United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
D. CLARKE UNITED STATES MAGISTRATE JUDGE.
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.
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). 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.
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
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.
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
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.
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.
court found petitioner guilty of Manslaughter in the Second
Degree, Recklessly Endangering Another Person, and Unlawful
Possession of Methamphetamine. Tr. 613-14. Specifically, the
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
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.
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 ...