United States District Court, D. Oregon
OPINION AND ORDER
Michael McShane United States District Judge.
brings this petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, alleging ineffective assistance of
counsel. For the reasons explained below, the petition is
October 2008, petitioner and his wife, Nona, were camping
with their horses on a ranch in rural Douglas County owned by
Mark McCroskey. At the time, Mark Spruill resided nearby in a
cabin on the property. They all shared a spring water source,
with the spring water funneled through a pipe and into a
his testimony at trial, Spruill saw petitioner's wife
accessing the spring water directly from the tank rather than
from the attached pipe or faucet. Believing that her actions
could contaminate the water, Spruill asked her to use the
faucet. Resp. Ex. 103, Transcript of Trial Proceedings (Tr.)
at 98-99, 177-78. The following day, petitioner and his wife
walked to Spruill's cabin and confronted him about the
way he had talked to petitioner's wife. Tr. 99-100.
Spruill walked over to the holding tank and saw evidence that
petitioner again was dipping water jugs directly into the
tank to collect water. Tr. 100-01. Spruill also noticed that
the pipe feeding water to the tank was missing, meaning that
the tank would run dry. Tr. 101. Spruill admitted that he was
angry about the water situation, and he told petitioner to
stay out of the spring. Tr. 102. Petitioner responded that
Spruill had no authority to tell him how to use the spring.
Spruill again told petitioner to stay out of the spring, and
he picked up a muffler pipe “to let him know I was
serious.” Tr. 103, 300. Spruill went inside his cabin,
and petitioner and his wife starting walking back to their
camp. Tr. 105, 301.
testified that he wanted McCroskey to resolve the dispute and
decided to call him from the nearest pay phone about two
miles away. As he was driving from the cabin, he stopped and
asked petitioner if he had McCroskey's phone number. Tr.
104, 108, 320. Spruill testified that petitioner pulled a
loaded handgun from behind his back and ordered Spruill to
the ground. Tr. 108-10. As Spruill lay with his face in the
ground, petitioner's wife bound Spruill's hands and
feet with twine. Tr. 110-11. Once Spruill was tied up,
petitioner began kicking him and hitting his head. Tr.
112-113. Petitioner also fired a gunshot into the ground near
Spruill's right ear. Tr. 113.
testified to a somewhat different version of events.
According to petitioner, after Spruill waved the pipe, he got
into his car and raced toward petitioner and his wife, making
contact with petitioner's knee. Tr. 302, 306-07. Spruill
then got out of his car and ran at petitioner waving his
fists. Tr. 315-16. Petitioner testified that he
“peppered” Spruill with punches and took him to
the ground with by shoving Spruill's back with his foot.
Tr. 315-16, 318. Petitioner called for his wife to bring some
twine, and he tied Spruill's hands and feet together. Tr.
318-19. Petitioner admitted shooting a gun into the ground
about 8 to 15 feet from Spruill's head to “make him
calm down.” Tr. 320.
walked Spruill at gunpoint to petitioner's camp, tied him
up again and said he was under “arrest.” Tr. 115,
327, 330. Petitioner testified that he believed Oregon State
law gave him the right to effectuate a citizen's arrest
of Spruill. Tr. 115, 320, 327. Petitioner asked Spruill if he
should call McCroskey or the police, and Spruill asked
petitioner to contact McCroskey because he was closer. Tr.
116. Petitioner then sent his wife to the nearest
neighbor's house to call McCroskey.
visitor, Joseph Schneiderhan, subsequently stopped by the
camp. Schneiderhan testified that when he arrived,
petitioner's wife had left to make a phone call and was
not at the camp. Tr. 276. When petitioner's wife
returned, she explained that McCroskey “would be
late” and could not come to the property right away.
Tr. 118, 325. Spruill testified that he then asked that
petitioner call police and offered to drive him to a
telephone. Tr. 118, 125. In contrast, petitioner testified
that he asked Schneiderhan to call the police but told him to
“forget calling” after Spruill asked petitioner
to wait for McCroskey. Tr. 280, 326, 332. Petitioner further
testified that he expected law enforcement to show up at any
time, because McCroskey had been told about the situation.
Tr. 288, 329.
told Spruill he was still under arrest and would be held
until the police arrived. Tr. 119. Spruill testified that
petitioner watched him at gunpoint throughout the night and
at one point shoved the gun inside Spruill's mouth and
stated, “Aren't you sorry you're messing with
me now?” Tr. 120. Petitioner denied this allegation.
Toward morning, petitioner told Spruill, “All I have to
do is break your neck and throw you over a cliff nearby and
all my troubles will be over.” Tr. 122, 182. Petitioner
admitted making this statement. Tr. 351.
daylight, petitioner left camp to call police and
petitioner's wife, who was armed, watched over Spruill.
Tr. 123. Petitioner reached a sheriff's deputy on the
telephone and reported that he was detaining Spruill in a
citizen's arrest for assault and attempted murder. Tr.
339-40. The deputy cautioned petitioner that he could be
arrested for kidnapping Spruill. Tr. 340-41.
testified that petitioner returned to camp and said he would
drop all charges if Spruill told the police he tried to hit
petitioner with his car. Tr. 124. Spruill also testified that
petitioner's wife moved Spruill's car to corroborate
their story. Tr. 124-25. Petitioner admitted that he and his
wife moved Spruill's car to get it out of the road. Tr.
law enforcement officers arrived, petitioner asked them to
take Spruill into custody for assault, threatening conduct,
and denying him access to the water tank. Tr. 348. After
talking to Spruill and petitioner, the officers instead
arrested petitioner and his wife. Tr. 350.
was charged with two counts of Kidnapping in the First
Degree, Assault in the Third Degree, Assault in the Fourth
Degree, and Unauthorized Use of a Motor Vehicle. Resp. Ex.