Johnson v. Hill

Filing 38

Opinion and Order. For the reason identified in this Opinion and Order, the Amended Petition for Writ of Habeas Corpus 33 is DENIED. (please access document by number hyperlink for complete review and details of Opinion and Order). Signed on 6/29/2009 by Judge Owen M. Panner. (dkj)

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I N THE UNITED STATES D I S T R I C T COURT FOR THE D I S T R I C T OF OREGON RONALD JOHNSON, C i v i l No. 07-872-PA Petitioner,

v.
JEAN H I L L , O P I N I O N AND ORDER Respondent. A l i s o n M. C l a r k Assistant Federal Public Defender 101 S.W. Main S t r e e t , Suite 1700 Portland, Oregon 97204 Attorney for Petitioner J o h n R. K r o g e r Attorney General Jacqueline Sadker Assistant Attorney General Department of Justice 1 1 6 2 C o u r t S t r e e t NE Salem, Oregon 97310 Attorneys for Respondent

III
1 - OPINION AND ORDER

PANNER, D i s t r i c t J u d g e . Petitioner brings this habeas corpus case pursuant to 28

U.S.C. § 2254 in which he seeks to challenge the l e g a l i t y of his underlying conviction for Attempted Aggravated Murder. reasons which follow, For the

the Amended P e t i t i o n for Writ of Habeas

Corpus (#33) i s denied.
BACKGROUND

On A u g u s t

24,

1998,

Detective Michael

Wilson

("Detective

W i l s o n " ) a t t e m p t e d t o s e r v e a n a r r e s t w a r r a n t o n p e t i t i o n e r , who had a history of fleeing to avoid capture. 103, pp. 57, 63. Respondent's Exhibit

When D e t e c t i v e W i l s o n l o c a t e d p e t i t i o n e r i n a n p e t i t i o n e r sped away and,

automobile at a Hermiston residence,

following a high-speed chase, abandoned his car and continued to flee on foot.

Id at 60-61.

Detective Wilson abandoned the chase, but contacted his twin brother, State Trooper Mitch Wilson (hereinafter referred to only as "Wilson"), and informed him of the chase. This conversation led

Wilson to look for petitioner at a particular residence outside of Hermiston.

Id at

67.

When W i l s o n

approached the

residence,

p e t i t i o n e r saw him coming and ran away.

Id at 68.

Wilson ultimately found petitioner hiding underneath a storage shed. When p e t i t i o n e r g o t o u t f r o m u n d e r n e a t h t h e s h e d , W i l s o n The pepper spray,

attempted to subdue him with pepper spray.

2 - OPINION AND ORDER

however, d i d n o t d i s c h a r g e .

Id at 72.

At that point, petitioner

again began to run away with Wilson in pursuit. During the chase, with him, gun drawn. petitioner tripped,

Id.

and Wilson caught up

Wilson t e s t i f i e d that he "got [his] gun in

too close to [petitioner]," and petitioner grabbed the barrel of the firearm, thereby gaining leverage over the weapon.

Id at 73.

The two men f e l l t o t h e ground w r e s t l i n g f o r c o n t r o l o f the gun. Petitioner brought the gun up to Wilson twice. Wilson's testimony was demonstrative,

Id at 74.

Much o f

such as when he t e s t i f i e d

that during the c r i t i c a l portion of the struggle, p e t i t i o n e r "came back up with t h a t gun and he shoved i t clear back up in here, right here."

Id at 73.

Wilson found himself looking down t h e b a r r e l o f

his firearm, and he "absolutely" believed p e t i t i o n e r was trying to k i l l him.

Id at 73, 75.

Following his testimony, Wilson and his brother participated in a demonstrative re-enactment of the crime for the jury to see.

Id at 77.

At the end of the presentation of the S t a t e ' s evidence, Counsel

counsel for p e t i t i o n e r moved for a judgment of a c q u i t t a l .

argued that the State's evidence failed to offer any evidence that petitioner ever intended to kill Wilson. The t r i a l court found

that the State had presented sufficient evidence to allow the jury t o make a judgment on the issue of i n t e n t . motion, and allowed the case to proceed. I t therefore denied the

Id at 121.

3 - O P I N I O N AND ORDER

Petitioner t o o k t h e s t a n d i n h i s own d e f e n s e a n d t e s t i f i e d that he did, indeed, run from Wilson, but claimed that the officer was running a f t e r him with his gun drawn, verbally threatening to shoot him.
Id at 144.

According to petitioner, Wilson tried to
Id at 145.

strike him in the face with his firearm. denied ever he reaching only for the firearm or officer by

Petitioner its barrel, the

touching his wrist

claiming struggle.

seized the

during

Id at 145, 152, 156.

The jury convicted p e t i t i o n e r of Aggravated Murder with a Firearm, Escape in the Third Degree, and Resisting Arrest.

Respondent's Exhibit 102. the time of his offenses, sentence.

Because p e t i t i o n e r was on probation a t the trial judge entered a departure

As a r e s u l t , p e t i t i o n e r r e c e i v e d 2 3 0 m o n t h s i n p r i s o n o n

the Attempted Aggravated Murder conviction, and concurrent one-year sentences on the Escape and Resisting Arrest convictions.

Respondent's Exhibit 105, pp. 7, 8. Peti tioner filed a direct appeal wherein counsel did not

assign as error the t r i a l c o u r t ' s ruling on p e t i t i o n e r ' s motion for a judgment of acquittal. The Oregon Court of Appeals affirmed the and the Oregon Supreme

trial court's decision without opinion, Court denied review.

S t a t e v . J o h n s o n , 172 O r . App 7 6 5 , 1 9 P . 3 d

386, rev. denied, 332 Or. 305, 27 P.3d 1045 (2001).
P e t i t i o n e r f i l e d for post-conviction r e l i e f ("PCR") i n Malheur County where the Circuit Court denied r e l i e f . The Oregon Court of

4 - OPINION AND ORDER

Appeals affirmed the lower court without opinion, and the Oregon Supreme Court denied review. 146 P. 3d 1170 (2006),

Johnson v . H i l l , 2 0 9 O r . A p p . 1 6 9 , denied,
342 Or. 503, 155 P. 3d 874

rev.

(2007) . Petitioner filed this federal habeas corpus case on June 11, 2007 in which he pursues a single ground for r e l i e f . Specifically,

p e t i t i o n e r a l l e g e s t h a t a p p e l l a t e counsel was i n e f f e c t i v e when he failed to attack the sufficiency of the evidence presented at t r i a l in support of his charge and conviction for Attempted Aggravated Murder.
DISCUSSION
I.

Standard of Review

An a p p l i c a t i o n

for

a

writ

of habeas

corpus

shall

not

be

granted unless adjudication of the claim in state court resulted in a decision that was: (1) "contrary t o , o r 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 in the State court proceeding." 28 U.S.C. § 2254(d). A

state court's findings of fact are presumed correct, and petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. A state court decision if the 28 U.S.C. § 2254(e) (1). is "contrary court to applies a clearly rule that

established precedent

state

5 - OPINION AND ORDER

contradicts t h e g o v e r n i n g l a w s e t f o r t h i n [ t h e S u p r e m e C o u r t ' s ] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different 362, from [that] (2000).

precedent."

Williams

v.

Taylor,

529 U.S.

405-06

Under the "unreasonable application" clause, a federal habeas court may grant relief "if the state court identifies the correct

governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case."
Id at 413.

The "unreasonable application" clause requires

the s t a t e court decision to be more than incorrect or erroneous.
Id at 410.

The s t a t e c o u r t ' s application of c l e a r l y established
Id a t 409.

law must be objectively unreasonable.

Where, as here, a s t a t e court reaches a decision on the merits but provides no reasoning to support i t s conclusion, the federal habeas court must conduct an independent review of the record to determine whether the state court clearly erred in i t s application of Supreme Court law. Cir. 2000).

Delgado v.

Lewis,

223 F.3d 976,

982

(9th

In such an instance, although the court independently

reviews the record, i t s t i l l lends deference to the state court's ultimate decision. Cir. 2002).

P i r t l e v. Morgan,

313 F.3d 1160,

1167

(9th

III

III 6 - OPINION AND ORDER

II .

Analysis

Petitioner

faults

his

direct

appellate

attorney

for

not

raising a due process claim based on the t r i a l court's decision to deny his motion for a judgment of acquittal. Because no Supreme

Court precedent i s d i r e c t l y on point t h a t corresponds to the facts of t h i s case, the court uses the general two-part t e s t the Supreme Court has established to determine whether petitioner received ineffective assistance of counsel. Ct. 1411, 1419 (2009). First, fell
Knowles v. Mirzayance, 129 S.

petitioner must an objective

show t h a t standard 668,

his of

lawyer's

performance

below

reasonableness. (1984). Due

Strickland v.

Washington,

466 U.S. evaluating

686-87

to

the

difficulties

in

counsel's

performance,

courts must indulge a

strong presumption that the

conduct f a l l s within the "wide range of reasonable professional assistance."
Id at 689.

An a p p e l l a t e a t t o r n e y " w h o f i l e s a m e r i t s

brief need not

(and should not) raise every non-frivolous claim,

b u t r a t h e r may s e l e c t from among them i n o r d e r t o maximize t h e likelihood of success on appeal."
288

Smith v. Robbins, 528 U.S. 259,

(2000). Second, p e t i t i o n e r must show t h a t his lawyer's performance The appropriate t e s t for prej udice i s can show "that there is a reasonable the

prej udiced the defense. whether the defendant

probability that,

but for counsel's unprofessional errors,
1t

result of the proceeding would have been different.

Id a t 694.

7 - OPINION AND ORDER

A petitioner wishing to bring a

Strickland claim based on his

appellate attorney's failure to raise a particular claim must not only show t h a t the claim had merit, but must also demonstrate t h a t the omitted claim was " c l e a r l y stronger than issues t h a t counsel did present." standard is U.S.C.
§

Robbins, 528 U.S. a t 288.

When S t r i c k l a n d ' s g e n e r a l

combined with t h e standard of review governing 28 habeas corpus cases, the result is a "doubly

2254

deferential judicial review."

Mirzayance, 129 S.Ct. a t 1420.

In addition to this "doubly deferential" review, challenges to the sufficiency of the evidence to sustain a conviction must be reviewed by viewing the facts in the light most favorable to the prosecution to determine i f any rational t r i e r of fact could have found the essential elements of the crime had been proven. v. Rose, 311 Or. 274, 281, 810 P.2d 830 (1991).

State

Thus, the court

must determine whether the Oregon s t a t e courts unreasonably applied Supreme Court law when they concluded, taking the facts in the

light most favorable to the prosecution, that appellate counsel's decision to omit the due process claim f e l l within the wide range of reasonable professional assistance accorded to attorneys. Under Oregon law, "[a] person i s guilty of an attempt to

commit a crime when the person i n t e n t i o n a l l y engages i n conduct which constitutes crime." a substantial step toward corrunission of the

ORS 1 6 1 . 4 0 5 .

The l e g i s l a t i v e h i s t o r y of the "substantial

step" t e s t "leaves with the courts and juries the duty to decide

8 - OPINION AND ORDER

what a s a m a t t e r o f f a c t i s a s u b s t a n t i a l s t e p . specificity beyond t h i s would be self-defeating." C o d e , C o m m e n t a r y t o ORS 1 6 1 . 4 0 5 ( § 5 4 ) .

It is felt that Oregon Criminal

The Oregon Supreme Court if

has held that "[e]vidence of a defendant's intent is rarely, ever, proven by direct evidence.

Intent i s an operation of the

mind, and i t i s seldom susceptible of direct proof." at 282.

Rose, 311 Or.

Petitioner argues that he never had operational control of the firearm and t h a t he was simply attempting t o r e s i s t a r r e s t , not kill the officer. He m a i n t a i n s t h a t t h e r e w a s n o e v i d e n c e f r o m

which a jury could conclude that he took a substantial step towards murdering Wilson, therefore the State could not have proven his

guilt as to Attempted Aggravated Murder. Appellate counsel explained his decision not to present this issue to the Oregon Court of Appeals as follows: The second a l l e g a t i o n complains t h a t I f a i l e d t o r a i s e a motion for a judgment of acquittal. Again, review of the b r i e f confirms t h a t t h i s allegation i s correct. However, I decided to focus the Court of Appeals' attention on w h a t w e r e , i n my j u d g m e n t , b e t t e r i s s u e s . A m o t i o n f o r judgment of acquittal has a standard of review that r e s u l t s in very few cases being reversed on insufficiency grounds. After review of the entire record, in the light most favorable to the state with a l l conflicts in the evidence resolved in the s t a t e ' s favor and a l l reasonable inferences going to the state, I concluded that this issue would only detract from the better issues I raised in the brief. Respondent's Exhibit 117, p. 2.

9 - O P I N I O N AND ORDER

An

independent

review

of

the

record

shows

that

counsel's

decision was s t r a t e g i c a l l y sound. t h a t he was

Specifically, Wilson t e s t i f i e d firearm, and that

looking down t h e b a r r e l o f t h e

d e f e n d a n t " b r o u g h t [ t h e g u n ] b a c k u p t o me t w i c e . " Exhibit 103, pp. 73-74.

Respondent's

These events led Wilson to conclude that

h e t h o u g h t h e " b e t t e r d o s o m e t h i n g now o r t h i s m a n i s g o i n g t o k i l l me." there,

Id at 74.

He a l s o t e s t i f i e d t h a t " b a s e d o n t h a t i n c i d e n t

I believe he was t r y i n g t o k i l l me."

Id at 75.

Wilson

expressed "[n]o doubt, k i l l him.

whatsoever" about petitioner's intent to

Id.

A jury could have reasoned t h a t p e t i t i o n e r was not,

i n f a c t , t r y i n g t o simply wrestle the gun away from Wilson, but was intentionally pointing the firearm at Wilson with the intent to f i r e the weapon i f given the opportunity. Thus, a jury could have

c o n c l u d e d , a s W i l s o n d i d , t h a t p e t i t i o n e r , who h a d l e v e r a g e o n t h e weapon, was t r y i n g t o k i l l him. In addition, appellate review of this claim is quite difficult because much of the Wilson's testimony was demonstrative: "After I went down, I kind o f l i f t e d up l i k e that. That was the f i r s t time,

when he came back up with t h a t gun and he shoved i t clear back up
in here, right here.

His hand hit right in here.

I looked down

and I'm looking down the b a r r e l and t h a t ' s not a good f e e l i n g . " a t 73 (emphasis added).

Id

I t is impossible to determine i f "right

here" means t h a t p e t i t i o n e r continued to position the barrel of the firearm between Wilson's eyes, to his temple, etc. 1 0 - OPINION AND ORDER The prosecution

also staged a visual re-enactment of the crime for the jury. 77.

Id at

Thus, the jury was privy to more information than an appellate This indirect evidence of

court (or habeas court) ever would be.

intent, and any inference of intent, i s best l e f t to the judgment of a jury. At a minimum, i t i s d i f f i c u l t for t h i s court to conclude t h a t the Oregon s t a t e courts unreasonably applied clearly established federal law in determining that appellate counsel reasonably

exercised h i s judgment when he elected t o drop t h i s claim i n l i g h t of the standard of review which i s applied to motions for judgment of acquittal. would be
See Jones v. Barnes,

463 U.S. 745, 754 to second-guess

(1983)

(it

improper

for

judges

reasonable

professional judgments of appointed counsel).

Accordingly, upon an

independent review of the record, the state court decisions denying r e l i e f on p e t i t i o n e r ' s ineffective assistance of appellate counsel claim are entitled to deference.

CONCLUSION
For the reasons identified above, W r i t o f H a b e a s C o r p u s ( # 3 3 ) i s DENIED. I T I S SO ORDERED. DATED t h i s the Amended P e t i t i o n f o r

71

day

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Owen M. P a n n e r United States District Judge

1 1 - O P I N I O N AND ORDER