United States District Court, D. Oregon
SCOTT M. JONES, Petitioner,
MARK NOOTH, Respondent.
Kristina S. Hellman Assistant Federal Public Defender
Attorney for Petitioner
F. Rosenblum, Attorney General Nicholas M. Kallstrom,
Assistant Attorney General Department of Justice Attorneys
OPINION AND ORDER
MICHAEL H. SIMON, UNITED STATES DISTRICT JUDGE.
brings this habeas corpus case pursuant to 28 U.S.C. §
2254 challenging the legality of one state-court conviction
for Robbery in the Second Degree. For the reasons that
follow, the Petition for Writ of Habeas Corpus (#2) is
2011, petitioner robbed three convenience stores in Jackson
County. As a result, the Grand Jury indicted him on four
counts of Robbery in the Second Degree as well as one count
of Unlawful Possession of Methamphetamine. Respondent's
Exhibit 102. He pled guilty to the drug charge, but proceeded
to a court trial on the Robbery charges.
trial, the evidence revealed that when he robbed the Minute
Market in Ashland, Michelle Spencer and Erin Burris were
working as store clerks. Burris did not testify, but Spencer
testified that petitioner came into the Minute Market as the
women prepared to close the store for the night. Spencer saw
he was wearing a black hooded sweatshirt with a red bandana
over his face. Respondent's Exhibit 104, pp. 15-16.
Spencer was not alarmed at that point. She explained that she
viewed petitioner's choice of attire as somewhat odd,
"[b]ut it's Ashland, so I thought maybe it was
normal for a second." Id. at 16.
petitioner approach the counter, pull up his sweatshirt to
display a gun,  and say something to Burris that Spencer
did not hear. At that point, Burris began to empty money from
the register into a bag petitioner brought into the store
with him. Id. at 17. Spencer, who had been about 10
feet away, moved behind the counter to be with Burris. She
opened a second register and placed the money from it in
petitioner's bag. Id. at 17-18. Petitioner moved
behind the counter where he attempted to open a safe and
verified that both cash drawers were empty before fleeing the
closing argument, petitioner's attorney argued that there
was insufficient evidence to convict petitioner as to Count
One of the Indictment that alleged Robbery in the Second
Degree as to Burris. Counsel explained:
Very shortly, first off, I think that there's been
insufficient evidence to indicate that as to Count I,
relative to Erin [Burris], she hasn't been here and did
not testify that she was - believed she was placed in danger,
or -well wording is threatened physical force upon Erin
[Burris]. That's someone that, without her to testify, I
don't think the Court can find that she had physical -
had a threat of physical force against her, without her
Respondent's Exhibit 105, pp. 40-41.
trial court found petitioner guilty of Count I
"notwithstanding the fact that Erin [Burris], which this
count focuses on as the victim did not testify. The evidence
is that [petitioner] pulled up his shirt in front of Ms.
[Burris] to display this weapon, and that he had what
appeared to be a deadly weapon." Id. at 46.
Petitioner raised the issue on direct appeal, but the Oregon
Court of Appeals affirmed the trial court's decision
without opinion, and the Oregon Supreme Court denied review.
State v. Jones, 261 Or.App. 473, 325 P.3d 844, re.
denied, 355 Or. 568, 329 P.3d 774 (2014). Although petitioner
also filed for post-conviction relief, he later voluntarily
dismissed that action. Respondent's Exhibits 112-115.
filed this federal habeas corpus action on June 6, 2016
wherein he asserts that his Robbery conviction as to Burris
violates his right to due process because there was
insufficient evidence to justify that conviction. Respondent
asks the court to deny relief on the Petition ...