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)

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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

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