Haube v. Houser

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ANTHONY HAUBE,
Petitioner,
vs.
WILLIAM LAPINSKAS, Superintendent,
Spring Creek Correctional Center,1
Respondent.
No. 3:17-cv-00170-JKS
MEMORANDUM DECISION
Anthony Haube, a state prisoner now represented by counsel, filed a Petition for a Writ of
Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Haube is in the custody of the
Alaska Department of Corrections and incarcerated at Spring Creek Correctional Center.
Respondent has answered, and Haube has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Haube, along with co-defendants Thomas Lyons, and Thomas Evenson, was charged
with first- and second-degree murder in connection with the April 2005 killing of Michael
Gerber. Haube was also charged with second-degree robbery and two counts of tampering with
1 William Lapinskas, Superintendent, Spring Creek Correctional Center, is
substituted for Earl Houser, Superintendent, Goose Greek Correctional Center. FED . R. CIV . P.
25(c).
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physical evidence. On direct appeal of his conviction, the Alaska Court of Appeals laid out the
following facts underlying the charges against Haube:
During the early morning of April 1, 2005, Anthony Haube, Thomas Lyons,
Thomas Evenson, Tom Hixon, and Michael Gerber were gathered in a Petersburg
apartment, drinking and playing cards.
Gerber was dating Charlene Hixon (Tom Hixon’s sister), who had previously
dated Haube. Haube had fought with Gerber on prior occasions, and a few days before
the murder, Haube told Charlene Hixon that he was “going to shank [her] boyfriend’s
ass.” At some point during the April 1 gathering, a fight broke out. Tom Hixon
testified that Lyons, Haube, and Evenson proceeded to severely beat Gerber, and that
Haube threw Gerber out of a second-story window into an alley. Haube and Lyons then
went downstairs and after about fifteen minutes, they returned to the apartment, covered
in blood.
The next day, Charlene Hixon found Gerber’s body in the alley, hidden
underneath sheets of aluminum siding. Gerber had been cut over seventy times. There
were defensive wounds on his hands, indicating that he was alive and conscious at the
time that the cuts were made. The cause of death was from two deep knife wounds to his
chest and a cut throat.
Haube v. State, No. A-10047, 2010 WL 2871078, at *1 (Alaska Ct. App. Jul. 21, 2010).
Lyons entered a plea agreement with the State and agreed to testify in exchange for
pleading guilty to a charge of criminally negligent homicide. He was sentenced to 10 years’
imprisonment, with 3 years suspended. Evenson was tried twice and both times the jury was
unable to reach a verdict. He ultimately entered a plea agreement with the State in which he
pleaded no contest to second-degree assault and was sentenced to 8 years’ imprisonment, with 3
years suspended.
Shortly after Evenson’s second trial ended with a hung jury, Haube went to trial where he
did not testify. The jury returned a verdict finding Haube guilty of second-degree murder.
When the superior court judge polled the jury by asking, “Is this your true and correct verdict?”,
one of the jurors, Juror B., answered, “Unless he tells me what he was doing during that time.”
The trial judge cautioned the juror that Haube had no obligation to say anything and that the
juror could not use Haube’s silence against him. The juror then answered in the affirmative
when again asked if the guilty verdict was true and correct.
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After polling the rest of the jurors, the trial judge further questioned Juror B. about her
response at Haube’s request. In response, Juror B. stated that she wished Haube was not guilty.
Haube moved for a mistrial, arguing that the juror’s response indicated that the jury had not been
unanimous in its verdict. The trial judge told Haube’s attorney to pursue the motion for a new
trial in writing and discharged the jury.
About three days later, Juror B. contacted the trial judge by telephone. The judge
suggested that she set out her concerns in a letter. Juror B.’s letter stated that she “should have
held out for what [she] believe[d] in which was that Anthony Haube is not guilty of second-
degree murder.” Following briefing and argument, the trial judge ultimately denied Haube’s
motion for a new trial. He subsequently sentenced Haube to 85 years’ imprisonment.
Through counsel, Haube appealed, arguing that: 1) the trial judge erred in denying his
motion for a new trial; and 2) his 85-year sentence was excessive. The Court of Appeal
unanimously affirmed the judgment against Haube in a reasoned, unpublished opinion issued on
July 21, 2010. Haube, 2010 WL 2871078, at *7. The Alaska Supreme Court denied review
without comment on December 17, 2010.
Haube then filed a counseled application for post-conviction relief, arguing that his trial
attorney was ineffective in his use of an expert witness concerning alcohol-related memory
issues. He additionally argued that trial counsel was ineffective for failing to seek suppression of
five knives that the State introduced as trial. The superior court dismissed Haube’s application
for failure to state a prima facie claim for relief. Haube appealed the decision, and the Court of
Appeal unanimously affirmed the dismissal in a reasoned, unpublished decision. Haube v. State,
No. A-11504, 2015 WL 7709589, at *5 (Alaska Ct. App. Nov. 25, 2015). Haube petitioned for
hearing in the Alaska Supreme Court, which was summarily denied on August 10, 2016.
Haube timely filed a pro se Petition for a Writ of Habeas Corpus to this Court dated
August 8, 2017. Docket No. 1; see 28 U.S.C. § 2244(d)(1),(2). His accompanying request for
appointed counsel was granted, Docket No. 4, and an Amended Petition (Docket No. 17;
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“Petition”) was filed. Briefing is now complete, and the case is before the undersigned judge for
adjudication.
II. GROUNDS/CLAIMS
In his counseled Petition before this Court, Haube argues that: 1) the Alaska Court of
Appeals unreasonably applied clearly-established federal law when it denied Haube’s coerced
verdict claim; 2) the Court of Appeals’ rejection of his coerced verdict claim was based on an
unreasonable determination of the facts in light of the evidence presented; and 3) the Alaska
Court of Appeals unreasonably applied clearly-established federal law when it rejected Haube’s
claim that trial counsel was ineffective for failing to move for suppression of the five knives
admitted as evidence at trial.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,”
§ 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that
contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that
are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives
at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000). The term unreasonable is a
common term in the legal world. The Supreme Court has cautioned, however, that the range of
reasonable judgments may depend in part on the nature of the relevant rule argued to be clearly
established federal law. Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (“[E]valuating
whether a rule application was unreasonable requires considering the rule’s specificity. The
more general the rule, the more leeway courts have in reaching outcomes in case-by-case
determinations.”).
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The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1)
“refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the
relevant state-court decision.” Id. at 412. The holding must also be intended to be binding upon
the states; that is, the decision must be based upon constitutional grounds, not on the supervisory
power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where
holdings of the Supreme Court regarding the issue presented on habeas review are lacking, “it
cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’”
Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the Petition raises issues of the proper application of state law, they are
beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.
Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was
correctly applied). It is a fundamental precept of dual federalism that the states possess primary
authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62,
67-68 (1991) (a federal habeas court cannot reexamine a state court’s interpretation and
application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state
court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536
U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the “last reasoned
decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)
(citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). A summary denial is an adjudication
on the merits and entitled to deference. Harrington v. Richter, 562 U.S. 86, 99 (2011). Under
the AEDPA, the state court’s findings of fact are presumed to be correct unless the petitioner
rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003).
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IV. DISCUSSION
1. 	Exhaustion
Respondent urges the Court to dismiss all claims as unexhausted and procedurally
defaulted. This Court may not consider claims that have not been fairly presented to the state
courts. 28 U.S.C. § 2254(b)(1); see Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing cases).
Exhaustion of state remedies requires the petition to fairly present federal claims to the state
courts in order to give the state the opportunity to pass upon and correct alleged violations of its
prisoners’ federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995). A petitioner must alert
the state courts to the fact that he is asserting a federal claim in order to fairly present the legal
basis of the claim. Id. at 365-66. To satisfy the “fairly present” requirement, the petitioner must
present his or her federal claim to “each appropriate court (including a state supreme court with
powers of discretionary review)” so that the each court is alerted to the federal nature of the
claim. Baldwin v. Reese, 541 U.S. 27, 29 (2004); Duncan v. Henry, 513 U.S. 364, 365–66
(1995) (per curiam). In Alaska, this means that claims must first be presented to the Alaska
Superior Court. If the petitioner disagrees with that result, the claim should be raised to the
Alaska Court of Appeals, and if he disagrees with that result, the claim should be raised in a
petition for hearing to the Alaska Supreme Court.
In the Ninth Circuit, a petitioner must make the federal basis of the claim explicit either
by referencing specific provisions of the federal Constitution or statutes or by citing to federal
case law. Robinson v. Schiro, 595 F.3d 1086, 1101 (9th Cir. 2010). Mere similarity of claims
between a state law claim and a federal law claim is insufficient for exhaustion purposes.
Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). In order to present the substance of a claim
to a state court, the petitioner must reference a specific federal constitutional provision as well as
a statement of facts that entitle the petitioner to relief. Gray v. Netherland, 518 U.S. 152, 162-63
(1996). Once the petitioner fairly presents the claim to the state courts, exhaustion is satisfied
even if the state court’s decision is silent on the particular claim. See Dye v. Hofbauer, 546 U.S.
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1, 3, (2005) (per curiam).
Respondent contends that Haube never presented his claims relating to Juror B. (Grounds
1, 2) as violations of due process or the right to a fair trial. Rather, Haube “characterized his
challenge to the questioning of Juror [B.] as a claim under Alaska Criminal Rule 31 and the
Alaska constitution.” Docket No. 22 at 15. Respondent likewise avers that, although Haube
raised his contention that his trial attorney should have moved for suppression of the knives, he
presented to the Alaska Supreme Court only the claim that counsel was ineffective in not
requesting a Thorne instruction2 as to a knife that was accidentally spray-painted.
The Court agrees with Haube, however, that a review of the petition for review in its
entirety demonstrates that the presentation of the juror coercion claim was sufficient to raise the
federal issues of due process and the right to a fair trial. Likewise, a comprehensive reading of
the petition for review supports that Haube additionally raised to the Alaska Supreme Court his
claim that trial counsel should have moved for suppression of the knives. Accordingly, the
Court will address the merits of the claims as discussed below.
2. 	Merits
i. 	Coerced Verdict (Grounds 1, 2)
Haube first argues that the Alaska Court of Appeals unreasonably applied clearly-
established U.S. Supreme Court authority when it denied Haube’s claim that the trial court’s
post-verdict questioning of Juror B. was unduly coercive and that the appellate court’s denial
was based on an unreasonable determination of the facts in light of the evidence presented.3 The
Alaska Court of Appeals considered and rejected Haube’s claim concerning Juror B. as follows:
2 See Thorne v. Dep’t of Pub. Safety, 774 P.2d 1326 (Alaska 1989) (requiring an
adverse-inference instruction telling the jury to presume that evidence missing from the State’s
case would have been favorable to defendant).
3 To the extent that Haube challenges the Court of Appeals’ determination that
Juror B. joined in the verdict, current Supreme Court authority holds that, at least in non-capital
cases, there is no federal constitutional right to a unanimous verdict in a state criminal trial.
Schad v. Arizona, 501 U.S. 624, 634 n.5 (1991); Apodaca v. Oregon, 406 U.S. 404, 406 (1972).
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The jury poll and Judge Zervos’s exchanges with Juror B.
After the jury returned to court with a verdict finding Haube guilty of murder in
the second degree, Haube asked Judge Zervos to poll the jury. Judge Zervos began to
poll the jury. When Judge Zervos got to Juror B., the following exchange ensued:
THE COURT: Ms. B., the verdict of guilty of murder in the second degree. Is
this your true and correct verdict?
JUROR: Unless he tells me what he was doing during that time.
MR. HEDLAND [counsel for Haube]: What?
THE COURT: Okay. You understand he has no obligation to do or say anything.
And you can’t use that, in any way, in making the decision.
JUROR: I know. So then I have to say yes.
THE COURT: It’s your true and correct verdict, as to murder in the second
degree?
JUROR: Uh-huh (affirmative).
THE COURT: I’m sorry. Yes, you’re saying?
JUROR: Yes.
Judge Zervos continued polling the rest of the jury. Then, at Haube’s request, he
questioned Juror B. further regarding her response.
THE COURT: . . . Ms. B., obviously the . . . rules about returning a verdict on
these cases involves certain . . . requirements. And the one requirement that’s
important for us to understand, and for you to tell us about is what’s going on in
your mind and heart about this issue, concerning whether or not Mr. Haube says
anything or doesn’t say anything.
The way . . . our law is, under our Constitution is that that’s not an issue
that can be considered, in any way in reaching a verdict, whether he testified or
not. It’s just not a relevant issue. And you seem to imply that that was causing
you some difficulty.
JUROR: I haven’t slept. I don’t even know what you just said.
THE COURT: You don’t know what I just said? I’m sorry.
JUROR: No.
THE COURT: Okay . . . . the issue about whether Mr. Haube testifies or not is not
an issue that the jurors can consider in reaching their decision . . . . He has that
Constitutional right to make that decision. Whatever he chooses, that’s his right
to do.
JUROR: Okay.
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THE COURT: Obviously, sometimes, people do testify. Sometimes, people
don’t. But it’s not an issue that the jury . . . can consider in reaching a decision.
And when you answered the question earlier, you said something about him
making or not making a statement, and . . . what we need to make clear here-and I
need to understand from what’s going on in your heart and your mind, that that’s
not an issue, or it can’t be an issue in your reaching your decision about whether
Mr. Haube is guilty or not guilty of these offenses.
JUROR: I don’t know.
THE COURT: Pardon me?
JUROR: I don’t know.
THE COURT: Okay.
JUROR: I can’t-I am so tired of this.
THE COURT: Right. Well, I guess the question that I need to put directly to you
is then that issue about whether he testified or not, did that lead you to make your
decision about what the outcome of this case is?
JUROR: No. I just wish he would tell me what he was doing.
THE COURT: But . . . he has no obligation to do that.
JUROR: No.
THE COURT: And that’s not a factor that the jury can consider in making their
decision. That’s important. Any question about that?
JUROR: No. But I’d still like to know.
THE COURT: Oh, yeah. I know. Sure, just as a matter of completeness or some
other matter. But as to whether or not Mr. Haube was or was not guilty of this
offense, does that, the fact that he . . . did not testify . . . was that used by you in
reaching your decision, that he was guilty of . . .
JUROR: No. I just . . . wish that he wasn’t.
THE COURT: Wish that he wasn’t guilty?
JUROR: Yeah.
THE COURT: All right. So, if I understand and-if I can recap and please correct
me if I’m wrong on this. You’ve made your decision that Mr. Haube is guilty of
the murder in the second degree, you wish he would say something about it, so
that you can come to a different decision, but that’s not what you’re basing you
decision that he’s guilty of this offense on?
JUROR: No. I’m basing it on I think he may have kicked the guy. According to
your rules . . .
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MR. HEDLAND: Your Honor, I’m moving for a mistrial right now.
Judge Zervos decided to dismiss the jury, and he told Haube’s attorney to pursue
a motion for a new trial in writing.
About three days after Judge Zervos had discharged the jury, Juror B. contacted
Judge Zervos by telephone. He suggested that she set out her concerns in a letter. Juror
B. then wrote a letter in which she stated that she “should have held out for what [she]
believed in which was that Anthony Haube is not guilty of second-degree murder.”
Judge Zervos’s decision denying Haube’s motion for mistrial
Following briefing and argument, Judge Zervos entered a decision denying
Haube’s motion for a new trial. He first turned to Juror B.’s statements in court, when
the verdict was returned. The judge concluded: “Ms. B.’s initial response does not seem
equivocal at all. She said that her verdict was guilty but she added ‘unless he tells me
what he was doing during that time.’ But right after this statement, she specifically said
that her verdict was guilty.”
The judge next focused on whether Juror B. had improperly considered Haube’s
failure to testify in reaching a verdict. He concluded that her statements showed that she
had not:
Twice Ms. B. said she did not consider Mr. Haube’s silence in reaching
her verdict. But twice she also said that she wished things were different. Ms.
B.’s wishes probably reflect the emotional difficulty she was having with her
verdict. Her verdict was guilty but she wanted it to be different.
Based on Ms. B.’s statements, the court is convinced that she did not use
Mr. Haube’s silence in reaching her verdict. The court is also convinced that Ms.
B.’s verdict, like the verdict of the other jurors, was that Mr. Haube is guilty.
Judge Zervos further reasoned that the policy underlying Alaska Evidence Rule
606 cautioned against relying on Juror B.’s “unsolicited, incomplete statement about her
reason for the verdict . . .” during his second inquiry in court. Finally, Judge Zervos
concluded that Evidence Rule 606(b) prohibited him from considering the statements in
Juror B.’s letter. For these reasons, the judge denied Haube’s motion for a new trial.
Why we uphold Judge Zervos’s decision
Alaska Criminal Rule 31(a) requires that the jury’s verdict in a criminal case be
unanimous. Rule 31(d) also provides that “[w]hen the verdict is returned and before it is
recorded the jury shall be polled at the request of any party or upon the court’s own
motion. If, upon the poll, there is not unanimous concurrence, the jury may be directed
to retire for further deliberations or may be discharged .”
Accordingly, when the jury in Haube’s case returned its verdict and Haube asked
to have the jury polled, Judge Zervos’s duty was to determine whether the jury’s verdict
was unanimous. That is exactly what Judge Zervos did.
The problem with Juror B.’s initial response to the poll, as Judge Zervos
recognized, was that she stated, “Unless he tells me what he was doing during that time.”
Judge Zervos immediately responded that Haube had no duty to say anything and that the
jury could not use Haube’s silence against him. Juror B. agreed and affirmed her guilty
verdict. We conclude that Judge Zervos acted within his discretion in confirming that
Juror B. had agreed to the verdict. We agree with Judge Zervos that, during this first
inquiry, Juror B. unequivocally confirmed that her verdict was that Haube was guilty of
murder in the second degree.
Judge Zervos addressed Juror B. a second time. Judge Zervos concluded from
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Juror B.’s responses that she had not considered Haube’s failure to testify in reaching her
verdict and that she had again affirmed the fact that she had agreed to the guilty verdict.
We conclude that Judge Zervos’s findings about this inquiry are supported by the record.
Haube argues that Judge Zervos should not have questioned Juror B. in open
court. He argues that this questioning created “a coercive or confusing situation” and
that questioning her “in front of other jurors prevented [Juror B.] from raising an issue
related to those jurors.”
But Haube never objected to Judge Zervos’s questioning of Juror B. In fact,
Haube specifically asked Judge Zervos to question the juror. And Haube never objected
to Judge Zervos’s questioning or asked him to question the juror outside the presence of
the other jurors. Therefore, Haube has not preserved this issue for appeal.FN3
Furthermore, we fail to see how questioning the juror in private would necessarily have
been less coercive than questioning her in open court.
FN3. 	Barrett v. State, 772 P.2d 559, 568 n.10 (Alaska App. 1989) (discussing
“plain error” and “invited error”).
In addition, Judge Zervos concluded that Evidence Rule 606(b) prohibited him
from considering Juror B.’s “unsolicited, incomplete statement about her reason for the
verdict.” Rule 606(b) prohibits inquiring into the validity of the jury’s verdict or the
jury’s deliberations. The only exception is when there is a question about whether
“extraneous prejudicial information was improperly brought to the jury’s attention or
whether any outside influence was improperly brought to bear upon any juror.”FN4
FN4. 	Evidence Rule 606(b) provides:
Upon an inquiry into the validity of a verdict or indictment, a juror
may not be questioned as to any matter or statement occurring during the
course of the jury’s deliberations or to the effect of any matter or
statement upon that or any other juror's mind or emotions as influencing
the juror to assent to or dissent from the verdict or indictment or
concerning the juror’s mental processes in connection therewith, except
that a juror may testify on the question whether extraneous prejudicial
information was improperly brought to the jury’s attention or whether any
outside influence was improperly brought to bear upon any juror. Nor
may a juror’s affidavit or evidence of any statement by the juror
concerning a matter about which the juror would be precluded from
testifying be received for these purposes.
Rule 606(b) “should be interpreted so as to preserve and advance the policies
underlying the rule: insulating the jury’s deliberative process and promoting the finality
of jury verdicts, while not foreclosing post-verdict attacks if external forces have
erroneously been injected into the deliberative process.”FN5
FN5. 	Larson v. State, 79 P.3d 650, 659 (Alaska App. 2003) (citing the
Commentary to Alaska Evid. R. 606(b), seventh paragraph).
As Judge Zervos recognized, “there seems to be no logical reason why the
principles underlying Rule 606(b) should not apply to comments made by a juror about
the jury’s deliberations during a jury poll.” There is support for this conclusion. The
language of the rule does not limit itself to inquiries that are made after the jury is
discharged. And the American Bar Association Standards on Trial by Jury state:
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The poll should be conducted so as to obtain an unequivocal expression
[of assent or dissent] from each juror. If this is obtained, then any volunteered
statements by a juror in explanation of the juror’s verdict may be disregarded. A
juror should not be asked to give reasons for the verdict . . . . [FN6]
FN6. 	ABA Standards for Criminal Justice: Discovery and Trial by Jury § 15-5.6
and Commentary at 266 (3d ed., 1996).
For purposes of this case, we do not need to decide whether Evidence Rule 606(b)
applies to the statements which Juror B. made about how she arrived at her verdict. But
certainly the policy behind the rule supports Judge Zervos’s caution about relying on any
statements that the juror made about her reasons for arriving at her verdict.
Judge Zervos also concluded that Rule 606(b) precluded consideration of Juror
B.’s letter. Juror B.’s letter did not allege that “extraneous prejudicial information was
improperly brought to the jury’s attention or [that] any outside influence was improperly
brought to bear on any juror.” FN7 Her letter indicated that she had second thoughts about
her verdict. Therefore, the letter clearly fell within the kind of allegation that the court
could not consider under the evidence rule. We agree with Judge Zervos that Evidence
Rule 606(b) prohibited him from considering Juror B.’s letter.
FN7. 	Alaska Evid. R. 606(b).
We therefore conclude that Judge Zervos did not err in concluding that the jury
verdict was unanimous, and that he therefore did not err in denying Haube’s motion for a
new trial.
Haube, 2010 WL 2871078, at *2-6.
Haube first avers that the state court unreasonably applied Lowenfield v. Phelps, 484 U.S.
231 (1988), and Allen v. United States, 164 U.S. 492 (1896), when it denied Haube’s coerced
verdict claim on direct appeal. These cases involve a trial court’s use of a supplemental jury
charge to encourage a jury to reach a verdict after the jury has been unable to agree for some
period of deliberation, which is often referred to as an Allen charge, after the U.S. Supreme
Court’s sanctioning of a such charge in that case. In the case at hand, however, the jury was
neither deadlocked nor told that it must reach a verdict. Respondent argues that, because of
these differences, Allen and Lowenfield do not constitute “clearly established Federal law”
prohibiting the type of questioning conducted here.
Although “the Supreme Court need not have addressed a factually identical case,”
Houston v. Roe, 177 F.3d 901, 906 (9th Cir. 1999), the Supreme Court has held that a state-court
decision is contrary to federal law “if the state court confronts a set of facts that are materially
indistinguishable from a decision” of the Supreme Court, but nevertheless arrives at a different
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result. Williams, 529 U.S. at 406. Because there of the differences between the cases involving
supplemental jury instructions to deliberate and the case at hand, Respondent is correct that it
cannot be said that Haube’s case is materially indistinguishable from Allen or Lowenfield.
Nonetheless, the Supreme Court has also held that a state-court decision is contrary to
federal law if the state court applies a rule that contradicts controlling Supreme Court authority.
Id. As Respondent correctly notes, there is no clearly established Supreme Court law which
squarely holds that questioning a jury about its verdict violates a defendant’s due process rights
per se. See Drayton v. Castro, 319 F. App’x 632, 634-35 (9th Cir. 2009). The Ninth Circuit has
stated that a trial judge may ask a jury to clarify its verdict when the verdict is ambiguous or
inconsistent. Skains v. California, 386 Fed. App’x 620, 622-23 (9th Cir. 2010).
A trial judge may not, however, coerce a verdict from a jury. “Clearly established federal
law provides that ‘[a]ny criminal defendant . . . being tried by a jury is entitled to the uncoerced
verdict of that body.’” Parker v. Small, 665 F.3d 1143, 1147 (9th Cir. 2011) (quoting
Lowenfield v. Phelps, 484 U.S. 231, 241 (1988)). Haube avers that the state court’s decision is
contrary to this general rule. As aforementioned, however, “[t]he more general the rule, the
more leeway courts have in reaching outcomes in case-by-case determinations.” Yarborough,
541 U.S. at 664 (2004).
In considering whether trial court’s inquiry amounts to coercion, a reviewing court must
consider the trial court’s actions “in its context and under all the circumstances.” Lowenfield,
484 U.S. at 237 (citation and internal quotation marks omitted). The court may consider the
form of the conduct and any other indicia of coerciveness. See United States v. Berger, 473 F.3d
1080, 1090 (9th Cir. 2007). The ultimate question is “whether the trial judge’s inquiry would be
likely to coerce certain jurors into relinquishing their views in favor of reaching a unanimous
decision.” Locks v. Sumner, 703 F.2d 403, 406 (9th Cir. 1983).
In Haube’s case, the trial record supports a conclusion that the trial judge did not coerce
Juror B. to change her verdict. When the jurors were polled, Juror B.’s response indicated that
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she may have relied on an impermissible basis for her finding of guilt. The judge did not tell or
even encourage Juror B. to change her verdict; rather, he sought to confirm that Juror B. agreed
to the verdict in light of the fact that she could not rely on the Haube’s decision not to testify. 4
Considering the judge’s comments in their “context and under the circumstances,” the state
court’s conclusion that the judge’s comments and questioning were not coercive was neither
contrary to, nor an unreasonable application of, clearly established Supreme Court law.
Nor was it based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2).
Haube takes issue with the trial judge’s statement that “twice [Juror B.] said she did not consider
Mr. Haube’s silence in reaching her verdict. [Juror B.’s] wishes probably reflect the emotional
difficulty she was having with her verdict. Her verdict was guilty but she wanted it to be
different.” Docket No. 30 at 6. Haube argues that the statement is “highly misleading” and the
findings are unreasonable “because they leave out the context in which these answers were
given.” Id. The Court has independently reviewed the transcript of the verdict. Although
Haube challenges the trial court’s characterization of the exchange, the record supports the state
courts’ ultimate findings and legal conclusions that the trial court did not impermissibly coerce
Juror B.’s guilty verdict. There is simply no indication that the Court of Appeal relied on factual
inaccuracies in its determination. Accordingly, Haube is thus not entitled to relief on this claim.
4 As Respondent acknowledges, the trial judge’s questioning presented an
“arguable problem” with respect to the no-impeachment rule, which gives “substantial protection
to verdict finality,” Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 861 (2017). See Docket No. 29
at 20-21. The no-impeachment rule is embodied in Federal Rule of Evidence 606, which
provides in pertinent part: “During an inquiry into the validity of a verdict or indictment, a juror
may not testify about . . . the effect of anything on that juror’s or another juror’s vote; or any
juror’s mental processes concerning the verdict or indictment.” FED . R. EVID . 606(b)(1).
Here, Haube does not challenge the judge’s questioning on 606(b) grounds, and indeed,
because he specifically requested the questioning at trial, would be unable to do so. Moreover,
Rule 606(b), like its Alaska counterpart, similarly prevents this Court from relying on Juror B.’s
post-verdict letter in assessing whether her verdict was coerced. See Haube, 2010 WL 2871078,
at *5 (agreeing with trial judge that Alaska Rule of Evidence 606(b) prevented consideration of
the letter).
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ii. 	Ineffective Assistance of Counsel (Ground 3)
Haube additionally claims that his trial attorney rendered ineffective assistance by failing
to seek the suppression of various knives that the State introduced at trial. To demonstrate
ineffective assistance of counsel under Strickland v. Washington, a defendant must show both
that appellate counsel’s performance was deficient and that the deficient performance prejudiced
his defense. 466 U.S. 668, 687 (1984). A deficient performance is one in which “counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth
Amendment.” Id.
The Supreme Court has explained that, if there is a reasonable probability that the
outcome might have been different as a result of a legal error, the defendant has established
prejudice and is entitled to relief. Lafler v. Cooper, 132 S. Ct. 1376, 1385-86 (2012); Glover v.
United States, 531 U.S. 198, 203-04 (2001); Williams, 529 U.S. at 393-95. Where a habeas
petition governed by AEDPA alleges ineffective assistance of counsel, the Strickland prejudice
standard is applied and federal courts do not engage in a separate analysis applying the Brecht
harmlessness standard. Avila v. Galaza, 297 F.3d 911, 918, n.7 (9th Cir. 2002); see also Musalin
v. Lamarque, 555 F.3d 830, 834 (9th Cir. 2009). Under this rubric, in reviewing ineffective
assistance of counsel claims in a federal habeas proceeding:
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.” And, because the
Strickland standard is a general standard, a state court has even more latitude to
reasonably determine that a defendant has not satisfied that standard.
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citations omitted); see also Runningeagle v.
Ryan, 686 F.3d 758, 775 (9th Cir. 2012).
Thus, Haube must show that his trial or appellate counsel’s representation was not within
the range of competence demanded of attorneys in criminal cases, and there is a reasonable
probability that, but for counsel’s ineffectiveness, the result would have been different. See Hill
v. Lockhart, 474 U.S. 52, 57 (1985). An ineffective assistance of counsel claim should be denied
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if the petitioner fails to make a sufficient showing under either of the Strickland prongs. See
Strickland, 466 U.S. at 697 (courts may consider either prong of the test first and need not
address both prongs if the defendant fails on one).
Haube raised this ineffective assistance claim in a counseled application for post-
conviction relief (“PCR”). Haube’s trial attorney also submitted an affidavit in those
proceedings in which he stated:
I did not file a motion in limine to prohibit the introduction of various knives.
The decision to let the knives into evidence was tactical. [PCR counsel] asserts that their
introduction was prejudicial. I respectfully disagree. The fact that the state promoted
certain knives as possible murder weapons when they clearly were not murder weapons
was, in my estimation, damaging to the state’s case and supported our position that the
state’s approach was to make assertions that were not only uncorroborated but also
objectively wrong. Tactically—and this is without doubt subjective—I would much
rather have the state introduce into evidence, as opposed to not introduce, a trinket
“Pocket Ulu” knife that the state’s medical examiner has previously endorsed as a
possible murder weapon when I know that I can establish that it did not exist at the time
of murder. Further, when I also know that I can get the medical examiner to admit not
only that the trinket knife could not be the murder weapon but that, in addition, he had
given prior, sworn, incorrect testimony that it could be the murder weapon as well, I want
the jury to hear about it. Ironically, I would have loved to have the state assert that the
“Pocket Ulu” knife was the murder weapon. It belonged to Evenson, and Savannah
Loseth testified that Evenson said that he slit Gerber’s throat with it.
To my memory, the state introduced or referenced the “Pocket Ulu” knife, two[]
nearly identical folding knives associated with Mr. Haube, the broken, serrated steak
knife found near Mr. Gerber, a big kitchen knife, and a filet knife. The state’s crime lab
completely disassembled and analyzed the ones associated with Mr. Haube. They had
several screws and small cavities. There was no blood on or in them. This was good for
Mr. Haube. The serrated knife found in Mr. Gerber’s vicinity (with the police paint on it)
might have been the murder weapon, but that was not even clear. It was not particularly
associated with any defendant and certainly not Mr. Haube. Ms. Hixon’s description of
the knife Mr. Haube allegedly “flicked” did not match the knives introduced into
evidence, and she testified that the knives introduced were not the knife that she saw. It
was as if the state introduced items not based upon their relevance but rather based upon
the fact that the items were collected. The fact that the state so freely introduced all of
the knives never made sense to me because their obvious irrelevance regarding guilt
helped our defense. Or so it seemed at the time.
Additionally, some of the knives were relevant from our perspective to other
issues such as the adequacy of the police’s investigation or bias of police and its
witnesses. The “Pocket Ulu” knife was relevant, for example, to corroborate Savannah
Loseth’s testimony, and also relevant to show bias—that the state was content to endorse
it as the murder weapon when Evenson was the defendant (with whom it was associated)
even when it had actual knowledge that it could not be the weapon used to kill Mr.
Gerber, but it was just as content to abandon that position when Mr. Haube was on trial.
Docket No. 22-21 at 3-4.
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In considering this ineffective assistance claim on post-conviction review, the trial court
appropriately cited Alaska analogues of Strickland, which appropriately articulate the federal
standard for constitutionally effective counsel. See, e.g., Risher v. State, 523 P.3d 421 (Alaska
1974) (mandating a two-prong test similar to Strickland where the applicant must: 1) prove that
counsel’s performance fell below the objective standard of a “lawyer with ordinary training and
skill in the criminal law” and 2) make a “showing that the lack of competency contributed to the
conviction”). Haube does not contend that the state courts relied on an inappropriate legal
standard. Thus, to obtain federal habeas relief, Haube must show that the Alaska courts applied
the federal ineffective standard unreasonably. See 28 U.S.C. § 2254(d)(1).
Haube fails to satisfy his heavy burden. The record supports the state court’s conclusion
that trial counsel made an informed tactical decision not to challenge the admission of the
various knives for the reasons thoroughly articulated in trial counsel’s affidavit. At best, Haube
has now presented the opinions of two other attorneys (PCR counsel and federal habeas counsel)
who have disagreed with trial counsel’s strategy. But disagreements regarding trial tactics or
strategies cannot form the basis of ineffective assistance claims, Strickland, 466 U.S. at 690, and
tactical decisions are not ineffective merely because, in hindsight, better tactics are known to
have been available, Bashor v. Riley, 730 F.2d 1228, 1241 (9th Cir. 1984). Indeed, “[e]ven the
best criminal defense attorneys would not defend a particular client in the same way.”
Strickland, 466 U.S. at 689.
In the instant Petition, Haube claims that counsel’s affidavit “does not explain why
defense counsel did not at the very least seek a spoliation instruction.” Docket No. 30 at 10. But
Haube did not raise that specific claim to the state courts. Rather, with respect to the admission
of the knives, Haube faulted counsel only for failing to seek a Thorne instruction on the knife
that was painted by police. See Docket No. 22-27 at 13. Accordingly, any contention relating to
the lack of a spoliation instruction is unexhausted and not properly before this Court. In any
event, Haube fails to show that he was prejudiced by the omission such that a spoliation
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instruction would have led to a better outcome. Haube is therefore not entitled to relief on his
ineffective assistance claim either.
V. CONCLUSION AND ORDER
Haube is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to grant a Certificate of
Appealability. See 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain
a certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El,
537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the
Ninth Circuit Court of Appeals. See FED . R. APP . P. 22(b); 9TH CIR . R. 22-1.
The Clerk of the Court is to enter judgment accordingly.
Dated: November 21, 2019.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
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