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Pulcipher v. Nooth

United States District Court, D. Oregon

June 24, 2015

ANDREW F. PULCIPHER, Petitioner,
v.
MARK NOOTH, Respondent.

FINDINGS AND RECOMMENDATION

STACIE F. BECKERMAN, Magistrate Judge.

Petitioner, an inmate at Snake River Correctional Institution, brings this habeas corpus proceeding pursuant to 28 U.S.C. ยง 2254. For the reasons set forth below, the habeas petition should be denied.

BACKGROUND

On December 24, 2001, petitioner entered an apartment that Miguel Lopez-Pintor shared with three roommates. Resp. Ex. 106 at 22. According to several witnesses, petitioner was carrying a baseball bat, broke a table with the bat, and threatened the occupants of the apartment with the bat while yelling "I hate Mexicans." Resp. Ex. 105 at 103-04; Resp. Ex. 106 at 12-18 & 28-29. Later that evening, there was a second altercation between petitioner and several individuals in the parking lot of the apartment. Resp. Ex. 105 at 105-07 & 112-14; Resp. Ex. 107 at 20, 28-31 & 92.

On January 2, 2002, a grand jury returned an indictment charging petitioner with Burglary in the First Degree (three counts), Unlawful Use of a Weapon (two counts), Menacing (two counts), Intimidation in the Second Degree (one count), and Criminal Mischief (two counts). Resp. Ex. 102 at 1. While awaiting trial, petitioner contacted several individuals, including his girlfriend Elizabeth Lavender (aka Elizabeth Darrah), to persuade them to provide false testimony or to refuse to testify. See Resp. Ex. 106 at 76-78 & 108-12; Resp. Ex. 107 at 34-36 & 63-71; Resp. 108 at 6-8. As a result, on Apri 12, 2002, the grand jury charged petitioner with three counts of Tampering with a Witness. Resp. Ex. 102 at 6-7. On that same date, the grand jury charged Lavender with eight counts of witness tampering and three counts of bribery. Resp. Ex. 140 at 1-3. The same Deputy District Attorney ("DDA") represented the State of Oregon at all of the grand jury proceedings.

On April 17, 2002, petitioner's trial counsel moved for a continuance of the burglary trial on the basis that Lavender was unavailable as a witness because, as a result of the recent witness-tampering and bribery charges, she intended to invoke her Fifth Amendment right against selfincrimination. Resp. Ex. 104 at 7-8, 13 & 23-26. The DDA opposed the continuance. ld. at 9-10 & 14-23. The trial court denied the motion to continue, and the case proceeded to trial the following day. Id. at 28 & Resp. Ex. 105.

At trial, petitioner testified that he went to Lopez-Pintor's apartment because Lavender had accused Lopez-Pintor of trying to rape her. Resp. Ex. 107 at 41-43. Petitioner testified that, upon entering the apartment, he confronted Lopez-Pintor but did not threaten anyone with the bat. Id. at 53. He explained that during the subsequent altercation in the parking lot, he acted only to protect Lavender and her son from harm, and to prevent property damage. Id. at 51-52. When called to testify, Lavender invoked her Fifth Amendment right against self-incrimination. Resp. Ex. 105 at 4-6 & 10. Immediately thereafter, the following exchange occurred:

THE COURT: * * * The record will establish that Ms. Lavender is unavailable due to her decision to take the Fifth Amendment; so we won't need to bring her up.
It sounds like you need -
THE DEFENDANT: Hold up. I want to say what I want to say.
THE COURT: Mr. Pulcipher, I am going to find you in contempt -
THE DEFENDANT: No, don't you what nothing. You contempt me for - Fuck you, punk.
I am looking at ten years here. That piece of shit right there scared my old lady into not testifying for me. She wants to testify. She wants to testify. She won't because he scared her into not to. She is scared of losing the kid. That is why she was up there crying like that.
THE COURT: Mr. Pulcipher, just stay steady -
THE DEFENDANT: I am not going to flip out. I am not going to have people tell me to shut up. That punk right there broke up my family. I don't care about this time. I have been in the penitentiary five times. He broke up my fucking family.
THE COURT: Here is what we are going to do -
THE DEFENDANT: Here is what we are going to do, nothing.
THE COURT: This is important for you, not for me. I am going to stand down and give you a chance to talk to your lawyer. When we are talking, this gentleman is recording.
THE DEFENDANT: I want it to be on the recorder. I want it to be fucking known there. That punk there, that piece of shit -
Yeah, you bitch, you did that. Hey, I didn't fucking kick in no door.
THE COURT: You know -
THE DEFENDANT: I tried to work with him on plea bargains. He wouldn't give me nothing. He is threatening nine and a half years. What am I supposed to do? This is my life. This ain't no - it ain't about Judge Upton or Deputy Steele or Martinez or [the DDA]. I am a fucking case number. This is my life.
* * * * *
THE DEFENDANT: * * * He just scared my only witness, the only person that really saw, into - what went down, into not testifying, because she is scared of losing the baby for doing so much time. That is the only reason. She didn't do nothing except for people to tell the truth. The people in the police reports lie. She told them, "Tell ...

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