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Powers v. Cain

United States District Court, D. Oregon

November 19, 2019

TRAVIS ANTHONY POWERS, Petitioner,
v.
BRAD CAIN, Superintendent, Snake River Correctional Institution, Respondent.

          OPINION AND ORDER

          KARIN J. IMMERGUT UNITED STATES DISTRICT JUDGE.

         Petitioner Travis Anthony Powers ("Powers"), an inmate at Snake River Correctional Institution, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons set forth below, this Court DENIES Powers' Second Amended Habeas Petition (ECF No. 44) as to grounds for relief one, two and four, and holds ground three in abeyance pending the U.S. Supreme Court's decision in Ramos v. Louisiana, Case No. 18-5924.

         BACKGROUND

         On November 30, 2009, a grand jury returned an indictment charging Powers with two counts each of Robbery in the First Degree, Felon in Possession of a Firearm, and Tampering with a Witness, and one count of Burglary in the First Degree. Resp't Exs. (ECF No. 27), Ex. 102.[1] The charges arose out of a burglary committed at the home of Kami Clawson and Jessica Birchfield. Id.

         At trial, Clawson testified that on the evening of August 27, 2009, she encountered a man in the stairwell of her apartment. Resp't Ex. 106 at 125. She assumed that the man was there to visit Birchfield and allowed him to enter the apartment. Id. at 126. Once inside the apartment, the man covered his face with a bandana, brandished a gun, and demanded money. Id. at 108-09, 112, 128-32, 151-53. Ultimately, both women managed to escape and call the police. Id. at 110, 115, 132-33. Clawson testified that when she returned home the next day, she discovered that her bedroom had been ransacked. Id. at 133, 135.

         Clawson testified that she saw the robber's face in the stairwell and when he brandished the gun. Id. at 138-39, 150. However, neither woman was able to pick Powers' photograph out of a photo throwdown. Id. at 116-17, 119, 136, 140. Clawson and Birchfield provided consistent descriptions of the robber to the police: a white male, slender, blonde hair, approximately 5'6" to 5'8", early to mid-twenties, resembling the rapper Eminem. Id. at 108, 112, 118-19, 122-23, 137-38, 141-43, Resp't Ex. 107 at 35-36. Birchfield was unable to make an in-court identification of Powers, but Clawson identified Powers as the man who committed the robbery. Resp't Ex. 106 at 114, 138-39. Birchfield testified that the intruder was wearing latex gloves. Id. at 112. The prosecution presented DNA evidence obtained from two fingertips of latex gloves found in Clawson's bedroom. Resp't Ex. 107 at 31, 38, 64. Terry Coons, a forensic scientist for the Portland Metro Crime Lab, testified that the DNA found in the gloves matched Powers' DNA. Mat 68, 74-75.

         Brian Ward, a friend of Powers, testified that Powers asked him to offer money and marijuana to the victims to convince them not to testify. Id. at 17-18, 43-50. Ward also testified that he loaned Powers a gun that matched the description of the gun used in the robbery and was later found in Powers' car. Id. at 14-16. Brenda Davis, Powers' former girlfriend, testified that Powers asked her to testify that he was with her on the night of the robbery. Resp't Ex. 106 at 96-98, Resp't Ex. 107 at 52-57. She also testified that Powers often wore latex gloves when working on cars. Resp't Ex. 106 at 103-04.

         The defense pursued the theory that Clawson misidentified Powers and that someone else committed the robbery and planted Powers' latex gloves at the scene. See Resp't Ex. 106 at 104-05, Resp't Ex. 107 at 58-59, 93, 148-54. In this regard, Powers' sister testified that one of her friends may have stolen Powers' backpack from her home that may have contained Powers' latex gloves. Resp't Ex. 107 at 96-99, 106-08. At the conclusion of the trial, defense counsel sought a continuance to contact a jail inmate who allegedly admitted stealing Powers' backpack. Id. at 118-19. Defense counsel surmised that the man's testimony might support the theory that someone stole the latex gloves containing Powers' DNA and planted them at the crime scene. Id. at 119-22. The trial judge denied the motion for continuance because there was insufficient evidence to warrant a delay of the trial. Id. at 126-28.

         During closing arguments, defense counsel argued that Powers is the "victim of another felon ... [or] a ne'er-do-well at his sister's house taking his possessions and committing a crime." Id. at 147. In rebuttal, the prosecutor challenged the defense theory because it required the jury to believe that the person who stole Powers' gloves coincidentally fit the victims' physical description of the robber. Id. at 161-62. The prosecutor argued that such an assertion was "insulting to the victims." Id. at 162. The trial judge overruled defense counsel's objection to the comment as follows:

[THE STATE]: How incredibly unfortunate for the defendant that the same person who happened to steal his gloves to use, [that] had only the defendant's DNA in them, happened to look exactly like the defendant. Incredible.
It is insulting to the victims in this case--
[THE DEFENSE]: Objection.
[THE STATE]: - to come in here -
THE COURT: Overruled.
[THE STATE]: - and say that Kami Clawson is not credible. It is insulting to call the defendant a victim. He might be a lot of things. He's not a victim ...

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