Johnson v. Hill, No. 1:2007cv00872 - Document 38 (D. Or. 2009)
Court Description: Opinion and Order. For the reason identified in this Opinion and Order, the Amended Petition for Writ of Habeas Corpus 33 is DENIED. (please access document by number hyperlink for complete review and details of Opinion and Order). Signed on 6/29/2009 by Judge Owen M. Panner. (dkj)
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Fll..Er09 J~ 2916111USOC1Jm IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON RONALD JOHNSON, Civil No. 07-872-PA Petitioner, v. JEAN HILL, OPINION AND ORDER Respondent. Alison M. Clark Assistant Federal Public Defender 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 Attorney for Petitioner John R. Kroger Attorney General Jacqueline Sadker Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent III 1 - OPINION AND ORDER PANNER, District Judge. Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 in which he seeks to challenge the legality of his underlying conviction for Attempted Aggravated Murder. reasons which follow, For the the Amended Petition for Writ of Habeas Corpus (#33) is denied. BACKGROUND On August 24, 1998, Detective Michael Wilson ("Detective Wilson") attempted to serve an arrest warrant on petitioner, who had a history of fleeing to avoid capture. 103, pp. 57, 63. Respondent's Exhibit When Detective Wilson located petitioner in an automobile at a Hermiston residence, petitioner sped away and, following a high-speed chase, abandoned his car and continued to flee on foot. Id at 60-61. Detective Wilson abandoned the chase, but contacted his twin brother, State Trooper Mitch Wilson (hereinafter referred to only as "Wilson"), and informed him of the chase. This conversation led Wilson to look for petitioner at a particular residence outside of Hermiston. Id at 67. When Wilson petitioner saw him coming and ran away. approached the residence, Id at 68. Wilson ultimately found petitioner hiding underneath a storage shed. When petitioner got out from underneath the shed, Wilson attempted to subdue him with pepper spray. 2 - OPINION AND ORDER The pepper spray, however, did not discharge. Id at 72. At that point, petitioner again began to run away with Wilson in pursuit. During the chase, with him, gun drawn. petitioner tripped, Id. and Wilson caught up Wilson testified that he "got [his] gun in too close to [petitioner]," and petitioner grabbed the barrel of the firearm, thereby gaining leverage over the weapon. Id at 73. The two men fell to the ground wrestling for control of the gun. Petitioner brought the gun up to Wilson twice. Wilson's testimony was demonstrative, Id at 74. Much of such as when he testified that during the critical portion of the struggle, petitioner "came back up with that gun and he shoved it clear back up in here, right here." Id at 73. Wilson found himself looking down the barrel of his firearm, and he "absolutely" believed petitioner was trying to kill him. Id at 73, 75. Following his testimony, Wilson and his brother participated in a demonstrative re-enactment of the crime for the jury to see. Id at 77. At the end of the presentation of the State's evidence, counsel for petitioner moved for a judgment of acquittal. Counsel argued that the State's evidence failed to offer any evidence that petitioner ever intended to kill Wilson. The trial court found that the State had presented sufficient evidence to allow the jury to make a judgment on the issue of intent. It therefore denied the motion, and allowed the case to proceed. Id at 121. 3 - OPINION AND ORDER Petitioner took the stand in his own defense and testified that he did, indeed, run from Wilson, but claimed that the officer was running after him with his gun drawn, verbally threatening to shoot him. Id at 144. According to petitioner, Wilson tried to strike him in the face with his firearm. denied ever claiming struggle. he reaching only for the seized the Id at 145. firearm or touching officer by his Petitioner its wrist barrel, during the Id at 145, 152, 156. The jury convicted petitioner of Aggravated Murder with a Firearm, Escape in the Third Respondent's Exhibit 102. and Resisting Arrest. Because petitioner was on probation at the time of his offenses, sentence. Degree, the trial judge entered a departure As a result, petitioner received 230 months in prison on the Attempted Aggravated Murder conviction, and concurrent one-year sentences on the Escape and Resisting Arrest convictions. Respondent's Exhibit 105, pp. 7, 8. Peti tioner filed a direct appeal wherein counsel did not assign as error the trial court's ruling on petitioner's motion for a judgment of acquittal. The Oregon Court of Appeals affirmed the trial court's decision without opinion, Court denied review. and the Oregon Supreme State v. Johnson, 172 Or. App 765, 19 P.3d 386, rev. denied, 332 Or. 305, 27 P.3d 1045 (2001). Petitioner filed for post-conviction relief ("PCR") in Malheur County where the Circuit Court denied relief. 4 - OPINION AND ORDER The Oregon Court of Appeals affirmed the lower court without opinion, and the Oregon Johnson v. Hill, 209 Or. App. 169, Supreme Court denied review. 146 P. 3d 1170 denied, rev. (2006), 342 Or. 503, 155 P. 3d 874 (2007) . Petitioner filed this federal habeas corpus case on June 11, 2007 in which he pursues a single ground for relief. Specifically, petitioner alleges that appellate counsel was ineffective when he failed to attack the sufficiency of the evidence presented at trial in support of his charge and conviction for Attempted Aggravated Murder. DISCUSSION I . 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 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;" 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 5 - OPINION AND ORDER 28 U.S.C. § 2254(e) (1). is "contrary state court to applies clearly 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. Id at 409. Where, as here, a state court reaches a decision on the merits but provides no reasoning to support its conclusion, the federal habeas court must conduct an independent review of the record to determine whether the state court clearly erred in its application of Supreme Court law. Cir. 2000). Delgado v. Lewis, 223 F.3d 976, 982 (9th In such an instance, although the court independently reviews the record, it still lends deference to the state court's ultimate decision. Pirtle v. Morgan, Cir. 2002). III III 6 - OPINION AND ORDER 313 F.3d 1160, 1167 (9th II . Analysis Petitioner faults his direct appellate attorney for not raising a due process claim based on the trial court's decision to deny his motion for a judgment of acquittal. 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 the Supreme Court has established to determine whether petitioner received ineffective assistance of counsel. Ct. 1411, lawyer's 1419 (2009). performance reasonableness. (1984). Due performance, First, fell the petitioner must below Strickland v. to Knowles v. Mirzayance, 129 S. an courts must indulge a his standard of objective Washington, difficulties show that in 466 U.S. 668, evaluating 686-87 counsel's strong presumption that the conduct falls within the "wide range of reasonable professional assistance." Id at 689. brief need not An appellate attorney "who files a merits (and should not) raise every non-frivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." 288 Smith v. Robbins, 528 U.S. 259, (2000). Second, petitioner must show that his lawyer's performance prej udiced the defense. whether the defendant probability that, The appropriate test for prej udice is can show "that there is a reasonable but for counsel's unprofessional errors, result of the proceeding would have been different. 7 - OPINION AND ORDER 1t the Id at 694. A petitioner wishing to bring a Strickland claim based on his appellate attorney's failure to raise a particular claim must not only show that the claim had merit, but must also demonstrate that the omitted claim was "clearly stronger than issues that counsel Robbins, 528 U.S. at 288. did present." standard is U.S.C. § When Strickland's general combined with the standard of review governing 28 2254 habeas corpus deferential judicial review." cases, the result is a "doubly Mirzayance, 129 S.Ct. at 1420. In addition to this "doubly deferential" review, challenges to the sufficiency of the evidence to sustain a conviction must be reviewed by viewing the facts in the light most favorable to the prosecution to determine if any rational trier of fact could have State found the essential elements of the crime had been proven. v. Rose, 311 Or. 274, 281, 810 P.2d 830 (1991). Thus, the court must determine whether the Oregon state courts unreasonably applied Supreme Court law when they concluded, taking the facts in the light most favorable to the prosecution, that appellate counsel's decision to omit the due process claim fell within the wide range of reasonable professional assistance accorded to attorneys. Under Oregon law, "[a] person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes crime." a ORS 161.405. substantial step toward corrunission of the The legislative history of the "substantial step" test "leaves with the courts and juries the duty to decide 8 - OPINION AND ORDER what as a matter of fact is a substantial step. It is felt that specificity beyond this would be self-defeating." Oregon Criminal Code, Commentary to ORS 161.405 (§ 54). The Oregon Supreme Court has held that "[e]vidence of a defendant's intent is rarely, ever, proven by direct evidence. if Intent is an operation of the mind, and it is seldom susceptible of direct proof." Rose, 311 Or. at 282. Petitioner argues that he never had operational control of the firearm and that he was simply attempting to resist arrest, not kill the officer. He maintains that there was no evidence from which a jury could conclude that he took a substantial step towards murdering Wilson, therefore the State could not have proven his guilt as to Attempted Aggravated Murder. Appellate counsel explained his decision not to present this issue to the Oregon Court of Appeals as follows: The second allegation complains that I failed to raise a motion for a judgment of acquittal. Again, review of the brief confirms that this allegation is correct. However, I decided to focus the Court of Appeals' attention on what were, in my judgment, better issues. A motion for judgment of acquittal has a standard of review that results in very few cases being reversed on insufficiency grounds. After review of the entire record, in the light most favorable to the state with all conflicts in the evidence resolved in the state's favor and all reasonable inferences going to the state, I concluded that this issue would only detract from the better issues I raised in the brief. Respondent's Exhibit 117, p. 2. 9 - OPINION AND ORDER An independent review of the decision was strategically sound. that he was record shows that Specifically, Wilson testified looking down the barrel of the firearm, defendant "brought [the gun] back up to me twice." Exhibit 103, pp. 73-74. counsel's and that Respondent's These events led Wilson to conclude that he thought he "better do something now or this man is going to kill Id at 74. me." there, He also testified that "based on that incident I believe he was trying to kill me." expressed "[n]o doubt, kill him. Id. Id at 75. Wilson whatsoever" about petitioner's intent to A jury could have reasoned that petitioner was not, in fact, trying to simply wrestle the gun away from Wilson, but was intentionally pointing the firearm at Wilson with the intent to fire the weapon if given the opportunity. Thus, a jury could have concluded, as Wilson did, that petitioner, who had leverage on the weapon, was trying to kill him. In addition, appellate review of this claim is quite difficult because much of the Wilson's testimony was demonstrative: "After I went down, I kind of lifted up like that. That was the first time, when he came back up with that gun and he shoved it clear back up in here, right here. His hand hit right in here. I looked down and I'm looking down the barrel and that's not a good feeling." at 73 (emphasis added). Id It is impossible to determine if "right here" means that petitioner continued to position the barrel of the firearm between Wilson's eyes, to his temple, etc. 10 - OPINION AND ORDER The prosecution also staged a visual re-enactment of the crime for the jury. 77. Id at Thus, the jury was privy to more information than an appellate court (or habeas court) ever would be. This indirect evidence of intent, and any inference of intent, is best left to the judgment of a jury. At a minimum, it is difficult for this court to conclude that the Oregon state courts unreasonably applied clearly established federal law in determining that appellate counsel reasonably exercised his judgment when he elected to drop this claim in light of the standard of review which is applied to motions for judgment of acquittal. would be See Jones v. improper for Barnes, judges 463 U.S. 745, 754 (1983) to reasonable second-guess professional judgments of appointed counsel). (it Accordingly, upon an independent review of the record, the state court decisions denying relief on petitioner's ineffective assistance of appellate counsel claim are entitled to deference. CONCLUSION For the reasons identified above, the Amended Petition for Writ of Habeas Corpus (#33) is DENIED. IT IS SO ORDERED. DATED this 71 day o~:: 2009. ---lI~~~~;.....:..~..:-..;.W---;{ZMLLA- Owen M. Panner United States District Judge 11 - OPINION AND ORDER
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