Villines v. Taylor
Filing
38
OPINION & ORDER: The Court DENIES the Petition for Writ of Habeas Corpus (ECF No. 1 ), and DISMISSES this action. The Court DENIES a certificate of appealability as Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). Signed on February 13, 2017 by Judge Anna J. Brown. (eo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PAUL RAY VILLINES,
Civil No. 2:14-cv-00700-BR
Petitioner,
OPINION AND ORDER
v.
JOHN MYRICK, Superintendent,
Two Rivers Correctional Institution,
Respondent.
NELL BROWN
Assistant Federal Public Defender
101 SW Main Street
Suite 1700
Portland, OR 97204
Attorney for Petitioner
ELLEN F. ROSENBLUM
Attorney General
SAMUEL A. KUBERNICK
Assistant Attorney General
Department of Justice
1163 Court Street NE
Salem, OR 97301
Attorneys for Respondent
1 - OPINION AND ORDER -
BROWN, Judge.
Petitioner,
an
inmate
at
the
Two
Rivers
Correctional
Institution, brings this habeas corpus action pursuant to 28 U.S.C.
§
2254.
For the reasons that follow, the Court DENIES the Amended
Petition for Writ of Habeas Corpus.
BACKGROUND
On January 31,
2006,
a
Marion County grand
jury indicted
Petitioner on eight charges, including one count of Kidnapping in
the First Degree, two counts of Coercion, two counts of Assault in
the Fourth Degree Constituting Domestic Violence,
one count of
Strangulation, one count of Harassment, and one count of Tampering
with a witness.
Resp. Exh. 102, p. 1.
The case was tried to a
jury, who found Petitioner guilty on all charges.
Resp. Exh. 104,
pp. 201-202.
Petitioner filed a direct appeal, assigning as error the trial
court's
denial
of
Kidnapping charge.
a
motion
for
judgment
Resp. Exh. 105.
of
acquittal
on
the
The Oregon Court of Appeals
affirmed the trial court's judgment without opinion, and the Oregon
Supreme Court denied review.
State v. Villines, 224 Or. App. 687,
200 P.3d 181 (2008), rev. denied, 346 Or. 116, 205 P.3d 888 (2009).
Petitioner then sought state post-conviction relief ("PCR''),
alleging claims of ineffective assistance of trial and appellate
counsel, trial-court error, and prosecutorial misconduct.
2 - OPINION AND ORDER -
Resp.
Exh. 110.
Following an evidentiary hearing, the PCR trial judge
denied relief.
Resp. Exh. 132.
Petitioner appealed, submitting both a counseled brief and a
prose supplemental brief.
Resp. Exhs. 133, 134.
The Oregon Court
of Appeals again affirmed without opinion and the Oregon Supreme
Court denied review.
Villines v. Nooth, 258 Or. App. 907, 313 P.3d
1148, rev. denied, 354 Or. 597, 318 P.3d 749 (2013).
On April 28, 2014, Petitioner filed a pro se Petition for Writ
of Habeas Corpus in this Court.
The Court appointed counsel, who
filed an Amended Petition for Writ of Habeas Corpus on Petitioner's
behalf on November 26,
2014.
The Amended Petition alleges five
grounds for relief:
The trial court violated Petitioner's
constitutional rights, guaranteed by the Fifth and
Fourteenth Amendments to the United States Constitution,
when it denied the motion for judgment of acquittal
because there was insufficient evidence to establish all
of the necessary elements of Kidnapping.
Ground
One:
The trial court violated Petitioner's
constitutional rights guaranteed by the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution,
when it did not permit the public to attend Petitioner's
trial.
Ground
Two:
Three:
Petitioner was denied the effective
assistance of counsel as guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution
when trial counsel failed in the following particulars:
Ground
A.
perform effectively with
regard
plea
to
to
limited to,
negotiations,
including,
but not
ively advise Petitioner as to the
failing to ef
applicable law, benefits of pleading guilty, and
consequences of going to trial;
3 - OPINION AND ORDER -
B.
to perform effectively with regard to Petitioner's
right to a public trial;
C.
to perform effectively with regard to the motion
for a mistrial;
D.
to perform effectively with regard to the motion
for judgment of acquittal; [and]
E.
to perform effectively with regard to sentencing,
including but not limited to, failing to ensure
that
Petitioner's
stipulation
to
aggravating
factors and/or waiver of his Blakely rights was
knowing, voluntary, and intelligent.
Ground Four:
Petitioner was denied the effective
assistance of appellate counsel as guaranteed by the
Sixth and
Fourteenth Amendments to the United States
Constitution when appellate counsel failed to assign as
error on appeal the denial of a motion for mistrial.
Ground Five:
Petitioner was denied his constitutional
right to a unanimous jury verdict under the Sixth and
Fourteenth Amendments to the United States Constitution.
Respondent
contends
Petitioner
claims alleged in Grounds
One,
Two,
procedurally
and
Five.
defaulted
the
In any event,
Respondent argues, the claims alleged in Grounds One and Five fail
on their merits.
Respondent further argues Petitioner failed to
meet his burden of proof on the claims alleged in sub-parts B, C,
and D of Ground Three, as Petitioner did not address them in his
brief in support.
Finally,
Respondent argues Petitioner is not
entitled to relief on the remaining grounds because the state PCR
court decisions denying relief on those grounds are entitled to
de
rence.
4 - OPINION AND ORDER -
DISCUSSION
I.
State Court Decisions Entitled to Deference
An
application
for
a
writ
of
habeas
corpus
shall
not be
granted unless the adjudication on the merits in State court was:
(1)
"contrary to,
or
involved an
unreasonable
application of,
clearly established Federal law as determined by the Supreme Court
of
the
United
States"
or
( 2)
was
"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 decision is an "unreasonable" application of
clearly-established federal law if the court:
(1) identifies the
correct governing legal principle from Supreme Court decisions, but
unreasonably applies that principle to the facts of the prisoner's
case; or (2) either unreasonably refuses to extend the governing
legal principle or unreasonably extends it to a new context where
it should not apply.
(2000) .
Williams v. Taylor, 529 U.S. 362, 407, 413
Under this standard of review,
a federal court may not
issue a writ of habeas corpus because it concludes the state court
applied clearly-established federal law erroneously or incorrectly.
Instead,
the
unreasonable."
state
court
decision
must
be
"objectively
Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
The
last reasoned decision by the state court is the basis for review
by the federal court.
See Ylst v. Nunnemaker, 501 U.S. 797, 803-04
(1991); Comstock v. Humphries, 786 F.3d 701, 707
5 - OPINION AND ORDER -
(9th Cir. 2015).
A.
Insufficient Evidence of Kidnappinq - Ground One
In Ground One, Petitioner alleges the tri
court violated his
Fifth and Fourteenth Amendment due process rights in denying a
motion for judgment of acquittal on the Kidnapping in the First
Degree charge because there was insufficient evidence to establish
all of the necessary elements of the crime. 1
The Due Process Clause of the Fourteenth Amendment protects
the
"accused
against
conviction
except
upon
proof
beyond
a
reasonable doubt of every fact necessary to constitute the crime
with which he
(1970}.
is
charged."
In
re Winship,
397
U.S.
358,
364
In reviewing the sufficiency of evidence to support a
petitioner's
state
determine whether,
conviction,
a
federal
habeas
court
must
after considering all of the evidence in the
light most favorable to the prosecution, a rational trier of fact
could have found each of the essential elements of the crime beyond
1
As noted,
Respondent contends
Petitioner
procedurally
defaulted this claim.
Respondent argues Petitioner did not raise
this claim as a matter of constitutional error on direct appeal,
but instead argued it strictly as a claim of state-law error.
Respondent further argues that, in any event, Petitioner is not
entitled to relief on the merits of his due process claim. Because
the Court finds Petitioner is not entitled to relief on the merits
of the due process claim alleged in Ground One, the Court need not
address procedural default.
See 28 U.S.C. § 2254 (b) (2) (" [a)n
application for writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State"); Runningeagle v.
Ryan, 686 F.3d 758, 778 n.10 (9th Cir. 2012) (exercising discretion
afforded under § 2254 (b} (2) to decline to address procedural
default issue where relief denied on the merits), cert. denied, 133
S . Ct. 2 7 6 6 ( 2013) .
6 - OPINION AND ORDER -
Jackson v. Virginia,
a reasonable doubt.
443 U.S.
307,
318-19
(1979); Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995).
The
court must look to state law to determine the elements of the crime
and the appropriate definition or parameters of such elements.
Jackson, 443 U.S. at 324.
Oregon law provides in pertinent part that a person commits
the crime of Kidnaping in the First Degree if, with the intent to
interfere substantially with another's personal liberty and without
consent or legal authority,
he takes a person from one place to
another or secretly confines the person in a place where he is not
likely to be found with the purpose to cause physical injury to the
victim.
In State v.
Or. Rev. Stat. §§ 163.225 and 163.235(1) (c).
Wolleat, 338 Or. 469, 474-5, 478, 111 P.3d 1131 (2005), the Oregon
Supreme Court reviewed this law, its legislative history, and prior
interpretive
Oregon
conclusions:
( 1)
case
"the
law,
and
legislature
then
drew
intended
that
the
following
there
be
no
conviction of the defendant for the separate crime of kidnaping
where
the
detention
incidental
to
the
or
asportation
accomplishment
of
of
the
another
victim
is
crime;"
merely
( 2)
"the
liberty interest that the statute protects from interference is the
interest
in
freedom
of
movement
and
in
order
for
the
interference to be substantial, a defendant must intend either to
move the victim a substantial distance or to confine the victim for
a substantial period of time;" and (3)
7 - OPINION AND ORDER -
"moving a victim from one
room to another while committing another crime does not constitute
moving the victim a substantial distance."
(Internal quotations
omitted.)
In Wolleat, the defendant entered the victim's bedroom, pulled
the
victim by
her
hair
out
of
bed
and
into
the
living
room
approximately 15 to 20 feet away, and repeatedly struck her there
until the victim broke free and the defendant fled the scene.
at 471.
The court held this evidence was insufficient to convict
Id. at 478
the defendant of Kidnaping.
In State v. Mej
Court
Id.
held
the
9.
, 348 Or. 1, 12 (2010), the Oregon Supreme
defendant's
acts
were
sufficient
to
prove
the
defendant intended to interfere substantially with the victim's
personal liberty, apart from the assaultive and menacing acts, and
was thus guilty of kidnaping.
There, during a 90-minute ordeal,
the defendant pushed the victim from her open front door as she was
leaving
her
home,
moved
her
to
a
bedroom
a
distance
of
approximately 34 feet, took away her cell phone when she tried to
call for help, held his hand over her mouth to stifle her screams,
pointed
a
comforter
gun
into
at
her
her
and
face
repeatedly choked her.
threatened
making
it
Id. at 3-5.
to
kill
difficult
her,
to
smashed
breathe,
and
In Mejia, the Oregon Supreme
Court explained the Wolleat decision as follows:
Wolleat and [State v. Zweigart, 344 Or. 619, 188 P.3d 242
(2008)] involved situations in which the actual physical
movement of the victim was the only evidence available to
prove whether the defendants intended to kidnap the
8 - OPINION AND ORDER -
a
victims by substantially interfering with their personal
liberty.
Those cases demonstrate that, when the only
evidence of a defendant's intent is physical movement of
the victim, a reasonable juror may only infer intent to
interfere substantially with a victim's freedom of
movement if there is "evidence that the defendant moved
the victim a substantial distance." Zweigart, 344 Or. at
636 (emphasis added) .
Mejia, 348 Or. at 10.
The Oregon Court of Appeals came to the same conclusion and
affirmed the kidnaping conviction in State v. Nguyen, 221 Or. App.
440, 190 P.3d 462
(Or. App. 2008), modified on other grounds on
reconsideration, 228 Or. App. 241, 206 P.3d 1219 (Or. App. 2009},
rev.
denied,
348 Or.
669,
237
P.3d 824
(2010).
In Nguyen,
the
defendant surprised the victim in her bedroom and held her at
gunpoint, told her to be quiet,
ordered her to move against the
wall, ordered her to move about six feet to the bed, ordered her to
lie face down, handcuffed her behind her back, gagged her mouth,
moved her to the floor, bound her ankles, covered her head with a
shirt, and left her in the bedroom while he searched the house for
money.
Id. at 442.
Here, the victim was Petitioner's live-in girlfriend and the
mother of his
inf ant
son.
One night
in October 2005,
two of
Petitioner's friends were visiting the apartment Petitioner and the
victim shared.
When one of Pet
ioner's friend began to light a
cigarette the victim asked him not to smoke in the presence of the
baby.
Petitioner
became
9 - OPINION AND ORDER -
angry,
and
told
the
victim
she
disrespected him by ordering his friend around.
The victim then
grabbed her keys and walked out of the apartment.
The evidence adduced at trial showed Petitioner followed the
victim outside, grabbed her by the hair, shoved her against a wall,
and choked her.
Resp. Exh. 105, p. 3-4.
As he did so,
Petitioner
yelled at the victim and demanded to know where she was going.
Resp. Exh.
105,
p.
3.
When the victim told Petitioner she was
going to the landlord's off
to call the police, Petitioner told
her she was not going to call the police on him.
the victim against her car.
33).
He next slammed
Resp. Exh. 103, Trial Tr., Vol. I, P.
Petitioner then dragged the victim back into their home by
the hair, over a distance of about 20 feet.
Id., pp. 33-34; Resp.
Exh. 105, p. 4.
Once back inside the home in the kitchen, Petitioner ordered
the victim to go back in the bedroom.
her
by
the
hair
and
slammed
When she refused, he grabbed
her
against
the
counter
top.
Petitioner's friend came into the kitchen and asked Petitioner to
stop.
Petitioner then dragged the victim down the hallway by her
hair from the kitchen into the bedroom.
In the bedroom,
began choking her.
Petitioner
to
Petitioner threw the victim on the bed, and
The friend came into the bedroom and again told
stop.
Petitioner
got
off
apologized to him for whatever she had done.
the
victim,
and
she
Petitioner told her
that if she disrespected him again it was going to get worse, and
10 - OPINION AND ORDER -
that if she called the police he would harm her and the baby.
The
victim did not call the police then, but she did so several weeks
later after another incident in which Petitioner assaulted her.
Petitioner argues there was insufficient evidence to establish
the intent element of first-degree kidnapping because the movement
of the victim here was merely incidental to the ongoing assault,
and, thus, did not permit a rational finder of fact to find or
infer that Petitioner had the intent to substantially interfere
with the victim's liberty.
In particular, Petitioner asserts the
movement of the victim here was so minimal that no reasonable juror
could find Petitioner had the statutorily required intent to abduct
the victim.
Petitioner's
argument
presented is such that a
is
without
merit.
rational trier of fact
The
evidence
could easily
conclude that Petitioner intended to substantially interfere with
the victim's liberty.
Petitioner did much more than simply move
the victim around the home to assault her.
followed the victim outside the home,
shoved her against the wall,
Rather,
Pe ti ti oner
grabbed her by the hair,
and began to choke her.
When the
victim told Petitioner she was going to the landlord's office to
call the police, he told her she was not going to do so, he slammed
her into the car, and he dragged her back into the apartment by
her hair.
Based on that evidence, a rational finder of fact could
find that Petitioner not only intended to assault the victim, but
11 - OPINION AND ORDER -
that he intended to keep her from escaping to a place of safety and
getting outside help.
See Niehus v. Premo, Case No. 3:11-cv-00491-
PK, 2013 WL 2423794, at *11 (D. Or. 2013)
(evidence sufficient to
meet intent element of kidnapping where the petitioner "did not
merely move the victim from room-to-room, but seized her outside
her apartment as she was trying to escape and yelling for help,
dragged her approximately 30 feet back inside the apartment, and
shut the door")
(emphasis in original) .
At trial, Petitioner moved for a judgment of acquittal on the
Kidnapping charge,
arguing that the evidence did not support a
finding of sufficient intent as required by Wolleat.
The trial
judge denied the motion, and the jury found Petitioner guilty.
On
appeal, the Oregon Court of Appeals and the Oregon Supreme Court
rejected Petitioner argument that the trial court erred in denying
the motion for judgment of acquittal.
the
case,
the
unreasonable
application
state
and
of
were
clearly
courts'
not
Under the circumstances of
decisions
contrary
established
were
to
federal
or
not
an
law.
objectively
unreasonable
Accordingly,
Petitioner is not entitled to habeas corpus relief on the claim
alleged in Ground One.
B.
Ineffective Assistance of Trial and Appellate Counsel Ground Three (subparts A and E) and Ground Four
tioner alleges trial
In Ground Three, subparts A and E,
counsel
provided
ineffective
assistance
by
failing
to
perform
effectively with regard to plea negotiations and sentencing.
12 - OPINION AND ORDER -
In
Ground
Four,
Petitioner asserts
a
single
claim of
ineffective
assistance of appellate counsel, contending that counsel failed to
assign as error on appeal the denial of Petitioner's motion for
mistrial.
These claims were fully exhausted in Petitioner's state
PCR proceedings.
A claim of ineffective assistance of trial counsel requires
the petitioner to prove that counsel performed deficiently and that
the petitioner suffered prejudice.
U.S. 668, 687-88 (1987).
Strickland v. Washington, 466
The Strickland standard also applies to
Evitts v.
claims of ineffective assistance of appellate counsel.
Lucey, 469 U.S. 387 (1985).
If there is a failure of proof on either Strickland prong,
habeas relief is not warranted.
457
(9th Cir.
2014).
Murray v. Schriro, 746 F.3d 418,
When reviewing a state prisoner's habeas
claim of ineffective assistance, federal courts must apply a doubly
deferential
standard of
review
taking
into
presumption of competence under Strickland,
standard
of
review
under
28
U.S.C.
§
account
the
strong
and the deferential
2254(d).
Cullen
v.
Pinholster, 563 U.S. 170, 190 (2011).
To
show
counsel
performed
deficiently,
a
petitioner must
establish that his counsel's representation fell outside the wide
range of professionally competent assistance.
Lafler v. Cooper,
132 S.Ct. 1376, 1384 (2012); Strickland, 466 U.S. at 688.
In order
to establish prejudice, a petitioner must demonstrate that there is
13 - OPINION AND ORDER -
a reasonable probability that, but for counsel's errors, the result
of the proceeding would have been different.
Lafler, 132 S. Ct. at
1384; Harrington v. Richter, 562 U.S. 86, 112 (2011).
A reasonable
probability is a probability sufficient to undermine confidence in
Strickland, 466 U.S. at 694.
the outcome of the proceeding.
The state PCR trial court rejected Petitioner's claims of
ineffective assistance of trial and appellate counsel as follows:
No inadequacy or prej[udice] concerning att[orney] on
appeal.
Raised issues he felt were strongest.
No
inadeq[uacy] or prej [udice] by trial att [orney]-- no
grounds for recusal made in judgment of appeal.
Insufficient proof of ethnicity of jury or appeal.
Knowing stipulation to departure factors -- no evidence
that jury would not have found departure factors ( 18
priors, prior [domestic violence] felonies) .
[Court]
findings agree. Court believes attorney discussed grid
and departures and plea offers.
Insufficient evidence
that public, as opposed to witnesses, were denied access.
Insufficient evidence that att[orney], court of DA made
aware of concern.
Resp.
Ex.
132,
p.
1.
These
findings
and conclusions
are
not
advise
him
objectively unreasonable, and the record supports them.
Petitioner
contends
trial
counsel
failed
adequately regarding a potential plea agreement. 2
when
an
initial
plea
of fer
was
extended,
to
He alleges that
counsel
should
have
advised him that if he did not accept the of fer the State could add
2
The Court notes that this particular ineffective assistance
claim was not presented to the Oregon Court of Appeals in
Petitioner's state PCR proceeding; the only ineffective assistance
of trial counsel claim advanced on appeal was the alleged failure
associated with sentencing. Nonetheless, because Petitioner is not
entitled to relief on the merits of this claim, the Court declines
to address the procedural default issue.
See footnote 1, supra.
14 - OPINION AND ORDER -
additional
serious
charges
and could
seek an
upward departure
sentence based upon Petitioner's prior criminal history.
In his
Brief in Support, Petitioner argues counsel never gave this advice.
Petitioner does not, however, point to any evidence in the record
to support this assertion, and the Court could locate none.
To
the
contrary,
Petitioner's
trial
counsel
submitted
a
declaration in the PCR case explaining her advice to Petitioner
regarding the plea negotiations:
I had explained all aspects of the plea negotiations with
him, including plea offers from the state.
Consistent with my general practice, I explained to him
the presumptive sentences, as well as the maximum and
minimum sentences he could receive for each charge. My
general practice is to show my clients the Oregon
Sentencing Guidelines Grid and identify their gridblock
on the grid. While I cannot recall specifically, I don't
believe I deviated from my general practice in showing
the grid to
[Petitioner].
Over the number of
conversations that I had with [Petitioner], it was clear
that he was unwilling to consider any plea offer.
He
insisted upon a trial.
Resp. Exh. 129, p. 2 (emphasis supplied).
At the PCR evidentiary
hearing, the trial judge asked Petitioner about his position on the
plea negotiations:
COURT:
Did you tell [counsel] that you were not
going to accept any plea of
and that
you insisted on a trial?
PETITIONER:
No. At
rst -- at first, I told her we
would go to trial.
I had a first
indictment and it had no Kidnap, 1.
It
had no -- it had only Assault, 4, and no
tampering with a witness.
Resp. Exh. 131, pp. 20-21.
15 - OPINION AND ORDER -
No other evidence in the record supports Petitioner's claim
that counsel failed to properly advise him in plea negotiations at
the outset of the action; the declaration and amended declaration
submitted by Petitioner in the state PCR proceeding are silent on
the issue.
In the absence of any such evidence,
the PCR court
decision denying relief on this claim was not unreasonable.
Petitioner
assistance
in
also
the
alleges
plea
counsel
negotiations
provided
pertaining
to
ineffective
sentencing.
Following entry of the guilty verdict, Petitioner signed a waiver
of his rights under Blakely v. Washington, 542 U.S. 296 (2004) and
admitted three bases for upward departures, thereby alleviating the
State's burden to prove to the jury relevant facts to support the
departures.
In return,
the State agreed not to seek departures
based on several other factors.
In
his
written
Blakely waiver,
Petitioner
agreed
he
was
admitting to certain factors delineated in the State's "Notice of
Intent to Rely on Enhancement Facts."
admitted
"persistent
involvement,"
Specifically,
"prior
Petitioner
sanctions
deterred," and "demonstrated disregard for laws."
have
not
Resp. Exh. 115,
Addendum "A" to Plea Petition, and "Notice of Intent to Rely on
Enhancement Facts").
In the PCR proceeding, trial counsel submitted an affidavit
stating that
she explained to
Petitioner that
the
judge could
increase his sentence based on his admissions to those aggravating
16 - OPINION AND ORDER -
factors.
Resp.
Exh.
129,
pp.
1-2.
In
addition,
prior
to
sentencing, the trial court engaged in a colloquy with Petitioner
to
ensure
he
understood
the
potential
implications
of
his
stipulation to the enhancement facts, which Petitioner indicated he
understood.
Resp. Exh.
these circumstances,
103, Trial Tr., Vol.
I,
p.
204).
Under
Petitioner has not established that the PCR
trial court's conclusion that trial counsel performed effectively
with regard to the Blakely waiver was objectively unreasonable.
Moreover,
the
PCR
trial
court
determined
Petitioner's extensive criminal history,
that,
there was "no evidence
that [a] jury would not have found departure factors."
132, p. 1.
given
Resp. Exh.
The record indicated that prior to the offenses in this
proceeding,
convictions,
Petitioner
had
approximately
eighteen
prior
including three for inflicting corporal injury on a
spouse or co-habitant as a misdemeanor, felony battery against a
spouse, violation of a protective order to prevent domestic abuse,
sexual battery, and a number of property and drug crimes.
Resp.
Exh. 104, Trial Tr., Vol. II, 4/5/06 Sentencing Hearing, pp. 3-4).
Given Petitioner's substantial criminal record, the PCR trial
court
reasonably
concluded
that,
even
if
counsel
had
not
recommended that Petitioner sign the Blakely waiver or had objected
to the trial court's imposition of an upward departure sentence,
Petitioner would not have received a lower sentence.
17 - OPINION AND ORDER -
Accordingly,
the PCR trial court's decision denying relief on this claim was not
contrary to or an unreasonable application of Strickland.
In Ground Four,
Petitioner alleges one claim of ineffective
assistance of appellate counsel, for failure to assign as error on
appeal
the
denial
of
a
motion
for
mistrial.
At
trial,
the
prosecutor was questioning on redirect a state's witness who was at
the residence when the incident occurred.
The prosecutor stated
that Petitioner's trial counsel was ''quibbling" with the witness
about what Petitioner said to the witness after the incident.
At
that point, outside of the presence of the jury, counsel moved for
a mistrial.
Counsel also argued that there had been a discovery violation,
which provided additional grounds for a mistrial.
The witness in
question had not been interviewed by police or otherwise had his
statements memorialized, and the prosecutor interviewed him prior
to trial but apparently did not take notes of the interview or have
an investigator present during the interview.
The prosecutor did
not disclose
the
witness 1 s
to the
statements
defense prior to trial
or
the
fact
that
he
had
nature
of
the
interviewed
the
witness.
The trial court found that the prosecutor 1 s
comment about
trial counsel "quibbling" with the witness was no different than
"saying that
you were
arguing
arguing with the witness."
with
the
witness,
and
you were
Resp. Exh. 103, Trial Tr., Vol. I, p.
18 - OPINION AND ORDER -
110).
The court found that the comment did not
se "to the level
of prosecutorial misconduct," or "to the level sufficient to cause
a mistrial."
Id.
As to the alleged discovery violation, the court
found that counsel was aware the witness would be testifying as his
name had "been listed for at least three trial settings."
Moreover,
the
court
found
"[n]one
of
the
testimony
that
Id.
[the
witness] provided I would say is exculpatory to [Petitioner], and
it in fact, is corroborating of the victim's testimony."
111.
Id., p.
As such, the court denied the mistrial motion.
Had appellate
mistrial,
counsel
assigned error
the Oregon Court
of Appeals
to
the
would have
denial on direct appeal for abuse of discretion.
333 Or. 163, 175, 37 P.3d 157 (2001).
denial
of
a
reviewed the
State v. Terry,
Under Oregon law, discretion
"refers to the authority of a trial court to choose among several
legally correct outcomes," and if the decision "was within the
range
of
legally
correct
discretionary
choices
and produced a
permissible, legally correct outcome, then the trial court did not
abuse its discretion."
333 P. 3d 1080
State v. Ringler, 264 Or. App. 551, 553,
(internal citation and quotations omitted),
rev.
denied, 356 Or. 575, 342 P.3d 88 (2014).
In light
of the
record,
as
a
whole,
and the
de
rential
standard of review that would have been applicable on appeal, the
PCR trial court reasonably concluded appellate counsel was not
ineffective for failing to assign error, or that Petitioner would
19 - OPINION AND ORDER -
have more likely than not prevailed on his appeal had the issue
been raised.
Accordingly, Petitioner is not entitled to relief on
the inffective assistance of appellate counsel claim alleged in
Ground Four.
II.
Procedurally Defaulted Claims - Ground Two and Ground Five
In Ground Two, Petitioner alleges the trial court violated his
constitutional rights by closing Petitioner's trial to the public.
In Ground Five, he asserts that he was denied his constitutional
right to a unanimous jury verdict.
As noted, Respondent contends
Petitioner procedurally defaulted these two claims.
Generally, a state prisoner must exhaust all available state
remedies either on direct appeal or through collateral procedings
before a federal court may consider granting habeas corpus relief.
28 U.S.C. § 2254{b) (1).
A state prisoner satisfies the exhaustion
requirement by "fairly presenting" his claim to the appropriate
state courts at all appellate states afforded under state law.
Castille v. Peoples, 489 U.S. 346, 351 {1989); Baldwin v. Reese,
541 U.S. 27, 29 {2004).
If the petitioner's federal claim is not exhausted, and he can
no longer do so becuase of a state procedural bar,
procedurally defaulted.
Cir.),
cert.
denied,
his claim is
Cooper v. Neven, 641 F.3d 322, 327-28 {9th
132
S.Ct.
558
(2011}.
If
a
petitioner
procedurally defaults his available sate remedies, habeas relief is
precluded absent a
showing of cause and prejudice,
20 - OPINION AND ORDER -
or that the
failure
to
consider
the
defaulted
fundamental miscarriage of justice.
claims
will
result
in
a
Coleman v. Thompson, 501 U.S.
722, 750 {1991).
Petitioner did not raise at trial or on direct appeal his
claim that the trial court violated his constitutional right to a
public trial.
In Oregon,
claims of trial court error are most
properly brought on direct appeal.
See Walker v. Howton, Case No.
3:11-cv-00265-KI, 2013 WL 5787241, at *4 n.2 (D. Or. 2013)
{"when
a criminal defendant fails to raise an issue at trial that the
defendant
reasonably
defendant
cannot
could
obtain
have
been
post-conviction
expected
relief
to
on
raise,
that
the
ground
unless the defendant alleges and proves that the failure to raise
the issue due to one {or more) of a few narrowly drawn exceptions")
(citing Palmer v. State of Oregon, 318 Or. 352, 458, 867 P.2d 1368
(1994)).
Petitioner fails to establish that the claim alleged in
Ground Two falls within one of the narrowly drawn exceptions, and
his failure to exhaust this claim through a direct appeal appears
procedurally defaulted because the time to do so has now expired.
In any event, even if the error was one properly pursued in
the state PCR proceedings,
claim there as well.
Petitioner procedurally defaulted the
In his state PCR petition, Petitioner alleged
both a trial error claim that he was denied his right to a public
trial when the courtroom was closed to the public, and a claim that
trial counsel was ineffective in failing to object to the court
21 - OPINION AND ORDER -
denying Petitioner's right to a public trial.
3,
5.
On appeal
however,
Pet
from the
ioner
Resp. Exh. 110, pp.
PCR trial court's denial of relief,
only
argued
that
trial
counsel
provided
constitutionally ineffective assistance by failing to ensure that
Petitioner received a public trial; Petitioner did not address his
claim that
public.
the
trial
court
Resp. Exh. 133.
erred
in
closing
the
trial
to
the
Because Petitioner did not fairly present
the claim alleged in Ground Two at all appellate levels afforded in
the PCR proceedings, and because he can no longer properly do so,
the claim is procedurally defaulted.
As to Ground Five,
state
court
regarding
Pe ti ti oner did not assert any claim in
the
lack
of
a
unanimous
jury
verdict.
Because he can no longer properly present such a claim in state
court, Ground Five is also procedurally defaulted. 3
Petitioner does not present any evidence establishing cause
and prejudice or a fundamental miscarriage of justice to excuse his
procedural default of the claims alleged in Ground Two or Ground
Five.
Accordingly,
Petitioner is not entitled to habeas corpus
relief on these claims.
3
In any event, Oregon's system of allowing convictions by nonunanimous juries was upheld by the Supreme Court in Apodaca v.
Oregon, 406 U.S. 404, 406 (1972).
22 - OPINION AND ORDER -
III. Claims Not Addressed by Petitioner - Ground Three (subparts B,
C, and D)
Finally, Petitioner does not address the remaining claims of
ineffective assistance of trial counsel alleged in Ground Three.
Accordingly,
Petitioner
has
failed
to
sustain
his
burden
of
demonstrating why he is entitled to relief on his unargued claims.
See Mayes v.
Premo,
766 F.3d 949,
957
(9th Cir.
2014)
(habeas
petitioner bears the burden of proving his case), cert. denied, 135
S.Ct. 879 (2015); Davis v. Woodford,
2004)
(same).
384 F.3d 628,
638
(9th Cir.
Nevertheless, the Court has reviewed Petitioner's
unargued claims on the existing record and finds that Petitioner is
not entitled to habeas corpus relief.
CONCLUSION
For these reasons, the Court DENIES the Petition for Writ of
Habeas Corpus (ECF No. 1), and DISMISSES this action.
The Court DENIES a certificate of appealability as Petitioner
has
not
made
a
substantial
constitutional right.
showing
of
See 28 U.S.C. § 2253 (c) (2).
IT IS SO ORDERED.
DATED this
the
~(}\
I ..d. day
of February, 2017.
23 - OPINION AND ORDER -
denial
of
a
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