Torkelson v. Nooth, No. 3:2010cv01183 - Document 40 (D. Or. 2012)
Court Description: OPINION AND ORDER. The Petition for Writ of Habeas Corpus 2 is granted as to petitioner's Ground One confrontation claim. In the event this decision is appealed, the court issues a Certificate of Appealability only as to: (1) whether pe titioner fairly presented his Ground One claim to Oregon's state courts; and (2) whether the introduction of Michelle Hartford's out-of-court statements had a substantial and injurious effect upon petitioner's trial with respect to his convictions for Kidnapping in the Second Degree as contained in Count One of the Indictment and Conspiracy to Commit Kidnapping in the Second Degree as contained in Count Six of the Indictment. Any request for a Certificate of Appealability as to any other issue is denied. IT IS SO ORDERED. Signed on 7/23/2012 by Judge Garr M. King. (gw)
Download PDF
<![CDATA[
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION JAMES DAVID TORKELSON , Case No . 3 : 10 - CV - 1183 - KI Petitioner , v. MARK NOOTH , OPINION AND ORDER Respondent . Anthony D. Bornstein , Assistant Federal Public Defender 101 S . W. Main Street , Suite 1700 Portland , Oregon 97204 Attorney for Petitioner Ellen F . Rosenblum , Attorney General Andrew D. Hallman , Assistant Attorney General Department of Justice 1162 Court Street NE Salem , Oregon 97310 Attorneys for Respondent 1 - OPINION AND ORDER KING , District Judge . This 28 U.S . C . § 2254 habeas corpus action comes before the court on petitioner ' s Ground One confrontation claim and his Ground Four claim alleging ineffective assistance of counsel . For the reasons that follow , petitioner is entitled to habeas corpus relief as to Ground One . BACKGROUND Petitioner , Rob Smith , Lindsey Ulrich , Gary Brown , Sheila McKenzie , Dimitri Tash , Pam Bailey , and Michelle Hartford were all members of a white supremacist group . group decided to go to Beulahland , On November 1 , stayed behind Ulrich . Id at at the rival skinhead gang . Hartford was not feeling well , and she Causey 614 . the a bar in northeast Portland known to be frequented by the "SHARPS ," a Trial Transcript , p . 436 . 2001 , Street Hartford Ulrich ' s 8 - month - old son , Reis . apartment spent the she shared evening with babysitting Id . When the group arrived at the bar , Bailey asked Ulrich if she had her knife and if she was prepared to use it . Id at 439 . Ulrich stated that she had her knife and would use it if she had to . Id . Ulrich was excluded from Beulahland because she was underage . Id . Brown went outside with Ulrich and asked her if she " had his back ." two Ulrich responded that she did . SHARP ' s approached from 2 - OPINION AND ORDER down the Id . Shortly thereafter , street and began an altercation with Brown , while a third SHARP approached Ulrich and began yelling at her . Id at 443 - 443 . Ulrich did not pull out her knife , nor did she attempt to come to Brown ' s defense . The SHARP ' s ran away after petitioner , McKenzie , Tash , Smith , and Bailey came out of the bar and Tash drew his knife . The group ultimately returned to Id at 443 . an Street that petitioner shared with Rob Smith . apartment on Id at 452 . Madison In light of Ulrich ' s unwillingness to come to Brown ' s defense at Beulahland , petitioner told McKenzie that Ulrich had to be " stripped " of her skinhead identity , a process which includes removal of the person ' s skinhead symbols and beating . Id at 627 - 28 . which McKenzie understood would entail a Bailey and McKenzie proceeded to severely assault Ulrich and strip her of her skinhead symbols while the men watched . Id at 464 - 69 , 631 - 34 . The assault petitioner told the women , " That ' s enough. " continued until Id at 636 - 41 . Ulrich subsequently asked to be taken to the hospital , but Bailey r efused this request for fear that the police would become involved . Id at 481 . She told Ulrich to remain seated and awake in a recliner for at least two hours in case she had a concussion . Id . Ulrich remained seated for " at least " 90 minutes during which time Bailey checked on her to make sure she was awake . Id at 483 . Brown then drove Ulrich to her apartment on Causey Street . at 484 - 85 . Id Over the next four days , Brown and Hartford deprived Ulrich of her liberty when they prevented her from : 3 - OPINION AND ORDER (1) going to the hospital ; ( 2 ) meeting her husband for coffee ; ( 3 ) leaving the apartment except to accompany Brown and Hartford on their errands ; and ( 4 ) talking on the phone to her mother , except for one brief call in which she was told what to say and monitored throughout the conversation . On escape the afternoon of November from Hartford ' s Id at 487 - 494 . her apartment bedroom . Id at 5, 2002 , when Brown 491 , 505 - 06 , Ulrich was and able to Hartford were in to the 794 . She apartment complex manager ' s office and called 9- 1 - 1 . Law enforcement personnel responded to Ulrich ' s ran Id at 506 - 08 . 9 - 1 - 1 call and ultimately arrested petitioner and the others . On December 17 , 2001 , petitioner was indicted on two counts of Kidnapping (1) the Second Degree on the following theories : petitioner secretly confined Ulrich in a place where she was not likely to be found (the Madison apartment ) ; and (2 ) petitioner took Ulrich from one place to another (from the Madison apartment to the Causey apartment ) with the intent to substantially interfere with her personal liberty . Respondent ' s Exhibit 102 . Petitioner was charged with conspiracy to commit these kidnappings , and was also indicted on one count of Assault in the Second Degree , one count of Robbery in the Second Degree , one count of Coercion , one count of Conspiracy to Commit Assault in the Second Degree , one .. count of Conspiracy to Commit Robbery in the Second Degree , one count of Assault in the Third Degree , one count of Conspiracy to 4 - OPINION AND ORDER Commit Assault in the Third Degree , one count of Robbery in the First Degree , and one count of Conspiracy to Commit Robbery in the First Degree . Id . A jury ultimately convicted petitioner on all counts except Res~ondent ' s Conspiracy to Commit Second Degree Assault . 10 1. Exhibit The trial court imposed the following consecutive sentences totaling 300 months in prison : 70 - month sentences for each of the Kidnapping convictions , Second Degree , Degree . 1 a 70 - month sentence for Assault in the and a 90 - month sentence for Robbery in the First Sentencing Transcript , pp . 29 - 34 . Petitioner took a direct appeal where he argued , in part , that the trial court erred when it admitted portions of Hartford ' s out of - court statements to police Respondent's Exhibit 103 . trial court ' s that served denied , 339 Or . 66 incriminate State v . Torkelson , and the Oregon Supreme 198 Or . App . 533 , rev . (2005) . Petitioner next filed for post - conviction relief Malheur County him . The Oregon Court of Appeals affirmed the decision without opinion , Court denied review . to where Respondent ' s Exhibit 159 . the PCR trial court (" PCR" ) in denied relief . The Oregon Court of Appeals affirmed the lower court without opinion , and the Oregon Supreme Court denied The conspiracy convictions merged with these offenses . Sentencing Transcript , p . 3 . 5 - OPINION AND ORDER review . Torkelson v . Hill , 239 Or . App . 430 , rev . denied 347 Or . 349 (2009) Petitioner filed his federal Corpus on September 27 , 2010 . Grounds Two , Three , Petition for Writ of Habeas On May 4 , 2012 , this court dismissed Five , Eight , and Nine of the Petition . The court also ordered respondent to brief the merits of petitioner ' s Ground One confrontation claim after concluding that petitioner fairly presented the claim to Oregon ' s state courts . The following two grounds remain for disposition on the merits : 1. Trial counsel was constitutionally ineffective for failing to raise a state law objection to the exclusion of petitioner ' s friends from his criminal trial ; and 4. The trial court violated petitioner ' s Sixth Amendment right to a fair trial when it admitted portions of Michelle Hartford ' s out - of - court statements to police that served to incriminate him . Petition for Writ of Habeas Corpus (#2) , pp. 16 - 20. DISCUSSION I. Standard of Review An application for a writ of habeas co rpus s hall not be granted unless adjudication of the claim in state court resulted in a decision that was : ( 1) " contrary to , or involved an unrea s onable 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 6 - OPINION AND ORDER 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 established court decision precedent if the 28 U. S . C . is § 2254(e) (1) " contrary state court contradicts the governing law set forth in to clearly applies a rule that [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 at v. a result 529 Taylor , different 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 . The state court ' s application of clearly established Id at 410 . 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 , 7 - OPINION AND ORDER 223 F . 3d 976 , 982 (9 th Cir . 2000). In such an instance , although the court independently reviews the record , it still lends qeference to the state court ' s ultimate Harrington v . Richter , 131 S . Ct . 770 , 784 - 85 (2011 ) ; decision . Pirtle v . Morgan , 313 F . 3d 1160 , 1167 (9th Cir . 2002 ) . II. Analysis A. Ground Four: Ineffective Assistance of Counsel The court first analyzes petitioner ' s fourth ground for relief wherein he ineffective alleges for that failing trial to counsel raise was a law objection to state constitutionally exclusion of petitioner ' s friends from the trial . the The PCR trial court denied this claim without providing any rationale , thus this court will independently review the record . 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 whether petitioner Know 1 e s v. Supreme Court received Mirza y an c e , 12 9 has established ineffective S. Ct . to assistance 14 11 , 1 41 9 determine of counsel . (2 0 0 9 ) . First , petitioner must show that his counsel ' s performance fell b e low an objective standard of reasonableness . 466 U. S . 668 , 686 - 87 (1984) . counsel ' s performance , that conduct the Due to the difficulties in evaluating courts must falls within professional assistance ." 8 - OPINION AND ORDER Strickland v . Washington , indulge a the Id at 689 . " wi de strong presumption range of rea s onable Second , petitioner must show that his counsel ' s performance The appropriate test prejudiced the defense . whether the petitioner probability that , but can for show " that counsel ' s there for prejudice is is a unprofessional reasonable errors , the Id at 694 . result of the proceeding would have been different ." A reasonable probability is one which is sufficient to undermine confidence in Strickland ' s the general outcome of standard review governing 28 U. S . C . § the is trial . Id at combined with the 696 . When standard of 2254 habeas corpus cases , the result is a " doubly deferential judicial review ." Mirzayance , 129 S . Ct . at 1420 . In the midst of his trial , petitioner personally addressed the court about the absence of his friends from his trial : I had s ome friends who were here to show support for me and they were told they could not be here because of alleged intimidation the day before , that someone had tried to approach [Ulrich] , is the story I heard . When I asked them I spoke to the deputies . what the situatiorr was , and I obviously think it ' s disrespectful , that just because they ' re here to show support for us this is supposed to be open to the public . Why are they being denied the right to be here if they weren ' t causing any scene back there whatsoever? Trial Transcript , p. 750 . The prosecutor expla i ned what happened as follows : facilities folks with We supplied the information about what our concerns were , which are , in part , one of these fellows , Mr . 9 - OPINION AND ORDER Jason Stevens , who has been identified as a skinhead to me by a Portland police officer , that he attempted to approach Ms . Ulrich while she was in the courthouse , and I alerted court facilities about that issue . I wanted additional security to insure that my witnesses in this case who have both testified about the ramifications of what talking to the police and testifying against these men will have for them , I wanted to have additional security . The exclusion order was not made until Thursday , and I think it was , in part , because it was difficult - - this is my speculation now -- it was difficult to supply security and allow my witnesses to move through the courthouse . Id at 753 - 54 . The trial judge noted that he had not observed any inappropriate behavior by anyone in the courtroom , and that he had not ordered the exclusion of any spectator . He further advised petitioner that it was the Sheriff who was tasked with security within the building , and that the court was unwilling to interfere with the Sheriff ' s decision on such a matter . Id at 754 - 55 . It is difficult to conclude what specific state law objection counsel could have made which would have convinced the trial judge to intervene in the Sheriff ' s counsel's decision was In addition , security decision . tactically reasonable where he was " concerned that [petitioner ' s friends] would be disruptive during the trial and that any misbehavior on their part could and probably would reflect Respondent ' s badly Exhibit on my 150 . client Given in the the eyes of reported the jury ." intimidation involving Ulrich and the lack of any real benefit conferred upon 10 - OPINION AND ORDER petitioner by having his friends at his trial , it was wise for counsel not to press this issue further . Because the court concludes that counsel ' s performance did not fall below an objective standard of reasonableness , the PCR trial court ' s decision denying relief on this claim was neither contrary to , nor an unreasonable application of , clearly established federal law . B. Ground One: Right of Confrontation As discussed in the Background of this Opinion , petitioner was convicted of kidnapping Ulrich : (1) when he and the others held her at the Madison apartment (Count Two ) ; and (2 ) and when Brown transported Ulrich to the Causey Street apartment where she was held her for a period of four days Causey kidnapping , (Count One) . To support the the State introduced out - of - court statements from Michelle Hartford to Detective Musgrave tending to show that Brown and Hartford did not act alone Causey apartment . 2 Petitioner in holding Ulrich at asserts that the trial the court ' s admission of these statements violated his Sixth Amendment right to confrontation . In the absence of a reasoned decision on this issue from the Oregon state courts , the court independently reviews the record as to this claim . 2 Hartford ' s statements were deemed admissible under OEC 804(3) (c) because Hartford had invoked her Fifth Amendment right not to incriminate herself such that she was deemed "unavailable , " and her statements to the detective tended be against her penal interest . Trial Transcript , p. 341 . 11 - OPINION AND ORDER The parties agree that the introduction of Hartford ' s out of - court statements was a violation of the Confrontation Clause , 3 but disagree result . as to whether petitioner suffered prejudice In order for petitioner to prove he was as a sufficiently prejudiced by the confrontation violation to warrant relief , he must show that the improperly admitted statements " had substantial and injurious verdict ." effect or influence in determining the jury ' s Kotteakos v . United states , 328 U. S . 750 , 776 (1946) ; Brecht v . Abramson , 507 U. S . 619 , 637 - 38 (1993) . The testimony at trial revealed that petitioner spent very little time at the Causey street apartment during Ulrich ' s four - day confinement . When Brown and Ulr i ch arrived apartment , Hartford was there taking care of Reis . were also at the apartment . Id at 486 . at the Causey Tash and Bailey At the time , Brown was involved in an intimate relationship with Hartford and apparently spent substantial time at the Causey apartment . According to Ulrich ' s testimony , Brown was present at the Causey apartment for most of the four days Ulrich was held captive , and was " only gone In Crawford v . Washington , the Supreme Court held that in criminal proceedings , " [t]estimonial statements of witnesses absent from trial [are admissible] only where the witness is unavailable , and only where the defendant has had a prior opportunity to cross - examine ." 541 U. S . 36 , 59 (2004) . It is undisputed that petitioner never had an opportunity to cross examine Hartford with respect to the statements she made to Detective Musgrave . 12 - OPINION AND ORDER for a little bit , maybe a day ." Petit i oner stayed Id at 493 . behind at his Madison street apartment with McKenzie and Smith . Brown and Hartford bore principal responsibility for Ulrich ' s confinement at the Causey apartment . When Ulrich ' s mother called , Hartford told her that Ulrich was at the store even though Ulrich was still within to the apartment . allowed Ulrich to speak with Hartford finally Id at 492 . her mother with instruction to convince her to stop calling . the express Hartford and Bailey forced Ulrich to tell her mother that she had spent the day at the mall and that she was fine. Ulrich complied , with both Hartford and Bailey sitting with her . Id at 492 - 93 . Ulrich testified that she was unsure how many times petitioner and McKenzie stopped by the Causey apartment , but thought it to be " at least twice ." elaborate as to Trial Transcript , p . 497 . how petitioner might deprivation of her liberty . However , she did not have participated in the She d i d not know if petitioner was there when she was prevented from speaking with her mother , but she knew was not present when she had the scripted telephone call with her mother . was there Id at 588 - 89 . when she was Ulrich could not recall if petitioner forced to tell her telephone call that she could not meet him . 4 4 husband during Id. Understandably , i t was difficult for Ulrich to remember details in the wake of the assault , and she testified that her " memory is really foggy the entire time " and that the day after 13 - OPINION AND ORDER a According to McKenzie (who t e stified fo r the State pursuant to a plea agreement) , she only stopped by the Causey apartment once for less than 30 minutes while Ulrich was held there , making no McKenzie stated mention as to whether petitione r was with her . that during this brief visit she was not aware of the fact that Id at 645 . Ulrich was not allowed to leave the apartment . The next and final time McKenzie saw Ulrich was at Billygan 's restaurant on Sunday night . McKenzie and petitioner met Ulrich and Hartford there for dinner , and McKenzie testified that there was no indication that Ulrich was not there of her own free will . 64 6 . According to Ulrich , it was Hartford ' s Id at idea to go out to dinner because she " wanted to take [petitioner] and McKenzie out to Billygan ' s so she took me along too ." in his car seat . Ulrich Billygan ' s , Id at 504 . Rei s carne along Id at 505 . testified that when she went to the restroom at she was not followed even though the restroom was a good distance away from the table she shared with the others . Id at 567 . According to McKenzie , petitioner ' s attitude toward Ulrich was that " [h]e didn ' t want to be anywhere near her ." Id at 646 . When asked if petitioner ever ta l ked about why , McKenzie testified " [b]ecause she should be gone , he couldn ' t stand the sight of her ." Id at 647 . Hartford and Ulrich went back to the Causey apartment her assault , she could only see out of one eye , " [a]ll the colors were messed up ," and all she could hear was buzzing . Id at 487 88 . 14 - OPINION AND ORDER Petitioner and McKenzie after dinner . left in their own car , presumably to return to petitioner ' s Madison apartment . The next day , Ulrich escaped from her apartment . Id at 592 . Petitioner and McKenzie showed up at the Causey apartment shortly thereafter . According to McKenzie , petitioner " asked where [Ulrich] was . kind of a, hey , what ' s going on ." Id at further I didn ' t notice testified that it " wasn ' t like a big deal to me . if nobody was freaking out ." She 649 . Just Id at 650 . After discovering Ulrich was gone , nobody went searching for her . Instead , the group " hung out for a little while " and even when McKenzie testif i ed that there " [d]idn ' t cause for concern ." the police showed up , seem like there was any Id . According to Detective Musgrave , however , Hartford told him that " she and Brown had helped hold Ulrich there at the apartment ," indicating that they were part of a broader plan . Id at 794 . is logical to infer from this testimony that petitioner , ordered the confinement . casual assault on Ulrich , also ordered her It having subsequent Contrary to McKenzie ' s recollection of petitioner ' s attitude toward Ulrich ' s absence , Hartford " described [petitioner] as being agitated and demanding when asking where Ms . Ulrich was ." Id at 795 . Thus , she made it clear to the jury that petitioner had a strict expectation that Ulrich would be confined at the Causey apartment . 15 - OPINION AND ORDER This record reveals Hartford ' s statements , that without the introduction of the prosecution ' s case against petitioner based upon the Causey kidnapping was very weak . The testimony at trial seldom placed him at the Causey apartment , and even when it did , there was no testimony that petitioner ordered Brown and Hartford to hold Ulrich captive or that he otherwise assisted in the kidnapping . The only testimony which suggested petitioner ' s active participation in that crime came in the form of Hartford ' s out - of - court statements introduced through Detective Musgrave. Respondent points out that petitioner told McKenzie that if anyone talked about the assault on Ulrich , " they' 11 disappear. " at 644 . Id According to respondent , this statement shows petitioner ' s guilt as to the Causey kidnapping . While such a statement clearly constitutes a threat , it does not suggest that petitioner ordered Ulrich transferred indefinitely . to the Causey Petitioner ' s apartment statement is and confined more there accurately characterized as a death threat , not an intention to simply kidnap anyone who confessed to the crimes committed against Ulrich . Respondent also takes the position that petitioner was liable for the Causey kidnapping because it was a natural and probable consequence of the assault . The court disagrees . It might be natural to kidnap a person in order to assault her , but it does not logically follow that a person will 16 - OPINION AND ORDER typically hold an assault victim against her will several days after the assault has concluded . Respondent also argues that Hartford ' s statements were not prejudicial because they presented petitioner with an opportunity to impeach McKenzie , a key prosecution witness . Hartford ' s statements addressed only the Causey kidnapping , a subject on which McKenzie had testified in a manner that was helpful to petitioner . As previously noted , McKenzie testified that petitioner was almost never at the Causey street apartment , she witnessed no deprivation of Ulrich ' s liberty at the Causey apartment or at the Billygan ' s restaurant , and that petitioner did not seem concerned when he discovered that Ulrich was not in the apartment . testimony with Hartford ' s statements , Impeaching this statements which tended to incriminate petitioner on the Causey kidnapping , was not desirable . Following an independent review of the record , it is clear that Hartford ' s statements to Detective Musgrave were crucial to petitioner ' s conviction as to the Causey kidnapping . Hartford ' s statements and were not cumulative of other testimony , their introduction had a substantial and injurious effect on petitioner ' s trial because the prosecution ' s case as to Count One was otherwise very weak . Accordingly , the Oregon state court decisions denying relief on petitioner ' s confrontation claim constituted unreasonable applications of clearly established federal law , and habeas corpus relief is warranted . 17 - OPINION AND ORDER The trial court ' s violation of petitioner ' s rights under the Confrontation Clause affect only his convictions arising out of the Causey Kidnapping : Kidnapping in the Second Degree (Count One) and Conspiracy to Commit Kidnapping in the Second Degree (Count Six ) . If the State does not retry petitioner on these charges within 90 days , respondent shall recalculate petitioner ' s sentence to exclude his convictions for Kidnapping in the Second Degree (Count One) and Conspiracy to Commit Kidnapping in the Second Degree (Count Six) which this court invalidates through this Opinion . CONCLUSION For the reasons identified above , Habeas Corpus (#2) is confrontation claim . these charges within granted as the Petition for Writ of to petitioner ' s Ground One If the State does not retry petitioner on 90 days , respondent shall recalculate petitioner ' s sentence to exclude his convictions for Kidnapping in the Second Degree (Count One) and Conspiracy to Commit Kidnapping in the Second Degree (Count Six) which this court invalidates through this Opinion . In the event this decision is appealed , Certificate of Appealability only as to : (1) the court issues a whether petitioner fairly presented his Ground One claim to Oregon ' s state courts ; and (2) whether the introduction of Michelle Hartford ' s out - of - court statements had a substantial and injurious effect upon petitioner ' s trial with respect to his convictions for Kidnapping in the Second 18 - OPINION AND ORDER Degree as contained in Count One of the Indictment and Conspiracy to Commit Kidnapping in the Second Degree as contained in Count Six of the Indictment . Any request for a Certificate of Appealability as to any other issue is denied . IT IS SO ORDERED ~/~ DATED this A <> ~of July , 2012. Garr M. King United States Distric 19 - OPINION AND ORDER Judge
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
