PAUL PAPAK, Magistrate Judge.
Petitioner Jason Reed Niehus brings this habeas corpus action pursuant to 28 U.S.C. § 2254 and challenges his convictions and sentence for kidnapping and assault. For the reasons set forth below, the Petition for Writ of Habeas Corpus [2) should be denied, and Judgment should be entered dismissing this action with prejudice.
On September 22, 2004, the Marion County Grand Jury returned an indictment charging Niehus with one count each of Kidnapping in the First Degree, Assault in the Second Degree Constituting Domestic Violence, Unlawful Use of a Weapon, Felony Assault in the Fourth Degree Constituting Domestic Violence and Resisting Arrest. Respondent's Exhibit 102. Following a bench trial, Niehus was convicted of Kidnapping in the First Degree, Assault in the Second Degree Constituting Domestic Violence and Unlawful Use of a Weapon. The court imposed a sentence totaling 160 months. Respondent's Exhibit 101.
Niehus directly appealed his convictions and sentence, but the Oregon Court of Appeals affirmed the trial court without a written opinion, and the Oregon Supreme Court denied review. State v. Niehus, 209 Or.App. 816, 149 P.3d 347 (2006), rev. denied 342 Or. 417, 154 P.3d 723 (2007); Respondent's Exhibits 105-109.
Niehus next filed for post-conviction relief ("PCR") in state court. The PCR trial court denied relief. Niehus v. Belleque, Marion County Circuit Court Case No. 07C23994. On appeal, the Oregon Court of Appeals affirmed the PCR trial court without written opinion, and the Oregon Supreme Court denied review. Niehus v. Belleque, 238 Or.App. 619, 243 P.3d 808 (2011), rev. denied 349 Or. 602, 249 P.3d 123 (2011); Respondent's Exhibits 128-133.
On April 21, 2011, Niehus filed this action. His grounds for relief as set forth in his Petition are as follows:
Respondent asks the Court to deny relief on the Petition because: (1) Ground Two is procedurally defaulted; (2) Grounds One, Three and Four were correctly denied on the merits in state-court decisions entitled to deference; and (3) all grounds are without merit.
Notwithstanding the fact that respondent briefed all the claims set forth in the Petition, with the exception of the ineffective assistance of trial counsel claims set out in Grounds One (C) and (F) as to counsel's alleged failure to object to the imposition of consecutive sentences pursuant to O.R.S. 137.123, Niehus does not provide argument to support the merits of his remaining claims. Rather, he "submits the remaining claims for this Court's consideration on the existing record." Brief in Support [34) at 5.
On federal habeas review, Niehus must show that the state court determination denying his claims was contrary to or involved an unreasonable application of established Supreme Court precedent. 28 U.S.C. § 2254(d). The Court has reviewed Niehus' unargued claims on the existing record and determined
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 Niehus 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 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.
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. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the trial. Id at 696.
Niehus contends the PCR trial court's denial of his claim of ineffective assistance of counsel for failing to move for judgment of acquittal on the kidnapping charge based on the state's failure to prove he intended to interfere substantially with the victim's personal liberty was contrary to Strickland and Kinunelman v. Morrison, 477 U.S. 365 (1986) and based on an unreasonable determination of the facts.
The PCR trial court made the following pertinent findings of fact and conclusions of law relating to this claim:
Respondent's Exhibit 126, pp. 5-7.
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 trial of fact could have found the essential elements of the crime proved beyond a reasonable doubt." State v. Rose, 311 Or. 274, 281 (1991). Conflicts in the evidence are resolved in the state's favor. State v. King, 307 Or. 332, 339 (1989).
Oregon law provides, in relevant part, that a person commits the crime of kidnapping in the first degree if, with the intent to interfere substantially with another's personal liberty, and without consent or legal authority, he (a) takes a person from one place to another; or (b) secretly confines the person in a place where he is not likely to be found, with the purpose to cause physical injury to the victim. O.R.S. 163.235(1) (c) & 163.225.
Niehus argues any movement of the victim here was "merely incidental" to the assault and insufficient to sustain a kidnapping conviction. Brief in Support [34] at 8 (citing State v. Garcia, 605 P.2d 671, 675 (Or. 1980); State v. Wolleat, 111 P.3d 1131, 1135 (Or. 2005)). He suggests further that evidence he was assaulting the victim as he dragged her back into the apartment buttresses his argument that such movement was incidental to the assault and not evidence of his intent to interfere substantially with her liberty. Id. at 8-10. The Court disagrees.
The facts here are distinguishable from Wolleat. In that case, the court concluded that dragging the victim from one room to another while assaulting her was insufficient to constitute kidnapping as it failed to meet the element of "intent to interfere substantially with another's personal liberty." In contrast, here, Niehus did not merely move the victim from room-to-room, but seized her outside her apartment as she was trying to escape and yelling for help, dragged her approximately 30 feet back inside the apartment, and shut the door. Respondent's Exhibit 103, Trial Transcript, pp. 52-53, 69-70. Niehus' arguments notwithstanding, the evidence that he dragged the partially dressed victim, as she was attempting to flee and yelling for help, back into her apartment, supports a finding that he intended to hide her from view and to limit her freedom in a way that was not merely incidental to the prior assault.
Based on this evidence, Niehus cannot show that any failure on trial counsel's part to specifically move for judgment of acquittal on the kidnapping charge based on the State's failure to prove Niehus intended to substantially interfere with the victim's personal liberty, fell below an objective standard of reasonableness, or that there is a probability that had the motion been filed, it would have been successful and the result of the proceeding would have been different.
Accordingly, Niehus has failed to demonstrate that the PCR court's denial of this ineffective assistance of trial counsel claim was contrary to or an unreasonable application of clearly established federal law, as determined by the Supreme Court, or that it was based on an unreasonable determination of the facts.
Niehus contends that trial counsel rendered deficient performance when he failed to object to the Court's imposition of consecutive sentences without first making the required findings under O.R.S. 137.123 establishing: (1) a willingness to commit more than one criminal offense; or (2) that the offense caused or created a risk of causing greater or qualitatively different harm to the victim. Under the relevant state statute:
O.R.S. 137.123(5). According to Niehus, no evidence was presented at trial supporting either of these exceptions.
The PCR trial court made the following pertinent finding of fact relating to this claim:
Respondent's Exhibit 126, pp. 5-7.
Notably, the PCR trial court had before it an affidavit from Niehus's trial counsel wherein counsel averred, "I did not object to the imposition of consecutive sentences pursuant to ORS 137.123. Based on the testimony presented and the court's verdict on the felony cases, it seemed readily apparent that the kidnapping charge and the assault charge were both separate and distinct acts and both showed a willingness to commit more th[a]n one crime." Respondent's Exhibit 123.
The Court's review of the current record reveals that the trial court did not make findings on the record establishing one of the exceptions under O.R.S. 137.123(5). Accordingly, the Court does not presume the correctness of PCR court's finding to the contrary. In addition, given the State does not dispute Niehus's assertion that the kidnapping and assault convictions arose out of a "continuous and uninterrupted course of conduct," the Court assumes this fact. In this context, the Court notes the following exchange took place at Niehus's sentencing:
Respondent's Exhibit 104(emphasis added) The Court then proceeded to impose consecutive sentences on the kidnapping and assault convictions totaling 160 months.
As Niehus fairly points out, this exchange lends itself, not to the question of whether an exception set out in O.R.S. 137.123 has been established, but rather to the question of whether a departure sentence is appropriate. It is evident that the trial court wanted to impose a departure sentence based on both on the seriousness of Niehus's current crimes and on his extensive criminal history.
Nevertheless, the Court is persuaded on this record that there was sufficient evidence presented at trial to support consecutive sentences under ORS 137.123. For the reasons discussed above establishing that the kidnapping was not merely incidental to the assault, the trial court could have determined that Niehus demonstrated a willingness to commit more than one crime. In the alternative, there was ample evidence in the record supporting a departure sentence based on Niehus's extensive criminal record.
Based on the foregoing, the Court finds that PCR court reasonably could have applied Strickland to decide that Niehus was not prejudiced by counsel's failure to object to the court's imposition of consecutive sentences pursuant to O.R.S. 137.123. See Harrington v. Richter, 131 S.Ct. 770, 786 (2011) ("Under §2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court decision; and then it must ask whether it is possible fair minded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this [United States Supreme] Court."). Accordingly, the Court's review of the record leads only to the conclusion that Niehus has failed to demonstrate that the PCR court's denial of this ineffective assistance of counsel claim, was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.
Based on the foregoing, the Petition for Writ of Habeas Corpus [2] should be DENIED, and judgment should enter DISMISSING this case with prejudice.
In addition, the district judge should certify that Niehus has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). This case is not appropriate for appellate review.
The Findings and Recommendations will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due fourteen (14) days after being 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.
A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4 (a) (1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.
However, after Niehus was convicted on multiple counts, the prosecutor proposed the following: "Over the lunch hour I thought perhaps maybe a better way to it would be to simply impose the two Measure 11 sentences, run them consecutive to one another." In response the Court stated, "So really what you're saying is you presented aggravating factors to me, obviously not knowing until five or ten minutes ago what my decision was going to be, but you're asking me to depart if I choose to adopt what you're proposing?". The prosecutor answered "correct".
