United States District Court, D. Oregon
J. Hester, Assistant Federal Public Defender, Attorney for
F. Rosenblum, Attorney General; Samuel A. Kubernick,
Assistant Attorney General, Department of Justice, Attorneys
OPINION AND ORDER
J. Immergut United States District Judge
August 16, 2019, Magistrate Judge John Jelderks issued his
Findings and Recommendation (F&R) in this case. ECF 51.
Magistate Judge Jelderks recommended Petitioner’s
Amended Petition for Writ of Habeas Corpus, ECF 2, be denied,
that this Court enter a judgment dismissing the case with
prejudice, and that no Certificate of Appealability be
issued. Petitioner timely filed Objections to the F&R,
ECF 53, and Respondent filed a Response to Objections, ECF
the Federal Magistrates Act (“Act”), as amended,
the court may “accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1). If a
party files objections to a magistrate judge’s F&R,
“the court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.”
Id. But the court is not required to review, de novo
or under any other standard, the factual or legal conclusions
of the F&R to which no objections are addressed.
See Thomas v. Arn, 474 U.S. 140,
149–50 (1985); United States v. Reyna-Tapia,
328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Nevertheless,
the Act “does not preclude further review by the
district judge, sua sponte” whether de novo or under
another standard. Thomas, 474 U.S. at 154.
petition for writ of habeas corpus shall not be granted
unless the adjudication of the claim in the state court
proceeding “resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly
established Federal law” or “resulted in a
decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d). Factual
determinations made by a state court are presumed to be
correct. Id. at § 2254(e)(1). The petitioner
bears the burden of rebutting that presumption by clear and
convincing evidence. Id. When reviewing the
sufficiency of evidence for a habeas corpus claim,
“[t]he relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319
raises objections to the following three determinations made
by Magistrate Judge Jelderks’s F&R: (1) the
evidence at trial was sufficient to establish that Petitioner
committed Robbery in the First Degree, in violation of O.R.S.
§ 164.415; (2) a motion to sever the charges in the
first two indictments would have been futile; and (3) the
Court should decline to issue a Certificate of Appealability.
As set forth below, this Court agrees with Judge
Jelderks’s conclusions and ADOPTS the F&R.
argues that Magistrate Judge Jelderks erred in finding that
the evidence in the record was sufficient to support a
rational trier of fact in finding that Petitioner committed
the essential elements of Robbery in the First Degree. This
Court agrees with Judge Jelderks’s conclusion that,
when viewed in the light most favorable to the prosecution, a
rational trier of fact could find that Petitioner stole
sunglasses from the safe at a restaurant, Putters, and used a
threat of physical force to leave with the property, thereby
satisfying the essential elements of Robbery in the First
Degree. The state offered testimony from the business owner,
Eric Gilbert, and video surveillance footage to support this
finding. Gilbert testified that he discovered Petitioner
peering into the open safe where the business stored lost and
found items. ECF 20 at 246. Gilbert then stated that he
observed Petitioner holding sunglasses that were likely taken
from the safe. Id. Finally, Gilbert testified that
Petitioner threatened to use a weapon against him before
leaving with the sunglasses. Id. at 246–49.
The state also presented surveillance footage that showed
Petitioner enter through the back door of the business and
walk directly to the safe. Id. at 238. The Court
agrees with Judge Jelderks’s conclusion that the state
presented sufficient evidence that Petitioner stole
sunglasses from the safe and used a threat of physical force
to leave with the property. Accordingly, the state
court’s decision did not demonstrate an unreasonable
determination of the facts presented at trial. See28
U.S.C. § 2254(d). Petitioner failed to provide clear and
convincing evidence contrary to this determination.
Id. at § 2254(e)(1).
further argues that the trial judge erred because the facts
of his case do not constitute robbery under Oregon law.
See ECF 53 at 3–4; O.R.S. § 164.395;
O.R.S. § 164.415. Petitioner compares his case to
State v. Jackson, which held that a defendant has
not committed the crime of robbery when he uses force after
an abandoned attempt to commit theft. 596 P.2d 600, 602 (Or.
Ct. App. 1979). In that case, the Oregon Court of Appeals
reversed a robbery conviction after finding that the use of
force occurred after the termination of an attempted theft,
and “there were no fruits of the theft for defendant to
use force to retain.” Id. Thus, the force was
not used “in the course of committing or attempting to
commit theft, ” as required under O.R.S. 164.395.
Id. Unlike the defendant in State v.
Jackson, however, the trial court found that Petitioner
used force to leave with stolen property, namely the
sunglasses from the safe. This Court finds that State v.
Jackson is distinguishable and agrees with the
conclusion in the F&R that the trial judge’s
findings satisfied due process. See Johnson v.
Montgomery, 899 F.3d 1052, 1059 n.1 (9th Cir. 2018).
second objection concerns his allegation of ineffective
assistance of counsel. Petitioner asserts that trial
counsel’s representation fell below the standard of
objective reasonableness because he failed to file a motion
for severance or object to the consolidation of the charges.
See ECF 53 at 8–9. Strickland v.
Washington, 466 U.S. 668, 688 (1984) (holding that
defendant bears the burden of showing that
“counsel’s representation fell below an objective
standard of reasonableness”). Specifically, Petitioner
objects to Judge Jelderks’s conclusions that a motion
to sever the claims would have been futile and the defense
suffered no resulting prejudice. See ECF 53 at
8–9. The F&R recommends that the Court deny the
Petition for Writ of Habeas Corpus because the
post-conviction relief (“PCR”) court found that
the representation was reasonable and Petitioner failed to
establish that he suffered prejudice from the error of his
attorney. See ECF 51 at 14–15.
reviewing claims for ineffective assistance of counsel,
federal courts are to provide a “doubly
deferential” review of state court decisions. Woods
v. Etherton, 136 S.Ct. 1149, 1151 (2016). Federal courts
are not to “reexamine state-court determinations on
state-law questions” but limit review to determining
“whether a conviction violated the Constitution, laws,
or treaties of the United States.” Estelle v.
McGuire, 502 U.S. 62, 67–68 (1991). The PCR court
found that the charges were “properly joined and
triable in one case.” ECF 19 at 50. The PCR court also
doubted that a motion for severance would have been granted
given the commonality of the charges. Id. The
F&R properly applied the deferential standards required
when a federal court examines a state court’s ruling on
ineffective assistance of counsel. Petitioner has not shown
that his counsel’s failure to sever the claims fell
below an objective standard of reasonableness. Nor has
Petitioner shown that the state court’s determination
involved an unreasonable application of clearly established
Federal law. See28 U.S.C. § 2254(d).
Petitioner objects to the recommendation that the Court deny
a Certificate of Appealability (“COA”). 28 U.S.C.
§ 2253(c) “permits the issuance of a COA only
where a petitioner has made a ‘substantial showing of
the denial of a constitutional right.’”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). The
Court agrees with the ...