Jones v. Nooth

Filing 29

OPINION AND ORDER: The Petition for Writ of Habeas Corpus 2 is denied. The court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c) (2). Signed on 9/11/17 by Judge Michael H. Simon. (dsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
SCOTT M. JONES,
Case No. 2:16-CV-01021-SI
Petitioner,
OPINION AND ORDER

v.
MARK NOOTH,
Respondent.
Kristina S. Hellman
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
Ellen F. Rosenblum, Attorney General
Nicholas M. Kallstrom, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent

1 - OPINION AND ORDER

SIMON, District Judge.
Petitioner brings
U.S.C.

2254

§

this

habeas

challenging

the

corpus case pursuant

legality

of

one

to

28

state-court

conviction for Robbery in the Second Degree. For the reasons that
follow, the Petition for Writ of Habeas Corpus (#2) is denied.
BACKGROUND

In

2011,

petitioner

robbed

three

convenience

stores

in

Jackson County. As a result, the Grand Jury indicted him on four
counts of Robbery in the Second Degree as well as one count of
Unlawful Possession of Methamphetamine. Respondent's Exhibit 102.
He pled guilty to the drug charge, but proceeded to a court trial
on the Robbery charges.
At

trial,

the

evidence

revealed

that

when he

robbed the

Minute Market in Ashland, Michelle Spencer and Erin Burris were
working

as

store

testified that

clerks.

Burris did not

petitioner came

into

the

testify,

but

Spencer

Minute Market

as

the

women prepared to close the store for the night. Spencer saw he
was wearing a black hooded sweatshirt with a red bandana over his
face.

Respondent's

Exhibit

104,

pp.

15-16.

Spencer

was

not

alarmed at that point. She explained that she viewed petitioner's
choice

of attire

as

somewhat

odd,

"[b) ut

it's Ashland,

so

I

thought maybe it was normal for a second." Id at 16.
She

saw

petitioner

approach

sweatshirt to display a gun,

1

the

counter,

pull

up

his

and say something to Burris that

Spencer did not hear. At that point, Burris began to empty money
from the register into a bag petitioner brought into the store
1

It later turned out that petitioner was using a toy gun.

2 - OPINION AND ORDER

denied,
also

355 Or.

filed

for

568,

329 P.3d 774

post-conviction

(2014).

relief,

Although petitioner

he

later

voluntarily

dismissed that action. Respondent's Exhibits 112-115.
Petitioner filed this federal habeas corpus action on June
6,

2016 wherein he asserts

Burris

violates

his

that his

right

to

due

Robbery conviction as

process

because

there

to
was

insufficient evidence to justify that conviction. Respondent asks
the court to deny relief on the Petition because the trial court
reasonably applied federal law when it rejected this claim.
DISCUSSION
I.

Standard of Review

An application for a

writ

of habeas

corpus

shall not

be

granted unless adjudication of the claim in state court resulted
in

a

decision

that

was:

(1)

"contrary

to,

or

involved

an

unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States;" or

( 2)

"based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding." 28 U.S.C.
§

2254(d). A state court's findings of fact are presumed correct,

and petitioner bears the burden of rebutting the presumption of
correctness
§

by

clear

and

convincing

evidence.

28

U.S. C.

2254 (e) (1).
A state

court

decision

established precedent

if

the

is

''contrary

state

court

to

clearly

applies

a

rule

that

contradicts the governing law set forth in [the Supreme Court's]
cases'' or ''if the state court confronts a set of facts that are
materially

indistinguishable

4 - OPINION AND ORDER

from a

decision

of

[the

Supreme]

Court and nevertheless arrives at a result different from [that]
precedent."
Under

the

Williams

v.

Taylor,

"unreasonable

529

U.S.

application"

362,

clause,

405-06
federal

a

(2000).
habeas

court may grant relief "if the state court identifies the correct
governing legal principle

from

[the Supreme Court's]

but

that

principle

unreasonably

prisoner's
clause

applies

case."

requires

Id

at

the

413.

state

incorrect or erroneous.

The

court

to

the

facts

"unreasonable
decision

to

decisions
of

the

application"

be

more

Id at 410. Twenty-eight U.S.C.

§

than

2254(d)

''preserves authority to issue the writ in cases where there is no
possibility

fairminded

jurists

could

disagree

that

the

state

court's decision conflicts with [the Supreme] Court's precedents.
It

goes no

farther."

Harrington

v.

Richter,

562

U.S.

86,

102

(2011).
II.

Analysis

When reviewing a habeas corpus claim based on insufficient
evidence,

"[t]he relevant question is whether, after viewing the

evidence

in

the

light most

favorable

to

the

prosecution,

any

rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt."
U.S.

307,

supports

319

(1979)

conflicting

(emphasis

Jackson v.

in original).

inferences,

courts

must

Virginia,

When

presume

resolved the conflicts in favor of the prosecution.
Because

this

issue

carries with it a

occurs

in

the

habeas

the

corpus

stringent standard of review,

443

record

the

jury

Id at 326.

context

which

this court

is

required to apply a "double dose of deference" to the state court

5 - OPINION AND ORDER

decision,

a level of deference "that can rarely be surmounted."

Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011).
Petitioner could only be guilty of Robbery in the Second
Degree as to Burris if the trial court could reasonably conclude
that

petitioner used or threatened the

immediate use of force

against her for the purpose of overcoming the resistance to the
taking of property.

See ORS 164.405 & 164.395. Petitioner argues

that Spencer never testified that Burris saw him display the gun,
and Burris

did not

testify at

all.

He

theorizes

Burris was stocking shelves at the front

that

because

of the store when he

arrived, she might have had her back to him when he displayed the
gun.
Spencer testified that she did not even see petitioner until
he

was

"almost

up

to

the

counter."

Respondent's

Exhibit

104,

p. 15. She also testified that when petitioner displayed the gun,
Burris was only two feet away from him because " [ s] he had gone
around to help him at the counter at that point." Id at 16. Taken
in the light most favorable to the prosecution, the trial court
could conclude

from this

show

gun,

her

satisfying

his
the

thus

elements

testimony that
threatening
of

Robbery

Burris

the
in

use
the

saw petitioner
of

force

Second

and

Degree.

Accordingly, the trial court's decision was neither contrary to,
nor an unreasonable application of,
law.

Ill
Ill
Ill
6 - OPINION AND ORDER

clearly established federal

CONCLUSION

For the reasons identified above,
Habeas

Corpus

(#2)

is

denied.

The

the Petition for Writ of

court

declines

to

issue

a

Certificate of Appealability on the basis that petitioner has not
made

a

substantial

showing

of

the

denial

of

a

constitutional

right pursuant to 28 U.S.C. § 2253(c) (2),
IT IS SO ORDERED.
DATED this

/ / fi day

of74~
Michael H. Simon
United States District Judge

7 - OPINION AND ORDER