Richardson v. Belleque

Filing 57

OPINION AND ORDER: The Petition for Writ of Habeas Corpus 1 is DENIED and this case is DISMISSED. A Certificate of Appealability is denied on the basis that petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). Signed on 3/30/2020 by Judge Michael J. McShane. (dsg)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

CHARLES EDWARD RICHARDSON,
Petitioner,

Case No. 6:16-cv-01801-MC
OPINION AND ORDER

v.
BRIAN BELLEQUE, Oregon State
Penitentiary,
Respondent.
________________________________
MCSHANE, District Judge:
Petitioner seeks federal habeas relief pursuant to 28 U.S.C. § 2254, alleging the
deprivation of his right to the effective assistance of trial counsel. Respondent argues that
petitioner’s claims are procedurally defaulted and otherwise lack merit. Based on the record
before the court, petitioner fails to establish he is entitled to federal habeas relief. The petition is
DENIED.
BACKGROUND
On June 25, 2006, petitioner and his wife began arguing at the Prairie Schooner, a tavern
on the outskirts of Eugene, Oregon. Resp’t Ex. 119 at 9. Petitioner was drinking, using
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profanity, and threatening his wife. Resp’t Ex. 119 at 134-37, 145-46. At one point, petitioner
exited the tavern, slamming the door as he left. The victim, an elderly gentleman who was
patronizing the tavern, followed petitioner outside and approached him. Resp’t Ex. 120 at 8-9.
Petitioner punched the victim once in the forehead; the victim fell, and his head struck the
ground. Resp’t Ex. 120 at 9. Petitioner walked past the victim into the tavern, paid his tab, and
left. As petitioner left the tavern, he again walked past the victim, who was lying unconscious
on the ground. Resp’t Ex. 119 at 13-14. Another patron witnessed the incident on the tavern’s
security monitors and alerted others who came to the victim’s aid. Resp’t Ex. 120 at 9-10. The
victim was taken to a hospital, where he died the next day as a result of head injuries. Resp’t Ex.
119 at 13.
Petitioner was charged with one count of Manslaughter in the First Degree and one count
of Assault in the Second Degree. Resp’t Ex. 116. Petitioner pleaded not guilty to the charges and
proceeded to jury trial.
To convict on the charge of Manslaughter in the First Degree, the State was required to
prove that petitioner acted recklessly and with “extreme indifference to the value of human
life.” Or. Rev. Stat. § 163.118(1)(a). The State contended that petitioner recklessly killed the
victim by striking him in the head and demonstrated extreme indifference to the value of human
life by twice stepping over the victim without rendering or seeking aid. Resp’t Ex. 121 at 151.
Petitioner’s trial attorney argued that petitioner had acted in self-defense when the victim
approached him outside of the tavern. Resp’t Ex. 121 at 185-87. Alternatively, the defense
contended that petitioner had not intended to hurt the victim and did not realize the extent of the
victim’s injuries when he left the scene. Resp’t Ex. 119 at 37-38; Resp’t Ex. 121 at 181-82.
At the close of evidence, the trial court gave the following instructions:

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In Count 1, charging Manslaughter in the First Degree, it’s alleged that the
defendant, on or about June 25th, 2006, in Lane County, recklessly caused the
death of Robert Geyer, a human being, under circumstances manifesting an
extreme indifference to the value of human life.
***
Now, with respect to Count 1, charging Manslaughter in the First Degree, Oregon
law provides that person commits the crime of Manslaughter in the First Degree if
that person recklessly causes the death of another person under circumstances
manifesting extreme indifference to the value of human life.
In this case, to establish the crime of Manslaughter in the First Degree, the State
must prove beyond a reasonable doubt the following three elements: first, that the
act occurred in Lane County, Oregon; second, that the act occurred on or about
June 25th, 2006; and, third, that the defendant unlawfully and recklessly caused
the death of Robert Geyer under circumstances manifesting extreme indifference
to the value of human life.
Resp’t. Ex. 122 at 7, 11. The trial court gave an instruction defining the term “recklessly.”
Resp’t Ex. 122 at 9. The court did not define the term “extreme indifference to the value of
human life,” and petitioner’s counsel did not request a special instruction.
The trial court also instructed the jury on the lesser included offenses of Manslaughter in
the Second Degree and Criminally Negligent Homicide, neither of which require the element of
“extreme indifference to the value of human life.” The trial court explained:
To establish the lesser-included crime of Manslaughter in the Second Degree, the
State must prove as follows: first, that the act occurred in Lane County, Oregon;
second, that the act occurred on or about June 25th, 2006; and, third, that the
defendant recklessly caused the death of Robert Geyer.
***
In this case, to establish the crime of Criminally Negligent Homicide, the State
must prove beyond a reasonable doubt the following three elements: first, that the
act occurred in Lane County, Oregon; second, that the act occurred on or about
June 25th, 2006; and, third, that the defendant, with criminal negligence, caused
the death of Robert Geyer.
***

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The difference in the proof required in the charged offense as compared to the
lesser-included offense are as follows. For Manslaughter in the First Degree, the
State must prove that the crime was committed recklessly with, under
circumstances manifesting extreme indifference to the value of human life. For
Manslaughter in the Second Degree, the State must prove that the offense was
committed recklessly but not with, under circumstances manifesting extreme
indifference.
Resp. Ex. 122 at 12-13.
The jury convicted petitioner of Manslaughter in the First Degree and Assault in the
Second Degree. The trial court subsequently sentenced petitioner to 260 months of imprisonment
under Oregon’s dangerous offender statute. Resp’t Ex. 115 at 5-8.
After an unsuccessful direct appeal, petitioner filed a petition for post-conviction relief
(PCR) and alleged several claims of ineffective assistance of trial and appellate counsel. Resp’t
Exs. 129 at 19, 130-31, 133. The PCR court granted relief on petitioner’s ineffective assistance
claim based on trial counsel’s failure to present expert psychological evidence to rebut a
dangerous offender designation. Resp’t Ex. 146 at 1, 3-4. The PCR court denied relief on all
other claims, including petitioner’s claim that counsel was ineffective by failing to request a
special jury instruction defining the phrase “extreme indifference to the value of human life.”
Resp’t Ex. 146 at 2.
The State and petitioner filed cross-appeals of the PCR court’s decision. The Oregon
Court of Appeals and the Oregon Supreme Court affirmed in written decisions addressing only
the sentencing issue. Resp’t Exs. 151, 159-60; Richardson v. Belleque, 277 Or. App. 615, 373
P.3d 1113 (2016), aff’d, 362 Or. 236, 406 P.3d 1074 (2017). On remand, the trial court imposed
an upward departure sentence of 228 months of imprisonment. Resp’t Ex. 115 at 13-16.
On September 12, 2016, petitioner filed the instant habeas action. The case was stayed
until October 2, 2018 to allow completion of petitioner’s PCR proceeding.

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DISCUSSION
In his federal Petition, petitioner raises sixteen claims alleging the ineffective assistance
of trial counsel and one claim alleging the ineffective assistance of appellate counsel. See Pet. &
Att. A (ECF Nos. 1, 1-1). In his supporting brief, however, petitioner presents argument in support
of only one claim. See generally Pet’r Br. (ECF No. 50). Accordingly, petitioner fails to sustain
his burden of establishing entitlement to habeas relief with respect to the unargued claims. See
Mayes v. Premo, 766 F.3d 949, 957 (9th Cir. 2014) (habeas petitioner bears the burden of proving
his case); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004) (accord).1
In Ground One, petitioner alleges that trial counsel “failed to request an instruction
defining the element of ‘extreme indifference to the value of human life’ in order to distinguish
that element from the element of ‘recklessness.’” Pet. Att. 1 at 1. Specifically, petitioner
maintains that counsel should have requested an instruction consistent with the decision in State
v. Boone, 294 Or. 630, 661 P.2d 917 (1983), which explained that extreme indifference to the
value of human life “means a state of mind where an individual cares little about the risk of death
of a human being.” Pet’r Br. at 16 (quoting Boone, 294 Or. at 638-39). The PCR court rejected
this claim, and respondent maintains that the PCR court’s decision is entitled to deference.
A federal court may not grant a habeas petition regarding any claim “adjudicated on the
merits” in state court, unless the state court decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme

1

As noted by respondent, all but one of the unargued claims are unexhausted and barred
from federal review through procedural default. Resp’t Reply at 4-5 (ECF No. 55); see 28
U.S.C. § 2254(b)(1)(A) (requiring a state habeas petitioner to exhaust all available state court
remedies before a federal court may consider granting habeas relief); Coleman v. Thompson,
501 U.S. 722, 732, 735 n.1 (1991) (if a claim was not fairly presented to the state courts, it is
barred through procedural default); Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002) (“A
procedural default may be caused by a failure to exhaust federal claims in state court.”).
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Court of the United States.” 28 U.S.C. § 2254(d)(1). A state court decision is “contrary to”
federal law if it fails to apply the correct Supreme Court authority, or if it reaches a different
result in a case with facts “materially indistinguishable” from Supreme Court precedent. Brown
v. Payton, 544 U.S. 133, 141 (2005). A state court decision is an “unreasonable application” of
clearly established federal law if the state court identifies the correct legal principle but applies it
in an “objectively unreasonable manner.” Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per
curiam); see also Early v. Packer, 537 U.S. 3, 11 (2002) (per curiam) (state court decisions may
be set aside “only if they are not merely erroneous, but ‘an unreasonable application’ of clearly
established federal law, or based on ‘an unreasonable determination of the facts’”).
Under well-established Supreme Court precedent, a habeas petitioner alleging ineffective
assistance of counsel must show that 1) “counsel’s performance was deficient,” and 2) counsel’s
“deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). To establish deficient performance, petitioner “must show that counsel’s representations
fell below an objective standard of reasonableness.” Id. at 688. To demonstrate prejudice,
petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694. Unless petitioner
“makes both showings, it cannot be said that the conviction...resulted from a breakdown in the
adversary process that renders the result unreliable.” Id. at 687.
In rejecting petitioner’s claim, the PCR court found that petitioner’s counsel made a
“reasonable,” strategic decision “not to request special instruction (there is no uniform) on
‘extreme indifference,’” and that counsel argued the meaning of the phrase “effectively.” Resp’t
Ex. 146 at 2. The PCR court’s decision was not an unreasonable application of Strickland.

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As noted by the PCR court, Oregon uniform jury instructions do not include an
instruction for “extreme indifference to the value of human life.” Resp’t Ex. 146 at 2. As he
testified during his PCR deposition, petitioner’s counsel “did not think there was a need for
additional instruction” because “of the facts of the case.” Resp’t Ex. 138 at 16. Instead,
petitioner’s counsel relied on the uniform instructions for manslaughter and felt “comfortable”
explaining the difference between recklessness and extreme indifference to human life during his
closing argument. Resp’t Ex. 138 at 14, 16. When asked about an instruction based on Boone,
that “extreme indifference to human life” means “an individual cares little about the risk of death
of a human being,” counsel responded that he did not see a “major difference” between “cares
little” and “extreme indifference.” Resp’t Ex. 138 at 17. In fact, counsel was of the opinion that
the phrase “cares little” invited unnecessary jury speculation. He explained:
I think in some respect extreme indifference language is stronger for the defense
than hearing words saying I cared very little…. You avoid then, we care little,
how much, 20 percent, ten percent, 30 percent. I think you then move yourself to
arguing about caring little or a little bit more or maybe a whole bunch or not a lot.
I think that really sidetracks your argument. You’re better off I think just to
proceed with extreme indifference. Boom. Extreme indifference, that’s just in
your face.
Resp’t Ex. 138 at 18-19.
Generally, “informed decisions” and “strategic choices” by counsel must be respected “if
they are based on professional judgment.” Strickland, 466 U.S. at 681. A “trial attorney’s failure
to request a jury instruction receives no deference, however, when it is based on ‘a
misunderstanding of the law’ rather than ‘a strategic decision to forego one defense in favor of
another.’” Crace v. Herzog, 798 F.3d 840, 852 (9th Cir. 2015) (quoting United States v. Span, 75
F.3d 1383, 1390 (9th Cir. 1996)); see also United States v. Alferahin, 433 F.3d 1148, 1161 (9th
Cir. 2006) (finding counsel’s performance deficient when he “did not intend strategically to

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forego the materiality instruction” but “had no idea that such an instruction was available to his
client as a matter of right”).
Here, counsel’s decision did not rest on a misunderstanding of the law. Counsel made a
reasoned, informed decision to argue the meaning of “extreme indifference” rather than request
a special jury instruction. In doing so, counsel emphasized to the jury that they could find
petitioner guilty only if they found, in addition to recklessness, extreme indifference to the value
of human life. Resp’t Ex. 121 at 194 (“Manslaughter 1 has two prior things. Has to be done
recklessly, okay? Has to be extreme indifference to the value of human life.”). Counsel then
argued that petitioner simply struck the victim once and did not “act with extreme indifference
at all.” Resp’t Ex. 121 at 195. Counsel emphasized that petitioner “didn’t stand over this guy; he
didn’t kick him or anything at all….He didn’t hit him more. He didn’t kick him in the groin. He
didn’t hit him in the heart. He responded to what was viewed as a threat -- a single time,
period.” Resp’t Ex. 121 at 195. Under these circumstances, counsel’s performance did not fall
below the objective standard of reasonableness.
Petitioner also fails to show prejudice. Notably, the phrase “extreme indifference to the
value of human life” includes words with plain meanings rather than arcane, legalistic terms that
require additional explanation. Further, counsel’s argument and the trial court’s instructions
made clear that Manslaughter in the First Degree, as opposed to the lesser included offenses,
required more than reckless conduct. Resp’t Ex. 121 at 194-97; Resp’t Ex. 122 at 7, 11-13. Even
the prosecutor made the difference clear. He argued:
There’s a difference between the different degrees of Manslaughter. The Court is
going to tell you what that is. But the one the defendant is charged with, the main
charge, requires extreme indifference to the value of human life. So why would
the defendant lie about stepping over the old man and leaving? Now it seems
obvious to you why: because that shows extreme indifference to the value of
human life.
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Resp’t Ex. 121 at 151. Based on counsel’s closing arguments and the court’s thorough
instructions, the jury knew that Manslaughter in the First Degree required a showing of extreme
indifference to the value of human life in addition to reckless conduct, and it convicted petitioner
of that charge.
Accordingly, petitioner fails to establish that the PCR court unreasonably applied
Strickland in rejecting his claim of ineffective assistance of trial counsel, and petitioner is not
entitled to habeas relief.
CONCLUSION
The Petition for Writ of Habeas Corpus (ECF No. 1) is DENIED and this case is
DISMISSED. A Certificate of Appealability is denied on the basis that petitioner has not made a
substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
DATED this 30th day of March, 2020.

s/ Michael J. McShane
Michael J. McShane
United States District Judge

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