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Ortiz-Contreras v. Nooth

United States District Court, D. Oregon

May 10, 2018

JOSE ROSENDO ORTIZ-CONTRERAS, Petitioner,
v.
MARK NOOTH, Superintendent, Snake River Correctional Institution, Respondent.

          MARK AHLEMEYER ASSISTANT FEDERAL PUBLIC DEFENDER ATTORNEY FOR PETITIONER

          ELLEN F. ROSENBLUM ATTORNEY GENERAL SAMUEL A. KUBERNICK ASSISTANT ATTORNEY GENERAL DEPARTMENT OF JUSTICE ATTORNEYS FOR RESPONDENT

          OPINION AND ORDER

          ANNA J. BROWN UNITED STATES DISTRICT JUDGE

         Petitioner, an inmate at the Snake River Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Court DENIES the Amended Petition for Writ of Habeas Corpus (ECF No. 24).

         BACKGROUND

         On or about August 31, 1996, Petitioner, along with his brother, Marcos Ortiz-Contreras, and his cousin, Rey Saul Coto-Hernandez (known as "Saul"), killed Hermilo Zapo-Coto by strangling him and throwing him into the Willamette River near the town of Newberg. On September 8, 1996, Petitioner and Saul flew to Mexico. Petitioner's brother, Marcos, left for Mexico sometime after Petitioner and Saul.

         On September 9, 1996, Zapo-Coto's body was found in the Willamette River. Cloth material, like that from a t-shirt, was found around his neck and binding his wrists and legs. In addition, a red rope was around his neck, and it appeared to be tied to a sack containing rocks, presumably to weigh the body down in the river. The medical examiner determined the cause of Zapo-Coto ' s death to be asphyxia, though he was unable to determine whether the victim died due to strangulation or due to drowning in the river. A non-lethal laceration was also found on the victim's head.

         Efforts to bring Petitioner, Marco, and Saul back to the United States from Mexico for prosecution were unsuccessful. In 2007, however, Petitioner returned to the Newberg area using a different name, "Rosendo Oliveras."[1] In November 2007, police officers located Petitioner at his new work place and arrested him.

         On December 20, 2007, a Yamhill County grand jury indicted Petitioner on charges of Murder and Conspiracy to Commit Murder.[2]The prosecution's theory of the murder was that Petitioner aided and abetted his brother, Marcos, and cousin, Saul, in the murder of Zapo-Coto. As to the charge of conspiracy to commit murder, the prosecution's theory was that Petitioner made an agreement with one or more of the other actors (Marcos and/or Saul) to kill the victim.

         On May 27, 2008, Petitioner's trial commenced. The prosecutor made clear that the State was not arguing that Petitioner had personally murdered the victim. Instead, the prosecutor contended Petitioner was an accomplice or an aider and abettor in causing his death.

         To support the Conspiracy to Commit Murder charge, the prosecution relied solely upon the testimony of the owner of a Mexican restaurant in Newberg. On direct examination, she testified that in late August 1996 she overheard Petitioner and unnamed others in a conversation about some money and discussion that they were going to kill someone and throw him in a river. Upon further examination, however, the witness's testimony was not so straightforward. She testified that Petitioner may have been in her restaurant three times, and that she overheard his conversation on two of those occasions. The conversations occurred on separate days a short time apart, but the witness could not say whether they occurred in June, July, or August of 1996. The witness testified that one conversation was between Petitioner and two other men, and concerned plans to take a man to a tavern to get him drunk and steal his money. The other conversation, she testified, was between Petitioner and one other man (who had also been a party to the first conversation) and involved discussion of throwing a man in the river.

         The prosecutor also presented evidence that upon his arrest Petitioner confessed to being at the scene when Saul killed the victim. Petitioner told the officers that he was very intoxicated the night of the murder, and he could not remember all of the details. Petitioner admitted that he brought Saul a red rope from the trunk of the car when Saul yelled at him to do so. Petitioner also told the officers that he believed the victim was already dead by the time he brought the rope to Saul.

         Petitioner testified in his own defense at his trial. The substance of his testimony mirrored his statement to police. Petitioner stated that the day of the murder he drove with his brother from Washington to a residence in Newberg which where Saul, Zapo-Coto, and others lived. Petitioner was unaware of any disagreement between Saul and Zapo-Coto at first, but over dinner at a restaurant Saul told Petitioner and his brother about a dispute over money involving Saul, Zapo-Coto, and another of their roommates. Petitioner denied that Saul asked him to help Saul kill the victim. After dinner, the group returned to Saul's apartment and everyone was drinking heavily there.

         At some point that evening, Saul told Zapo-Coto they were going to a party and invited him to join Saul, Marcos, and Petitioner. Petitioner testified that Marcos drove the car to a remote area and parked near a river. Saul, Marcos, and Zapo-Coto exited the car. Petitioner, who was intoxicated, initially remained in the car. Petitioner testified he heard the sound of someone being struck and heard Zapo-Coto cry out. A short time later, Saul yelled to Petitioner to bring a rope from the trunk of the car, and Petitioner complied. He brought the rope to Saul and Marcos, who were at the riverside next to Zapo-Coto's lifeless form. Petitioner thought the victim was dead because he saw Saul kick the body and the victim did not move. Petitioner denied taking any role in tying the rope to the victim or throwing Zapo-Coto in the river.

         The trial judge instructed the jury that to find Petitioner guilty of Murder, the prosecution was required to prove beyond a reasonable doubt that: (1) the act occurred in Yamhill County; (2) the act occurred on or about August 31, 1996; and (3) that Petitioner intentionally caused the death of another human being. As to Petitioner's liability under an aiding and abetting theory, the trial judge instructed the jury that a person aides or abets another person in the commission of a crime, if the person, with the intent to promote or make easier the commission of the crime, encourages, procures, advises, or assists by act or advice, the planning or commission of the crime. On the Conspiracy to Commit Murder count, the trial judge instructed the jury that the prosecutor was required to prove five elements: (1) the conspiracy occurred in Yamhill County; (2) the conspiracy occurred on or about August 31, 1996; (3) Petitioner, with the intent to commit the crime of murder; (4) agreed with another person to commit the crime of murder; and (5) a person commits the crime of murder by intentionally causing the death of another human being.

         The jury found Petitioner not guilty of the charge of Conspiracy to Commit Murder, but the jury was unable to reach a verdict on the Murder charge. The vote on the Murder charge was 11-0 in favor of guilt, and the jury foreperson informed the trial judge it was unlikely the jury would be able to reach a verdict with additional deliberation. Accordingly, the trial court declared a mistrial on that basis. The prosecutor indicated the State intended to re-try Petitioner on the Murder charge.

         In August 2008, a second trial was held on the Murder charge. This time, while the prosecutor again argued that Petitioner aided and abetted one or more of the others in murdering the victim, the prosecutor did not argue there was a "conspiracy" or specific agreement to commit the murder. In support of the charge of Murder, the prosecution relied upon the same core evidence and testimony as in the ...


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