McShane v. Howton

Filing 63

OPINION AND ORDER. The Petition for Writ of Habeas Corpus 3 is DENIED. The court GRANTS a Certificate of Appealability only as to petitioner's claim in Ground One that counsel failed to explain that Attempted Aggravated Murder required that she have the specific intent to kill the victim. With respect to the remainder of petitioner's claims, 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). IT IS SO ORDERED. Signed on 2/20/2013 by Judge Michael W. Mosman. (gw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
JULIETTE MARIE McSHANE,
Civil No. 03:08-cv-1443-MO
Petitioner,
v.
NANCY HOWTON,
OPINION AND ORDER
Respondent.
Kristina Hellman
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
John R. Kroger
Attorney General
Andrew Hallman
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent
1 - OPINION AND ORDER

MOSMAN, District Judge.
This 28 U.S.C. § 2254 habeas corpus case comes before the
court for a decision on the merits of petitioner's Ground One claim
of ineffective assistance of counsel.

Because petitioner was not

the victim of ineffective assistance of counsel, the Petition for
Writ of Habeas Corpus (#3) is denied.
BACKGROUND
On January 31, 2005, petitioner was indicted on charges of
Assault in the Second Degree, Burglary in the Second Degree, two
counts of Kidnapping in the Second Degree, Robbery in the First
Degree, Theft in the First Degree, Unauthorized Use of a Vehicle,
and Attempted Aggravated Murder.

Respondent's Exhibit 102.

The

charges arose from an incident wherein petitioner and her codefendant, Nina Deverell, approached the residence of the 82-year
female old victim, Leta Bishop, with the intent to commit a
burglary.

Petitioner and Deverell forced Bishop into her home,

sprayed her with pepper spray, placed her in a chair, and taped her
hands and her mouth.
Bishop was able to remove the tape from her mouth and asked
the intruders what they wanted.

In response, one of the women hit

Bishop in the head with a wrench.

The assailants then pushed

Bishop into a bathroom where they tied her up with tape and
telephone cords and pushed her into the bathtub.

Bishop was able

to free herself from her restraints and peek out the bathroom door,

2 - OPINION AND ORDER

prompting

petitioner

extinguisher.

and

Deverell

to

spray

her

with

a

fire

At that point, Bishop locked the door and did not

leave until a friend showed up at her home.

Respondent's Exhibit

117.
Petitioner entered a guilty plea to one count each of Assault
in the Second Degree, Burglary in the First Degree, Kidnapping in
the Second Degree, and Robbery in the First Degree.

Respondent's

Exhibit 103. In exchange, the State dropped the remaining charges,
and the trial court imposed a stipulated sentence totaling 250
months in prison.

Respondent's Exhibit 105.

Petitioner did not take a direct appeal, but she did file for
post-conviction relief ("PCR") in Washington County where the PCR
trial court denied relief on all of her claims.
Exhibits 122-123.

Respondent's

The Oregon Court of Appeals summarily affirmed

the PCR trial court's decision, and the Oregon Supreme Court denied
review.

Respondent's Exhibits 127, 129.

In Ground One of her Petition for Writ of Habeas Corpus,
petitioner

alleges

assistance

of

necessary

that

trial

counsel

information

possible defenses.

she

about

suffered
when

her

from

the

counsel failed
pending

ineffective
to

criminal

give her

charges

and

This, she claims, resulted in a guilty plea

that was not knowing, intelligent, and voluntary.

Respondent has

now waived all procedural defenses she previously raised, and asks
the court to deny relief on the Petition because the PCR trial

3 - OPINION AND ORDER

court's decision was neither contrary to, nor an unreasonable
application of, clearly established federal law.
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.
A

state

court

decision

28 U.S.C. § 2254(e)(1).
is

"contrary

to

.

.

.

clearly

established precedent if the state court 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 from a decision of [the Supreme] Court
and

nevertheless

precedent."

arrives

at

a

result

different

from

[that]

Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

Under the "unreasonable application" clause, a federal habeas court
may grant

relief

"if the

state

court

identifies

the

correct

governing legal principle from [the Supreme Court's] decisions but
4 - OPINION AND ORDER

unreasonably applies that principle to the facts of the prisoner's
case."

Id at 413.

The "unreasonable application" clause requires

the state court decision to be more than incorrect or erroneous.
Id at 410.

The state court's application of clearly established

law must be objectively unreasonable.

Id at 409.

When a state court reaches a decision on the merits but
provides no reasoning to support its conclusion, the federal habeas
court must conduct an independent review of the record to determine
whether the state court clearly erred in its application of Supreme
Court law.

Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).

In such an instance, although the court independently reviews the
record, it still lends deference to the state court's ultimate
decision.

Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011);

Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
II.

Analysis
Because no Supreme Court precedent is directly on point that

corresponds to the facts of this case, the court uses the general
two-part test established by the Supreme Court to determine whether
petitioner received ineffective assistance of counsel.
Mirzayance, 556 U.S. 111, 122-23 (2009).
show

that

his

counsel's

performance

standard of reasonableness.
668,

686-87

(1984).

Due

Knowles v.

First, petitioner must

fell

below

an

objective

Strickland v. Washington, 466 U.S.
to

the

difficulties

in

evaluating

counsel's performance, courts must indulge a strong presumption
5 - OPINION AND ORDER

that the

conduct

falls within

professional assistance."

the

"wide range

of reasonable

Id at 689.

Second, petitioner must show that his counsel's performance
prejudiced the defense.
whether the

petitioner

The appropriate test for prejudice is
can

show

"that

there

is

a

reasonable

probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different."

Id at 694.

In proving prejudice, a petitioner who has pled guilty or no
contest to an offense must demonstrate that there is a reasonable
probability that, but for counsel's errors, he would not have
entered such a plea and would have insisted on going to trial.
Hill v. Lockhart, 474 U.S. 52, 59 (1985).

When Strickland's

general standard is combined with the standard of review governing
28 U.S.C. § 2254 habeas corpus cases, the result is a "doubly
deferential judicial review."

Mirzayance, 129 S.Ct. at 1420.

At issue in this case are petitioner's contentions that her
trial attorney failed to: (1) explain that the crime of Attempted
Aggravated Murder required that she personally attempt to kill the
victim; (2) advise her that several of the charges, including two
of the charges dismissed pursuant to the plea agreement,1 would
have no practical impact upon her sentence; and (3) inform her that
she had viable arguments to make against the Kidnapping charges.

1

The non-Measure 11 charges the State dismissed were Theft
in the First Degree and Unauthorized Use of a Motor Vehicle.
6 - OPINION AND ORDER

A.

Personal Participation in Attempted Aggravated Murder
According

to

petitioner,

had

she

known

that

Attempted

Aggravated Murder in Oregon requires the defendant to personally
attempt to kill the victim, she would not have pled guilty.

She

also asserts that her appointed attorney consistently advised her
that the State would be unable to prove intent, and thus would be
unable to convict her of Attempted Aggravated Murder.

She claims

that counsel suddenly changed his advice on this issue after the
prosecution made its last plea offer.

She maintains that counsel

advised her that if the State thought it could prove intent, then
it likely could.
The PCR trial court issued a lengthy opinion in this case, and
it specifically addressed these contentions.

It concluded that

counsel "was justified in advising petitioner that there was a
reasonable possibility of conviction on this charge." Respondent's
Exhibit 122, p. 3.

The PCR trial court reasoned as follows:

Apparently, the state's theory was that the
fire
extinguisher
contents
could
have
suffocated
the
victim.
The
contents
extinguish a fire by depriving it of oxygen
and could have done the same to the victim.
However there is nothing in the record to
indicate that either petitioner or her
accomplice knew that.
I infer that trial
counsel took a position similar to the above
up until sometime during the settlement
conference.
Nevertheless,
that
the
conduct
occurred
created a risk that a jury would infer that
petitioner and Ms. Deverell had the requisite
intent.
In
addition,
there
is
the
7 - OPINION AND ORDER

inconvenient fact that Ms. Deverell brought
mace to the incident. A jury could infer that
Ms. Deverell brought mace because she expected
to find the residence occupied and intended to
subdue the occupant.
Certainly, there was enough evidence to defeat
a motion for judgment of acquittal on this
charge. Given the nature of the incident (two
methamphetamine addicts rob, beat and tie up
an 82 year old woman), there was a substantial
risk that a jury could find an intent to kill
even if the defendant and her accomplice did
not actually intend to kill the victim.
(Contrary to petitioner's argument at 30 of
her Trial Memorandum, even if such a verdict
involved jurors acting contrary to their
oaths, it is unclear how this fact finding
could be contested on appeal.)
With all these facts, [counsel] was justified
in advising petitioner that she stood a chance
of being convicted of attempted aggravated
murder.
Id.
The PCR trial court also concluded that petitioner could have
been convicted of Attempted Murder under Oregon law as an aider and
abettor, a theory involving less culpability than the personal
involvement required for an Attempted Aggravated Murder conviction.
Id. Where a conviction for Attempted Aggravated Murder would carry
a mandatory minimum sentence of 120 months, an Attempted Murder
conviction, while lesser, would still carry a substantial 90-month
mandatory minimum sentence.
There is almost no evidence on which a rational jury could
rely to conclude that petitioner specifically intended to murder
the victim in this case.

Consequently, she did not run a high risk

8 - OPINION AND ORDER

of an Attempted Aggravated Murder conviction.

However, the PCR

trial court's concerns cannot be discounted: where a pair of
methamphetamine addicts use pepper spray, a wrench, and a fire
extinguisher to assault an elderly woman, a jury could potentially
infer an intent to kill, at least on the part of her co-defendant.
It is also telling that where petitioner claimed to be surprised by
the violence exhibited by her co-defendant, she never took the
opportunity

to

leave

or

otherwise

decline

to

assist

her

co-

defendant in assaulting and restraining Bishop. Where petitioner's
presence at the crime scene and her participation in the crimes at
issue were obvious, she faced a reasonable possibility that a jury
could convict her of Attempted Murder on an aider and abettor
theory.

The Plea Agreement obviated this concern.

In addition, as noted above, petitioner's Plea Agreement
resulted in a stipulated 250-month sentence under which she is
eligible for early release during the last 20 months of that
sentence.

Respondent's Exhibit 102.

As the PCR trial court

determined, even without the possibility of a conviction for either
Attempted Aggravated Murder or Attempted Murder, petitioner faced
a

reasonably

possible

sentence

Respondent's Exhibit 122, p. 5.

of

300

months

in

In this scenario, the PCR trial

court reasoned:
Petitioner's
minimum
reasonably
possible
sentence was 230 months and the maximum
reasonably possible sentence was 300 months.
There was a significant but lesser chance that
9 - OPINION AND ORDER

prison.

she could be convicted of attempted aggravated
murder or attempted murder and receive 390 to
420 months.
There was also a small chance
that she could receive a sentence of less than
230 months.
Trial counsel reasonably assessed and advised
petitioner of the maximums, minimums and
probables.
Petitioner made a rational
decision based on this advice. She accepted a
250 month sentence, the last 20 months of
which would be free of Ballot Measure 11
restrictions.
The plea bargain included no
conviction of or punishment for attempted
aggravated murder or attempted murder.
Based
on
the
above,
I
conclude
that
[counsel's] representation of [petitioner] was
adequate.
I must therefore deny post
conviction relief.
Id.
Petitioner

faced

a

good

deal

of

uncertainty

as

to

her

potential sentence. Her sentencing exposure was between 230 months
and 420 months. While a conviction for Attempted Aggravated Murder
was a reach, she faced a serious risk of a conviction for Attempted
Murder.
either

In such a scenario, her likely sentence would have been
320

months

(if

the

Kidnapping

sentences

were

run

concurrently) or 390 months (if the court ran the Kidnapping
sentences

consecutively).

It

is

difficult

to

conclude

that

petitioner would have insisted on going to trial based upon all of
this information when her plea deal virtually mimicked her best
possible scenario.2

Accordingly, upon an independent review of the

2

While petitioner believes she had multiple mitigating
factors in her favor, this is a highly speculative argument which
does not materially affect the analysis in this case.
10 - OPINION AND ORDER

record,3 the PCR trial court's decision denying relief is neither
contrary

to,

nor

an

unreasonable

application

of,

clearly

established federal law.
B.

Non-Measure 11 Charges Dismissed

Petitioner next argues that counsel should have advised her
that the two non-Measure 11 sentences that the State agreed to
dismiss as part of the plea bargain would have played no practical
role in her prison sentence.

Specifically, because of the way

Oregon sentencing works, the mandatory minimum sentences to which
petitioner

is

subject

operate

to

preclude

the

consecutive sentences on the non-Measure 11 crimes.

imposition
See State v.

Davis, 315 Or 484, 492, 847 P.2d 834, 839 (1993) (maximum sentence
cannot exceed four times the presumptive sentence of the primary
offense).

Petitioner asserts that counsel's failure to advise her

about this fell below an objective standard of reasonableness.
If the dismissal of the non-Measure 11 charges had been the
State's only concession, this would be a serious issue.
petitioner

received

two

significant

benefits

from

the

But
Plea

Agreement: (1) there was no chance she would be convicted of either
Attempted Aggravated Murder or Attempted Murder; and (2) one of the
Kidnapping convictions was dismissed altogether, thus she ran no
risk of serving consecutive sentences for the two Kidnapping

3

This court conducts an independent review of the record
because the PCR trial court did not specifically address the
prejudice prong of Strickland.
11 - OPINION AND ORDER

charges.

In light of these benefits, the fact that the dismissal

of two Measure 11 crimes was of no real value to petitioner was so
minor as to not reasonably warrant an explanation by counsel.
Accordingly, counsel's performance did not fall below an objective
standard of reasonableness as alleged by petitioner.
C.

Potential Arguments Regarding Kidnapping

Petitioner also alleges that counsel failed to inform her that
there were

arguments

to

be

made

which

would

have

foreclosed

convictions on the Kidnapping charges, or at least prevented the
court from imposing consecutive sentences on those charges.
PCR trial court specifically rejected these arguments:
Regarding
the
kidnapping
charges,
petitioner cites State v. Wolleat, 338 Or 469
(2005) for the proposition that a strong
argument could have been made that petitioner
was likely to avoid any kidnapping conviction.
Further, petitioner cites State v. Barnum, 333
Or. 297, 303 (2002) abrogated on other
grounds, State v. White, 341 Or 624 (2006) for
the proposition that there was insufficient
pause between the two incidents to support
more than one kidnapping conviction, in any
event. Petitioner argues that [counsel] was
inadequate for failing to appreciate the
effects of Wolleat and Barnum for not
explaining the cases to petitioner.
The arguments are flawed. Wolleat does
establish that incidental movement during the
commission
of
another
crime
does
not
constitute kidnapping.
However, that case
does not address the facts in this case. In
this case, petitioner and her accomplice . . .
on two separate occasions, in two separate
places (albeit in the same residence) took or
restrained the victim to a particular spot and
tied her up. Trial counsel was justified in
12 - OPINION AND ORDER

The

concluding that the tying up constituted
sufficient evidence for a jury to conclude
that [petitioner] and her accomplice intended
to interfere substantially with their victim's
freedom. The Wolleat opinion notes that such
an
intent
would
support
a
kidnapping
conviction. 338 Or at 478.
Additionally, trial counsel justifiably
feared that the evidence could support a
conclusion that there were two discrete acts
of kidnapping, (once tying the victim up
outside the bathroom and a second time, tying
her up inside the bathroom) which could result
in two convictions that could be sentenced
consecutively. A jury could have found that
it was only after the victim partially freed
herself from the first kidnapping (she removed
the gag from her mouth and asked the women
what they wanted) while the women were
ransacking the house, that the women executed
the second kidnapping, by locking and tying up
the victim in the bathroom.
The PCR trial court's determination that state law allowed for
separate Kidnapping convictions based upon the specific facts of
this case is a state court determination of state law.

Such

determinations cannot be challenged in a federal habeas corpus
action.4

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[W]e

reemphasize that it is not the province of a federal habeas court
to reexamine state-court determinations on state-law questions.");
Bains v. Cambra, 204 F.3d 964, 972 (9th Cir.) ("a federal court is

4

To the extent petitioner views the PCR trial court's
findings as an analysis of a federal sufficiency of the evidence
claim, the court does not view it in this manner. A state court's
determination as to what constitutes an incidental movement or a
sufficient pause under state kidnapping law must be accepted as
true by a federal habeas court.
13 - OPINION AND ORDER

bound by the state court's interpretations of state law."), cert.
denied, 531 U.S. 1037 (2000), citing Wainwright v. Goode, 464 U.S.
78, 84 (1983).

This court finds it dubious that petitioner would

have rejected the State's plea offer and insisted on going to trial
had counsel advised her that arguments of little merit could be
made on her behalf.

As a result, the court

concludes that

counsel's performance did not fall below an objective standard of
reasonableness.
Twenty-eight U.S.C. § 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, 131 S.Ct. 770, 786 (2011). None of petitioner's arguments
in support of her Ground One claim of ineffective assistance of
counsel meet this standard.

Accordingly, upon an independent

review of the record, the PCR trial court's decision denying relief
in

this

case

is

neither

contrary

to,

nor

an

unreasonable

application of, clearly established federal law.
CONCLUSION
For the reasons identified above, the Petition for Writ of
Habeas Corpus (#3) is DENIED.

The court GRANTS a Certificate of

Appealability only as to petitioner's claim in Ground One that
counsel failed to explain that Attempted Aggravated Murder required
that she have the specific intent to kill the victim.

14 - OPINION AND ORDER

With respect

to the remainder of petitioner's claims, the court declines to
issue a Certificate of Appealability on the basis that petitioner
has

not

made

a

substantial

showing

of

the

denial

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

20th

day of February, 2013.
/s/ Michael W. Mosman
Michael W. Mosman
United States District Judge

15 - OPINION AND ORDER

of

a