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De-Jesus v. Premo

United States District Court, D. Oregon

January 16, 2018

DANIEL L. DE-JESUS, Petitioner,
v.
JEFF PREMO, et al., Respondents.

          Anthony D. Bornstein Assistant Federal Public Defender, Anthony D. Bornstein Assistant Federal Public Defender

          Ellen F. Rosenblum, Attorney General Kristen E. Boyd, Assistant Attorney General, 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 his state-court convictions for Robbery, Unlawful Delivery of Methamphetamine, and Unlawful Possession of Methamphetamine. For the reasons that follow, the Petition for Writ of Habeas Corpus (#2) is denied.

         BACKGROUND

         On February 27, 2007, Petitioner robbed Juan Calderilla-Duran of his wallet, cell phone, and six bags of methamphetamine. On March 8, 2007, police officers executed a search warrant at Petitioner's residence where they discovered Calderilla-Duran's cell phone in Petitioner's bedroom. In Petitioner's bedroom closet, police discovered a safe that, when opened, yielded a loaded handgun, fourteen small clear baggies containing methamphetamine, several empty clear baggies, and six larger baggies containing methamphetamine. As a result, the State charged Petitioner with two counts of Robbery in the Second Degree, one count of Robbery in the First Degree, one count of Failure to Appear in the First Degree, one count of Failure to Appear in the Second Degree, two counts of Delivery of Methamphetamine, and one count of Possession of Methamphetamine. Respondent's Exhibit 102.

         The trial court found Petitioner guilty on both counts of Failure to Appear, and a jury convicted Petitioner of the remaining charges. As a result, the trial court sentenced Petitioner to a sentence totaling 148 months in prison. Respondent's Exhibit 104, pp. 254-59.

         Petitioner took a direct appeal, but the Oregon Court of Appeals affirmed the trial court's decision without issuing a written opinion, and the Oregon Supreme Court denied review. Respondent's Exhibits 109, 111.

         Petitioner next filed for post-conviction relief ("PCR") in Umatilla County where he asserted, in part, that his trial attorney had been ineffective for failing to object to the trial court's jury instructions. The PCR court denied relief on all of Petitioner's claims. Respondent's Exhibit 152. The Oregon Court of Appeals affirmed that decision without opinion, and the Oregon Supreme Court denied review. Respondent's Exhibits 159, 160.

         On August 2, 2016, Petitioner filed this habeas corpus case in which he raises seven grounds for relief. Respondent asks the court to deny relief on the Petition because: (1) Petitioner failed to fairly present Ground Two to Oregon's state courts, leaving it procedurally defaulted; (2) the federal claims raised in Petitioner's remaining grounds for relief were denied in state court decisions that are neither contrary to, nor unreasonably applications of, clearly established federal law; and (3) all claims lack merit.

         DISCUSSION

         I. Standard of Review

         An application for a writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court decision is "contrary to . . . clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

         Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant relief "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. Id. at 410. Twenty-eight U.S.C. § 2254(d) "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents. It goes no farther." Harrington v. Richter, 562 U.S. 86, 102 (2011).

         Twenty-eight U.S.C. § 2254(d)(2) allows a petitioner to "challenge the substance of the state court's findings and attempt to show that those findings were not supported by substantial evidence in the state court record." Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). A federal habeas court cannot overturn a state court decision on factual grounds "unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). This is a "'daunting standard-one that will be satisfied in relatively few cases, ' especially because we must be 'particularly deferential to our state-court colleagues." Hernandez v. Holland, 750 F.3d 843, 857 (9th Cir. 2014) (quoting Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)).

         II. Unargued Claims

         As previously noted, Petitioner raises seven grounds for relief in this case. However, in his supporting memorandum, Petitioner chooses to support only Grounds Three and Four with briefing. Specifically, Petitioner argues that counsel should have objected to: (1) the issuance of a "natural and probable consequences" jury instruction pertaining to his Robbery charges (Ground Three); and (2) ...


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