Thompson v. Premo, 6: 15-cv-01313-AA

CourtUnited States District Courts. 9th Circuit. United States District Court (Oregon)
PartiesMATTHEW DWIGHT THOMPSON, Petitioner, v. JEFF PREMO, Superintendent, Oregon State Penitentiary, Respondent.
Docket Number6: 15-cv-01313-AA
Decision Date13 May 2021

JEFF PREMO, Superintendent, Oregon State Penitentiary, Respondent.

6: 15-cv-01313-AA


May 13, 2021


Ellen Pitcher
6312 SW Capital Hwy, Suite 187
Portland, OR 97239

Michael R. Snedeker
4110 SE Hawthorne Blvd
Portland, OR 97214-5246

Attorneys for Petitioner

Ellen F. Rosenblum
Attorney General
Timothy A. Sylwester
Ryan P. Kahn
Assistant Attorneys General
Department of Justice
1162 Court Street NE
Salem, Oregon 97301

Attorneys for Respondent

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AIKEN, District Judge.

Petitioner brings this capital habeas corpus action pursuant to 28 U.S.C. § 2254 in which he challenges his convictions and death sentence for aggravated murder. For the reasons set forth below, the Court denies Claim Three and Claims Five through Fifteen of the Petition for Writ of Habeas Corpus [43] and dismisses them with prejudice.

I. Factual Background

The facts regarding the aggravated murders and other crimes for which petitioner was convicted and sentenced to death are set forth in State v. Thompson, 328 Or. 248, 971 P.2d 879 (1999), cert. denied, 527 U.S. 1042 (1999). Briefly, about 10:30 p.m. on November 18, 1994, petitioner and Paul Whitcher entered the Driftwood Tavern in Portland and ordered a pitcher of beer. They approached Debra Oyamada who was sitting at a video poker machine and asked her if she was from "the 'samurai family'" or "from samurai blood." She responded that she was. Petitioner pursued the conversation, but Oyamada said she did not want to talk and turned her back on him because she thought his questions were weird and that he was "overbearing." Petitioner persisted, telling her, "I need to know about it. I'm a warrior and I want to know about this." Oyamada again told him she did not want to talk. Petitioner sat down next to her and she told him that he was sitting in someone else's seat. Petitioner got up and started to the door. As he and Whitcher walked, Oyamada's husband, Andrew McDonald, approached and said, "Please leave her alone, she doesn't want to talk about it." Pat Disciasio, the bartender, directed petitioner and Whitcher to leave. When they did not go immediately, he said, "Good night, you guys," and pointed to the door. As they left, one of them said, "I feel like killing somebody tonight." They

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stood outside the tavern and petitioner told Whitcher, "I'm going back in there and kick that guy's ass." Petitioner said, "If we do this, you know, we're going to jail."

Five to ten minutes after leaving the tavern, petitioner ran back in alone, grabbed McDonald from behind, began striking him, and dragged him outside. Oyamada followed and tried to pull petitioner off McDonald. Petitioner turned to her, hitting her in the head, throwing her on the ground, and stabbing her in the head and neck. Bill Jones also came from inside the tavern and grabbed petitioner. Petitioner stabbed him six times. Petitioner fled and ambulances came and took McDonald, Oyamada, and Jones to the hospital. McDonald died from multiple stab wounds.

Meanwhile, petitioner and Whitcher walked to his grandmother's house, where petitioner lived. Petitioner introduced Whitcher to his grandmother and she went to bed. About 1:30 a.m. she woke to a lot of noise and went downstairs. She found Whitcher picking up broken glass and petitioner cleaning grape juice off the rug. She asked Whitcher to leave. Petitioner stated he was going to see him home and they left. When petitioner returned a short time later, his grandmother was still cleaning up the spilled juice. He told her that he would clean it up and directed her to go to bed. Before she fell asleep she heard the washing machine running.

About 1:30 a.m. Sally Wooley heard loud, angry male voices outside her home and called "911". She reported that a man was lying face down in the street and that another man wearing a plaid shirt, had kneeled over him, rolled him partially onto his side, rummaged through his pockets, then ran away. Police identified the man on the street as Whitcher. He had been stabbed sixteen to twenty times and was dead. One of his pockets had been turned inside out.

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About 2:00 a.m., police found petitioner walking nearby, smelling of alcohol and acting nervously and evasively. His shoes were untied and although it was cold he wore no socks. One of his eyes was swollen. Police thought he might have witnessed Whitcher's stabbing and questioned him. He denied having been in an altercation, stated that he lived with his grandmother nearby, but gave them his mother's address, and denied that he had ever been arrested or that he was on probation. After a record check revealed this was false, police took him into custody.

Eventually police contacted petitioner's grandmother at her home. She invited them in and gave them permission to look around. She led them to the washing machine in the basement and opened the lid. There was blood on the outside of the machine and on the washed clothing inside, which petitioner's grandmother identified as belonging to petitioner. An expert concluded that DNA recovered from the machine, jeans, a shoelace and a sock was consistent with Whitcher's DNA.

Police returned later with a search warrant and found no weapons. They returned a second time that day and, with petitioner's grandmother's consent, searched the basement. This time a detective found a bloody knife on a cross beam and a blood-smeared wallet inside a wood stove. An expert concluded that blood found on the knife and wallet matched Whitcher's blood type.

II. Procedural Background

Petitioner was tried, convicted and sentenced to death in 1996. On direct review, the Oregon Supreme Court affirmed the convictions and death sentence. Thompson, 328 Or. 248 (1999). The United States Supreme Court denied his petition for writ of certiorari on June 24, 1999. Thompson v. Oregon, 527 U.S. 1042 (1999).

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Petitioner next filed for post-conviction relief ("PCR") in state court. Thompson v. Palmateer, Marion County Circuit Court Case No. 99C15857. The PCR court held an evidentiary trial and denied relief on petitioner's Third Amended Petition for Post-Conviction Relief. DR 18-11, pp. 5-6, Respondent's Exhibit ("Ex.") 404. The Oregon Court of Appeals affirmed on appeal and the Oregon Supreme Court ultimately denied review. Thompson v. Belleque, 268 Or. App. 1, 341 P.3d 911 (2014), rev. denied, 357 Or. 300, 353 P.3d 595 (2015).

On December 1, 2016, petitioner timely filed a Petition for Writ of Habeas Corpus. The Petition [43] raises seventeen (17) claims and numerous sub-claims. In an Order dated January 16, 2018, the Court dismissed with prejudice Claims One, Two, Four and Seventeen on the basis that those claims are procedurally defaulted and petitioner failed to demonstrate entitlement to excuse their default. In addition, the Court dismissed Claim Sixteen without prejudice as premature. The parties have briefed the merits of the remaining claims.

III. Applicable Law

A. Standards for Habeas Relief

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 petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

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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, 120 S.Ct. 1495, 146 L.Ed.2d 389 (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." Williams, 529 U.S. 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, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991).

"[R]eview under §2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 181, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2001)(holding that "the record under review is limited to the record in existence at that same time, i.e., the record before the state court."); see Murray v. Schriro, 745 F.3d 984, 998 (9th Cir. 2014)("Along with the significant deference AEDPA requires us to afford state court decisions, AEDPA also restricts the scope of the evidence that we can rely on in the normal course of discharging our responsibilities under §2254(d)(1)."). This evidentiary limitation is applicable to §2254(d)(2) claims as well. Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir. 2013). Therefore:

for claims that were adjudicated on the merits in state court, petitioners can rely only on the record before the state court in order to satisfy the requirements of

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§2254(d). This effectively precludes federal evidentiary hearings for such claims because the evidence adduced during habeas proceedings in federal court could not be considered in evaluating whether the claim meets the

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