Gregory Cutler v. Jean Hill , 385 F. App'x 694 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 25 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GREGORY ALAN CUTLER, No. 09-35401
Petitioner - Appellant, D.C. No. 3:07-CV-00193-MA
v.
MEMORANDUM *
JEAN HILL,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Malcom F. Marsh, United States District Judge, Presiding
Argued and Submitted June 10, 2010
Portland, Oregon
Before: THOMPSON and McKEOWN, Circuit Judges, and TIMLIN, Senior
District Judge.**
Gregory Alan Cutler, a former Oregon state prisoner released on parole
conditions in 2008, appeals the district court’s denial of his 28 U.S.C. § 2254*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Robert J. Timlin, United States District Judge for the
Central District of California, sitting by designation.
habeas corpus petition challenging his convictions and sentences for two counts of
second-degree manslaughter based on evidence that he killed two motorists in a
vehicle accident that occurred while he was driving a commercial truck loaded
with PVC pipe on a mountain highway. Cutler argues that his trial counsel
rendered ineffective assistance by failing to move to exclude the results of a
urinalysis test performed shortly after his involvement in the vehicle crash, which
showed the presence of methamphetamine, amphetamine, and marijuana
metabolites in Cutler’s urine. We have jurisdiction under 28 U.S.C. § 1291 and §
2253 and affirm.
The state post-conviction relief court’s denial of Cutler’s petition for post-
conviction relief was not “contrary to, or an unreasonable application of” the
standard for effective assistance claims established in Strickland v. Washington,
466 U.S. 668 (1984). 28 U.S.C. § 2254(d)(1). Even assuming Cutler’s trial
counsel was deficient in failing to move to exclude during trial the results of the
urinalysis test showing methamphetamine, amphetamine, and marijuana
metabolites in Cutler’s urine shortly after the vehicle accident, Cutler has failed to
demonstrate that he was prejudiced by trial counsel’s deficiencies. Strickland, 466
U.S. at 694.
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The state post-conviction relief court reasonably found that a number of
other facts - that Cutler was speeding, was driving approximately three feet into the
oncoming lane of traffic as he entered a curve on a windy mountain highway, and
was driving a large commercial truck with a heavy load of PVC pipe attached to it
- strongly supported Cutler’s convictions for second-degree manslaughter based on
recklessness. In contrast, the evidence of Cutler’s drug use was rather weak and
inconclusive. Moreover, statements Cutler made to law enforcement officials
confirming his drug use were admitted into evidence at trial, and Cutler has never
directly challenged the admission of those statements into evidence, either before
the state courts on direct or collateral review or within his federal habeas petition.
Therefore, Cutler has failed to “show that there is a reasonable probability that, but
for counsel’s unprofessional errors [in failing to move to exclude the results of the
urinalysis test], the result of the proceeding would have been different.” Id.AFFIRMED.
3