Van Neubarth v. Premo et al
Filing
38
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
Petitioner,
OPINION AND ORDER
v.
JEFF PREMO,
Respondent.
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
U.S.C.
2254
§
this
challenging
habeas
the
convictions for Manslaughter,
the
Second
Degree.
For
the
corpus
case
legality
of
his
Attempted Murder,
reasons
that
pursuant
to
state-court
and Assault
follow,
28
the
in
Amended
Petition for Writ of Habeas Corpus (#20) is denied.
BACKGROUND
In 2002,
siblings.
petitioner
On April 24
lived with his
of that
year,
father
and four
petitioner and his
stepfather
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,
He also
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
Manslaughter
consecutive
in
the
sentences
First
Degree.
totaling
Transcript, pp. 3934-3936.
2 - OPINION AND ORDER
280
The
trial
months
in
court
prison.
imposed
Trial
Petitioner directly appealed his convictions, but the Oregon
Court
of
opinion,
Appeals
affirmed
the
trial
court's
decision
and the Oregon Supreme Court denied review.
237 Or.
Neubarth,
App.
275,
240 P. 3d 1141
(2010),
without
State v.
rev.
denied,
349 Or. 654, 249 P.3d 543 (2011).
Petitioner
proceeded
to
file
for
post-conviction
relief
("PCR") in Marion County where the PCR court granted the State's
summary
judgment
motion.
Respondent's
Exhibits
163-165.
The
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,
corpus case.
2016,
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:
Ground I:
The trial court deprived Mr. Neubarth of his
Fourteenth Amendment right to due process when it
refused to grant transactional immunity to a
defense witness.
Ground II:
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.
Ground III:
Petitioner was denied effective assistance of
counsel in violation of his Sixth and Fourteenth
Amendment rights as follows:
A.
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
B.
Trial counsel was ineffective and inadequate
when she refused to submit necessary documents
needed
secure
transactional
immunity
for
testimonial purposes, for Petitioner; and
C.
Petitioner's subsequent trial attorneys coerced
him to testify at trial.
Amended Petition (#20), pp. 2-3.
Respondent
asks
Pe ti ti on because:
the
( 1)
court
to deny
petitioner has
support of Grounds One,
Three (A),
leaving
them
Grounds
One
procedurally
and Three (B)
and,
and
(3)
to
Oregon's
state
courts,
therefore,
those
state
to
petitioner fairly presented his argued claims
Three(C))
in
(2) petitioner failed to
and Two to Oregon's
defaulted;
the Amended
not provided argument
has not met his burden of proof on them;
fairly present
relief on
the
courts,
extent
(Grounds Two and
courts
reasonably
denied relief.
DISCUSSION
I.
Unargued Claims
In his
supporting memorandum,
petitioner chooses to brief
the merits of only Grounds Two and Three (C).
Where petitioner
does not argue the merits of his remaining claims,
carried
his
burden
of
proof
claims. See Silva v. Woodford,
(petitioner bears
the
with
respect
to
he has not
these
unargued
279 F.3d 825, 835 (9th Cir. 2002)
burden of proving his
claims).
Even
if
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.
Ill
Ill
4 - OPINION AND ORDER
II.
Exhaustion and Procedural Default
Respondent
argues
that
petitioner
failed
to
properly
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
highest
court,
proceedings,
either
through
a
direct
appeal
or
collateral
before a federal court will consider the merits of
those claims.
Rose v.
general rule,
a petitioner satisfies the exhaustion requirement
Lundy,
455
U.S.
509,
519
(1982).
"As a
by fairly presenting the federal claim to the appropriate state
courts .
. 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,
915-
916
(9th Cir.
254,
257,
(1986)).
2004)
(quoting Vasquez v.
Hillery,
474 U.S.
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).
A petitioner is deemed to have ''procedurally defaulted'' his
claim if he
failed to comply with a
state procedural rule,
or
failed to raise the claim at the state level at all. Edwards v.
Carpenter,
U.S.
722,
529 U.S.
750
(1991).
446,
451
(2000);
Coleman
v.
Thompson,
501
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,
518
U.S.
337
152,
162
(1996);
Sawyer
v.
505
Whitley,
U.S.
333,
(1992); Murray v. Carrier, 477 U.S. 478, 485 (1986).
As
Ground
Two,
petitioner
alleges
that
the
trial
court
violated his rights to due process and an impartial jury when it
failed to inquire into, and remedy,
juror bias involving a juror
who
to
made
case-related
petitioner's
petitioner
claim:
murder
trial.
A
presented
whether his
could
statements
review
the
of
Oregon
convictions
properly
the
local
Court
after
that
with
both assault
in
media
reveals
record
Supreme
for
result
the
a
single
and attempted
sentences.
consecutive
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
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,
6 - OPINION AND ORDER
and petitioner bears the burden of rebutting the presumption of
correctness
§
by
clear
and
convincing
u.s.c.
28
evidence.
2254 (e) (1).
A
state
court
decision
established precedent
if
is
the
"contrary
state
court
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 arrives at a result different from [that]
precedent."
Under
the
Williams
v.
529
Taylor,
"unreasonable
application"
U.S.
362,
clause,
405-06
a
(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
case.''
requires
applies
that
at
413.
Id
the
incorrect or erroneous.
state
The
court
to
the
facts
"unreasonable
decision
to
decisions
of
the
application''
be
more
than
Id at 410. Twenty-eight U.S.C. § 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 U.S.
Richter,
86,
102
(2011).
B. Analysis
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
he
felt
"cheated out of testimony because
7 - OPINION AND ORDER
I
was
compelled to
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]
with
Mr.
thoughts
Neubarth,"
in
regard
he
to
had
his
to
to disagree
"strenuously
being compelled to
contradict
testify."
his
Id at
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
the
opinion
that
petitioner's
brothers
and
the
church
bishop
would not have testified in the manner contemplated by petitioner
and,
even
helpful.
for
a
if
they
Id at
new
did,
such
3683-3684.
trial
"based
testimony
would
not
have
been
The court denied petitioner's motion
on
the
record
and
the
statements
of
counsel." Id at 3686.
Petitioner contends that his trial attorneys coerced him to
testify
insofar
as
they
did
not
call
the
witnesses
he
anticipated. He claims to have testified in his own defense only
because he expected counsel to call his two brothers as well as a
bishop
from
a
local
church.
Without
providing
specifics,
he
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
two-part
test
established
whether petitioner
Knowles
v.
by
received
Mirzayance,
556
the
Supreme
ineffective
U.S.
111,
Court
to
assistance of
122-23
(2009)
determine
counsel.
First,
petitioner must show that his counsel's performance fell below an
8 - OPINION AND ORDER
objective standard of reasonableness.
Strickland v.
466
to
U.S.
668,
686-87
(1984).
Due
evaluating counsel's performance,
presumption
that
the
conduct
the
difficulties
courts must
falls
within
Washington,
indulge a
the
"wide
in
strong
range
of
reasonable professional assistance.'' Id at 689.
Second, petitioner must show that his counsel's performance
prejudiced the
whether
the
defense.
The
appropriate
test
petitioner
can
show
there
probability that,
but for
"that
counsel's
for prejudice is
is
a
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
Strickland's general standard is
review governing 28 U.S.C.
§
trial.
Id
at
696.
When
combined with the standard of
2254 habeas corpus cases, the result
is a "doubly deferential judicial review." Mirzayance,
556 U.S.
at 122.
Petitioner directs the court to the PCR record for support
for his claim. During his PCR proceedings, petitioner submitted a
Declaration
testify,
in
which
he
stated
that
he
"had
not
wanted
to
but was assured that it would work out when the court
heard from
[my two brothers]
and our LDS bishop.
put on the stand and no effort was made to have
Instead,
[them]
I was
testify.
As such I believe my testimony was coerced." Respondent's Exhibit
161, p. 8.
Both of petitioner's trial attorneys submitted affidavits to
the
PCR
court
on
this
issue
9 - OPINION AND ORDER
in
which
they
denied
coercing
petitioner into testifying at trial.
Respondent's Exhibits 157 &
158. One of the attorneys explained:
2.
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.
3.
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. * * *
6.
Throughout the time I represented Aaron
he was ironclad in his determination to take
the
stand
to
present
his
defense
of
transferred intent to the jury and show them
that there was absolutely nothing wrong with
his mental faculties. * * *
7.
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.
I
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.
I
didn't
enjoy
the
brutality
of
my
questioning of him, but I saw no other path,
and I think the resulting verdict vindicates
my approach.
Respondent's Exhibit 157, pp. 2-3.
The PCR court resolved the issue as follows:
Defendant's
affidavits
establish
that
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
testified.
Petitioner fails to present a
cogent explanation about why his testimony
was
dependent
upon
the
other
witnesses
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
not
call
his
brothers
or
the
church
bishop
to
also
testify,
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
objective
standard
petitioner fails
the
PCR
contrary
decision
assistance
to,
reasonableness,
and
to demonstrate prejudice.
court's
ineffective
of
nor
an
of
denying
counsel
unreasonable
established federal law.
Ill
Ill
Ill
Ill
Ill
Ill
11 - OPINION AND ORDER
if
it
did,
For these reasons,
relief
claim
even
is
on
petitioner's
therefore
application
of,
neither
clearly
CONCLUSION
For the reasons identified above,
Writ
of
Habeas
Corpus
(#20)
is
the Amended Pe ti ti on for
denied.
The
court
declines
to
issue a Certificate of Appealability on the basis that petitioner
has
not
made
a
substantial
showing
constitutional right pursuant to 28 U.S. C.
of
§
the
denial
of
2253 (c) ( 2) .
IT IS SO ORDERED.
DATED
this~
day of August, 2017.
~M~co A~Hernandez
United States District Judge
12 - OPINION AND ORDER
a
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