Bas Qualls v. Coursey

Filing 43

Report & Recommendation: Petition for Writ of Habeas Corpus 2254 1 should be dismissed. Specific written objections to the Report and Recommendation are due w/in 14 days of service. Thereafter, parties have 14 days to file response to objections. Signed on 12/7/10 by Magistrate Judge Mark D. Clarke. (See attached pdf for complete information.) (kf)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
CRYSTIN RARIN BAS QUALLS,
Petitioner,

Civil No. 09-329-CL
REPORT AND
RECOMMENDATION

v.

RICK COURSEY,
Respondent.
CLARKE, Magistrate Judge.
Petitioner is in the custody of the Oregon Department of
Corrections pursuant to a Judgment, dated April 24, 2001, from
Lane

County

convictions

Circuit

Court

Case

No.

for Murder and Burglary

Respondent's Exhibit 101.

20-00-01499,
in

the

First

after
Degree.

Following a jury trial, the court

sentenced petitioner to life imprisonment, with a 300 month
minimum on the Murder conviction,

and to a

consecutive 36

month term of imprisonment on the Burglary conviction.
1 - REPORT AND RECOMMENDATION

Id.

Petitioner directly appealed his convictions,

but the

Oregon Court of Appeals affirmed without opinion,

and the

Oregon Supreme Court denied relief.

Respondent's Exhibits 103

- 107.
Petitioner filed a

Second Amended Petition for

Post-

Conviction Relief in Umatilla County Circuit Court Case No.
CV04-0445, but the court denied relief.
138.

Respondent's Exhibit

The Oregon Court of Appeals affirmed without opinion,

and the Oregon Supreme Court denied review.

Respondent's

Exhibits 139 - 144.
Petitioner

filed

a

petition

under

28

U.S.C.

§

2254

challenging his convictions on grounds of trial court error
and

ineffective

assistance

of

both

trial

and

appellate

counsel. 1
Respondent

moved

to

deny petitioner's

claims

on

the

ground that he has not properly alleged a federal question and
because the

claim~3

were not

II

fairly presented II to Oregon 's

highest court and thus are procedurally defaulted. Response
(#14), p. 2.
In a

Report

and Recommendation

court's Opinion and Order

(#37)

(#31)

adopted by

entered May 14,

court recommended that Respondent's Response (#14)

2010,

the
the

(motion to

dismiss) be allowed in part and denied in part as follows:

lpetitioner did not explicitly set forth his grounds for
relief, but rather incorporated by reference the claims alleged in
his state appeal and post-conviction proceeding.
See, Petition
(#1) p. 16-17.
2 - REPORT AND RECOMMENDATION

I find that all of the claims sought to be raised
in this proceeding (ie. the claims alleged in
petitioner's Second Amended Petition for PostConviction Relief)
except the claim that his
defense
attorney neglected
to
object
to
an
impermissible amendment of the charge alleged in
the indictment, were not fairly presented to the
state I s highest court.
Petitioner has failed to
establish
any
cause
and
prejudice
for
his
procedural
default
or
entitlement
to
the
fundamental miscarriage of justice exception to the
exhaustion requirement. Therefore, those claims
should be denied and dismissed.
I
further find that petitioner arguably
exhausted state remedies with respect to the claim
that his trial counsel was ineffective for not
objecting to the alleged "amendment" to the charge
in the indictment, ie. the claim presented in his
PRC petition for review to the Oregon Supreme
Court.
Respondent's motion to deny and dismiss
that claim should be denied, and Respondent should
be requested to submit arguments on the merits of
that claim.
Report and Recommendation (#31) p. 9.
Respondent has now filed a Reply
single claim remaining in this case.

(#38)

addressing the

Petitioner has not filed

further argument in support of his claim.
Pursuant to the court's Report and Recommendation (#31)
the single claim remaining in this proceeding

lS

the claim

petitioner presented in his petition for review to the Oregon
Supreme Court:

that he was "deprived of his constitutional

right to the effective assistance of counsel, when his defense
attorney neglected to object to an impermissible amendment of
the charge alleged in the indictment. " Respondent's Exhibit
142, p. 1.
Under the Antiterrorism and Effective Death Penalty Act
("AEDPA"), 28 U. S. c.

§

2254, habeas relief may be granted only

3 - REPORT AND RECOMMENDATION

when a state court's decision was "contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States" or
"was based on an unreasonable determination of the facts in
light

the

of

proceedings."

evidence
28 U.S.C.

presented
2254(d)

§

at

Wiggins v.

i

the

state

court

Smith,

539

U.S. 510, 520 (2003)
A state court's decision is "'contrary to' federal law if
it

fails

to

apply

the

correct

controlling

Supreme

authority or comes to a different conclusion. ..
involving

materially

indistinguishable

Morgan, 313 F.3d 1160, 1167 (9
Cone, 535 U.S. 685, 694).
federal

th

Cir.

[from] a case

facts."

2002)

Court

Pirtle

v.

(citing Bell v.

The Supreme Court has held that "a

habeas court making the

'unreasonable application

I

inquiry should ask whether the state court's application of
clearly establ ished federal law was obj ectively unreasonable. "
Williams v. Taylor, 529 U.S. 362, 409 (2000).
" [I]

t

is

past

question

that

the

rule

set

forth

in

Strickland, qualifies as 'clearly established Federal law, as
determined

by

the

Supreme

Court

Williams v Taylor, supra at 391.

of

the

United

States.'"

UnderWilliams, a petitioner

may therefore be granted habeas corpus relief on a claim of
ineffective assistance of counsel only if the decision of the
state court was contrary to, or an unreasonable application of
Strickland v. Washington, 466 U.S. 668 (1984).
Under Strickland, a claim that counsel's assistance was
4 - REPORT AND RECOMMENDATION

so ineffective as to require reversal of a conviction has two
components.

First,

the petitioner must show that counsel's

performance was deficient; second,

the petitioner must show

that the deficient performance prejudiced the defense.

Id. at

687.
The

first

prong of

the

Strickland test

required

the

petitioner to demonstrate that "counsel's representation fell
below an objective standard of reasonableness.
supra at 688.
petitioner

Strickland,

The second component of the test requires the

to

demonstrate

that

"there

lS

a

reasonable

probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different."
694.

Jd., at

A "reasonable probability" is one that is sufficient to

undermine confidence in the outcome."

Id.

In order to satisfy the prejudice requirement

in the

context of a plea agreement, the petitioner must demonstrate
that

there

is

a

"reasonable

probability

that,

but

for

counsel's errors, he would have not pleaded guilty and would
have insisted on going to trial." Hill v. Lockhart, 474 U.S.
52, 58-59 (1985). In plea agreement cases, the "resolution of
the

'prejudice'

inquiry will depend largely on whether

[an]

affirmative defense likely would have succeeded at trial. Id.
at 59.
In

Bell

v.

Cone,

535

U.S.

685

(2002) ,

the

Court

rei terated that wnen considering ineffective assistance of
counsel claims:
5 - REPORT AND RECOMMENDATION

[J]udicial scrutiny of a counsel's performance must
be highly deferential and that every effort [must]
be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the
conduct from counsel' s perspective at the time.
Thus, even when a court is presented with an
ineffective-assistance
claim
not
subject
to
§2254 (d) (1) deference, a defendant must overcome the
presumption that, under the circumstances, the
challenged action might be considered sound trial
strategy.
Bell, 535 U.S. at 695 (citations and quotations marks omitted) .
When considering

ineffective

assistance

of

counsel

claims

under 28 U.S.C. § 2254(d), "it is the habeas applicant's burden to
show that the state court applied Strickland to the facts of his
case in an objectively unreasonable mariner." Woodford v. Visciotti,
537 U.S. 19, 25 (2002)

(per curiam) .

The PCR trial court found that "[P] etitioner has failed to
prove the allegations of the petition." Exhibit 138.

The Oregon

Court of Appeals affirmed without opinion and the Oregon Supreme
Court denied review. Exhibits 139-144.
The

state

court

decisions

denying

petitioner'sclaim

is

entitled to deference under 28 U.S.C. sec. 2254(d) because it is
not contrary to nor an unreasonable application of Strickland.

The

PCR court factual findings are presumed correct because petitioner
has

not

contrary.

presented
28 U.S.C.

any
sec.

clear

and

2254 (e) (1)

convincing
i

evidence

Miller-el v.

to

the

Cockrell,

537

U.S. 322, 340 (2003)
Petitioner argues that the indictment plead in the conjunctive
6 - REPORT AND RECOMMENDATION

and the trial court's instruction, stated in the disjunctive which
resulted in an impermissible substantive amendment of the indicted
charge such that it allowed the jury to convict petitioner without
the necessary concurrence. Petitioner's Memorandum of Law (#30) p.
18-20.

Petitioner argues that his attorney should have objected to

the "amendment" and that if the court had "instructed the jury in
the

language of the

indictment,

it

clearly would have made

significantly more difficult for the jury to convict" him.

it

Id. p.

22.
Respondent acknowledges that a

trial court may not make a

substantive amendment to the indictment that the Grand Jury has
returned.

See,

State v.

Wimber,

Uni ted States, 361 U. S. 212 (1960).
was

not

amending

the

indictment,

315 Or 103

(1992);

Stirone v.

Respondent argues " [t] he court
but

rather

adhering

to

the

principle that a state may plead in the conjunctive, but prove in
the disjunctive.

This precept is well established in Oregon. See,

State v. Stevens Equipment Company, 165 Or App 673, 686. rev den.
330 Or 553

(2000)."

Reply (#38) p. 6.

Petitioner's claim relates to Count Two of the indictment - a
charge of Burglary in the First Degree.

Burglary in the First

Degree is defined in ORS 164.225 as follows:
A person commits the crime of burglary in the first degree if
the person violates ORS 164.215 and the building is a dwelling, or
if
in effecting entry or while in the building or in immediate
flight therefrom the person
(a)

Is armed with a burglary tool or theft device as defined
in ORS 164.235 or a deadly weapon;
(b) Causes or attempts to cause physical injury to any person;
or
7 - REPORT AND RECOMMENDATION

(c) Uses or threatens to use a dangerous weapon.
ORS 164.215 (Burglary in the Second Degree) states:
Except as otherwise provided in ORS 164.255, a person commits
the crime of burglary in the second degree if the person enters or
remains unlawfully in a building with the intent to commit a crime
therein.
The indictment in petitioner cases set forth the charge as
follows:
The Defendant on or about the 23 rd day of January, 2000, in
Lane County, Oregon, did unlawfully and knowingly enter and remain
in an occupied dwellin9 located at 5303 "B" Street, Springfield,
Oregon, with the intent to commit the crimes of assault and theft
therein, and while so acting, caused physical inj ury to Todd
McGuire; contrary to statute and against the peace and dignity of
the State of Oregon.
Respondent's Exhibit 102,
Thus,

the

grand

jury

alleged

that

petitioner

committed

burglary by entering the dwelling "with the intent to commit the
crimes of assault and theft therein.

I'

The court instructed the

jury

to

prove

that

the

state

was

required

that

at

the

time

petitioner entered or remained in the dwelling, petitioner "had the
intent to commit the crimes of assault or theft."

Respondent s
I

Exhibit 18, Transcript of Proceeding Vol. VI. p. 894.
The Oregon Supreme Court has noted that:
makes it a crime to do this or that,

"When the statute

mentioning several things

disjunctively, the indictment may, as a general rule, embrace the
whole In a single count,
where

'or'

but it must use the conjunctive

occurs in the statute,

uncertainty ...

"

'and'

else it will be defective for

State v. Stevens Equipment Company, 165 Or App

at 684, citing, State v. Carr, 6 Or 133, 134 (1876).

8 - REPORT AND RECOMMENDATION

In Stevens, the indictment charged the defendant with storing
hazardous waste in violation of pertinent statutes

and

"rules,

standards,

684.

The

licences,

permits,

and orders."

Id.

at

defendant argued that the state was necessarily required to prove
that he had violated each one of those listed authorities because
of the conjunctive "and."
use of the conjunctive

Id.

The court found that "the state's

[in the charging instrument]

did not mean

that it was required to prove in the conjunctive."
Instead,
prove
law."

the court held that I'the

in the disjunctive'

Id.

at 868.

'plead in the conj uncti ve and

principle remains valid under Oregon

Id.
The

consistent

court's
with

instruction
federal

in

law.

petitionerls
The

Supreme

case
Court

was
has

also
"long

recognized that an indictment may charge numerous offenses or the
commission of anyone offense in several ways."
471 U.S. 130, 136 (1985).

u.S. v. Miller,

Specifically, "a number of longstanding

doctrines of criminal procedure are premised on the notion that
each offense whose elements are fully set out in an indictment can
independently sustain a conviction. Id., citing, Turner v. United
States, 396 U.S. 398, 420

(1970)

("W]hen a jury returns a guilty

verdict on an indictment charging several acts in the conjunctive
... the verdict stands if the evidence is sufficient with respect to
anyone of the acts charged .. "); Crain v. United States, 162 U.S.
625,

634-636

(1896)

(indictment

count

that

alleges

in

the

conjunctive a number of means of committing a crime can support a

9 - REPORT AND RECOMMENDATION

conviction if any of the alleged means are proved.)
the

rules extend to a

"trial court

r

Furthermore,

jury instructions

S

in the

disjunctive in the context of a conjunctively worded indictment."
See, U. S. v Cusumano,
U.S. 1036 (1992)
Cir.),

943 F. 2d 305, 311

(1991),

502

citing U.S. v. Klein, 850 F.2d 404, 405-406

i

cel:-t denied,

(8 th

cert denied,

488 u.S. 867 (1988)

and u.S. v. Schiff,

i

801

F.2d 108, 114 (2 nd Cir. 1986), cert denied, 480 U.S. 945 (1987).
At petitioner's trial there was abundant evidence from which
the jury could find that petitioner entered the dwelling with the
intent of committing either the crime of assault or theft.
Response

(#14)

p.

2-3

and Transcript cited therein.

See,

Petitioner

acknowledged in his petition for review to the Oregon Supreme Court
that the "evidence was strong that petitioner intended to commit
assault." Respondent's Exhibit 142, p. 2.
Therefore,
failing

to

petitioner's

object

to

the

attorney

was

instruction

not

ineffective

because

the

for

court's

instruction in the disjunctive was proper and there was sufficient
evidence for the jury to have found either the theft or assault
element of the burglary charge in order to support the verdict.
Petitioner also argues that the court's "amendment" allowed
the jury to reach a verdict without concurrence.

Memorandum of Law

(#30) p. 20. Petitioner cites State v. Boots, 308 Or 371 (1989) to
support his argument that the court's instruction violated the
Oregon Constitution because it gave rise to the possibility of
conviction even if some of the jurors believed that he intended to

10 - REPORT AND RECOMMENDATION

commit assault, and some jurors believed that he intended to commit
theft.

Peti tioner s

reliance on Boots is misplaced.

I

King,

316 Or 437,

852 P.2d 190

noted that under Boots"

(1993),

In

State v.

the Oregon Supreme Court

unanimity (or concurrence) was required

only when the fact or circumstance at issue constituted "an element
of a separate or distinct crime." Id., at 441.

Where the factual

issue concerns alternative theories of committing a crime rather
than elements of a separate crime, the unanimity requirement is not
implicated and the jury was not required to agree on which factual
theory the state had proved.

rd. at 445, citing State v. Miller,

309 Or 362, 369, 788 P2d 974 (1990).
The allegations at

issue in petitioner's case is like the

allegation in King and unlike the allegations in

Boots.

As in

King, the theories alleged - the intent to commit assault and the

intent to commit theft

- are merely two methods of proving the

single crime of burglary.

Because the grand jury I

S

allegation

alleged only one crime of burglary, the jury was not required to
concur about

which of

the

two

factual

theories

the

state

had

proved.
In light of King, no reasonable defense attorney would have
obj ected to

the

violated Boots.
have

been

court

I

S

burglary instruction on the ground it

Moreover, because the merit-less objection would

overruled,

petitioner

11 - REPORT AND RECOMMENDATION

cannot

establish

the

second

(prejudice) prong of Strickland.
Based on the foregoing I find that petitioner's claim that his
trial counsel was ineffective for not obj ecting to the alleged
"amendment" to the charSJe in the indictment should be denied on the
ground that the post-conviction court's findings are entitled to
deference under 2254(e) (2) and are supported by the record before
the court. This proceeding should be dismissed.
This

recommendation

lS

not

an

order

that

is

immediately

appealable to the Ninth Circuit Court of Appeals.

Any notice of

appeal

of

pursuant

to

Rule

4

(a)

Federal

(1),

Rules

Appellate

Procedure, should not be filed until entry of the district court's
judgment or appealable order.

The parties shall have fourteen (14)

days from the date of service of a copy of this recommendation
within which to file specific written objections with the court.
Thereafter,
file

a

the parties have fourteen

response

to

the

(14)

objections.

days within which to

Failure

to

timely

file

objections to any factual determinations of the Magistrate Judge
will be considered a waiver of a party's right to

de

novo

consideration of the factual issues and will constitute a waiver of
a party's right to appellate review of the findings of fact in an
order

or

judgment

entered

pursuant

to

the

Magistrate

Judge's

recommendation.

Certificate of Appealability
Should

peti tioner

appeal,

a

certificate

of

appealabili ty

should be denied as petitioner has not made a substantial showing

12 - REPORT AND RECOMMENDATION

of

the

denial

of

a

right.

See,

28

;:7

7//

2253(c)(2).

DATED this

constitutional

day

U.S.C.

/

Of~~0
41ark D. Clarke
United States Magistrate Judge

13 - REPORT AND RECOMMENDATION

§