Townsend v. Taylor et al
Filing
88
OPINION AND ORDER: The Second Amended Petition for Writ of Habeas Corpus 59 is DENIED and this case is DISMISSED. A Certificate of Appealability is denied on the basis that petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). Signed on 3/31/2020 by Judge Ann L. Aiken. **9 PAGE(S), PRINT ALL** (Henry Townsend, Prisoner ID: 14258900) (ck)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
HENRY ALEXANDER TOWNSEND,
Case No. 2:17-cv-00324-AA
Petitioner,
OPINION AND ORDER
v.
JERI TAYLOR, Superintendent of EOCI,
Respondent.
__________________________________
AIKEN, District Judge:
Petitioner, a prison inmate in the custody of the Oregon Department of Corrections, seeks
federal habeas relief pursuant to 28 U.S.C. § 2254. Petitioner argues that the relevant indictment
failed to provide adequate notice of murder charges against him and he was not competent to stand
trial. Petitioner further argues that his trial counsel was deficient in failing to raise and preserve
the issues of notice and petitioner’s incompetence. For the reasons explained below, petitioner’s
claims are procedurally defaulted and do not support habeas relief on their merits.
BACKGROUND
In April of 2010, petitioner was charged with numerous counts of Aggravated Murder,
Murder, Assault in the First and Second Degrees, Burglary in the First Degree, Robbery in the
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First and Second Degrees, and Unlawful Use of a Weapon. Resp’t Ex. 102. The charges arose
from an incident in which petitioner and two co-defendants forcibly entered a home, while armed,
to steal drugs and money. In the process, they assaulted three people, one of whom died eleven
days later as a result of his injuries.
Prior to trial, the State dismissed the several charges, including charges of Aggravated
Murder and Unlawful Use of a Weapon. Petitioner waived his right to jury trial and agreed to trial
before the court. Transcript of Proceedings (Tr.) 566-68.1
In December 2011, the trial court found petitioner guilty on four counts of Murder, one
count of Assault in the First Degree, three counts of Assault in the Second Degree, three counts of
Burglary in the First Degree, three counts of Robbery in the First Degree, and three counts of
Robbery in the Second Degree. Resp’t Ex. 101; Tr. 1333-35. At sentencing, the trial court imposed
a life sentence with the possibility of parole after twenty-five years on the murder counts and a
consecutive twelve-month sentence on one assault count, with the remaining sentences imposed
concurrently. Tr. 1362-63; Resp’t Ex. 103 at 55-73.
Petitioner directly appealed his convictions, and they were affirmed on appeal. Resp’t Exs.
103, 106-07. In 2014, petitioner filed a state court petition for post-conviction relief (PCR), and he
was appointed PCR counsel. Resp’t Ex. 108. In October 2016, PCR counsel submitted a
declaration indicating that he was unable to identify a valid claim for relief and that petitioner had
been deemed incompetent and was unable to assist in identifying a viable claim. Resp’t Ex. 114 at
3-5. The PCR court dismissed the petition, with final judgment entered on March 7, 2017. Resp’t
Ex. 113. Petitioner did not appeal.
1
The transcript page numbers cited in this opinion are those located at the bottom right
corner of the transcripts.
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On February 27, 2017, petitioner sought federal habeas relief in this Court. He was
appointed counsel, who filed amended petitions for relief.
DISCUSSION
Petitioner’s Second Amended Petition alleges four grounds for relief: 1) petitioner was
denied his rights to due process when the indictment failed to provide petitioner with adequate
notice of the specific theory underlying three felony murder charges; 2) trial counsel rendered
ineffective assistance by failing to adequately preserve or develop the factual basis to challenge
the adequacy of the indictment; 3) the trial court denied petitioner his rights to federal due
process by denying a motion for judgment of acquittal on an assault charge; and 4) petitioner’s
convictions violated his federal due process rights because he was mentally incompetent to stand
trial. See Sec. Am. Pet. 2-3 (ECF No. 59). Petitioner also submitted a pro se supplemental claim,
alleging that his trial counsel was ineffective when he “allowed and in fact compelled petitioner
to relinquish his right to a jury trial” while incompetent. Supp. Cl. (ECF No. 57-1).
A. Ground One
In support of Ground One, petitioner argues that the indictment failed to give adequate
notice of the theory underlying the felony Murder charges alleged in Counts Seven, Eight, and
Nine. Those counts alleged that petitioner and his co-defendants killed the victim in the course of
committing the crime of Burglary in the First Degree. Resp’t Ex. 102 at 2-3. Under Oregon law,
a person is guilty of burglary if the person “enters or remains unlawfully in a building with intent
commit a crime therein.” Or. Rev. Stat. § 164.215; see also id. § 164.225 (additional elements
constituting Burglary in the First Degree). Petitioner maintains that Counts Seven, Eight, Nine
were insufficient by failing to allege the specific crime that petitioner and his co-defendants
intended to commit when they forcibly entered or remained unlawfully in the home. Respondent
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argues that this claim was not fairly presented to the Oregon courts and is unexhausted and
procedurally barred.
A state habeas petitioner must exhaust all available state court remedies – either on direct
appeal or through collateral proceedings – before a federal court may consider granting habeas
corpus relief. 28 U.S.C. § 2254(b)(1)(A); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004). To
meet the exhaustion requirement, the petitioner must “fairly present” a federal claim to the
State’s highest court “in order to give the State the opportunity to pass upon and to correct
alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365-66 (1995)
(per curiam) (quotation marks omitted); see also Cooper v. Neven, 641 F.3d 322, 326 (9th Cir.
2011) (“Exhaustion requires the petitioner to ‘fairly present’ his claims to the highest court of the
state.”). If a claim was not fairly presented to the state courts and no state remedies remain
available for the petitioner to do so, the claim is barred from federal review through procedural
default. See Coleman v. Thompson, 501 U.S. 722, 732, 735 n.1 (1991); Sandgathe v. Maass, 314
F.3d 371, 376 (9th Cir. 2002) (“A procedural default may be caused by a failure to exhaust
federal claims in state court.”).
Petitioner raised a claim similar to Ground One on direct appeal. Resp’t Ex. 103.
However, petitioner did not cite the Fourteenth Amendment, the federal constitution, or any
other federal law in support of his argument. Instead, petitioner relied on the Oregon Constitution
and Oregon statutory law. Resp’t Ex. 103 at 40-43. Accordingly, petitioner did not fairly alert the
Oregon appellate courts that he alleged a violation of his federal constitutional rights, and this
claim is now barred by procedural default.
Regardless, petitioner’s claim that he was denied notice of the charges against him is
without merit. In Counts Seven, Eight, and Nine, the indictment alleged that petitioner and his
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codefendants “did unlawfully and knowingly and intentionally commit and attempt to commit
the crime Burglary in the First Degree” and caused the death of victim “in the course of and in
furtherance of” that crime. Resp’t Ex. 102 at 2-3. Granted, Counts, Seven, Eight, and Nine did
not specify the underlying crimes petitioner intended to commit when he unlawfully entered and
remained in the home. However, the counts charging petitioner with Burglary in the First Degree
– Counts Eighteen, Nineteen and Twenty – specified the crimes of Theft, Assault, and Unlawful
Use of a Weapon. Resp’t Ex. 102 at 4-5. Further, prior to the trial, the prosecutor explicitly stated
that the crimes underlying the burglary allegations in Counts Seven, Eight, and Nine were Theft,
Assault, and Unlawful Use of a Weapon. Tr. 288.
Thus, petitioner was on notice that the felony Murder charges in Counts Seven, Eight,
and Nine relied on Burglary in the First Degree and the underlying offenses of Theft, Assault,
and Unlawful Use of a Weapon.
B. Ground Two
In Ground Two, petitioner alleges that trial counsel was ineffective for failing to
adequately raise or preserve the issue of inadequate notice in the indictment. Respondent argues
that petitioner failed to exhaust this claim in the Oregon courts during his PCR proceedings, and
it is now procedurally defaulted. Respondent is correct.
Petitioner did not allege Ground Two in his PCR petition, and he can no longer present
such a claim in a state PCR petition. Resp’t Ex. 108; Or. Rev. Stat. § 138.510(3) (requiring PCR
petitions to be filed within two years of final judgment). Accordingly, the claim is procedurally
defaulted and barred from federal review.
Petitioner nonetheless asserts that the procedural default should be excused because his
PCR counsel effectively abandoned him. See Maples v. Thomas, 565 U.S. 266, 281-83 (2012)
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(procedural default may be excused if an attorney “abandons” a client without notice). I disagree.
PCR counsel reviewed the files associated with petitioner’s case, hired an investigator to assist
him, and obtained a psychologist to evaluate petitioner. Resp’t Ex. 114. The fact that PCR
counsel could not identify a viable PCR claim does not necessarily constitute abandonment in
these circumstances.
Even if petitioner’s default is excused, he does not demonstrate entitlement to habeas
relief on the merits. Petitioner’s trial counsel demurred to the indictment on the basis that Counts
Seven, Eight, and Nine failed to specify the underlying crimes that petitioner intended to commit
while committing burglary. Tr. 289-90. Further, as explained above, Counts Eighteen, Nineteen,
and Twenty and the prosecutor’s explicit statements prior to trial provided petitioner with notice
of the crimes forming the basis of the burglary allegations. Resp’t Ex. 102; Tr. 288. Thus, any
objection based on the sufficiency of the indictment would have been without merit, and
petitioner cannot demonstrate deficient performance by trial counsel or resulting prejudice. See
Strickland v. Washington, 466 U.S. 668, 687 (1984) (a claim of ineffective assistance of counsel
requires a showing that counsel’s “deficient performance prejudiced the defense”).
C. Ground Three
In Ground Three, petitioner alleges that the trial court erred in denying his motion for
judgment of acquittal on Count 11, charging Assault in the Second Degree and involving Julia
McGarry. This charge was based on the theory that petitioner aided and abetted a co-defendant
who repeatedly struck McGarry with a handgun during the robbery. Tr. 1291-95, 1303, 1332.
Petitioner contends that no evidence showed he knew McGarry would be in the home when they
forcibly entered it, and he could not have formed the intent to aid his co-defendant’s eventual
assault of McGarry. Thus, petitioner maintains that insufficient evidence supported his conviction
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on Count 11. Petitioner raised this argument at trial, and he fails to show that the trial court
unreasonably applied federal law in denying petitioner’s motion for judgment of acquittal.
A federal court may not grant a habeas petition regarding any claim “adjudicated on the
merits” in state court, unless the state court ruling “was contrary to, or involved an unreasonable
application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A state court decision is
“contrary to” established federal law if it fails to apply the correct Supreme Court authority, or if
it reaches a different result in a case with facts “materially indistinguishable” from relevant
Supreme Court precedent. Brown v. Payton, 544 U.S. 133, 141 (2005); Williams v. Taylor, 529
U.S. 362, 405-06 (2000). A state court decision is an “unreasonable application” of clearly
established federal law if the state court identifies the correct legal principle but applies it in an
“objectively unreasonable” manner. Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam);
Williams, 529 U.S. at 407-08, 413.
In assessing a claim based on insufficiency of the evidence, “the 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.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). In this case, evidence at trial showed that petitioner
and his co-defendants each possessed weapons: a baseball bat, brass knuckles, and a handgun. Tr.
706-07, 814. Further, before petitioner entered the home, a co-defendant declared that they would
“hit the first guy” they saw and “keep hitting him till they got what they wanted.” Tr. 705.
Construing this evidence in the light most favorable to the State, the trial court reasonably
found that petitioner knew and intended that anyone inside the home would be assaulted in order
to obtain money or drugs, and that sufficient evidence supported petitioner’s conviction on Count
11. Accordingly, petitioner fails to show entitlement to habeas relief on this ground.
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D. Ground Four and Supplemental Pro Se Claim
In Ground Four and in his pro se claim, petitioner alleges that he was mentally incompetent
to stand trial and unable to aid and assist in his defense, and that trial counsel was constitutionally
ineffective by allowing petitioner to relinquish his right to a jury trial while incompetent.
Petitioner did not raise either of these claims on direct appeal or during his PCR
proceedings and he can no longer do so; as a result, they are unexhausted and procedurally
defaulted. Although petitioner suggests that procedural default does not apply to claims of
incompetence, the Ninth Circuit has held otherwise. See Martinez-Villareal v. Lewis, 80 F.3d 1301,
1307 (9th Cir. 1996) (rejecting the petitioner’s argument that procedural default does not apply to
claims concerning competence).
Moreover, the record does not support petitioner’s claim of incompetence. Petitioner cites
no evidence of record suggesting that was he unable to understand the proceedings against him or
assist his lawyer and aid in his defense. Further, the record reflects that neither petitioner’s trial
counsel nor the trial court raised concerns about petitioner’s competency at any time. In fact, when
petitioner waived his right to a trial by jury, the trial court conducted a colloquy to ensure that his
waiver was knowing and voluntary. Tr. 566-68. Petitioner responded appropriately to all of the
trial court’s questions and gave no indication that did not understand the proceedings or the right
he was relinquishing. Instead, petitioner confirmed that he understood his right to a jury trial and
the effect of waiving that right; that he had no concerns about whether the trial court had formed
opinions regarding the case; that he had discussed the issue with his attorney; and that had no other
questions. Tr. 566-68.
Granted, in March 2016, more than four years after petitioner’s trial, an evaluator
concluded that petitioner could not rationally consult with his PCR counsel. Pet. Ex. 1 (ECF No.
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1); Resp’t Ex. 114. However, this evidence does establish that petitioner was incompetent at the
time of his trial in December 2011, particularly when the state court record demonstrates
otherwise.
CONCLUSION
The Second Amended Petition for Writ of Habeas Corpus (ECF No. 59) is DENIED and
this case is DISMISSED. A Certificate of Appealability is denied on the basis that petitioner has
not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
31st
DATED this ______ day of March, 2020.
_________________________
/s/Ann Aiken
Ann Aiken
United States District Judge
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