Henderson v. Premo

Filing 26

OPINION AND ORDER: Petitioner's Petition for Writ of Habeas Corpus 2 is DENIED, and this proceeding is DISMISSED, with prejudice. The Court declines to issue a Certificate of Appealability because Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). (See 7 page opinion for more information) Signed on 7/24/17 by Judge Marco A. Hernandez. (dsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JAIME DARNELL HENDERSON,
Case No. 6:16-cv-00969-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
Samuel A. Kubernick
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301-4096
Attorneys for Respondent

1 – OPINION AND ORDER

HERNANDEZ, Judge.
Petitioner is currently in the custody of the Oregon Department of Corrections. He brings
this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons set forth below,
Petitioner's Petition for Writ of Habeas Corpus (ECF No. 2) is DENIED, and this case is
DISMISSED.
BACKGROUND
In April 2009, a Lane County jury convicted Petitioner of the following charges,
stemming from a non-fatal shooting of the victim in this case: assault in the first degree with a
firearm, attempted murder with a firearm, unlawful use of a weapon (firearm), and felon in
possession of a firearm. Resp’t Ex. 101 (ECF No. 18). The court imposed concurrent sentences
totaling 240 months of imprisonment, as well as two years of post-prison supervision. Id.
Petitioner directly appealed his convictions, raising several claims of trial court error. Resp’t
Ex’s 103-108 (ECF No. 18). The Oregon Court of Appeals affirmed without opinion (State v.
Henderson, 247 Or. App. 353 (2011)), and the Oregon Supreme Court denied review (352 Or. 33
(2012)).
Petitioner then sought post-conviction relief (“PCR”), alleging claims of ineffective
assistance of trial and appellate counsel. Resp’t Ex’s 147-51 (ECF No. 20). The PCR court
denied relief (Henderson v. Nooth, Malheur County Circuit Court Case No. 1306289P), finding,
in relevant part:
As I indicated, I have read the exhibits and your filings prior to this time and I am
prepared to rule. I am denying post-conviction relief and I am basically going to
make the following findings. There’s insufficient proof of any failure to
investigate the witnesses or the scene. Victim knew the Petitioner for years and
was able to name him. He was also lucid enough to make a photo ID. That idea
is corroborated by several other witnesses. Based on the statements of Petitioner
to his girlfriend and to friends, an alibi defense was not viable. The better defense

2 – OPINION AND ORDER

is that he was there, but he wasn’t the shooter. There is no basis to exclude any of
the IDs.
Resp’t Ex. 145 (ECF No. 19) at 18-19 (emphasis added). The Oregon Court of Appeals affirmed
without opinion (Henderson v. Nooth, 276 Or. App. 226 (2016)), and the Oregon Supreme Court
denied review (659 Or. 667 (2016)).
In his Petition for Writ of Habeas Corpus Petitioner alleges the following grounds for
relief:
GROUND ONE: Mr. Henderson was denied due process of law under the
Fourteenth Amendment of the United States Constitution when trial counsel failed
to call Mr. Carson Angeles Rochiemar, and Mr. Christopher Jarred Philavanh at
trial.
GROUND TWO: Mr. Henderson was denied due process of law under the
Fourteenth Amendment of the United States Constitution when Trial counsel was
ineffective in failing to adequately represent the Petitioner at trial in that trial
counsel failed to present testimony and/or arguments combating the testimony of
Detective Herbert that he had presented the victim with a photograph of Petitioner
shortly after the victim came out of surgery and the under the influence of several
different medications. Trial counsel failed to present testimony/ arguments that
the victim was not in a stable frame of mind to make any identification at that
point in time.
GROUND THREE: Mr. Henderson was denied due process of law under the
Fourteenth Amendment of the United States Constitution when Trial counsel was
ineffective in failing to make an independent investigation of the crime scene or
independently interview any of the state’s witnesses. Had trial counsel made an
independently investigation, she would have been able to gather additional
evidence to dispute the state’s argument that the Petitioner had been the shooter.
GROUND FOUR: Mr. Henderson was denied due process of law under the
Fourteenth Amendment of the United States Constitution when Trial counsel was
ineffective in failing to move to exclude any witness identification evidence prior
to trial, due to the lack of reliability in eyewitness testimony and a lack of physical
evidence corroborating the identification. Said ineffective assistance of counsel
amounted to a violation of the Petitioner’s constitutional rights to a compulsory
process and to the due process under the Oregon Constitution Art1 § 10 as made
applicable by the 5th, 6th, 8th, 14th amendments of the United States
Constitution.

3 – OPINION AND ORDER

Pet. (ECF No. 2) at 10-15.
With the exception of his Sixth Amendment claim that trial counsel was ineffective for
failing to call Rochiemar Carson (“Mr. Carson”) as a witness at trial, all other grounds for relief
are procedurally defaulted, according to Respondent. In his supporting brief, Petitioner only
argues ineffective assistance for failing to call Mr. Carson, and does not traverse the other claims,
or address procedural default. Accordingly, this Court finds that Petitioner has failed to sustain
his burden of demonstrating he is entitled to relief on his un-argued claims. See Lambert v.
Blodgett, 393 F.3d 943, 970 n.16 (9th Cir. 2004) (petitioner bears burden of proving his case);
see also Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2003) (same).
STANDARDS
The question at bar is whether the PCR court’s decision was contrary to, or an
unreasonable application of, clearly established United States Supreme Court precedent, or based
upon an unreasonable determination of the facts in light of the evidence presented in the state
court proceedings. 28 U.S.C. § 2254(d)(1) & (2).
It is clearly established federal law that a claim of ineffective assistance of counsel
requires a habeas Petitioner to prove counsel’s performance fell below an objective standard of
reasonableness, and that there is a reasonable probability the result of the proceeding would have
been different, but for counsel’s unprofessional errors. Strickland v. Washington, 466 U.S. 668,
687-88 (1987). Failure to satisfy either prong of this test obviates the need to consider the other.
Id. at 687.
This Court’s inquiry under Strickland is highly deferential. The Court must indulge a
strong presumption that counsel’s conduct fell within the wide range of reasonable professional
assistance. Hibbler v. Benedetti, 693 F.3d 1140, 1149 (9th Cir. 2012). The issue is not whether

4 – OPINION AND ORDER

this Court believes the state court’s determination under Strickland is incorrect, but whether that
determination was unreasonable – a substantially higher threshold. Knowles v. Mirzayance, 556
U.S. 111, 123-24 (2009); Hibbler, 693 F.3d at 1150.
DISCUSSION
On August 17, 2008, Mr. Carson told the Eugene Police that he and a friend were
drinking alcohol and listening to loud music in the back seat of a vehicle when they “saw a black
male subject chasing another male through the parking lot about four cars west of their location.”
Resp’t Ex. 112 (ECF No. 18) at 2. The friend sitting in the back seat of the vehicle with Mr.
Carson—Christopher Philavanh—also gave a statement to the police, and described the male
subject chasing the other male as having cornrows. Id. at 3. The report states that both “Carson
and Christopher had been drinking alcohol during the evening.

They were both visibly

intoxicated and slurred their words.” Id. Although trial counsel does not specifically reference
Mr. Carson, in her declaration she recalls that most witnesses “were from a bar in the early
morning hours and were very intoxicated, didn’t see anything, or had no helpful information.
Resp’t Ex. 143 (ECF No. 19) at 1.
Petitioner argues the PCR court unreasonably applied Strickland because effective
counsel would have investigated the discrepancy between Mr. Carson’s description of the
shooter’s hair as “short” and the fact Petitioner wore his hair in cornrows.

According to

Petitioner, Mr. Carson’s testimony would have undermined the description of the shooter by the
state’s main identifying witness, Alan Best (“Mr. Best”), who testified that he would have been
able to tell if the shooter’s hair was an “afro” or “big cornrows or like big Rastafarian long
hair….” Trial Tr. (ECF No. 21) at 294. Notably, however, on re-direct, Mr. Best confirmed that

5 – OPINION AND ORDER

his description of the shooter’s hair being “short” or “closely cropped to the head” did not rule
out the possibility that it was in cornrows or tight braids. Id. at 295.
Even assuming Mr. Carson had been available to testify at Petitioner’s trial, and that his
recollection would not have waivered from his report to the police, 1 this Court does not share
0F

Petitioner’s view that Mr. Carson’s testimony would have benefited him, given the victim’s
compelling testimony, which was corroborated by other witnesses.
The victim (who lost a kidney as a result of the shooting) testified that he was absolutely
positive Petitioner, whom he had known for years, was the person who shot him.

2
1F

Trial Tr.

(ECF No. 21) at 44, 57. In the hours immediately preceding the shooting, Petitioner confronted
the victim in a bar. Id. at 47. After the victim left, Petitioner stated to others that he hated the
victim and wanted to kill him. Id. at 218-19. When Petitioner confronted the victim again, later
that night, the victim testified that Petitioner pulled up his shirt and pulled out a gun. Id. at 54.
The victim responded by putting his hands up and walking toward Petitioner, stating, “Well, do
what you got to do, you know.” Id. After the gun “dry fired” twice, the victim began walking
away, then heard more shots. Id. He saw Petitioner standing “in between the cars with some
black gloves.” Id. Once the victim realized he had been hit, he walked to a nearby urgent care
clinic, but it was closed, so he called 911. Id. at 102-103. He immediately told emergency
medical personnel Petitioner was the one who shot him. Id. at 108.

In an affidavit dated February 16, 2013, Mr. Carson avers to no longer recalling “details of the
incident” or “exactly what [he] told police at the time of the incident....” Resp’t Ex. 113 (ECF
No. 18).
2 The victim testified that he had abstained from consuming alcohol for 16 years prior to the
shooting, and was not under the influence of any intoxicants that night. Trial Tr. (ECF No. 21) at
53.
1

6 – OPINION AND ORDER

Accordingly, this Court finds that the PCR court was not objectively unreasonable in its
determination of the facts, or application of the law.
CONCLUSION
Based on the foregoing, Petitioner's Petition for Writ of Habeas Corpus (ECF No. 2) is
DENIED, and this proceeding is DISMISSED, with prejudice. The Court declines to issue a
Certificate of Appealability because Petitioner has not made a substantial showing of the denial
of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
DATED this

day of July, 2017.
____________________
Marco A. Hernandez
U.S. District Judge

7 – OPINION AND ORDER