Christensen v. Myers et al, No. 6:2008cv01471 - Document 55 (D. Or. 2011)
Court Description: Opinion and Order: Petitioner's Petition for Writ of Habeas 1 is denied. Signed on 02/13/2011 by Chief Judge Ann L. Aiken. (lg)
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Christensen v. Myers et al I Doc. 55 " IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MARK FRANCIS CHRISTENSEN, Petitioner, Civil No. 08-l471-AA OPINION AND ORDER vs. JOHN KROGER, et al., Respondents. Anthony D. Bornstein Assistant Federal Publ Defender 101 SW Main Street, 1700 Portland, Oregon 97205 Attorney for itioner John R. Kroger Attorney General Kristen E. Assistant Attorney General 1162 Court Street NE Salem, Oregon 97301-4096 1 - OPINION AND ORDER Dockets.Justia.com Attorneys respondents AIKEN, Chief Judge: Pet ioner brings s action under 28 U.S.C. § 2254 to attack his June 2002 conviction of Coercion (ORS 163.275) and Harassment (ORS 166.065) from Coos County, Oregon. pleaded not: counts. Ity and was tried by a jury and convicted of both On July 10, 2002, petitioner appeal to the Court of timely Petitioner Court of Is. led a t On ry 9, 2005, the Is affirmed without opinion. ition for review to the denied on May 24, 2005. July 1, 2005. ly notice of Petitioner fil a Supreme Court, which was The appellate j was issued on Petitioner declined to file a petition for certiorari in the United States On December 12, 2005, Court. itioner filed a timely petition for state post-conviction relief in the Coos County Circuit Court. The court Id a hea on the petit entered a judgment denying the petition. and on July 11, 2006, On 8, 2006, petitioner then filed a timely notice of appeal to the Oregon Court of a Is. On July 16, 2008, the Court of rmed without Petitioner filed a timely petition review, which was denied by the Oregon 5, Is Court on November 2008. In 2006, r plead Page 2 - OPINION AND ORDER Ity to domestic violence in Thi Judicial District of te County Idaho in State of Idaho Petitioner was impris in county jail in Boise, Idaho due to a parole violation in petitioner was sentenced to two to seven years in prison. In October 2009, this court previously entered an opinion fi that federal itioner satisfies juri s review. ctional requirements for Opinion and Order, doc. 18, October 13, 2009. DISCOSSION Petitioner challenges his conviction for coercion arguing that rests on constitut ly insuf icient evi and therefore violates his right to due process of law under the Fourteenth Amendment. Further, sentencing court cons ide itioner leges the Idaho "the convictions chal in this Petition," so that if the court had not considered these convict , it would have sentenced petitioner to "six months at most, and likely to probation" court (versus the 2 to 7 years sentence sed) . Petitioner al Sf in part: Petitioner is imprisoned in the Ada County Jail in se, Idaho as a result of an alleged parole violation. . where Petitioner was sentenced to two to seven years in prison. The convictions llenged in this Petition were considered by t Idaho court in sentencing Petitioner, and had Court not considered these unlawful convictions, it would 3 - OPINION AND ORDER have sentenced Petitioner to six months at most, and likely to probation. Therefore, while Pet ioner has completed serving prison sentence impos for the Oregon convictions, and has discharged from post-prison supervision, Petitioner is still in cust as a result of those convictions. Pet. for Writ of Habeas , p. 4. The respondent argues that petitioner's claim of ufficient evidence to defaulted because petit his Coercion conviction is nature of his claim to the is unexhausted. prese issue courts and therefore the claim Petitioner re that his claim is fully this court's review because he iary suff 0 federal r failed to fairly present rly sented the Court. to the Oregon A claim is fairly presented if a petitioner sents the "substance" of his federal habeas corpus claim" to the state courts. Anderson v. Harless, quotation tted) . 459 U.S. 4, "It fol 6 (1982) ( ernal , of course, that once the federal claim has been fairly presented to the state courts, the exhaust 270, 278 rement is satis (1971). Re contends that the issue before this court is not whether the sufficiency U.S. 307 404 U.S. /I courts reviewed petitioner's chall 0 the evidence standa (1979), instead, the issue to the 443 the Court of Is was whether the trial court committed error in failing to enter a sua sponte j of acquittal. Page 4 - OPINION AND ORDER On direct appeal, petitioner set forth the following single assignment of error: d the court err failing to enter a judgment of acquittal sua e because the state did not present sufficient dence from whi a reasonable trier of fact could have convict defendant of coercion? Ex. 108, llant's Brief, p. 2. Respondent contends that discuss instances where a mot in fail upon by itioner tted error for denying upon an s ficiency of The cases do not address whether a trial court erred fo to "sua sponte" dismiss a charge for insuffi evidence. Petitioner's distinguish Therefore, itioner's Ex. claim A-D. from Respondent's the case law in fact, review sions are not contrary to, de nor an to unreasonable application of, existing United States law. The reviewing suffici the prosecution, standard evidence any essential elements in rational 0 443 U.s. at 319. the trier the crime fically, evidence to support a to merit. merits find the state courts' attempt lacks assuming that the state courts did, petitioner's claim on I reli trial court for judgment of acquittal the evidence. the cases Jackson light of most fact is "whether, favorable could Court after to have the a reasonable doubt." itioner argues that there was no in favor of the state on two elements of Coercion: that the victim was actually compelled or induced to in conduct in which he Page 5 - OPINION AND ORDER a right not to engage. The c of Coercion has three elements: the accus compel the vict to do something; right not to do; by (3) ma does not do it, State v. compulsion element 90, 95,·135 P.3d 461, of the Coercion viewed in the Ii permit rationale i statute most threats time," that juror to induced the defendant's the rev. den., Moreover, the state standard for showing the evidence, a has t enumerated consequences will result. Phillips, 206 Or. (2006). the vict (2) the victim afraid that if he or s one of 341 Or. 548 that must (1) threat, a r If the Coercion defendant's "for not that low. to the state, would ctim to victim is otherwise evidence is suf some period of have cient done, to absent show the compulsion element of Coercion. 208 Or. App. at 96-97. the record contains evidence which, when viewed in favor of the state, demonstrates i tioner' s have. that girlfriend, Specifically, im) temporarily the vict Rogers, the induced contains from dence terminat relationship with Rogers because of and his family relationship with Rogers. based on the evidence, rom fi Rogers to employ longer than he otherwise would record refrained was Here, unless he his 's t continued his that Mangan employment s to kill employment The jury could have reasonably inferred, that Mangan refrained, because of de ,s even t threats. ily, Based on fact that the jury could reasonably infer from the 6 OPINION AND ORDER evidence that Rogers' extended petitioner's threats means support the jury's fi employment due to that the evidence was sufficient to on the element of compulsion in support of the crime of Coercion. Petit also a s that the evidence does not establish the second element of Coercion, i.e., that Mangan had a legal right to discontinue rs' fact that the employment contract was not unlawful or sagree. I illegal Regardless of the not a 30 for to provision, it end his employment relationship with an employee whose performance was poor, and whose boyfriend was threatening to kill him and means that Mangan would have terminated the relationship a s ly. the notice p without notice, It simply sion if he which may have permitted Rogers to recover civil damages for breach, but does not make the breach itself illegal. In conclusion, when viewing the evidence favorable to the prosecution, a rational trier the Ii 0 most fact have found that the elements of Coercion were a reasonable doubt. The post-conviction court's finding is record, and therefore, trial counsel was not the i or ineffective in failing to move for judgment of acquittal. Enhancement of Idaho Sentence Petitioner ct 7 next alleges that his enhanced his Idaho state sentence. OPINION AND ORDER red state Petitioner relies on Exhibit E which reflects that he was charged in Payette County, Idaho with one count of Domestic Assault or Battery on lence (Felony) and one count of Certain (Misdemeanor) . Personnel Petitioner's charges arose from a domestic violence incident Marguerite Rogers. a On October 28, 2006, r Rogers face. ed to th itioner was arrested ice that itioner hit her in the Petitioner ultimately pled via a p agreement to the single count of.Domeptic Violence (Felony). Petitioner argues conviction that is that he Petitioner's Petit in custody on an Idaho 'positively and demonstrable related to' Oregon conviction he attacks. enhanced only "is cause Reply to of his Peti tioner' s prior Response to Ore Habeas the Idaho sentence was personal Petition, lony." p. 4. alleges: is imprisoned in Ada result of an alleged Jail in Boise, violation in te County, Idaho, Third Judicial District Court Case No. CR-2006-03875, where Pet ioner was sent to two to seven years in prison. The ctions challenged this Petit were cons red by the Idaho court in sentenc Petitioner, and had Court not considered these unlawful convictions, it would have sentenced Petitioner to six months at the most, and like to ion[.J Petition, p. 4. There is no evidence before Oregon criminal history was cons I Page 8 sentenc , or that "but OPINION AND ORDER this court red by the that itioner's court for his petitioner's Oregon ction" the Idaho court would have months, at not most." reference in violation. appears fel In any Ex. to have sentenced him to "probation or six , petitioner'.s Idaho conviction does way 102, his Oregon Corrections conviction In or rmation. a parole Petitioner charged and convicted based upon his new domestic violence crime of hitting Marguerite Rogers, with whom he lived. Petitioner argues that his Idaho conviction and sentence was the result of a conviction under Idaho Code (I.C.) 18-918(5), which allows r a person to be found guilty (or pled guilty) under I.C. 18-918, or "any violation [ . ] " substantial For confirming purposes of I.C. foreign 18-918, criminal "substantially conforming foreign criminal violations" exist when there has been another violation of federal or another state's law "substantially conforming" with the provisions of this section. of whether a The determination ign criminal violation is substant lly conforming is a question to be determined by the Idaho state sentencing court. I.C. 18-918 (6). Other than petitioner's Assault in the Fourth Degree, it prior convictions, 1995 conviction s not appear that specifically for Coercion, for itioner's would quali as substantially conforming foreign criminal violations for Idaho's criminal violation of Domestic Violence. crime, as set forth in felony under I.C. itioner's police report, appears to const 18-903 (2) . Page 9 - OPINION AND ORDER In . Therefore, e a without prior criminal enhancements, itioner was subject to a felony sentencing range not to exceed ten In conclusion, I find no evidence to establish the basis for petit r's Idaho sentence or what prior convictions, if used as enhancements. states that, "[t]he Pet will Habitual Offender Status sentenc his Oregon convic~ion fically ioner's plea agreement State E, Plea Agreement, p. 3. , were refrain from enhancement. Therefore, Part fil II II, Petitioner's Ex. itioner's al ion ction fails. enhanced his Idaho Conclusion Petitioner's Petition for Writ of Habeas (doc. This case is di Finally, if case, r the substantial ssed and all pending motions are denied as moot. itioner desires to file a notice of appeal in this court certifies showing pursuant to 28 U.S.C. llate 1) is denied. of § the that denial 2253(c) (2). the of pet a ioner s made constitutional IT IS SO ORDERED. day of February 2011. Ann Aiken United States District Judge 10 - OPINION AND ORDER right This cause is appropriate for ew. Dated this a
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