Redwing v. Oregon State Prison
Filing
39
OPINION AND ORDER: The Petition for Writ of Habeas Corpus 2 is denied. Should Petitioner appeal this decision, the Court issues a Certificate of Appealability as to his Ground One claim only. (See 11 page opinion for more information) Signed on 12/21/18 by Judge Marco A. Hernandez. (dsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
RODNEY JAMES REDWING,
Case No. 6:17-cv-00796-HZ
Petitioner,
OPINION AND ORDER
v.
OREGON STATE PRISON,
Respondent.
Thomas J. Hester
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, Oregon 97310
Attorneys for Respondent
1 - OPINION AND ORDER
HERNANDEZ, District Judge.
Petitioner
U.S.C.
§
2254
convictions.
brings
this
habeas
challenging
the
corpus
legality
For the reasons that follow,
case
of
pursuant
his
to
28
state-court
the Petition for Writ
of Habeas Corpus (#2) is denied.
BACKGROUND
On January 21,
2005, Corrina Colvin set up a birthday party
for Petitioner. As Petitioner was arriving to the party,
a male
acquaintance approached Colvin from behind and pulled her toward
him by her belt loops.
This enraged Petitioner,
and he directed
his anger at Colvin. As soon as the couple arrived at their home,
Petitioner struck Colvin from behind when she was one step inside
the home,
knocking her to the floor.
Trial Transcript,
p.
134.
When she tried to stand up, Petitioner knocked her down again. He
then began ripping off Calvin's shirt and bra. 1 Colvin tried to
get
away
to
escape
upstairs
and
put
Petitioner repeatedly knocked her down.
more
clothes
on,
but
Id at 139.
Petitioner left to go into the garage, at which time Colvin
moved upstairs and put on another bra and shirt. She was not able
to contact the police because Petitioner had hidden her phone as
well
house,
as
her
car
keys.
Id
at
139.
Petitioner
returned
to
the
found Colvin upstairs and hit her in the back of the head
with such force that she "flew over the bed and landed in between
the wall and the bed on the other side."
Id at
140.
He
again
1
Colvin had "more than a simple dislike of being naked" which stemmed from
"issues from childhood problems" which she had disclosed to Petitioner. Trial
Transcript, p. 138.
2 - OPINION AND ORDER
ripped her shirt and bra from her, and then attempted to rupture
her breast implants while telling her "You're a fake." Id at 142.
Petitioner left the bedroom,
more
and Colvin once again put on
clothes and lay very still on the bed in the hopes that
Petitioner would stop hurting her.
Petitioner returned with two
butcher knives, and he cut off her bra and shirt before throwing
the knives aside and telling Colvin that he loved her.
At some point, Colvin was able to get out the front door of
the house. She made it "probably seven feet" out the front door
but Petitioner "came out and picked me up and carried me back
in."
Id at 143-44.
At another point,
Petitioner grabbed her by
her hair and dragged her up the stairs of the home,
leaving her
with bald spots on the back of her head. Id at 147.
After Petitioner had calmed down,
Colvin went downstairs,
consumed three bottles of pills in an attempt to commit suicide,
and asked Petitioner to tell her children that she loved them.
She later changed her mind about taking her own life, and asked
Petitioner to drive her to the hospital but he was unable to find
the keys to any of their three cars,
could not find either of
their phones, and would not allow Colvin to leave the house.
Id
at 149-50. Petitioner ultimately located the keys to his van and
took Colvin to the hospital for treatment.
The
Marion
County
Grand
Jury
indicted
counts of Kidnapping in the First Degree,
in the Fourth Degree,
Use of a Weapon,
Respondent's
Petitioner
and one count each of Coercion,
102.
3 - OPINION AND ORDER
A jury
two
two counts of Assault
Robbery in the Third Degree,
Exhibit
on
convicted
Unlawful
and Harassment.
Petitioner
of
all
charges,
and the trial court sentenced him to a prison sentence
totaling 186 months.
Petitioner took a direct appeal where the Oregon Court of
Appeals found that the trial court failed to merge the Kidnapping
I convictions, remanded the case for resentencing on this issue,
but
otherwise
Redwing,
affirmed
222 Or.
App.
the
200,
trial
court's
192 P.3d 856
decision. 2
(2009).
State
v.
Petitioner did
not seek further review by the Oregon Supreme Court.
Petitioner next filed for post-conviction relief
(•PCR")
in
Marion County where he alleged that trial counsel was ineffective
for failing to challenge the kidnapping charges as unsupported by
state law. Respondent's Exhibit 110. The PCR Court denied relief
on the PCR Petition,
decision
review.
without
the Oregon Court of Appeals affirmed that
opinion,
Redwing v.
Premo,
and the Oregon
277 Or. App.
Supreme Court
783,
denied
376 P.3d 307,
rev.
denied, 360 Or. 568, 385 P.3d 81 (2016).
Petitioner filed
his
federal
Petition
for
Writ
of Habeas
Corpus on May 22, 2017 and raises the following claims:
Ground One: Trial counsel failed to alert the
trial court to, and preserve for appeal, a
favorable Oregon Supreme Court case decided
shortly before his trial; and
Ground Two: Petitioner's conviction resulted
from an unlawful search and seizure where
Officer
Rhine
never
possessed
a
search
warrant.
Respondent asks
because:
( 1)
the Court to deny relief on these
claims
the PCR Court's decision denying relief on Ground
2
Petitioner's total term of imprisonment remained 186 months after his
resentencing. See Respondent's Exhibit 109, p. 3.
4 - OPINION AND ORDER
One was not unreasonable;
cognizable
claim,
is
and
(2)
Ground Two fails to state a
procedurally defaulted,
and
is
unargued.
Where the Ground Two search and seizure issue is not a proper
basis
for
federal
habeas
corpus
relief,
and where
Petitioner
procedurally defaulted the issue by not fairly presenting it to
the Oregon's state courts,
further discussion.
(1979)
(where
seizure
See
litigant
claim
in
the Court denies the claim without
Stone
had
state
v.
428
Powell,
opportunity
court,
to
federal
U.S.
465,
481-82
raise
search
and
habeas
relief
is
unavailable); Rose v. Lundy, 455 U.S. 509, 519 (1982)
(requiring
exhaustion of state court remedies).
DISCUSSION
I.
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.
28
U.S.C.
2254 (e) (1).
A
state
court
decision
established precedent
if
the
is
"contrary
state
court
to
applies
clearly
a
rule
that
contradicts the governing law set forth in [the Supreme Court's]
5 - OPINION AND ORDER
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.
Taylor,
"unreasonable
529
U.S.
application"
362,
clause,
405-06
federal
a
(2000).
habeas
court may grant relief "if the state court identifies the correct
governing legal principle
from
but
applies
that
at
413.
unreasonably
prisoner's
clause
case."
requires
Id
the
state
incorrect or erroneous.
[the
Supreme Court's]
principle
The
court
Id at 410.
to
the
facts
"unreasonable
decision
to
decisions
of
the
application"
be
more
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.
Richter,
562
U.S.
86,
102
(2011).
II.
Ground One: Ineffective Assistance of Counsel
Petitioner
alleges
that
trial
his
attorney
rendered
ineffective assistance when he failed to move for a judgment of
acquittal
on the
kidnapping charges where the movement of the
victim was merely incidental to the assault.
Court
precedent
facts
of
this
is
directly on point
case,
the
Court
uses
that
the
Because no Supreme
corresponds
general
to
two-part
the
test
established by the Supreme Court to determine whether Petitioner
received
Mirzayance,
show
that
ineffective
556 U.S.
his
assistance
111,
counsel's
6 - OPINION AND ORDER
122-23
of
counsel.
(2009).
performance
First,
fell
Knowles
v.
Petitioner must
below
an
objective
standard of reasonableness.
668,
686-87
(1984).
Due
counsel's performance,
that
the
conduct
Strickland v.
to
the
Washington,
difficulties
courts must indulge a
falls
within
the
"wide
in
466 U.S.
evaluating
strong presumption
range
of
reasonable
professional assistance." Id at 689.
Second,
Petitioner must show that his counsel's performance
prejudiced the
whether
defense.
Petitioner
probability that,
The
can
but
appropriate
show
for
"that
test
there
for
is
prejudice
a
is
reasonable
counsel's unprofessional errors,
the
result of the proceeding would have been different.'' Id at 694.
In
the
context
of
a
motion
for
judgment
Petitioner claims should have been made,
of
acquittal
that
he must establish that
there is a reasonable probability that such a motion would have
been successful.
Cir.
See Styers v.
Schriro, 547 F. 3d 1026,
the standard of review governing 28 U.S.C.
the
(9 th
When Strickland's general standard is combined with
2008).
cases,
1030
result
is
a
"doubly
§ 2254 habeas corpus
deferential
judicial
review."
Mirzayance, 556 U.S. at 122.
Under Oregon law, a person is guilty of Kidnapping II if he
takes
the victim from one place to another with the intent to
interfere substantially with the victim's personal liberty.
ORS
§ 163.225. Kidnapping I can be satisfied where the person commits
Kidnapping II with the purpose of terrorizing or causing physical
injury to
months
the
prior
victim.
to
decided State v.
3
ORS
163.235(c)&(d). 3 Approximately eight
Petitioner's
Wolleat,
trial,
338 Or.
the
469
Oregon
(2005),
wherein it
The jury convicted Petitioner under both of these theories.
7 - OPINION AND ORDER
Supreme
Court
shed
light
on
the
kind
of
victim movement
required
to
justify
a
kidnapping conviction in Oregon.
In Wolleat, the assailant grabbed the victim by her hair and
dragged her from her bedroom into the living room of the same
home,
a distance estimated to be between 15-20 feet,
assaulted
her
until
she
escaped.
The
Oregon
where he
Supreme
Court
concluded that where Oregon law requires that a defendant intend
to
the
interfere "substantially" with a victim's personal liberty,
movement
matter
of
of
law
the
to
victim in
support
the
Wolleat
intent
was
insufficient
element
associated
as
a
with
kidnapping. 338 Or. at 478.
In his PCR proceeding,
Petitioner argued that there was no
evidence to show that he intended to substantially interfere with
Calvin's liberty,
of acquittal.
thus counsel should have moved for a judgment
The PCR Court disagreed,
and found that "[t]here
was sufficient evidence that pet [itioner]
carried the
back into the house when she tried to escape for
[victim]
[the] court to
deny judgment of acquittal." Respondent's Exhibit 135, p. 3.
Petitioner takes
issue
with the
PCR Court's decision and
points out that Colvin only exited the house by seven feet before
he carried her back inside the house,
whereas Woll eat involved
the greater distance of 15-20 feet yet the Oregon Supreme Court
still did not find this to be a "substantial distance" so as to
support
a
kidnapping
charge.
insignificant movement at
incidental
to
the
assault
8 - OPINION AND ORDER
He
contends
issue in his
such that
case,
a motion
that
given
the
the movement was
for
judgment
of
acquittal in the wake of the Woll eat decision would have been
successful.
The PCR Court applied the facts of Pefltioner's case to its
interpretation
revisit
such
of
a
state
law.
determination
Federal
and
habeas
conclude
that
misapplied state law. See Estelle v. McGuire,
( 1991)
(" [W] e
reemphasize
that
it
is
courts
not
a
may
state-court
502 U.S. 62,
the
not
province
67-68
of
a
federal habeas court to reexamine state-court determinations on
state-law questions."). However, even if it were the province of
this Court to second-guess the PCR Court's application of Wolleat
to Petitioner's case, the PCR Court did not rule that seven feet
of movement amounts to a "substantial distance" under Oregon law.
Instead,
the
PCR Court
focused
on the
change of
location and
found (without reference to distance) that Petitioner carried the
victim from an area out in the open in front of the home (and in
view of the street and neighboring homes)
back into the private
residence after she had fled the dwelling.
135,
p.
3;
Respondent's
Exhibit 131,
p.
Respondent's Exhibit
8.
This,
movement of seven feet as a substantial distance,
and not the
appears to be
the basis for the PCR Court's finding that a motion for judgment
of acquittal would not have been well-taken.
Moreover,
even assuming the PCR Court misapplied state law
regarding the movement of Colvin, the movement was not the only
evidence of Petitioner's intent to interfere with her liberty.
Petitioner not only physically moved Colvin back into the home
and prevented her from leaving,
cell
phone
thereby
but also took her keys and her
demonstrating
9 - OPINION AND ORDER
his
intent
to
substantially
interfere
with
her
liberty
in
a
way
that
was
not
merely
incidental to the assault. As the Oregon Supreme Court explained
in State v. Mejia, 348 Or. 1, 10 (2010):
Wolleat and [State v.
Zweigart, 344 Or. 619,
188 P. 3d 242 ( 2008) , ] involved situations in
which the actual physical movement of the
victim was the only evidence available to
prove whether the defendants intended to
kidnap
the
victims
by
substantially
interfering with their personal liberty.
Those cases demonstrate that, when the only
evidence of a defendant's intent is physical
movement of the victim, a reasonable juror
may
only
infer
intent
to
interfere
substantially with a victim's freedom of
movement if there is 'evidence that the
defendant moved the victim a substantial
distance.' Zweigart, 344 Or. At 636.
Mejia, 348 Or. at 10 (emphasis in original).
Accordingly, even assuming the PCR Court had focused only on
the
distance
assuming
this
motion for
of
Calvin's
Court
involuntary
could
find
such
movement,
a
decision
and
further
erroneous,
a
judgment for acquittal would not have succeeded at
trial because Petitioner's intent to substantially interfere with
Colvin' s
liberty
Colvin' s
keys
incidental
to
was
and
illustrated beyond movement
cell
the
phone,
assault.
actions
Petitioner
which
when
were
therefore
he
not
hid
simply
suffered
no
prejudice from any failure of counsel to move for a judgment of
acquittal.
nebulous
kidnapping
At
a
minimum,
"substantial
statutes,
and
in
interference"
this
Court
light
of
test
cannot
Oregon's
associated
conclude
that
somewhat
with
its
the
PCR
Court's decision to deny relief on Petitioner's Ground One claim
was so erroneous that no fairminded jurist could agree with it.
10 - OPINION AND ORDER
CONCLUSION
For the reasons identified above,
Habeas
Corpus
decision,
(#2)
is
denied.
Should
the Petition for Writ of
Petitioner
appeal
this
the Court issues a Certificate of Appealability as to
his Ground One claim only.
IT IS SO ORDERED.
DATED this
-~\
day of December, 2018.
United States District Judge
11 - OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?