Harwood v. Hall
Filing
51
OPINION AND ORDER: The Petition for Writ ofHabeas Corpus 1 is denied. The court grants a certificate of appealability as to the issues addressed in Parts II, III, and IV of this Opinion. (See 18 page opinion for more information) Signed on 8/28/17 by Judge Marco A. Hernandez. (dsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JEREMY LORREN HARWOOD,
Case No. 6:15-cv-00970-HZ
Petitioner,
OPINION AND ORDER
v.
GUY HALL,
Respondent.
Anthony D. Bornstein
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
HERNANDEZ, District Judge.
Petitioner brings this
U.S.C.
§
2254
challenging
habeas
the
corpus
case pursuant
legality
of
his
convictions from 2006. For the reasons that follow,
to
28
state-court
the Petition
for Writ of Habeas Corpus (#1) is denied.
BACKGROUND
In
August
2005,
the
Lane
County
Grand
Jury
indicted
petitioner on a total of 78 offenses,
mostly having to do with
theft.
following
Respondent's
proceeded to a
Exhibit
jury trial.
102.
The
year,
the
case
At the close of the State's case,
petitioner moved for a judgment of acquittal
( "MJOA")
regarding
seven theft charges pertaining to stolen property recovered from
his
co-defendant's
residence
Transcript, Vol. II, pp.
located
on
River
Road.
Trial
698-706. He theorized that he could not
be guilty of theft because the stolen property was not recovered
from
his
residence
(located
on
8th
Street) .
The
trial
court
denied the MJOA, and the jury ultimately convicted petitioner of
32 theft-related counts, three counts of aggravated theft in the
first degree,
counts
of
six counts of theft in the second degree,
unauthorized
use
of
a
motor
vehicle.
and two
Respondent's
Exhibit 142. As a result, the trial court sentenced petitioner to
239 months in prison.
Pe ti ti oner
took
a
direct
appeal
where
he
challenged
the
trial court's denial of his MJOA claiming that the State failed
to present any evidence that he exercised possession or control
over
the
property.
stolen
i terns
found
at
his
co-defendant's
River
Road
Respondent's Exhibit 103. The Oregon Court of Appeals
2 - OPINION AND ORDER
affirmed
the
trial
court's
decision
without
opinion,
and
the
Oregon Supreme Court denied review. State v. Harwood, 226 Or. App
418, 204 P.3d 177, rev. denied, 346 Or. 258, 210 P.3d 906 (2009).
Petitioner next filed for post-conviction relief ("PCRn)
in
Marion County where the PCR court denied relief on all of his
claims.
Respondent's
Exhibit
151.
The
Oregon Court of Appeals
affirmed the lower court without opinion, and the Oregon Supreme
Court denied review. Harwood v. Premo, 267 Or. App. 424, 341 P.3d
252 (2014), rev. denied, 357 Or. 111, 346 P. 3d 1212 (2015).
Pe ti ti oner filed this federal
30,
2015.
habeas corpus case on June
With the assistance of appointed counsel,
petitioner
argues three grounds for relief:
(1) Petitioner's aggravated theft convictions
violate due process because the State did not
present sufficient evidence to sustain them;
(2) Trial counsel was ineffective when he
failed to use available evidence to impeach a
complaining witness regarding the material
element of the value of clothing; and
( 3) Trial counsel was ineffective when he
failed to object to the court's failure to
merge several of petitioner's convictions.
Respondent
because:
( 1)
asks
the court
to deny relief on the
petitioner declines
to argue
several
relief that are contained within his Petition;
(2)
Petition
grounds
for
the Petition
does not contain petitioner's third argued claim, thus the claim
is not properly before the court;
(3) petitioner's due process
claim is procedurally defaulted and lacks merit; and (4) the PCR
court's denial of petitioner's ineffective assistance of counsel
claim in Ground Two was not objectively unreasonable.
3 - OPINION AND ORDER
DISCUSSION
I.
Unargued Claims
The Petition for Writ of Habeas Corpus contains two grounds
for relief,
the second of which is comprised of nine subparts.
Petitioner filed his Brief in Support
(#21)
in which he argues
the due process claim the court identified in the Background of
this Opinion as Ground One,
and the
ineffective assistance of
counsel claim it identified as Ground Two.
his
Supplemental Brief
Three
ineffective
merger.
(#31)
assistance
Petitioner does
1
Petitioner then filed
containing argument on the Ground
of
counsel
not argue
claim
pertaining
the merits of his
to
remaining
claims and has therefore not carried his burden of proof with
respect to these unargued claims. See Silva v. Woodford, 279 F.3d
825, 835 (9th Cir. 2002)
(petitioner bears the burden of proving
his claims).
II.
Pleading Sufficiency
Respondent
asserts
that
the
Ground
Three
ineffective
assistance of counsel claim petitioner argues in his Supplemental
Brief is not contained in the Petition.
Governing
Section
2254
Cases
requires
Rule 2(c)
each habeas
of the Rules
petition to
''specify all the grounds for relief which are available to the
petitioner" and to ''state the facts supporting each ground.''
A
court need not consider a claim that is not contained within the
operative
habeas
corpus
petition.
Greene
v.
Henry,
302
F. 3d
1 Respondent initially asserted that petitioner failed to raise these claims
in his Petition, but later withdre;i that argument.
Sur-reply (#49), p. 1.
4 - OPINION AND ORDER
1067,
1070 fn 3
(9th Cir.
2002).
The pertinent portion of the
Petition reads as follows:
Post-conviction trial counsel was ineffective
for failing to raise and present an issue
that
trial
counsel was
ineffective
for
failing to request that the sentencing court
merge all of the theft related convictions,
(Counts 5, 6, 11, 12, 13, 18, 19, 22, 23, 25,
26, 27, 28, 29, 33, 34, 36, 38, 39, 40, 41,
42, 43, 45, 68, 69, 70, 71, and 72) into one
and/or for the purposes of sentencing. That
is
one
charge
of
Aggravated
Theft
by
Receiving is necessarily involved with the
above-mentioned counts. Only one offense was
committed and only one charge may be the
basis for a conviction.
Petition (#2), pp. 26-27.
In
his
Supplemental
Brief,
petitioner
states
a
somewhat
different claim. He asserts that there were 16 different victim
property owners such that he should have at least 16 different
theft
convictions,
not
one,
but
that
his
theft
convictions
pertaining to multiple items taken from the same property owner
should have merged.
Petitioner asserts that this court should liberally construe
his
Petition to state the claim he argues in his Supplemental
Brief. Although the court is obligated to liberally construe pro
se
filings,
Haines
v.
Kerner,
specifically appointed the
404
Federal
U.S.
519
(1972),
the
court
Public Defender's Office at
the outset of this case to give petitioner every opportunity to
amend
his
attorney
Petition
wished
to
to
clearly
argue. 2
state
any
Nevertheless,
claims
the
he
court
and
elects
his
to
2 Although petitioner directs the court to the Fifth Circuit for the
proposition that it accords "state and federal habeas petitions a broad
interpretation 1 notwithstanding the later appointment of counsel,u Bledsue v.
5 - OPINION AND ORDER
liberally construe the
Pe ti ti on
to contain petitioner's
argued
Ground Three merger claim.
III. Exhaustion and Procedural Default
A. Standards
A
habeas
petitioner
must
exhaust
his
claims
presenting them to the state's highest court,
direct appeal or collateral proceedings,
by
fairly
either through a
before a federal court
will consider the merits of those claims. Rose v. Lundy, 455 U.S.
509,
519
(1982).
"As a general rule,
a petitioner satisfies the
exhaustion requirement by fairly presenting the federal claim to
the appropriate state courts
state courts,
thereby
in the manner required by the
'affording the state courts a meaningful
opportunity to consider allegations of legal error. '"
Moore, 386 F.3d 896,
Hillery,
474 U.S.
915-916
254,
257,
(9th Cir.
(1986)).
2004)
Casey v.
(quoting Vasquez v.
If a habeas litigant failed
to present his claims to the state courts in a procedural context
in which the merits of the claims were actually considered,
the
claims have not been fairly presented to the state courts and are
therefore not eligible for federal habeas corpus review. Edwards
v.
Carpenter,
529 U.S.
446,
453
(2000); Castille v.
Peoples,
489
U.S. 346, 351 (1989).
Johnson, 188 F.3d 250, 253 (5th Cir. 1999), not only does this not constitute
controlling precedent, but it is not clear what constitutes a "later"
appointment. The court appointed counsel for petitioner less than 30 days
after he filed his pro se Petition and 11 days before the State accepted and
acknowledged service in this case. Although counsel now wishes to rely upon
liberal construction due to the pro se nature of the initial filing in this
case, it was incumbent upon appointed counsel to review the Petition and file
an amended pleading if appropriate so as to avoid the unnecessary confusion
that has resulted.
6 - OPINION AND ORDER
A petitioner is deemed to have ''procedurally defaulted'' his
claim if he failed to comply with a
state procedural rule,
failed to raise the claim at the state level at all.
529 U.S.
Carpenter,
U.S. 722, 750
446,
451
(2000);
Coleman
v.
or
Edwards v.
501
Thompson,
(1991). If a petitioner has procedurally defaulted
a claim in state court, a federal court will not review the claim
unless the petitioner shows ''cause and prejudice'' for the failure
to present the constitutional issue to the state court, or makes
a colorable showing of actual innocence. Gray v. Netherland,
518
U.S.
337
152,
162
(1996);
Sawyer
v.
Whitley,
505
U.S.
333,
(1992); Murray v. Carrier, 477 U.S. 478, 485 (1986).
B.
Ground One
As Ground One, petitioner alleges that his aggravated theft
convictions violate due process because the State did not present
sufficient
Petition,
evidence
respondent
to
sustain
asserts
them.
that
In
his
Response
to
the
although petitioner assigned
error to the trial court's denial of his MJOA,
he presented the
claim only as one of state-law error and did not raise a federal
law question or cite to the U.S. Constitution in support of his
arguments.
A review of the record reveals that petitioner explicitly
referenced the Fourth amendment and cited to Wright v. West,
505
U.S. 277 (1992), in support of his argument. Respondent's Exhibit
103,
p.
22.
sufficiency
Virginia,
West
of
443
the
U.S.
was
a
evidence
307
prisoner.
7 - OPINION AND ORDER
habeas
corpus
standard
(1979),
in
set
the
case
out
applying
in
context
the
Jackson
of
a
v.
state
Respondent
nevertheless
contends
that
petitioner
did
not
engage in a federal analysis, and instead relied only upon state
law such that his bare federal
satisfy
exhaustion.
The
citations
disagrees.
court
were
insufficient to
The
very
nature
of
petitioner's sufficiency of the evidence argument must entail a
discussion
of
state
law,
and
his
references
to
the
U.S.
Constitution as well as the Supreme Court's decision in West put
the Oregon Court of Appeals on notice that petitioner tasked it
with deciding a
federal due process issue.
The court therefore
finds petitioner fairly presented the claim so as to preserve it
for review on its merits.
C.
Ground Three
Petitioner
concedes
that
he
procedurally
defaulted
his
ineffective assistance of counsel pertaining to merger, but asks
the
court
to
excuse
the
default
because
ineffective for failing to raise such a claim.
566
Ryan,
U.S.
1,
4
(2012)
(inadequate
PCR
counsel
was
See Martinez v.
assistance
of
post-
conviction counsel may establish cause to excuse the default of
an ineffective assistance of trial counsel claim) .
show that PCR counsel was inadequate,
In order to
petitioner must establish
that counsel's performance fell below an objective standard of
reasonableness.
(1984).
Strickland v.
Washington,
4 66 U.S.
668,
68 6-87
Petitioner must demonstrate not only that his attorney
should have raised the omitted claim, but also that the omitted
claim
was
"substantial."
Id
at
14.
In
this
regard,
he
must
"demonstrate that the underlying ineffective assistance of trial
counsel claim .
. has some merit." Id.
8 - OPINION AND ORDER
Petitioner states there were 16 property owners at issue
such that at least 16 of his convictions cannot merge based upon
the existence of separate victims. He points to the specifics as
to three sets of convictions:
Counts 25 and 26, a trailer and the clothing
within it;
Counts 34 and 36, a tractor with an attached
mower; and
Counts 27,
motor and
parts.
28, and 29'
mounts, and
an ATV frame, its
the its remaining
Petitioner argues that dual convictions involving different
pieces
of
property belonging
to
the
same
victims
should
have
merged such that he should have sustained a maximum of seventeen
convictions instead of 29. Petitioner directs the court to State
v. Noe, 242 Or. App. 530, 532 (2011), and State v. Joynt, 254 Or.
App.
415,
these
416
cases,
(2012), to support his merger argument. In both of
the
Oregon
Court
of
Appeals
concluded
that
aggravated theft convictions should have merged where they were
based on the theft of a truck, and the theft of the parts of that
same truck.
The State takes the position that the court cannot
evaluate trial counsel's performance in light of these decisions
because
they occurred five
and six
years,
respectively,
after
petitioner's trial. See Sophanthavong v. Palmateer, 378 F.3d 859,
870
(9th Cir.
2004)
("Strickland does
not mandate
prescience,
only objectively reasonable advice under prevailing professional
norms.").
9 - OPINION AND ORDER
In
reaching
its
conclusion
in
Noe,
the
Oregon
Court
of
Appeals cited to the Oregon Supreme Court's opinion in State v.
Cox, 336 Or. 284
of
aluminum
(2003). Cox involved the theft of 20,000 pounds
in
Marion
County,
which
was
then
transported
to
Multnomah County for sale. The defendant was charged in Multnomah
County with aggravated theft in the first degree by receiving,
and separately charged in Marion County simply with aggravated
theft where the indictment alleged that the petitioner "knowingly
commit [ted]
same
theft of aluminum metal pipes and beams"
victim at
issue
in
the Multnomah
County
from the
indictment.
The
Oregon Supreme Court concluded that "defendant committed a single
offense of theft by
the same victim.
'taking'
and 'receiving'
336 Or. at. 294-95.
the aluminum" from
In doing so,
it noted that
Oregon law "ensures that the number of thefts will depend on the
number of times a person unlawfully deprives another of property,
not
on
the
number
of
different
ways
in
which
a
person
accomplishes a particular deprivation." Id at 294.
The court
finds
there to be "some merit"
to petitioner's
merger argument based upon Cox, however this analysis ignores the
practical considerations present in petitioner's case.
counsel
raised such a
charges at issue,
claims
(#31),
that
p.
seventeen
petitioner would have received no benefit in
terms of his sentence.
Brief
claim and succeeded as to all
Had PCR
2.
might
Petitioner concedes as much. Supplemental
Instead,
have,
if
PCR counsel pursued a
successful,
variety of
materially
impacted
petitioner's sentence. Accordingly, it was a reasonable tactical
choice
for
PCR
counsel
not
10 - OPINION AND ORDER
to
pursue
the
merger
argument
petitioner advances here.
See Strickland v. Washington,
668,
afford
689
(1984)
(courts
a
high
level
of
466 U.S.
deference
to
strategic decisions by attorneys). Because PCR counsel's decision
to omit
the merger
challenge did not
standard of reasonableness,
fall
below an objective
petitioner is unable to excuse his
procedural default.
IV.
The Merits
A.
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.
u.s.c.
28
2254 (e) (1).
A
state
court
decision
established precedent
if
the
is
"contrary
state
court
to
cle.arly
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
application"
11 - OPINION AND ORDER
U.S.
362,
clause,
a
405-06
(2000).
federal
habeas
court may grant relief "if the state court identifies the correct
governing legal principle from
[the Supreme Court's]
but
principle
unreasonably
prisoner's
clause
applies
that
at
413.
case."
requires
Id
the
state
incorrect or erroneous.
The
to
the
facts
"unreasonable
court
decision
to
decisions
of
the
application"
be
more
Id at 410. Twenty-eight U.S.C.
§
than
2254(d)
''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 [the Supreme) Court's precedents.
It
goes
no
farther."
Harrington
v.
562
Richter,
U.S.
86,
102
(2011).
B.
Ground One: Sufficiency of the Evidence
Petitioner
contends
that
the
State
presented no
evidence
that he acquired control or possession of the stolen items that
the
authorities
recovered
from
his
co-defendant's
River
Road
property. He theorizes that although he might have aided his codefendant
actually
thefts,
in
stealing
obtained
there
the
control
was
property,
without
of
items
those
insufficient
evidence
evidence
after
to
that
the
prove
he
initial
theft
by
receiving under Oregon law
When reviewing a habeas corpus claim based on insufficient
evidence,
evidence
''[t]he relevant question is whether, after viewing the
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
inferences,
in
original) .
When
the
Jackson,
record
443 U.S.
supports
at 319
conflicting
courts must presume the jury resolved the conflicts
12 - OPINION AND ORDER
in favor of the prosecution. Id at 326. Because this issue occurs
in the habeas corpus context which carries with it a stringent
standard of review,
this court is required to apply a
dose
to
of
deference"
the
state
court
decision,
a
"double
level
of
deference "that can rarely be surmounted." Boyer v. Belleque, 659
F.3d 957, 964 (9~ Cir. 2011).
Petitioner's aggravated theft convictions as to Counts 11,
18,
23,
27,
40,
42,
and 43 were all predicated upon the notion
that petitioner committed theft by receiving property located at
the River Road property. Petitioner claims that the State did not
establish that he had "received" the stolen items found at the
River
Road address because
that
was
the
residence
of his
co-
defendant.
Pursuant to ORS 164.095:
(1) A person commits theft by receiving if
the person receives, regains, conceals, or
disposes of property of another knowing or
having good reason to know that the property
was the subject of theft.
( 2) "Receiving" means acquiring possession,
control or title, or lending on the security
of the property.
At
trial,
petitioner's
attorney moved
for
a
judgment
of
acquittal as to seven theft counts because the stolen goods were
recovered
from
co-defendant's
petitioner's property on
his
contention
"that
8th
River
Road
property,
not
Street. Counsel based his MJOA upon
there's
been
no
showing
that
my
client
received this property or had possession of it. All there's proof
13 - OPINION AND ORDER
of was that it was at the River Road house." Trial Transcript,
Vol. II, p. 700. The court denied the MJOA, reasoning as follows:
there was a sharing of stolen materials
indicating
that
there was
at
least
an
agreement of some sort, if not a tacit one
or - at best a tacit one, that that stolen
property was split up between the owners of
possessors of the two different properties.
That means that in the light most favorable
to the State that the defendant in this case,
Mr.
Harwood,
consented
to
the
improper
possession of some of the property that
didn't end up at his place but ended up at
the other place.
one possessor either had the right or
tacit authority from the other possessor to
possess what they had and vice versa.
Id at 704-05.
The Lane County Circuit Court thus determined that,
the facts of this particular case,
under
petitioner's conduct met the
elements of receiving stolen property such that the MJOA lacked
merit.
The Oregon Court of Appeals agreed.
Respondent's Exhibit
109. The Supreme Court has "repeatedly held that a state court's
interpretation of state
appeal
of
the
law,
challenged
including one announced on direct
conviction,
binds
sitting in habeas corpus." Bradshaw v.
Richey,
a
federal
546 U.S.
court
74,
76
(2005).
In any event, there was sufficient evidence in the record to
support
the
trial
understanding
between
shared control
would
deny
court's
it
conclusion
petitioner
over
the
goods
at
trial,
14 - OPINION AND ORDER
a
and
they
that
there
his
co-defendant
stole.
Al though
sheriff's
deputy
was
to
an
have
petitioner
testified
that
petitioner
described
himself
during
an
interview
as
a
"middleman," knew that most of the items he dealt in were stolen,
but stated that he did not ask any questions. Trial Transcript,
Vol. II, p. 961.
The State also introduced evidence that each of the victims
named in the seven counts petitioner challenged in his MJOA had
some of their stolen property discovered at both petitioner's
3th
Street residence and his co-defendant's River Road property even
though
several
of
them had
only been
the
episode of theft.
Trial Transcript, Vol.
574,
623,
585-87,
603,
627,
642-43.
victim of
II,
pp 466,
a
single
520,
527,
Part of one victim's all-
terrain vehicle was discovered at the co-defendant's River Road
property while
the
rest
of
the
vehicle
plastic tote container" at petitioner's
at
466.
deny
Based upon this record,
the
MJOA
was
neither
was
"in
Street property.
3th
the trial
contrary
discovered
a
Id
court's decision to
to,
nor
an
unreasonable
application of, clearly established federal law.
C.
Ground Two: Ineffective Assistance of Counsel
As his final claim, petitioner alleges that defense counsel
was
ineffective
when
he
failed
to
use
available
evidence
to
impeach a complaining witness regarding the material element of
the value of stolen clothing. Because no Supreme Court precedent
is directly on point that corresponds to the facts of this case,
the
court
Supreme
uses
the
Court
to
ineffective
U.S.
111,
general
assistance
122-23
two-part
determine
of
(2009).
whether
counsel.
First,
15 - OPINION AND ORDER
test
established
petitioner
Knowles
v.
by
received
Mirzayance,
petitioner must
the
556
show that his
counsel's
performance
fell
reasonableness.
Strickland,
difficulties
evaluating
below
in
an
U.S.
466
objective
686-87.
counsel's
standard
Due
of
the
courts
performance,
to
must
indulge a strong presumption that the conduct falls within the
''wide range of reasonable professional assistance.'' Id at 689.
Second, petitioner must show that his counsel's performance
prejudiced the
whether
The
petitioner
the
defense.
can
probability that,
but for
appropriate
show
"that
counsel's
test
for
there
prejudice
is
a
is
reasonable
unprofessional errors,
the
result of the proceeding would have been different." Id at 694. A
reasonable probability is one which is sufficient to undermine
confidence
in
the
outcome
of
the
trial.
at
Id
Strickland's general standard is combined with the
review governing 28 U.S.C.
§
696.
When
standard of
2254 habeas corpus cases, the result
is a "doubly deferential judicial review." Mirzayance,
556 U.S.
at 122.
Petitioner's claim relates to
from the Norris family.
a
12-foot trailer
he
stole
The trailer was lined with dressers and
three hanging rods of clothes.
At the time a
sheriff's deputy
responded
Norris
the
to
the
theft,
Mrs.
valued
clothing
at
$2,000, and the deputy valued the clothing at $500. Respondent's
Exhibit 119. Mr. Norris testified at trial that the value of the
clothing
contained
within
the
trailer
was
$14,000.
Trial
of Mrs.
Norris
or the
Transcript, Vol. II, p. 560.
Counsel did not
deputy to
impeach
Mr.
use
the
Norris'
estimates
testimony
on
the
value
of
the
stolen items. Petitioner contends that it was ineffective not to
16 - OPINION AND ORDER
do so because he was convicted of aggravated theft in the first
degree based upon a finding that the value of the stolen goods
exceeded $9,999. See ORS 164.057. If the jury had found the value
of
the
property
was
less
than
$10,000,
he
would
have
been
convicted of non-aggravated theft in the first degree pursuant to
ORS 164.055.
The PCR court determined that "(t]here is no impeachment on
the
value
of
the
clothes
in
the
trailer
since
the
original
estimate was the officer's estimate who never saw the trailer and
who never saw the contents,
and the later estimate was by the
owners. There is no proof that it's not accurate." Respondent's
Exhibit 150,
p.
21.
In its Judgment,
the PCR court stated that
the "officer's estimate of value of clothes & trailer he hadn't
seen
would
not
impeach
[Mr.
Norris' ]
estimate."
Respondent's
Exhibit 151, p. 2. There is no indication that the PCR court took
into account the $2,000 valuation by Mrs. Norris.
Petitioner
contends
that
Mr.
Norris'
estimate
of
his
property's value was based upon replacement value as determined
by
his
internet
searches,
where
Oregon
law
provides
that
valuation is only determined by this method if "market value at
the
time
and
ascertained."
place
ORS
of
the
164 .115.
crime
He
cannot
believes
that
reasonably
Mrs.
be
Norris'
valuation likely reflected the market value because it was made
at the time the property was stolen and at the place from where
the property was taken.
He also points out that she was in the
best position to value the clothing because the clothing belonged
to her and her children. Respondent's Exhibit 119, p. 2.
17 - OPINION AND ORDER
The
PCR
court
was
correct
that
the
responding
officer's
estimate of $500 was of no value where he was unfamiliar with the
items in question.
It did not,
$2,000 figure provided by Mrs.
cross-examined
Mr.
Norris
however,
Norris.
with
his
appear to consider the
But even if counsel had
wife's
estimate,
it
is
entirely speculative as to how the jury might have weighed Mrs.
Norris'
statements.3
Petitioner
therefore
cannot
establish
a
likelihood that had counsel impeached Mr. Norris's estimate with
that of his wife, the outcome of the proceeding would have been
different.
At a minimum,
failed
prove
to
that
where the
the
$14,000
PCR court
estimate
found petitioner
was
not
accurate,
petitioner has not shown that the PCR court's decision was
so
clearly erroneous that no fairminded jurist could agree with it.
Richter, 562 U.S. at 102.
CONCLUSION
For the reasons identified above,
Habeas Corpus
(#1)
the Petition for Writ of
is denied. The court grants a certificate of
appealability as to the issues addressed in Parts II, III, and IV
of this Opinion.
IT IS SO ORDERED.
DATED this 2.,~
day of August, 2017.
3 If anything, the jury might have afforded Mrs. Norris' statement
considerably less weight in light of Mr. Norris' in-trial characterization of
his i·1ife' s attitude toward shopping: \'my wife is not a shopper . . . that's
something she hates." Trial Transcript Vol. II, p. 561.
18 - OPINION AND ORDER
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