United States District Court, D. Oregon
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, Samuel A. Kubernick, Assistant Attorney General Department of Justice, 1162 Court Street NE, Salem, Oregon 97310, Attorneys for Respondent.
OPINION AND ORDER
MARCO A. HERNNDEZ, District Judge.
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his state-court convictions for Robbery in the First Degree, Kidnapping in the First Degree, Burglary in the First Degree, Felon in Possession of a Weapon, and Aggravated Theft in the First Degree. For the reasons that follow, the Amended Petition for Writ of Habeas Corpus (#22) is denied.
Petitioner and the victim in this case, Mark Ghiglieri, first met each other in 2002. The following year, petitioner agreed to purchase Ghiglieri's riverfront home, but he soon failed to make the monthly payments on it. Trial Transcript, p. 105. According to the prosecution, petitioner's financial difficulties motivated him to set a scheme in motion whereby he would rob Ghiglieri.
Petitioner hired European "debt collectors" led by Patrick Mccaffery to act as the "brawn" for his plan. Petitioner made arrangements for McCaffery and some of his associates to fly from England to Portland to help him collect $500, 000 to $600, 000 he claimed was owed to him by a "local problem." Respondent's Exhibit 122, p. 56. Mccaffery arrived in Portland on November 19, 2003. Petitioner picked him up at the airport, and Mccaffery and his wife stayed at petitioner's home. McCaffery's associates arrived shortly thereafter and stayed at a local hotel. Trial Transcript, p. 152.
Petitioner had contacted Ghiglieri and informed him that he was having investors from New York City over to his home who were interested in investing $400, 000 in one of Ghiglieri's business ventures. Petitioner asked Ghiglieri to come over for an investors' meeting and told him to bring lots of cash, wear his diamond Rolex watch, and drive his nicest car. Id at 81-82. Ghiglieri agreed, and took an early flight home from a Hawaiian vacation in order to attend the meeting. Id at 80.
When Ghiglieri arrived at petitioner's home, petitioner took him into the off ice where Mccaffery and his team (who were masked) immediately assaulted Ghiglieri. They took Ghiglieri's jewelry, threatened to break his legs, and threatened to kill him. Id at 85. Petitioner advised Ghiglieri not to fight or resist, and told him that it would all be over soon. Id. The men secured Ghiglieri to a lawn chair in the basement with duct tape and zip ties, and obtained information from him about the combination to a safe as well as the alarm codes to his home and an airplane hangar in Aurora. Id at 89-90, 94-98. Petitioner took Mccaffery and his associates to Ghiglieri's residence where they stole numerous valuable items. Petitioner also took the men to Ghiglieri's hangar in Aurora where they devised a way to take Ghiglieri's assets from the hangar.
The assailants returned to petitioner's home about two hours later where they forced Ghiglieri to sign documents concerning artwork and promissory notes pertaining to his property. Id at 99-102. When the assailants left again, Ghiglieri was able to free himself from the lawn chair, escape the home, and call 911 from a neighboring residence. During this time, petitioner drove Mccaffery and his team to the Portland Airport. Id at 177-78. Petitioner did not alert the authorities as to what had occurred, nor did he go to his wife's home to check on the well-being his family after dropping Mccaffery at the airport.
At his subsequent trial, petitioner did not dispute that Ghiglieri had been assaulted and robbed, but claimed that he, too, had been a victim of Mccaffery and his associates. He testified that for two years prior to the criminal incident in question, he had been running a credit union, Worldwide Financial Service, where he managed funds for approximately 250 investors and invested those funds in high-yield return programs. One of those programs was run by a Portland-based currency trading firm named Orion. Id at 133-35, 141.
Petitioner discovered that Orion had been fraudulent in its handling of its investments and, as a result, his investors had lost approximately $9, 000, 000. Id at 142. Eventually, petitioner came into contact with another investor who believed he had been similarly defrauded by Orion and, according to petitioner, the investor recommended Mccaffery to help solve the problem. Id at 141-45, 147.
Petitioner claimed that on the morning the parties were due to meet with Ghiglieri, Mccaffery suddenly turned on petitioner and demanded money from him based upon petitioner's supposed participation in the Orion scheme. Id at 155-56. McCaffery and his wife took "well over $200, 000'' from petitioner's bedroom and informed him that they needed another $200, 000 to be "squared away." Id at 157. According to petitioner, Mccaffery also stated that he had petitioner's family under surveillance and would harm them if petitioner did not cooperate. Id at 156.
The issue at trial was whether petitioner was under duress and a victim of Mccaffery as well, or was instead working in collaboration with Mccaffery to deprive Ghiglieri of his possessions. The case was tried to the court, petitioner was the only defense witness called, and the trial judge concluded that petitioner's "version of these events simply is not credible." Id at 276. As a result, the trial judge convicted petitioner of Robbery in the First Degree, Kidnapping in the First Degree, Burglary in the First Degree, Felon in Possession of a Weapon, and Aggravated Theft in the First Degree. As a result, the court sentenced petitioner to 210 months in prison. Respondent's Exhibit 101.
Petitioner took a direct appeal where he raised a claim of sentencing error not relevant to this habeas proceeding. The Oregon Court of Appeals affirmed the trial court's Judgment without opinion, and the Oregon Supreme Court denied review. State v. Jared, 218 Or.App. 736, rev. denied, 344 Or. 539 , 186 P.3d 285 (2008).
Petitioner next filed for post-conviction relief ("PCR") raising claims of ineffective assistance of trial and appellate counsel, as well as a claim of prosecutorial misconduct. Among petitioner's allegations, he claimed that his trial attorney failed to contact witnesses who could have supported his testimony, and that counsel failed to investigate Ghiglieri's background including a civil lawsuit brought against one of Ghiglieri's businesses. ...