Opinion
2:20-cv-00456-YY
11-01-2021
MARK ALLEN VANDERHOOF, Petitioner, v. TYLER BLEWETT, Respondent.
FINDINGS AND RECOMMENDATION
YOULEE YIM YOU, UNITED STATES MAGISTRATE JUDGE
FINDINGS
Petitioner, an adult in the custody of the Oregon Department of Corrections, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Petition for Writ of Habeas Corpus should be DENIED.
I. Background
On July 20, 2012, a Douglas County grand jury indicted Petitioner on three counts of Murder by Abuse and one count of Murder. The indictment alleged Petitioner caused the death of his girlfriend's son D, who was a child under the age of three years. Petitioner waived his right to a jury and the case was tried to the court. The state post-conviction relief (“PCR”) trial judge outlined the following relevant facts from the criminal trial:
[O]n January 25, 2011, petitioner was caring for the victim, D, and the victim's mother received a call from petitioner telling her that the victim “had fallen off the porch” at the home they shared in Douglas County. Petitioner told the victim's mother that after the fall, the victim got up and said, “Me fine. Me okay.” The victim's mother arrived home about ten minutes later and found her son “nonresponsive and naked laying at the end of the bed.” The victim's mother immediately called 911.
By the time D was transported to Doernbecher Children's Hospital in Portland, he was 95 percent brain dead. He sustained subdural and retinal hemorrhaging, and his brain swelled so much that it cut off oxygen to the brain. Initially, Petitioner claimed that D fell off a porch onto the ground but later admitted striking D in the chest which knocked him to the ground. According to petitioner, he struck D in a moment of anger, allegedly because D was playing too roughly with one of the family dogs. Petitioner admitted that he wanted D to know “what hurt feels like” so that he would stop mishandling the dog.
Petitioner was charged with murder and three counts of abuse. Petitioner proceeded to a bench trial. Petitioner did not testify at trial.
D's treating physician testified that D's injuries were caused by significant acceleration and deceleration of D's head. He testified that the injuries were not consistent with hitting his head after falling 2 feet from a porch. They were consistent with receiving “a strong blow to the chest that caused him to fly backwards and land on dirt * * * approximately five feet in flight and then land and his head on the ground.”
Dr. Nelson, the deputy medical examiner reached the same conclusion, stating that D's injuries were caused by a “severe or significant amount of force.” According to the deputy medical examiner, D's injuries involved more than just being shaken, but that shaking could have been involved. Rather, the nature of D's brain injury was consistent with sustaining a blow to the head or the child's head hitting something after the child was thrown, shaken, or slammed against something. Nelson opined that the cause of death was “closed head injuries.” He further testified that falling of a 2-foot porch would not have caused the injuries.
Trial counsel retained Dr. Michael Probst, a forensic pathologist, who testified at trial. Dr. Probst agreed that D's death was caused by blunt force trauma to the head but not from being violently shaken. He also testified that the injuries could have been caused by a fall or push off of the porch. He also disputed some of the testimony of the State's medical witnesses.
The trial court acquitted petitioner of murder (Count 2) and count of murder by abuse (Count 1) and convicted petitioner of two counts of murder by abuse -pattern or practice of assault (Counts 3 and 4). The court merged those two counts
into a single conviction and sentenced petitioner to life imprisonment with a minimum of 25 years.
Resp. Exh. 128, pp. 1-2.
Petitioner filed a direct appeal, asserting that the trial court erred when it failed to acquit him of both counts of murder by abuse. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. Vanderhoof, 271 Or.App. 378, rev. denied, 357 Or. 743 (2015).
Petitioner then sought state post-conviction relief. Following an evidentiary hearing, the PCR trial court denied relief. Petitioner appealed, and following a joint motion, the Oregon Court of Appeals remanded the case to the PCR trial court to consider Petitioner's motion under Church v. Gladden. The PCR trial court found the claims asserted in the Church motion to be meritless, dismissed the petition, and reinstated its original trial judgment. Petitioner did not appeal the reinstated judgment.
Petitioner filed his pro se Petition for Writ of Habeas Corpus with this Court alleging four claims for relief:
Ground One: The State has violated numerous State & Federal Constitutional rights that are guaranteed to protect an individual's rights in any criminal prosecution!
Supporting Facts: Please refer to affidavit of my claims, to which I did file May 5, 2017, that joins my Church v. Gladden motion Violation of chain of custody by not properly sealing any evidence seized on January 27, 2011.
The obvious concealing of material evidence from 3 DVD's (ALB-DVD-100, 101, 102) on January 26, 2011, of 1 hour - 9 minutes - 14 seconds of material evidence has conveniently become missing. Vanished, deleted, removed, concealed from DVD - 101. Withheld - concealed by the Detective Angie Borigo!
Ground Two: An unfortunate tragedy of an accident did happen. No. act of any murder - did not happen in this case! I have been wrongly convicted for a crime that did not happen!
Supporting Facts: Refer to forensic reports by Dr. Probst and Dr. Wagnen, of their
findings.
There's no standard of proof to prove any act of any murder committed - happened in this case.
Defendant was acquitted of murder because the judge could not find any engagement of an assault and could not find that the state had proven any intentional act. Defendant should have been acquitted of all 4 counts of murder
ORS 163.115 in this case.
No infliction of serious physical injury proven by State!
Ground Three: State officials have violated numerous issues of Due Process procedures, throughout - during investigation and during the duration of this case.
Supporting Facts:
1. Chain of custody policy & procedure - Due Process
2. Not corroborating evidence collected (photos)
3. Fruit of the poisonous tree, evidence being intentionally concealed by State official, needed to be suppressed
4. No physical evidence against defendant
5. Forensic pathologists by the defense were & have been ignored by the prosecution, attorney generals & all the judges in the Judicial Courts!
Ground Four: The state officials have violated State & Federal Constitutions intentionally. Acing above the law. Nor abusing the law in any criminal prosecution!
Support Facts: The 4th, 5th, 6th, & 14th Amendments
Due Process Clause
Chain of Custody policies & procedures
Speedy trial rights to exercise
Not being indicted until 6 months after arrested judge filed a “Notice of Dismissal - failure to indict, ” on 4-28-2011
This hearing was abandoned on May 28, 2011. on a Saturday*
Arrested on 1-26-2011; indicted on 6-10-2011.
This Court appointed counsel to represent Petitioner. In his Brief in Support, Petitioner presents argument on only one claim for relief: the murder by abuse convictions violated his due process rights because the state did not present legally sufficient evidence that Petitioner acted with extreme indifference to the value of human life. Respondent contends that Petitioner procedurally defaulted this and his other claims, and that, in any event, Petitioner is not entitled to relief on the merits of his sufficiency of the evidence claim.
Because it is apparent that petitioner is not entitled to relief on the merits of his sufficiency of the evidence claim, the Court does not address the alleged procedural default of this claim. 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), cert. denied, 133 S.Ct. 2766 (2013).
II. Sufficiency of the Evidence
Petitioner contends the trial court violated his due process rights by failing to acquit him on all counts of Murder by Abuse. Specifically, Petitioner argues that the state failed to establish he caused D's death “recklessly under circumstances manifesting extreme indifference to the value of human life” as required by Oregon law.
A. Legal Standards
An application for 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's findings of fact are presumed correct and the habeas petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
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 a 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, a federal habeas court may grant relief “if the state court identifies the correct 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. The state court's application of clearly established law must be objectively unreasonable. Id. at 409-10. A federal habeas court reviews the state court's “last reasoned decision.” Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).
In reviewing a sufficiency of the evidence claim, the Court determines if, 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. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). In addition, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) adds another layer of deference over the already deferential Jackson standard. Under the AEDPA, a federal court may not grant a habeas petition unless it finds that the state court unreasonably applied the principles underlying the Jackson standard when reviewing petitioner's claim. See, e.g., Jaun H. v. Allen III, 408 F.3d 1262, 1275 n.12 (9th Cir. 2005); Jones v. Wood, 114 F.3d 1002, 1013 (9th Cir. 1997) (recognizing that the “unreasonable application” standard applies to insufficient evidence claim).
B. Analysis
The crime for which Petitioner was convicted, Murder by Abuse, is defined in Oregon under Or. Rev. Stat. § 163.115, which provides in pertinent part:
Except as provided in ORS 163.118 and 163.125, criminal homicide constitutes murder:
* * *
(c) By abuse when a person, recklessly under circumstances manifesting extreme indifference to the value of human life, causes the death of a child under 14 years of age . . . and has previously engaged in a pattern or practice of assault or torture of the victim or another child under 14 years of age or a dependent person . . .
(6) As used in this section:
(a) “Assault” means to intentionally, knowingly or recklessly cause physical injury to another person . . .
(c) “Pattern or practice” means one or more previous episodes.
The term “extreme indifference to the value of human life” is not defined by statute. Oregon appellate courts, however, have stated that the phrase refers to “a state of mind where an individual cares little about the risk of death of a human being.” State v. Forrester, 203 Or.App. 151, 156 (2005) (citing State v. Cook, 163 Or.App. 578, 583 (1999)), rev. denied, 341 Or. 141 (2006). Thus, the “reckless commission of an extremely dangerous act would qualify as “circumstances manifesting an extreme indifference to the value of human life” because ‘it entails substantial and unjustifiable risk of serious injury or death.'” Cook, 163 Or.App. at 584 (citing State v. Boone, 294 Or. 630, 638 (1983)).
The “extreme indifference” element “does not create an additional culpable mental state requirement for the offense.” Cook, 163 Or.App. at 582 (citing Boone, 294 Or. at 634). Instead, that element “contemplates circumstances which make the defendant more blameworthy than recklessness alone.” Boone, 294 Or. at 635. “Whether a defendant's conduct manifests extreme indifference to the value of human life must be determined from all of the circumstances surrounding the conduct.” State v. Cunningham, 320 Or. 47, 71 (1994).
Here, the evidence presented at trial, considered as a whole, readily allowed the trial judge to find Petitioner guilty of Murder by Abuse beyond a reasonable doubt. Given the severity of D's injuries and the delay before Petitioner sought medical attention despite obvious signs that D was unresponsive, there was sufficient evidence for the trial judge to conclude that Petitioner showed extreme indifference to the value of human life. See, e.g., State v. Mitchell, 48 Or.App. 485 (1980) (holding that where defendant intentionally and forcefully struck 15-month-old child in the abdomen with his fist causing death, the trier of fact could “quite reasonably” draw the inference to find defendant demonstrated extreme indifference to the value of human life). Accordingly, Petitioner is not entitled to relief on his claim of insufficient evidence.
III. Claims Alleged but not Addressed in Petitioner's Brief
As noted, Petitioner does not provide any legal argument on the remaining claims alleged in his Petition for Writ of Habeas Corpus. As such, Petitioner has not sustained his burden to demonstrate why he is entitled to relief on these claims. See Lampert v. Blodgett, 393 F.3d 942, 970 n. 16 (9th Cir. 2004). Nevertheless, the Court has reviewed Petitioner's remaining claims and is satisfied that Petitioner is not entitled to habeas corpus relief on those claims.
RECOMMENDATION
For these reasons, the Petition for Writ of Habeas Corpus should be DENIED and a judgment of dismissal should be entered. Because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability should be DENIED. See 28 U.S.C. § 2253(c)(2).
SCHEDULING ORDER
These Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 14 days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
NOTICE
These Findings and Recommendation are 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 a judgment.