Gildersleeve v. Rosenblum et al

Filing 38

OPINION AND ORDER: The Petition for Writ of Habeas Corpus 2 is denied. The court does, however, issue a Certificate of Appealability on petitioner's argued claim of ineffective assistance of counsel. Signed on 1/5/2017 by Judge Michael W. Mosman. (kms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DAVID ERNEST GILDERSLEEVE,
Case No. 3:15-cv-01178-MO
Petitioner,
OPINION AND ORDER

v.
ELLEN ROSENBLUM, et al.,
Respondents.
Anthony D. Bornstein
Assistant Federal Public Def ender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
Frederick M. Boss, Deputy Attorney General
Samuel A. Kubernick, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent

1 - OPINION AND ORDER

MOSMAN, District Judge.
Petitioner brings
U.S.C.

2254

§

this

challenging

convictions from 2001.

habeas
the

corpus

case

legality

of

pursuant

four

to

28

state-court

For the reasons that follow, the Petition

for Writ of Habeas Corpus (#2) is denied.
BACKGROUND

On February 22, 2001, Mary Finzel was driving her BMW when
petitioner approached her with a firearm,
the vehicle, and stole her car.

instructed her to exit

Officer Pippen responded to the

incident, ultimately colliding with the BMW.

A second patrol car

stopped in front of the BMW to prevent petitioner from driving
away,

and petitioner exited the vehicle with a

waistband.

handgun in his

He turned toward the police with the pistol raised,

Officer Pippen fired two shots,
fatal injury.

one of which inflicted a

Respondent's Exhibit 103, p. 11.

non-

Law Enforcement

personnel took petitioner into custody, and the Multnomah County
Grand Jury charged him with Attempted Aggravated Murder,
Degree Robbery with a Firearm,

Felon in Possession of a Firearm,

and Unauthorized Use of a Vehicle.
At

trial,

petitioner

First

Respondent's Exhibit 102.

claimed

that

another

person

stole

Finzel's car, but got out of the car, left the door open and the
keys

in

it,

and

made

his

way

to

a

nearby

telephone

booth.

Petitioner claimed he happened upon the situation by chance and
decided to steal the vehicle, having no knowledge of the earlier
carjacking.

He claimed to have discovered a gun in the car that

the perpetrator of the carjacking left behind, and that although
he

took

the

firearm,

he

2 - OPINION AND ORDER

neither

attempted

to

shoot

Officer

Pippen,

nor brandished the firearm.

Trial Transcript Vol.

IV,

pp. 64-77.
The jury convicted petitioner of all charges,
11-1 verdict as to Attempted Aggravated Murder.
Vol.

VI,

pp.

10-11.

including an

Trial Transcript

The trial court found petitioner to be a

Dangerous Of fender under Oregon law and sentenced him to 30 years
in prison.

Respondent's Exhibits 101, pp. 39-44.

Petitioner took a direct appeal where he succeeded on the
portion of his
sentence.
(2005

challenge pertaining

remanded

the

sentenced

case

As a result,
for

petitioner

a

Dangerous

Of fender

the Oregon Court of Appeals

resentencing,

to

the

202 Or. App. 215, 121 P.3d 663

State v. Gildersleeve,

(per curiam).

to

total

1

of

and
130

the

trial

months

in

court
prison.

Petitioner appealed the 130-month sentence, but the Oregon Court
of

Appeals

decision,

affirmed

the

trial

court's

decision

in

and the Oregon Supreme Court denied review.

a

written
State v.

Gildersleeve, 230 Or. App. 348, 215 P.3d 117 (2009), rev. denied,

347 Or. 290, 219 P.3d 592 (2009).
Petitioner next filed for post-conviction relief
Marion County.
trial

attorney

("PCR")

in

Relevant to this proceeding, he claimed that his
was

ineffective

eyewitness Kathy Krech.

concerning

the

testimony

of

At trial, Krech testified that she saw a

dark object in petitioner's hand, and saw him "motion up towards
the police officer

it was

shocking to me that he would

raise his hand up in their direction,

being anything."

Trial

1
Petitioner petitioned the Oregon Supreme Court for review of the portion
of the Oregon Court of Appeals' decision denying relief, but the Oregon
Supreme Court denied review.
339 Or. 610, 127 P.3d 651 (2005).

3 - OPINION AND ORDER

Transcript Vol.
immediate

III,

p.

aftermath

of

civilian eyewitness,

132.
the

According to petitioner,
incident,

Krech

Catherine Malone,

was running away and they shot him?"

had

"My god,

asked

in the
another

did you see he

Although counsel attempted

to elicit Krech's statement from Malone as impeachment evidence,
the

trial

court

did not

allow it where

counsel

had not

asked Krech whether she had made the statement to Malone.
164-69.

As a result,

first
Id at

during petitioner's PCR action he alleged

that trial counsel "failed to recall Kathy Krech and Catherine
Malone in order to lay the foundation for introduction of Krech's
statement to Malone."
The

PCR

court

Respondent's Exhibit 115, p. 6.
concluded

that

al though

counsel

failed

to

provide professional skill and judgment with respect to Krech's
contemporaneous
[errors]

would

statement,
have

"petitioner has

had

the

probability

affecting the outcome of the case."
pp. 21-23.
failed

to

not proved that any
of

substantially

Respondent's Exhibit 161,

The PCR court also found petitioner was not credible,
sustain

contemporaneous

his

statement

burden

attributed

turned the tide in this case."
Petitioner

of

appealed,

proof,
to

Krech

and

that

the

would

"not

have

Id at 21.

but

the

Oregon

Court

of

Appeals

affirmed the PCR court's decision without opinion, and the Oregon
Supreme Court denied review.

Gildersleeve v. State, 265 Or. App.

477, 334 P.3d 992, rev. denied, 356 Or. 516, 340 P.3d 47 (2014).
Petitioner filed this 28 U.S.C.
June

26,

2015

in

which

he

§

raises

2254 habeas corpus case on
12

grounds

for

relief.

Respondent asks the court to deny relief on the Petition because
4 - OPINION AND ORDER

petitioner

failed

to

fairly

present

many

of

his

claims

to

Oregon's state courts, and the state courts reasonably denied the
claims he did properly raise.
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)

unreasonable application of,

"contrary

to,

or

involved

an

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."
§

2254(d).

correct,

A

court's

the

fact

burden

of

are

presumed

presumption of correctness by clear and convincing evidence.

28

A

bears

of

the

§

petitioner

findings

rebutting

U.S.C.

and

state

28 U.S.C.

2254 (e) (1).
state

court

decision

established precedent

if

is

the

"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

from

a

decision

of

[the

Supreme]

Court and nevertheless arrives at a result different from [that]
precedent."
Under

the

Williams

v.

"unreasonable

Taylor,

529 U.S.

application"

362,

clause,

a

405-06

(2000).

federal

habeas

court may grant relief "if the state court identifies the correct
governing legal principle

from

[the

but

that

principle

unreasonably

applies

5 - OPINION AND ORDER

Supreme Court's]
to

the

decisions

facts

of

the

prisoner's
clause

case."

requires

incorrect
§

or

2254 (d)

Id

the

at

413.

state

The

court

erroneous.

decision

at

Id

"unreasonable application"

410.

to

be

more

Twenty-eight

than
U.S.C.

"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
precedents.

It goes no

[the Supreme]

farther."

Harrington

raises

grounds

v.

Court's
562

Richter,

U.S. 86, 102 (2011).
II.

Unargued Claims

Al though
Petition,

petitioner

12

for

relief

in

his

he chooses to present argument on only whether trial

counsel was ineffective with respect to his handling of Krech's
contemporaneous statement.

Petitioner does not argue the merits

of his remaining claims, nor does he address any of respondent's
arguments
denied.

as

to

why

relief

on

the

unargued

claims

should

be

As such, petitioner has not carried his burden of proof

with respect to these unargued claims.
279 F.3d 825, 835 (9th Cir. 2002)

See

Silva

v.

Woodford,

(petitioner bears the burden of

proving his claims).
III. Failure to Introduce Krech's Contemporaneous Statement

Petitioner asserts
Krech' s

prior,

that

trial

contemporaneous

counsel
statement

failed to
that

introduce

would

seriously undermined the credibility of her trial testimony.

have
He

argues that the PCR court's decision is objectively unreasonable
where

the

prejudicial

impact

of

counsel's

error

is

severe,

especially in the context of a non-unanimous guilty determination
on the Attempted Aggravated Murder charge.
6 - OPINION AND ORDER

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

whether petitioner
Knowles

v.

by

received

Mirzayance,

the

Supreme

ineffective

556

U.S.

111,

Court

to

assistance

determine
counsel.

(2009).

122-23

of

First,

petitioner must show that his counsel's performance fell below an
objective standard of reasonableness.
466

U.S.

668,

686-87

(1984).

Due

evaluating counsel's performance,
presumption

that

the

conduct

Strickland v. Washington,

to

the

difficulties

courts must

falls

reasonable professional assistance."

within

indulge a

the

"wide

in

strong

range

of

Id at 689.

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

the

petitioner

probability that,

but

The appropriate test for prejudice is
can
for

show

"that

counsel's

there

is

a

reasonable

unprofessional errors,

result of the proceeding would have been different."

the

Id at 694.

A reasonable probability is one which is sufficient to undermine
confidence

in

the

Strickland's general

outcome

of

the

trial.

Id

at

696.

When

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,

556 U.S.

at 122.
As noted above, the PCR court concluded counsel's failure to
introduce Krech's out-of-court statement amounted to a "failure
to provide professional skill and judgment," but that the failure
"had no impact on the case."
In

reaching

this

Respondent's Exhibit 161,

decision,

7 - OPINION AND ORDER

the

PCR

concluded

p.

23.

that:

(1) petitioner's
that

there

trial;"

theory

was

and

no

( 2)

at

chance

there

trial
that

was

whatever you make of this

was
[it]

"so

completely

was

"plenty of

going

other

to

ludicrous

prevail

at

testimony besides

'My God' statement that petitioner was

turning with the gun drawn in the officer's direction when he was
shot."

Respondent's Exhibit 161, pp. 21-22.

Petitioner contends that irrespective of whether his theory
at trial was credible,

the jury could still find him not guilty

of Attempted Aggravated Murder.

While this is true, it does not

alter

introduced

the

fact

petitioner,

that

gun drawn,

confrontation.
effect,

but

the

Not

State

ample

only

did

Officer

Darcey

Pippen

testified

testify

that

petitioner lift up his shirt with his left hand,

Trial

Transcript

that

turned toward Officer Pippen during the

Elizabeth

belt of his pants,

evidence

grab his gun,
Vol.

III,

she

to

this

witnessed

reach into the

and turn to face the police.

pp.

consistent with Darcey's testimony,

83-84.

Catherine

Malone,

witnessed petitioner pull a

gun out of his waistband with his right hand.

Id at 145-46.

As noted in the Background of this Opinion, Krech testified
that she saw petitioner point his gun at the police.
132.
you

Al though petitioner claims she told Malone,
see

he

was

running

away

testified to this effect,

and

they

shot

Id at 131-

"My God,

him,"

Krech

did

never

and Malone could not be sure that it

was Krech who made this statement to her.

Id at 155.

Even where the jury's decision on the Attempted Aggravated
Murder charge was non-unanimous, the eyewitnesses were consistent
among their recollections that petitioner drew his gun and turned
8 - OPINION AND ORDER

toward the police.

None of them, including Krech, testified that

petitioner was running away when Officer Pippen shot him.

This

record supports the PCR court's decision that counsel's omission
did not

result

in prejudice.

At

a minimum,

this court cannot

conclude that the PCR court's decision was so unreasonable that
fairminded jurists could not agree with it.

Accordingly, the PCR

court's

nor

decision

is

neither

contrary

to,

an

unreasonable

application of, clearly established federal law.
CONCLUSION

For the reasons identified above,
Habeas Corpus
Certificate

of

(#2)

is denied.

Appealability

the Petition for Writ of

The court does,
on

petitioner's

however,
argued

issue a
claim

ineffective assistance of counsel.
IT IS SO ORDERED.

c-~

DATED this ----2..__ day of January, 2016.

NM;l~

United States District Judge

9 - OPINION AND ORDER

of