Opinion
2:20-cv-01772-JR
10-12-2023
BRETT A. SINKEVITCH, Petitioner, v. BRAD CAIN, Superintendent, Snake River Correctional Institution, Respondent.
FINDINGS AND RECOMMENDATION
JOLIE A. RUSSO, UNITED STATES MAGISTRATE JUDGE
Plaintiff, an adult in custody at the Snake River Correctional Institution, brings this 28 U.S.C. § 2254 habeas corpus action challenging his 2013 convictions on charges of coercion and various assault offenses. For the reasons that follow, the First Amended Petition for Writ of Habeas Corpus should be DENIED.
BACKGROUND
I. Summary of the Facts
Petitioner's convictions stem from repeated assaults against Kurtis Daniel (“Daniel”), Daniel's fiancee Julianne Nephi, and Nephi's four-year-old son, SA. Petitioner and his girlfriend, Suzin Evans (“Evans”) met Daniel, Nephi, and SA in June 2013, when Daniel and Nephi bought a camp trailer from petitioner. Transcript (“Tr.”), ECF No. 25, 73-75. The camp trailer was parked behind a Walmart in Eugene, and Daniel, Nephi, and SA, who had been living in Daniel's car, moved into the camp trailer. Tr. 75. Petitioner and Evans continued to live in their car in the same area, and within a few days parked next to the camp trailer, and the group began to spend their time together. Tr. 76.
Daniel and Nephi's income sources consisted of Nephi's tribal benefits of $1,875 per month, food stamps, and panhandling. Tr. 77-79. Petitioner and Evans relied on selling their food stamps, pawning personal items, and panhandling. Tr. 159. Nephi received a “bonus for the Fourth of July” from her tribe, and she and Daniel agreed to loan petitioner money to buy a motor home, to be paid back in cash and/or by petitioner providing Daniel and Nephi tattoos. Tr. 77-78. After buying the motor home, petitioner and Evans continued to live next to Daniel and Nephi near the Walmart. Tr. 79-80. Around the end of July or beginning of August, police told the group they would be ticketed, and their vehicles towed if they did not leave the area, so they moved the camp trailer, the motor home, and their other vehicles to a campground. Tr. 80.
When the group started spending time together, they would play the games “slug bug” and “PT bruiser,” were they would punch one another in the arm when they saw a Volkswagen Beetle or a PT Cruiser. Tr. 83-85. When they moved to the campground, they continued the “horseplay,” including wrestling and punching each other. Tr. 83-85. Petitioner's hitting, however, “started getting worse,” leaving Daniel and Nephi unable to feel their arms and legs after petitioner hit them. Tr. 83-85. When they asked him to stop, he hit “even harder,” leaving them sore for a day or so. Tr. 86.
On one occasion, petitioner hit Daniel in the arm and, after Daniel asked him to stop, petitioner turned around and hit Daniel in the chest, making it difficult for Daniel to breathe. Tr. 89. It took Daniel “three to four minutes” to catch his breath, and afterward his chest hurt every time he took a breath. Tr. 89. On another occasion, when Daniel was driving, petitioner hit Daniel so hard that Daniel lost feeling in his arm. Tr. 89-90.
Nephi learned she was pregnant in July and showed the positive pregnancy test to petitioner and Evans. Tr. 157, 195, 202. Nephi often felt tired and would occasionally lie in bed in the camp trailer in the middle of the day. Tr. 202-03. When she did so, petitioner sometimes would come in, tell her not to be in a bad mood, and punch her. Tr. 204. On one such occasion, petitioner punched Nephi so hard that he left bruises on Nephi's arm that were visible and sore two days later. Tr. 204-09.
Although the group's main source of income was Nephi's tribal benefits, petitioner largely controlled the couples' finances. Tr. 103-04. In addition to buying the RV for petitioner, Daniel and Nephi allowed petitioner to use their car, and paid off a loan on petitioner's car. Tr. 103-04. Petitioner “did a couple of tattoos” for Daniel and Nephi, but otherwise did not repay them any money. Tr. 103-05. The group only ever put gas in petitioner's car, because petitioner and Evans “wouldn't let” Daniel and Nephi put gas in their own car. Tr. 142-43. When asked why that was, Daniel explained, “Because, just the way he treated us, we weren't able to do anything.” Tr. 143.
Once the group moved to the campground, petitioner and Evans took charge of disciplining SA, yelling, and screaming at him, or spanking him if he did not behave. Tr. 92, 200. “Almost on a daily basis,” petitioner and Evans would tell Nephi “how [SA] should behave or not behave or things [Nephi] should do or not do.” Tr. 199.
At one point, Daniel bought a Daisy pump-action BB rifle, which he, Nephi, and petitioner used to shoot at cans and gallon jugs. Tr. 92-93, 96-97. Petitioner also used the Daisy rifle to shoot at Daniel and Nephi's camper. Tr. 98-102. Nephi and SA were in the camper when petitioner shot at it. Tr. 108-09. The BBs left five holes in the camper, and two of the BBs went through the siding and into the camper. Tr. 109. The second BB hit SA in the stomach, causing him to scream and leaving a welt on his stomach. Tr. 110.
On another day, petitioner shot at Daniel, Nephi, and SA with the Daisy BB rifle. First, Nephi came out of the camper and asked about toilet paper because she needed to use the restroom, and petitioner shot at her feet. Tr. 113-15, 214-15. One BB hit her foot and, although she was wearing a shoe, it “hurt[] a lot” for about an hour and a half. Tr. 114, 216. Nephi told petitioner she needed to go to the bathroom, but he didn't say anything so she turned around and went back in the camper because she was afraid he would shoot her again. Tr. 216-17. Nephi tried later to leave the camper to go to the bathroom, and petitioner shot at her again, telling Daniel, “I think I hit her in the ass.” Tr. 218.
Later that same day, SA was sitting on his potty-training chair and said that he couldn't use it. Tr. 220. Petitioner testified that he asked SA, “Do you want to get shot,” SA said “Yes,” and petitioner shot SA with the Daisy rifle. Tr. 220. SA screamed, and petitioner said, “You didn't get hurt,” and again told SA to “go potty.” Tr. 221-22. The BB left a mark on SA's upper leg with a little blood. Tr. 222-23. When Nephi picked SA up to comfort him, petitioner told her to “stop babying him.” Tr. 223. Although Daniel did not approve of petitioner shooting SA, he did not take any action, explaining that “Because I was so furiated [sic] I didn't want to step in and say something wrong” while petitioner had the Daisy rifle in his hands. Tr. 117-18.
And again, that same day, Daniel was changing a tire on one of the cars when petitioner shot him “in the butt,” which hurt for about 15 minutes so that he was not able to sit down. Tr. 111-12. When Daniel said that it hurt, petitioner just walked away. Tr. 112.
A couple of days later, on August 15, Daniel found out that Nephi's tribal benefits had been deposited earlier than expected, so the group went into town to buy some supplies. Tr. 11819. At the store, petitioner showed Daniel a BB pistol that he wanted, and Daniel bought it for him. Tr. 118-120. Daniel read the warning on the box to petitioner, “Not a toy, Adult supervision required. Misuse or careless use may cause serious injuries or death. May be dangerous up to 325 feet, 297 meters.” Tr. 120-21. Daniel told petitioner not to shoot anyone with the pistol. Tr. 126. Unlike the Daisy rifle, the pistol was semi-automatic; it used CO2 cartridges to propel the BBs and did not require pumping or any other action beyond pulling the trigger to fire. Tr. 121, 124, 127, 347.
Upon the group's return to the campground, petitioner took the pistol out of the packaging and inserted a CO2 cartridge and loaded the BBs. Tr. 128-31. While Daniel was unloading supplies from the car, petitioner shot at a helmet they had strung up between two trees and were using for target practice. Tr. 128-31. After shooting for a few minutes, petitioner asked Nephi and Daniel to hold up their hands to feel the air from the pistol. Tr. 131-32. Petitioner dry-fired the pistol at Nephi's hand, and she felt “a lot of air” that was “very forceful.” Tr. 226-27. Daniel, however, moved his hand just before petitioner tried to demonstrate the pistol's airpower to him, because he “didn't trust” that the pistol was empty. Tr. 132-33.
Petitioner then went with the pistol into his and Evans's motor home, where SA was “in time out.” Tr. 134-36. Daniel heard petitioner tell SA, “with an angry tone to his voice,” to stop crying. Tr. 136-37. Daniel also heard SA crying and saying that he wanted his mom. Tr. 137. Daniel heard the pistol go off, dropped what he was doing, and ran into the motor home. Tr. 138. He saw petitioner holding the pistol just seven or eight inches away from SA's face, and SA “just sitting there, stunned, holding his head.” Tr. 138, 140. He then saw petitioner pull the trigger twice more. Tr. 138-39.
Daniel had SA move his hands and could see blood coming out of his mouth. Tr. 141. Petitioner called for Evans and started “freaking out,” saying he did not know there were BBs in the pistol and he “did not want to get into trouble with the cops.” Tr. 141. Nephi came in, and after seeing SA, said they needed to go to the hospital, but petitioner “kept denying it, saying that he didn't want to take [SA]” because the police would be called, and he would “get in trouble.” Tr. 141-42.
Petitioner eventually relented and drove them to the hospital. Tr. 142. Petitioner and Evans tried to convince Nephi and Daniel to say that SA was hit by a ricochet off a tree or rock. Tr. 142, 144. Petitioner said that they “would get beat up if [they] didn't go through with the story.” Tr. 236. Once the group arrived at the hospital, only Nephi was allowed to go back into the treatment area with SA, so petitioner and Daniels left. Tr. 145-46.
The emergency physician who examined SA described the physical findings of his examination as follows:
He had three obvious injuries on his face, one just off the left side of his forehead within the pupillary line. What that means is about center of his eyeball. Okay, so in the pupil line.
The second one was at the nasolabial fold on the left side. Nasolabial fold is this crease in our face. So it was up here on the left side.
And the third one was almost midline in the lower chin, as explained.
There were BBs that were palpable - foreign bodies, palpable underneath the areas. On exam I did not appreciate any intracranial injury, or to his brain or to his nervous system or other significant injuries that could have taken place with this.
With the remainder of the exam I identified two other areas of concern that were consistent with where he may have been hit with a BB, one on the anterior abdomen and another on the left gluteal area, which is his butt cheek.Tr. 47-48.
Two of the BBs were under the skin where one would expect based on the wounds. Tr. 51-52. An x-ray revealed, however, that the BB that hit SA's nasolabial fold “tumbled through the cheek and was quite difficult to retrieve.” Tr. 52. Physicians removed the BBs in a procedure with local anesthesia, but SA had to be restrained to allow them to do so. Tr. 53-54. The BB that went through SA's cheek could not be retrieved through the entry wound, so the physician “had to create an exit wound in the mouth to release the BB.” Tr. 54. The physician expected SA to have “a lifelong type of scar” as a result. Tr. 55.
Nephi originally told police who responded at the hospital that someone drove by their camp and “shot it up.” Tr. 238. She testified she told the police this because she was scared, “just to protect” petitioner. Tr. 238. SA, however, told one of the deputies that petitioner had shot him in the face. Tr. 239. Nephi eventually told police what had really happened. Tr. 23941.
Daniel, questioned separately from Nephi, initially told police that the BBs had ricocheted into SA, because he was “afraid of what [petitioner] would do” and worried, based on previous conversations with petitioner, that “[petitioner's] family would be after us.” Tr. 147-50. Daniel also ultimately told the police what had really happened. Tr. 148-49.
II. Petitioner's Criminal Proceedings
A Lane County grand jury indicted petitioner on ten counts. Respondent's Exhibit (“Resp. Exh.”), ECF No. 24, Exh. 103. Counts One and Two alleged assault in the fourth degree based on petitioner recklessly causing physical injury to Daniel with his fist and the BB gun respectively. Counts Three and Five alleged felony assault in the fourth degree based on petitioner recklessly causing injury to Nephi with his fist and the BB gun respectively, knowing that Nephi was pregnant at that time. Court Four alleged that petitioner coerced Nephi into abstaining from conduct in which she had a legal right to engage (that is, by driving her back into the camper when she tried to exit) by threat of physical evidence. Counts Six and Seven alleged assault in the second degree and assault in the third degree based on petitioner knowingly causing physical injury to SA by shooting him the leg and body with the BB rifle. Counts Eight, Nine, and Ten alleged three different theories of assault based on petitioner shooting SA in the face with the BB pistol.
Petitioner waived his right to a jury, and the case proceeded to a bench trial. Tr. 23. The trial judge found petitioner not guilty of the assault alleged in Count Nine, and guilty of a lesser included offense on the assault alleged in Count Eight, but otherwise found him guilty on the remaining charges. Tr. 627-32. The judge ultimately sentenced petitioner to a total of 205 months of imprisonment. Resp. Exh. 101.
III. Direct Appeal
Petitioner filed a direct appeal, challenging the sufficiency of the evidence as to Counts One, Two, Three, Four, Six, and Seven. Resp. Exh. 104. Petitioner conceded that, except as to Count Four, he had not preserved his assignments of error, but asked the court to exercise its discretion to review them as plain error. Resp. Exh. 104. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. Sinkevitch, 275 Or.App. 1033, rev. denied, 359 Or. 667 (2016).
IV. State Post-Conviction Relief Proceedings
Petitioner then sought state post-conviction relief (“PCR”), alleging several claims of ineffective assistance of trial counsel. Resp. Exh. 115. Following an evidentiary hearing, the state PCR trial judge denied relief in a written decision. Resp. Exh. 125. Petitioner appealed, but the Oregon Court of Appeals again affirmed without opinion and the Oregon Supreme Court denied review. Sinkevitch v. Bowser, 306 Or.App. 562, rev. denied, 367 Or. 257 (2020).
V. Petitioner's Habeas Corpus Claims
On October 14, 2020, petitioner filed a pro se Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 with this Court. ECF No. 2. The Court appointed counsel to represent petitioner, and counsel subsequently filed a First Amended Petition for Writ of Habeas Corpus on his behalf. ECF No. 31. The amended petition alleges three claims for relief:
Ground One: There was insufficient evidence supporting each conviction in violation of petitioner's right to due process as guaranteed by the Fourteenth Amendment.
Ground Two: Trial counsel rendered ineffective assistance of counsel as to each offense of conviction by failing to move for a judgment of acquittal in violation of petitioner's right to effective assistance of counsel as guaranteed by the Sixth Amendment.
Ground Three: Trial counsel failed to adequately investigate each of the offenses of conviction, in violation of petitioner's sixth amendment right to effective assistance of counsel.
In his Brief in Support and subsequent briefing, petitioner addresses only the claim alleged in Ground One and that portion of the claim alleged in Ground Two as it pertains to trial counsel's failure to adequately move for a judgment of acquittal on Count Four of the indictment; petitioner does not address counsel's failure to move for judgment of acquittal on the remaining claims, and does not address the claim alleged in Ground Three. Respondent contends that petitioner procedurally defaulted the trial court error claim alleged in Ground One except as it pertains to his claim of insufficiency of the evidence to support the conviction on Count Four. Alternatively, respondent argues to the extent those claims were decided on the merits, the state court's decision denying relief is entitled to deference. Respondent further contends the state PCR court's decision denying relief on the ineffective assistance of counsel claim alleged in Ground Two is entitled to deference, and that petitioner has not established he is entitled to relief on the claim alleged in Ground Three.
LEGAL STANDARDS
An application for a writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;” or (2) “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). A state court decision is ”contrary to . . . clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant relief “if the state identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. The “unreasonable application” clause requires the state court decision to be more than incorrect or erroneous. Id. at 410. Section 2254(d)(1) “preserves authority to issue the writ in cases where there is no possibility fair-minded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents. It goes no further.” Harrington v. Richter, 562 U.S. 86, 102 (2011).
DISCUSSION
I. Ground One - Alleged Insufficiency of the Evidence
In Ground One, petitioner alleges the state presented insufficient evidence to support the convictions on Counts 1, 2, 3, 4, 6, and 7. As noted, respondent argues petitioner procedurally defaulted claims or, in the alternative, that petitioner is not entitled to relief on the merits. It is apparent that petitioner is not entitled to relief on the merits of this claim, therefore in the interest of judicial economy, the Court declines to address the procedural default issues. See 28 U.S.C. § 2254(b)(2) (“[a]n application for writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State”); Runningeagle v. Ryan, 686 F.3d 758, 778 n.10 (9th Cir. 2012) (exercising discretion afforded under § 2254(b)(2) to decline to address procedural default issue where relief denied on the merits); Fairley v. Bowser, Case No. 2:17-cv-02016-JR, 2022 WL 18231560, at *13 n.6 (D. Or. June 14, 2022) (same), findings and recommendation adopted, 2023 WL 157786 (D. Or. Jan. 10, 2023).
A petitioner “is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324 (1979). A habeas court's review of the record for sufficiency of the evidence is “sharply limited,” and the court owes great deference to the trier of fact. Wright v. West, 505 U.S. 277, 296 (1992). The court must view all of the evidence in the light most favorable to the prosecution. Jackson, 433 U.S. at 319. “[T]he prosecution need not affirmatively ‘rule out every hypothesis except that of guilty [.]'” West, 505 U.S. at 296 (quoting Jackson, 443 U.S. at 326). Rather, a “reviewing court ‘faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution and must defer to that resolution.'” Id. at 296-97 (quoting Jackson, 443 U.S. at 326).
Moreover, habeas claims challenging the sufficiency of the evidence “face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference.” Coleman v. Johnson, 566 U.S. 650, 651 (2012). First, on direct appeal in state court, “'it is the responsibility of the [factfinder]-not the court-to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the [factfinder]'s verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed[.]'” Id. (quoting Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam)). Second, on habeas review, a federal court may only overturn a state court decision rejecting a sufficiency of the evidence challenge “if the state court decision was objectively unreasonable.” Id. (quoting Cavazos, 565 U.S. at 2).
A. Count One - Fourth-Degree Assault for Punching Daniel
Count One of the indictment alleged that petitioner committed assault in the fourth degree by causing physical injury to Daniel when he struck him with his fist. Resp. Exh. 102, p. 1. Under Oregon law, a person commits fourth-degree assault by acting with the requisite culpable mental state to cause physical injury to another person. Or. Rev. Stat. § 163.160. “Physical injury” for the purposes of the Oregon criminal code is defined as “impairment of physical condition or substantial pain.” Or. Rev. Stat. § 161.015(7). “[F]or an injury to constitute an impairment of physical condition, it must reduce the victim's ability ‘to use the body or a bodily organ.'” In Matter of M. S. T.-L., 280 Or.App. 167, 168 (2016) (quoting State v. Higgins, 165 Or.App. 442, 447 (2000)). “[T]o constitute ‘substantial pain,' the pain must be ample and more than fleeting.” Id. at 168-69 (quoting State v. Poole, 175 Or.App. 258 (2001)).
Here, Daniel testified that (1) petitioner punched him in the arm and leg, resulting in pain that lasted five to ten minutes, with soreness continuing to the following day; (2) petitioner punched him in the chest with sufficient force that Daniel could not catch his breath for “three or four minutes,” leaving him in “so much pain” that it hurt every time he took a breath for “a while” after; and (3) petitioner, on at least one occasion, punched him repeatedly in the arm, and “kept hitting so hard that I couldn't feel my arm.” Tr. 86-90. Any of these three situations support an inference that petitioner caused Daniel physical injury and, thereby, support the trial court's finding petitioner guilty of fourth-degree assault as charged in Count One. See Poole, 175 Or.App. at 261 (sharp pain for about an hour with continuing soreness for 24 hours constituted substantial pain); State v. Hendricks, 273 Or.App. 1, 11 (2015) (five seconds of inability to breathe when defendant placed pillow over victim's face constituted impairment of physical condition).
B. Count Two - Fourth-Degree Assault for Shooting Daniel with the Daisy BB Rifle
Count Two alleged that petitioner committed assault in the fourth degree by causing physical injury to Daniel when he shot him with the Daisy BB rifle. Resp. Exh. 102, p. 1. Daniel testified that he was bending over to change a tire when petitioner shot him in the buttocks with the Daisy BB rifle. Tr. 111. He testified that the BB “hurt” and caused soreness that was significant enough that he was unable to sit down for fifteen minutes. Tr. 112. Again, Daniel's description supports the inference that the pain was more than fleeting and insubstantial and supports the trial judge's conclusion that petitioner was guilty of fourth-degree assault as charged in Count Two.
C. Count Three - Fourth Degree Felony Assault for Punching Nephi
Count Three alleged that petitioner committed felony assault in the fourth degree when he punched Nephi in the arm while knowing that she was pregnant. Resp. Exh. 102, p. 1. Evidence presented at trial showed petitioner punched Nephi regularly. On repeated occasions, petitioner would come into Nephi's trailer when she was resting and “start hitting” her and tell her to “get up and do stuff.” Tr. 205. Nephi testified the punches “hurt,” “caused bruises,” and made her arm sore for “a good, five, ten minutes.” Tr. 204-05, 209. On one particular occasion, petitioner punched Nephi hard in the arm, causing a bruise that still caused soreness a couple of days later when her injuries were photographed at the hospital. Tr. 208-09. The lasting soreness was such that when Nephi “lifted up [her] shirt, [her] arm hurt.” Tr. 208-09. Moreover, there was no question petitioner knew Nephi was pregnant at the time.
Given that Nephi's physical evidence of injury, the bruising which was accompanied by her testimony of pain that lasted for more than a fleeting amount of time, the trial judge reasonably found petitioner guilty of felony fourth-degree assault as charged in Count Four.
D. Count Four - Coercion for Preventing Nephi From Using the Bathroom
Count Four of the indictment alleged petitioner committed coercion by compelling Nephi to “abstain from conduct in which [Nephi] had a right to engage by instilling in [Nephi] a fear that if [Nephi] engaged in the conduct contrary to the compulsion or inducement, [petitioner] would unlawfully cause physical injury[.]” Resp. Exh. 102, p. 2. Under Oregon law, a person commits the crime of coercion, as relevant here, when:
[T]he person compels or induces another person to engage in conduct from which the other person has a legal right to abstain, or to abstain from engaging in conduct in which the other person has a legal right to engage, by means of instilling in the other person a fear that, if the other person refrains from the conduct compelled or induced or engages in conduct contrary to the compulsion or inducement, the actor or another will:
(a) Unlawfully cause physical injury to some person[.]Or. Rev. Stat. § 163.725(1). To obtain a conviction on Count Four, the state needed to prove: (1) “[petitioner] intentionally compelled or induced the victim to abstain from doing something; (2) that the victim has a right to do; (3) by making the victim afraid that if she did not comply, physical injury would result.” Hendricks, 273 Or.App. 1, 17 (2015).
As described above, the evidence supports a conclusion that petitioner intentionally compelled Nephi to abstain from going to the bathroom by shooting at her with the Daisy BB rifle after she announced her intent to do so as she stepped out of the trailer. Petitioner heard Nephi announce her intent, Nephi had a right to go to the bathroom, and by shooting at Nephi, petitioner made her afraid that if she did not return to the trailer, physical injury would result.
Petitioner asserts that he did not explicitly demand that Nephi abstain from going where she wanted, and that the evidence only showed that his purpose was to shoot her feet for his own amusement. However, particularly in light of the evidence of petitioner's controlling behavior toward Nephi, Daniel, and SA, a rational factfinder could certainly infer his intent to prevent her from going to the bathroom by repeatedly shooting at her feet after she announced she intended to go to the bathroom. See State v. Phillips, 206 Or.App. 90, 96-97 (2006) (implicit demand that victim stay and watch a pornographic move by pushing her back on into a couch after she objected and tried to leave sufficient to establish intent for the purposes of coercion conviction).
E. Counts Six and Seven - Second- and Third-Degree Assault for Shooting SA in the leg with the Daisy BB rifle
Counts Six and Seven of the indictment alleged petitioner committed assault in the second degree and assault in the third degree when he shot SA in the leg with the Daisy BB rifle. Petitioner argues no rational trier of fact could find beyond a reasonable doubt that he caused “substantial pain” by shooting SA's thigh/glute area. As noted, “substantial” pain is “ample” or “considerable” pain, as opposed to “fleeting or inconsequential” pain, which does not qualify for the purposes of establishing physical injury. Poole, 175 Or.App. at 261.
Here, the evidence at trial established that SA was sitting on a training potty when petitioner shot him in the upper leg with the Daisy BB rifle. Tr. 221. SA started to scream. Tr. 117, 221. The BB wound drew “a little bit of blood” and left a “skid mark” wound where it ricocheted off SA. Tr. 222. Nephi picked SA up to comfort him, and SA continued to cry. Tr. 117, 223. The mark on SA's thigh caused by the BB was still visible one to two days later at the hospital. Tr. 47-48.
Taken as whole, and mindful of the requirement to consider all of the evidence in the light most favorable to the prosecution, this evidence supports an inference that SA suffered more than momentary pain. As such, a rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt.
II. Ground Two - Ineffective Assistance of Counsel
In Ground Two of his amended petition, petitioner alleges his trial counsel was ineffective in failing to move for a judgment of acquittal on the coercion charge alleged in Count Four of the indictment. In assessing claims of ineffective assistance of counsel, the Court uses the general two-part test established by the Supreme Court. Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). First, a petitioner must show that his counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 686-87 (1984). Due to the difficulties in evaluating counsel's performance, courts must indulge a strong presumption that the conduct falls within the “wide range of reasonable professional assistance.” Id. at 689.
Second, a petitioner must show that counsel's performance prejudiced the defense. The appropriate test for prejudice is whether the petitioner can 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. In the context of a guilty plea, when a defendant enters his plea on the advice of counsel, to satisfy the prejudice requirement, “the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 58-59 (1985).
While the Supreme Court established in Strickland the legal principles that govern claims of ineffective assistance of counsel, it is not the role of the federal habeas court to evaluate whether counsel's performance fell below the Strickland standards Harrington, 562 U.S. at 101. Rather, when considering an ineffective assistance of counsel claim on federal habeas review, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable.” Id. As the Supreme Court explained in Harrington, “[a] state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Id.
Petitioner asserted this claim in his state PCR proceeding and, following an evidentiary hearing, the PCR trial judge denied relief. The PCR judge framed the general issue as follows:
With respect to all of the Petitioner's claims, the Superintendent argues that Petitioner's trial attorney acted reasonably in focusing on Petitioner's mental state in firing the BB gun and punching the victims rather than challenging the nature of the injuries. I agree that is was [sic] a reasonable strategic approach to the case. I do not agree, however, that it would be reasonable, regardless of the strategy, to fail to move for a judgment of acquittal or argue in closing argument if the state failed to offer sufficient proof of any element of the charges. I find it difficult to think of any situation where it would be reasonable for a defense attorney to fail to raise the issue if the state has failed to offer sufficient evidence to prove physical injury in a case where it was an element of a criminal charge. The same would apply to the element of compelling or inducing if a required element of coercion. Regardless of the primary defense theory or strategy, counsel should move for a judgment of acquittal if an essential element of charge is missing from the state's proof. This would especially be the case if the trial was to the court, as here, rather than a jury because there would be less concern about causing confusion by arguing multiple issues. For each of Petitioner's claims then, the issue is whether there was sufficient evidence of physical injury in Counts 1-3 & 5-7 and evidence of compelling and or inducing in Count 4. If the necessary evidence was in the record, then trial counsel was not unreasonable in failing to move for judgment of acquittal or arguing the points in closing.
There would also be no prejudice if the necessary evidence was in the record, because the motions and arguments would have been unsuccessful in the trial
courts and on appeal. On the contrary, if there was not adequate evidence of the necessary elements in the record, counsel would be ineffective for failing to raise that issue on motion for directed verdict or in argument and Petitioner would have suffered prejudice and be entitled to post-conviction relief.Resp. Exh. 125, pp. 3-4.
The PCR trial judge then addressed each of the individual counts alleged in the indictment. With respect to the coercion charge alleged in Count 4, the PCR trial judge concluded as follows:
Petitioner did not prove that his trial attorney failed to exercise reasonable professional skill and judgment by failing to challenge the sufficiency of the evidence of Nephi being compelled or induced to refrain from acting with respect to count 4. Nephi announced that she was going to the bathroom and began walking toward the bathroom. Petitioner began shooting at her feet, eventually hitting her one time. In response, Nephi retreated back to the trailer. Nephi actually refrained from taking actions in response to a fear that she would be additional physically injured by petitioner if she did not refrain from those actions. The evidence was sufficient to show that Nephi was actually compelled or induced by a fear of physical injury at the hands of Petitioner.
For the same reasons, Petitioner has failed to prove prejudice. In addition, because Judge Bearden [the criminal trial judge] specifically found that she found all elements of each crime of which Petitioner was convicted, beyond a reasonable doubt, she would have necessarily denied any motion for judgment of acquittal or rejected any argument that the proof was inadequate. Petitioner has not proven that his attorney's failure [to challenge] the sufficiency of the proof could have had a tendency to affect the outcome of the trial.Resp. Exh. 125, p. 7.
As discussed above, the state presented sufficient evidence to support a conviction on the coercion charge alleged in Count 4. Under these circumstances, the PCR trial judge's conclusion that the outcome of the trial would not have been different had counsel filed a formal motion for acquittal on the coercion charge was not objectively unreasonable and is entitled to deference in this Court. Accordingly, petitioner is not entitled to habeas corpus relief on his ineffective assistance of counsel claim alleged in Ground Two.
III. Ground Three -Ineffective Assistance of Trial Counsel for Failure to Investigate
Finally, in Ground Three of his amended petition, petitioner alleges trial counsel was ineffective in failing to interview and/or call witnesses who would have testified to the nature of relationships petitioner had with Daniel, Nephi, and SA. As noted, however, petitioner does not address this claim in his briefing to the Court. Therefore, petitioner has not sustained his burden to demonstrate why he is entitled to relief on these claims. See Lambert v. Blodgett, 393 F.3d 943, 970 n. 16 (9th Cir. 2004). Nevertheless, the Court has reviewed this claim and is satisfied that petitioner is not entitled to habeas corpus relief on this claim as it was procedurally defaulted when he did not advance it in his state PCR proceeding.
CONCLUSION
For the reasons stated above, the Court should deny the Amended Petition for Writ of Habeas Corpus and should enter a judgment dismissing this action and denying a certificate of appealability. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.