Jared v. Nooth, No. 2:2012cv01241 - Document 44 (D. Or. 2014)
Court Description: OPINION AND ORDER: The Amended Petition for Writ of Habeas Corpus 22 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 16-page opinion and order attached. Ordered by Judge Marco A. Hernandez. (mr)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MICHAEL STEPHEN JARED, Case No. 2:12-cv-01241-HZ Petitioner, v. MARK NOOTH, OPINION AND ORDER 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, Oregon 97310 Attorneys for Respondent 1 - OPINION AND ORDER HERNANDEZ, District Judge. Petitioner brings U.S.C. § 2254 this habeas challenging the corpus legality case pursuant of convictions for Robbery in the First Degree, his to 28 state-court Kidnapping in the First Degree, Burglary in the First Degree, Felon in Possession of a Weapon, and Aggravated Theft in the First Degree. For the reasons that follow, the Amended Petition for Writ of Habeas Corpus (#22) is denied. BACKGROUND Petitioner and the victim in this case, Mark Ghiglieri, first met each other in 2002. The following year, petitioner agreed to purchase Ghiglieri's riverfront home, but he soon failed to make the monthly payments on it. Trial Transcript, p. 105. According to the prosecution, petitioner's financial difficulties motivated him to set a scheme in motion whereby he would rob Ghiglieri. Petitioner hired European "debt collectors" Mccaffery to act as the "brawn" for his plan. led by Patrick Petitioner made arrangements for McCaf f ery and some of his associates to fly from England to Portland to help him collect $500,000 to $600,000 he claimed was owed to him by a "local problem." 122, p. 56. Respondent's Exhibit Mccaffery arrived in Portland on November 19, 2003. Petitioner picked him up at the airport, and Mccaffery and his wife stayed at petitioner's home. 2 - OPINION AND ORDER McCaffery's associates arrived shortly thereafter and stayed at a local hotel. Trial Transcript, p. 152. Petitioner had contacted Ghiglieri and informed him that he was having investors from New York City over to his home who were interested in investing $400,000 in one of Ghiglieri's business Petitioner ventures. asked Ghiglieri to come over for an investors' meeting and told him to bring lots of cash, wear his diamond Rolex watch, Ghiglieri agreed, Id at and drive his nicest car. 81-82. and took an early flight home from a Hawaiian vacation in order to attend the meeting. Id at 80. When Ghiglieri arrived at petitioner's home, petitioner took him into the off ice where Mccaffery and his team (who were masked) immediately assaulted Ghiglieri. They took Ghiglieri's jewelry, threatened to break his legs, and threatened to kill him. 85. Id at Petitioner advised Ghiglieri not to fight or resist, and told him that it would all be over soon. Id. The men secured Ghiglieri to a lawn chair in the basement with duct tape and zip ties, and obtained information from him about the combination to a safe as well as the alarm codes to his home and an airplane hangar in Aurora. Id at 89-90, associates to valuable items. 94-98. Ghiglieri' s Petitioner took Mccaffery and his residence where they stole numerous Petitioner also took the men to Ghiglieri's hangar in Aurora where they devised a way to take Ghiglieri's assets from the hangar. 3 - OPINION AND ORDER The assailants returned to petitioner's home about two hours later where they forced Ghiglieri to sign documents concerning artwork and promissory notes pertaining to his property. 102. Id at 99- When the assailants left again, Ghiglieri was able to free himself from the lawn chair, escape the home, and call 911 from a neighboring residence. During this time, petitioner Mccaffery and his team to the Portland Airport. drove Id at 177-78. Petitioner did not alert the authorities as to what had occurred, nor did he go to his wife's home to check on the well-being his family after dropping Mccaffery at the airport. At his subsequent trial, petitioner did not dispute that Ghiglieri had been assaulted and robbed, but claimed that he, too, had been a victim of Mccaffery and his associates. He testified that for two years prior to the criminal incident in question, he had been running a credit union, Worldwide Financial Service, where he managed funds for approximately 250 investors and invested those funds in high-yield return programs. One of those programs was run by a Portland-based currency trading firm named Orion. Id at 133- 35, 141. Petitioner discovered that Orion had been fraudulent in its handling of its investments and, lost approximately $9,000,000. as a result, Id at 142. his investors had Eventually, petitioner came into contact with another investor who believed he had been similarly defrauded by Orion and, 4 - OPINION AND ORDER according to petitioner, the Id at investor recommended Mccaffery to help solve the problem. 141-45, 147. Petitioner claimed that on the morning the parties were due to meet with Ghiglieri, Mccaffery suddenly turned on petitioner and demanded money from him based participation in the Orion scheme. upon supposed petitioner s 1 McCaf f ery and Id at 155-56. his wife took "well over $200,000'' from petitioner s bedroom and 1 informed him that they needed another $200, 000 away." According to petitioner, Mccaffery also stated Id at 157. to be "squared that he had petitioner 1 s family under surveillance and would harm them if petitioner did not cooperate. 1 Id at 156. The issue at trial was whether petitioner was under duress and a victim of Mccaffery as well, Mccaffery was instead deprive working of Ghiglieri in his collaboration with possessions. The case was tried to the court, petitioner was the only defense witness called, to or and the trial judge concluded that petitioner s "version of these events simply is not credible." 1 As a result, at 276. Robbery in the First Id the trial judge convicted petitioner of Degree, Kidnapping in the First Degree, Burglary in the First Degree, Felon in Possession of a Weapon, and Aggravated Theft in the First Degree. As a result, the court Petitioner was estranged from his wife, and did not share his home with her. 5 - OPINION AND ORDER sentenced petitioner to 210 months in prison. Respondent's Exhibit 101. Petitioner took a direct appeal where he raised a claim of sentencing error not relevant to this habeas proceeding. The Oregon Court of Appeals affirmed the trial court's Judgment without opinion, 218 Or. App. Jared, State v. and the Oregon Supreme Court denied review. 736, rev. denied, 344 Or. 539, 186 P.3d 285 (2008) . Petitioner next filed for post-conviction relief ( "PCR") raising claims of ineffective assistance of trial and appellate counsel, Among as well as a claim of prosecutorial misconduct. petitioner's allegations, he claimed that his trial attorney failed to contact witnesses who could have supported his testimony, and that counsel failed to investigate Ghiglieri' s background including a civil lawsuit brought against one of Ghiglieri' s Respondent's Exhibit 111. businesses. Petitioner supported his claims with the filing of seven affidavits and voluminous other documents. After reading the entire file, including the underlying trial transcript, the PCR petitioner's claims. number of findings trial court In doing so, and gave denied relief the PCR trial "considerable on all of judge made a weight" to the credibility determination of the trial judge which she found "not surprising." Respondent's Exhibit 158, pp. 4-5. The Oregon Court of Appeals affirmed the PCR trial court's decision without opinion, 6 - OPINION AND ORDER Jared v. Nooth, and the Oregon Supreme Court denied review. 248 Or. App. 480, 275 P.3d 207, rev. denied, 352 Or. 107, 284 P.3d 485 (2012). Petitioner, with the assistance of appointed counsel, filed his Amended Petition for Writ of Habeas Corpus in this court on January 24, 2013 wherein he raises a variety of claims. Respondent asks the court to deny relief on the Amended Petition because: (1) petitioner has not briefed all of his claims, fails (2) to meet his burden of proof petitioner raises an as allegation and therefore to the unargued claims; within his supporting memorandum that is not contained in his Amended Petition, thus the claim should not be considered; and (3) the claims of ineffective assistance of counsel which are contained in the Amended Petition and argued in petitioner's supporting memorandum were properly denied in a state-court decision that was not objectively unreasonable. DISCUSSION I. Unargued Claims There are several claims within the Amended Petition which petitioner has not briefed: Ground I(A) (2) (viii), Ground I(A) (4), Ground I (A) ( 8) , and Ground I I . Petitioner has not carried his burden of proof with respect to these unargued claims. v. Woodford, 279 F.3d 825, 835 7 - OPINION AND ORDER (9th Cir. 2002) See Silva (petitioner bears the burden of proving his claims) . As such, relief on these claims is denied. II. Unpled Claim In his supporting memorandum, petitioner argues that trial counsel should have called Michael Kennedy as a witness at his trial because Kennedy would have supported petitioner's testimony. Memo in Support (#32), p. 14. the Amended Petition. before the court Governing Section for As a No such claim is contained within result, the claim is not properly its consideration. 2254 Proceedings, 28 See Rule U.S.C. 2 (c), foll. Rules § 2254 (requiring each habeas petition to "specify all the grounds for relief which are available to the petitioner"); Greene v. 302 F.3d 1067, 1070 fn 3 (9th Cir. 2002) Henry, (a court need not consider claims not raised in the petition) . III. Ineffective Assistance of Counsel As previously noted, the central issue at trial was whether petitioner conspired with Mccaffery or was, victim. like Ghiglieri, a Petitioner presented a choice of evils defense at trial, testifying that he feared for his well-being as well as that of his family, and assisted Mccaffery and his men only due to fear of retribution if he did not. During his PCR trial, petitioner changed his theory somewhat, contending that Ghiglieri actually was the mastermind behind his 8 - OPINION AND ORDER own kidnapping and robbery. 2 He claimed that had his trial attorney performed a fuller investigation, the result of the trial would have been different. In this proceeding, petitioner claims that his attorney was ineffective when he failed to properly investigate the case. He argues that instead of simply relying only upon petitioner's bare and unsupported testimony, counsel should have called a variety of witnesses who Specifically, could have corroborated petitioner's testimony. petitioner asserts that the following should have been introduced during the defense's case: 1. William Glausi would have rebutted the State's contentions that petitioner was deeply indebted to the victim, and that the "local problem" referenced in petitioner's emails to Mccaffery which were construed to pertain to Ghiglieri were actually about another business associate, Seamus Lennon; 2. Petitioner's ex-wife, Darlene Jared, told the investigating detective that petitioner was not having any financial problems; 3. Petitioner's neighbor, Jerry Larsen, could have testified that petitioner sought to sell his home in 2003, thereby in some way establishing that petitioner was not in serious financial trouble; 4. Debbie Owens, an escrow officer, could have testified that she had opened an escrow account to facilitate the transfer 2 It appears that petitioner's theory at trial was that Duncan Johnson (who had recommended McCaf fery) masterminded the scheme. 9 - OPINION AND ORDER of petitioner s home to Ghiglieri for $1,350,000. This would have contradicted Ghiglieri s testimony that he and petitioner never came to an agreement pertaining to the home; 1 1 5. Detective Wendy Babst was the first person to interview petitioner and could have testified that she saw a real estate sign in petitioner s front yard, and that he reported to her that he feared for his safety as well as that of his family; 1 6. Terrence McCauley, an Estacada lawyer enlisted to recover assets purportedly taken by Orion, concluded that petitioner was a victim of the Orion scandal and was not a participant in the scheme; 7. Greg Johnson, a jewelry store owner, could have testified to Ghiglieri s character for untruthfulness; 1 8. Counsel should have introduced the size of the storage unit petitioner rented because it was too small to have held the property stolen from Ghiglieri; 9. Had counsel called Michael Andrews, an employee of Trans Pacific Leasing in 2003, he could have corroborated portions of petitioner s testimony concerning relationships among different businessmen; and 1 10. A. Counsel should have offered documentation from a civil lawsuit filed against Ghiglieri, as evidence from that case would have supported petitioner 1 s testimony that he did not have a financial motive to rob the victim. 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 10 - OPINION AND ORDER 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 i" 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. A state court decision established precedent if the 28 U.S.C. is § "contrary state court 2254 (e) (1) 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 precedent." arrives Williams v. at a Taylor, result different 529 U.S. 362, from 405-06 [that] (2000) . Under the "unreasonable application" clause, a federal habeas court may grant relief "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id at 413. The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. Id at 410. The state court's application of clearly established law must be objectively unreasonable. Ill 11 - OPINION AND ORDER Id at 409. B. Analysis 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 by the Supreme Court to determine whether petitioner received ineffective assistance of counsel. 556 U.S. 111, 122-23 Mirzayance, show that his counsel's performance standard of reasonableness. 668, 686-87 (1984). Due counsel's performance, that the conduct (2009). First, petitioner must fell Strickland v. to the Knowles v. below an objective Washington, difficulties in 466 U.S. evaluating courts must indulge a strong presumption falls within professional assistance." the "wide range of reasonable Id at 689. Second, petitioner must show that his counsel's performance prejudiced the defense. whether the petitioner probability that, but The appropriate test for prejudice is can show "that there is a for counsel's unprofessional result of the proceeding would have been different." reasonable errors, the Id at 694. A reasonable probability is one which is sufficient to undermine confidence in the Strickland's general outcome of the trial. Id at 696. When standard is combined with the standard of review governing 28 U.S.C. § 2254 habeas corpus cases, the result is a "doubly deferential judicial review." at 1420. 12 - OPINION AND ORDER Mirzayance, 129 S.Ct. The PCR trial court determined that evidence from the civil proceeding against Ghiglieri, and any evidence pertaining to his character, been irrelevant. would not have admissible Respondent's Exhibit 158, p. 3. because it was This federal habeas court takes this state-court determination of state law as true. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). As such, cannot be faulted for not attempting to introduce counsel inadmissible evidence. With respect to petitioner's theory in his PCR trial, the PCR trial court specifically determined that "there was no evidence that would have been admissible to prove that [Ghiglieri] was the mastermind" and that "[t]he responsibility of [Ghiglieri] for the crime was not ever raised by the petitioner with his attorney. knew who was responsible and told the court why. discussion with his PCR attorney has a new theory." As for the contention that counsel should He now, He after Id at 3. have called additional witnesses to corroborate petitioner's trial testimony, the PCR trial court concluded: this is essentially about what happened inside the house on this day. Only two people are available to testify about that. Both testified. The court found petitioner to be not credible in his testimony that he too was a victim. Even if things like the house being for sale, petitioner moving or Mr. Glausi's admittedly incomplete understanding of petitioner's finances, one is struck by the incriminating, still unexplained evidence left--petitioner, not [Ghiglieri] hired Mccaffery, brought him and his associates to 13 - OPINION AND ORDER Portland, set up the meeting with [Ghiglieri] , had [Ghiglieri] wear his jewelry and bring a roll of cash, had a shotgun in the house, knew about the hangar and its contents, drove the assailants to the airport and dropped them off--failing to contact the police or security, rented a storage locker near the hangar for 1 week and went back to the house rather than [] check on his family--all things that would have still been unexplained even with additional witnesses. Id at 4. Petitioner amounts to federal law. fails to show how an unreasonable There was this well-reasoned decision application of no question clearly established that instrumental in bringing Mccaffery to Portland. petitioner was He was also not only responsible for setting up the meeting with Ghiglieri, but also assisted McCaff ery and his associates in carrying out their crimes against Ghiglieri. While petitioner claimed duress, it is telling that he set up the meeting between Mccaffery and Ghiglieri under the representation that Mccaffery was a wealthy investor from New York City. He never told Ghiglieri that Mccaffery was from England, or that he was a debt collector. 81-82. Trial Transcript, pp. What is especially important about these facts is that they show petitioner misled Ghiglieri about the meeting well before Mccaffery allegedly threatened petitioner. Petitioner testified that emphasizes he was not that certain experiencing witnesses significant could have financial trouble at the time of the crimes, thereby defeating the State's 14 - OPINION AND ORDER theory of motive. However, the evidence he presented to the PCR trial court was not significant and would not have affected the outcome of the trial. Not only was petitioner's PCR evidence not significant in terms of his culpability, but much of it would not have established what he purports. wife, For instance, petitioner's ex- who was not living with him, would not have been a highly reliable witness as to what the current state of his finances were. While she advised authorities that petitioner was not having any financial difficulties, she also informed them that she didn't know who Ghiglieri November 19, was, 2003, didn't know anything about the events of and didn't know any of petitioner's friends. Respondent's Exhibit 123, p. 2. Similarly, while petitioner wished to rely on Glausi's understanding of his financial well-being, Glausi testified during the PCR trial that petitioner's financial situation was so complex that he could not determine what petitioner's net value actually was. Respondent's Exhibit 157, p. 29. Moreover, while petitioner claims that counsel should have introduced the dimensions of the storage unit he rented near Ghiglieri's Aurora hangar just before the crimes at issue, he actually testified about the storage unit and its dimensions. Trial Transcript, p. 168. Petitioner's testimony at trial was not credible, and the additional evidence he wishes counsel would have submitted would have neither bolstered his credibility, nor otherwise affected the 15 - OPINION AND ORDER outcome of his case. Accordingly, the PCR trial court's decision denying relief on petitioner's claims is neither contrary to, nor an unreasonable application of, clearly established federal law. CONCLUSION For the reasons identified above, Writ of Habeas Corpus (#22) is DENIED. the Amended Petition for 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). IT IS SO ORDERED. DATED this l[~ day of July, 2014. ~ez United States District Judge 16 - OPINION AND ORDER
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