Simington v. Premo
Filing
32
OPINION AND ORDER: The Amended Petition for Writ of Habeas Corpus 16 should be denied. The court does, however, issue a Certificate of Appealability in this case as to petitioner's due process and ineffective assistance of counsel claims. (See 25 page opinion for more information) Signed on 11/5/15 by Judge Michael H. Simon. (dsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CARL LEE SIMINGTON,
Case No. 6:14-cv-01252-SI
Petitioner,
v.
MARK NOOTH,
OPINION AND ORDER
Respondent.
Nell Brown, Assistant Federal Public Def ender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
Ellen F. Rosenblum, 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
SIMON, District Judge.
Petitioner brings
U.S.C.
2254
§
this
challenging
convictions for Robbery.
habeas
the
corpus
legality
case pursuant
of
his
to
28
state-court
For the reasons that follow, the Amended
Petition for Writ of Habeas Corpus (#16) is denied.
BACKGROUND
In the summer of 2003, petitioner and his accomplice, Stefanie
Souders,
stole
cigarettes
and cash
from three different
Pantry convenience stores in Portland,
Plaid
as well as several food
items from a Whole Foods grocery store.
As a result, the Multnomah
County Grand Jury indicted petitioner and Souders on three counts
of Robbery in the Second Degree and one count of Theft in the
Second Degree.
Respondent's Exhibit 102.
Souders entered a guilty
plea and received a probationary sentence.
Respondent's Exhibit
104, p. 33.
Petitioner waived his right to a jury trial and proceeded to
a court trial in front of Judge Sidney Galton.
State's
case,
petitioner's
attorney
moved
At the close of the
for
a
judgment
of
acquittal on all counts, and Judge Galton granted the motion to the
extent that he:
( 1) dismissed the charge of Theft in the Second
Degree;
and (2) reduced the Whole Foods charge from Robbery III to
Robbery
III.
Id
at
129-143.
Judge
Galton
ultimately
found
petitioner guilty of the remaining charges and sentenced him to
consecutive 70-month sentences
2 - OPINION AND ORDER
for each of the two Robbery II
convictions, and a consecutive 16-month sentence for the Robbery
III
conviction
for
a
total
prison
sentence
of
156
months.
Respondent's Exhibit 105, pp. 259-260.
Petitioner took a
direct appeal,
but the Oregon Court of
Appeals affirmed the trial court's decision without opinion, and
the Oregon Supreme Court denied review.
State v. Simington, 215
Or. App. 703, 170 P.3d 1137, rev. denied, 344 Or. 110, 178 P.3d 249
(2008).
Petitioner filed a
successive direct appeal which the
Oregon Court of Appeals dismissed on its own motion.
Respondent's
Exhibits 112-113.
Petitioner next filed for post-conviction relief ("PCRn) in
Marion
County
Respondent's
where
Exhibits
the
PCR
144-146.
trial
The
court
Oregon
denied
Court
of
relief.
Appeals
affirmed the lower court's decision without opinion, and the Oregon
Supreme Court denied review.
Simington v. Williams, 261 Or. App.
584, 326 P.3d 78, rev. denied, 355 Or. 567, 329 P.3d 770 (2014).
Petitioner filed this 28 U.S.C.
§
2254 habeas corpus case on
August 4, 2014, and amended his Petition on December 22, 2014 to
state the following grounds for relief:
Ground
One:
The
trial
court
violated
Petitioner's
constitutional
right
to
an
impartial tribunal, guaranteed by the Fifth,
Sixth, and Fourteenth Amendments to the United
States Constitution, when the trial court
presided
over
Petitioner' s
case
despite
debilitating mental health issues.
Ground
Two:
The
trial
court
violated
Petitioner's constitutional rights, guaranteed
3 - OPINION AND ORDER
by the Fifth and Fourteenth Amendments to the
United States Constitution, when it admitted
certain
evidence,
including
evidence
of
Petitioner's violent history and the in-court
identification of Petitioner by Bruce A.
Knight.
Ground Three: The trial court violated the
Petitioner's constitutional rights, guaranteed
by the Fifth and Fourteenth Amendments to the
United States Constitution, violated when he
was shackled at trial.
Ground
Four:
Petitioner
was
denied
the
effective assistance of counsel as guaranteed
by the Sixth and Fourteenth Amendments to the
United States Constitution when trial counsel
failed in the following particulars:
A. to effectively engage in plea negotiations,
and to effectively advise Petitioner regarding
the State's plea offer;
B. to effectively advise Petitioner about his
right to jury trial, rendering Petitioner's
decision to waive his right to trial by jury
not knowing, voluntary, and intelligent;
C. to seek recusal of the trial judge or to
object as necessary in order to safeguard
Petitioner's right to an impartial tribunal;
D.
to
pursue
and
preserve
appropriate
objections to inadmissible evidence, or to
seek a mistrial in connection with the trial
court' s admission of inadmissible evidence,
including, but not limited to, challenging
hearsay evidence, the in-court identification
of Petitioner by Bruce A. Knight, and evidence
about Petitioner's violent history;
E. to object to the shackling of Petitioner at
trial;
F. to pursue and effectively argue appropriate
motions, including motions to suppress and for
judgment of acquittal; and
4 - OPINION AND ORDER
G.
to
pursue
and
preserve
appropriate
objections to Petitioner's sentence.
Petitioner was
denied
the
effective assistance of counsel as guaranteed
by the Sixth and Fourteenth Amendments to the
United States Constitution when appellate
counsel failed to pursue meritorious issues on
appeal.
Ground
Five:
Six:
The
trial
court
violated
Petitioner's constitutional rights, guaranteed
by the Fifth and Fourteenth Amendments to the
United States Constitution, in denying the
motion for a judgment of acquittal.
Ground
Seven:
The
trial
court
violated
Petitioner's constitutional rights, guaranteed
by the Fifth, Sixth and Fourteenth Amendments,
when it imposed sentence.
Ground
Respondent
asks
Petition because:
presented
his
the
court
to
deny
relief
on
the
Amended
(1) it is questionable whether petitioner fairly
Ground
One
claim
to
Oregon's
state
courts;
(2) petitioner fails to carry his burden of proof on the claims he
does not support with argument; and (3)
the state courts denied
relief in decisions that were not objectively unreasonable,
which
are
entitled
to
deference
from
this
court.
and
Because
petitioner's Ground One claim fails on its merits for the reasons
discussed below, the court declines to decide the exhaustion issue.
See
28 U.S.C.
§
2254(b) (2)
("An application for a writ of habeas
corpus may be denied on the merits, notwithstanding the failure of
the applicant to exhaust the remedies available in the courts of
the state.").
Ill
5 - OPINION AND ORDER
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
established 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
different
529 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
6 - OPINION AND ORDER
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.
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,
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.
Pirtle v. Morgan,
II.
Richter,
131 S.Ct. 770,
784-85
(2011);
313 F.3d 1160, 1167 (9th Cir. 2002).
Unargued Claims
In his Amended Petition, petitioner raises seven grounds for
relief.
In his supporting memorandum, however, petitioner chooses
to argue only Grounds One, Four(b), Four(D), Four(F), Five and Six.
Petitioner does not argue the merits of his remaining claims, nor
does he address any of respondent's arguments as to why relief on
these claims should be denied.
As such, petitioner has not carried
his burden of proof with respect to these unargued claims.
Silva v.
Woodford,
279 F.3d 825,
835 (9th Cir. 2002)
bears the burden of proving his claims).
briefed the merits of these claims,
7 - OPINION AND ORDER
See
(petitioner
Even if petitioner had
the court has examined them
based upon the existing record and determined that they do not
entitle him to relief.
III. Ground One: Fitness to Preside
Petitioner claims
Judge Galton
violated his
right
to
due
process when he presided over petitioner's trial while suffering
from
debilitating
mental
issues.
He
asserts
that
there
were
instances during his trial when Judge Galton did not know what the
attorneys were doing, engaged in a concerning "back and forth" with
defense counsel as to whether he had used the word "chippy," and
imposed a harsh sentence on petitioner based upon his unsupported
belief that petitioner had acted violently toward Souders.
Because
the Oregon Court of Appeals did not issue a written opinion as to
this
claim,
this
court
conducts
an
independent
review
of
the
record.
"Due process implies a tribunal both impartial and mentally
competent to afford a hearing."
167, 176 (1912).
Jordan v. Massachusetts, 225 U.S.
Petitioner alleged during his direct appeal that
Judge Galton was not mentally competent,
and submitted several
letters from Judge Galton's physicians detailing his mental health
issues.
Respondent's Exhibit 107.
The letters express concern
over Judge Galton's short-term memory, volatility, concentration,
suicidal
ideation,
and difficulty making decisions.
letters also reveal that in 2005,
The
Judge Galton was disabled and
unable to perform the duties of his office.
8 - OPINION AND ORDER
Id.
Id.
However,
the
earliest of the letters is dated March 2, 2005,
letters
indicate
preside over a
that
Judge
Galton
trial prior to 2005.
was
unable
and none of the
to
effectively
Where petitioner's trial
occurred in January of 2014, and Judge Galton imposed his sentence
in May of 2004, the letters are of limited value to petitioner's
attempt to establish that Judge Galton was unfit to preside over
those proceedings.
Petitioner also believes that two instances of confusion on
the part of Judge Galton demonstrate his lack of capacity to hold
the trial.
In the first,
the attorneys were discussing how to
present the evidence, and whether to take each criminal incident in
turn.
During this discussion, the prosecutor erroneously referred
to the
incidents as
separate cases,
prompting Judge Galton to
declare that there were not multiple cases and, "You guys scare me
because I keep thinking you may be trying something about which I
don't know.
That's fine.
fine by me."
reference
However you guys want to do it is okay,
Respondent's Exhibit 104, p. 59.
to multiple
cases by the
Given the erroneous
prosecutor,
Judge
Gal ton's
statements were reasonable.
Petitioner
also
showing confusion
on
points
Judge
to
another
Gal ton's
portion
part
where
of
the
the
record
prosecutor
elicited testimony from a police officer that one of the robbery
victims provided a license plate number for petitioner's car that
obviously did not correspond to petitioner's car (described as a
9 - OPINION AND ORDER
"smaller import-type"), but instead purportedly belonged to a 1950
pickup truck:
Officer:
Yeah, listed plate returns to a '50
Chevrolet pickup.
So a policeman
would just say 777 AMR similar.
Something's screwed up someplace.
DA:
And so something screwed up, either
- you're saying either the clerk got
it wrong or something else might be
screwed up?
Officer:
Well, not that the clerk got it
wrong, but there's -- some of the - a number
Defense:
Objection.
Officer:
-- a number or something's out of place.
Defense:
Judge, he's speculating as to what's
going on here.
Court:
I take it that he's just explaining
his answer and I'll allow it.
DA:
No further questions.
Court:
Okay.
And at some point,
you
gentlemen are going to have to tell
Officer Jensen what you all are
I
don't
really
doing
because
and
I
doubt
he
understand
understands. I don't know if he was
on any of the other incidents.
DA:
He was.
Court:
Okay.
DA:
But --
Court:
Apparently they're doing something
that you and I don't exactly know
about, but we'll find out as to when
you're going to be back, if you're
10 - OPINION AND ORDER
going to be back after [defense
counsel) asks you questions about
this incident.
I just want the
witness to know what's going on
because I don't really understand.
Respondent's Exhibit 104, pp. 62-63.
While Judge Gal ton demonstrates confusion as to where this
line
of
questioning
reasonable
where:
is
(1)
headed,
the
his
license
material issue at the trial;
confusion
number
was
appears
not,
to
itself,
be
a
(2) the fact that there might have
been a clerical error was not germane to the charges petitioner
faced;
and
(3)
the
prosecutor
abruptly
ended
his
line
of
questioning without achieving any apparent goal.
Petitioner
also
contends
that
Judge
Galton
was
overly
argumentative when he engaged in a brief exchange with defense
counsel as to whether he had ever referred to the various robberies
as "chippy."
The court immediately disagreed:
Chippy, that is not a word I use.
Court:
Not this.
Defense:
Well, I thought that I heard that word.
if not, I'm in error.
Court:
It sure doesn't sound like me.
Defense:
But you were -
Court:
But under any circumstances, it' s certainly
smaller and far less serious than what we're
discussing today.
Defense:
And you were describing them in that fashion.
And perhaps I misspoke.
Court:
Chippy?
11 - OPINION AND ORDER
And
Defense:
To Mr. Simington.
Court:
Boy, it sure doesn't sound like me.
Defense:
Perhaps -
Court:
Oh, well.
Respondent's Exhibit 105, p. 231.
This portion of the transcript does not reveal that Judge
Galton's behavior was concerning in any way.
Indeed, Judge Galton
appeared not to dwell on the issue, simply indicating that it did
not sound like him,
saying "Oh,
well," and moving on.
Nothing
about this exchange shows Judge Galton was unfit to proceed over
the trial.
While petitioner takes issue with the rationale underlying his
sentence where the prosecutor opined that Souders was a victim of
abuse by many pimps including petitioner, 1 it does not appear that
these comments
constituted any basis
for
his
sentence.
Judge
Galton specifically identified the bases for the sentence he was
imposing:
The sentences that will follow are premised in
part upon your persistent involvement in
similar offenses, that you were on probation
or parole at the time of your offenses, that
you
have
had
persistent,
unrelenting
misconduct while under supervision, and that
prison can be a basis for departure, each
separately and in concert.
Respondent's Exhibit 105, p. 259.
Respondent's Exhibit 105, pp. 252-25
12 - OPINION AND ORDER
The court has conducted an independent review of the record as
to petitioner's due process claim and finds that petitioner failed
to prove Judge Galton was
judicially unfit to preside over the
trial. As a result, the state court decision denying relief on this
claim is neither contrary to, nor an unreasonable application of,
clearly established federal law.
IV.
Ground Four(B): Counsel's Failure to Advise Regarding Bench
Trial
Petitioner also claims that his appointed attorney performed
ineffectively
when
he
failed
to
inform him of
Judge
Gal ton's
reputation before advising him to waive his right to a jury trial
in
favor
of
unknowing,
a
bench
trial,
unintelligent,
petitioner faults
thereby
and
counsel for
rendering
involuntary.
that
decision
Specifically,
failing to advise him that Judge
Galton was routinely recused by counsel litigating both civil and
criminal
matters
in
Multnomah
County
for
lack
of
appropriate
judicial temperament.
To prevail on a claim of ineffective assistance of counsel,
petitioner must
first
below an objective
Washington,
show that his counsel's performance fell
standard
of
reasonableness.
466 U.S. 668, 686-87 (1984).
Strickland v.
Due to the difficulties
in evaluating counsel's performance, courts must indulge a strong
presumption
that
the
conduct
falls
reasonable professional assistance.''
13 - OPINION AND ORDER
within
the
Id at 689.
"wide
range
of
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
reasonable
unprofessional 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
the
outcome
Strickland's general
of
the
trial.
at
Id
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."
Knowles v. Mirzayance,
556 U.S. at 122.
Petitioner testified during his PCR deposition that counsel
never disclosed any previous problems he may have had with Judge
Galton,
and
Galton
from
never
the
discussed
case.
the
possibility of
Respondent's
Exhibit
removing
135,
pp.
Judge
19-20.
Counsel submitted an affidavit wherein he did not deny that he had
never discussed this issue with petitioner, but instead offered the
following:
3.
I did not have negative experiences with
Judge Galton.
It may be that some, or
many, lawyers would affidavit him.
Such
was not indicated in my experiences with
him before Mr. Simington's trial.
* * * * *
8.
As noted above,
experiences with
of my previous
Galton and being
14 - OPINION AND ORDER
I did not have negative
Judge Galton.
In light
experiences with Judge
aware of his mannerisms
and preferences, I saw no evidence that
Judge Galton lacked judicial fitness
during Mr. Simington's case.
Respondent's Exhibit 139, p. 2.
The PCR trial court resolved this claim in a letter decision:
While raised only by petitioner's pro se
amended petition, the issue of whether counsel
should have objected to the assignment of
Judge Galton,
is adequately addressed by
counsel's affidavit that he did not have any
problem with Judge Galton as a trial judge,
and petitioner's failure to point to any
evidence that he would have achieved a better
outcome had any other judge heard the trial.
Respondent's Exhibit 144, p. 8.
Petitioner claims that the PCR trial court's decision does not
address the central issue of whether a criminal defendant would
want to know if his trial judge has a reputation for having mental
health issues and being vindictive before consenting to a bench
trial.
Where trial counsel never had a bad experience with Judge
Gal ton,
and where
he was
aware
of the
Judge's mannerisms
and
preferences, his conduct did not fall below an objective standard
of reasonableness when he failed to advise petitioner that other
attorneys preferred to seek Judge Galton's recusal.
Even assuming counsel
should have so informed petitioner,
petitioner fails to establish that the outcome of the proceeding
would have been different had he proceeded to a bench trial with
another judge or to a jury trial.
Appx. 701, 703 (9th Cir. 2010)
15 - OPINION AND ORDER
See Osborn v. Belleque, 385 Fed.
(where a jury was not more likely to
acquit
than
the
trial
judge,
petitioner
cannot
succeed
on
ineffective assistance of counsel claim for failure to adequately
advise as to the waiver).
For these reasons, the PCR trial court's
factual findings are not unreasonable, and its conclusion does not
involve an unreasonable application of clearly established federal
law.
V.
Ground Four(D): Failure to Object to Inadmissible Evidence
Bruce Knight was a Plaid Pantry clerk working on June 25, 2003
when petitioner committed one of his robberies.
When a detective
visited Knight at his home in the aftermath of the robbery to
present him with a photo montage for purposes of identifying the
perpetrator, "one of them looked rather like the fellow who robbed
[him), but [he) wasn't positive that that was
from a
picture." Respondent's Exhibit 104,
nevertheless
able
to
provide a
petitioner during the trial:
fairly
it's hard to tell
p.
98.
Knight was
detailed description of
"[H)e was tall and thin.
I would
estimate at least six foot two, slightly receding hairline, narrow
build, no -- no prominent scars or tattoos."
Id at 95.
when
he
the
prosecutor
asked
Knight
perpetrator in the courtroom,
Id.
whether
However,
recognized
the
Knight replied "I'm not certain."
He explained, "If the gentleman in the blue shirt would stand
up, I would get a better idea."
Id.
Defense counsel objected, stating that such a procedure would
be "terribly prejudicial" to his client.
16 - OPINION AND ORDER
Id at 100.
However, upon
further reflection he advised the court,
"I want to have just a
brief recess to consider some strategic matters involving this.
may be able to simplify this."
Id at 103.
I
Defense counsel and the
prosecutor held an off-the-record discussion after which defense
counsel withdrew his objection without explanation.
Id at 104.
The court had petitioner stand, and Knight was able to positively
identify
robbery. 2
him as
the
perpetrator
of
the
June
25
Plaid
Pantry
Id at 104-105.
In counsel's Affidavit he prepared for petitioner's PCR trial,
he stated that identification was not an issue in the case as "the
videos of the robberies were quite good."
Respondent's Exhibit
139, p. 2.
"Regarding the identification of Mr. Simington by Bruce
Knight
court,
in
I
initially
objected
to
the
identification
procedure, but later withdrew my objection but cannot recall why."
Id.
Petitioner claims there was no strategic reason for counsel to
drop his objection, and that identification was an issue insofar
as:
(1) Knight was unable to identify him from the photo montage;
(2)
Knight was initially unable to identify him in court;
and
(3) contrary to counsel's recollection, Knight was of the opinion
that
the
video
from
the
Plaid
Pantry
was
"very
grainy."
Respondent's Exhibit 104, p. 107.
2
Defense counsel would later put petitioner on the stand,
where petitioner admitted being present at the Plaid Pantry at
the time of the robbery.
Respondent's Exhibit 104, p. 148.
17 - OPINION AND ORDER
Petitioner
assumes
that
requiring
him
to
stand
up
for
identification purposes during his trial was unlawful, but he fails
to provide any support for such a proposition.
To the contrary,
the case law supports the proposition that a court may require a
defendant to stand for the purpose of identification.
U.S.
v.
Zammiello, 432 F.2d 72 (9th Cir. 1970); State v. Cram, 176 Or. 577,
582-583, 160 P.2d 283 (1945).
Because counsel did not withdraw a
meritorious objection, upon an independent review of the record,
the PCR trial court's decision denying this claim did not involve
an unreasonable application of clearly established federal law.
VI.
Grounds Four(F), Five & Six: Sufficiency of the Evidence
Petitioner argues Grounds Four(F), Five, and Six together as
these claims are all based upon the alleged sufficiency of the
evidence against him.
Specifically, he alleges:
1.
Counsel
failed
to
challenge
the
applicability of the Robbery III charge
involving Whole Foods (Count One) where
he only aided and abetted Souders during
the aftermath of a theft, not a robbery;
2.
Trial counsel erred when he did not seek
a motion for a judgment of acquittal on
the basis that there was insufficient
evidence showing petitioner used or
threatened the use of force as to the
June 20 (Count Two) and June 25 (Count
Three) Plaid Pantry robberies;
3.
While trial counsel moved for a judgment
of acquittal as to Counts Two and Three
as to whether petitioner was knowingly
aided by another person who was actually
present,
appellate
counsel
was
18 - OPINION AND ORDER
ineffective for failing
claim on appeal; and
4.
to pursue this
Trial counsel's argument that Count Three
was improperly pled as plaintiff used
physical force on Knight, as opposed to
threatened the use of force, should have
prevailed.
Instead,
petitioner was
convicted
based
upon
insufficient
evidence.
When reviewing a claim based on insufficient evidence, "[t]he
relevant question is whether,
after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt."
(emphasis
Jackson v. Virginia, 443 U.S. 307, 319 (1979)
in original).
inferences,
courts
must
When the
presume
record supports
the
conflicts in favor of the prosecution.
1.
Ground Four (F) : Failure
Robbery III (Count One)
According to petitioner,
factfinder
conflicting
resolved
the
Id at 326.
to Move
for
Acquittal
as
to
the incident at Whole Foods was a
theft, not a robbery, because Souders did not use or threaten the
use of force,
thus petitioner was guilty only of aiding Souders
after she committed a theft.
have moved for
a
He therefore believes counsel should
judgment of acquittal as
to
the Robbery III
charge. The PCR trial court rejected this claim noting that such a
motion "would not have fallen on receptive ears, had it been made"
because Judge Galton believed the Robbery
easiest here, for what it's worth."
19 - OPINION AND ORDER
III charge was
"the
Respondent's Exhibit 144, p.
9.
It also determined that "the fact finder would have determined
that petitioner was aware that Souders was committing a theft,
intended
to
aid
and
abet
that
theft
personally
and
used
or
threatened the use of physical force to prevent the apprehension of
Ms. Souders, or to overcome resistance to her making away with the
goods."
Respondent's Exhibit 145, pp. 14-15.
A person is guilty of Robbery III in Oregon if he uses or
threatens
the
use
of
force
in
order
to
prevent
or
overcome
resistance to the taking of property or to retain the property
immediately
after
perpetrator
in
161.155.
its
taking,
or
if
the commission of the
he
same.
In this case, the evidence showed:
aids
and
ORS
abets
the
164.195;
ORS
(1) Souders took food
items from Whole Foods while petitioner waited outside;
(2) when
two store employees pursued her, Souders pushed one of them away;
(3) Souders then called for petitioner to intervene, and he punched
one of the employees in the jaw,
and physically threatened the
other; and (4) after petitioner stopped the employees' pursuit of
Souders, she picked up one of the stolen items and left with him.
Respondent's Exhibit 103, pp.
68-76.
Taking the evidence in the
light most favorable to the prosecution,
petitioner and Souders
acted together, and Souders used physical force when she pushed one
of the Whole Foods employees, and enlisted petitioner to assault
her pursuers so as to overcome resistance to her taking the goods.
20 - OPINION AND ORDER
Accordingly, a motion for judgment of acquittal as to Robbery III
would not have been successful.
2.
Ground Four (F) : Force Reauirement in 06/20 and 06/25
Plaid Pantry Incidents (Counts Two and Three)
Petitioner
next
asserts
that
while
counsel
moved
for
a
judgment of acquittal as to the Plaid Pantry incidents from June 20
(Count Two) and June 25 (Count Three), he failed to do so on the
meritorious
basis
that
petitioner
threatened the use of force.
neither
used
force,
nor
The PCR trial court determined that
counsel would have filed such a motion if a legitimate likelihood
of success existed.
A review
of
Respondent's Exhibit 144, p. 10.
the
record
reveals
that
during
the
June
20
incident, he pushed the store clerk aside to grab four cartons of
cigarettes while Souders yelled to the clerk that petitioner was
crazy and would hurt him.
both threaten and use
Id at 40-42.
force
to take
the
This was sufficient to
items
from the
Plaid
Pantry, and thus counsel was under no obligation to make such an
objection.
Similarly, when petitioner robbed the Plaid Pantry on June 25,
he walked around the counter to the clerk's area where Knight was
standing.
When Knight informed petitioner that he could not be
back there, petitioner kept coming at him.
When Knight put up his
hands in a defensive gesture, petitioner walked right into them,
forcing Knight to back up at which time petitioner informed him
that it was
a
robbery.
Id
21 - OPINION AND ORDER
at
92.
Viewed in the
light most
favorable to the State, this was sufficient to amount to the use of
physical force.
Accordingly, counsel was under no duty to seek a
judgment of acquittal on these grounds.
3.
Ground Five: Ineffective Assistance of Appellate Counsel
Petitioner
next
asserts
that
trial
counsel
raised
a
meritorious issue during his motion for judgment of acquittal as to
Counts Two and Three when he claimed that the State had failed to
prove
that
petitioner was
actually present.
knowingly aided by
another
who
was
He faults appellate counsel for not pursuing the
claim during direct appeal.
In
proving
appellate
prejudice
counsel,
a
with
respect
petitioner must
to
the
performance
demonstrate
a
reasonable
probability that but for appellate counsel's failure,
have prevailed on his appeal.''
Smith v.
Robbins,
of
''he would
528 U.S. 259,
285-286 (2000). He must also demonstrate that the omitted claim was
''clearly stronger than issues that counsel did present.''
Id 288.
The PCR trial court resolved this issue in its letter opinion:
The case against petitioner was replete with
evidence
of
the
criminal
activity
that
supported his criminal convi~tions.
In
addition to eye witness testimony,
video
camera surveill[a]nce and the petitioner's own
testimony,
the
court
made
credibility
determinations
that
weighed
against
petitioner's view of events.
It is eminently
clear why appellate counsel would decide not
to
raise on
appeal
every colorable or
nonfrivolous issue in order to discharge the
obligation to provide the effective assistance
of counsel.
Jones v. Barnes, 463 U.S. 745,
754
(1983)
holds
that
nothing
in
the
22 - OPINION AND ORDER
Constitution requires "judges to second-guess
reasonable professional judgments and impose
on appointed counsel a duty to raise every
'colorable' claim suggested by a client." The
"process of 'winnowing out weaker claims on
appeal and focusing on' those more likely to
prevail,
far
from
being
evidence
of
incompetence, is the hallmark of effective
appellate advocacy."
Smith v. Murray, 477
U.S. 527, 539 (1986).
An appellate attorney exercising reasonable
professional skill and judgment would not have
appealed the denial of petitioner's motions
for
judgment
of
acquittal.
Appellate
counsel's failure to raise this claim of error
constitutes no violation of petitioner's
rights.
Furthermore, petitioner had an
opportunity through his Pro Se Brief to the
Appellate Court to raise any additional claims
he thought were appropriate.
Petitioner's
failure to raise these claims on appeal
reflects their lack of merit and an implicit
waiver of post-conviction claims against
appellate counsel on these issues.
Respondent's Exhibit 144, pp. 10-11.
The evidence in this case,
Appendix A,
including the video evidence in
established that petitioner and Souders
concert in these robberies.
worked
in
As a result, counsel's performance did
not fall below an objective standard of reasonableness when he did
not pursue this argument.
Moreover, based upon the record, it is
unlikely petitioner would have prevailed on appeal had counsel
pursued the claims, thus he is unable to demonstrate prejudice from
any failure on counsel's part.
4.
Ground Six: Physical Force Element of Count Three as Due
Process Violation
23 - OPINION AND ORDER
As his final claim, petitioner argues that counsel correctly
argued that Count Three was improperly pled where it alleged that
plaintiff used physical force on Knight.
He believes the record
shows only that he threatened the use of physical force during the
confrontation.
He therefore concludes the trial court should have
granted the motion for judgment of acquittal.
In the absence of a
reasoned state-court decision on this
issue, the court has conducted an independent review of the record.
As discussed above as to Ground Four(F), Knight told petitioner he
could not come behind the counter where the register was located,
and Knight put his hands up in a defensive gesture.
Petitioner
continued walking toward Knight, walking into his hands and forcing
Knight
to back up.
prosecution,
Taken in the
light most
favorable
to the
these facts were sufficient to constitute physical
force, thus there was no due process violation.
For all of these
reasons, the state court decisions denying relief on these claims
were neither contrary to, nor unreasonable applications of, clearly
established federal law.
Ill
Ill
Ill
Ill
Ill
Ill
24 - OPINION AND ORDER
CONCLUSION
For the reasons identified above,
Writ of Habeas Corpus
(#16)
the Amended Petition for
should be denied.
The court does,
however, issue a Certificate of Appealability in this case as to
petitioner's due process and ineffective assistance of counsel
claims.
IT IS SO ORDERED.
f"il,--
DATED this
)
day
ited States District Judge
25 - OPINION AND ORDER
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