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Turner v. State

United States District Court, D. Oregon

April 18, 2018

SHELLEY UPTAIN TURNER, Petitioner,
v.
STATE OF OREGON, et al., Respondents.

          FINDINGS AND RECOMMENDATION

          MARK D. CLARKE UNITED STATES MAGISTRATE JUDGE.

         Petitioner brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that her trial counsel rendered ineffective assistance. Respondent contends that several of petitioner's claims are procedurally barred and the remaining claims were denied in state court decisions that are entitled to deference. For the reasons explained below, I recommend that the petition be denied.

         BACKGROUND

         On January 5, 2007, petitioner was driving with her minor son on a two-lane road and collided with another vehicle. The driver of the other car was killed. Transcript of Proceedings (Tr). at 33-41 (ECF No. 28).[1] Petitioner was taken to the hospital after the accident, and a blood test indicated the presence of methamphetamine. Resp't Ex. 120 at 1-2. A methamphetamine pipe with residue also was found in petitioner's possession. Id.

         On the day of the accident, the Clackamas County Sheriffs Office seized the vehicles driven by petitioner and the decedent. Tr. at 15-16. Approximately one month later, law enforcement authorities released the vehicles to a tow yard; the vehicles were not claimed and subsequently were destroyed. Id.; Resp't Exs. 117 at 17-19, 118 at 6, 121 at 14.

         Several months later, in June 2007, petitioner was charged with Manslaughter in the Second Degree, Driving Under the Influence of Intoxicants, Recklessly Endangering Another Person, and Unlawful Possession of Methamphetamine. Resp't Ex. 102. The State alleged that petitioner was under the influence of methamphetamine and had crossed the center line of the road, causing the collision.

         Petitioner's counsel moved to dismiss the indictment on grounds that the State destroyed potentially exculpatory evidence by releasing the vehicles and allowing them to be destroyed. Resp't Ex. 115. Counsel cited no legal citation or authority and presented no evidence to support the motion to dismiss. Tr. at 11-17. Instead, counsel argued that his expert "did not have the opportunity to take the exact measurements of the vehicles, as the State had." Id. 12. He continued,

And the State had months and months to use that evidence as they saw fit. And then indicted [petitioner], and by the time I got appointed to represent her and got my expert, the evidence is gone. And I think it's extremely key, because our version of this accident is diametrically opposed to what the State's evidence is. And my expert really needed to see the cars to make his measurements and his assessments.
We have pictures, but pictures are not as good as actually having the items to look at. And I think it is a very key element to this case. And I would object to the State proceeding because of the destruction of evidence.

Id. 13-14. The court asked counsel what favorable evidence was lost, and counsel responded,

I think if we had an opportunity to physically examine the cars, we would have been able to make our own measurements and prove - or at least it's not my burden to prove how the accident happened, but it certainly would have assisted in my defense to disprove the State's claim as to how this accident happened.
They're claiming that it was a head-on collision, in the wrong lane; that Mr. Johnson was in his right lane and my client was in the wrong lane. And Mr. Johnson left 26 feet of skid marks, and my client's vehicle struck his and killed him. That's the manslaughter case. But we don't - we don't believe it happened that way. And it would have been extremely important for us to have been able to physically examine the cars, take measurements, as the State has done with Deputy Bailey and Deputy Zacher, and try to counter their assertions.

Id. 14-15. The trial court denied the motion, finding that Oregon law requires "more than speculation that there would have been favorable evidence" yielded from the vehicles. Id. at 17.

         Petitioner proceeded to trial before the court. The State called two expert witnesses who testified that the evidence showed that petitioner's car had crossed the center lane and into the lane of oncoming traffic. Tr. at 56-11 8, 165-205. The State also presented evidence and expert witness testimony to prove that petitioner was driving while under the influence of methamphetamine or while suffering from methamphetamine withdrawal. Id. at 290-97, 299-370. Petitioner called an expert witness, Wayne Slagle, who testified the evidence showed that the decedent - not petitioner - crossed the center line and caused the accident. Id. at 471 -516. Slagle's opinion rested, in large part, on one particular gouge mark in the road in petitioner's lane and his opinion that the mark was made by the decedent's vehicle. Id. at 487-89, 526-27.

         The court found petitioner guilty of Manslaughter in the Second Degree, Recklessly Endangering Another Person, and Unlawful Possession of Methamphetamine. Tr. 613-14. Specifically, the court found:

It's my opinion that Ms. Uptain was crashing as a result of having used methamphetamine, and had higher than therapeutic levels of methamphetamine in her system: that it was reckless for her to drive in that condition; that it caused her to fall asleep, and recklessly caused the death of Mr. Johnson.

Id. at 613. The court acquitted petitioner of Driving Under the Influence of Intoxicants, finding:

While I am convinced that Ms. Uptain"s mental and physical faculties were adversely affected, based upon Dr. Logan's testimony, the State hasn't provided sufficient evidence about the degree of that impairment; about whether those levels would have, in fact, caused the symptoms to be noticeable or perceptible to allow me to enter a finding beyond a reasonable doubt on the Count 2.

         Id. at 613-14. The trial court imposed a sentence of seventy-five months' imprisonment on the manslaughter conviction and concurrent, six-month sentences on the ...


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