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Clark v. Nooth

Court of Appeals of Oregon

April 12, 2017

MICHAEL RAY CLARK, Petitioner-Appellant,
Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Respondent.

          Argued and submitted October 6, 2015

         Malheur County Circuit Court 12069496P; Rick J. McCormick, Senior Judge.

          Bear Wilner-Nugent argued the cause and fled the briefs for appellant.

          Rebecca M. Auten, Assistant Attorney General, argued the cause for respondent. On the brief were Frederick M. Boss, Deputy Attorney General, Anna M. Joyce, Solicitor General, and Kathleen Cegla, Assistant Attorney General.

          Before Duncan, Presiding Judge, and DeVore, Judge, and Flynn, Judge pro tempore.

         Case Summary:

         Petitioner seeks relief from his conviction for first-degree rape, assigning error to the post-conviction court's denial of his claims for relief. Petitioner argues that he received inadequate assistance of counsel because his counsel failed to object to the use of a leg brace to restrain petitioner during the criminal trial and that the use of the leg brace independently denied him the constitutional right to be free from physical restraint during trial. Petitioner also assigns error to the denial of his motion to subpoena the victim in the post-conviction proceeding under ORS 138.625, arguing that the victim's testimony would be material to claims that trial counsel failed to adequately investigate the case or cross-examine the victim during trial.


         The post-conviction court erred when it concluded that, because the jury was not aware that petitioner was physically restrained, petitioner suffered no prejudice from counsel's failure to object to the leg restraint. Because the jury's knowledge is not the only measure of prejudice, the court should reconsider on remand whether petitioner was prejudiced by counsel's deficient performance. However, petitioner's independent claim that he was unconstitutionally restrained during trial is barred by ORS 138.550(2), which bars grounds for relief that could have been asserted on direct appeal unless they were "not asserted and could not reasonably have been asserted in the direct appellate review proceeding." Regarding the motion to subpoena the victim, the court properly denied the motion. Petitioner failed to show that the victim has information that is material to the post-conviction proceeding, i.e., information that has a reasonable probability of affecting the outcome of petitioner's claims for post-conviction relief.

         Reversed and remanded on paragraph M of petitioner's seventh claim for relief, as to counsel's failure to object to physical restraint; otherwise affirmed.

          FLYNN, J., pro tempore

         In this post-conviction case, petitioner seeks relief from his conviction for first-degree rape, ORS 163.375. On appeal, petitioner assigns error to the post-conviction court's denial of two claims for relief that are based on the allegation that petitioner was restrained by a leg brace during his criminal trial without findings to justify the restraint-both a "stand-alone" claim that the restraint violated his state and federal constitutional rights as well as a claim that he was denied constitutionally adequate and effective assistance of counsel, in violation of Article I, section 11, of the Oregon Constitution, and the Sixth and Fourteenth Amendments to the United States Constitution, [1] when his trial attorney failed to object to the restraint. Petitioner also assigns error to the post-conviction court's refusal to issue a subpoena to the victim to provide testimony that, petitioner contends, would have helped him prove other allegations of ways in which petitioner's defense attorney was constitutionally inadequate and ineffective. We conclude that the court did not err in denying petitioner's "stand-alone" claim regarding the leg restraint and did not err in refusing to allow petitioner to subpoena the victim. However, we conclude that the post-conviction court erred in denying the claim based on counsel's failure to object to the restraint, because the court applied an overly narrow test in finding no prejudice. We reverse and remand as to that claim and otherwise affirm.[2]

         I. BACKGROUND

         A jury convicted petitioner of two counts of first-degree rape. Although petitioner denied having had any sexual contact with the victim, much of the evidence at petitioner's criminal trial was undisputed. At the time that the victim reported the rape, she and petitioner both lived with petitioner's mother. Petitioner lived in a trailer on the property, and the victim was staying in the mother's house. The victim was involved in an intimate relationship with D, whom petitioner had known for many years, who was also staying at the house. The day before the incident, petitioner and D had brought the victim back from a house where she had been staying for several days and using methamphetamine.

         The following morning, petitioner and the woman whom he was dating at the time returned to his trailer after using methamphetamine and staying awake most of the night. While the woman took a shower in petitioner's trailer, petitioner walked to the main house to use the shower and do laundry, bringing with him methamphetamine and a syringe. When he knocked on the door, the victim let him in. Later that morning, the victim called D at work and told him that she had been raped by petitioner. D called petitioner's mother, who called the police.

         The victim reported that, after she let petitioner into the house, they had talked for a bit, he had injected her with methamphetamine, and she had immediately collapsed and lost consciousness. She awoke to petitioner raping her. At trial, a criminologist testified for the state that the victim's DNA was found on petitioner's penis in a concentration that indicated contact with a "high source of DNA, " such as the vagina, mouth, or mucous. There were also injuries to the victim's vaginal wall consistent with "forceful intercourse."

         Petitioner denied having given the victim drugs or having had any sexual contact with her. He testified at his criminal trial that, for some time, he had suspected that the victim was taking his mother's financial documents in an attempt to commit identity theft. When the victim let petitioner into the house on the morning of the incident, petitioner tried to confront her about his suspicion, but she appeared to have used methamphetamine and was too distracted to have that conversation. Petitioner then went to the bathroom to take a shower, but the victim followed him, took off her clothes and tried to get into the shower with him. He testified that the victim slipped and fell on him in his groin area.

         Throughout his trial, petitioner was required to wear a leg brace under his pants. The brace fit around petitioner's leg from mid-calf to mid-thigh and was made of hard plastic.

         In this post-conviction proceeding, petitioner alleged that his criminal trial counsel had been suffering from a drug addiction at the time of petitioner's trial and had been arrested for driving under the influence of controlled substances just four days before the trial. He alleged that the attorney's condition made him "functionally absent, " thus depriving petitioner of his right to counsel. Petitioner also alleged numerous specific ways in which his attorney's performance denied petitioner constitutionally adequate and effective assistance of counsel. As pertinent to this appeal, petitioner alleged that his attorney failed to object to petitioner being required to wear the leg restraint, failed to hire an investigator, failed to adequately cross-examine the victim about potential bias, failed to adequately examine defense witnesses, and failed to seek a continuance or move for a mistrial when the victim failed to "appear as ordered to testify as a witness for the defense." The post-conviction court denied all of petitioner's claims for relief.

         II. ANALYSIS

         A court must grant post-conviction relief when there has been a "substantial denial" of a federal or state constitutional right, "which denial rendered the conviction void." ORS 138.530(1)(a). The constitutional right to counsel is the right to "adequate performance by counsel concerning the functions of professional assistance which an accused person relies upon counsel to perform on his behalf." Montez v. Czerniak, 355 Or 1, 6, 322 P.3d 487, adh'd to as modified on recons, 355 Or 598, 330 P.3d 595 (2014) (internal quotation marks omitted); see also Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (United States Constitution requires not just counsel, but "effective" counsel). To prevail on a claim that he has been denied constitutionally adequate assistance of counsel, a petitioner has the burden to show,

"by a preponderance of the evidence, (1) deficient performance (i.e., that trial counsel failed to exercise reasonable professional skill and judgment based on the law at the time trial counsel acted) that resulted in (2) prejudice to the petitioner (i.e., that trial counsel's deficient performance had a tendency to affect the result of the petitioner's prosecution)."

Real v. Nooth, 268 Or.App. 747, 752, 344 P.3d 33, rev den, 357 Or 550 (2015). When considering trial counsel's performance, we "make every effort to evaluate a lawyer's conduct from the lawyer's perspective at the time, without the distorting effects of hindsight." Lichau v. Baldwin, 333 Or 350, 360, 39 P.3d 851 (2002).

         A. Leg ...

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