. The court found that there was no clearly established federal rule requiring admission of this testimony. It also found that Dr. Friedman’s proposed testimony was not vital because other witnesses had presented similar information, and that excluding Dr. Podboy’s testimony was not arbitrary or disproportionate. Slape had been able to cross-examine the victims, and the supposed new evidence did not change the analysis.

For Claims 2 and 4, the court applied the rule that ineffective assistance requires both deficient performance and a reasonable probability that the alleged error affected the result. It found that the state court reasonably rejected Slape’s arguments concerning the expert witnesses, jury instructions, propensity evidence, notice of the charges, and alleged prosecutorial misconduct. The court noted that counsel had objected to the propensity evidence, that the evidence would have been admissible for intent even if treated differently, and that misdemeanor battery was a lesser-included offense of the charged sexual battery offense, providing adequate notice. It also found that Slape’s prosecutorial-misconduct allegation was too vague to evaluate.

For Claim 10, the court rejected Slape’s ineffective-assistance claim against appellate counsel. It found that the arguments Slape said counsel should have raised were meritless or insufficiently identified, and that failing to raise meritless arguments did not constitute ineffective assistance.

Disposition

Judge Edward Davila denied the petition for a writ of habeas corpus. The court also denied a certificate of appealability because Slape had not made the required substantial showing that a constitutional right was denied and had not shown that reasonable judges would debate the court’s assessment. The court directed the clerk to terminate pending motions, enter judgment for Bobby Haase, and close the file.