United States District Court, D. Oregon
TONIA L. MORO, Assistant Federal Public Defender, Medford, OR, Attorney for Petitioner.
ELLEN F. ROSENBLUM, Attorney General, KRISTEN E. BOYD, Assistant Attorney General Department of Justice, Salem, OR, Attorneys for Respondent.
OPINION AND ORDER
MALCOLM F. MARSH, District Judge.
Petitioner Michael Allen Nunley, an inmate at Snake River Correctional Institution, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is denied, and this proceeding is dismissed.
On July 31, 2006, in an 18-count indictment, petitioner was charged with assault, kidnapping, attempted aggravated murder, and various sex crimes. Resp. Ex. 103. The charges stemmed from petitioner's three-day confinement and physical and sexual torture of the victim, "C.D."
On December 28, 2006, petitioner informed his court appointed attorney, Downing Bethune, that he wanted a new attorney. Transcript of Proceedings (Tr.) p. 2. After a January 17, 2007 hearing, the trial court denied petitioner's request for substitute counsel. Id. at 5. Petitioner made no other requests for new counsel or complaints of Mr. Bethune's representation to the trial court.
A four-day jury trial began on March 5, 2007. At trial, the evidence against petitioner was overwhelming and largely undisputed. C.D. testified at length at trial and described the following events. On July 23, 2006, petitioner and his girlfriend, Dayna Nordin, attended an afternoon barbeque where C.D. was also a guest. Tr. 184-85. Petitioner and the victim were long-time friends, and after the barbeque, petitioner and C. D. went to petitioner's house for drinks while Nordin went to work. Tr. 185-86, 221-23. When at the house, petitioner's mood was friendly, but his demeanor changed suddenly. Tr. 224. Petitioner accused C.D. of taking his cellphone, which she admitted doing. Id. Petitioner became violent. Tr. 225-27. Petitioner's girlfriend Nordin and friend Gregory Franklyn lived at petitioner's house and periodically came and went from the house during C. D.'s confinement.
Petitioner began by repeatedly hitting C. D. in the face, demanding the return of his cellphone, then he removed C.D.'s belt and wrapped it around C.D.'s neck, choking her. Tr. 227-28. Petitioner then dragged C.D. by the belt into the hallway and tore off her clothes. Tr. 228. Petitioner called C. D. a "dumb-ass bitch" and put his fist in her anus. Tr. 228. C.D. described the pain as excruciating, and she lost consciousness. Id. When C.D. regained consciousness, there was blood all over, and petitioner made her lick the blood. Tr. 228. Petitioner then dragged C.D. by the belt to the bathroom, put his penis in her mouth and made C.D. drink his urine. Tr. 229. Petitioner told C. D. that if she refused, he would beat her again. Id. Petitioner then dragged C.D. to the couch and instructed her to stay there. C.D. did not move because she was afraid petitioner would kill her. Tr. 230. When C.D. saw Franklyn that night, she told him to call the police. Tr. 275. The police were not called.
In exchange for leniency, Nordin testified at trial. Nordin testified that about 12:40 a.m. Monday, July 24, she returned to the house and saw C.D. and petitioner sitting naked on the couch, and a belt around C.D.'s neck. Tr. 187. Nordin went to the bedroom and noticed blood all over. Tr. 188. Petitioner and C.D. then appeared in the bedroom doorway, with petitioner holding the belt around C.D.'s neck. Petitioner told C.D. to inform Nordin why she was there, and C.D. said "I took his phone.n Tr. 189. C.D. was on her knees and told Nordin that if "if you leave, he'll kill me." Tr. 190. A short time later, petitioner made C. D. lick Nordin's anus or genitalia. Tr. 193, 232. Nordin testified that she was afraid petitioner would hurt C.D. further if she left. Tr. 193.
The house was hot, and petitioner wanted to sleep in a tent outside. Tr. 193. Petitioner dragged C.D. outside to set up the tent, and petitioner, C.D. and Nordin slept in the tent. Tr. 232. In the morning, they went inside. At some point, petitioner's cousin came over, and there was discussion about obtaining petitioner's cellphone. Tr. 199. Nordin went to work in the afternoon.
Petitioner later heated a Zippo lighter and inserted the hot lighter into C.D.'s vagina, burning her. Tr. 234-35. Petitioner also heated the Zippo lighter and held it to C.D.'s anus, burning her. Tr. 235-36. Petitioner made C. D. insert the sheath of a sword into her vagina, and then stuck his foot onto the sheath pressing it far inside C.D., causing great pain. Tr. 237.
Nordin testified that she returned from work early Tuesday morning, July 25, 2006 to find C.D. still at the house. Nordin later left to try to find petitioner's cellphone, but was unable to locate it. Tr. 200. When Nordin returned without the cellphone, C.D. was on the couch with the belt around her neck. Tr. 202. Petitioner took C.D. to the bedroom and cut C.D.'s hair. Tr. 202, 220. Petitioner instructed C.D. to lay on the bed and not move. Tr. 238. Petitioner then ignited a blow torch and burned her buttocks and arm. Tr. 238. Petitioner fell asleep sometime after burning C.D. with the blow torch.
After petitioner fell asleep, C.D. attempted to get out the front door, but it was locked. At that time, Franklyn came through the back door leaving it open, and C.D. escaped out the back door. C.D. ran naked down the street to a park. When C.D. saw a man, she asked him to call the police because she had been raped. Tr. 244. The man gave C.D. his shirt and called 911. While waiting for the police to arrive, petitioner arrived at the park on his bicycle and spoke to C.D. Tr. 258. When petitioner realized the police had been called, petitioner fled, but was quickly apprehended and identified by C.D. Tr. 68.
Allie Draper, the emergency room nurse who completed a sexual assault examination of C.D. on July 25, 2006, testified at trial. Draper testified that she recorded the events as described by C. D., collected physical evidence, and completed a report following C.D.'s arrival at the hospital. Tr. 88. Draper testified extensively about the abrasions, lacerations, and cuts she saw on C.D.'s body, which she had contemporaneously recorded on diagrams. Tr. 95-99.
Daniel Petersen, a forensic scientist with the Oregon State Police DNA unit, testified that he examined the sexual assault forensic evidence kit obtained from C.D. and swabs obtained from petitioner's penis, scrotum and pubic hair. Tr. 315, 319-20. Petersen also testified that he examined swabs collected from a lighter, a walking stick and the blade of a sword collected from petitioner's house. Tr. 321. Petersen concluded that the DNA samples from the lighter, walking stick, and petitioner's penis, scrotum and pubic hair matched the DNA profile of C. D. Tr. 323-25.
Petitioner was convicted of three counts of Assault in the Second Degree, two counts of Kidnapping in the First Degree, one count of Sodomy in the First Degree, and three counts of Unlawful Sexual Penetration in the First Degree and was sentenced to 462 months. Ex. 102.
Petitioner filed a direct appeal challenging the trial court's: (1) admission of two exhibits for the jury's use during deliberations that were not admitted and received into evidence during trial; (2) denial of his motion for substitute counsel; and (3) imposition of sentence. The Court of Appeals affirmed petitioner's conviction without opinion, and the Oregon Supreme Court denied review. Resp. Exs. 108, 109.
Petitioner filed a pro se state post-conviction proceeding alleging assorted claims of ineffective assistance of trial and appellate counsel and cumulative error. After counsel was appointed, petitioner filed a "Formal Petition For Post Conviction Relief, " in which petitioner alleged two claims: (1) trial counsel was ineffective when he struck petitioner and told him to shut up during trial, and (2) trial counsel was ineffective when he refused to permit petitioner to testify on his own behalf. The state post-conviction court denied all post-conviction relief. Resp. Ex. 121, p. 20-21.
Petitioner appealed to the Oregon Court of Appeals. Finding no "arguably meritorious" issues on appeal, petitioner's post-conviction appellate counsel filed a brief pursuant to State v. Balfour, 311 Or. 434, 814 P.2d 1069 (1991). Petitioner filed "Section B" wherein he alleged three claims for relief: (1) that the post-conviction court erred by failing to sua sponte appoint him substitute counsel because his post-conviction counsel noted there may be a conflict concerning the appropriateness of submitting an affidavit from a trial witness into evidence at post-conviction; (2) he received ineffective assistance of trial counsel when his attorney hit him and told him to shut up during trial; and (3) trial counsel was ineffective when ...