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Jones v. Nooth

United States District Court, D. Oregon

September 17, 2017

SCOTT M. JONES, Petitioner,
v.
MARK NOOTH, Respondent.

          Kristina S. Hellman Assistant Federal Public Defender Attorney for Petitioner

          Ellen F. Rosenblum, Attorney General Nicholas M. Kallstrom, Assistant Attorney General Department of Justice Attorneys for Respondent

          OPINION AND ORDER

          MICHAEL H. SIMON, UNITED STATES DISTRICT JUDGE.

         Petitioner 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 denied.

         BACKGROUND

         In 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.

         At 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.

         She saw petitioner approach the counter, pull up his sweatshirt to display a gun, [1] 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 store. Id.

         During 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 testimony.

Respondent's Exhibit 105, pp. 40-41.

         The 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.

         Petitioner 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 ...


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