Ortiz-Contreras v. Nooth, No. 2:2015cv02210 - Document 40 (D. Or. 2018)

Court Description: OPINION AND ORDER: The Court DENIES the Amended Petition for Writ of Habeas Corpus (ECF No. 24 ) and DISMISSES this action. The Court DENIES a certificate of appealability as Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253 (c) (2). Signed on 5/10/2018 by Judge Anna J. Brown. (joha)
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Ortiz-Contreras v. Nooth Doc. 40 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON JOSE ROSENDO ORTIZ-CONTRERAS, Civil No. 2:15-cv-02210-BR Petitioner, OPINION AND ORDER v. MARK NOOTH, Superintendent, Snake River Correctional Institution, Respondent. MARK AHLEMEYER Assistant Federal Public Defender 101 SW Main Street Suite 1700 Portland, OR 97204 Attorney for Petitioner ELLEN F. ROSENBLUM Attorney General SAMUEL A. KUBERNICK Assistant Attorney General Department of Justice 1162 Court Street NE Salem, OR 97204 Attorneys for Respondent 1 - OPINION AND ORDER - Dockets.Justia.com BROWN, Judge. Petitioner, an inmate at the Snake River Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Court DENIES the Amended Petition for Writ of Habeas Corpus (ECF No. 24). BACKGROUND On brother, or about August 31, 1996, Marcos Ortiz-Contreras, Petitioner, along and his cousin, with his Rey Saul Coto- Hernandez (known as "Saul"), killed Hermila Zapo-Coto by strangling him and throwing him into the Willamette River near the town of Newberg. On September 8, 1996, Petitioner and Saul flew to Mexico. Petitioner's brother, Marcos, left for Mexico sometime after Petitioner and Saul. On September 9, 1996, Zapo-Coto' s body was found in the Willamette River. Cloth material, like that from a t-shirt, was found neck around addition, his and binding his a red rope was around his neck, wrists and legs. In and it appeared to be tied to a sack containing rocks, presumably to weigh the body down in the river. The medical examiner determined the cause of Zapo- Coto' s death to be asphyxia, though he was unable to determine whether the victim died due to strangulation or due to drowning in the river. A non-lethal laceration was also found on the victim's head. 2 - OPINION AND ORDER-· Efforts and Saul back to the United States from Mexico for prosecution were unsuccessful. In 2007, to bring however, different name, Petitioner, Marco, Petitioner returned to the Newberg area using a "Rosendo Oliveras. " 1 In November 2007, police officers located Petitioner at his new work place and arrested him. On December 20, 2007, a Yamhill County grand jury indicted Petitioner on charges of Murder and Conspiracy to Commit Murder. 2 The prosecution's theory of the murder was that Petitioner aided and abetted his brother, Marcos, and cousin, Saul, in the murder of Zapo-Coto. As to the charge of conspiracy to commit murder, the prosecution's theory was that Petitioner made an agreement with one or more of the other actors (Marcos and/ or Saul) to kill the victim. On May 27, 2008, Petitioner's trial commenced. made clear that the State was not arguing that personally murdered the victim. The prosecutor Petitioner had Instead, the prosecutor contended Petitioner was an accomplice or an aider and abettor in causing his death. To support the Conspiracy to Commit Murder charge, the prosecution relied solely upon the testimony of the owner of a 1 Neither Marcos nor Saul ever returned to the United States. 2 The grand jury also indicted Petitioner on identity theft charges in connection with his use of an assumed name, charges upon which Petitioner was ultimately convicted, but which are not at issue here. 3 - OPINION AND ORDER - Mexican restaurant in Newberg. On direct examination, she testified that in late August 1996 she overheard Petitioner and unnamed others in a conversation about some money and discussion that they were going to kill someone and throw him in a river. Upon further examination, however, the witness's testimony was not so straightforward. She testified that Petitioner may have been in her restaurant three times, and that she overheard his conversation on two of those occasions. The conversations occurred on separate days a short time apart, but the witness could not say whether they occurred in June, July, or August of 1996. The witness testified that one conversation was between Petitioner and two other men, and concerned plans to take a man to a tavern to get him drunk and steal his money. The other conversation, she testified, was between Petitioner and one other man (who had also been a party to the first conversation) and involved discussion of throwing a man in the river. The prosecutor also presented evidence that upon his arrest Petitioner confessed to being at the scene when Saul killed the victim. Petitioner told the officers that he was very intoxicated the night of the murder, details. and he could not remember all of the Petitioner admitted that he brought Saul a red rope from the trunk of the car when Saul yelled at him to do so. Petitioner also told the officers that he believed the victim was already dead by the time he brought the rope to Saul. 4 - OPINION AND ORDER - Pe ti ti oner testified in his own defense at his trial. substance of his testimony mirrored his statement to The police. Petitioner stated that the day of the murder he drove with his brother from Washington to a residence in Newberg which where Saul, Zapo-Coto, and others lived. Pe ti ti oner was unaware of any disagreement between Saul and Zapo-Coto at first, but over dinner at a restaurant Saul told Petitioner and his brother about a dispute over money involving Saul, Zapo-Coto, and another of their roommates. Petitioner denied that Saul asked him to help Saul kill the victim. After dinner, the group returned to Saul's apartment and everyone was drinking heavily there. At some point that evening, going to a Petitioner. party and invited Saul told Zapo-Coto they were him the join Saul, Marcos, and Petitioner testified that Marcos drove the car to a remote area and parked near a river. exited to car. remained in the car. Petitioner, who Saul, Marcos, and Zapo-Coto was intoxicated, initially Petitioner testified he heard the sound of someone being struck and heard Zapo-Coto cry out. A short time later, Saul yelled to Petitioner to bring a rope from the trunk of the car, and Petitioner complied. Marcos, form. He brought the rope to Saul and who were at the riverside next to Zapo-Coto' s lifeless Petitioner thought the victim was dead because he saw Saul kick the body and the victim did not move. 5 - OPINION AND ORDER - Petitioner denied taking any role in tying the rope to the victim or throwing ZapoCoto in the river. The trial judge instructed the jury that to find Petitioner guilty of Murder, the prosecution was required to prove beyond a reasonable doubt that: the act occurred (1) the act occurred in Yamhill County; (2) on or about August 31, 1996; and ( 3) that Petitioner intentionally caused the death of another human being. As to Petitioner's liability under an aiding and abetting theory, the trial judge instructed the jury that a person aides or abets another person in the commission of a crime, if the person, with the intent to promote or make easier the commission of the crime, encourages, procures, advises, or assists by act or advice, planning or commission of the crime. Murder count, the trial judge On the Conspiracy to Commit instructed the prosecutor was required to prove five elements: occurred in Yamhill County; August 31, 1996; (3) the jury that the (1) the conspiracy (2) the conspiracy occurred on or about Petitioner, with the intent to commit the crime of murder; (4) agreed with another person to commit the crime of ( 5) murder; and a person commits the crime of murder by charge of intentionally causing the death of another human being. The jury found Petitioner Conspiracy to Commit Murder, verdict on the Murder charge. not guilty of the but the jury was unable to reach a The vote on the Murder charge was 11-0 in favor of guilt, and the jury foreperson informed the trial 6 - OPINION AND ORDER - judge it was unlikely the jury would be able to reach a verdict with additional deliberation. Accordingly, declared a mistrial on that basis. the trial court The prosecutor indicated the State intended to re-try Petitioner on the Murder charge. In August 2008, a second trial was held on the Murder charge. This time, while the prosecutor again argued that Petitioner aided and abetted one or more of the others in murdering the victim, the prosecutor did not agreement Murder, to commit argue there was the murder. In "conspiracy" support or specific of the charge of the prosecution relied upon the same core evidence and testimony as in the first trial. same, a except for the omission The jury instructions were the of the original conspiracy instruction. The second jury found Petitioner guilty of Murder. The trial judge sentenced him to life in prison with a mandatory minimum of 300 months of imprisonment. Petitioner filed a direct appeal, Appeals affirmed without denied review. State v. opinion but the Oregon Court of and the Ortiz-Contreras, Oregon Supreme Court 246 Or. App. P.3d 106 (2011), rev. denied, 351 Or. 649, 275 P.3d 968 328, 265 (2012). Petitioner then filed a petition for state post-conviction relief ("PCR"), alleging three claims of ineffective assistance of counsel. Following an evidentiary hearing, denied relief. On appeal, the PCR trial judge the Oregon Court of Appeals affirmed 7 - OPINION AND ORDER - without opinion and the Oregon Supreme Court denied review. Ortiz- Contreras v. Nooth, 272 Or. App. 664, 358 P.3d 1008, rev. denied, 358 Or. 145, 363 P.3d 1287 (2015). On November 23, 2015, Petitioner filed a pro se Petition for Writ of Habeas Corpus in this Court. This Court appointed counsel, who filed an Amended Petition asserting five claims for relief: 3 Ground One: The trial court erred in not entering a sua sponte order for judgment of acquittal. Ground Two: Ineffective assistance of trial counsel for failing to locate and subpoena Marcos and Saul. Ground Three: Ineffective assistance of trial counsel for failing to use a phone conversation between Petitioner and Marcos in which Marcos confessed to the crime. Ground Four: Ineffective assistance of trial counsel for failing to object to a retrial based on Double Jeopardy. Ground Five: Ineffective assistance of trial counsel for failing to seek remedies under the Double Jeopardy Clause, short of a complete bar to a retrial. In his Brief in Support of the Amended Petition, Petitioner addresses only the Double Jeopardy claims; he does not provide argument the on the remaining claims. As to Double Jeopardy claims, Pe ti ti oner concedes they are procedurally defaulted because he did not raise them in the state PCR proceeding. Petitioner argues, nonetheless, that his procedural default is excused under 3 The Amended Petition alleges the grounds for relief in substantially more detail. For the purposes of brevity, the Court relates them as summarized by Petitioner in his Brief in Support. 8 - OPINION AND ORDER - Martinez v. Ryan, 566 U.S. 1, 132 S. Ct. 1309 (2012), and that he is entitled to relief on the merits DISCUSSION I. Ineffective Assistance for Failure to Object on Double Jeopardy Grounds - Excuse of Procedural Default Under Martinez A. Legal Standards A petitioner does not have a federal constitutional right to effective assistance v. counsel Pennsylvania v. proceedings. Bonin of Calderon, 999 during Finley, F.2d state 481 U.S. 425, 430 post-conviction 551, (1987); Cir. (9th 554 1993). Consequently, the general rule is that any errors committed by PCR counsel cannot serve as a basis for cause to excuse procedural default. Martinez, Coleman v. however, Thompson, the Supreme exception to the general rule: at [petitioner's] 501 U.S. Court 7 22, 7 52-53 established ( 1991) . a In limited " [ i] nadequate assistance of counsel initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." To establish "cause" to overcome Martinez, 132 S. Ct. at 1315. a procedural default Martinez, a habeas petitioner must show: (1) the underlying ineffective assistance of trial counsel claim is "substantial;" {2) the petitioner was not represented or had ineffective counsel during the PCR proceeding; (3) the state PCR proceeding was the initial review proceeding; and (4) state law required (or forced as a practical matter) the petitioner to bring the claim in the initial collateral review proceeding. 9 - OPINION AND ORDER - under Dickens v. Ryan, 740 F.3d 1302, 1319 (9th Cir. 2014) Trevino v. Thaler, 569 U.S. 413, 133 S. Ct. 1911, 1918 Only the first two factors are at issue here. Cozner, 679 ineffective F.3d 1150 (9th assistance of Cir. 2012) trial counsel See Sexton v. Oregon, must (2013)). be claims of raised in cert. denied, 133 S. Ct. initial-review collateral proceedings), 863 (2013). (in (citing Thus, in order for this Court to proceed to the merits of Petitioner's ineffective assistance of counsel claim for failing to object to a retrial on Double Jeopardy grounds, Petitioner must (1) demonstrate that his claim is a "substantial" one, "which is to say . . the claim has some merit [, ] " and post-conviction counsel was ineffective. F.3d 362, 377 (9th Cir. 2014), ( 2) establish that Clabourne v. Ryan, 745 overruled on other grounds by McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015). A claim must be examined under the standards of Strickland v. Washington, 466 substantial. U.S. 668 (1984) to Pursuant to Strickland, determine whether it is Petitioner must show both that his attorney's performance fell below an objective standard of reasonableness and that the performance prejudiced the defense. Strickland, 466 U.S. at 688. The question whether an ineffective assistance of trial counsel claim is "substantial" under Martinez is not the same as a merits review. a Strickland Rather, it is more akin to a preliminary review of claim for purposes 10 - OPINION AND ORDER - of determining whether a Martinez, 132 S. Ct. at certificate of appealability should issue. 1318-19. Therefore, a court may conclude that a claim is substantial when a petitioner has shown that resolution of the merits of the Strickland claim would be "debatable amongst jurists of reason" or that the issues presented are "adequate to deserve Miller-El v. Cockrell, 537 U.S. encouragement to proceed further." 322, 336 (2003) The (internal quotations omitted). substantiality of the claim and ineffectiveness of post-conviction counsel factors are interwoven because "[i]f the claim of ineffective assistance of [trial] counsel is implausible, then there could not be a reasonable probability that the result of the post-conviction proceedings would have been any different." Clabourne, 745 F.3d at 377. Additionally, "[i]f trial counsel was not ineffective, then [a petitioner] would not be able to show that PCR counsel's failure to raise claims of ineffective assistance of trial counsel was such a serious error that PCR trial counsel 'was not functioning as the Sexton, Amendment.'" "counsel" guaranteed 679 F.3d at 1159 by the Sixth (quoting Strickland, 466 U.S. at 687). B. Analysis Petitioner argues his trial counsel was ineffective for failing to object to the second trial on the Murder charge or failing Jeopardy. to seek other remedies based on principles of Double Petitioner contends that the first jury's acquittal on 11 - OPINION AND ORDER - the charge of Conspiracy to Commit Murder necessarily required the jury to determine that he did not have the requisite intent to commit murder. As such, Petitioner concludes, collateral estoppel prevented a retrial on the charge of Murder. The constitutional guarantee against Double Jeopardy includes the concept of collateral estoppel. 436, 445 (1970); Cir. 1997). See Ashe v. Swenson, 397 U.S. United States v. James, 109 F.3d 597, 600 (9th In this context, collateral estoppel means that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe, 397 U.S. at 443. Collateral estoppel analysis involves three steps: First, the issues in the two actions are identified so that we may determine whether they are sufficiently similar and material to justify invoking the doctrine. Second, we examine the first record to determine whether the issue was fully litigated. Finally, from our examination of the record, we ascertain whether the issue was necessarily decided. James, 109 F.3d at 600 (quoting United States v. Schwartz, 785 F.2d 673, 681 (9th Cir. 1986)). When an element of the crimes charged in successive prosecutions is identical, the "similar and material" prong is satisfied. Cir. 2004). The United States v. Ford, 371 F.3d 550, 556 (9th determination of whether the issue was "necessarily decided" turns on whether an issue of fact or law was "actually litigated and determined by a valid and final judgment, 12 - OPINION AND ORDER - and . . . is essential to the judgment." 825, 834 2152-53 (2009) Bobby v. Bies, 556 U.S. (citation omitted). The earlier determination (whether it be by judge or jury) must be given the most rational interpretation possible. States v. Carbullido, 307 F.3d 957, 961-62 United (9th Cir. 2002). The petitioner bears the burden of showing that the issue whose relitigation he wishes to foreclose in a second proceeding was actually decided in the first one, and that no rational jury could have grounded its verdict on an petitioner seeks to foreclose. 1242, 1246 (9th Cir. 1998) Cir. 1998). retrial of the is Santamaria v. Horsley, one the 133 F.3d (en bane), amended, 138 F.3d 1280 (9th In a federal habeas proceeding involving a claim that allegedly precluded issue jeopardy protections, verdict issue other than the a the preclusi ve question of federal would violate effect law but of the court's interpretations of state law are binding. the double first state's jury highest Santamaria, 138 F.3d 1245. Here, the first jury's acquittal of Petitioner on the Conspiracy to Commit Murder charge did not necessarily mean the jury decided Pe ti ti oner did not otherwise aid and abet in the murder of the victim. "criminal persons conspiracy" to constituting engage "a in crime Under Oregon law, if or the person cause punishable 13 - OPINION AND ORDER - the as a person is guilty of "agrees with one or more performance of" conduct a felony or a Class A misdemeanor." Or. Rev. Stat. § 161.450(1). charge of aiding and abetting, As to liability on a Oregon law provides a person is criminally liable for the conduct of another person committing the crime if "with the intent to promote or facilitate the commission of the crime," the person "aids and abets or agrees or attempts to aid or abet such person in planning or committing the crime." Rev. Stat. § 161.155(2) (b). Or. Conspiracy and aiding and abetting are "two separate and distinct notions in the criminal context" under Oregon law. Granewich v. Harding, 329 Or. 47, 56 n.3, 985 P.2d 788 (1999). As noted, the judge instructed the jury at Petitioner's first trial as follows: "Oregon law provides that person commits the crime of Conspiracy, if the person with the intent to commit a crime, agrees with one or more persons to commit the crime." p. 673. Tr. As noted, the prosecution's theory on the Murder charge was that Petitioner aided or abetted one or more other people (Saul and Marcos) in the commission of the murder. trial judge instructed the another procures, person in advises, the jury that commission of In that regard, the "a person aides or abets the crime, or assists by act or advice, commission of the crime." encourages, the planning or Tr. p. 678. A rational interpretation of the first jury's acquittal on the charge of Conspiracy to Commit Murder is that the jury decided the testimony of the restaurant owner was insufficient to establish 14 - OPINION AND ORDER - beyond a reasonable doubt that Petitioner entered into a prior agreement with the other actors to get the victim drunk, kill him, and throw him in the river. The jury did not necessarily determine thereby that the prosecutor failed to prove Petitioner aided and abetted in restaurant the murder. owner were The conversations separate and overheard distinct from by the the events involving Petitioner, Saul, Marcos, and the victim on the actual night of the murder. The prosecutor introduced evidence that, on that night, Petitioner learned Saul wanted to kill the victim, that Petitioner was present when his brother and cousin were tying the victim up and throwing him in the river, and that, at the very least, Petitioner took a rope from the trunk of the car and handed it to Saul to tie up the victim. As such, the jury rationally could have concluded that the prosecution failed to establish the existence of a prior agreement to commit the murder, and that conclusion is separate and distinct from the jury's inability to reach a verdict on whether Petitioner aided and abetted others on See United States v. the night the victim was murdered. 6 9 8 F . 2 d 9 81 , 9 8 5 ( 9th Cir . 19 8 3 ) Herbert, ( " [ c] on s piracy re q-u ires a prior agreement to commit an offense" whereas "[a]iding and does not require a prior agreement, [a]betting but only that the defendant consciously share in a criminal act, regardless of the existence of any agreement") (citing Pereira v. United States, 347 U.S. 1, 11- 12 (1954)). 15 - OPINION AND ORDER - Under these circumstances, reasonable trial counsel could have concluded that objection to the second trial on Double Jeopardy As such, grounds would have been futile. perform deficiently by not moving Charge or seeking other remedies. for trial counsel did not dismissal of the Murder In any event, Petitioner has not shown a reasonable likelihood that, even if trial counsel had moved for dismissal on double jeopardy grounds, have granted the ineffective, Because motion. Petitioner's PCR trial the trial judge would trial counsel counsel was was not likewise not ineffective for failing to allege the Double Jeopardy claims, and, therefore, Petitioner's procedural default is not excused under Martinez. See Sexton, 679 F.3d at 1159 (where trial counsel was not ineffective, habeas petitioner does not present a substantial claim for the purposes of Martinez); Clabourne, 745 F.3d at 377 ("if the claim of ineffective assistance of counsel is implausible, then there could not be a reasonable probability that the result of the post-conviction Accordingly, proceedings would have been different"). Petitioner is not entitled to relief on his claims that trial counsel provided constitutionally ineffective assistance by failing to object to a retrial or seek other remedies under the Double Jeopardy Clause. II. Remaining Claims As noted, Petitioner does not address the remaining grounds for relief in his Brief in Support of the Petition. 16 - OPINION AND ORDER - Accordingly, Petitioner has failed to sustain his burden of demonstrating why he is entitled to relief on his unargued claims. See Lampert v. Blodgett, 393 F.3d 943, 970 n.16 (9th Cir. 2004) (petitioner bears burden of proving his case); Davis v. Woodford, 384 F.3d 628, 638 ( 9th Cir . 2003 ) ( same ) . Nevertheless, the Court has reviewed Petitioner's unargued claims and is satisfied that Petitioner is not entitled to relief on the remaining claims alleged in his Petition for Writ of Habeas Corpus. CONCLUSION For these reasons, the Court DENIES the Amended Petition for Writ of Habeas Corpus (ECF No. 24) and DISMISSES this action. The Court DENIES a certificate of appealability as Petitioner has not made a substantial constitutional right. showing of the denial See 28 U.S.C. § 2253 (c) (2). IT IS SO ORDERED. DATED this day of May, 2018. 17 - OPINION AND ORDER - United States District Judge of a