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Pope v. Franke

United States District Court, D. Oregon

May 3, 2018

RANDY L. POPE, Petitioner,
v.
STEVE FRANKE, Respondent.

          TONIA MORO Attorney for Petitioner.

          ELLEN F. ROSENBLUM Attorney General KRISTIN E. BOYD Assistant Attorney General Attorneys for Respondent

          OPINION AND ORDER

          ANNA J. BROWN, UNITED STATES SENIOR DISTRICT JUDGE.

         Petitioner, 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) .

         BACKGROUND

         On 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.

         Counts 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; 161.405 F/C)-
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.

         Resp. Exh. 102, p. 5.

         Petitioner 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.

         Petitioner's 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.

         Petitioner 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 ...


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