Van Neubarth v. Premo et al
OPINION AND ORDER: The Amended Pe ti ti on for Writ of Habeas Corpus 20 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). (See 12 page opinion for more information) Signed on 8/9/17 by Judge Marco A. Hernandez. (dsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
AARON VAN NEUBARTH,
Case No. 6:16-cv-00178-HZ
OPINION AND ORDER
Anthony D. Bornstein
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
Ellen F. Rosenblum, Attorney General
Kristen E. Boyd, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent
1 - OPINION AND ORDER
HERNANDEZ, District Judge.
Pe ti ti oner brings
convictions for Manslaughter,
Petition for Writ of Habeas Corpus (#20) is denied.
On April 24
lived with his
petitioner and his
began to argue. The disagreement escalated and petitioner stabbed
his father in the neck,
inflicting a non-fatal wound.
stabbed his eight-year-old step-sister 18 times,
killing her. As
a result, the Multnomah County Grand Jury indicted petitioner on
one count each of Aggravated Murder, Attempted Aggravated Murder,
and Assault in the Second Degree. Respondent's Exhibit 102.
On October 10, 2003, the trial court found petitioner unable
to aid and assist in his own defense and sent him to the Oregon
State Hospital for treatment. Following that treatment, the trial
court conducted a competency hearing wherein it determined that
petitioner was competent to aid and assist. Petitioner proceeded
to a jury trial on a defense of partial responsibility predicated
upon his mental illness. On November 10, 2005, the jury convicted
him of Assault in the Second Degree as charged in the Indictment,
and the lesser included offenses of Attempted Felony Murder and
Transcript, pp. 3934-3936.
2 - OPINION AND ORDER
Petitioner directly appealed his convictions, but the Oregon
and the Oregon Supreme Court denied review.
240 P. 3d 1141
349 Or. 654, 249 P.3d 543 (2011).
("PCR") in Marion County where the PCR court granted the State's
Oregon Court of Appeals affirmed without opinion, and the Oregon
Supreme Court denied review. Neubarth v. Premo, 268 Or. App. 717,
344 P.3d 567, rev. denied, 357 Or. 164, 351 P.3d 53 (2015).
On February 23,
petitioner filed this federal habeas
The court appointed counsel to represent him and,
with the assistance
of appointed counsel,
petitioner filed an
Amended Petition containing the following grounds for relief:
The trial court deprived Mr. Neubarth of his
Fourteenth Amendment right to due process when it
refused to grant transactional immunity to a
The trial court deprived Mr. Neubarth of his
Fourteenth Amendment right to due process, and his
Sixth Amendment right to an impartial jury, when
it failed to conduct an inquiry into, and failed
to remedy juror bias involving a juror who made
case-related statements to the local media.
Petitioner was denied effective assistance of
counsel in violation of his Sixth and Fourteenth
Amendment rights as follows:
Pe ti ti oner's initial trial attorney failed to
secure Petitioner's appearance as a witness
before the Grand Jury;
3 - OPINION AND ORDER
Trial counsel was ineffective and inadequate
when she refused to submit necessary documents
testimonial purposes, for Petitioner; and
Petitioner's subsequent trial attorneys coerced
him to testify at trial.
Amended Petition (#20), pp. 2-3.
Pe ti ti on because:
support of Grounds One,
and Three (B)
petitioner fairly presented his argued claims
(2) petitioner failed to
and Two to Oregon's
not provided argument
has not met his burden of proof on them;
(Grounds Two and
petitioner chooses to brief
the merits of only Grounds Two and Three (C).
does not argue the merits of his remaining claims,
claims. See Silva v. Woodford,
he has not
279 F.3d 825, 835 (9th Cir. 2002)
burden of proving his
petitioner had briefed the merits of these claims, the court has
examined them based upon the existing record and determined that
they do not entitle him to relief.
4 - OPINION AND ORDER
Exhaustion and Procedural Default
preserve Ground Two for federal habeas review because he did not
properly raise it in Oregon's state courts. A habeas petitioner
must exhaust his claims by fairly presenting them to the state's
before a federal court will consider the merits of
a petitioner satisfies the exhaustion requirement
by fairly presenting the federal claim to the appropriate state
. in the manner required by the state courts, thereby
'affording the state courts a meaningful opportunity to consider
allegations of legal error.'" Casey v. Moore, 386 F.3d 896,
(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
eligible for federal habeas corpus review. Edwards v. Carpenter,
453 (2000); Castille v.
489 U.S. 346, 351
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. Edwards v.
If a petitioner has procedurally defaulted
a claim in state court, a federal court will not review the claim
5 - OPINION AND ORDER
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,
(1992); Murray v. Carrier, 477 U.S. 478, 485 (1986).
violated his rights to due process and an impartial jury when it
failed to inquire into, and remedy,
juror bias involving a juror
Respondent's Exhibit 108, p. 13. Because the Petition for Review
did not contain petitioner's Ground Two claim,
and as the time
for presenting those claims to the Oregon Supreme Court passed
long ago, Ground Two is procedurally defaulted.
III. Ground Three(C): Ineffective Assistance of Counsel
A. Standard of Review
granted unless adjudication of the claim in state court resulted
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States;''
''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,
6 - OPINION AND ORDER
and petitioner bears the burden of rebutting the presumption of
2254 (e) (1).
contradicts the governing law set forth in [the Supreme Court's]
cases'' or ''if the state court confronts a set of facts that are
Court and nevertheless arrives at a result different from [that]
court may grant relief "if the state court identifies the correct
governing legal principle from
[the Supreme Court's]
incorrect or erroneous.
Id at 410. Twenty-eight U.S.C. § 2254(d)
''preserves authority to issue the writ in cases where there is no
court's decision conflicts with [the Supreme] Court's precedents.
Prior to closing argument in petitioner's criminal trial, he
filed a motion seeking a new trial.
He personally informed the
court that "current counsel has compelled me to testify" and that
"cheated out of testimony because
7 - OPINION AND ORDER
testify under the conditions that [petitioner's brothers] were to
be thoroughly examineg on the stand." Trial Transcript, p. 3681.
Counsel stated that although he "hate[d]
being compelled to
3682. It was counsel's "clear impression" that petitioner wished
to take the stand where "he always maintained that he wanted to
tell his side of the story." Id at 3682-3683. Counsel was also of
would not have testified in the manner contemplated by petitioner
The court denied petitioner's motion
counsel." Id at 3686.
Petitioner contends that his trial attorneys coerced him to
anticipated. He claims to have testified in his own defense only
because he expected counsel to call his two brothers as well as a
contends that these witnesses would have testified in a manner
that would have bolstered his own testimony.
Because no Supreme Court precedent is directly on point that
corresponds to the facts of this case, the court uses the general
petitioner must show that his counsel's performance fell below an
8 - OPINION AND ORDER
objective standard of reasonableness.
evaluating counsel's performance,
reasonable professional assistance.'' Id at 689.
Second, petitioner must show that his counsel's performance
for prejudice is
result of the proceeding would have been different.'' Id at 694. A
reasonable probability is one which is sufficient to undermine
Strickland's general standard is
review governing 28 U.S.C.
combined with the standard of
2254 habeas corpus cases, the result
is a "doubly deferential judicial review." Mirzayance,
Petitioner directs the court to the PCR record for support
for his claim. During his PCR proceedings, petitioner submitted a
but was assured that it would work out when the court
[my two brothers]
and our LDS bishop.
put on the stand and no effort was made to have
As such I believe my testimony was coerced." Respondent's Exhibit
161, p. 8.
Both of petitioner's trial attorneys submitted affidavits to
9 - OPINION AND ORDER
petitioner into testifying at trial.
Respondent's Exhibits 157 &
158. One of the attorneys explained:
My Co-counsel and I did not coerce Aaron
Van Neubarth into testifying at trial. We
explained to Mr. Neubarth that the decision
about whether to testify was solely his
decision, and that he did not have to testify
in his own defense.
It is amusing and absurd that Aaron
would or could claim that anyone would have
[b]een able to coerce Aaron to do anything,
let alone testify against his wishes. * * *
Throughout the time I represented Aaron
he was ironclad in his determination to take
transferred intent to the jury and show them
that there was absolutely nothing wrong with
his mental faculties. * * *
Aaron's adamancy that he was going to
testify no matter what anyone advised forced
me to build the total defense approach around
Aaron taking the stand.
had to make
lemonade out of lemons. So we called Aaron to
testify, and I used his adamancy to force a
psychotic break in the courtroom, so that the
jury could see for themselves that they were
judging a man who was severely mentally ill.
questioning of him, but I saw no other path,
and I think the resulting verdict vindicates
Respondent's Exhibit 157, pp. 2-3.
The PCR court resolved the issue as follows:
petitioner was not forced to testify at
trial. In his deposition, petitioner alleges
that his decision to testify was influenced
by trial counsel's assurances that other
witnesses would be presented to the trial.
Apparently, petitioner's theory is that if he
had known that the other witnesses were not
10 - OPINION AND ORDER
going to testify then he would not have
Petitioner fails to present a
cogent explanation about why his testimony
testifying. Additionally, Petitioner fails to
identify in his deposition what prejudice 
he suffered as a result of his testimony. The
only conceivable prejudice this court can
surmise would be that his testimony was not
credible. At least under the circumstances of
this case, such prejudice cannot provide the
basis for post-conviction relief.
Respondent's Exhibit 164, p. 4.
The totality of the record (including the trial transcript)
supports the PCR court's conclusion that petitioner's attorneys
did not force him to testify. Although petitioner's attorneys did
petitioner failed to establish what these individuals would have
testified to and how that testimony might have bolstered his own
testimony. Counsel's performance therefore did not fall below an
to demonstrate prejudice.
established federal law.
11 - OPINION AND ORDER
For these reasons,
For the reasons identified above,
the Amended Pe ti ti on for
issue a Certificate of Appealability on the basis that petitioner
constitutional right pursuant to 28 U.S. C.
2253 (c) ( 2) .
IT IS SO ORDERED.
day of August, 2017.
United States District Judge
12 - OPINION AND ORDER
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