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)

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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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