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Harwood v. Hall

United States District Court, D. Oregon

August 28, 2017

JEREMY LORREN HARWOOD, Petitioner,
v.
GUY HALL, Respondent.

          Anthony D. Bornstein Assistant Federal Public Def ender Attorney for Petitioner.

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

          OPINION AND ORDER

          MARCO A. HERNANDEZ, UNITED STATES DISTRICT JUDGE

         Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his state-court convictions from 2006. For the reasons that follow, the Petition for Writ of Habeas Corpus (#1) is denied.

         BACKGROUND

         In August 2005, the Lane County Grand Jury indicted petitioner on a total of 78 offenses, mostly having to do with theft. Respondent's Exhibit 102. The following year, the case proceeded to a jury trial. At the close of the State's case, petitioner moved for a judgment of acquittal ("MJOA") regarding seven theft charges pertaining to stolen property recovered from his co-defendant's residence located on River Road. Trial Transcript, Vol. II, pp. 698-706. He theorized that he could not be guilty of theft because the stolen property was not recovered from his residence (located on 8th Street) . The trial court denied the MJOA, and the jury ultimately convicted petitioner of 32 theft-related counts, three counts of aggravated theft in the first degree, six counts of theft in the second degree, and two counts of unauthorized use of a motor vehicle. Respondent's Exhibit 142. As a result, the trial court sentenced petitioner to 239 months in prison.

         Petitioner took a direct appeal where he challenged the trial court's denial of his MJOA claiming that the State failed to present any evidence that he exercised possession or control over the stolen items found at his co-defendant's River Road property. Respondent's Exhibit 103. The Oregon Court of Appeals affirmed the trial court's decision without opinion, and the Oregon Supreme Court denied review. State v. Harwood, 226 Or. App 418, 204 P.3d 177, rev. denied, 346 Or. 258, .210 P.3d 906 (2009). Petitioner next filed for post-conviction relief ("PCR") in Marion County where the PCR court denied relief on all of his claims. Respondent's Exhibit 151. The Oregon Court of Appeals affirmed the lower court without opinion, and the Oregon Supreme Court denied review. Harwood v. Premo, 267 Or.App. 424, 341 P.3d 252 (2014), rev. denied, 357 Or. Ill. 346 P.3d 1212 (2015).

         Petitioner filed this federal habeas corpus case on June 30, 2015. With the assistance of appointed counsel, petitioner argues three grounds for relief:

(1) Petitioner's aggravated theft convictions violate due process because the State did not present sufficient evidence to sustain them;
(2) Trial counsel was ineffective when he failed to use available evidence to impeach a complaining witness regarding the material element of the value of clothing; and
(3) Trial counsel was ineffective when he failed to object to the court's failure to merge several of petitioner's convictions.

         Respondent asks the court to deny relief on the Petition because: (1) petitioner declines to argue several grounds for relief that are contained within his Petition; (2) the Petition does not contain petitioner's third argued claim, thus the claim is not properly before the court; (3) petitioner's due process claim is procedurally defaulted and lacks merit; and (4) the PCR court's denial of petitioner's ineffective assistance of counsel claim in Ground Two was not objectively unreasonable.

         DISCUSSION

         I. Unargued Claims

         The Petition for Writ of Habeas Corpus contains two grounds for relief, the second of which is comprised of nine subparts. Petitioner filed his Brief in Support (#21) in which he argues the due process claim the court identified in the Background of this Opinion as Ground One, and the ineffective assistance of counsel claim it identified as Ground Two.[1] Petitioner then filed his Supplemental Brief (#31) containing argument on the Ground Three ineffective assistance of counsel claim pertaining to merger. Petitioner does not argue the merits of his remaining claims and has therefore not carried his burden of proof with respect to these unargued claims. See Silva v. Woodford, 27 9 F.3d 825, 835 (9th Cir. 2002} (petitioner bears the burden of proving his claims).

         II. Pleading Sufficiency

         Respondent asserts that the Ground Three ineffective assistance of counsel claim petitioner argues in his Supplemental Brief is not contained in the Petition. Rule 2(c) of the Rules Governing Section 2254 Cases requires each habeas petition to "specify all the grounds for relief which are available to the petitioner" and to "state the facts supporting each ground." A court need not consider a claim that is not contained within the operative habeas corpus petition. Greene v. Henry, 302 F.3d 1067, 1070 fn 3 (9th Cir. 2002) . The pertinent portion of the Petition•reads as follows:

Post-conviction trial counsel was ineffective for failing to raise and present an issue that trial counsel was ineffective for failing to request that the sentencing court merge all of the theft related convictions, (Counts 5, 6, 11, 12, 13, 18, 19, 22, 23, 25, 26, 27, 28, 29, 33, 34, 36, 38, 39, 40, 41, 42, 43, 45, 68, 69, 70, 71, and 72) into one and/or for the purposes of sentencing. That is one charge of Aggravated Theft by Receiving is necessarily involved with the above-mentioned counts. Only one offense was committed and only one charge may be the basis for a conviction.

Petition (#2), pp. 26-27.

         In his Supplemental Brief, petitioner states a somewhat different claim. He asserts that there were 16 different victim property owners such that he should have at least 16 different theft convictions, not one, but that his theft convictions pertaining to multiple items taken from the same property owner should have merged.

         Petitioner asserts that this court should liberally construe his Petition to state the claim he argues in his Supplemental Brief. Although the court is obligated to liberally construe pro se filings, Haines v. Kerner, 404 U.S. 519 (1972), the court specifically appointed the Federal Public Defender's Office at the outset of this case to give petitioner every opportunity to amend his Petition to clearly state any claims he and his attorney wished to argue.[2] ...


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