Torkelson v. Nooth
Filing
40
OPINION AND ORDER. The Petition for Writ of Habeas Corpus 2 is granted as to petitioner's Ground One confrontation claim. In the event this decision is appealed, the court issues a Certificate of Appealability only as to: (1) whether pe titioner fairly presented his Ground One claim to Oregon's state courts; and (2) whether the introduction of Michelle Hartford's out-of-court statements had a substantial and injurious effect upon petitioner's trial with respect to his convictions for Kidnapping in the Second Degree as contained in Count One of the Indictment and Conspiracy to Commit Kidnapping in the Second Degree as contained in Count Six of the Indictment. Any request for a Certificate of Appealability as to any other issue is denied. IT IS SO ORDERED. Signed on 7/23/2012 by Judge Garr M. King. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
JAMES DAVID TORKELSON ,
Case No . 3 : 10 - CV - 1183 - KI
Petitioner ,
v.
MARK NOOTH ,
OPINION AND ORDER
Respondent .
Anthony D. Bornstein , Assistant Federal Public Defender
101 S . W. Main Street , Suite 1700
Portland , Oregon 97204
Attorney for Petitioner
Ellen F . Rosenblum , Attorney General
Andrew D. Hallman , Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem , Oregon 97310
Attorneys for Respondent
1 - OPINION AND ORDER
KING , District Judge .
This 28 U.S . C . § 2254 habeas corpus action comes before the
court on petitioner ' s Ground One confrontation claim and his Ground
Four claim alleging ineffective assistance of counsel .
For the
reasons that follow , petitioner is entitled to habeas corpus relief
as to Ground One .
BACKGROUND
Petitioner ,
Rob
Smith ,
Lindsey Ulrich ,
Gary Brown ,
Sheila
McKenzie , Dimitri Tash , Pam Bailey , and Michelle Hartford were all
members of a white supremacist group .
group decided to go to Beulahland ,
On November 1 ,
stayed
behind
Ulrich .
Id
at
at
the
rival skinhead gang .
Hartford was not feeling well , and she
Causey
614 .
the
a bar in northeast Portland
known to be frequented by the "SHARPS ," a
Trial Transcript , p . 436 .
2001 ,
Street
Hartford
Ulrich ' s 8 - month - old son , Reis .
apartment
spent
the
she
shared
evening
with
babysitting
Id .
When the group arrived at the bar , Bailey asked Ulrich if she
had her
knife and if she was prepared to use it .
Id at
439 .
Ulrich stated that she had her knife and would use it if she had
to .
Id .
Ulrich was excluded from Beulahland because she was underage .
Id .
Brown went outside with Ulrich and asked her if she " had his
back ."
two
Ulrich responded that she did .
SHARP ' s
approached
from
2 - OPINION AND ORDER
down
the
Id .
Shortly thereafter ,
street
and
began
an
altercation with Brown , while a third SHARP approached Ulrich and
began yelling at her .
Id at 443 - 443 .
Ulrich did not pull out her
knife , nor did she attempt to come to Brown ' s defense .
The SHARP ' s
ran away after petitioner , McKenzie , Tash , Smith , and Bailey came
out of the bar and Tash drew his knife .
The
group
ultimately
returned
to
Id at 443 .
an
Street that petitioner shared with Rob Smith .
apartment
on
Id at 452 .
Madison
In light
of Ulrich ' s unwillingness to come to Brown ' s defense at Beulahland ,
petitioner told McKenzie that Ulrich had to be " stripped " of her
skinhead identity , a process which includes removal of the person ' s
skinhead
symbols
and
beating .
Id at 627 - 28 .
which
McKenzie
understood
would
entail
a
Bailey and McKenzie proceeded to severely
assault Ulrich and strip her of her skinhead symbols while the men
watched .
Id
at
464 - 69 ,
631 - 34 .
The
assault
petitioner told the women , " That ' s enough. "
continued
until
Id at 636 - 41 .
Ulrich subsequently asked to be taken to the hospital ,
but
Bailey r efused this request for fear that the police would become
involved .
Id at 481 .
She told Ulrich to remain seated and awake
in a recliner for at least two hours in case she had a concussion .
Id .
Ulrich remained seated for " at least " 90 minutes during which
time Bailey checked on her to make sure she was awake .
Id at 483 .
Brown then drove Ulrich to her apartment on Causey Street .
at 484 - 85 .
Id
Over the next four days , Brown and Hartford deprived
Ulrich of her liberty when they prevented her from :
3 - OPINION AND ORDER
(1)
going to
the hospital ;
( 2 ) meeting her husband for coffee ;
( 3 ) leaving the
apartment except to accompany Brown and Hartford on their errands ;
and ( 4 ) talking on the phone to her mother , except for one brief
call in which she was told what to say and monitored throughout the
conversation .
On
escape
the
afternoon of November
from
Hartford ' s
Id at 487 - 494 .
her
apartment
bedroom .
Id
at
5,
2002 ,
when
Brown
491 ,
505 - 06 ,
Ulrich was
and
able
to
Hartford
were
in
to
the
794 .
She
apartment complex manager ' s office and called 9- 1 - 1 .
Law enforcement personnel
responded to Ulrich ' s
ran
Id at 506 - 08 .
9 - 1 - 1 call and
ultimately arrested petitioner and the others .
On December 17 , 2001 , petitioner was indicted on two counts of
Kidnapping
(1)
the
Second
Degree
on
the
following
theories :
petitioner secretly confined Ulrich in a place where she was
not likely to be found (the Madison apartment ) ; and (2 ) petitioner
took Ulrich from one place to another (from the Madison apartment
to the Causey apartment ) with the intent to substantially interfere
with her personal liberty .
Respondent ' s Exhibit 102 .
Petitioner
was charged with conspiracy to commit these kidnappings , and was
also indicted on one count of Assault in the Second Degree ,
one
count of Robbery in the Second Degree , one count of Coercion , one
count of Conspiracy to Commit Assault in the Second Degree ,
one
..
count of Conspiracy to Commit Robbery in the Second Degree ,
one
count of Assault in the Third Degree , one count of Conspiracy to
4 - OPINION AND ORDER
Commit Assault in the Third Degree ,
one count of Robbery in the
First Degree , and one count of Conspiracy to Commit Robbery in the
First Degree .
Id .
A jury ultimately convicted petitioner on all counts except
Res~ondent ' s
Conspiracy to Commit Second Degree Assault .
10 1.
Exhibit
The trial court imposed the following consecutive sentences
totaling 300 months in prison : 70 - month sentences for each of the
Kidnapping convictions ,
Second Degree ,
Degree . 1
a
70 - month sentence for Assault
in the
and a 90 - month sentence for Robbery in the First
Sentencing Transcript , pp . 29 - 34 .
Petitioner took a direct appeal where he argued , in part , that
the trial court erred when it admitted portions of Hartford ' s out of - court
statements
to
police
Respondent's Exhibit 103 .
trial
court ' s
that
served
denied , 339 Or . 66
incriminate
State v .
Torkelson ,
and the Oregon Supreme
198 Or . App . 533 , rev .
(2005) .
Petitioner next filed for post - conviction relief
Malheur
County
him .
The Oregon Court of Appeals affirmed the
decision without opinion ,
Court denied review .
to
where
Respondent ' s Exhibit 159 .
the
PCR
trial
court
(" PCR" ) in
denied
relief .
The Oregon Court of Appeals affirmed the
lower court without opinion , and the Oregon Supreme Court denied
The conspiracy convictions merged with these offenses .
Sentencing Transcript , p . 3 .
5 - OPINION AND ORDER
review .
Torkelson v . Hill , 239 Or . App . 430 ,
rev . denied 347 Or .
349 (2009)
Petitioner
filed
his
federal
Corpus on September 27 , 2010 .
Grounds Two ,
Three ,
Petition
for
Writ
of
Habeas
On May 4 , 2012 , this court dismissed
Five , Eight , and Nine of the Petition .
The
court also ordered respondent to brief the merits of petitioner ' s
Ground One confrontation claim after concluding that petitioner
fairly presented the claim to Oregon ' s state courts .
The following
two grounds remain for disposition on the merits :
1.
Trial
counsel
was
constitutionally
ineffective for failing to raise a state
law
objection
to
the
exclusion
of
petitioner ' s friends from his criminal
trial ; and
4.
The trial court violated petitioner ' s
Sixth Amendment right to a fair trial
when it admitted portions of Michelle
Hartford ' s out - of - court statements to
police that served to incriminate him .
Petition for Writ of Habeas Corpus
(#2) , pp. 16 - 20.
DISCUSSION
I.
Standard of Review
An
application
for
a
writ
of
habeas
co rpus
s hall
not
be
granted unless adjudication of the claim in state court resulted in
a decision that was : ( 1) " contrary to , or involved an unrea s onable
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
6 - OPINION AND ORDER
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
established
court
decision
precedent
if
the
28 U. S . C .
is
§
2254(e) (1)
" contrary
state
court
contradicts the governing law set forth in
to
clearly
applies
a
rule
that
[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
Williams
at
v.
a
result
529
Taylor ,
different
U. S .
362 ,
from
405 - 06
[that]
(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
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 .
The state court ' s application of clearly established
Id at 410 .
law must be objectively unreasonable .
When
a
state
court
reaches
a
Id at 409 .
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 ,
7 - OPINION AND ORDER
223 F . 3d 976 ,
982
(9 th Cir . 2000).
In such an instance , although the court independently reviews the
record ,
it
still
lends qeference to the
state court ' s
ultimate
Harrington v . Richter , 131 S . Ct . 770 , 784 - 85 (2011 ) ;
decision .
Pirtle v . Morgan , 313 F . 3d 1160 , 1167 (9th Cir . 2002 ) .
II.
Analysis
A.
Ground Four: Ineffective Assistance of Counsel
The court first analyzes petitioner ' s fourth ground for relief
wherein
he
ineffective
alleges
for
that
failing
trial
to
counsel
raise
was
a
law objection to
state
constitutionally
exclusion of petitioner ' s friends from the trial .
the
The PCR trial
court denied this claim without providing any rationale , thus this
court will independently review the record .
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
the
whether
petitioner
Know 1 e s
v.
Supreme
Court
received
Mirza y an c e ,
12 9
has
established
ineffective
S.
Ct .
to
assistance
14 11 ,
1 41 9
determine
of
counsel .
(2 0 0 9 ) .
First ,
petitioner must show that his counsel ' s performance fell b e low an
objective standard of reasonableness .
466 U. S . 668 , 686 - 87 (1984) .
counsel ' s
performance ,
that
conduct
the
Due to the difficulties in evaluating
courts must
falls
within
professional assistance ."
8 - OPINION AND ORDER
Strickland v . Washington ,
indulge a
the
Id at 689 .
" wi de
strong presumption
range
of
rea s onable
Second ,
petitioner must show that his counsel ' s performance
The appropriate test
prejudiced the defense .
whether
the
petitioner
probability that ,
but
can
for
show
" that
counsel ' s
there
for
prejudice is
is
a
unprofessional
reasonable
errors ,
the
Id at 694 .
result of the proceeding would have been different ."
A reasonable probability is one which is sufficient to undermine
confidence
in
Strickland ' s
the
general
outcome
of
standard
review governing 28 U. S . C .
§
the
is
trial .
Id
at
combined with the
696 .
When
standard of
2254 habeas corpus cases , the result
is a " doubly deferential judicial review ."
Mirzayance , 129 S . Ct .
at 1420 .
In the midst of his trial , petitioner personally addressed the
court about the absence of his friends from his trial :
I had s ome friends who were here to show
support for me and they were told they could
not be here because of alleged intimidation
the day before , that someone had tried to
approach [Ulrich] , is the story I heard .
When I asked them
I spoke to the deputies .
what the situatiorr was , and I obviously think
it ' s disrespectful , that just because they ' re
here to show support for us
this is
supposed to be open to the public .
Why are
they being denied the right to be here if they
weren ' t
causing
any
scene
back
there
whatsoever?
Trial Transcript , p. 750 .
The prosecutor expla i ned what happened as follows :
facilities
folks
with
We
supplied
the
information about what our concerns were ,
which are , in part , one of these fellows , Mr .
9 - OPINION AND ORDER
Jason Stevens , who has been identified as a
skinhead to me by a Portland police officer ,
that he attempted to approach Ms . Ulrich while
she was in the courthouse , and I alerted court
facilities
about
that
issue .
I
wanted
additional
security
to
insure
that
my
witnesses in this case who have both testified
about the ramifications of what talking to the
police and testifying against these men will
have for them , I wanted to have additional
security .
The exclusion order was not
made until Thursday , and I think it was , in
part , because it was difficult - - this is my
speculation now -- it was difficult to supply
security and allow my witnesses to move
through the courthouse .
Id at 753 - 54 .
The
trial
judge
noted
that
he
had
not
observed
any
inappropriate behavior by anyone in the courtroom , and that he had
not ordered the exclusion of any spectator .
He further advised
petitioner that it was the Sheriff who was tasked with security
within the building , and that the court was unwilling to interfere
with the Sheriff ' s decision on such a matter .
Id at 754 - 55 .
It is difficult to conclude what specific state law objection
counsel could have made which would have convinced the trial judge
to intervene in the Sheriff ' s
counsel's
decision
was
In addition ,
security decision .
tactically
reasonable
where
he
was
" concerned that [petitioner ' s friends] would be disruptive during
the trial and that any misbehavior on their part could and probably
would
reflect
Respondent ' s
badly
Exhibit
on
my
150 .
client
Given
in
the
the
eyes
of
reported
the
jury ."
intimidation
involving Ulrich and the lack of any real benefit conferred upon
10 - OPINION AND ORDER
petitioner by having his friends
at his trial ,
it was wise for
counsel not to press this issue further .
Because the court concludes that counsel ' s performance did not
fall below an objective standard of reasonableness , the PCR trial
court ' s decision denying relief on this claim was neither contrary
to , nor an unreasonable application of , clearly established federal
law .
B.
Ground One: Right of Confrontation
As discussed in the Background of this Opinion , petitioner was
convicted of kidnapping Ulrich : (1) when he and the others held her
at
the
Madison
apartment
(Count
Two ) ;
and
(2 )
and
when
Brown
transported Ulrich to the Causey Street apartment where she was
held her for a period of four days
Causey kidnapping ,
(Count One) .
To support the
the State introduced out - of - court
statements
from Michelle Hartford to Detective Musgrave tending to show that
Brown and Hartford did not act alone
Causey
apartment . 2
Petitioner
in holding Ulrich at
asserts
that
the
trial
the
court ' s
admission of these statements violated his Sixth Amendment right to
confrontation .
In the absence of a reasoned decision on this issue
from the Oregon state courts , the court independently reviews the
record as to this claim .
2
Hartford ' s statements were deemed admissible under OEC
804(3) (c) because Hartford had invoked her Fifth Amendment right
not to incriminate herself such that she was deemed
"unavailable , " and her statements to the detective tended be
against her penal interest . Trial Transcript , p. 341 .
11 - OPINION AND ORDER
The parties agree that the introduction of Hartford ' s out of - court statements was a violation of the Confrontation Clause , 3
but
disagree
result .
as
to whether petitioner suffered prejudice
In order
for
petitioner to prove he was
as
a
sufficiently
prejudiced by the confrontation violation to warrant relief ,
he
must show that the improperly admitted statements " had substantial
and
injurious
verdict ."
effect
or
influence
in
determining
the
jury ' s
Kotteakos v . United states , 328 U. S . 750 ,
776
(1946) ;
Brecht v . Abramson , 507 U. S . 619 , 637 - 38
(1993) .
The testimony at trial revealed that petitioner spent very
little time at the Causey street apartment during Ulrich ' s four - day
confinement .
When
Brown
and
Ulr i ch
arrived
apartment , Hartford was there taking care of Reis .
were also at the apartment .
Id at
486 .
at
the
Causey
Tash and Bailey
At the time ,
Brown was
involved in an intimate relationship with Hartford and apparently
spent
substantial
time
at
the
Causey apartment .
According
to
Ulrich ' s testimony , Brown was present at the Causey apartment for
most of the four days Ulrich was held captive , and was " only gone
In Crawford v . Washington , the Supreme Court held that in
criminal proceedings , " [t]estimonial statements of witnesses
absent from trial [are admissible] only where the witness is
unavailable , and only where the defendant has had a prior
opportunity to cross - examine ." 541 U. S . 36 , 59 (2004) . It is
undisputed that petitioner never had an opportunity to cross examine Hartford with respect to the statements she made to
Detective Musgrave .
12 - OPINION AND ORDER
for a little bit ,
maybe a day ."
Petit i oner stayed
Id at 493 .
behind at his Madison street apartment with McKenzie and Smith .
Brown and Hartford bore principal responsibility for Ulrich ' s
confinement at the Causey apartment .
When Ulrich ' s mother called ,
Hartford told her that Ulrich was at the store even though Ulrich
was still within to the apartment .
allowed
Ulrich
to
speak
with
Hartford finally
Id at 492 .
her
mother
with
instruction to convince her to stop calling .
the
express
Hartford and Bailey
forced Ulrich to tell her mother that she had spent the day at the
mall and that she was fine.
Ulrich complied , with both Hartford
and Bailey sitting with her .
Id at 492 - 93 .
Ulrich testified that she was unsure how many times petitioner
and McKenzie stopped by the Causey apartment , but thought it to be
" at least twice ."
elaborate
as
to
Trial Transcript , p . 497 .
how petitioner might
deprivation of her liberty .
However , she did not
have
participated
in
the
She d i d not know if petitioner was
there when she was prevented from speaking with her mother , but she
knew was not present when she had the scripted telephone call with
her mother .
was
there
Id at 588 - 89 .
when
she
was
Ulrich could not recall if petitioner
forced
to
tell
her
telephone call that she could not meet him . 4
4
husband
during
Id.
Understandably , i t was difficult for Ulrich to remember
details in the wake of the assault , and she testified that her
" memory is really foggy the entire time " and that the day after
13 - OPINION AND ORDER
a
According to McKenzie (who t e stified fo r the State pursuant to
a plea agreement) ,
she only stopped by the Causey apartment once
for less than 30 minutes while Ulrich was held there , making no
McKenzie stated
mention as to whether petitione r was with her .
that during this brief visit she was not aware of the fact that
Id at 645 .
Ulrich was not allowed to leave the apartment .
The next and final time McKenzie saw Ulrich was at Billygan 's
restaurant on Sunday night .
McKenzie and petitioner met Ulrich and
Hartford there for dinner , and McKenzie testified that there was no
indication that Ulrich was not there of her own free will .
64 6 .
According to Ulrich ,
it was Hartford ' s
Id at
idea to go out to
dinner because she " wanted to take [petitioner] and McKenzie out to
Billygan ' s so she took me along too ."
in his car seat .
Ulrich
Billygan ' s ,
Id at 504 .
Rei s carne along
Id at 505 .
testified
that
when
she
went
to
the
restroom
at
she was not followed even though the restroom was a
good distance away from the table she shared with the others . Id at
567 .
According to McKenzie , petitioner ' s attitude toward Ulrich
was that " [h]e didn ' t want to be anywhere near her ."
Id at 646 .
When asked if petitioner ever ta l ked about why , McKenzie testified
" [b]ecause she should be gone , he couldn ' t stand the sight of her ."
Id at 647 .
Hartford and Ulrich went back to the Causey apartment
her assault , she could only see out of one eye , " [a]ll the colors
were messed up ," and all she could hear was buzzing . Id at 487 88 .
14 - OPINION AND ORDER
Petitioner and McKenzie
after dinner .
left
in their own car ,
presumably to return to petitioner ' s Madison apartment .
The next day , Ulrich escaped from her apartment .
Id at 592 .
Petitioner
and McKenzie showed up at the Causey apartment shortly thereafter .
According to McKenzie , petitioner " asked where [Ulrich] was .
kind
of
a,
hey ,
what ' s
going
on ."
Id
at
further
I didn ' t notice
testified that it " wasn ' t like a big deal to me .
if nobody was freaking out ."
She
649 .
Just
Id at 650 .
After discovering Ulrich
was gone , nobody went searching for her .
Instead , the group " hung
out
for
a
little
while "
and
even
when
McKenzie testif i ed that there " [d]idn ' t
cause for concern ."
the
police
showed
up ,
seem like there was any
Id .
According to Detective Musgrave , however ,
Hartford told him
that " she and Brown had helped hold Ulrich there at the apartment ,"
indicating that they were part of a broader plan .
Id at 794 .
is logical to infer from this testimony that petitioner ,
ordered
the
confinement .
casual
assault
on
Ulrich ,
also
ordered
her
It
having
subsequent
Contrary to McKenzie ' s recollection of petitioner ' s
attitude
toward
Ulrich ' s
absence ,
Hartford
" described
[petitioner] as being agitated and demanding when asking where Ms .
Ulrich was ."
Id at 795 .
Thus , she made it clear to the jury that
petitioner had a strict expectation that Ulrich would be confined
at the Causey apartment .
15 - OPINION AND ORDER
This
record
reveals
Hartford ' s statements ,
that
without
the
introduction
of
the prosecution ' s case against petitioner
based upon the Causey kidnapping was very weak .
The testimony at
trial seldom placed him at the Causey apartment , and even when it
did ,
there
was
no
testimony that
petitioner ordered Brown and
Hartford to hold Ulrich captive or that he otherwise assisted in
the kidnapping .
The only testimony which suggested petitioner ' s
active participation in that crime came in the form of Hartford ' s
out - of - court statements introduced through Detective Musgrave.
Respondent points out that petitioner told McKenzie that if
anyone talked about the assault on Ulrich , " they' 11 disappear. "
at 644 .
Id
According to respondent , this statement shows petitioner ' s
guilt as to the Causey kidnapping .
While such a statement clearly
constitutes a threat , it does not suggest that petitioner ordered
Ulrich
transferred
indefinitely .
to
the
Causey
Petitioner ' s
apartment
statement
is
and
confined
more
there
accurately
characterized as a death threat , not an intention to simply kidnap
anyone who confessed to the crimes committed against Ulrich .
Respondent also takes the position that petitioner was liable
for the Causey kidnapping because it was a natural and probable
consequence of the assault .
The court disagrees .
It might be
natural to kidnap a person in order to assault her , but it does not
logically
follow
that
a
person will
16 - OPINION AND ORDER
typically hold an assault
victim
against
her
will
several
days
after
the
assault
has
concluded .
Respondent also argues that Hartford ' s
statements were not
prejudicial because they presented petitioner with an opportunity
to
impeach
McKenzie ,
a
key
prosecution
witness .
Hartford ' s
statements addressed only the Causey kidnapping , a subject on which
McKenzie had testified in a manner that was helpful to petitioner .
As previously noted , McKenzie testified that petitioner was almost
never at the Causey street apartment , she witnessed no deprivation
of Ulrich ' s liberty at the Causey apartment or at the Billygan ' s
restaurant ,
and that petitioner did not
seem concerned when he
discovered that Ulrich was not in the apartment .
testimony with Hartford ' s statements ,
Impeaching this
statements which tended to
incriminate petitioner on the Causey kidnapping , was not desirable .
Following an independent review of the record ,
it is clear
that Hartford ' s statements to Detective Musgrave were crucial to
petitioner ' s conviction as to the Causey kidnapping .
Hartford ' s
statements
and
were
not
cumulative
of
other
testimony ,
their
introduction had a substantial and injurious effect on petitioner ' s
trial because the prosecution ' s case as to Count One was otherwise
very weak . Accordingly , the Oregon state court decisions denying
relief on petitioner ' s confrontation claim constituted unreasonable
applications of clearly established federal law , and habeas corpus
relief is warranted .
17 - OPINION AND ORDER
The trial court ' s violation of petitioner ' s rights under the
Confrontation Clause affect only his convictions arising out of the
Causey Kidnapping : Kidnapping in the Second Degree (Count One) and
Conspiracy to Commit Kidnapping in the Second Degree (Count Six ) .
If the State does not retry petitioner on these charges within 90
days , respondent shall recalculate petitioner ' s sentence to exclude
his convictions for Kidnapping in the Second Degree (Count One) and
Conspiracy to Commit Kidnapping in the Second Degree
(Count Six)
which this court invalidates through this Opinion .
CONCLUSION
For the reasons identified above ,
Habeas
Corpus
(#2)
is
confrontation claim .
these
charges
within
granted
as
the Petition for Writ of
to
petitioner ' s
Ground
One
If the State does not retry petitioner on
90
days ,
respondent
shall
recalculate
petitioner ' s sentence to exclude his convictions for Kidnapping in
the Second Degree (Count One) and Conspiracy to Commit Kidnapping
in the
Second
Degree
(Count
Six)
which
this
court
invalidates
through this Opinion .
In the event this decision is appealed ,
Certificate of Appealability only as to :
(1)
the court issues a
whether petitioner
fairly presented his Ground One claim to Oregon ' s state courts ; and
(2)
whether the introduction of Michelle Hartford ' s out - of - court
statements had a substantial and injurious effect upon petitioner ' s
trial with respect to his convictions for Kidnapping in the Second
18 - OPINION AND ORDER
Degree as contained in Count One of the Indictment and Conspiracy
to Commit Kidnapping in the Second Degree as contained in Count Six
of the Indictment .
Any request for a Certificate of Appealability
as to any other issue is denied .
IT IS SO ORDERED ~/~
DATED this
A
<>
~of
July , 2012.
Garr M. King
United States Distric
19 - OPINION AND ORDER
Judge
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