United States District Court, D. Oregon
Kristina S. Hellman Assistant Federal Public Defender
Attorney for Petitioner
F. Rosenblum, Attorney General Nicholas M. Kallstrom,
Assistant Attorney General Department of Justice Attorneys
CORRECTED OPINION AND ORDER
Michael H. Simon United States District Judge
brings this habeas corpus case pursuant to 28 U.S.C. §
2254 challenging the legality of his state-court convictions
for Attempted Murder, Assault, and Unlawful Use of a Firearm.
For the following reasons, the Amended Petition for Writ of
Habeas Corpus (#27) is denied.
28, 2002, Petitioner visited the Quest nightclub in Portland
where he became involved in a dispute with Hollis McClure.
Bystanders separated the two men but, shortly thereafter,
Petitioner fired a handgun in McClure's direction.
Petitioner missed McClure, but struck Shontae Bell in the
stomach, Y'isha Rosbrough in the arm, and Michael Newman
in the leg. All three survived, and McClure and two other
witnesses to the event identified Petitioner as the shooter.
arrested Petitioner on August 11, 2002 and, eight days later,
the Multnomah County Grand Jury indicted him on four counts
of Attempted Murder, three counts of Assault in the Second
Degree, one count of Attempted Assault in the First Degree,
and eight counts of Unlawful Use of a Weapon with a Firearm.
Respondent's Exhibit 102. The trial court appointed
Richard Vogt to represent Petitioner.
began to construct a false alibi, prompting him to recruit
witnesses to provide perjured testimony. He contacted Quadree
Bradley, Jennifer Napolitano, and Brandon Jenkins to help him
establish a misleading version of events. Bradley and
Napolitano agreed to help him in this endeavor.
next proceeded to secure different lawyer. In November 2002,
he relieved Vogt of further representation, and hired Randy
Richardson for a flat fee of $20, 000. Represented by new
counsel, Petitioner's case proceeded to a settlement
conference on January 30, 2003 with Multnomah County Circuit
Court Judge Julie Frantz. During that settlement conference,
the prosecutor offered to settle the case if Petitioner would
plead guilty to various charges that resulted in a sentence
of 140 months, but the case did not settle.
proceeded to a jury trial where he claimed that he was not at
the Quest nightclub at the time of the shooting, and that the
State's eyewitnesses were mistaken in their respective
identifications. The defense called Bradley and Napolitano,
both of whom testified that Petitioner was at the Lush
nightclub at the time of the shooting at Quest and, contrary
to the State's evidence, Petitioner was wearing blue
jeans, a white shirt, a white visor, and white
became a turning point at trial, Napolitano testified that
she had seen a friend of hers, Samoyya Morrison, on the night
of the shooting outside the Quest nightclub, and spoken to
her for a period of 10-15 minutes. Napolitano denied having
regular contact with Morrison before that evening, and
further denied that she had spoken with Morrison since the
night of the shooting. The State called Morrison as a
rebuttal witness who testified that, contrary to
Napolitano's testimony, she had been with her boyfriend
at Moses Lake on the night of the shooting, nowhere near
Quest, and had never seen Napolitano outside of the club. She
also testified that she frequently spoke with Napolitano and
had last seen her less than three weeks before the trial.
jury found Petitioner guilty of all charges. Sentencing was
postponed, however, as the police investigated why
Napolitano's trial testimony was so contradictory to that
of Morrison. Napolitano told officers she wanted to talk with
Richardson, because he "told me to call him if anything
like this happened." Respondent's Exhibit 117, p. 2. She
ultimately admitted to police that her testimony was not
truthful. She claimed that after the shooting, Petitioner
called her from jail and sent her letters telling her what to
say, including a false description of clothing he was wearing
the night of the shooting. Richardson told Napolitano to
destroy the letters because they might incriminate
to Napolitano, she attended a meeting held by Richardson at
which Bradley and Petitioner's girlfriend, Rashida
Peterson, were present. Richardson went over the story they
were supposed to relate and showed them the clothes they were
to describe Petitioner as wearing on the night of the
shooting. Id. at 17-19. Napolitano later told
Richardson that she was hesitant to testify falsely on
Petitioner's behalf but was also fearful of retaliation
if she did not lie because Petitioner's family knew where
she lived. Richardson encouraged Napolitano to adhere to the
fabricated story and even began to see her socially,
resulting in a brief sexual relationship. When Napolitano
subsequently called Richardson to advise him that she did not
intend to testify falsely on Petitioner's behalf,
Richardson became agitated. He showed up at Napolitano's
apartment fifteen minutes later, and offered her money if she
would testify consistently with the story he and Lambert had
established. Napolitano accepted $300 from Richardson in
exchange for her false testimony.
to Napolitano, in the aftermath of her testimony, Richardson
had been particularly concerned about the portion of her
testimony involving Samoyya Morrison because she was not part
of the false alibi. Richardson instructed Napolitano to get
in touch with Morrison and advise her not to answer her door
so that the State would be unable to serve her with a
subpoena to compel her appearance at trial. Morrison
initially ignored authorities when they showed up at her home
and knocked on her door, but later answered the door and was
served with a subpoena. As noted above, Morrison appeared at
trial and cast significant doubt on Petitioner's alibi.
also interviewed Bradley after the trial, who also admitted
to providing false testimony provided to him by Petitioner in
the form of a letter sent through Rashida Peterson. Peterson
was able to confirm Bradley's statements.
also interviewed Brandon Jenkins, whose car had been hit by a
bullet during the shooting. He claimed Petitioner had sent a
letter to him, also by way of a third party, asking that he
identify someone else as the shooter. Jenkins did not do as
Petitioner asked, and instead kept the letter and provided it
to the authorities during the post-trial investigation.
appeared for sentencing on April 17, 2003, but the trial
judge informed the parties that sentencing would not take
place. Richardson was not present in the courtroom at the
beginning of the hearing because he was being served
elsewhere in the courthouse with search warrants for his
home, office, and person related to Petitioner's case. As
a result, the State moved to disqualify Richardson as counsel
because the new criminal investigation put Richardson and
Petitioner in the conflicted position of co-conspirators. The
prosecutor felt that Petitioner needed to be represented by
independent counsel, but Richardson disagreed. He advised the
trial court that Petitioner could waive any conflict that
might exist, and that it was Petitioner's option whether
to proceed with Richardson as counsel.
the State's objection, the trial court asked Petitioner
if he wished to have new counsel appointed to which
Petitioner replied, "No, I'm comfortable with Mr.
Richardson." CR 2 0-4, p. 241. The trial judge appointed
independent counsel to consult with Petitioner, but allowed
Richardson to remain as counsel of record until she could
more thoroughly study the applicable rules. Four days later,
however, the trial judge removed Richardson from the case and
ultimately appointed Lisa Ludwig to represent Petitioner at
December 12, 2003, the Multnomah County Grand Jury indicted
Richardson and Petitioner with various charges pertaining to
bribery, perjury, and witness tampering. While those charges
were pending, sentencing regarding the Attempted Murder took
place on April 4, 2005. The judge, when imposing sentence on
the charges arising from the shooting at Quest, expressly
stated that she would not consider Petitioner's
misconduct with respect to the falsified evidence. She did,
I find that the testimony and the exhibits regarding
defendant's role and conduct in soliciting false
testimony is reliable. This is clearly reprehensible behavior
that cannot be tolerated by the Court, but the justice
system, or by the public. It demeans our entire system. And
it shows incredible disrespect and arrogance, and perhaps
stupidity, as well, on the part of the defendant, and anyone
involved with him, in attempting to subvert justice.
Transcript (4/5/2005), p. 181. She then proceeded to sentence
Petitioner to a sentence totaling 250 months.
Ludwig filed a Motion for New Trial shortly after
Petitioner's sentencing, claiming that a new trial was in
order based upon: (1) "irregularity in the
proceedings," and (2) insufficiency of the evidence.
Ludwig argued that not only was Richardson's conduct
reprehensible, but he failed to convey the State's plea
offer to Petitioner such that he was the victim of
ineffective assistance of counsel. Respondent's Exhibit
166. The trial court did not rule on the Motion which was
deemed denied 55 days after its filing under Oregon's
procedural rules. See ORCP 64(F)(1).
2005, Petitioner entered a guilty plea to Conspiracy to Bribe
a Witness, Bribing a Witness, Criminal Conspiracy to Commit
Perjury, Solicitation to Commit Perjury, Perjury and
Tampering with Witnesses. As a result, the court sentenced
him to 22 months in prison, 18 of which it imposed
consecutively to the sentence stemming from the ...