Weyhrich v. Lampert, No. 3:2004cv00301 - Document 64 (D. Or. 2011)
Court Description: Opinion and Order that the Second Amended Petition for Writ of Habeas Corpus 44 is DENIED, and this case is DISMISSED, with prejudice. In addition, the court finds that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c) (2). Accordingly, this case is not appropriate for appellate review. Ordered by Judge Robert E. Jones. (sd)
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Weyhrich v. Lampert 't,! I Doc. 64 I IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION WILLIAM J. WEYHRICH, civil No. 04-301-JO Petitioner, v. OPINION AND ORDER ROBERT O. LAMPERT, Respondent. Michael R. Levine Levine & McHenry LLC 1001 SW Fifth Avenue, Suite 1414 Portland, Oregon 97204 Attorney for Petitioner John R. Kroger Attorney General Jonathan W. Diehl Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97301 Attorneys for Respondent III 1 - OPINION AND ORDER Dockets.Justia.com ,1' ' • JONES, District Judge. this Petitioner habeas corpus action pursuant to 28 U.S.C. § 2254 in which he challenges his state convictions for kidnapping, coercion and assault. For the reasons set forth below, the Second Amended Petition for Writ of Habeas Corpus denied, and Judgment is entered dismissing this (#44) action is with prejudice. BACKGROUND On August 20, 1996, the Columbia County Grand Jury returned a second amended indictment charging petitioner with one count of Kidnapping in the First Degree, one count of Assault in the Second Degree, one count of Assault in the Third Degree, Coercion and two counts Respondent I s Exhibit 102. of Assault one count and one count of Coercion. remaining dangerous s. the Fourth Degree. A jury convicted petitioner on one count of Kidnapping in the First Degree, Third in one count of Assaul t in the It acquitted him on the The sentencing court found petitioner was a and sentenced him to an indeterminate· 30-year sentence on the kidnapping charge to be served consecutively with a 60-month sentence on the assault charge and concurrently with a 36-month sentence on the coercion charge. Respondent's Exhibit 101. Petit directly appealed his convictions, but the Oregon Court of Appeals affirmed the trial court without written opinion, 2 - OPINION AND ORDER , ' and the Oregon Supreme Court denied review. Or. App. 488, 967 P.2d 530 State v. Weyhrich/ 155 (1998), rev. denied/ 327 Or. 620, 971 P.2d 412 (1998); Respondent's Exhibits 103-107. Petitioner fi court. The PCR for post-conviction relief (IIPCRII) in state court denied relief. Court Case No. 990130280M. Malheur County Circuit On appeal, the Oregon Court of Appeals affirmed the PCR court without written opinion, Supreme Court denied review. and the Oregon Weyhrich v. Lampert / 172 Or. App. 73/ 19 P.3d 389 (2001), rev. denied/ 333 Or. 398, 42 P.3d 1242 (2002) i Respondent's Exhibits 118-123. Petitioner fi a successive PCR petition in state court, but the court dismis motion. Malheur On appeal, without the petition with prejudice on the State IS County Circuit Case No. 0011692M. the Oregon Court of Appeals affirmed the PCR court written opinion/ and review. rev. Court I denied/ 335 Or. 255, the Oregon Supreme Court 185 Or. App. 253, 60 P.3d 41 (2002) / 66 P.3d 1025 (2003); Respondent's Exhibits 128 132. Petitioner filed an Amended Petition for Writ of Habeas Corpus in this court on March 2, 2004. court granted However, on June 2, 2005, the itioner's unopposed motion to stay his habeas case pending the outcome of further state court proc Petitioner filed a second successive PCR petition in state court / but 3 the court granted OPINION AND ORDER the State's motion for summary Marion judgment. On appeal, without County Circuit Court Case No. 05C17951. the Oregon Court of Appeals affirmed the PCR court written opinion, review. Weyhrich v. (2007) , rev. and the Belleque, denied, 343 Oregon 214 Or. Or. 467, Supreme App. 172 699, P.3d Court denied 167 P.3d 1010 2495 (2007) i Respondent's Exhibits 139-142. On July 25, 2008, the court lifted the stay on petitioner's federal habeas Second Amended action. Petition The claims for Writ set of forth Habeas in petitioner's Corpus are the following: Ground One: The trial court violated due process of law under the Fourteenth by sentencing petitioner to a substantial additional term of imprisonment as a "dangerous offender" under ORS 161.735, et. seq., in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and their progeny--because the determination must be made by a jury beyond a reasonable doubt. Ground Two: Trial counsel provided ineffective assistance of counsel under the Sixth and Fourteenth Amendments by failing to object to tainted photographic evidence that was introduced at trial. The state improperly allowed third parties to enter the alleged crime scene, and these persons then rearranged many items at the scene including chairs and tables and a bloody towel. The photographs introduced in evidence depicted the rearranged scene, not the scene as it was at the time of the alleged crimes. Ground Three: Trial counsel rendered ineffective assistance of counsel under the Sixth and Fourteenth Amendments by failing to move for a mistrial on the grounds that the alleged crime scene and the police investigation of the crime had been so severely compromised by outsiders that all physical evidence was unreliable and inadmissible and that any subsequent trial violated due process of law. Ground Four: Trial counsel rendered ineffective assistance of counsel under the Sixth and Fourteenth Amendments by failing .4 - OPINION AND ORDER , . to argue to the jury that the crime scene had been severely compromised rendering the physical evidence unreliable. Ground Five: Trial counsel rendered ineffective assistance of counsel under the Sixth and Fourteenth Amendments by failing to retain an independent psychologist, psychiatrist, or other witness to refute the state's claim that petitioner was a dangerous offender under Oregon law. Ground Six: Trial counsel rendered ineffective assistance of counsel under the Sixth and Fourteenth Amendments by failing to move for a mistrial when the prosecutor in closing argument (at page 686 of the transcript) strongly implied to the jury that trial counsel was a liar and that the defendant had sought out trial counsel in order to have him concoct a lie to tell to the jury. Ground Seven: Trial counsel rendered ineffective assistance of counsel under the Sixth and Fourteenth Amendments by failing to move for a mistrial when the prosecutor improperly commented on petitioner's having exercised his constitutional right to consult with an attorney after he was arrested by the police, implying to the jury that an innocent person would have never made such a request and that defendant did so only to concoct a lie to cover his guilt. Ground Eight: The trial court violated due process of law under the Fourteenth Amendment when it found that defendant's conviction for assault III arose from a separate criminal episode than his conviction for kidnapping in the first degree when both convictions arose from the same criminal episode. Ground Nine: Petitioner's counsel on direct appeal provided ineffective assistance of counsel under the Sixth, and Fourteenth Amendments by failing to raise on appeal the issue of the insufficiency of the evidence for the kidnapping charge. Ground Ten: Petitioner's counsel on direct appeal provided ineffective assistance of counsel under the Sixth, and Fourteenth Amendments by failing to raise on appeal the failure of trial counsel to retain an independent psychologist or psychiatrist to refute the state's claim that petitioner was a dangerous offender under Oregon law. Ground Eleven: Petitioner's conviction for Kidnapping in the First Degree was in violation of his due process rights under the fourteenth amendment of the United States constitution in 5 - OPINION AND ORDER that the evidence was insufficient, as a matter of law, to support the intent element of kidnapping. See Oregon v. Wolleat, 338 Or. 469 (2005) (en bane) . Respondent argues that petitioner is not entitled to relief (1) because: defaulted, grounds for several of his grounds for relief are procedurally and the relief default were is denied not excused; on decisions entitled to deference; and the (3) (2) merits the in remaining state court his claims are without merit. DISCUSSION I. Unargued Claims Petitioner fails to brief the merits of Grounds One through Five and Grounds Eight through Eleven in his counseled supporting memorandum. Noting that he addresses only Grounds Six and Seven in his Supplemental Memorandum in Support, petitioner advises that he will "shortly submit a supplemental memorandum addressing Claim Eleven"l and that he "submits all other claims on the record before the Court." Supplement Memorandum (#63), p. 5. In its Responses (#18 & #48), the State contends that Grounds One, Eight and Eleven were never fairly presented to the Oregon Supreme Court, and thus, are procedurally defaulted, and that the PCR court's denial on the merits of the remaining claims is entitled to deference. Despi te this representation, petitioner supplemental memorandum addressing Claim Eleven. 1 6 - OPINION AND ORDER never filed a The court has independently reviewed the record as to petitioner's unbriefed claims and determined that they would not entitle him to relief. On habeas review, petitioner must show that the state court determination of his claims was contrary to or an unreasonable application of established Supreme Court precedent. 28 U.S.C. § 2254(d). By not advancing Grounds One through Five and Eight through Eleven in his memorandum, petitioner has failed to meet the burden of proof for habeas relief under 2254 (d) . § Accordingly, relief on these claims must be denied. II. Standard of Review An application for writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a (1) "contrary to, or involved an unreasonable decision that was: 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 28 U.S.C. presented in the State court proceeding." A state court's findings of petitioner bears the burden correctness by clear and § fact of are presumed rebutting convincing the § 2254(d). correct and presumption evidence. 28 of 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] 7 - OPINION AND ORDER cases ll or tlif 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. II at a result Taylor, different 529 U.S. 362, from [that] 405 06 (2000). under the lIunreasonable application ll clause, a federal habeas court f lIif the state court identifies the correct legal may grant principle from applies that Id. at 413. [the Supreme Court's] decisions, but unreasonably principle to the facts of the prisoner's case. II The tlunreasonable application ll clause requires the state court decision Id. at 410. to be more than incorrect or established state court's application of c law must be objectively unreasonable. erroneous. Id. at 409. III. Application A. Ineffective Assistance of Trial Counsel for Failing to Move for a Mistrial When the Prosecutor Implied Defense Counsel Was a Liar and that Petitioner had Sought Him Out and Retained Him to Concoct a Lie to Tell the Jury and When the Prosecutor Improperly Commented on Peti tioner I s Having Exercised His Constitutional Right to Consult with an Attorney by Implying an Innocent Person Would Not Have Done So {Grounds Six and Seven)2 The Supreme Court has established a two-part test to determine whether counsel. a petitioner t, the has received petitioner ineffective must show that assistance his of lawyer's While petitioner presents Grounds S and Seven as distinct claims his Second Amended Petition, he argues them together in his memorandum and the PCR court addres them together. The court finds they are related and will also consider them in conjunction with one another. 2 8 - OPINION AND ORDER performance fell below an objective standard of reasonableness. Due to the Strickland v. Washington, 466 U.S. 668, 686-687 (1984) difficulties indulge a in evaluating counsel's performance, courts must strong presumption that the conduct falls within the "wide range of reasonable professional assistance." Id at 689. Second, the petitioner must show that his lawyer's performance The appropriate test for prejudice is prej udiced the defense. whether the defendant probabili ty that, but can for show "that there is a reasonable counsel's unprofessional errors, result of the proceeding would have been different." the Id at 694. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the trial. Id at 696. The PCR trial court made the following pertinent findings related to these claims on the record: MR. CARLSON: Your Honor, you haven't addressed the closing argument on the part of the State where he accused my client of hiring a liar in order -- I guess in order -- the inference is in order to deceive the jury and of his intentional or seemingly intentional attempt to inform the jury that Mr. Weyhrich exercised his rights by asking for an attorney. THE COURT: I certainly understand why you could infer that in fact he was calling Defense Counsel a liar. He really did not say that directly. Defense Counsel obj ected as well. The obj ection was sustained and I think it would be very clear to the jury that in fact the prosecuting attorney was acting in a manner that was not appropriate. I think too that Defense Counsel as I recall in his affidavit addresses that and indicates that it was indeed a hard fought case and -- let's see what he says specifically. In essence, "This case was hard fought and the prosecutor, Dale Anderson, wanted to convict Mr. Weyhrich on all counts. My perception is the 9 - OPINION AND ORDER jury viewed Mr. Anderson's antics as sour grapes and immature outbursts and/or simply a matter of getting caught in the moment and that it played no role in the decision making process." Again, the jury acquitted Mr. Weyhrich on several counts. So I think that the Defense Counsel made a proper call on that and so far as the fact that he did not move for a mistrial, which he clearly could have done, was not some sort of an error that would be a basis for granting relief requested in this post conviction relief proceeding. Does that address that particular aspect, at least as to what the Court's feeling is? MR. CARLSON: Well, I don't believe that's the test for -- for the State's intentional -- drawing of intention to his request for an attorney. THE COURT: Are you contending that the State didn't have the right to ask that particular question as to what his reaction was when the officer asked him what had happened? MR. CARLSON: Yes. The State has no right to draw to the jury's attention the right that -- or the fact that my client exercised his constitutional right and asked for an attorney and to remain silent. THE COURT: All right. What he asked for was an attorney. I don't think he asked to remain silent. Wasn't that the nature of the transcript? Are you saying then that there was error on the face of the record when in fact the evidence was elicited that when he was asked by the investigating officer what had happened that he said he wanted an attorney, is that -- cause one has to tie to the other. MR. CARLSON: Yes. Well, I the face of the record ineffective assistance of corrective instructions or for a mistrial. --it's -- it's both error on I believe and it's also counsel for not asking for -- or to have it stricken or THE COURT: Okay. Then in that finding as you are contending. Respondent's Exhibit 116, pp. 31-33. 10 - OPINION AND ORDER particular I'm not As set forth below, during closing arguments the prosecutor commented on petit 's explanation to police for the victim's injuries and his request for an attorney. objected and the Petitioner's counsel court sustained the objection: MR. ANDERSON: I don't remember for sure but [the officer] cal attention to the blood on the carpet. And the def 's response was [the victim] fell on the stairs. Now, Officer Miller, his job was to stay with the [petitioner]. The other guys were checking the apartment. So he was with the [petitioner], he was close to the defendant,' he was paying attention to the defendant. He was 1 tening to the defendant, he was looking at the defendant, and he asked him a question. You know he just got it right because you know he wasn't crying, the defendant wasn't drugged, in the hospital. You know, take that s ion and you know he got that right and that's the reason why you ought to believe the [victim], because when given the opportunity to explain how all this happened the defendant had two responses. One, she 11 on the stairs. Officer takes him out to the car, tell me what really happened and his response is, 11 I want an attorney. II Now, I've been an attorney for a long time. There's programs in this town at the high school where kids come down and follow you around for a day, talk about how you become an attorney and blah, blah. We do that or I do that. Other people in the courthouse could always tell the kids, you know, if I had to do it over again I wouldn't be an attorney, frankly. I wouldn't be an attorney. In my opinion, you know, they have those surveys that say who do you trust most and attorneys come out down there somewhere below used car salesmen or something like that, which is about right. Now, I want my attorney. When you want to build a house what do you get? You get yourself a professional carpenter. If you want to build a good house. If you want to build a good lie you don't get a chiropractor. 11 - OPINION AND ORDER MR. CASTRO: Honor. I'm going to object to the insinuation, Your THE COURT: I'll sustain the objection. Transcript of Proceedings, Volume V, pp .. 685-86. The prosecutor's remarks were Nevertheless, improper. petitioner's Ground Six and Seven ineffective assistance of counsel claims are without affidavit does decision not not to First, merit. although trial counsel's specifically state that he made a request a mistrial based on the tactical prosecutor's inappropriate comments, one can reasonably assume that he was aware of the option, but reasonably petitioner's best interests. determined it would not be in It is not unreasonable to infer that counsel decided against such a motion because he believed that the jurors "viewed Mr. Anderson's antics as 'sour grapes,' 'an immature outburst,' and/or simply a moment, '" and as a result, prosecutor's arguments. decisions of deference) trial matter of getting 'caught in the they might be less receptive to the See Strickland, 466 U.S. at 689 (tactical counsel are entitled to a high degree of Indeed, as counsel notes in his affidavit, the jurors apparently questioned the State's case as they acquitted petitioner on three counts, including one Measure 11 count. Exhibit 113, p. 3. Respondent's Moreover, even assuming counsel's failure to move for mistrial fell outside the scope of reasonably effective assistance, probability the record that, but does for 12 - OPINION AND ORDER not establish counsel's by alleged a reasonable ineffective ·. the performance, result the proceeding would have been 466 U.S. at 694. different. As of noted above, the PCR court concluded that based on counsel's obj ection and the trial court's having sustained the obj ection that it would be "very clear" prosecutor's comments were inappropriate. the prosecutor's comments to jury that the In view of the fact that relatively were the that brief, he immediately moved onto another topic after the court sustained counsel's objection, considering that counsel's he did not characterization of the remarks, and how he believes the comments impacted the jury, the PCR court's determination, even if debatable, is entitled to deference. In addition, having reviewed record, including petitioner's testimony, the court finds the case against petitioner was strong. The victim in this case sustained severe injuries when she jumped out of a second-floor bedroom window in her apartment. She testif that she jumped after ioner had beaten her, barricaded the apartment's exit door with a table, forced her into a bedroom with threats that if she tried to leave he would beat her further, and promised to kill before the weekend was over. At trial, petitioner took the stand in his own defense. He maintained that the victim, upset by his announcement that he was leaving her, attacked him, with a phone, forcefully and repeatedly hit f and pushed a table over near the exit door in an 13 - OPINION AND ORDER Petitioner's counsel in his attempt to block him from leaving. closing arguments suggested that the victim might have jumped out the window to garner attention or to keep petitioner from leaving her, but speculated that when she realized how injured she was she became angry and made up the story of abuse. PCR proceedings, later averred during As defense counsel from the beginning he felt this version of events "was a 'tough' sell to the jury, since most people would not jump 15 feet out of a window if they could walk out the front door and walk down the stairs. 1I Exhibit 113, p. Respondent's court agrees and based on its careful 4. review of the record finds petitioner's theory, casting the victim as a self-destruct To the aggressor, incredible. extent petitioner also faults trial counsel with failing to object to or move for a mistrial based on the prosecutor eliciting testimony petitioner what from ly Officer happened, Miller that petitioner when responded he asked that he needed to talk to a lawyer, the PCR court specifically determined counsel's performance was not deficient in that regard. Officer Mil's testimony carne in rebuttal to Notably, petitioner's contradictory testimony that when Officer Miller asked him what really happened, petitioner responded "Why? I mean You're putting me under arrest, you should have asked me up there. Now anything I tell you you're going to hold it against me or put a different story to it.1I Transcript of Proceeding, Volume V, p. 14 - OPINION AND ORDER ·. 555. Accordingly, taken in context, petitioner cannot show either that the prosecutor introduced Officer Miller's testimony to improperly link petitioner's exercise of his right to counsel with an admission of guilt or that the jury would have inferred as much. Based on the foregoing, petitioner cannot demonstrate that the PCR court's denial of the ineffective assistance of counsel claims set forth in Grounds Six and Seven of the Second Amended Petition was contrary to, or an unreasonable application of, clearly established federal law as defined by the Supreme Court. c. Evidentiary Hearing Petitioner contends that in the event the court does not grant the Petition on the existing record, it should conduct an evidentiary hearing "at which testimony from trial counsel should be taken to more fully develop the record." Supplemental Memorandum (#63), p. 27. Petitioner is not entitled to an evidentiary hearing in this federal court to further develop the merits of his claim unless he diligently attempted to develop the evidence in state court, but was unable to do so. (2000) . Williams v. Taylor, 529 U.S. 420, 433-38 If petitioner failed to diligently develop the evidence, an evidentiary hearing is permitted only if petitioner's claim relies on: to cases 1) a new rule of constitutional law, made retroactive on collateral review by the previously unavailable; or 2) 15 - OPINION AND ORDER Supreme Court, that was a factual predicate that could not · " have been previously discovered 28 U.S.C. diligence. § through the exercise 2254 (e) (2) (A) (I) and (ii). of due In addition, the facts underlying the claim must be sufficient to establish by clear and convincing evidence, that no reasonable fact finder would have found 28 U.S.C. the petitioner guilty of the underlying offense. 2254 (e) (2) (B) . § Petitioner's request for an evidentiary hearing is denied. He makes no proof as to the evidence he would seek to fer present in an iary hearing or the reasons why he did not present such evidence during his state court proceedings. CONCLUSION For the foregoing reasons, the Second Amended Petition for Writ of Habeas Corpus (#44) is DENIED, and this case is DISMISSED, with prejudice. In addition, the court finds that petitioner has not made a substant showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c) (2). Accordingly, this case is not appropriate for appellate review. IT IS SO ORDERED. DATED s 3f.::tday of January, 2011. RObe'rt)E. Jones United States District Judge \........_/. 16 OPINION AND ORDER
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