Opinion
6:21-cv-00913-JE
11-17-2022
MYLES JACOB NEES, Petitioner, v. JOSHUA HIGHBERGER, Respondent.
Myles Jacob Nees Petitioner, Pro Se Ellen F. Rosenblum, Attorney General Daniel T. Toulson, Assistant Attorney General Department of Justice Attorneys for Respondent
Myles Jacob Nees Petitioner, Pro Se
Ellen F. Rosenblum, Attorney General Daniel T. Toulson, Assistant Attorney General Department of Justice Attorneys for Respondent
FINDINGS AND RECOMMENDATION
John Jelderks United States Magistrate Judge
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his Clackamas County convictions dated March 11, 2019. For the reasons that follow, the Petition for Writ of Habeas Corpus (#1) should be denied.
BACKGROUND
On June 13, 2018, Clackamas County Sergeant Lynn Schoenfield was out on patrol when he noticed that the license plate on Petitioner's vehicle was obscured and unreadable. Schoenfield activated the light bar on his cruiser and attempted to execute a traffic stop. Petitioner pulled to the side of the road but, as soon as Schoenfield exited his cruiser, Petitioner accelerated in a U-turn, yelling an obscenity at Schoenfield. Trial Transcript, p. 612-13. Schoenfield pursued Petitioner and made physical contact with his car, causing it to spin and stall. Petitioner was able to re-start his car and flee once again.
Despite the posted speed limit of 35 miles per hour, Petitioner at times eclipsed 100 miles per hour, veering into oncoming traffic in an attempt to elude Schoenfield. Schoenfield held back in “slack pursuit,” maintaining a speed of between 40 and 65 miles per hour. Id at 621-22. As Petitioner approached a major intersection, he jumped over a raised median and crashed into two cars driven by Natalya Gilmer and Christina Allen, respectively. The impact spun Gilmer's car around and caused her to hit her head on her window. More ominously, the collision sent Allen's car in the air, up an embankment, and into a tree. An accident reconstructionist at trial estimated Petitioner's speed at the time of the crash to be almost 80 miles per hour. Id at 760. Petitioner fled the scene on foot but was ultimately apprehended by law enforcement.
The damage to Allen's car was so severe that responders had to cut the vehicle apart to extract her. She had suffered a shattered pelvis, a ruptured bladder, and two “tips” at the base of her spine were broken off. Id at 453, 456. She was hospitalized for two-and-a-half weeks and endured surgeries to reconstruct her bladder and put her pelvis together with screws, bolts and what to her resembled a “bicycle chain.” Id at 454. Allen was unable to walk for over two months and, when Petitioner's trial took place eight months after the accident, she still suffered from significant pain and swelling and often could not feel her fingers. She was still unable to sleep in her own bed because she would wake up in “excruciating pain” “bawling [her] eyes out.” Id at 455. Due to her injuries and the significant pain she suffered, at the time of trial she had still not returned to work as a waitress because she could not squat, had trouble bending over, and was unable to carry anything when she walked.
Following Petitioner's trial at which he represented himself, a jury convicted him of several felonies and misdemeanors. Relevant to this proceeding, the jury convicted him of Assault in the Second Degree as to Allen. Respondent's Exhibit 101. As a result, the trial court sentenced him to 70 months in prison and a consecutive 908-day sentence to be served in jail.
Petitioner took a direct appeal where the State conceded an error in sentencing. The Oregon Court of Appeals therefore remanded the case for resentencing, but otherwise affirmed the trial court's decision. State v. Nees, 310 Or.App. 374, 375, 484 P.3d 407 (2021). The Oregon Supreme Court denied review. 368 Or. 511, 492 P.3d 63 (2021). On remand, the Clackamas County Circuit Court amended the Judgment to make one of the jail sentences concurrent. As a result, it imposed a 70-month prison sentence and a consecutive 544-day jail sentence. Respondent's Exhibit 115. Petitioner did not appeal that sentence.
Petitioner next filed this 28 U.S.C. § 2254 habeas corpus case raising five grounds for relief, all of which allege federal due process violations:
After he filed this federal habeas corpus case, Petitioner filed for post-conviction relief (“PCR”) in Marion County. The Court advised him that if he continued with this federal habeas case, he might be forever barred from raising his PCR claims in the habeas corpus context. The Court also appointed counsel to represent him. Petitioner responded that he wished to proceed with this case. Response (#26).
1. There was insufficient evidence to establish the presence of “serious injury” or “extreme indifference” as required by Oregon law to convict him of Assault II;
2. The trial court failed to properly instruct the jury;
3. The trial court erred when it denied Petitioner a meaningful opportunity to address issues pertaining to a suppression motion;
4. Petitioner's conviction was obtained by the use of evidence that resulted from an unconstitutional search and seizure; and
5. The trial court deprived Petitioner of a meaningful opportunity to address the issues involving his motion to quash or dismiss the Indictment.
Respondent asks the Court to deny relief on the Petition because: (1) Grounds Two through Five do not state cognizable claims; (2) even if Grounds Two through Five state cognizable claims, Petitioner failed to fairly present them to Oregon's state courts resulting in a procedural default; and (3) the state-court decision denying relief on Ground One was not unreasonable.
DISCUSSION
I. Failure to State Cognizable Claim
In Ground Four, Petitioner alleges that the evidence the State used against him was the result of an unconstitutional search and seizure. Because Oregon's state courts provided him with a “full and fair opportunity” to litigate this Fourth Amendment claim, it is not cognizable in this habeas corpus action. See Stone v. Powell, 428 U.S. 465, 482 (1976). Petitioner's claims in Grounds Two, Three, and Five, while somewhat opaque, do not suffer from the same fundamental pleading defect. The Court should therefore conclude that Grounds Two, Three, and Five state valid claims for pleading purposes. See Haines v. Kerner, 404 U.S. 519 (1972) (courts should construe pro se pleadings liberally).
II. Exhaustion and Procedural Default
A habeas petitioner must exhaust his claims by fairly presenting them to the state's highest court, either through a direct appeal or collateral proceedings, before a federal court will consider the merits of those claims. Rose v. Lundy, 455 U.S. 509, 519 (1982). "As a general rule, a petitioner satisfies the exhaustion requirement by fairly presenting the federal claim to the appropriate state courts . . . in the manner required by the state courts, thereby 'affording the state courts a meaningful opportunity to consider allegations of legal error.'" Casey v. Moore, 386 F.3d 896, 915-916 (9th Cir. 2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 257, (1986)).
If a habeas litigant failed to present his claims to the state courts in a procedural context in which the merits of the claims were actually considered, the claims have not been fairly presented to the state courts and are therefore not eligible for federal habeas corpus review. Edwards v. Carpenter, 529 U.S. 446, 453 (2000); Castille v. Peoples, 489 U.S. 346, 351 (1989). In this respect, a petitioner is deemed to have "procedurally defaulted" his claim if he failed to comply with a state procedural rule, or failed to raise the claim at the state level at all. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). If a petitioner has procedurally defaulted a claim in state court, a federal court will not review the claim unless the petitioner shows "cause and prejudice" for the failure to present the constitutional issue to the state court, or makes a colorable showing of actual innocence. Gray v. Netherland, 518 U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992); Murray v. Carrier, 477 U.S. 478, 485 (1986).
As Ground Two, Petitioner alleges that the trial court failed to properly instruct the jury. In his Appellant's Brief he filed on direct review, he took issue with the trial court's refusal to instruct the jury as he wished, but he did not raise any federal basis for his claim. Respondent's Exhibit 105, pp. 49-62. “If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court.” Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996); see also Duncan v Henry, 513 U.S. 364, 365-66 (1995).
Petitioner did raise a federal challenge to the trial court's instruction that the jury could reach a non-unanimous decision, Respondent's Exhibit 105, pp. 62-66, but he does not pursue that claim in this habeas corpus case. Even if he did, he would be unable to prevail because: (1) he was not convicted by a non-unanimous jury; and (2) even if he had been convicted by a non-unanimous jury, the Supreme Court's decision finding such decisions to be unconstitutional does not apply retroactively to cases on collateral review such as this one. Trial Transcript, pp. 1219-20; Edwards v. Vannoy, 141 S.Ct. 1547 (2021).
In Grounds Three and Five, Petitioner alleges that the trial court violated his right to due process when it deprived him of a meaningful opportunity to argue a suppression motion and a motion to dismiss. As with Ground Two, Petitioner raised similar issues in his Appellant's Brief but failed to alert the Oregon Court of Appeals that he was raising a federal issue. Respondent's Exhibit 104, pp. 12-14; Respondent's Exhibit 105, pp. 21-29. Again, "[t]he law of [the Ninth Circuit] is plainly that a federal claim has not been exhausted in state court unless petitioner both raised the claim in state court and explicitly indicated then that the claim was a federal one." Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000) as modified by 247 F.3d 904 (9th Cir. 2001) (emphasis in original); see also Reese v. Baldwin, 541 U.S. 27, 32 (2004) (requiring a litigant to indicate the federal nature of his claim at each level of his state court proceedings). Where Petitioner did not do so as to Grounds Two, Three, and Five, he failed to fairly present them to Oregon's state courts. Because he may no longer raise these direct appeal claims in state court, Grounds Two, Three, and Five are procedurally defaulted.
III. The Merits
A. 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: (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 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. Twenty-eight U.S.C. § 2254(d) "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents. It goes no farther." Harrington v. Richter, 562 U.S. 86, 102 (2011).
Twenty-eight U.S.C. § 2254(d)(2) allows a petitioner to “challenge the substance of the state court's findings and attempt to show that those findings were not supported by substantial evidence in the state court record.” Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). A state court renders an unreasonable determination of the facts if it “plainly misapprehends or misstates the record in making its findings or where the state court has before it, yet apparently ignores, evidence that supports petitioner's claim.” Andrew v. Davis, 944 F.3d 1092, 1107 (9thCir. 2019) (internal quotations omitted). A federal habeas court cannot overturn a state court decision on factual grounds “unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). This is a “‘daunting standard-one that will be satisfied in relatively few cases,' especially because we must be ‘particularly deferential to our state-court colleagues.'” Hernandez v. Holland, 750 F.3d 843, 857 (9th Cir. 2014) (quoting Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)).
When a state court reaches a decision on the merits but provides no reasoning to support its conclusion, the federal habeas court must conduct an independent review of the record to determine whether the state court clearly erred in its application of Supreme Court law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). In such an instance, although the federal court independently reviews the record, it still lends deference to the state court's ultimate decision and will only grant habeas relief if the state court's decision was objectively unreasonable. Richter, 562 U.S. at 98; Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
B. Analysis
In Oregon, Assault in the Second Degree is satisfied if one “Recklessly causes serious physical injury to another by means of a deadly or dangerous weapon under circumstances manifesting extreme indifference to the value of human life.” ORS 163.175(c). At trial, Petitioner moved for a judgment of acquittal as to the Assault II charge, arguing that the State had failed to develop sufficient evidence to show he: (1) manifested extreme indifference to the value of human life; and (2) caused serious physical injury to Allen. Trial Transcript, pp. 912-36. The trial court found that, in the light most favorable to the State, there was sufficient evidence for the charge to go to the jury for a determination on whether the State had met its burden of proof. Id at 935-36.
Just as in his criminal trial, in Ground One Petitioner alleges that there was insufficient evidence adduced at trial to establish serious physical injury or that he demonstrated extreme indifference to the value of human life so as to satisfy the elements of Assault in the Second Degree. When reviewing a habeas corpus claim based on insufficient evidence, "[t]he relevant question is whether, after 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." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). When the record supports conflicting inferences, courts must presume the jury resolved the conflicts in favor of the prosecution. Id at 326. Because this issue occurs in the habeas corpus context which carries with it a stringent standard of review, this court is required to apply a “double dose of deference” to the state court decision, a level of deference “that can rarely be surmounted.” Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011).
In Oregon, “serious physical injury” is defined as “physical injury that creates a substantial risk of death or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” ORS 161.015(8). Petitioner asserts that where Allen expected to recover from her injuries such that they were not permanent, and in the absence of expert medical testimony that he actually caused her injuries, there was insufficient evidence to support his conviction for Assault II. To the contrary, even in the absence of expert medical testimony, a reasonable juror could easily conclude that Petitioner caused Allen to suffer serious physical injury when, as a result of the violent vehicular collision he instigated, she suffered a shattered pelvis, a ruptured bladder that required reconstructive surgery, and still suffered significant pain and protracted impairment to her mobility when she testified at Petitioner's trial eight months after the accident.
Petitioner also maintains that there was insufficient evidence to show that he demonstrated extreme indifference to the value of human life. In Oregon, this element is met if the State establishes a defendant's willingness to commit “an extremely dangerous act” while displaying indifference as to whether it will result in the death of another human being. State v. Downing, 294 Or.App. 68, 83 , 366 P.3d 1171 (2016); see also State v. Cook, 163 Or.App. 578, 583, 989 P.2d 474 (1999) (a defendant's conduct satisfies this element if he “care[d] little about the risk of death of a human being”). In this case, Petitioner drove at speeds eclipsing 100 miles per hour in a 35-mile-per-hour zone, veered into oncoming traffic in attempt to elude law enforcement, and led police on an extended chase despite Officer Schoenfield stopping him twice before he crashed into the victims. After he collided with Gilmer and Allen in a potentially fatal crash, Petitioner did not attempt to help them but, instead, ran from the scene. Viewing the evidence in the light most favorable to the State, a reasonable juror could readily concluded that Petitioner's actions demonstrated an extreme indifference to the value of human life. Accordingly, upon an independent review of the record, the trial court's decision to deny Petitioner's motion for judgment of acquittal did not involve an unreasonable determination of the facts. The decision was also neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the Supreme Court.
RECOMMENDATION
For the reasons identified above, the Petition for Writ of Habeas Corpus (#1) should be denied and a judgment should be entered dismissing this case with prejudice. The Court should decline to issue a Certificate of Appealability on the basis that Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2).
SCHEDULING ORDER
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 17 days. If no objections are filed, the Findings and Recommendation will go under advisement on that date.
If objections are filed, a response is due within 14 days after Respondent is 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.