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