Redwing v. Oregon State Prison, No. 6:2017cv00796 - Document 39 (D. Or. 2018)

Court Description: OPINION AND ORDER: The Petition for Writ of Habeas Corpus 2 is denied. Should Petitioner appeal this decision, the Court issues a Certificate of Appealability as to his Ground One claim only. (See 11 page opinion for more information) Signed on 12/21/18 by Judge Marco A. Hernandez. (dsg)
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Redwing v. Oregon State Prison Doc. 39 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON RODNEY JAMES REDWING, Case No. 6:17-cv-00796-HZ Petitioner, OPINION AND ORDER v. OREGON STATE PRISON, Respondent. Thomas J. Hester Assistant Federal Public Defender 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 HERNANDEZ, District Judge. Petitioner U.S.C. § 2254 convictions. brings this habeas challenging the corpus legality For the reasons that follow, case of pursuant his to 28 state-court the Petition for Writ of Habeas Corpus (#2) is denied. BACKGROUND On January 21, 2005, Corrina Colvin set up a birthday party for Petitioner. As Petitioner was arriving to the party, a male acquaintance approached Colvin from behind and pulled her toward him by her belt loops. This enraged Petitioner, and he directed his anger at Colvin. As soon as the couple arrived at their home, Petitioner struck Colvin from behind when she was one step inside the home, knocking her to the floor. Trial Transcript, p. 134. When she tried to stand up, Petitioner knocked her down again. He then began ripping off Calvin's shirt and bra. 1 Colvin tried to get away to escape upstairs and put Petitioner repeatedly knocked her down. more clothes on, but Id at 139. Petitioner left to go into the garage, at which time Colvin moved upstairs and put on another bra and shirt. She was not able to contact the police because Petitioner had hidden her phone as well house, as her car keys. Id at 139. Petitioner returned to the found Colvin upstairs and hit her in the back of the head with such force that she "flew over the bed and landed in between the wall and the bed on the other side." Id at 140. He again 1 Colvin had "more than a simple dislike of being naked" which stemmed from "issues from childhood problems" which she had disclosed to Petitioner. Trial Transcript, p. 138. 2 - OPINION AND ORDER ripped her shirt and bra from her, and then attempted to rupture her breast implants while telling her "You're a fake." Id at 142. Petitioner left the bedroom, more and Colvin once again put on clothes and lay very still on the bed in the hopes that Petitioner would stop hurting her. Petitioner returned with two butcher knives, and he cut off her bra and shirt before throwing the knives aside and telling Colvin that he loved her. At some point, Colvin was able to get out the front door of the house. She made it "probably seven feet" out the front door but Petitioner "came out and picked me up and carried me back in." Id at 143-44. At another point, Petitioner grabbed her by her hair and dragged her up the stairs of the home, leaving her with bald spots on the back of her head. Id at 147. After Petitioner had calmed down, Colvin went downstairs, consumed three bottles of pills in an attempt to commit suicide, and asked Petitioner to tell her children that she loved them. She later changed her mind about taking her own life, and asked Petitioner to drive her to the hospital but he was unable to find the keys to any of their three cars, could not find either of their phones, and would not allow Colvin to leave the house. Id at 149-50. Petitioner ultimately located the keys to his van and took Colvin to the hospital for treatment. The Marion County Grand Jury indicted counts of Kidnapping in the First Degree, in the Fourth Degree, Use of a Weapon, Respondent's Petitioner and one count each of Coercion, 102. 3 - OPINION AND ORDER A jury two two counts of Assault Robbery in the Third Degree, Exhibit on convicted Unlawful and Harassment. Petitioner of all charges, and the trial court sentenced him to a prison sentence totaling 186 months. Petitioner took a direct appeal where the Oregon Court of Appeals found that the trial court failed to merge the Kidnapping I convictions, remanded the case for resentencing on this issue, but otherwise Redwing, affirmed 222 Or. App. the 200, trial court's 192 P.3d 856 decision. 2 (2009). State v. Petitioner did not seek further review by the Oregon Supreme Court. Petitioner next filed for post-conviction relief (•PCR") in Marion County where he alleged that trial counsel was ineffective for failing to challenge the kidnapping charges as unsupported by state law. Respondent's Exhibit 110. The PCR Court denied relief on the PCR Petition, decision review. without the Oregon Court of Appeals affirmed that opinion, Redwing v. Premo, and the Oregon 277 Or. App. Supreme Court 783, denied 376 P.3d 307, rev. denied, 360 Or. 568, 385 P.3d 81 (2016). Petitioner filed his federal Petition for Writ of Habeas Corpus on May 22, 2017 and raises the following claims: Ground One: Trial counsel failed to alert the trial court to, and preserve for appeal, a favorable Oregon Supreme Court case decided shortly before his trial; and Ground Two: Petitioner's conviction resulted from an unlawful search and seizure where Officer Rhine never possessed a search warrant. Respondent asks because: ( 1) the Court to deny relief on these claims the PCR Court's decision denying relief on Ground 2 Petitioner's total term of imprisonment remained 186 months after his resentencing. See Respondent's Exhibit 109, p. 3. 4 - OPINION AND ORDER One was not unreasonable; cognizable claim, is and (2) Ground Two fails to state a procedurally defaulted, and is unargued. Where the Ground Two search and seizure issue is not a proper basis for federal habeas corpus relief, and where Petitioner procedurally defaulted the issue by not fairly presenting it to the Oregon's state courts, further discussion. (1979) (where seizure See litigant claim in the Court denies the claim without Stone had state v. 428 Powell, opportunity court, to federal U.S. 465, 481-82 raise search and habeas relief is unavailable); Rose v. Lundy, 455 U.S. 509, 519 (1982) (requiring exhaustion of state court remedies). 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) "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, and Petitioner bears the burden of rebutting the presumption of correctness § by clear and convincing evidence. 28 U.S.C. 2254 (e) (1). A state court decision established precedent if the is "contrary state court to applies clearly a rule that contradicts the governing law set forth in [the Supreme Court's] 5 - OPINION AND ORDER 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. Taylor, "unreasonable 529 U.S. application" 362, clause, a 405-06 (2000). federal habeas court may grant relief "if the state court identifies the correct governing legal principle from but applies that at 413. unreasonably prisoner's clause case." requires Id the state incorrect or erroneous. [the Supreme Court's] principle The court Id at 410. to the facts "unreasonable decision to decisions of the application" be more Twenty-eight U.S.C. than § 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. Richter, 562 U.S. 86, 102 (2011). II. Ground One: Ineffective Assistance of Counsel Petitioner alleges that trial his attorney rendered ineffective assistance when he failed to move for a judgment of acquittal on the kidnapping charges where the movement of the victim was merely incidental to the assault. Court precedent facts of this is directly on point case, the Court uses that the Because no Supreme corresponds general to two-part the test established by the Supreme Court to determine whether Petitioner received Mirzayance, show that ineffective 556 U.S. his assistance 111, counsel's 6 - OPINION AND ORDER 122-23 of counsel. (2009). performance First, fell Knowles v. Petitioner must below an objective standard of reasonableness. 668, 686-87 (1984). Due counsel's performance, that the conduct Strickland v. to the Washington, difficulties courts must indulge a falls within the "wide in 466 U.S. evaluating strong presumption range of reasonable professional assistance." Id at 689. Second, Petitioner must show that his counsel's performance prejudiced the whether defense. Petitioner probability that, The can but appropriate show for "that test there for is prejudice a is reasonable counsel's unprofessional errors, the result of the proceeding would have been different.'' Id at 694. In the context of a motion for judgment Petitioner claims should have been made, of acquittal that he must establish that there is a reasonable probability that such a motion would have been successful. Cir. See Styers v. Schriro, 547 F. 3d 1026, the standard of review governing 28 U.S.C. the (9 th When Strickland's general standard is combined with 2008). cases, 1030 result is a "doubly § 2254 habeas corpus deferential judicial review." Mirzayance, 556 U.S. at 122. Under Oregon law, a person is guilty of Kidnapping II if he takes the victim from one place to another with the intent to interfere substantially with the victim's personal liberty. ORS § 163.225. Kidnapping I can be satisfied where the person commits Kidnapping II with the purpose of terrorizing or causing physical injury to months the prior victim. to decided State v. 3 ORS 163.235(c)&(d). 3 Approximately eight Petitioner's Wolleat, trial, 338 Or. the 469 Oregon (2005), wherein it The jury convicted Petitioner under both of these theories. 7 - OPINION AND ORDER Supreme Court shed light on the kind of victim movement required to justify a kidnapping conviction in Oregon. In Wolleat, the assailant grabbed the victim by her hair and dragged her from her bedroom into the living room of the same home, a distance estimated to be between 15-20 feet, assaulted her until she escaped. The Oregon where he Supreme Court concluded that where Oregon law requires that a defendant intend to the interfere "substantially" with a victim's personal liberty, movement matter of of law the to victim in support the Wolleat intent was insufficient element associated as a with kidnapping. 338 Or. at 478. In his PCR proceeding, Petitioner argued that there was no evidence to show that he intended to substantially interfere with Calvin's liberty, of acquittal. thus counsel should have moved for a judgment The PCR Court disagreed, and found that "[t]here was sufficient evidence that pet [itioner] carried the back into the house when she tried to escape for [victim] [the] court to deny judgment of acquittal." Respondent's Exhibit 135, p. 3. Petitioner takes issue with the PCR Court's decision and points out that Colvin only exited the house by seven feet before he carried her back inside the house, whereas Woll eat involved the greater distance of 15-20 feet yet the Oregon Supreme Court still did not find this to be a "substantial distance" so as to support a kidnapping charge. insignificant movement at incidental to the assault 8 - OPINION AND ORDER He contends issue in his such that case, a motion that given the the movement was for judgment of acquittal in the wake of the Woll eat decision would have been successful. The PCR Court applied the facts of Pefltioner's case to its interpretation revisit such of a state law. determination Federal and habeas conclude that misapplied state law. See Estelle v. McGuire, ( 1991) (" [W] e reemphasize that it is courts not a may state-court 502 U.S. 62, the not province 67-68 of a federal habeas court to reexamine state-court determinations on state-law questions."). However, even if it were the province of this Court to second-guess the PCR Court's application of Wolleat to Petitioner's case, the PCR Court did not rule that seven feet of movement amounts to a "substantial distance" under Oregon law. Instead, the PCR Court focused on the change of location and found (without reference to distance) that Petitioner carried the victim from an area out in the open in front of the home (and in view of the street and neighboring homes) back into the private residence after she had fled the dwelling. 135, p. 3; Respondent's Exhibit 131, p. Respondent's Exhibit 8. This, movement of seven feet as a substantial distance, and not the appears to be the basis for the PCR Court's finding that a motion for judgment of acquittal would not have been well-taken. Moreover, even assuming the PCR Court misapplied state law regarding the movement of Colvin, the movement was not the only evidence of Petitioner's intent to interfere with her liberty. Petitioner not only physically moved Colvin back into the home and prevented her from leaving, cell phone thereby but also took her keys and her demonstrating 9 - OPINION AND ORDER his intent to substantially interfere with her liberty in a way that was not merely incidental to the assault. As the Oregon Supreme Court explained in State v. Mejia, 348 Or. 1, 10 (2010): Wolleat and [State v. Zweigart, 344 Or. 619, 188 P. 3d 242 ( 2008) , ] involved situations in which the actual physical movement of the victim was the only evidence available to prove whether the defendants intended to kidnap the victims by substantially interfering with their personal liberty. Those cases demonstrate that, when the only evidence of a defendant's intent is physical movement of the victim, a reasonable juror may only infer intent to interfere substantially with a victim's freedom of movement if there is 'evidence that the defendant moved the victim a substantial distance.' Zweigart, 344 Or. At 636. Mejia, 348 Or. at 10 (emphasis in original). Accordingly, even assuming the PCR Court had focused only on the distance assuming this motion for of Calvin's Court involuntary could find such movement, a decision and further erroneous, a judgment for acquittal would not have succeeded at trial because Petitioner's intent to substantially interfere with Colvin' s liberty Colvin' s keys incidental to was and illustrated beyond movement cell the phone, assault. actions Petitioner which when were therefore he not hid simply suffered no prejudice from any failure of counsel to move for a judgment of acquittal. nebulous kidnapping At a minimum, "substantial statutes, and in interference" this Court light of test cannot Oregon's associated conclude that somewhat with its the PCR Court's decision to deny relief on Petitioner's Ground One claim was so erroneous that no fairminded jurist could agree with it. 10 - OPINION AND ORDER CONCLUSION For the reasons identified above, Habeas Corpus decision, (#2) is denied. Should the Petition for Writ of Petitioner appeal this the Court issues a Certificate of Appealability as to his Ground One claim only. IT IS SO ORDERED. DATED this -~\ day of December, 2018. United States District Judge 11 - OPINION AND ORDER