Opinion
Civil No. 99-788-ST.
January 8, 2002
Barbara L. Creel, Assistant Federal Public Defender Portland, 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, Timothy Ray Vance, an inmate at the Eastern Oregon Correctional Facility brings this action pursuant to 28 U.S.C. § 2254. Petitioner challenges his 1991 convictions on the basis that his Sixth and Fourteenth Amendment rights were violated. For the reasons identified below, the Amended Petition for Writ of Habeas Corpus (docket #45) should be DISMISSED.
BACKGROUND
On March 1, 1991, the victim, Bertha Johnston, answered her door to find two men wearing ski masks and armed with a gun. The men forced their way into the house, forcibly leading Johnston a few steps to the interior of the house. One man held Johnston by the shoulder while the other rummaged through the house. Johnston was told to lie on the floor, but because she had back problems and felt shaky, a chair was pulled out for her to sit on instead. Before leaving, the assailants tied Johnston to the chair with the cord from her kitchen telephone. Trial Tr. at 38-43.
As a result of his participation in the incident described above, petitioner was convicted in 1991 by a jury in Marion County of Robbery in the First Degree, Kidnapping in the First Degree and two counts of First Degree Burglary. The trial court imposed a determinate sentence of 240 months on the Robbery conviction and concurrent sentences on the other charges. On direct appeal, the Oregon Court of Appeals affirmed petitioner's convictions without providing any rationale, but remanded for resentencing in light of its decision in State v. Haydon, 116 Or. App. 347, 842 P.2d 410 (1992). State v. Vance, 116 Or. App. 386, 842 P.2d 418 (1992). Petitioner filed a petition for review which the Oregon Supreme Court denied. State v. Vance, 315 Or. 644, 849 P.2d 525 (1993).
On remand, the trial court again imposed a sentence of 240 months, but did so in a manner consistent with Haydon. Petitioner filed a notice of appeal with the Oregon Court of Appeals, but later voluntarily dismissed the appeal. Respondent's Exhs. 108 109. Petitioner next filed a petition for post-conviction review, but the post-conviction court denied relief on the petition. Respondent's Exhs. 110-111, 117-119. Petitioner appealed this decision, but the appeal was dismissed for failure to file the appellant's brief. Respondent's Exhs. 121 122. Petitioner did not file a petition for review by the Oregon Supreme Court.
In his Amended Petition, petitioner asserts the following grounds for relief:
1. Petitioner's due process rights were violated when he was convicted of robbery, kidnapping and theft based on insufficient evidence;
2. Petitioner's kidnapping conviction violated due process of law because it was based on insufficient evidence for any rational trier of fact to conclude that the essential elements of intent and asportation existed;
3. Petitioner's right to a fair trial was violated by the trial court's admission of a photographic throw-down which suggested that petitioner had a prior criminal record;
4. Petitioner received the ineffective assistance of counsel when his trial attorney failed to:
a) interview and subpoena witnesses necessary for his defense; and
b) investigate or offer any evidence on defendant's behalf; and
5. The Oregon Court of Appeals violated petitioner's due process rights when it failed to enforce the Balfour process, unnecessarily delaying petitioner's post-conviction appeal.
Petitioner voluntarily withdraws Grounds One, Three, Four and Five and proceeds solely on the merits of Ground Two. Reply (docket #63), p. 2. Respondent alleges that a portion of petitioner's Ground Two claim is not alleged in the Amended Petition and, even if alleged, is procedurally defaulted.
Respondent further contends that petitioner's Ground Two claim, in its entirety, lacks merit.
DISCUSSION
Ground Two of the Amended Petition alleges that petitioner's "conviction for kidnapping violated due process of law guaranteed by the Fourteenth Amendment because it was based on insufficient evidence for any rational trier of fact to conclude beyond a reasonable doubt that the essential elements of intent and asportation existed." Amended Petition (docket #45), p. 3. In his supporting memoranda, petitioner argues that the State failed to prove that he intended to terrorize Johnston, an element which is essential to a conviction for First Degree Kidnapping under the facts of this case. O.R.S. 163.235(1).
O.R.S. 163.235 provides that:
(1) A person commits the crime of kidnapping in the first degree if he violates ORS 163.225 [Second Degree Kidnapping] with any of the following purposes:
(a) To compel any person to pay or deliver money or property as ransom; or
(b) To hold the victim as a shield or hostage; or
(c) To cause physical injury to the victim; or
(d) To terrorize the victim or another person.
O.R.S. 163.225 provides that:
(1) A person commits the crime of kidnapping in the second degree if, with intent to interfere substantially with another's personal liberty, and without consent or legal authority, he
(a) Takes the person from one place to another; or
(b) Secretly confines the person in a place where he is not likely to be found.
Respondent contends that the court cannot consider petitioner's "intent to terrorize" claim because it is not exhausted and not pleaded in the Amended Petition. Petitioner requests permission to amend his petition to include this claim if the court finds that amendment is necessary. As discussed below, any such amendment would be futile due to petitioner's failure to exhaust this claim.
I. Exhaustion and Procedural Default
A 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 habeas corpus claims pursuant to 28 U.S.C. § 2254. Rose v. Lundy, 455 U.S. 509, 519-519 (1982). A state prisoner has not fairly presented his federal claims to a state court unless he references specific provisions of the federal constitution or statutes, or cites to federal case law. Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000) amended by 247 F.3d 904 (9th Cir. 2001).
A petitioner must also present his claim in a procedural context in which its merits will be considered. Castille v. Peoples, 489 U.S. 346, 351 (1989). A petitioner is deemed to have "procedurally defaulted" his claim if he fails to comply with a state procedural rule, or fails to raise the claim at the state level at all. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Edwards v. Carpenter, 529 U.S. 446, 451 (2000). If a petitioner has procedurally defaulted on 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).
Respondent asserts that petitioner failed to present the "intent to terrorize" portion of his Ground Two claim to the state courts during direct review and, instead, only raised a claim that the State produced insufficient evidence of petitioner's intent to substantially interfere with the victim's liberty. In order to support a conviction for either First or Second Degree Kidnapping under Oregon law, the State must prove that a defendant acted with "intent to interfere substantially with another's personal liberty." O.R.S. 163.225(1). A conviction for First Degree Kidnapping also requires the State to prove that the abduction was for one for four specific purposes, including "to terrorize the victim or another person." O.R.S. 163.235(1)(d).
On direct review, petitioner argued that the State failed to prove that he intended to interfere substantially with Johnston's personal liberty, which is the general intent requirement for both First and Second Degree Kidnapping. Respondent's Exhs. 102, pp. 10-11, 104, p. 10. However, nowhere in petitioner's state court briefing did he argue that the State failed to also prove the "intent to terrorize" element of First Degree Kidnapping or, for that matter, even refer to O.R.S. 163.235(1). Contrary to petitioner's argument, the "intent to terrorize" element of First Degree Kidnapping is not subsumed in the general intent requirement for both First and Second Degree Kidnapping.
Since petitioner's argument during direct review challenged his kidnapping conviction on the basis that the State failed to prove that he intended to substantially interfere with Johnston's personal liberty, petitioner failed to provide the state courts with a sufficient opportunity to evaluate the merits of his current "intent to terrorize" claim. Accordingly, petitioner "fundamentally alter[s] the legal claim already considered by the state courts," leaving the claim before this court unexhausted. Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999) (citing Chacon v. Wood, 36 F.3d 1459, 1468 (9th Cir. 1994)). Since petitioner is no longer entitled to pursue state remedies, his "intent to terrorize" claim is procedurally defaulted.
Petitioner next argues that the court should excuse his procedural default because he is actually innocent of First Degree Kidnapping. Specifically, petitioner alleges that the State failed to prove the requisite "intent to terrorize" element of First Degree Kidnapping, thus rendering his conviction invalid. Respondent counters that petitioner cannot succeed on a claim of actual innocence because he fails to provide the court with any new evidence that he is actually innocent of First Degree Kidnapping.
In Schlup v. Delo, 513 U.S. 298 (1995), the Supreme Court addressed the process by which state prisoners may prove "actual innocence" so as to excuse a procedural default. The Court explained that in order to be credible, a claim of actual innocence "requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical — that was not presented at trial."Id. at 324(emphasis added); Downs v. Hoyt, 232 F.3d 1031, 1040 (9th Cir. 2000), cert. denied, 121 S.Ct. 1665 (2001).
Ultimately, petitioner must prove that it is more likely than not that, in light of the new evidence, no reasonable juror would have found him guilty beyond a reasonable doubt. Schlup, 513 U.S. at 327; Downs, 232 F.3d at 1040. In making this determination, this court "must assess the probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial." Schlup, 513 U.S. at 332 (emphasis added). Consequently, it is evident that a petitioner wishing to pass through the gateway of actual innocence must base his claim of innocence on new evidence that was not presented at trial.
Justice O'Connor, authoring a concurrence, provided a key fifth vote in Schlup. Her concurrence restates the Court's holding in Schlup as follows: "The Court holds that, in order to have an abusive or successive habeas claim heard on the merits, a petitioner who cannot demonstrate cause and prejudice `must show that it is more likely than not that no reasonable juror would have convicted him' in light of newly discovered evidence of innocence." (emphasis added) Schlup, 513 U.S. at 332.
Petitioner argues that new evidence is not a required component of an actual innocence claim. He maintains that new evidence of innocence is not required in his case because his innocence is apparent on the record and does not involve scientific evidence, eyewitness accounts or critical physical evidence, citing Bousley v. United States, 523 U.S. 614 (1998).
The petitioner in Bousley pleaded guilty to "using" a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Five years later, while his appeal was pending, the Supreme Court defined the "use" prong of § 924(c)(1), holding that the Government is required to show "active employment of the firearm." Bailey v. United States, 516 U.S. 137, 144 (1995). Under this new interpretation of § 924, petitioner did not appear to qualify as having "used" a firearm. Because neither he, his attorney, nor the District Court correctly understood the essential elements of the crime with which he was charged, he argued that his due process rights were violated. Although his due process claim was procedurally defaulted, the petitioner claimed his default should be excused in light of Bailey's interpretation of § 924.
The Court in Bousley remanded the case, holding that the petitioner could potentially excuse this procedural default in light of Bailey. While the Court did not explicitly label Bailey as "new evidence," it allowed the petitioner to make a showing of actual innocence based on this new interpretation of existing law which could not have been presented at the time of trial.
Contrary to petitioner's view, Bousley does not allow a showing of innocence based on the evidence discernible from the record. Instead,Bousley allows a showing of innocence based on a new interpretation of existing law. Bousley did not overturn Schlup. Thus, the principles identified in Schlup regarding new evidence remain valid. Were petitioner's reasoning to prevail, all habeas litigants could attempt to overcome a procedural default by simply claiming that the state court record dictates a different result than actually reached by the state courts. This reasoning runs counter to the idea that actual innocence, as an excuse for procedural default, is reserved for the extraordinary case. Schlup, 513 U.S. at 324.
Accordingly, petitioner's case is distinguishable from the scenario presented in Bousley. Since petitioner in this case undertakes to excuse his default by attempting to show actual innocence based solely on the state court record without any new evidence or without any new interpretation of existing law, he is not entitled to pass through the gateway of actual innocence.
II. 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). The 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 acts "contrary to . . . clearly established Federal law" if it either (1) fails to apply the correct controlling authority, or (2) applies the controlling authority to a case containing facts materially indistinguishable from those in a controlling case, but reaches a different result. Anthony v. Cambra, 236 F.3d 568, 578 (9th Cir. 2000) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
A state court decision involves "an unreasonable application of clearly established Federal law" if it either (1) correctly identifies the governing rule, but then applies it to a new set of facts in a way that is objectively unreasonable, or (2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable. Id. at 406. An "unreasonable application" of federal law results if there is clear error which leaves the court with a definite and firm conviction that an error has been committed. Van Tran v. Lindsey, 212 F.3d 1143, 1153 (9th. Cir. 2000), cert. denied, 121 S.Ct. 340 (2000). Only after discovering a clear error can a court decide whether the error was an unreasonable application of controlling law within the meaning of 28 U.S.C. § 2254(d). Id. at 1155. When a state court decision does not provide a rationale for its decision, the federal habeas court must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
B. Analysis
Petitioner's properly exhausted claim in Ground Two alleges that his due process rights were violated when the State failed to prove the asportation element of kidnapping. In Oregon, a person may only be held liable for kidnapping if he "[t]akes the person from one place to another" (asportation), or "[s]ecretly confines the person in a place where she is not likely to be found." O.R.S. 163.225(1)(a) and (b). Since the Oregon Court of Appeals did not provide a rationale in affirming the trial court, Delgado instructs this court to conduct an independent review of the record.
Due process requires that no person be convicted except upon sufficient proof. Jackson v. Virginia, 443 U.S. 307, 319 (1979). A claim which challenges a conviction on the basis of sufficiency of the evidence must show that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt after viewing the evidence in the light most favorable to the prosecution. Id. Here, petitioner alleges that he was convicted on insufficient evidence because the State never proved that he moved the victim from one place to another, as required by O.R.S. 163.225(1)(a). In support of his claim, petitioner directs the court to State v. Jefferson, 81 Or. App. 479, 726 P.2d 392 (1986).
The defendant in Jefferson forcibly entered the victim's stalled car, pushing the upper two-thirds of the her body off of the driver's seat area to the area where the emergency brake was located; however, the victim's feet remained in the area of the driver's pedals at all times. Id. at 481. The Oregon Court of Appeals held that the facts of the case did not support a finding of asportation because the defendant never moved the victim off the driver's seat and never drove the car with her inside it.Id. at 483. The court explained that the relevant inquiry is not the distance a victim is moved, but rather the fact that the victim is moved from one place to another. Id. (citing State v. Dinkel, 49 Or. App. 917, 924, 621 P.2d 626 (1980) (victims moved from one room of house to another). See also State v. Thomas, 139 Or. App. 308, 312, 911 P.2d 1237 (1996) (asportation proven where defendant moved victim 10-12 feet);State v. Cazares, 44 Or. App. 621, 623, 606 P.2d 688, rev. den. 289 Or. 275 (1980) (victim carried from middle of road to shrubbery beside road).
Petitioner in this case asserts that there is no evidence in the trial record which supports a finding of asportation. To the contrary, the record demonstrates that petitioner and his accomplice either "led" or "pushed" Johnston "just a few steps" from the doorway to the interior of the house. Trial Tr. 40-41. Given that petitioner in this case moved his victim from one place to another, i.e. from the doorway to the interior of the house, a rational trier of fact could have found that the State proved asportation beyond a reasonable doubt after viewing the evidence in the light most favorable to the prosecution.
Finally, petitioner alleges that any asportation of the victim was merely incidental to the accomplishment of another crime, thus the kidnapping conviction is improper. Under Oregon law, a kidnapping conviction is unwarranted where the detention or asportation of the victim is incidental to the accomplishment of another crime. State v. Garcia, 288 Or. 413, 420, 605 P.2d 671, 675 (1979). However, a kidnapping conviction "may be found not to be incidental if the defendant had the intent to interfere substantially with the victim's personal liberty."Id. at 423.
The record reveals that Johnston answered her door to find two men dressed in ski masks pointing a gun at her head. Trial Tr. at 38-40. The men forced the door open and forcibly led her to the interior of the house, holding her by the shoulder. Johnston was kept in the presence of one of her assailants during the course of the robbery, and believes a gun was held to the back of her head during the course of the robbery. Id. at 40-41. Before leaving, petitioner and his accomplice tied Johnston to the chair with telephone cord. Id. at 43. From these facts it is apparent that Johnston was not at liberty to move freely about her home, but was forced to abide by her assailants' instructions. Accordingly, the court concludes that the trier of fact, after viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that petitioner had the intent to interfere substantially with Johnston's personal liberty. Hence, upon an independent review, petitioner's conviction for First Degree Kidnapping is neither contrary to, nor an unreasonable application of, clearly established federal law.
Although not argued here, petitioner properly exhausted a claim that the State failed to prove that he intended to substantially interfere with Johnston's personal liberty. To the extent this claim is before the court, it is without merit for the same reasons that petitioner cannot prove that kidnapping was incidental to the robbery of Johnston.
CONCLUSION
Due to the foregoing, the Amended Petition for Writ of Habeas Corpus (docket #45) and the Petition for Writ of Habeas Corpus (docket #2)should be DISMISSED.
SCHEDULING ORDER
Objections to these Findings and Recommendations, if any, are due January 28, 2002. If no objections are filed, then the Findings and Recommendations will be referred to a district court judge and go under advisement on that date.
If objections are filed, then the response is due no later than February 14, 2002. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will be referred to a district court judge and go under advisement.
DATED January 8, 2002.
Janice M. Stewart Janice M. Stewart United States Magistrate Judge