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)

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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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