Opinion
Civil No. 02-935-ST.
April 26, 2004
Mark Bennett Weintraub Assistant Federal Public Defender Eugene, Oregon, Attorney for Petitioner.
Hardy Myers Attorney General Carolyn Alexander Assistant Attorney General Department of Justice Salem, Oregon, Attorneys for Respondent.
FINDINGS AND RECOMMENDATION
Petitioner brings this habeas corpus action pursuant to 28 U.S.C. § 2254 challenging the validity of several underlying state convictions on federal constitutional grounds. For the reasons which follow, the Petition for Writ of Habeas Corpus (docket #2) should be denied, and this proceeding should be dismissed.
BACKGROUND
On April 17, 1995, Travis Volk was selling miniature electronic pianos along a Portland street. Trial Transcript (Vol. I), pp. 90-91. Petitioner, accompanied by a female companion ("Janine"), approached Volk and offered to buy two pianos for $24. Id at 92. Petitioner claimed he only had a $50 bill and asked if Volk could make change. Id at 92-93. When Volk produced $30 in cash, petitioner "snatched it" from his hand Id at 93. Although the $30 was of sufficient denomination to make exact change for the transaction, petitioner told Volk he was taking the $30 to a nearby restaurant to find change. Id at 94.
Volk followed petitioner into two restaurants, but no change was made. Id at 95, 98. Petitioner then said something to Janine "about the car that they were driving" which prompted her to walk over to the couple's car and back it up to the restaurant door. Id at 96.
In the meantime, Volk told petitioner "several times" to give him his money back. Id at 96-97. He demanded his money back "[t]en or more" times. Id at 98. Petitioner then proceeded out of the door of the second restaurant and walked toward the waiting car. Id. Petitioner entered the passenger seat of the car while still in possession of Volk's money.
Volk yelled through the window at petitioner, demanding his money back. Id at 98-99. He then traveled to the "front right panel of the passenger side of the car" and put his hands on the hood. Id at 101, 119. At this point, Janine drove the car forward "about 10 inches." Id at 119.
Volk then noticed petitioner "making like a forward motion" with his hand, noting that "[n]o words were said that I know of."Id at 118. Fearing that the couple was about to drive off with his money, Volk "proceeded to put [him]self on top of the car."Id. Janine drove the car forward, with Volk on top of it, for a distance of about 10 feet. Id at 101, 119. Volk then observed Janine put the car in "park" and begin arguing with petitioner, although Volk was unable to discern what was said. Id at 102, 120.
At that time, petitioner exited the car and, according to Volk, "blatantly came up with his elbow and caught me under my nose which caused a severe nosebleed." Id at 103-04. Volk responded by grabbing petitioner's arm and "yelling and screaming hysterically to give [the] money back." Id at 104. He also yelled for bystanders to call the police. Id. Petitioner then threw the disputed $30 at Volk, and Volk reentered one of the restaurants to call the police. Id at 122-123.
Petitioner later admitted to the police that he and Janine were working a "scam" and had planned to keep Volk's money. Id at 79-80. A jury found petitioner guilty of Robbery in the First Degree, Robbery in the Second Degree, Robbery in the Third Degree and Assault in the Fourth Degree. Respondent's Exhibit 101. The trial court imposed concurrent sentences of 90, 70, 14 and six months, respectively. Id.
Petitioner directly appealed his convictions and sentences, but the Oregon Court of Appeals affirmed the trial court without opinion and the Oregon Supreme Court denied review. State v. Moon, 145 Or. App. 262, 928 P.2d 366 (1996), rev. denied, 324 Or. 654, 931 P.2d 796 (1997).
Petitioner next filed for collateral relief in Oregon's postconviction ("PCR") courts, but the PCR trial court denied relief. Respondent's Exhibits 112-115. The Oregon Court of Appeals affirmed the PCR trial court without opinion, and the Oregon Supreme Court denied review. Moon v. Palmateer, 176 Or. App. 359, 30 P.3d 1230 (2001), rev. denied, 333 Or. 399, 42 P.3d 1243 (2002).
On July 15, 2002, petitioner filed this habeas corpus action raising numerous due process and ineffective assistance of counsel claims. Because these claims are adequately stated in the Petition and the State's Response, they are not repeated here. Respondent asks the court to deny relief on the Petition because various claims are procedurally defaulted, and the PCR trial court's findings of fact and conclusions of law are entitled to deference under the Anti-Terrorism and Effective Death Penalty Act.
DISCUSSION
I. Unsupported Claims
As an initial matter, petitioner presents eleven grounds for relief in his Petition. The State responded to all grounds, claiming that the due process claims are procedurally defaulted, and the ineffective assistance of counsel claims lack merit.
In his supporting memorandum, petitioner elects to address only a single ground for relief contained in Ground Two (Attachment B, ¶¶ 5 8) of the Petition. Specifically, petitioner claims that his appellate attorney failed to appeal the denial of his motion for judgment of acquittal on the charge of Robbery in the First Degree.
The court has reviewed the record with respect to petitioner's unsupported claims and finds that they would not entitle him to relief. See 28 U.S.C. § 2248 ("The allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true"). II. Ineffective Assistance of Appellate Counsel Claim A. Habeas Corpus Standard of Review
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 either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "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 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 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, a federal habeas court may grant relief "if the state court 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. The state court's application of clearly established law must be objectively unreasonable. Id at 409.
B. The Merits 1. Clearly Established Federal Law
The Supreme Court has established a two-part test to determine whether a petitioner has received ineffective assistance of counsel. First, the petitioner must show that his lawyer's performance fell below an objective standard of reasonableness.Strickland v. Washington, 466 U.S. 668, 686-687 (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, the petitioner must show that his lawyer's performance prejudiced the defense. The appropriate test for prejudice is whether the defendant 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.
An appellate attorney "who files a merits brief need not (and should not) raise every non-frivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. 259, 288 (2000). Accordingly, a petitioner wishing to bring a Strickland claim based on his appellate attorney's failure to raise a particular claim must not only show that the claim had merit, but must also demonstrate that the omitted claim was "clearly stronger than issues that counsel did present." Id. 2. Analysis
At the close of the State's case in the underlying criminal trial, petitioner's attorney moved for judgment of acquittal on the First Degree Robbery charge based on the State's alleged failure to prove that petitioner utilized a dangerous weapon in the commission of the robbery. Trial Transcript (Vol I), pp. 127-128. The court denied the motion, noting that it "must consider the evidence in the light most favorable to the State."Id at 130-31.
During his PCR proceedings, petitioner argued that his appellate attorney was constitutionally ineffective for failing to appeal the trial court's decision on this matter. In denying relief on this claim, the PCR trial court made the following factual finding:
Counsel was not inadequate for failing to appeal the court's denial of petitioner's motion for judgment of acquittal. Because the state's evidence clearly supported a verdict against petitioner, had this issue been appealed, petitioner would not have received relief.
Respondent's Exhibit 114, p. 4.
Under Oregon law, motions for judgment of acquittal are reviewed "solely to determine whether, after viewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt." State v. Rose, 311 Or. 274, 281, 971 P.2d 879 (1991). Conflicts in the evidence are resolved in the State's favor. State v. King, 307 Or. 332, 339, 768 P.2d 391 (1989).
A person is guilty of Robbery in the First Degree if he commits Robbery in the Third Degree and he:
(1) is armed with a deadly weapon;
(2) uses or attempts to use a dangerous weapon; or
(3) causes or attempts to cause serious physical injury to any person.
A person is guilty of Robbery in the Third Degree if, while committing or attempting to commit a theft, he uses or threatens the immediate use of physical force upon another person with the intent of:
(1) preventing or overcoming resistance to the taking of the properly or to retention thereof immediately after the taking; or
(2) Compelling the owner of such property or another person to deliver the property or to engage in other conduct which might aid in the commission of the theft.
O.R.S. 164.395.
Petitioner was indicted for Robbery in the First Degree based on his attempted use of an automobile as a "dangerous weapon." Trial Transcript (Vol. II), pp. 48-49. The term "dangerous weapon" is defined to mean "any instrument . . . which under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious physical injury." O.R.S. 161.015(1). "The circumstances of its use, rather than design features, convert an object into a dangerous weapon." State v. Hill, 298 Or. 270, 273, 692 P.2d 100, 102-03 (1984) (holding that an automobile can be used as a dangerous weapon).
The evidence adduced at trial showed that petitioner ordered Janine to drive the car forward after Volk placed his hands on the front passenger fender. This would not constitute an attempt to use, or to encourage the use of, a "dangerous weapon" since it is highly unlikely that the act of driving away under these circumstances would result in death or serious physical injury. To the contrary, the logical inference is that petitioner simply wanted Janine to drive away with the stolen money, the same inference which led Volk to jump atop the vehicle.
However, viewing all evidence in the light most favorable to the State, a different inference can be drawn after petitioner jumped onto the automobile. A rational trier of fact could infer that petitioner never retracted his command to drive away, causing Janine to drive forward 10 feet after Volk climbed onto the vehicle. Upon drawing this inference, the jury could have concluded that petitioner, who had control of Janine and the car, attempted to use the car in a manner readily capable of or leading to serious physical injury.
In light of: (1) the criminal trial court's decision that a judgment of acquittal was not appropriate; (2) the PCR trial court's factual finding that the evidence "clearly supported" a conviction for Robbery in the First Degree; and (3) after reviewing the evidence from the trial in the light most favorable to the State, this court finds that a rational jury could have concluded that petitioner attempted to use the vehicle as a "dangerous weapon" during the robbery. Accordingly, appellate counsel was under no duty to present this claim to the Oregon Court of Appeals, and the PCR trial court's decision denying petitioner relief on this claim is neither contrary to, nor an unreasonable application of, clearly established federal law.
RECOMMENDATION
For the reasons identified above, the Petition for Writ of Habeas Corpus (docket #2) should be DENIED, and Judgment should be entered DISMISSING this case with prejudice.
SCHEDULING ORDER
Objections to these Findings and Recommendation(s), if any, are due May 14, 2004. If no objections are filed, then this Findings and Recommendation will be referred to a district court judge and go under advisement on that date.
If objections are filed, then the response is due within 10 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, this Findings and Recommendation will be referred to a district court judge and go under advisement.