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Ramsey v. Premo

United States District Court, D. Oregon

October 18, 2018

JEFF PREMO, Superintendent, Oregon State Penitentiary, Respondent.


          Michael J. McShane United States District Judge

         Petitioner 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.


         In 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 burglary counts.

State v. Ramsey, 184 Or.App. 468, 470, 56 P.3d 484 (2002) (Ramsey I); Resp't Ex. 106.

         On 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.

         On 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.

         Petitioner 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.

         The 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 explained:

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 Mayes' robbery.

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.

         However, 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 Levier.

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.

         On 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.

         In 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 1167 (2014).

         On 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.


         In his 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).

         Respondent 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.

         A. Grounds One and Two: Counsel's Failure To Obtain Mayes's Grand Jury Testimony and Failure To Elicit Testimony Regarding Levier

         In his 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.

         A 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 facts'”).

         Under 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.

         1. Mayes's Testimony

         The 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.

         During 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 you?
A: Yeah, he stood over and he shot.
Q: But did you tell the police officer-- A: Yes, I told the officers.
Q: You told them that. Okay. And did you tell the detectives that, too?
A: Yes.
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.

         Subsequently, 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, correct?
A: No, he didn't tell me that.
Q: Okay. So Mr. Mayes had three separate conversations with the police….
A: Yes.
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.

         To 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 rebuttal witnesses:

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 audience.
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 case.
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 ...

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