United States District Court, D. Oregon
BROWN Assistant Federal Public Defender Attorney for
F. ROSENBLUM Attorney General SAMUEL A. KUBERNICK Assistant
Attorney General Department of Justice Attorneys for
OPINION AND ORDER
J. Brown, United States District Judge
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 Amended
Petition for Writ of Habeas Corpus.
January 31, 2006, a Marion County grand jury indicted
Petitioner on eight charges, including one count of
Kidnapping in the First Degree, two counts of Coercion, two
counts of Assault in the Fourth Degree Constituting Domestic
Violence, one count of Strangulation, one count of
Harassment, and one count of Tampering with a witness. Resp.
Exh. 102, p. 1. The case was tried to a jury, who found
Petitioner guilty on all charges. Resp. Exh. 104, pp.
filed a direct appeal, assigning as error the trial
court's denial of a motion for judgment of acquittal on
the Kidnapping charge. Resp. Exh. 105. The Oregon Court of
Appeals affirmed the trial court's judgment without
opinion, and the Oregon Supreme Court denied review. State
v. Villines, 224 Or, App. 687, 200 P.3d 181 (2008),
rev. denied, 346 Or. 116, 205 P.3d 888 (2009).
then sought state post-conviction relief ("PCR"),
alleging claims of ineffective assistance of trial and
appellate counsel, trial-court error, and prosecutorial
misconduct. Resp. Exh. 110. Following an evidentiary hearing,
the PCR trial judge denied relief. Resp. Exh. 132.
appealed, submitting both a counseled brief and a pro
se supplemental brief. Resp. Exhs. 133, 134. The Oregon
Court of Appeals again affirmed without opinion and the
Oregon Supreme Court denied review. Villines v.
Nooth, 258 Or.App. 907, 313 P.3d 1148, rev.
denied, 354 Or. 597, 318 P.3d 749 (2013).
April 28, 2014, Petitioner filed a pro se Petition
for Writ of Habeas Corpus in this Court. The Court appointed
counsel, who filed an Amended Petition for Writ of Habeas
Corpus on Petitioner's behalf on November 26, 2014. The
Amended Petition alleges five grounds for relief:
Ground One: The trial court violated Petitioner's
constitutional rights, guaranteed by the Fifth and Fourteenth
Amendments to the United States Constitution, when it denied
the motion for judgment of acquittal because there was
insufficient evidence to establish all of the necessary
elements of Kidnapping.
Ground Two: The trial court violated Petitioner's
constitutional rights guaranteed by the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution, when
it did not permit the public to attend Petitioner's
Ground Three: Petitioner was denied the effective assistance
of counsel as guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution when trial
counsel failed in the following particulars:
A. to perform effectively with regard to plea negotiations,
including, but not limited to, failing to effectively advise
Petitioner as to the applicable law, benefits of pleading
guilty, and consequences of going to trial; B. to perform
effectively with regard to Petitioner's right to a public
trial; C. to perform effectively with regard to the motion
for a mistrial; D. to perform effectively with regard to the
motion for judgment of acquittal; [and]
E. to perform effectively with regard to sentencing,
including but not limited to, failing to ensure that
Petitioner's stipulation to aggravating factors and/or
waiver of his Blakely rights was knowing, voluntary,
Ground Four: Petitioner was denied the effective assistance
of appellate counsel as guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution when
appellate counsel failed to assign as error on appeal the
denial of a motion for mistrial.
Ground Five: Petitioner was denied his constitutional right
to a unanimous jury verdict under the Sixth and Fourteenth
Amendments to the United States Constitution.
contends Petitioner procedurally defaulted the claims alleged
in Grounds One, Two, and Five. In any event, Respondent
argues, the claims alleged in Grounds One and Five fail on
their merits. Respondent further argues Petitioner failed to
meet his burden of proof on the claims alleged in sub-parts
B, C, and D of Ground Three, as Petitioner did not address
them in his brief in support. Finally, Respondent argues
Petitioner is not entitled to relief on the remaining grounds
because the state PCR court decisions denying relief on those
grounds are entitled to deference.
State Court Decisions Entitled to Deference
application for a writ of habeas corpus shall not be granted
unless the adjudication on the merits in State court was: (1)
"contrary to, or involved an unreasonable application
of, clearly established Federal law as determined by the
Supreme Court of the United States" or (2) was
"based on an unreasonable determination of the facts in
light of the evidence presented in the State court
proceeding." 28 U.S.C. § 2254(d).
court decision is an "unreasonable" application of
clearly-established federal law if the court: (1) identifies
the correct governing legal principle from Supreme Court
decisions, but unreasonably applies that principle to the
facts of the prisoner's case; or (2) either unreasonably
refuses to extend the governing legal principle or
unreasonably extends it to a new context where it should not
apply. Williams v, Taylor, 529 U.S. 362, 407, 413
(2000). Under this standard of review, a federal court may
not issue a writ of habeas corpus because it concludes the
state court applied clearly-established federal law
erroneously or incorrectly. Instead, the state court decision
must be "objectively unreasonable." Lockyer v.
Andrade, 538 U.S. 63, 75 (2003). The last reasoned
decision by the state court is the basis for review by the
federal court. See Ylst v. Nunnemaker, 501 U.S. 797,
803-04 (1991); Comstock v. Humphries, 786 F.3d 701,
707 (9th Cir. 2015).
Insufficient Evidence of Kidnapping - Ground One
Ground One, Petitioner alleges the trial court violated his
Fifth and Fourteenth Amendment due process rights in denying
a motion for judgment of acquittal on the Kidnapping in the
First Degree charge because there was insufficient evidence
to establish all of the necessary elements of the
Process Clause of the Fourteenth Amendment protects the
"accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the
crime with which he is charged." In re Winship,397 U.S. 358, 364 (1970). In reviewing the sufficiency of
evidence to support a petitioner's state conviction, a
federal habeas court must determine whether, after
considering all of the evidence in the light most favorable
to the prosecution, a rational trier of fact could have found
each of the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia,443 U.S. 307,
318-19 (1979); Walters v. Maass,45 F.3d 1355, 1358
(9th Cir. ...