Jenkins v. Hall
| Decision Date | 12 January 2015 |
| Docket Number | Civil No. 2:11-cv-01307-PA |
| Court | U.S. District Court — District of Oregon |
| Parties | DANIEL LOREN JENKINS, Petitioner, v. GUY HALL, Respondent. |
THOMAS J. HESTER
Assistant Federal Public Defender
101 SW Main Street
Suite 1700
Portland, OR 97204
Attorney for Petitioner
ELLEN F. ROSENBLUM
Attorney General
FREDERICK M. BOSS
Deputy Attorney General
KRISTEN E. BOYD
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301
Attorneys for Respondent
Petitioner, an inmate at the Two Rivers Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the court DENIES the Petition for Writ of Habeas Corpus.
On January 19, 1999, a Multnomah County grand jury indicted Petitioner on charges of Theft in the First Degree, Forgery in the First Degree, Tampering with Public Records, Menacing, and Solicitation to Commit Murder. Resp. Exh. 102. The Solicitation to Commit Murder charge was dismissed shortly thereafter. On, June 16, 1999, a Multnomah County grand jury issued a new, separate indictment on one count of Solicitation to Commit Aggravated Murder. The two cases were consolidated and tried to a jury.
At the close of evidence, the trial judge dismissed the Menacing charge for lack of evidence. The jury then found Petitioner guilty on the remaining charges. On appeal, the Oregon Court of Appeals affirmed the convictions for Theft, Tampering, and Forgery, but overturned the conviction for Solicitation to Commit Aggravated Murder. State v. Jenkins, 190 Or. App. 542, 79 P.3d 347 (2003, adhered to as modified on reconsid., 191 Or. App. 617, 83 P.3d 390 (2004).1 The state sought review of the decisionoverturning the solicitation charge, but the Oregon Supreme Court denied the state's petition for review. State v. Jenkins, 337 Or. 160, 94 P.3d 876 (2004) .
Petitioner was later re-tried on the Solicitation charge, and a jury again found him guilty. Petitioner appealed that conviction, but the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. State v. Jenkins, 227 Or. App. 506, 206 P.3d 286, review denied, 346 Or. 362, 211 P.3d 931 (2009). The second Solicitation conviction is not challenged in this habeas action; the only convictions at issue here are for Theft in the First Degree, Forgery in the First Degree, and Tampering with Public Records.
While the direct appeal from the second Solicitation to Commit Murder conviction was pending, petitioner was simultaneously pursuing state post-conviction relief ("PCR") on the original Theft, Forgery, and Tampering convictions. Following an evidentiary hearing, the PCR trial judge denied relief. Petitioner appealed, but the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Jenkins v. Hall, 237 Or. App. 575, 241 P.3d 356 (2010), rev. denied, 349 Or. 602, 249 P.3d 123 (2011).
On October 31, 2011, Petitioner filed his Petition for Writ of Habeas Corpus in this court. Petitioner challenges the convictions for Theft in the First Degree, Forgery in the First Degree, and Tampering with a Public Document on three grounds:
Ground One: Ineffective Assistance of Counsel where defense attorney failed to move for mistrial during and after improper closing rebuttal argument from state prosecutor.
Supporting Facts: State prosecutor made a series of prohibited arguments in closing which were calculated to inflame the passions of the jury, appeal to prejudice, and were outside the trial record. The prosecutor told the jury that Petitioner was mentally ill in the absence of any foundational evidence. Prosecutor urged the jury to convict Petitioner on the basis of the alleged mental illness warning the jury panel of dire consequences and individual reprisals against trial witnesses and the jury panel should the jury fail to convict.
Ground Two: Ineffective Assistance of Counsel where defense attorney failed to investigate, research, and understand the facts and the law of two search incidents of Petitioner which occurred Dec. 31, 1998.
Supporting Facts: Trial counsel failed to (1) challenge the administrative and warrantless search of petitioner's Yahoo e-mail account at the Multnomah County Public Library on Dec. 31, 1998, said search violated the Fourth Amendment, U.S.C.A. and the Federal Wiretap Statutes; (2) challenge the warrantless and unreasonable search of Petitioner's Washington residence on Dec. 31, 1998, said search violated the Fourth Amendment, U.S.C.A.; (3) challenge the Oregon lex fori evidentiary rule which violates the Full Faith and Credit Clause to Article IV, Section I, United States Constitution.
Ground Three: Ineffective Assistance of Counsel where former defense counsel failed, upon request, to surrender the client case file to Petitioner.
The court subsequently appointed counsel to represent petitioner. In the Brief in Support of Petition, petitioner addresses only two claims: (1) trial counsel's ineffectiveness in failing to challenge the search of petitioner's Washington-residence on December 31, 1998; and (2) trial counsel's ineffectiveness in failing to move for a mistrial during or after the prosecutor's closing argument. Respondent argues Petitioner failed to meet his burden on the claims not addressed in his Brief in Support of Petition, and that the state PCR court's decision denying relief on the remaining two claims is entitled to deference because it was not contrary to or an unreasonable application of clearly established federal law.
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 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 anunreasonable application of, clearly-established federal law, as determined by the Supreme Court of the United States" or (2) was "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" federal law under the AEDPA if it either fails to apply the correct Supreme Court authority or applies the correct controlling authority to a case involving "materially indistinguishable" facts but reaches a different result. Williams v. Taylor, 529 U.S. 362, 405-07, 413 (2000). Similarly, a state court decision is an unreasonable application of federal law "if the state court identifies the correct governing legal principle from Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (citations omitted).
An unreasonable application of federal law is a different than an incorrect application of federal law. Hibbler v. Benedetti, 693 F.3d 1140, 1148 (9th Cir. 2012), cert. denied, 133 S.Ct. 1262 (2013). "'[T]he question . . . is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable—a substantially higher threshold.'" Id. at 1146 (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). Moreover, the state court'sfindings of fact are presumed correct, and a petitioner bears the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
To prevail on a claim of ineffective assistance of counsel, petitioner must show both (1) that the attorney's performance fell below an objective standard of reasonableness; and (2) that the performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 688 (1984). There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, or what "might be considered sound trial strategy." Strickland, 466 U.S. at 689. Reasonableness is judged as of the time of counsel's conduct, not in hindsight. Id. at 689-90.
A federal court reviews a state court's application of Strickland for reasonableness, not for correctness. Premo v. Moore, 562 U.S. 115, 131 S.Ct. 733, 740 (2011). The federal court does not ask "'whether counsel's actions were reasonable'" but "'whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.'" Id. (quoting Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 788 (2011)). "Accordingly, a 'doubly deferential judicial review' applies to Strickland claims rejected by the state court." Id. (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).
Petitioner contends trial counsel provided constitutionally ineffective assistance of counsel when he failed to move for a mistrial based upon statements made by the prosecution in rebuttal on closing argument. In particular, Petitioner argues the prosecutor told the jury he was mentally ill, urged the jury to convict petitioner on the basis of the alleged mental illness, and warned the jury panel of dire consequences and individual reprisals against trial witnesses and jury members should the jury fail to convict.
In determining whether comments made by the prosecution in closing argument warrant reversal, the relevant inquiry is whether the prosecutor's remarks "so infected the trial with unfairness as...
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