Blocker v. Persson
Filing
40
OPINION AND ORDER. The Petition for Writ of Habeas Corpus 2 is denied. 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). Signed on 8/28/2013 by Judge Michael H. Simon. (gw)
,.
·-
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
TYRONE BLOCKER,
Case No. 6 :11- cv- 01096 -S I
Petitioner,
v.
ROB PERSSON,
OPINION AND ORDER
Respondent .
Corinne J. Lai
No. 2 Westlake Executive Suites
14523 Westlake Drive
Lake Oswego , OR 97035
Attorney for Petitioner
Elle n F. Rosenblum, Attorney General
Nick M. Kallstrom, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent
1 - OPINION AND ORDER
SIMON , District Judge .
Petitioner brings
u. s . c.
2254
§
convictions
this
habeas
challenging
for
Felon
in
the
corpus
legality
Possession
of
a
case
of
pursuant
his
to
28
state - court
Weapon ,
Deli very
of
For the reasons that follow ,
Ma r ijuana , and Criminal Forfeiture .
the Petition for Writ of Habeas Corpus (#2) is denied .
· BACKGROUND
On
February
28 ,
2008 ,
the
Salem
Police
Department
was
contacted regarding a domestic disturbance involving petitioner and
his girlfriend , Shalimar Reese .
Reese
in her apartment
police
interviewed
for
Reese
Petitioner had been living with
approximately two months ,
at
her
parents'
home ,
she
and when
gave
them
permission to search the apartment.
Police
officers
traveled
to
Reese ' s
apartment
to
contact
petitioner and , after waiting for between 20 and 25 minutes for him
to
answer
the
door ,
they
as ked
for
his
apartment to ensure no one else was inside .
" Well ,
I don ' t
Respondent ' s
li ve here , so I can ' t
Exhibit
103 ,
p.
26 .
consent
to
check
the
Petitioner responded ,
give you consent to enter . "
When
Officer
Gould
asked
petitioner whether any portion of the residence was his , petitioner
told him that he had items in the downstairs closet , but nothing
upstairs belonged to him.
As a result , Officer Gould searched the
upstairs of the apartment and avoided the downstairs closet .
28.
2 - OPINION AND ORDER
Id at
Once upstairs, Officer Gould found a men's shoe box under the
bed
which
residue.
contained
baggies,
a
scale,
and
marijuana
He also discovered a small locked safe in the closet with
a key broken off in its lock .
safe,
digital
When he contacted Reese about the
Petitioner told
she claimed it was petitioner's property .
Id at 52.
another officer that the safe did not belong to him.
At that point , Officer Gould adv ised petitioner of his Miranda
rights and asked petitioner about the safe and the items upstairs.
Petitioner
petitioner
had
denied
locksmith to open it.
a
· going
firearm,
medications,
owning
the
be
to
I want to talk to a lawyer. "
questions
found
I'm
"If
responded,
Id at 32.
the
safe ,
asked
police
these
Because
called
a
Once the locksmith opened the safe, police
marijuana
and evidence
packaging
material,
indicating that
the
prescription
safe belonged to
petitioner .
Despite petitioner having invoked his right to counsel,
the
police again approached him and asked if he was willing to turn
over his keys and wallet .
further
police
Petitioner consented and , in response to
questioning ,
contents belonged to him.
admitted
that
the
wallet
and
its
When the police searched petitioner ' s
wallet, they found $4,000 . 00 in cash in a Wells Fargo envelope with
a receipt showing he had withdrawn the money shortly before the
police arrived at the apartment.
Police then discovered that one
of petitioner's keys fit the lock to the safe, prompting petitioner
3 - OPINION AND ORDER
to assert
th~t
Reese had given it to him along with a key to the
Id at 36 .
apartment.
Petitioner filed a pretrial motion to suppress in which he
argued that the contents of the safe should not be introduced at
trial because Reese did not own the safe and could not consent to
its search,
and he,
as the owner ,
did not give his consent to
search the safe.
He also argued that Miranda prohibited the police
from
any
asking
him
questions
after
he
invoked
his
right
to
counsel , thus any incriminating evidence that resulted should be
excluded.
The State contended that simply handing over his wallet and
keys did not amount to verbal statements by petitioner that were
subject
to
Miranda
protections.
It
did,
however ,
following concession:
The State concedes that there were some
conversations here that frankly, again, were
all self-serving.
I wou l d think if nothing
else, the Defendant might want me to adrni t
them.
But I
can see that there were
statements made post-Miranda after he had
essentially asserted his right to a lawyer,
but those statements are completely confined
to, ''That is not my safe.
I only have keys
because Shalimar gave them to me to fit a
mailbox" -- I 'm paraphrasing, but those are
the statements.
Again,
completely selfserving.
Those are the statements that we
would be talking about post-Miranda. And the
State concedes that he essentially asserted
his right to a lawyer at that point.
I could
not
offer
those.
Again,
self-serving
statements; not really sure why the Defendant
4 - OPINION AND ORDER
make
the
wouldn ' t want them in, but that ' s
from a trial strategy standpoint .
his
call
Id at 93 ..
The trial court made the following ruling :
Defendant asserts that he was "pressured" into
making statements and providing items to the
police (such as his wallet and keys) after he
had received his Miranda warnings and after he
had invoked his right to remain silent and
speak to an attorney. The state concedes that
the defendant did make a few statements after
he "invoked" but these statements were either
self - serving or exculpatory.
The
state
further argues that the voluntary "handing
over" to the police of his wallet and keys
does not constitute a "statement " which might
be in violation [of] Miranda .
I agree with
the state.
The defendant ' s actions
(as
opposed to statements) which he may have made
after he invoked are not protected by Miranda .
Respondent's Exhibit 114.
When the case proceeded to trial , the State did not seek to
put petitioner ' s post - Miranda statements into evidence .
defense
counsel
cross - examined Officer
Vanmeter
and
But when
asked
him
whether he had taken petitioner ' s wallet or whether petitioner had
voluntarily relinquished it , Vanmeter responded :
He was handcuffed and I asked him if I could as I was patting down the jacket , I asked - I
felt something in his coat and said, "What is
it " and he said it's his wallet . And I said,
"Can I look at it? "
He said , "Yeah , go
ahead ."
Trial Transcript , p. 280 .
Defense counsel also asked Officer Vanmeter whether he had
taken anything out of the wallet ,
5 - OP I NI ON AND ORDER
and Officer Vanmeter replied ,
I asked him if I could - as I looked inside ,
"Yes.
could look inside the case envelope , and he said ,
care . '
281.
I asked if I
'Yeah,
I don ' t
And at that point I saw several $100 and $50 bills . "
In this way ,
these post - Miranda
Id at
statements pertaining to
petitioner's ownership of the wallet and its contents were elicited
at trial.
At the conclusion of his trial , the jury convicted petitioner
of Felon in Possession of a
Firearm,
Marijuana, and criminal forfeiture.
two counts of Deli very of
As a result, the trial court
sentenced him to 58 months in prison .
Petitioner took a
direct
Respondent ' s Exhibit 101 .
appeal ,
but
the
Oregon Court
of
Appeals affirmed the trial court without opinion, and the Oregon
Supreme Court denied review.
248
P . 3d 451,
rev.
denied ,
State v.
350 Or .
Blocker ,
423,
240 Or . App . 464 ,
256 P . 3d 1097
(2011) .
Petitioner filed a second direct appeal which the Oregon Court of
Appeals dismissed on the State ' s motion .
111 - 113.
Respondent's Exhibits
Petitioner did not seek further direct review , nor did he
file for post - conviction relief .
Petitioner filed this 28 U. S . C. § 2254 habeas corpus action on
September 9 , 2011.
After withdrawing Ground One , petitioner argues
a single cla i m: whether his convictions were obtained in violation
of the privilege against self - incrimination.
Respondent asks the
court to deny relief on the Petition because petitioner ' s Miranda
6 - OPINION AND ORDER
claim
was
properly
denied
in
a
state
court
decision
that
is
not
be
ent itled to deference .
DISCUSSION
I.
Standard of Review
An
application
for
a
writ
of
habeas
corpus
shall
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
established
court
decision
precedent
if
the
28 U. S . C .
is
§
" contrary
state
court
2254(e) (1)
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
precedent ."
arrives
Williams
v.
at
a
Taylor ,
result
529
di ff erent
U. S .
362 ,
from
405 - 06
[that]
(2000) .
Under the " unreasonable applicat i on " clause , a federal habeas court
may
grant
relief
" if
the
state
court
identifies
the
correct
governing legal principle from [the Supreme Court ' s] dec1sions but
7 - OPIN I ON 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 .
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 re view 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
decision .
Harrington v .
Pirtle v. Morgan,
Richter,
131 S . Ct . 770,
ultimate
784-85
313 F.3d 1160 , 1167 (9th Cir . 2002) .
(2011) ;
Because the
state courts in petitioner ' s case did not specifically address the
post - Miranda statements petitioner places at
issue in this case ,
the court conducts an independent review of the record .
II.
Analysis
Petitioner alleges that Officer Vanmeter improperly testified
to the statements petitioner made following the invocation of his
right
to
counsel.
He
specifically
argues
that
the
questions
regarding owner ship of the wallet and the cash within it yielded
incriminating information in violation of Miranda .
8 - OPINION AND ORDER
Once petitioner asked for counsel , the officers in this case
were obligated to cease their questioning .
U.S . 436 , 473 - 74 (1966 ) .
Miranda v. Arizona , 384
The prosecuting attorney recognized that
the statements the officers subsequently elicited from petitioner
were constitutionally problematic , and agreed that she wou l d not
However ,
bring them out during the trial .
Background
of
ownership
of
this
the
Opinion ,
wallet
petitioner ' s
and
its
as discussed in the
statements
contents
were
regarding
nevertheless
introduced at trial during defense counsel's cro ss - examination of
Officer Vanmeter .
The court is unaware of any clearly established federal law
finding a Miranda violation where a petitioner ' s own attorney is
responsible
for
introducing the
preclude the State
indicated that
statements which Miranda would
Indeed ,
from using.
in order for
the
Supreme Court has
a Miranda violation to occur ,
the
protected statements must be introduced during the State's case in
chief .
United
States
(plurality opinion ) .
v.
Patane,
542
U. S .
63 0 ,
640 - 41
(2004 )
Although petitioner believes that Officer
Vanmeter could have kept his answers shor t er , the style in which
Vanmeter
answered
questions
during
defense-counsel ' s
cross-
examination is not unusual , and it does not arise to the level of
a
constitutional
violation .
Accordingly ,
upon
an
independent
review of the record , the state-court decision denying relief is
9 - OPINION AND ORDER
neither contrary to , nor an unreasonable application of , clearly
established federal law.
CONCLUSION
For the
Habeas
rea~ons
Corpus
( #2)
identified above ,
is
denied .
The
the Petition for Writ of
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 .
IT IS SO
§
2253(c )( 2) .
ORDEREf~
DATED this
~
day of August , 2013.
United States District Judge
10 - OPINION AND ORDER
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