Orr v. Nooth, No. 1:2010cv00340 - Document 40 (D. Or. 2011)
Court Description: Opinion and Order. For the reasons identified, the Petition for Writ of Habeas Corpus 1 is DENIED. Signed on 8/23/2011 by Judge Owen M. Panner. (dkj)
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Orr v. Nooth Doc. 40 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MEDFORD DIVISION RODNEY S. ORR, Civil No. 10-340-PA Petitioner, v. MARK NOOTH, OPINION AND ORDER Respondent. Rodney S. Orr, #7850955 777 Stanton Blvd. Ontario, Oregon 97914 Petitioner, Pro Se John R. Kroger, Attorney General Andrew W. Hallman, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent 1 OPINION AND ORDER Dockets.Justia.com PANNER, Distr Judge. Petitioner brings this habeas corpus case U.S.C. § 2254 challenging the legality of a va state court Petition convictions. For the reasons pursuant to 28 y of underlying that follow, the Writ of Habeas Corpus (#1) is denied. BACKGROUND On May 22, 2000, petitioner was indicted by the Marion County Grand Jury for Attempt Weapon With a Murder with a Firearm, Unlawful Use of a rearm, Ass t in the Fourth Degree, two counts of Assault in the Second Degree, Felony Assault in the Fourth Degree, Kidnapping in the First Degree, and Coercion. 102. On Janua 19, 2001, Respondent's Exhibit the Marion County Grand Id. All of se cha stemmed from so the Second indicted petitioner on one count of Attempted Assault Degree. Jury incidents of domestic violence involving petitioner's wife. Petitioner proceeded to a jury trial where the jury convicted him on all counts, and the trial court sentenced him to 260 months in prison. Respondent's Exhibit 127; The Oregon Court of Appeals a a written opinion, and Respondent's Exhibit 101. rmed the trial court's decision in Oregon Supreme Court denied review. State v. Orr, 197 Or. App. 327, 105 P.3d 904, rev. ed 338 Or. 680, 115 P.3d 245 (2005). Petitioner next filed for post-conviction relief ("PCR") Ma1heur County where the PCR trial court denied relief on all 2 - OPINION AND ORDER in his claims. a Respondent's Exhibit 190. The Oregon Court of Appeals rmed the lower court without issuing a written opi on, and the Orr v. Hill, 231 Or. App. 569, Oregon Supreme Court denied review. 219 P.3d 618 (2009), rev. denied 347 Or. 608, 226 P.3d 43 (2010). Petitioner filed his federal Petition for Writ of Habeas Corpus on March 26, 2010 raising 33 grounds for relief containing numerous sub-claims. Respondent asks the court to deny relief on the Petition because most of ioner's claims are procedurally defaulted, and the ineffective assistance of counsel claims which pet ioner did irly present to Oregon's state courts lack me t. DISCUSSION I. Exhaustion and Procedural Default A. Standards A habeas pet ioner must exhaust his c presenting them to the state I s highest court, ims by ly either through a direct appeal or collateral proceedings, before a federal court will consider the merits of those claims. Rose v. Lundy, 455 U.S. 509, 519 (1982). "As a general , a petitioner satisf s the exhaustion requirement by fairly presenting the federal claim to the appropriate state courts . state courts, opportun thereby to cons 386 F.3d 896, Moore, 'affording the state courts a meaningful r allegations of legal error. 915-916 (9th Cir. 2004) Hillery, 474 U.S. 254, 257, 3 . in the manner required by the OPINION AND ORDER (1986)). I" Casey v. (quoting Vasquez v. If a habeas litigant failed to present his aims to the state courts in a procedural context in which the merits of the claims were actually considered, the claims have not been fairly presented to the state courts and are therefore not eligible for federal habeas corpus review. Castille v. Peoples, 489 U.S. 346, 351 (1989). defaulted" his A petitioner is deemed to have "procedural claim if he failed to comply with a state procedural rule, failed to raise the claim at the state level at all. Ca 722, ter, 529 750 u.s. (1991). or Edwards v. 446, 451 (2000); Coleman v. Thompson, 501 U.S. If a petitioner has procedurally defaulted a claim in state court, a federal court will not review the claim unless the petitioner shows "cause and prejudice" to present the const utional issue to t colorable showing of actual innocence. for the failure state court, or makes a Gray v. Netherland, 518 U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992); Murray v. Carrier, B. 477 U.S. 478, 485 (1986). Analysis Petitioner raises 23 grounds for reI s direct appeal. should have been brought during Sta 318 Or. record in 352, 360, this case 867 P.2d 1368 reveals f in his Pet that pet (1994). ioner ion which See Palmer v. A review of pursued only one federal claim during direct review: whether the trial court erred when it allowed evidence introduced during the trial. 4 - OPINION AND ORDER of a prior unrelated crime to be Respondent's Exhibit 103, p. 11-20. Petitioner also presented this claim to the Oregon Supreme Court as a federal claim.l Respondent's Exhibit 107, p. 3. rel not, however, raise this as a ground Writ of Habeas Corpus, pleading. claiming Memo in Support, contained within the Pet Petitioner does f in his Petition r forgot to include it in his (#36), p. 37. Because the claim is not ion, it is not properly before the court. See Rule 2(c}, Rules Governing Section 2254 Proceedings, 28 U.S.C. foll. § 2254 (requiring each habeas petition to "specify all the grounds for relief wh v. Henry, are available to the petitioner"}; Greene 302 F.3d 1067, 1070 fn 3 (9th Cir. 2002) (a court need not consider claims not raised in the petition) . Based on t iled to fai foregoing, y present Grounds 1, 2, 13, 14, 15, 16, 19, 20, 21, time for the court concludes that petitioner 3, 4, 5, 6, 7, 9, 11, 12, 22, 25, 27, 28, 30, and 32. presenting these claims to Oregon's state Because courts passed long ago, they are now procedurally defaulted. Petitioner raises ten grounds for relief al sub-claims of ineffective assistance petitioner's PCR record shows that pet ging numerous of counsel. A review of ioner did, fact, fairly The Pet ion for Review also raised a Sixth Amendment im pursuant to Blakely v. Washington, 542 U.S. 296 (2004). However, because petitioner had not raised such a aim in his PCR Petition or his Appellant's Brief, it was unpreserved for review by the Oregon Supreme Court. ORAP 9.20(2) (questions be re t Oregon Supreme Court include only questions properly before the Court of Appeals which the petition for review claims were erroneously decided by that court). 5 - OPINION AND ORDER present several federal ineffective assistance of counsel claims to Oregon's state courts. In his counseled Appellant's Brief filed in the Oregon Court of Appeals, petitioner raised two c ims: 2 1. Trial counsel was ineffective for failing to move for judgment of acquittal on the charge of Kidnapping in the First Degree; and 2. Trial counsel was ineffective for failing to challenge the non-unanimous jury verdict as it violates the Sixth Amendment. Respondent's Exhibit 191. Petitioner also filed a Pro Se Supplemental Appellant's Brief in which he raised three additional claims of ineffective assistance of counsel: 1. Trial counsel failed to object to warrantless entry and search of petitioner's residence and questioning of peti tioner without advising him of his rights before a warrant ss arrest was made; 2. Trial counsel failed to object to the petitioner's untimely arraignment; and 3. Trial counsel failed to move for a judgment of acquittal on the jury's verdicts on all counts where reasonable doubt existed. Respondent's Exhibit 194. Petitioner raised all five of these claims in his Petition for Review to the Oregon Supreme Court. Respondent's Exhibit 196. 2 Petitioner actually raised additional claims, but later moved to withdraw them. Respondent's Exhibit 192. 6 - OPINION AND ORDER Accordingly, 23(H), he fairly presented Grounds 23(MM), (I), and (J), and 23(BBB) of his Petition Corpus. 23(G), 23(HH), r Writ of Habeas He did not, however, fairly present any of the remainder of his claims of ineffective assistance of counsel to Oregon's state courts. C. Excuses to Procedural Default In his supporting memorandum, petitioner appears to claim that errors by counsel and the courts constitute cause and prejudice to excuse his default, but he does not describe how any such errors actually prevented him from raising his federal claims either on direct appeal or during his PCR proceedings. As such, he fails to See Coleman demonstrate cause and prejudice to excuse his default. v. Thompson, 501 U.S. 722, 754 (1991) (requiring pet that some cause external to the defense ioner to show prevented him from presenting his claims to the applicable state courts) . Petitioner so claims that he is actually innocent because there was reasonable doubt as to his guilt. U.S. 298 (1995), the Supreme Court In Schlup v. Delo, 513 concluded that a habeas petitioner could overcome a procedural default by showing that he was actually innocent such that no reasonable voted to convict him. claim of actual Id at 327. innocence juror would have But in order to be credible, a "requires petitioner to support his allegations of constitutional error with new reliable evidence -whether be exculpatory 7 - OPINION AND ORDER scientific evidence, trustworthy eyewitness accounts, or critical phys . at 324; Downs v. presented at trial." Cir. 1040 pet 1 evidence--that was not cert. 2000), denied, Hoyt, 121 S.Ct. 232 F. 1665 1031, (2001). As ioner presents no new evidence of his innocence, he is unable to excuse his default. II. The Merits A. An Standard of Review application granted un for a writ of habeas corpus shall not be ss adjudication of the claim in state court resu a decision that was: in (1) "contrary to, or involved an unrea e application of, clearly established Federal law, as determined by the Supreme Court of Uni ted States;" unreasonable determinat pres of the facts the State court proceeding." or (2) "based on an light of the evi 28 U.S.C. 2254(d). § state court's findings of fact are presumed correct, and pet bears the burden of state establi cont court precedent ioner ting the presumption of correctness by clear and convincing evidence. A A decision if 28 U.S.C. § 2254(e) (1). is "contrary state court cts the governing law set forth in to clearly applies a rule that 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. 8 - OPINION AND ORDER at a or, result di 529 U.S. rent from 362,405-06 [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 Id at 413. case." 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. When a state court reaches a Id at 409. 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. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). 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, 313 F.3d 1160, 1167 (9th Cir. 2002). Because the PCR trial court provided rationale only to support the denial of petitioner's independent review Ground 23(MM), the court conducts an the record with respect to the remainder of his claims. B. Anal.ysis Because no Supreme Court precedent is directly on point that corresponds to the facts of any of petitioner's claims in this case, the court uses the general two-part test the Supreme Court 9 - OPINION AND ORDER has established to determine whether ineffective assistance of counsel. Ct. 1411, counsel's 1419 performance Due performance, 1 to the ioner received Knowles v. Mirzayance, 129 S. petitioner must below Strickland v. reasonableness. (1984) . First, (2009). pet an s courts must indulge a in that his standard objective Washington, difficult show of 466 U.S. 668, evaluating counsel's strong presumption that the conduct falls wi thin the "wide range of reasonable pro assistance." 686-87 ssional Id at 689. Second, petitioner must show that his counsel's performance The appropriate test for prejudice is prej udiced the defense. whether the petitioner 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. When Strickland's general standard is combined with the standard of review governing 28 U.S.C. is a "doubly deferent § 2254 habeas corpus cases, the result judicial review." Mirzayance, 129 S.Ct. at 1420. 1. Ground 23 (MM) : Judgment of Acquittal In his only properly preserved portion of this sub-claim, petitioner asserts that his trial attorney failed to adequately challenge his conviction for Kidnapping in the First Degree based 10 - OPINION AND ORDER on the lack of evidence substantially with the determined, this showing that he ctim's liberty. claim was based on a intended to As new interfere PCR trial court case decided after petitioner's trial and appeal, State v. Wolleat, 338 Or. 469, 111 P.3d 1131 (2005). mandate preva Respondent's prescience, only ibit 190. objectively ing professional norms." F.3d 859, 870 (9th Cir. 2004) ( "Strickland does not reasonable Sophanthavong v. advice Palmateer, at the time of t 378 ing Strickland, 466 U.S. at 690); see also Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) not required to anticipate under (lawyers cisions, and conduct must be evaluated conduct). Because counsel is not presumed to anticipate changes in the law, the PCR trial court's decision was neither contrary to, nor an unreasonable application of, clearly established federal law. 2. Grounds 23(G): Pretrial Detention According to petitioner, t counsel was inef ive ling to challenge his allegedly unlawful detention which, he claims, consisted of more than 36 hours without an arraignment and wi thout any determination of probable cause. Petitioner was originally charged by Information on Friday, May 12, 2000, and he was arraigned on Monday, May 15, 2000 at 8:30 a.m. Exhibit 112. Respondent's This was well within the parameters of ORS 135.010, which provides that a criminal defendant must be arraigned within 36 hours after being formally accus 11 - OPINION AND ORDER ,exclusive weekends. As such, counsel had no basis upon which to challenge petitioner's detention, and thus cannot be faulted for not doing so. See Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994), rev. denied, 513 U.S. 1001 (1994) (an attorney is not required to fi to be meritless). a motion he knows Accordingly, upon an independent review of the record, the peR trial court's decision on this claim was neither contrary to, established an unreasonable ioner also alleges clearly that (#1), p. 27. his trial failed to move attorney r a j udgment of Petitioner does not cify exactly what charges counsel should have moved against, nor does he identi spe c basis upon which was State's evidence or thereafter.H tal "at the close of Petition of, Ground 23(HH): Judgment of Acquittal constitutionally deficient when acqu application ral law. 3. Pet nor counsel should have moved. In a his Supplemental PCR Appellant's Brief, he claimed that counsel should have moved for a judgment of acquittal as to all counts against him because reasonable doubt existed as to his guilt. On a motion for judgment of acquittal in a criminal case in Oregon, the question is whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. 348 Or. I, 6, 227 P.3d 1139 (2010). intoxication defense prosecution presented with which the jury 12 - OPINION AND ORDER State v. Mejia, At trial, petitioner the jury did not with sufficient agree. evidence sed an The that petitioner did, in fact, commit the various crimes with which he was charged, thus there was no basis upon which counsel should have moved for a judgment of acquittal. Accordingly, upon an independent review of the record, the peR trial court's decision denying reli on this c im unreasonable application of, 4. next challenging the warrant neit r contrary to, nor an early established federal law. Grounds 23 (H), Petitioner is and (I), faults trial (J): Motion to Suppress counsel for not adequately ss search of his residence, seizure of his property, arrest, and the statements he made to police officers. As an initial residence was matter f the warrantless valid because consent of pet ioner's wi the search authorities of petitioner's had the voluntary , a co-occupant of the home. Illinois v. Rodriguez, 497 U.S. 177 (1990); State v. Beyland, 158 Or. App. 410, 417 (1999). Wi respect to petitioner's allegations that counsel should have challenged the admissibility of statements the police had unlawfully obtained from him, statements with specificity. petitioner did not identi During his peR deposition, those the State's attorney asked him what specific statements counsel should have moved to suppress, but petitioner indicated that he couldn't remember any. Respondent's Exhib did not present t substance of this 13 - OPINION AND ORDER 186, p. 25. Where petitioner aim to the peR trial court, it's decision to deny relief cannot be said to be objectively unreasonable. 5. Ground 23(BB): Less-Than-Unanimous Verdicts nally, petitioner argues that trial counsel was ineffective for failing to object to the less-than-unanimous jury verdicts on The u.s. Supreme Court directly addressed four of his convictions. Oregon's less-than-unanimous jury decisions in Apodaca v. Oregon, 406 u.S. 404 (1972), holding that a criminal conviction by a less than-unanimous jury does not violate the Sixth Amendment. result, counsel verdicts. had no basis upon which to object to As a these As a result, upon an independent review of the record, the PCR trial court's decision denying relief on this claim was neither contrary to, nor an unreasonable application of, clearly established federal law. CONCLUSION For the reasons identified above, Habeas Corpus (#1) is DENIED. The the Petition for Writ of 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 day Owen M. Panner United States District Judge 14 - OPINION AND ORDER
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