Unpublished Disposition, 886 F.2d 1319 (9th Cir. 1978)

MEMORANDUM^** 

SUMMARY

Jeffrey Cohen appeals from a judgment of the district court granting respondent's summary judgment motion on Cohen's petition for writ of habeas corpus. Cohen appeals on the ground that he was denied due process of law because the indictment brought against him failed to allege all of the elements of aggravated murder, a crime for which he was convicted. We find that the district court correctly adopted the Findings and Recommendation of the magistrate, who concluded that the indictment was not fatally flawed. Accordingly, we affirm the district court's judgment.

FACTS

Petitioner Jeffrey Cohen confessed on May 11, 1978 to having killed a gas station attendant. He was indicted in Circuit Court for Washington County, Oregon on three counts: I) aggravated murder (ORS 163.095), II) murder (ORS 163.115), and III) unauthorized use of a vehicle (ORS 164.135). Count I specifically alleged

That the above-named defendant(s) on or about the 2nd day of May, 1978, in Washington County, Oregon, did unlawfully and knowingly commit the crime of robbery, and in the course of and in furtherance of the said crime which the said defendant was committing, the said defendant did cause the death of another human being, to-wit: Donald V. Baune, by shooting him with a firearm, to-wit: a pistol....

Cohen was convicted of Counts I and II.

Before the Oregon Court of Appeals the petitioner argued that the indictment was fatally flawed because it did not include any of the statutorily-required elements of aggravated murder, specifically, that the petitioner "personally" committed the crime. His conviction for aggravated murder was reversed by the Oregon Court of Appeals but was reinstated by the Oregon Supreme Court.

The petitioner filed a petition for post-conviction relief in the Circuit Court for Marion County, Oregon. The petition was denied. His petitions to the court of appeals and Oregon Supreme Court were also denied. He then filed a petition in federal district court for writ of habeas corpus which raised only the claim regarding sufficiency of the indictment for aggravated murder. The federal district court granted Oregon's motion for summary judgment and petitioner appeals. He argues that his Fourteenth Amendment due process rights have been violated by the defective indictment.

ANALYSIS

Federal habeas relief is only available if petitioner is in custody "in violation of the Constitution or laws or treaties of the United States." Pulley v. Harris, 465 U.S. 37, 41 (1984) (quoting 28 U.S.C. § 2241(c) (3)). The Sixth Amendment's guarantee that criminal defendants be informed of the nature and cause of the charge against them applies to the states through the Fourteenth Amendment due process clause. In re Oliver, 333 U.S. 257, 273-274 (1948). A violation at the state level of this guarantee is appropriately treated at the federal level with the issuance of a writ of habeas corpus.

However, such a state court criminal judgment will not be disturbed solely on the basis of a perceived error of state law. Pulley, 465 U.S. at 41. The petitioner's argument, therefore, that the state incorrectly applied its own law is reviewable only insofar as a due process right is implicated.

The petitioner argues that although the indictment for aggravated murder cites the applicable state statute that defines the offense, ORS 163.095, the indictment is insufficient because it does not specify which of the fifteen subsections of the statute applies in this case to raise the level of the crime from felony murder to aggravated murder. Particularly, the indictment does not allege the circumstance under subsection (2) (d) that the defendant "personally" committed the crime during the commission of a robbery. As a result, petitioner contends, there has been a violation of due process under the Fourteenth Amendment.

While it is true that an indictment must set forth all of the elements of the offense charged, United States v. Krasovich, 819 F.2d 253, 255 (9th Cir. 1987), an indictment should be: "(1) read as a whole; (2) read to include facts which are necessarily implied; and (3) construed according to common sense." United States v. Buckley, 689 F.2d 893, 899 (9th Cir. 1982), cert. denied, 460 U.S. 1086 (1983). The question to ask in judging the sufficiency of an indictment is whether or not the indictment alleges the elements of the crime in adequate detail so as to fairly inform the defendant of the charge. Id. at 896-97.

In this case, it is clear the indictment adequately alleged that the petitioner personally committed the crime. The text of the indictment includes the phrase "the said defendant did cause the death of another human being ... by shooting him...." As the respondent noted, there is no way to shoot another by proxy. The petitioner is the only named defendant. Common sense dictates that the petitioner was being accused of personally committing the crime.

The petitioner argues that the language of the indictment is ambiguous because it uses the plural form, stating that "the above-named defendant(s) is/are accused ... of aggravated murder...." Presumably, this leaves open the possibility that another subsection of the aggravated murder statute is implicated--one that requires two or more participants in a crime. However, the meaning is clear where only one defendant is named in the indictment, and therefore, the only relevant subsection is (2) (d).

The due process clause of the Fourteenth Amendment has not been violated, and the petition for habeas relief is denied.

AFFIRMED.