Van Neubarth v. Premo et al, No. 6:2016cv00178 - Document 38 (D. Or. 2017)

Court Description: OPINION AND ORDER: The Amended Pe ti ti on for Writ of Habeas Corpus 20 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). (See 12 page opinion for more information) Signed on 8/9/17 by Judge Marco A. Hernandez. (dsg)

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Van Neubarth v. Premo et al Doc. 38 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON AARON VAN NEUBARTH, Case No. 6:16-cv-00178-HZ Petitioner, OPINION AND ORDER v. JEFF PREMO, 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 Kristen E. Boyd, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent 1 - OPINION AND ORDER HERNANDEZ, District Judge. Pe ti ti oner brings U.S.C. 2254 § this challenging habeas the convictions for Manslaughter, the Second Degree. For the corpus case legality of his Attempted Murder, reasons that pursuant to state-court and Assault follow, 28 the in Amended Petition for Writ of Habeas Corpus (#20) is denied. BACKGROUND In 2002, siblings. petitioner On April 24 lived with his of that year, father and four petitioner and his stepfather began to argue. The disagreement escalated and petitioner stabbed his father in the neck, inflicting a non-fatal wound. stabbed his eight-year-old step-sister 18 times, He also killing her. As a result, the Multnomah County Grand Jury indicted petitioner on one count each of Aggravated Murder, Attempted Aggravated Murder, and Assault in the Second Degree. Respondent's Exhibit 102. On October 10, 2003, the trial court found petitioner unable to aid and assist in his own defense and sent him to the Oregon State Hospital for treatment. Following that treatment, the trial court conducted a competency hearing wherein it determined that petitioner was competent to aid and assist. Petitioner proceeded to a jury trial on a defense of partial responsibility predicated upon his mental illness. On November 10, 2005, the jury convicted him of Assault in the Second Degree as charged in the Indictment, and the lesser included offenses of Attempted Felony Murder and Manslaughter consecutive in the sentences First Degree. totaling Transcript, pp. 3934-3936. 2 - OPINION AND ORDER 280 The trial months in court prison. imposed Trial Petitioner directly appealed his convictions, but the Oregon Court of opinion, Appeals affirmed the trial court's decision and the Oregon Supreme Court denied review. 237 Or. Neubarth, App. 275, 240 P. 3d 1141 (2010), without State v. rev. denied, 349 Or. 654, 249 P.3d 543 (2011). Petitioner proceeded to file for post-conviction relief ("PCR") in Marion County where the PCR court granted the State's summary judgment motion. Respondent's Exhibits 163-165. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Neubarth v. Premo, 268 Or. App. 717, 344 P.3d 567, rev. denied, 357 Or. 164, 351 P.3d 53 (2015). On February 23, corpus case. 2016, petitioner filed this federal habeas The court appointed counsel to represent him and, with the assistance of appointed counsel, petitioner filed an Amended Petition containing the following grounds for relief: Ground I: The trial court deprived Mr. Neubarth of his Fourteenth Amendment right to due process when it refused to grant transactional immunity to a defense witness. Ground II: The trial court deprived Mr. Neubarth of his Fourteenth Amendment right to due process, and his Sixth Amendment right to an impartial jury, when it failed to conduct an inquiry into, and failed to remedy juror bias involving a juror who made case-related statements to the local media. Ground III: Petitioner was denied effective assistance of counsel in violation of his Sixth and Fourteenth Amendment rights as follows: A. Pe ti ti oner's initial trial attorney failed to secure Petitioner's appearance as a witness before the Grand Jury; 3 - OPINION AND ORDER B. Trial counsel was ineffective and inadequate when she refused to submit necessary documents needed secure transactional immunity for testimonial purposes, for Petitioner; and C. Petitioner's subsequent trial attorneys coerced him to testify at trial. Amended Petition (#20), pp. 2-3. Respondent asks Pe ti ti on because: the ( 1) court to deny petitioner has support of Grounds One, Three (A), leaving them Grounds One procedurally and Three (B) and, and (3) to Oregon's state courts, therefore, those state to petitioner fairly presented his argued claims Three(C)) in (2) petitioner failed to and Two to Oregon's defaulted; the Amended not provided argument has not met his burden of proof on them; fairly present relief on the courts, extent (Grounds Two and courts reasonably denied relief. DISCUSSION I. Unargued Claims In his supporting memorandum, petitioner chooses to brief the merits of only Grounds Two and Three (C). Where petitioner does not argue the merits of his remaining claims, carried his burden of proof claims. See Silva v. Woodford, (petitioner bears the with respect to he has not these unargued 279 F.3d 825, 835 (9th Cir. 2002) burden of proving his claims). Even if petitioner had briefed the merits of these claims, the court has examined them based upon the existing record and determined that they do not entitle him to relief. Ill Ill 4 - OPINION AND ORDER II. Exhaustion and Procedural Default Respondent argues that petitioner failed to properly preserve Ground Two for federal habeas review because he did not properly raise it in Oregon's state courts. A habeas petitioner must exhaust his claims by fairly presenting them to the state's highest court, proceedings, either through a direct appeal or collateral before a federal court will consider the merits of those claims. Rose v. general rule, a petitioner satisfies the exhaustion requirement Lundy, 455 U.S. 509, 519 (1982). "As a by fairly presenting the federal claim to the appropriate state courts . . in the manner required by the state courts, thereby 'affording the state courts a meaningful opportunity to consider allegations of legal error.'" Casey v. Moore, 386 F.3d 896, 915- 916 (9th Cir. 254, 257, (1986)). 2004) (quoting Vasquez v. Hillery, 474 U.S. If a habeas litigant failed to present his claims 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. Edwards v. Carpenter, 529 U.S. 446, 453 (2000); Castille v. Peoples, 489 U.S. 346, 351 (1989). A petitioner is deemed to have ''procedurally defaulted'' his claim if he failed to comply with a state procedural rule, or failed to raise the claim at the state level at all. Edwards v. Carpenter, U.S. 722, 529 U.S. 750 (1991). 446, 451 (2000); Coleman v. Thompson, 501 If a petitioner has procedurally defaulted a claim in state court, a federal court will not review the claim 5 - OPINION AND ORDER unless the petitioner shows ''cause and prejudice'' for the failure to present the constitutional issue to the state court, or makes a colorable showing of actual innocence. Gray v. Netherland, 518 U.S. 337 152, 162 (1996); Sawyer v. 505 Whitley, U.S. 333, (1992); Murray v. Carrier, 477 U.S. 478, 485 (1986). As Ground Two, petitioner alleges that the trial court violated his rights to due process and an impartial jury when it failed to inquire into, and remedy, juror bias involving a juror who to made case-related petitioner's petitioner claim: murder trial. A presented whether his could statements review the of Oregon convictions properly the local Court after that with both assault in media reveals record Supreme for result the a single and attempted sentences. consecutive Respondent's Exhibit 108, p. 13. Because the Petition for Review did not contain petitioner's Ground Two claim, and as the time for presenting those claims to the Oregon Supreme Court passed long ago, Ground Two is procedurally defaulted. III. Ground Three(C): Ineffective Assistance of Counsel A. 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, 6 - OPINION AND ORDER and petitioner bears the burden of rebutting the presumption of correctness § by clear and convincing u.s.c. 28 evidence. 2254 (e) (1). A 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. 529 Taylor, "unreasonable application" U.S. 362, clause, 405-06 a (2000). federal habeas court may grant relief "if the state court identifies the correct governing legal principle from [the Supreme Court's] but principle unreasonably prisoner's clause case.'' requires applies that at 413. Id the incorrect or erroneous. state The court to the facts "unreasonable decision to decisions of the application'' be more than Id at 410. Twenty-eight 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 [the Supreme] Court's precedents. It goes no farther." Harrington v. 562 U.S. Richter, 86, 102 (2011). B. Analysis Prior to closing argument in petitioner's criminal trial, he filed a motion seeking a new trial. He personally informed the court that "current counsel has compelled me to testify" and that he felt "cheated out of testimony because 7 - OPINION AND ORDER I was compelled to testify under the conditions that [petitioner's brothers] were to be thoroughly examineg on the stand." Trial Transcript, p. 3681. Counsel stated that although he "hate[d] with Mr. thoughts Neubarth," in regard he to had his to to disagree "strenuously being compelled to contradict testify." his Id at 3682. It was counsel's "clear impression" that petitioner wished to take the stand where "he always maintained that he wanted to tell his side of the story." Id at 3682-3683. Counsel was also of the opinion that petitioner's brothers and the church bishop would not have testified in the manner contemplated by petitioner and, even helpful. for a if they Id at new did, such 3683-3684. trial "based testimony would not have been The court denied petitioner's motion on the record and the statements of counsel." Id at 3686. Petitioner contends that his trial attorneys coerced him to testify insofar as they did not call the witnesses he anticipated. He claims to have testified in his own defense only because he expected counsel to call his two brothers as well as a bishop from a local church. Without providing specifics, he contends that these witnesses would have testified in a manner that would have bolstered his own testimony. 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 established whether petitioner Knowles v. by received Mirzayance, 556 the Supreme ineffective U.S. 111, Court to assistance of 122-23 (2009) determine counsel. First, petitioner must show that his counsel's performance fell below an 8 - OPINION AND ORDER objective standard of reasonableness. Strickland v. 466 to U.S. 668, 686-87 (1984). Due evaluating counsel's performance, presumption that the conduct the difficulties courts must falls within Washington, indulge a the "wide in strong range of reasonable professional assistance.'' Id at 689. Second, petitioner must show that his counsel's performance prejudiced the whether the defense. The appropriate test petitioner can show there probability that, but for "that counsel's for prejudice is is a reasonable unprofessional errors, the result of the proceeding would have been different.'' 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. § 2254 habeas corpus cases, the result is a "doubly deferential judicial review." Mirzayance, 556 U.S. at 122. Petitioner directs the court to the PCR record for support for his claim. During his PCR proceedings, petitioner submitted a Declaration testify, in which he stated that he "had not wanted to but was assured that it would work out when the court heard from [my two brothers] and our LDS bishop. put on the stand and no effort was made to have Instead, [them] I was testify. As such I believe my testimony was coerced." Respondent's Exhibit 161, p. 8. Both of petitioner's trial attorneys submitted affidavits to the PCR court on this issue 9 - OPINION AND ORDER in which they denied coercing petitioner into testifying at trial. Respondent's Exhibits 157 & 158. One of the attorneys explained: 2. My Co-counsel and I did not coerce Aaron Van Neubarth into testifying at trial. We explained to Mr. Neubarth that the decision about whether to testify was solely his decision, and that he did not have to testify in his own defense. 3. It is amusing and absurd that Aaron would or could claim that anyone would have [b]een able to coerce Aaron to do anything, let alone testify against his wishes. * * * 6. Throughout the time I represented Aaron he was ironclad in his determination to take the stand to present his defense of transferred intent to the jury and show them that there was absolutely nothing wrong with his mental faculties. * * * 7. Aaron's adamancy that he was going to testify no matter what anyone advised forced me to build the total defense approach around Aaron taking the stand. I had to make lemonade out of lemons. So we called Aaron to testify, and I used his adamancy to force a psychotic break in the courtroom, so that the jury could see for themselves that they were judging a man who was severely mentally ill. I didn't enjoy the brutality of my questioning of him, but I saw no other path, and I think the resulting verdict vindicates my approach. Respondent's Exhibit 157, pp. 2-3. The PCR court resolved the issue as follows: Defendant's affidavits establish that petitioner was not forced to testify at trial. In his deposition, petitioner alleges that his decision to testify was influenced by trial counsel's assurances that other witnesses would be presented to the trial. Apparently, petitioner's theory is that if he had known that the other witnesses were not 10 - OPINION AND ORDER going to testify then he would not have testified. Petitioner fails to present a cogent explanation about why his testimony was dependent upon the other witnesses testifying. Additionally, Petitioner fails to identify in his deposition what prejudice [] he suffered as a result of his testimony. The only conceivable prejudice this court can surmise would be that his testimony was not credible. At least under the circumstances of this case, such prejudice cannot provide the basis for post-conviction relief. Respondent's Exhibit 164, p. 4. The totality of the record (including the trial transcript) supports the PCR court's conclusion that petitioner's attorneys did not force him to testify. Although petitioner's attorneys did not call his brothers or the church bishop to also testify, petitioner failed to establish what these individuals would have testified to and how that testimony might have bolstered his own testimony. Counsel's performance therefore did not fall below an objective standard petitioner fails the PCR contrary decision assistance to, reasonableness, and to demonstrate prejudice. court's ineffective of nor an of denying counsel unreasonable established federal law. Ill Ill Ill Ill Ill Ill 11 - OPINION AND ORDER if it did, For these reasons, relief claim even is on petitioner's therefore application of, neither clearly CONCLUSION For the reasons identified above, Writ of Habeas Corpus (#20) is the Amended Pe ti ti on for denied. The court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of constitutional right pursuant to 28 U.S. C. § the denial of 2253 (c) ( 2) . IT IS SO ORDERED. DATED day of August, 2017. United States District Judge 12 - OPINION AND ORDER a

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