Hylton v. Taylor
OPINION AND ORDER: The Court DENIES the Petition for Writ ofHabeas Corpus 2 and DISMISSES this action. (See 22 page opinion and order for more information.) Signed on 9/12/17 by Judge Anna J. Brown. (dsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Civil No. 2:14-cv-01530-BR
OPINION AND ORDER
Assistant Federal Public Defender
101 SW Main Street
Portland, OR 97204
Attorney for Petitioner
ELLEN F. ROSENBLUM
FREDERICK M. BOSS
Deputy Attorney General
KRISTEN E. BOYD
Senior Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301
Attorneys for Respondent
Pe ti ti oner,
Institution, brings this habeas corpus action pursuant to 28 U.S.C.
For the reasons that follow, the Court DENIES the Petition
for Writ of Habeas Corpus (ECF No. 2).
On November 1,
Marion County grand
Kidnaping in the First Degree, and one count each of Assault in the
Assault in the Third Degree,
and Assault in the
The charges were based upon
allegations that Petitioner and his co-defendant, Pete Quismundo,
assaulted Petitioner's girlfriend Michelle Simpson, threatened to
kill her, and tried to force her into a car.
Pe ti ti oner and Ms.
Simpson lived together in an apartment
which Billie Baller managed.
On October 20, 2004, Ms. Baller was
awakened by screams and banging on her window at about 3:00 a.m ..
She went outside and saw Petitioner and Quismundo assaulting Ms.
"smashing" her head into the top part of Petitioner's car and
Baller heard both men threaten to kill Ms.
Simpson, "telling her they were going to cut her up and float her
down the river and that nobody would ever miss her."
2 - OPINION AND ORDER -----------------
Baller screamed for them to stop,
they did not, she told her daughter-in-law to call 911.
Simpson got away from Petitioner and Quismundo and ran
Petitioner's car and drove away.
Once back inside, Ms. Baller saw
that Ms. Simpson was "bloody all over" and was holding her ribs.
Simpson standing in the doorway of Ms.
Baller's house with a towel over her left eye.
She was crying, was
"visibly shaking," and had blood "from the top of her hair running
down the side of her head."
Res. Exh. 104, p 140.
told Officer Beal that Petitioner ''had beat her and was trying to
Resp. Exh. 104, p. 141.
She told Officer Beal that the
assault began in her apartment, that she ran from the apartment,
and that Petitioner and Quismundo tried to force her into the car
"to take her out and kill her."
Resp. Exh. 104, pp. 141-42.
ambulance arrived and transported Ms. Simpson to the hospital.
A short time later,
another officer stopped Petitioner and
Quismundo, and Officer Beal went to the stop location.
a ''large kitchen knife'' on the front passenger side floorboard of
Both Petitioner and Quismundo were arrested and taken to
the police station.
Officer Beal went to the hospital to speak to Ms.
Ms. Simpson suffered injuries including "two broken ribs,
3 - OPINION AND
two fractured ribs, two shattered discs in her vertebra, and she
provided Officer Beal additional details about the attack.
told Officer Beal that Petitioner had become angry and assaulted
her because she had cheated on him.
Petitioner initially hit her
with an open hand, but then he became more violent, and he hit her
with his fist on the back of her head and her face.
also stood in front of her and kicked her legs as he questioned
her, and kicked her in the shins and in the torso as she lay on the
Simpson told Officer Beal she became "more and more
scared'' as Petitioner was getting ''out of control.''
104, pp. 146-47.
Ms. Simpson told Officer Beal that Quismundo initially sat on
the couch and watched Petitioner assault her, but then he started
"egging (Petitioner] on," telling him "You ought to cut her throat"
that Petitioner told her ''I am going to kill you and you'll never
see your kids again.''
104, p 149.
Because she was
afraid for her life, Ms. Simpson looked for a way to escape.
Petitioner and Quismundo went into the kitchen, Ms. Simpson heard
a drawer open and heard what she believed to be the sound of a
knife pulled out.
She told Officer Beal that she bolted for the
4 - OPINION AND ORDER -
door and ran to Ms. Baller's house, where she screamed and pounded
on the house to get someone's attention.
Ms. Simpson told Officer Beal that Petitioner was right behind
Petitioner said ''Bitch.
Exh. 104, p. 150.
Where do you think you're going.''
Ms. Simpson pleaded for her life, but Petitioner
"You're going for a ride and nobody is going to give a
Come on man.
Let's cut this bitch."
Resp. Ex. 104, p. 151.
Simpson told Officer Beal she remembered Petitioner holding
her, Quismundo hitting her, and her head "bouncing off the top of
Petitioner and Quismundo released her and she ran into Ms. Baller's
Later that same day, Officer Beal contacted Ms. Simpson again
at Ms. Baller's house.
Ms. Simpson again said Petitioner was upset
because she had cheated on him.
She told Officer Beal that there
was no question in her mind that if Baller had not intervened, "she
would have been killed.''
Resp. Exh. 121, p. 13.
Officer Beal also
talked to Ms. Baller, who told him she saw Petitioner and Quismundo
Simpson's head off the top of the car, and reported
hearing Petitioner and Quismundo make statements like:
Let's cut this bitch.
Let's go man.''
Resp. Exh. 104, p. 163.
Officer Beal interviewed Quismundo twice.
The first time,
immediately after the incident, Quismundo told Beal he was actually
present to see Petitioner assault Ms. Simpson and that he tried to
stop him from injuring her, but then Quismundo said something like
"if I would have tried to stop him .
I wouldn't be able to help her.''
well you see how big he is
Resp. Exh. 121, pp. 9-10.
The second time Officer Beal spoke to Quismundo, he told Officer
Beal Petitioner had been fighting with Ms.
Simpson for about an
hour before the police arrived, and he described the events inside
the apartment as Petitioner asking questions of Ms.
then he would hit or kick her.
Quismundo mentioned numerous times
that he would have stopped Petitioner from assaulting Ms. Simpson,
but because of Petitioner's size, he did not.
Simpson did not appear for a grand jury
The prosecution asked the court to declare her a
and a hearing was held.
At the hearing,
Simpson testified that she would appear at trial and wanted to
testify against Pe ti ti oner.
She denied that she had spoken to
Petitioner after the incident, even though the state had recordings
perjury for lying under oath at the hearing.
investigator interview Ms.
Simpson denied to the
private investigator that Petitioner had hit her, and she placed
the blame on Quismundo instead.
Petitioner's case was joined with Quismundo's case for trial.
Ms. Baller, Ms. Simpson, and Officer Beal.
Ms. Baller testified consistently with what she had reported
to Officer Beal, that is, she heard screaming and someone knocking
"telling her that they were going to cut her up and float her down
Baller saw both
Quismundo and Petitioner holding and hitting Ms. Simpson.
Ms. Simpson's testimony differed dramatically from what she
told Officer Beal.
She testified she either did not
making inculpatory statements to Officer Beal about the attack and,
if she had made them,
they were false.
Simpson blamed the
She testified that Quismundo, not Petitioner, beat her
and kicked her while they were in the apartment because he was
angry at her for cheating on Petitioner.
that Petitioner was asleep, and that after about five minutes she
awakened him and he got her a towel and tried to help her to the
She testified that she did not go to Ms. Baller's house and
bang on her window or yell for help, and that she told Ms. Baller
to make up the incriminating statements she gave to Officer Beal.
Officer Beal testified about the three conversations he had
Simpson and relayed the statements she made about the
attorney asked Officer Beal about statements Quismundo had made to
Officer Beal testified that Quismundo told Beal that he would
have intervened but he was scared of Petitioner because of his
size, that Quismundo heard Petitioner tell Ms. Simpson he wanted to
kill her and she would never see her children again, and that had
Quismundo not been there to intervene, he believed Petitioner would
Quismundo told him that Petitioner was the one who actually struck
Ms. Simpson when they were in the apartment.
At the close of the state's evidence,
both Petitioner and
Quismundo moved for judgments of acquittal, which the trial judge
Petitioner's attorney then raised another matter with the
DEFENSE COUNSEL: There is one other matter. It is a pro
se matter that I have discussed. [Petitioner] previously
-- and I don't think that he agrees with my analysis of
the law on it.
I think [ Petitioner's J belief has
historically been that this should not have been a joint
I think he feels that the testimony of the codefendant puts him at a disadvantage or, at least, the
purported testimony could.
It's kind of a two-on-one
situation for him.
I previously, months ago, talked to what his
interpretation of the statute and case law was; that I
didn't think he had any chance in having severed trials.
But, again, even this morning he's written me a note that
he wanted me to bring that up to the Court.
believes that it was inappropriate to have these matters
together, and I just thought I would better do that since
he has asked me to do so.
* * *
PROSECUTOR: It is a little late now, I guess.
just making his record, he's made his record.
If he is
THE COURT: Well, certainly, it is late at this time to
file a motion to sever, but I can also indicate that a
motion to sever would not have been granted given that
these cases clearly arise out of the same incident.
Resp. Exh. 105, pp. 20-21.
evidence in defense.
testified or put
Petitioner guilty on all
aggravating factors alleged in the indictment.
The jury found all
of the aggravating factors should be applied to the charges against
imposed upward durational departures from the applicable sentencing
consecutively for a total of 438 months of imprisonment.
Petitioner directly appealed his convictions, asserting only
errors pertaining to his sentence.
The Oregon Court of Appeals
affirmed in part on the first appeal,
and affirmed in a written
opinion on appeal after remand, and the Oregon Supreme Court denied
review both times.
State v. Hylton, 210 Or. App. 104, 150 P.3d 47
___ ···--·····--9.::-_.Q_PINION AND ORDl2.B_ -
155 P.3d 51
Hylton, 230 Or. App. 525, 216 P.3d 899, rev. denied, 347 Or. 349,
222 P.3d 30 (2009).
Petitioner then sought state post-conviction relief (''PCR'').
but the Oregon Court
Hylton v. Coursey, 260 Or. App. 767, 320 P.3d 675, rev.
denied, 355 Or. 879, 333 P.3d 333 (2014).
On September 25, 2014, Petitioner filed his Petition for Writ
of Habeas Corpus Pursuant to 28 U.S. C.
2254 with this Court.
Petitioner alleges three claims for relief:
Petitioner was denied his 6th and 14th
Amendment rights under the U.S. Constitution to a jury
Constitutional right to a jury trial when the sentencing
court made factual findings to support the imposition of
consecutive sentences rather than have a jury make those
Petitioner was denied his right to the
adequate assistance of trial counsel under the 5th, 6th,
and 14th Amendments to the U.S. Constitution.
( 1) Counsel failed to move to sever the Defendant's
trial from that of the co-defendant to avoid the
(2) Counsel failed to object to the admission of
hearsay statements of the co-defendant,
denied Defendant his right to confront his accuser
in violation of the 6th and 14th Amendments to the
Petitioner was denied his right of
confrontation in violation of the 6th and 14th Amendments
to the U.S. Constitution.
A co-defendant's hearsay statements
were allowed to be presented before the jury-- without
Petitioner being given an opportunity to confront his
In his Brief in Support of his Petition, Petitioner addresses
only the ineffective assistance of counsel claims alleged in Ground
Petitioner ''submits the
Petitioner is not
for this Court's
entitled to relief on the claims alleged in
Grounds One and Three because he failed to meet his burden on those
Respondent also argues that relief should be denied on
both sub-claims alleged in Ground Two because the state PCR court's
denial of relief was not contrary to or an unreasonable application
of clearly established federal law. 1
In his Brief in Support, Petitioner argues he procedurally
defaulted sub-claim (2), but that the procedural default is excused
by the ineffective assistance of his PCR trial counsel under
Martinez v. Ryan, 566 U.S. 1, 132 s. Ct. 1309 (2012). Respondent
does not agree that the claim was procedurally defaulted, in any
event, contends Petitioner is not entitled to relief on the merits
of the claim.
Because the Court finds Petitioner is not entitled
to relief on the merits of this claim, the issue of procedural
default need not be addressed.
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. 2766 (2013) .
____________1_1__:-_Q]o>INIQN _ANp__QRDER__~-------------------------- ------ -----------------------------
Ground Two - Ineffective Assistance of Counsel
A petition for writ of habeas corpus filed by a state prisoner
may not be granted with respect to any claim that was adjudicated
on the merits in state court unless the adjudication resulted in a
application of, clearly established Federal law,'' or ''resulted in
a decision that was based on an unreasonable determination of the
facts in light of evidence presented."
28 U.S.C. § 2254(d) (1)
petitioner seeking relief under § 2254 bears the burden of proof.
Cullen v. Pinholster, 563 U.S. 170, 131 S. Ct. 1388, 1398 (2011).
"Under § 2254 (d) (1), a state prisoner must show that the state
court's ruling on the claim being presented in federal court was so
lacking in justification that there was an error well understood
(citing White v.
White v. Wheeler, 136 S. Ct. 456, 460
reiterated the high standard of deference required by§ 2254(d):
time and again, has instructed that the AEDPA, by
setting forth necessary predicates before state-court judgments may
be set aside,
'erects a formidable barrier to federal habeas relief
12 - OPINION AND QBDJ;:R -:.~~~.
for prisoners whose claims have been adjudicated in state court.'"
White, 134 S. Ct. at 460 (quoting Burt v. Titlow, 134 S. Ct. 10, 16
Claims of ineffective assistance of counsel are examined under
Strickland v. Washington, 466 U.S. 668 (1984).
"The benchmark for
judging any claim of ineffectiveness must be whether counsel's
conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a
In order to prevail on a claim of
performance was deficient, i.e., that it fell below an ''objective
standard of reasonableness" under prevailing professional norms,
Harrington, 562 U.S. at 105 (citing Strickland, 466 U.S.
at 690) .
''A court considering a claim of ineffective assistance
must apply a 'strong presumption' that counsel's representation was
of reasonable professional assistance."
Id. at 104 (quoting Strickland, 466 U.S. at 689).
Second, the petitioner must establish that he was prejudiced
errors, the result of the proceeding would have been different."
13 - OPINION AND OR[)]<;R -
probability sufficient to undermine confidence in the outcome.
"The likelihood of a different result must be substantial, not just
Harrington, 562 U.S. at 112 (citing Strickland, 466
The standards of both 28 U.S.C. § 2254(d) and Strickland are
''highly deferential, and when the two apply in tandem,
Harrington, 562 U.S. at 105 (quotation marks omitted).
"[T)he question [under§ 2254(d)] is not whether counsel's actions
The question is whether there is any reasonable
argument that counsel satisfied Strickland's deferential standard."
Failure to Move to Sever Petitioner's Trial
In subpart (1) of Ground Two Petitioner alleges trial counsel
provided ineffective assistance of counsel when he failed to move
to sever Petitioner's trial from that of his co-defendant.
judge denied relief on this claim,
noting that the trial
court ruled that a "motion to sever was late, but would have been
concluded Petitioner did not show prejudice.
In an affidavit filed with the PCR trial court, Petitioner's
assistance of counsel:
Turning to Mr. Hylton' s claims, I did consider
filing a motion to sever the trials of Mr. Hylton
and Mr. Quismundo. I was aware of Mr. Quismundo's
statement to the police.
I did some research into
both hearsay objections and severance of the trial.
I was aware that ORS 136.060(1) required that
jointly charged defendants be tried jointly unless
the court concluded before trial that [it) is
clearly inappropriate to do so. My research found
authority that severance was not required per se
State v. Turner, 153 Or App 66 (1998);
State v. Coleman, 130 Or App 656 (1994).
case law which appeared to support the admission of
Mr. Quismundo' s statements at trial.
Wilson, 323 Or 498 (1996); State v. Nielsen, 316 Or
I was also aware of Crawford v. Washington, 541 US
36 (2004) and issues related to Sixth Amendment
Confrontation. I felt that if Mr. Quismundo was an
unavailable witness, his statement to the police
would not be admissible against Mr. Hylton and
severance would be appropriate.
I contacted Mr.
Quismundo's attorney, Robert Botta, and requested
permission to interview Mr. Quismundo. The request
Mr. Botta did advise me that his
client's position remained the same, that is, that
he had seen Mr. Hylton assault Ms. Simpson but had
not intervened out of fear.
I specifically asked
Mr. Botta if his client was going to testify.
was advised that the decision had not yet been made
and probably would not be made until they saw what
evidence and testimony was actually presented at
It was my impression that they wanted to
know what Ms. Simpson was going to say when she
Given those circumstances, I did not file a motion
to sever the trials because I did not believe it
would be successful without
establish Mr. Quismundo as an unavailable witness.
As it turned out, Mr. Quismundo decided not to
testify and I was advised of this during the trial.
In hindsight, I think filing that motion might have
I believe my decision at that
time was influenced by my analysis of the case
itself. In my opinion, there was no doubt that Ms.
Simpson had been severely beaten and received
There was also no question
15 - OPINION AND ORDER-:
that Mr. Hylton had been present when it happened.
The statements made by Ms. Simpson and Ms. Baller
directly implicated Mr. Hylton. At a minimum, the
evidence supported criminal liability on an aid or
abet theory. Mr. Hylton's position that he did not
know that Mr. Quismundo was assaulting Ms. Simpson
over an extended period of time was not believable.
I felt strongly that a jury would want to hold
someone responsible for the beating and related
In light of Ms. Simpson's interview with
my investigator and the change in her description
of the events, I felt strategically Mr. Hylton's
only chance for acquittal was if the jury had the
option of convicting Mr. Quismundo instead.
Resp. Exh. 122, pp. 2-4.
The PCR trial court's decision denying relief on this claim is
supported by the record.
Petitioner has not established that his
attorney should have argued Quismundo would choose to invoke his
Fifth Amendment and render himself unavailable to testify or that
counsel knew before trial that Quismundo would not be testifying.
As noted, counsel contacted Quismundo's attorney before trial, who
indicated they had not decided whether Quismundo would take the
Moreover, in his opening statement to the jury, Quismundo's
attorney said Quismundo would testify and described in some detail
what that testimony would say.
the strategy of Petitioner's counsel regarding
the motion to sever was reasonable in light of the facts at the
statements to Officer Beal directly implicated Petitioner.
light of the evidence, including the knowledge that Ms. Simpson's
testimony at trial would likely diverge from her statements to
Officer Beal, counsel reasonably determined a jury would ''want to
hold someone responsible,''
and Petitioner's only chance for
Quismundo instead of Petitioner.
Finally, the trial judge ruled that a motion to sever would
not have been successful even if it had been timely filed. Under
(1) Jointly charged defendants shall be tried jointly
unless the court concludes before trial that it is
clearly inappropriate to do so and orders that a
defendant shall be tried separately.
In reaching its
conclusion the court shall strongly consider the victim's
interest in a joint trial.
Or. Rev. Stat.
Review of a court's decision on a motion
to sever is to be considered based upon the circumstances as they
appear prior to trial, at the time of the motion, and not in light
of all of the facts adduced at trial.
App. 66, 74 (1998).
The trial court's decision here that a motion
to sever the trial would not have been granted is a determination
of Oregon law which is not subject to habeas corpus relief.
298 F.3d 1154, 1158 (9th Cir. 2002)
have the last word on the interpretation of state law) .
Petitioner cannot establish that a motion to sever would have been
to do so.
Petitioner is not entitled to
habeas corpus relief on this claim.
Failure to Object to Admission of Hearsay Statements
In subpart (2) of Ground Two, Petitioner alleges trial counsel
hearsay statements made by Quismundo in violation of Petitioner's
right to confrontation of his accuser.
Petitioner argues that
According to Petitioner, had the statements been excluded, there is
a reasonable probability the jury would not have found Petitioner
guilty of Attempted Murder.
The Sixth Amendment guarantees a criminal defendant the right
"to confront the witness against him."
391 U.S. 123, 137 (1968).
In Crawford v. Washington, 541 U.S. 36
a testimonial statement is inadmissible unless the
defendant had a prior opportunity to cross-examine the declarant.
Here, Quismundo did not testify at trial, so he was ''unavailable.''
Quismundo made the statements in question to Officer Beal, so they
a minimum to police
649 F.3d 1098, 1007-08 (9th Cir. 2011)
but that a
witness's statements to investigating
detectives were testimonial) .
Thus, Quismundo' s hearsay statements
were subject to challenge as a Crawford violation.
18 - OPINIQN AND QRDE;
The fact that Quismundo's hearsay statements were subject to
challenge by Petitioner's trial attorney, however, does not end the
objected and successfully excluded the statements, the outcome of
Petitioner's trial would have been different.
See Mata v. Sherman,
Case No. 1:13-cv-01040 DAD MJS (HC), 2016 WL 1642642, at *15 (E.D.
(rejecting ineffective assistance of counsel
Petitioner must establish a reasonable probability that, but for
the failure to exclude the hearsay statements, the jury would not
have found Petitioner guilty.
As explained above, the evidence against Petitioner at trial
Ms. Baller testified that she saw Petitioner and
Quismundo assaulting Ms. Simpson, smashing her head into the top of
the car and punching her while they threatened to ''cut her up and
float her down the river and that nobody would ever miss her.
they just kept doing it.''
Resp. Exh. 104, pp. 40.
that only after she approached the car did Quismundo stop hitting
Ms. Simpson and that Quismundo told Petitioner to "just let loose
It's not worth it.
And they stopped.''
You are going to jail if you
Resp. Exh. 104, p. 41.
Officer Beal testified that when he questioned Ms. Simpson the
first time, she told him Petitioner "had beat her and was trying to
Simpson repeated this
He testified that Ms.
the second time he
provided detail about Petitioner's attack, how she fled when she
followed her out of the house and Petitioner grabbed her by the
Petitioner's statement that he was going to kill her and she would
"never see [her] kids again."
Resp. Exh. 104, pp. 145-151.
Officer Beal testified he interviewed Ms.
time, approximately 18 hours after the incident.
Ms. Simpson again
told Officer Beal that Petitioner was upset because she had cheated
on him, and that when she was pleading for her life both Petitioner
Resp. Exh. 104, pp. 161-162.
Finally, Officer Beal testified that he questioned Ms. Baller
upon his arrival at the scene of the incident, and that she told
head off the
described both Mr. Hylton and Mr. Quismundo making statements like:
Let's cut this bitch.
Let's go man."
Resp. Exh. 104, p.
Baller told Officer Beal she also heard Ms.
20 - OPINION
pleading for her life,
saying ''You're not going to put me in the
I want to see my kids.''
Resp. Exh. 104, p. 163.
The hearsay statements Quismundo made to Officer Beal were, at
best, cumulative of the evidence previously discussed.
said that Petitioner wanted to kill Ms. Simpson, that he believed
intervene, that Petitioner told Ms. Simpson "I'm going to kill you"
and "You'll never see your kids again," and that Petitioner struck
Ms. Simpson when they were sitting on the couch in the apartment.
Resp. Exh. 104, pp. 158-60.
Considering all of the evidence, the
Court finds no reasonable probability of a different outcome had
Quismundo's hearsay statements on Confrontation Clause grounds.
Grounds One and Three - Claims Not Addressed by Petitioner
As noted, Petitioner does not provide argument to support the
claims alleged in Grounds One and Three.
does not attempt to refute Respondent's argument that these claims
do not entitle Petitioner to habeas corpus relief.
Petitioner has failed to sustain his burden of demonstrating why he
Blodgett, 393 F. 3d 943, 970 n. 16 (9th Cir. 2004)
burden of proving his case); Davis v. Woodford,
(9th Cir. 2003)
384 F.3d 628,
The court, nevertheless, has reviewed Petitioner's unargued
claims and is satisfied that they do not entitle Petitioner to
The Oregon appellate court decisions on the claim alleged
in Ground One are not contrary to or an unreasonable application of
clearly established federal
in any event,
Accordingly, the Court denies habeas corpus relief on the claims
alleged in Grounds One and Three.
For these reasons, the Court DENIES the Petition for Writ of
Habeas Corpus (ECF No. 2) and DISMISSES this action.
The Court DENIES a certificate of appealability as Petitioner
See 28 U.S.C.
IT IS SO ORDERED.
day of September, 2017.
22 -: QPINION AND Ql\DE
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