C. Renee Manes, Assistant Federal Public Defender, Kristina Hellman, Assistant Federal Public Defender, Portland, Oregon, Attorney for Petitioner.
Ellen F. Rosenblum, Attorney General, Kristen E. Boyd, Assistant Attorney General Department of Justice, Salem, Oregon, Attorneys for Respondent.
OPINION AND ORDER
MICHAEL H. SIMON, District Judge.
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his 2003 state-court robbery convictions. For the reasons that follow, the Petition for Writ of Habeas Corpus (#2) is denied.
In the fall of 2011, there were a series of tavern robberies in the Portland area which culminated in petitioner's arrest. Petitioner was indicted and tried on three of those robberies. He proceeded to a jury trial where one of the eyewitnesses, Virginia Raison, identified him as a participant in the robbery of the Cheers Northwest Tavern. She testified that when she was initially shown a photographic "throw-down" by the investigating detective, she first identified another individual and was 40-45% sure of that choice. Trial Transcript, pp. 885-86, 891. She then picked out petitioner and believed she was 80-85% sure in her identification of him as the suspect. Id. She claimed she had a "mental snapshot" of petitioner that was based on the fact that she had been "pretty focused on his eyes" which were light brown. Id at 888, 896. When defense counsel asked Ms. Raison to approach petitioner and tell the jury what color his eyes were, she was surprised to discover that they were "very blue." Id at 896-97.
On May 21, 2003, the jury found petitioner not guilty of two of the robberies, but convicted him of three counts of Robbery in the First Degree with a Firearm and three counts of Robbery in the Second Degree as to the Cheers robbery. As a result, the trial court sentenced petitioner to consecutive sentences totaling 225 months in prison. Respondent's Exhibit 101.
Petitioner took a direct appeal where his appointed attorney could not find any non-frivolous issues to present on his behalf and therefore filed a Balfour brief. Petitioner took the opportunity to file a pro se Section B of the Balfour Brief wherein he raised several claims.
Two months after filing his Balfour brief (but before the Oregon Court of Appeals ruled on his appeal), petitioner claims he learned of jury misconduct in his case. His sister, Doris Lee, and her friend, April Murphy, were present at his sentencing and encountered a juror from his trial. The juror purportedly informed them that the jury had conducted an experiment to determine whether Ms. Raison could have confused petitioner's blue eyes for brown in the dim lighting of Cheers. The jurors dimmed the lights to simulate dim tavern lighting, picked out a juror who had blue eyes, and had him stand at a distance. Respondent's Exhibits 115 & 116.
On June 29, 2005, the Oregon Court of Appeals, never presented with any claim regarding jury misconduct, affirmed petitioner's conviction and sentence without issuing a written opinion. State v. Lee, 200 Or.App. 415, 115 P.3d 988. On September 27, 2005, the Oregon Supreme Court denied petitioner's Petition for Review. 339 Or. 406, 122 P.3d 64 (2005).
Also on or about September 27, 2005, 17 months after the Circuit Court had entered its Judgment against him, petitioner filed a motion seeking a new trial in the Multnomah County Circuit Court. Respondent's Exhibit 117. Two months later, he filed a supplemental brief in support of that motion. Respondent's Exhibit 118. The Circuit Court never ruled on his motion for a new trial.
Petitioner next filed for post-conviction relief ("PCR") in Marion County. Among the claims petitioner raised to the PCR trial court was whether the jury committed misconduct when it conducted an independent investigation and used extrinsic evidence during its deliberations. Respondent's Exhibit 109, p. 5. The PCR trial court, citing state authority including Palmer v. State, 318 Or. 352 (1994), determined that claims of trial court error could not be raised in a PCR action under Oregon law. Respondent's Exhibit 136, p. 12. The Oregon Court of Appeals summarily affirmed the PCR trial court's decision on the State's motion, and the Oregon Supreme Court denied review. Respondent's Exhibits 141 & 143.
Petitioner filed his federal Petition for Writ of Habeas Corpus on November 10, 2011 in which he raises approximately 30 claims among six ground for relief. Respondent asks the court to deny relief on the Petition because: (1) petitioner failed to fairly present many of his claims to Oregon's state courts, and they are now procedurally defaulted; (2) the claims that petitioner did fairly present were denied in decisions that were neither contrary to nor unreasonable applications of clearly established federal law; and (3) petitioner's claims lack merit.
I. Unargued Claims
As previously noted, petitioner raises a numerous claims in his Amended Petition. In his supporting memorandum, however, he chooses to brief two claims: (1) whether his trial attorney rendered ineffective assistance when he failed to properly cross examine Virginia Raison and Detective McGetrick (Ground One (A) & (H)); and (2) whether the jury committed misconduct when it conducted an independent investigation and used extrinsic evidence during its deliberations contrary to the trial judge's limiting instructions.
Petitioner does not argue the merits of his remaining claims, nor does he address any of respondent's arguments as to why relief on these claims should be denied. Instead, he submits the those claims for the court's consideration on the existing record. As such, petitioner has not carried his burden of proof with respect to these unargued claims. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (petitioner bears the burden of proving his claims). The ...