Garcia v. Premo, No. 6:2014cv01684 - Document 40 (D. Or. 2016)
Court Description: OPINION AND ORDER: For the reasons identified above, the Petition for Writ of Habeas Corpus 2 is denied. The 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). Signed on 11/28/2016 by Judge Michael W. Mosman. (kms)
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Garcia v. Premo Doc. 40 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON ARTURO GARCIA, Case No. 6:14-cv-01684-MO Petitioner, OPINION AND ORDER v. JEFF PREMO, Respondent. Anthony D. Bornstein Assistant Federal Public Def ender 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 Attorney for Petitioner Ellen F. Rosenblum, Attorney General Samuel A. Kubernick, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent 1 - OPINION AND ORDER Dockets.Justia.com MOSMAN, District Judge. Petitioner brings U.S.C. this habeas corpus case pursuant to 28 2254 challenging the legality of two state-court Robbery § convictions from 2008. For the reasons that follow, the Petition for Writ of Habeas Corpus (#2) is denied. BACKGROUND On January convenience 28, store 2008, petitioner in Eugene. At robbed the time, a Dari Mart Ellen Harrison and Jonathan Shields were working as store clerks, and a 10-year-old girl was in Petitioner, Shields, money. the who store was by armed with pointed the gun at him, Trial Transcript, pp. all the money in the till. 161-62. The a to purchase "big shiny before he 146-47. the approached Shields gave petitioner and told them to get down. clerks exited 11 beverage. and yelled at him to give him complied with Petitioner also pointed his firearm at A.V. move gun, a Petitioner cocked the gun, pointed it at both Shields and Harrison, 148, herself store. Id this Id at directive. and told her not to at 246; Respondent's Exhibits 124 & 126. Law enforcement personnel ultimately apprehended petitioner, and the Lane County Grand Jury indicted him on three counts of Robbery in the First Degree and three counts of Robbery in the Second Degree. Respondent's Exhibit 102. The case proceeded to trial where defense counsel moved for a judgment of acquittal at the close of the State's case: "The defense moves for judgment of acquittal on Counts 1 through 6. to hear argument. 11 I don't know if the Court wants Trial Transcript, 2 - OPINION AND ORDER p. 248. The trial judge stated, judge "I'm going to deny your motions." then indicated a willingness to Although the Id. listen to any specific arguments counsel might have, she did not provide any. The jury ultimately found petitioner guilty on all counts, and the trial court sentenced Respondent's Exhibit 101. him to 180 months in prison. Petitioner took a direct appeal, but the Oregon Court of Appeals affirmed the trial court's decision without State opinion, v. and Oregon 232 Garcia, the Or. App. Supreme 284, 222 Court P. 3d denied 53 review. (2009), rev. denied, 347 Or. 718, 226 P.3d 709 (2010). Petitioner next filed for post-conviction relief ("PCR") in Umatilla County where the PCR court denied relief on all of his claims. Respondent's Exhibit 128. affirmed the lower court's The Oregon Court of Appeals decision without opinion, and the Oregon Supreme Court once again denied review. Garcia v. Franke, 262 Or. 355 Or. App. 237, 327 P.3d 572, rev. denied, 751, 331 P.3d 1010 (2014). Petitioner filed this federal habeas corpus case on December 23, 2014. With the assistance of appointed counsel, petitioner argues that trial counsel was constitutionally ineffective when she failed to make specific arguments supporting her motion for a judgment of acquittal as to the Robbery charges (Counts Five and Six) pertaining to A.V. Respondent asks the court to deny relief on the Petition because: (1) petitioner fails to carry his burden of proof as to the claims he raises but does not argue; and (2) the PCR court's denial of petitioner's argued claim was not objectively unreasonable. 3 - OPINION AND ORDER 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) unreasonable application of, "contrary to, or involved an 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." § 2254(d). correct, A court's bears the of fact burden of are presumed the presumption of correctness by clear and convincing evidence. 28 2254 (e) (1). § A petitioner findings rebutting U.S.C. and state 28 U.S.C. state court decision established precedent if is the "contrary state court to clearly applies 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 arrives at a result different from [that] precedent." Under the Williams v. "unreasonable 529 U.S. Taylor, application" 362, clause, a 405-06 (2000). federal habeas court may grant relief "if the state court identifies the correct governing but legal principle from unreasonably prisoner's clause case." requires incorrect or applies Id at the that 413. state erroneous. 4 - OPINION AND ORDER [the principle The court Id Supreme Court's] at to the decisions facts of the "unreasonable application" decision 410. to be more Twenty-eight than U.S.C. § 2254 (d) "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with precedents. U.S. 86, It goes no farther." 102 (2011). Harrington v. Court's Richter, 562 "If this standard is difficult to meet, Id. that is because it was meant to be." II. [the Supreme] Unargued Claims As Ground 2.2 of his Petition, petitioner alleges that trial counsel failed to provide any argument in support of her motion for judgment of acquittal where there was insufficient evidence to support convictions as to Counts Five and Six. Petitioner does not argue the remainder of his seven sub-claims from Ground Two, nor does he provide argument to support the claims contained within Grounds One, Three, Four, and Five of his Pe ti ti on. As such, petitioner has not carried his burden of proof with respect to these unargued claims. 835 (9th Cir. 2002) See Silva v. Woodford, 279 F.3d 825, (petitioner bears the burden of proving his claims) . III. Ineffective Assistance of Counsel: Acquittal Petitioner believes motion for judgment acquitted him as Court precedent facts of this of that, is directly case, the the trial Five and Six. on point court Judgment of had counsel properly argued the acquittal, to Counts Motion for uses would have Because no Supreme that the court corresponds general to two-part the test established by the Supreme Court to determine whether petitioner received ineffective assistance 5 - OPINION AND ORDER of counsel. Knowles v. Mirzayance, show 556 U.S. 111, 122-23 that his counsel's performance standard of reasonableness. 668, 686-87 (1984). that the conduct First, petitioner must fell Strickland v. Due counsel's performance, (2009). to the below an objective Washington, difficulties in 4 66 U.S. evaluating courts must indulge a strong presumption falls within professional assistance." the "wide range of reasonable Id at 689. Second, petitioner must show that his counsel's performance prejudiced the defense. whether the petitioner probability that, but The appropriate test for prejudice is can for show "that counsel's there is a reasonable 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 proceeding. Id at 696. When Strickland's general standard is combined with the standard of review governing 28 U.S.C. § 2254 habeas corpus cases, the result is a "doubly deferential judicial review." Mirzayance, 556 U.S. at 122. A.V. the State did not testify at trial, failed to present and petitioner asserts that sufficient evidence from which a rational jury could find he used or threatened the use of force upon A.V. during the robbery. He argues that counsel's general motion for judgment of acquittal was insufficient to effectively raise the issue or preserve it for his direct appeal. A person is considered a victim of robbery in Oregon if a defendant uses or threatens to use violence against her in the course of committing or attempting to commit the crime. 6 - OPINION AND ORDER State v. Hamilton, 348 Or. acquittal in Oregon evidence in the 371, 379 is light (2010). appropriate most A motion only favorable for where, to the judgment of viewing prosecution, the a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Shields, 184 Or. App. 505, 509, 56 P.3d 937 (2002). The PCR electing not record to make includes any defense counsel's specific argument in rationale support for of the motion for judgment of acquittal: 6. Petitioner alleges that I did not provide argument in support of my motion for a judgment of acquittal on Counts 5 and 6. I did not feel that I had a very good specific argument that I could make. The video of the robbery showed the person purported to be the petitioner swinging the gun at [A.V.] during the course of the robbery. Therefore, he used a weapon and force against [A.V.] in the process of this robbery. The evidence of the video was sufficient to support the claim against [A.V.], with that evidence looked at in the light most favorable to the state. Respondent's Exhibit 123, p. 2. The PCR record also includes an affidavit prosecutor which sheds further light on the issue: 5. If trial counsel had made a motion for judgment of acquittal on Counts 5 and 6 on the basis that petitioner did not threaten [A.V.] personally, I would have been able to effectively respond. The video showed that the girl, [A. V.], was subject to defendant pointing the gun directly at her and others to exert control over their movements in the store. He was within feet of her when he did this. He was menacing and clearly deadly serious. I recall he worked the action on the gun (which you could hear on the security recording) and whacked the gun on the 7 - OPINION AND ORDER from the counter. explained. The video is better seen than 6. The argument would be that he used force/threat of force, with a deadly weapon to prevent anybody from getting in the way of the robbery, which would include a little girl who might otherwise run out of the building to her parents waiting in the parking lot or call the police, or simply freak out in the store and draw[] more attention from the outside. 7. I do not know that I would even have had to make any argument because it was obvious to the jury from the video that everyone in his vicinity was the subject of his deadly threats which he made to accomplish his robbery efficiently and without interruption or complication. Respondent's Exhibit 126, p. 2. Based upon the record before it, the PCR court found that while counsel did not argue the motion for judgment of acquittal, petitioner suffered no prejudice as a result because "there were no legal grounds" upon which to base the motion, court "clearly would have Exhibit 128, p. 2. to the denied [the motion.]" and the trial Respondent's Taking the facts in the light most favorable prosecution, it was evident from the Dari Mart's surveillance recording that petitioner pointed his gun at A. V. and instructed her not interfering with the crime. to move so to dissuade her from Given this record, A.V. was a victim of robbery under Oregon law such that a motion for judgment of acquittal on this basis would not have been successful. Moreover, the PCR court's determination that there were no legal grounds to support the argument petitioner advocates in the context of a motion for 8 - OPINION AND ORDER judgment of acquittal constitutes a state-court determination of a court is obligated to accept. 62, 67-68 (1991) state-law issue, something this See Estelle v. McGuire, 502 U.S. ("[W]e reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."). For all of these reasons, counsel was under no duty to make the argument petitioner advances here and, even if she had raised the argument, petitioner would not have succeeded on his motion for judgment of acquittal. Accordingly, the PCR court's decision denying relief on this claim is neither contrary to, nor an unreasonable application of, clearly established federal law. CONCLUSION For the reasons identified above, Habeas Corpus ( #2) is The denied. the Petition for Writ of court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing right pursuant to 28 U.S.C. of § the denial of a constitutional 2253 (c) (2). IT IS SO ORDERED. DATED this _Z/E day of November, 2016. 9 - OPINION AND ORDER United States District Judge
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