Unpublished Disposition, 884 F.2d 1394 (9th Cir. 1988)

MEMORANDUM^** 

Joseph appeals from the judgment of the district court granting respondent's motion for summary judgment and dismissing Joseph's petition for a writ of habeas corpus. Joseph seeks reversal on the ground that there was insufficient evidence to sustain his state conviction for kidnapping in the first degree. Joseph also challenges the magistrate's order striking his "Reply to Respondent's Return Answer and Supplemental to the Original Petition for Writ of Habeas Corpus." We affirm.

* BACKGROUND

Petitioner Roy Stephen Joseph was arrested on April 9, 1985 and was charged with attempted rape and kidnapping in the first degree. Joseph waived trial by jury. The state court trial record shows that the victim, Mrs. Jones, testified that after leaving an eating establishment in the early hours of the morning of April 9, 1985, she voluntarily got into Joseph's car. She had not met Joseph previously. Mrs. Jones testified that she accepted the offer of a ride to her home, which was less than two blocks away.

While in the car Joseph asked her if she wished to "get into something" which she interpreted as an invitation for sex or drugs. After a negative answer, Joseph grabbed her hair, and drove past her home. He forced her to go to his hotel room. Joseph then threw her onto his bed, and stated that "he was gonna give [her] some sex."

Joseph told Mrs. Jones to disrobe, and she refused. Joseph unbuttoned his pants, got on top of her, and attempted to take off her clothes. Mrs. Jones screamed and threw some objects at Joseph and at his window. Then Jones left the room.

The government also presented the testimony of Mr. Gustafson, a neighbor in the hotel. Mr. Gustafson testified that for about ten minutes on the night in question he "heard this commotion and it was a combination of something being thrown around the room and screaming, hollering." Gustafson went down to the lobby after it quieted down. There he found Mrs. Jones crying.

Joseph took the stand and testified that his motive for taking Mrs. Jones to his apartment was that he "wanted someone to clean his pad." He testified that he thought about having sex with Jones but it was only a "minor issue."

The trial court weighed the evidence and found Mrs. Jones' testimony more credible than Joseph's testimony. The trial judge acquitted Joseph on the attempted rape charge, but found him guilty of first degree kidnapping. After exhausting his state court remedies Joseph filed a petition for federal habeas corpus relief on July 15, 1987. The respondent filed an answer along with a motion for summary judgment. The district court granted the summary judgment motion on April 12, 1988 and dismissed the petition for habeas corpus. Joseph filed a timely notice of appeal on April 14, 1988.

II

DISCUSSION

Joseph contends that the district court erred in granting respondent's motion for summary judgment and dismissing his petition for habeas corpus because the evidence adduced at trial was insufficient, according to Oregon law, to sustain the guilty verdict on the count of kidnapping in the first degree.

We review independently and non-deferentially a district court's dismissal of a petition for habeas corpus. Chatman v. Marques, 754 F.2d 1531, 1533-34 (9th Cir.), cert. denied, 474 U.S. 841 (1985). In reviewing a challenge to the sufficiency of the evidence we must view the evidence in the light most favorable to the government to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Poschwatta, 829 F.2d 1477, 1480 (9th Cir. 1987), cert. denied, 108 S. Ct. 1024 (1988). The state court's findings and conclusions are entitled to a presumption of correctness where adequately supported by the record. 28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539, 551 (1981).

The elements the state needed to show in order to prove kidnapping in the first degree were (1) that Joseph took the victim from one place to another with the intent to substantially interfere with her liberty, without legal consent or authority; and (2) "with the purpose to cause physical injury to the victim." Or.Rev.Stat. 163.235(1) (c) (1987).

Viewing the evidence in the light most favorable to the government, the state established the existence of all the elements necessary to sustain the conviction for kidnapping in the first degree. A rational trier of fact could find that Joseph's action of grabbing Mrs. Jones' hair and driving her to his residence, instead of to her home, satisfied the first element of taking the victim from one place to another without legal consent. Mrs. Jones' testimony that, without consent, Joseph jumped on top of her and attempted to disrobe her by reaching under her robe satisfied the second element of taking the victim with the purpose of causing physical injury. State v. Strickland, 36 Or.App. 119, 584 P.2d 310, 313 (1978).

Joseph also appears to challenge the order by Magistrate Hogan striking his "Reply to Respondent's Return Answer and Supplemental to the Original Petition for Writ of Habeas Corpus." Magistrate Hogan struck Joseph's reply pursuant to Local Court Rule 110-5(c) of the District of Oregon. Local Rule 110-5(c) provides that "A party represented by an attorney cannot appear or act except through the attorney." Because Joseph was represented by counsel, the magistrate did not err in striking Joseph's supplemental pro se documents.

The judgment of the district court is AFFIRMED.