United States District Court, D. Oregon
RANDY L. POPE, Petitioner,
STEVE FRANKE, Respondent.
MORO Attorney for Petitioner.
F. ROSENBLUM Attorney General KRISTIN E. BOYD Assistant
Attorney General Attorneys for Respondent
OPINION AND ORDER
J. BROWN, UNITED STATES SENIOR DISTRICT JUDGE.
an inmate at the Two Rivers Correctional Institution, brings
this habeas corpus action pursuant to 28 U.S.C. § 2254.
For the reasons that follow, the Court GRANTS IN PART and
DENIES IN PART the Second Amended Petition for Writ of Habeas
Corpus (ECF No. 34) .
January 31, 2005, a Lincoln County grand jury issued a
40-count indictment against Petitioner for a variety of
offenses. Resp. Exh. 102. The charges stemmed from
allegations that Petitioner, who was a manager at a motel,
habitually lured underage boys to his room and provided them
with drugs, often in "exchange" for sexual
activity. Resp. Exh. 103, pp. 37, 87, 132, 157, 1-98, 239,
262, 273, 295. Petitioner's room had video equipment and
many videotapes, and Petitioner filmed his encounters with
the underage boys; sometimes the boys were unconscious or
unaware Petitioner was filming them. Resp. Exh. 103, pp. 19,
23, 53, 103, 173, 192, 224-25.
32 and 33 of the Amended Indictment against Petitioner
alleged attempted compelling prostitution offenses related to
one of the victims:
COUNT 32: ATTEMPTED COMPELLING PROSTITUTION (ORS 167.017;
The said defendant, on or about September through December
2004, in the County of Lincoln and State of Oregon, did
unlawfully and intentionally attempt to induce [the victim],
a child under the age of 18 years, to engage in prostitution.
COUNT 33: ATTEMPTED COMPELLING PROSTITUTION (ORS 167.017;
161.404 F/C) -
As a separate act from any act alleged in Count 32 or any
other Counts herein, the said defendant, on or about
September through December 2004, in the County of Lincoln and
State of Oregon, did unlawfully and intentionally attempt to
induce [the victim], a child under the age of 18 years, to
engage in prostitution.
Exh. 102, p. 5.
waived his right to trial by jury, and a judge adjudicated
his case. Petitioner did not testify at trial. The victim
identified in Counts 32 and 33 testified that he worked for
cash on occasion at the hotel Petitioner managed. The victim
asked on two occasions to be paid for his work, and each time
Petitioner handed him a $100 bill, which was more money than
Petitioner owed the victim for his work. Each time,
Petitioner told the victim he could keep the extra money if
the victim would perform oral sex on Petitioner. Both times
the victim declined and handed the money back to Petitioner.
trial counsel moved for acquittal on eight counts, but did
not include Counts 32 and 33 in these motions. Counsel did,
however, argue that the state's proof was deficient on
these Counts because Petitioner's comment to the victim
was a joke, that Petitioner was not really trying to be a
"John, so to speak, and get this guy to, uh, prostitute
himself for him for money." Resp. Exh. 103, p. 248. The
trial judge found Petitioner guilty on Counts 32 and 33, as
well as other counts totalling 35 of the 40 charges. The
trial judge imposed a 30-month sentence on each of Counts 32
and 33 to run concurrently with each other and consecutive to
the sentence on Count 27. The trial judge sentenced
Petitioner to a total of 54 years of imprisonment. Petitioner
is presently scheduled to begin serving his sentence on
Counts 32 and 33 in approximately 2046.
filed a direct appeal, assigning error to three convictions
for Delivery of a Controlled Substance to a Minor. The Oregon
Court of Appeals affirmed without opinion, and the Oregon
Supreme Court denied review. State v. Pope, 215