THOMAS J. HESTER Assistant Federal Public Defender Attorney for Petitioner
ELLEN F. ROSENBLUM Attorney General FREDERICK M. BOSS Deputy Attorney General KRISTEN E. BOYD Assistant Attorney Attorneys for Respondent
OPINION AND ORDER
OWEN M. PANNER UNITED STATES DISTRICT JUDGE
Petitioner, an inmate at the Two Rivers Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the court DENIES the Petition for Writ of Habeas Corpus.
On January 19, 1999, a Multnomah County grand jury indicted Petitioner on charges of Theft in the First Degree, Forgery in the First Degree, Tampering with Public Records, Menacing, and Solicitation to Commit Murder. Resp. Exh. 102. The Solicitation to Commit Murder charge was dismissed shortly thereafter. On, June 16, 1999, a Multnomah County grand jury issued a new, separate indictment on one count of Solicitation to Commit Aggravated Murder. The two cases were consolidated and tried to a jury.
At the close of evidence, the trial judge dismissed the Menacing charge for lack of evidence. The jury then found Petitioner guilty on the remaining charges. On appeal, the Oregon Court of Appeals affirmed the convictions for Theft, Tampering, and Forgery, but overturned the conviction for Solicitation to Commit Aggravated Murder. State v. Jenkins, 190 Or.App. 542, 79 P.3d 347 (2003, adhered to as modified on reconsid., 191 Or.App. 617, 83 P.3d 390 (2004).The state sought review of the decision overturning the solicitation charge, but the Oregon Supreme Court denied the state's petition for review. State v. Jenkins, 337 Or. 160, 94 P.3d 876 (2004) .
Petitioner was later re-tried on the Solicitation charge, and a jury again found him guilty. Petitioner appealed that conviction, but the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. State v. Jenkins, 227 Or.App. 506, 206 P.3d 286, review denied, 346 Or. 362, 211 P.3d 931 (2009). The second Solicitation conviction is not challenged in this habeas action; the only convictions at issue here are for Theft in the First Degree, Forgery in the First Degree, and Tampering with. Public Records.
While the direct appeal from the second Solicitation to Commit Murder conviction was pending, petitioner was simultaneously pursuing state post-conviction relief ("PCR") on the original Theft, Forgery, and Tampering convictions. Following an evidentiary hearing, the PCR trial judge denied relief. Petitioner appealed, but the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Jenkins v. Hall, 237 Or.App. 575, 241 P.3d 356 (2010), rev. denied, 349 Or. 602, 249 P.3d 123 (2011).
On October 31, 2011, Petitioner filed his Petition for Writ of Habeas Corpus in this court. Petitioner challenges the convictions for Theft in the First Degree, Forgery in the First Degree, and Tampering with a Public Document on three grounds:
Ground One: Ineffective Assistance of Counsel where defense attorney failed to move for mistrial during and after improper closing rebuttal argument from state prosecutor.
Supporting Facts: State prosecutor made a series of prohibited arguments in closing which were calculated to inflame the passions of the jury, appeal to prejudice, and were outside the trial record. The prosecutor told the jury that Petitioner was mentally ill in the absence of any foundational evidence. Prosecutor urged the jury to convict Petitioner on the basis of the alleged mental illness warning the jury panel of dire consequences and individual reprisals against trial witnesses and the jury panel should the jury fail to convict.
Ground Two: Ineffective Assistance of Counsel where defense attorney failed to investigate, research, and understand the facts and the law of two search incidents of Petitioner which occurred Dec. 31, 1998. Supporting Facts: Trial counsel failed to (1) challenge the administrative and warrantless search of petitioner's Yahoo e-mail account at the Multnomah County Public Library on Dec. 31, 1998, said search violated the Fourth Amendment, U.S.C.A. and the Federal Wiretap Statutes; (2) challenge the warrantless and unreasonable search of Petitioner's Washington residence on Dec. 31, 1998, said search violated the Fourth Amendment, U.S.C.A.; (3) challenge the Oregon lex fori evidentiary rule which violates the Full Faith and Credit Clause to Article IV, Section I, United States Constitution.
Ground Three: Ineffective Assistance of Counsel where former defense counsel failed, upon request, to surrender the client case file to Petitioner. Supporting Facts: Trial counsel's failure to tender the case file to Petitioner resulted in a violation of the Due Process and Equal Protection Clauses to the Fourteenth Amendment of the United States Constitution. The file was necessary and critical to the establishment and presentation of Petitioner's Post-Conviction Claims for Relief. The . refusal to tender the case file constitutes a denial of access to the ...