United States District Court, D. Oregon
OPINION AND ORDER
Michael J. McShane United States District Judge
filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, alleging that his counsel rendered
ineffective assistance during trial. Respondent argues that
petitioner's claims were either denied in a state court
decision entitled to deference or procedurally defaulted and
barred from federal review. For the reasons explained below,
the petition is denied.
1997, petitioner was charged with six counts of Aggravated
Murder, three counts of Robbery in the First Degree, three
counts of Burglary in the First Degree, and one count of
Felon in Possession of a Firearm. Resp't Ex. 102. The
charges against petitioner “arose out of a single
incident in an after-hours gambling club, ” as
recounted by the Oregon Court of Appeals:
Defendant was playing a version of craps known as
“four, five, six” with Antoine Levier and James
Mayes. Defendant decided that Mayes was cheating and,
depending on whom the jury believed, either used a gun to
recover “what was rightfully [his]” from Mayes or
sought to rob both Mayes and Levier. While defendant was
either attempting to recover his money from Mayes or seeking
to rob Mayes and Levier, the owner of the club, James
Robinson, came up behind defendant with a shotgun. In the
ensuing fight, defendant shot and killed Robinson.
The state charged defendant with robbery, burglary,
aggravated murder, and being a felon in possession of a
firearm. Each of the three counts of first-degree robbery
involved a different victim - Robinson, Mayes, and Levier.
The three counts of first-degree burglary charged that
defendant unlawfully remained in one of two locations with
the intent to commit theft. Three of the six aggravated
murder counts were based on a murder committed during the
course of a robbery, and each count involved a different
robbery victim. The three remaining aggravated murder charges
alleged that defendant committed a murder during the course
of a burglary and presumably corresponded with the three
State v. Ramsey, 184 Or.App. 468, 470, 56 P.3d 484
(2002) (Ramsey I); Resp't Ex. 106.
December 14, 1999, after trial by jury, petitioner was
convicted of all charges. Tr. Vol. 16 at 13-15; Resp't
Ex. 146. The State sought the death penalty.
January 11, 2000, after a sentencing trial, the jury found
that petitioner should serve life in prison without the
possibility of parole. Tr. Vol. 23 at 4-5. The trial court
merged the six robbery and burglary convictions into the six
related aggravated murder convictions and imposed concurrent
life sentences without the possibility of parole; the court
also imposed an 18-month concurrent sentence on the
felon-in-possession conviction. Tr. Vol. 23 at 13-14; see
also Ramsey I, 184 Or.App. 470-71, 56 P.3d 484.
appealed and asserted that the trial court committed
reversible error by failing to instruct the jury on a
“claim-of-right” defense - that “using
self-help to recover specific personal property is not
robbery if the person has an honest claim of right to possess
the property.” Ramsey I, 184 Or.App. at 472,
56 P.3d 484. Petitioner argued that he had a “claim of
right” to the money Mayes had stolen from him by
cheating. Resp't Ex. 103 at 19-20, 39-40.
Oregon Court of Appeals agreed, in part, and found that the
trial court's failure to give a claim-of-right
instruction constituted reversible error with respect to the
burglary charges and the robbery and murder charges
associated with Mayes and Robinson. Ramsey I, 184
Or.App. at 475-77, 56 P.3d 484. The Court of Appeals
We begin with the robbery charge concerning Mayes.
…According to defendant, he sought only to retrieve
his own money from Mayes. Although other witnesses
contradicted defendant's testimony and said that
defendant also wanted to take money from Levier,
defendant's testimony meets the “any
evidence” standard …. If the jury found
defendant's testimony credible, it could infer that he
had a claim of right to the specific property that he was
attempting to recover from Mayes when the shooting occurred.
Defendant was also entitled to a claim-of-right instruction
concerning Robinson. There was evidence that Mayes owed
Robinson, the owner of the club, a percentage of the money
that he won at the dice table, and that evidence was the
apparent basis for the state's claim that defendant had
robbed Robinson. If the jury found that defendant was not
robbing Mayes but merely seeking to recover his own property,
it could also find that he was not robbing Robinson.
Robinson's robbery was, or could be, derivative of
Id. at 473-74, 56 P.3d 484. Further, the Court of
Appeals could not determine on which “intent to commit
theft” the jury had based its burglary verdicts and
reversed petitioner's convictions on these charges as
well. Id. at 476.
the Court of Appeals found that petitioner was not entitled
to a claim-of-right instruction with respect to the robbery
and murder charges associated with Levier:
[Defendant] did not establish any basis for that defense as
to Levier. At trial, defendant did not testify that he
believed that Levier had cheated him. Similarly, no other
witness said that Levier had cheated defendant. Although
Levier won a substantial amount of money at the same table as
Mayes and at the same time that defendant asserts Mayes was
cheating him, there is no evidence that Mayes was conspiring
with Levier. At most, one witness referred to an argument at
the gambling table that may have involved Levier, but nothing
in the record, including defendant's testimony,
implicates Levier in cheating defendant. Because there was no
evidence that Levier had wrongfully taken any money from
defendant, defendant had no basis for asserting a
claim-of-right defense to the charge that he had robbed
Id. at 474-75, 56 P.3d 484. The Court of Appeals
remanded the case to the trial court for a new sentencing
trial on the affirmed convictions. Id.
remand, the State did not retry petitioner on the reversed
convictions and did not seek the death penalty at
resentencing. After a second sentencing trial, a jury again
found that petitioner should serve life in prison without the
possibility of parole. Tr. on Appeal at 2922.
2008, petitioner sought post-conviction relief (PCR) in state
court. In his fourth amended PCR petition, petitioner
asserted that trial counsel was ineffective by failing to
obtain grand juror notes of Mayes's testimony and by
failing to present evidence that petitioner believed he had
claim of right to Levier's money. Resp't Ex. 124, Ex.
125 at 15-16, 18. The PCR court denied petitioner's
claims, the Oregon Court of Appeals affirmed without opinion,
and the Oregon Supreme Court denied review. Resp't Exs.
156, 163-64; Ramsey v. Premo, 259 Or.App. 206, 315
P.3d 447 (2013), rev. denied, 355 Or. 317, 327 P.3d
September 23, 2014, petitioner filed a pro se petition for
writ of habeas corpus under 28 U.S.C. § 2254. This Court
subsequently appointed counsel, and on November 17, 2017,
after several extensions and other procedural rulings,
petitioner filed an Amended Petition.
Amended Petition, petitioner alleges that his trial counsel
rendered ineffective assistance by: 1) failing to
“obtain records relating to James Mayes's testimony
before the grand jury”; 2) failing to “present
evidence that Mr. Ramsey believed that Antoine Levier had
cheated him out of money, because that evidence would have
provided a basis for a jury instruction on an honest claim of
right defense; and 3) failing to “cross-examine David
Knight, or call him to testify as a defense witness, on his
knowledge that Mr. Ramsey believed Antoine Levier, along with
James Mayes, was cheating Mr. Ramsey out of money.” Am.
Pet. at 4 (ECF No. 91).
maintains that the PCR court rejected petitioner's first
two grounds for relief in a decision that is entitled to
deference by this Court. Respondent further argues that
petitioner's third ground is a reiteration of his second
ground and likewise was rejected by the PCR court.
Alternatively, if this Court considers petitioner's third
ground as a “new” claim, respondent argues that
it is procedurally defaulted and barred from federal review.
Grounds One and Two: Counsel's Failure To Obtain
Mayes's Grand Jury Testimony and Failure To Elicit
Testimony Regarding Levier
PCR proceeding, petitioner alleged that trial counsel was
ineffective by failing to obtain grand jury notes relating to
Mayes's testimony and by failing to elicit testimony from
petitioner regarding his belief that Levier was cheating.
Resp't Exs. 124, 160, 162. Respondent maintains that the
PCR's court's rejection of these claims was
reasonable and entitled to deference. I agree.
federal court may not grant a habeas petition regarding any
claim “adjudicated on the merits” in state court,
unless the state court ruling “was contrary to, or
involved an unreasonable application of, clearly established
Federal law.” 28 U.S.C. § 2254(d)(1). A state
court decision is “contrary to” established
federal law if it fails to apply the correct Supreme Court
authority, or if it reaches a different result in a case with
facts “materially indistinguishable” from
relevant Supreme Court precedent. Brown v. Payton,
544 U.S. 133, 141 (2005); Williams v. Taylor, 529
U.S. 362, 405-06 (2000). A state court decision is an
“unreasonable application” of clearly established
federal law if the state court identifies the correct legal
principle but applies it in an “objectively
unreasonable manner.” Woodford v. Visciotti,
537 U.S. 19, 24-25 (2002) (per curiam); Williams,
529 U.S. at 407-08, 413; see also Early v. Packer,
537 U.S. 3, 11 (2002) (per curiam) (state court decisions
that are not “contrary to” clearly established
Supreme Court law may be set aside only “if they are
not merely erroneous, but ‘an unreasonable
application' of clearly established federal law, or based
on ‘an unreasonable determination of the
well-established Supreme Court precedent, a habeas petitioner
alleging ineffective assistance of counsel must show that 1)
“counsel's performance was deficient, ” and
2) counsel's “deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S.
668, 687 (1984). To establish deficient performance, a
petitioner “must show that counsel's
representations fell below an objective standard of
reasonableness.” Id. at 688. To demonstrate
prejudice, a petitioner “must show that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. Unless a
petitioner “makes both showings, it cannot be said that
the conviction...resulted from a breakdown in the adversary
process that renders the result unreliable.”
Id. at 687.
State called Mayes as a witness during its case in chief. On
direct examination, Mayes testified that he saw the shooter
fire two shots at Robinson, who fell to the right as the
shooter moved to the left. Tr. Vol. 6 at 56-57. Mayes
testified that he then saw the shooter come from behind a
furnace and stand over Robinson, firing several more shots at
Robinson as he lay motionless on the floor. Tr. Vol. 6 at 60
(testifying that the shooter “came out and he just
boom, boom, boom”). In Mayes's prior statements to
police, he stated that the shooter turned and fired at
Robinson several times, either at once or in two quick
bursts, then stepped over Robinson and ran out the back door.
her cross-examination, petitioner's counsel asked Mayes
whether he had ever told law enforcement officers that he saw
the shooter stand over Robinson and shoot him.
Q: Okay. You never told the detectives or you never told the
police officer… that you talked to at the scene, you
never told him anything about the young man standing over Mr.
Robinson and shooting him? You didn't tell him that, did
A: Yeah, he stood over and he shot.
Q: But did you tell the police officer-- A: Yes, I told the
Q: You told them that. Okay. And did you tell the detectives
Q: Okay. So you think you told the detectives that he stood
over him and shot him?
A: No think to it. I told him he stood over and shot him.
Tr. Vol. 6 at 84.
petitioner's counsel elicited testimony from a detective
indicating that Mayes's trial testimony was inconsistent
with his prior statements to the police. Tr. Vol. 8 at
183-88. Specifically, Detective Svilar, who interviewed Mayes
shortly after the shooting, testified that Mayes never
mentioned to any police officer that the shooter stood over
Robinson and shot him several times.
Q: And never once did [Mayes] tell you that the shooter stood
over Mr. Robinson and fired boom, boom, boom into his body,
A: No, he didn't tell me that.
Q: Okay. So Mr. Mayes had three separate conversations with
Q: Yes. All right. And none of those times did he ever tell
the police that the shooter stood over the body of Mr.
Robinson and fired directly into Mr. Robinson's body?
A: He didn't tell me that.
Tr. Vol. 8 at 186-88.
rehabilitate Mayes, the State called two members of the grand
jury who testified that Mayes's trial testimony was
consistent with his grand jury testimony given two years
earlier. Tr. Vol. 9 at 12-20. Petitioner's counsel
strenuously objected to the State's introduction of grand
juror testimony to rehabilitate a witness, and the trial
court overruled her objections. Tr. Vol. 8 at 197-206; Tr.
Vol. 9 at 3-9. During closing argument, petitioner's
counsel addressed Mayes's testimony and that of the
One grand juror came in and told you that Mr. Mayes said
four, maybe five shots over the body of Mr. Robinson. Another
grand juror came in and… testified, “Shot in the
head and neck, two, three, four times; once in the face, once
in the neck, once in the chest.”
Ladies and gentlemen, all that shows those grand jurors
coming in is that Mr. Mayes doesn't have any problem
lying under oath. He will say what he wants to suit his
Now, Mr. Mayes tells you about that boom, boom, boom. You
also know that he is lying because he never once told the
police about this aspect that he says now happened in this
He was interviewed at the scene by a uniform police
officer....He was then at the scene with Detective Svilar who
went back into the after-hours...with Mr. Mayes so Mr. Mayes
could show him what happened....Never once did Mayes tell
Detective Svilar that the shooter stood over the body and
fired directly into the body of Phillip Robinson. Mr. Mayes
then had an opportunity to talk with Detective Svilar later
that day....And not once did he mention the shooter standing
over the body of Phillip Robinson.
And then a few days later, Mr. Mayes had an opportunity again
to talk with detectives and again he didn't mention that.
And use your common sense, think about that. That would be
such a horrible thing to see. It would be the first thing out
of a person's mouth, particularly at the scene where Mr.
Mayes had the opportunity to walk through with Detective