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Flennory v. Nooth

United States District Court, D. Oregon

February 13, 2017

MARK NOOTH, Respondent.

          Anthony D. Bornstein Assistant Federal Public Defender Attorney for Petitioner.

          Ellen F. Rosenblum, Attorney General Samuel A. Kubernick, Assistant Attorney General Attorneys for Respondent.


          HERNANDEZ, District Judge.

         Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his 2008 state-court conviction for Kidnapping. For the reasons that follow, the Petition for Writ of Habeas Corpus (#2) is denied.


         In 2007, the Marion County Grand Jury charged petitioner with a single count of Kidnapping in the First Degree based upon the forcible abduction of Marquita Quarles, a Shell gas station attendant. Respondent's Exhibit 102. Petitioner proceeded to a bench trial where he and the victim gave two very different accounts of what transpired between them. According to Quarles' trial testimony, petitioner visited the Shell station twice on the evening in question. During his second visit, he called Quarles over to his car and informed her that he was a private investigator employed by her family and was there to pick her up. Quarles was standing on the passenger side of the car, and petitioner forcefully opened the door into her stomach, grabbed her with one arm, and pulled her into the car. Petitioner leaned over and shut the door, and although Quarles repeatedly tried to get out, the door did not open.

         Petitioner told Quarles that he was going to "de-virginize" her and asked if she wanted drugs. Trial Transcript, pp. 23-24. Quarles used her cell phone to call John Rogers, a co-worker at the Shell station, to tell him she was being kidnapped. Petitioner took the phone from her and told Rogers that he would kill him if he called anyone.

         Petitioner then stopped the car near two women walking alongside the road and instructed Quarles to ask them for directions. Quarles testified that she thought this was a ruse to force the women into the car, so she refused. Petitioner drove to a remote area where Quarles physically fought with him until she was able to regain possession of her phone. At approximately this time, Quarles stated that the passenger door of the car "just suddenly opened for some reason." Id. at 64.

         Ian Hartwig-Morris was driving behind petitioner's car with his friend Max Miller when they saw petitioner's car come to a stop in the roadway, and Quarles "struggled to get out, like she was trying to get out as, like, fast as she could . . . almost tumbling out . . . just frantically getting out, I think would be the best way I could say it." Id. at 111-12. Quarles "jumped out and started running towards [Hartwig-Morris' ] car, screaming 'help' and saying that she had been kidnapped." Id. at 122. Quarles was "[e]xtremely distraught. Very, very upset." Id. at 23. Quarles told the men that she escaped when "she punched the driver in the face." Id.

         Petitioner's version of events differed significantly. He testified in his own defense that Quarles approached his car at the gas station on her own initiative and asked petitioner to give her a ride from Salem to Keizer. Petitioner agreed. Along the way, Quarles asked him to stop at a friend's house. Petitioner agreed to this request, but told her he could not have any drugs in the car because he did not want to violate his probation. Petitioner took Quarles to her friends' apartment and waited several minutes for her to return, at which point she asked him to take her home. When she could not tell him which street she lived on and her behavior became peculiar, petitioner became concerned that he was helping her participate in a drug deal. He therefore told her to get out of his car, at which point she became very angry and exited the vehicle. Id. at 229-237.

         The trial Judge recognized that the case largely amounted to a credibility contest, and found that both Quarles and petitioner had "contradictions in terms of what matches up with other testimony." Id. at 268. But he found Quarles' testimony to have "a significant amount of detail" and that it was "remarkably consistent" with the other evidence. Id. at 269. He also focused on the fact that Quarles' "demeanor at the scene was hysterical, and I just don't see any way around it except that she was really shook up and really hysterical and really fearful by whatever happened." Id.

         The Judge determined that the State had not carried its burden with respect to Kidnapping in the First Degree because it had not established an intent to terrorize, but that petitioner was guilty of the lesser included offense of Kidnapping in the Second Degree. Id. at 273-74. As a result, the Judge sentenced petitioner to 120 months in prison. Id. at 308-09.

         Petitioner took a direct appeal, but the Oregon Court of Appeals denied relief without opinion, and the Oregon Supreme Court denied review. State v. Flennory, 237 Or.App. 274, 240 P.3d 1141 (2010, rev. denied, 350 Or. 717, 260 P.3d 494 (2011).

         Petitioner next filed for post-conviction relief ("PCR") in Malheur County where the PCR court denied relief. The Oregon Court of Appeals affirmed that decision without opinion, and the Oregon Supreme Court again denied review. Flennory v. Nooth, 2 67 Or.App. 423, 3 ...

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