United States District Court, D. Oregon
OPINION AND ORDER
J. IMMERGUT UNITED STATES DISTRICT JUDGE.
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.
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. The charges arose
out of a burglary committed at the home of Kami Clawson and
Jessica Birchfield. Id.
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.
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,
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.
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.
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
[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 ...