United States District Court, D. Oregon
KRISTINA HELLMAN Assistant Federal Public Defender Attorney
F. ROSENBLUM Attorney General FREDERICK M. BOSS Deputy
Attorney General KRISTEN E. BOYD Senior Assistant Attorney
General Attorneys for Respondent
OPINION AND ORDER
J. BROWN UNITED STATES SENIOR DISTRICT JUDGE
an inmate at the Eastern Oregon Correctional Institution,
brings this habeas corpus action pursuant to 28 U.S.C. §
2254. For the reasons that follow, the Court DENIES the
Petition for Writ of Habeas Corpus (ECF No. 2).
November 1, 2004, a Marion County grand jury indicted
Petitioner on one count of Attempted Murder, two counts of
Kidnaping in the First Degree, and one count each of Assault
in the Second Degree, Assault in the Third Degree, and
Assault in the Fourth Degree. Resp. Sxh. 102. The charges
were based upon allegations that Petitioner and his
co-defendant, Pete Quismundo, assaulted Petitioner's
girlfriend Michelle Simpson, threatened to kill her, and
tried to force her into a car.
and Ms. Simpson lived together in an apartment which Billie
Bailer managed. On October 20, 2004, Ms. Bailer was awakened
by screams and banging on her window at about 3:00 a.m.. She
went outside and saw Petitioner and Quismundo assaulting Ms.
Simpson. They were on either side of Ms. Simpson and were
"smashing" her head into the top part of
Petitioner's car and punching her. Ms. Bailer heard both
men threaten to kill Ms. Simpson, "telling her they were
going to cut her up and float her down the river and that
nobody would ever miss her." Resp. Exh. 104, pp. 40-41.
Ms. Bailer screamed for them to stop, and when they did not,
she told her daughter-in-law to call 911.
Simpson got away from Petitioner and Quismundo and ran into
Ms. Bailer's house. Petitioner and Quismundo got into
Petitioner's car and drove away. Once back inside, Ms.
Bailer saw that Ms. Simpson was "bloody all over"
and was holding her ribs.
Officer Richard Beal responded to the 911 call. Officer Beal
found Ms, Simpson standing in the doorway of Ms. Bailer's
house with a towel over her left eye. She was crying, was
"visibly shaking, " and had blood "from the
top of her hair running down the side of her head." Res.
Exh. 104, p 140. Ms. Simpson told Officer Beal that
Petitioner "had beat her and was trying to kill
her." Resp. Exh. 104, p. 141. She told Officer Beal that
the assault began in her apartment, that she ran from the
apartment, and that Petitioner and Quismundo tried to force
her into the car "to take her out and kill her."
Resp. Exh. 104, pp. 141-42. An ambulance arrived and
transported Ms. Simpson to the hospital.
time later, another officer stopped Petitioner and Quismundo,
and Officer Beal went to the stop location. Beal found a
"large kitchen knife" on the front passenger side
floorboard of the car. Both Petitioner and Quismundo were
arrested and taken to the police station.
Beal went to the hospital to speak to Ms. Simpson again. Ms.
Simpson suffered injuries including "two broken ribs,
two fractured ribs, two shattered discs in her vertebra, and
she required five stitches." Resp. Exh. 104, p. 77. Ms.
Simpson provided Officer Beal additional details about the
attack. She told Officer Beal that Petitioner had become
angry and assaulted her because she had cheated on him.
Petitioner initially hit her with an open hand, but then he
became more violent, and he hit her with his fist on the back
of her head and her face. Petitioner also stood in front of
her and kicked her legs as he questioned her, and kicked her
in the shins and in the torso as she lay on the floor. Ms.
Simpson told Officer Beal she became "more and more
scared" as Petitioner was getting "out of
control." Resp. Exh. 104, pp. 146-47.
Simpson told Officer Beal that Quismundo initially sat on the
couch and watched Petitioner assault her, but then he started
"egging [Petitioner] on, " telling him "You
ought to cut her throat" and "let's kill this
bitch, man. Come on. Let's make her disappear."
Resp. Exh. 104, pp. 148-491. Ms. Simpson reported that
Petitioner told her "I am going to kill you and
you'll never see your kids again." Resp. Exh. 104, p
149. Because she was afraid for her life, Ms. Simpson looked
for a way to escape. When Petitioner and Quismundo went into
the kitchen, Ms. Simpson heard a drawer open and heard what
she believed to be the sound of a knife pulled out. She told
Officer Beal that she bolted for the door and ran to Ms.
Bailer's house, where she screamed and pounded on the
house to get someone's attention.
Simpson told Officer Beal that Petitioner was right behind
her and grabbed her by the hair and pulled her to his car.
Petitioner said "Bitch. Where do you think you're
going." Resp. Exh. 104, p. 150. Ms. Simpson pleaded for
her life, but Petitioner told her, "You're going for
a ride and nobody is going to give a fuck. Come on man.
Let's cut this bitch." Resp. Ex. 104, p. 151. Ms.
Simpson told Officer Beal she remembered Petitioner holding
her, Quismundo hitting her, and her head "bouncing off
the top of the car." Resp. Exh. 104, p. 151. When
someone screamed, Petitioner and Quismundo released her and
she ran into Ms. Bailer's house.
that same day, Officer Beal contacted Ms. Simpson again at
Ms. Bailer's house. Ms. Simpson again said Petitioner was
upset because she had cheated on him. She told Officer Beal
that there was no question in her mind that if Bailer had not
intervened, "she would have been killed." Resp.
Exh. 121, p. 13. Officer Beal also talked to Ms. Bailer, who
told him she saw Petitioner and Quismundo banging Ms.
Simpson's head off the top of the car, and reported
hearing Petitioner and Quismundo make statements like;
"Come on. Let's cut this bitch. Let's go
man." Resp. Exh. 104, p. 163.
Beal interviewed Quismundo twice. The first time, immediately
after the incident, Quismundo told Beal he was actually
present to see Petitioner assault Ms. Simpson and that he
tried to stop him from injuring her, but then Quismundo said
something like "if I would have tried to stop him . . .
well you see how big he is ... I wouldn't be able to help
her." Resp. Exh. 121, pp. 9-10. The second time Officer
Beal spoke to Quismundo, he told Officer Beal Petitioner had
been fighting with Ms. Simpson for about an hour before the
police arrived, and he described the events inside the
apartment as Petitioner asking questions of Ms. Simpson and
then he would hit or kick her. Quismundo mentioned numerous
times that he would have stopped Petitioner from assaulting
Ms. Simpson, but because of Petitioner's size, he did
trial, Ms. Simpson did not appear for a grand jury
proceeding. The prosecution asked the court to declare her a
material witness, and a hearing was held. At the hearing, Ms.
Simpson testified that she would appear at trial and wanted
to testify against Petitioner. She denied that she had spoken
to Petitioner after the incident, even though the state had
recordings of her calls to Petitioner, and Ms. Simpson was
convicted of perjury for lying under oath at the hearing.
before trial, Petitioner's attorney had a private
investigator interview Ms. Simpson. Ms, Simpson denied to the
private investigator that Petitioner had hit her, and she
placed the blame on Quismundo instead.
case was joined with Quismundo's case for trial. At the
joint trial, the state presented testimony from three
witnesses: Ms. Bailer, Ms. Simpson, and Officer Beal.
Bailer testified consistently with what she had reported to
Officer Beal, that is, she heard screaming and someone
knocking on her window on the night of the altercation, and
she saw Petitioner and Quismundo holding Ms. Simpson and
heard them "telling her that they were going to cut her
up and float her down the river." Resp. Exh. 104, pp.
32-33. Ms. Bailer saw both Quismundo and Petitioner holding
and hitting Ms. Simpson.
Simpson's testimony differed dramatically from what she
told Officer Beal. She testified she either did not remember
making inculpatory statements to Officer Beal about the
attack and, if she had made them, they were false. Ms.
Simpson blamed the attack entirely on Quismundo and portrayed
Petitioner as a bystander. She testified that Quismundo, not
Petitioner, beat her and kicked her while they were in the
apartment because he was angry at her for cheating on
Petitioner. Ms. Simpson testified that Petitioner was asleep,
and that after about five minutes she awakened him and he got
her a towel and tried to help her to the car. She testified
that she did not go to Ms. Bailer's house and bang on her
window or yell for help, and that she told Ms. Bailer to make
up the incriminating statements she gave to Officer Beal.
Beal testified about the three conversations he had with Ms.
Simpson and relayed the statements she made about the attack
as described above. On cross-examination, Quismundo's
attorney asked Officer Beal about statements Quismundo had
made to him. Officer Beal testified that Quismundo told Beal
that he would have intervened but he was scared of Petitioner
because of his size, that Quismundo heard Petitioner tell Ms.
Simpson he wanted to kill her and she would never see her
children again, and that had Quismundo not been there to
intervene, he believed Petitioner would have killed Ms.
Simpson. Officer Beal also testified that Quismundo told him
that Petitioner was the one who actually struck Ms. Simpson
when they were in the apartment.
close of the state's evidence, both Petitioner and
Quismundo moved for judgments of acquittal, which the trial
judge denied. Petitioner's attorney then raised another
matter with the Court:
DEFENSE COUNSEL: There is one other matter. It is a pro se
matter that I have discussed. [Petitioner] previously -- and
I don't think that he agrees with my analysis of the law
on it. I think [Petitioner's] belief has historically
been that this should not have been a joint trial. I think he
feels that the testimony of the co-defendant puts him at a