United States District Court, D. Oregon
DANIEL L. DE-JESUS, Petitioner,
JEFF PREMO, et al., Respondents.
Anthony D. Bornstein Assistant Federal Public Defender,
Anthony D. Bornstein Assistant Federal Public Defender
F. Rosenblum, Attorney General Kristen E. Boyd, Assistant
Attorney General, Attorneys for Respondent
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 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
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.
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.
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.
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.
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.
Standard of Review
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,
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).
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)).
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) ...