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
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