Black v. Taylor

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

KEVIN LEE BLACK, Case No. 2:19-cv-00741-MC

Petitioner, OPINION AND ORDER

v.

JERI TAYLOR, Superintendent,

Respondent.

______________________________

MCSHANE, District Judge.

Petitioner brings this federal habeas action pursuant to 28 U.S.C. § 2254 challenging his

convictions for numerous theft and burglary offenses. Petitioner contends that his trial counsel

rendered constitutionally ineffective assistance by failing to move for the suppression of

evidence seized from petitioner’s car after his arrest. Petitioner’s claim was denied in a state

court decision entitled to deference, and the Petition is DENIED.

Page 1 - OPINION AND ORDER

BACKGROUND

On January 19, 2012, Eugene Police Department officers responded to a reported

residential burglary involving the theft of numerous items, including an electronic tablet and a

laptop computer. Resp’t Ex. 116 at 4. The electronic devices were installed with location-

tracking software and the owner had determined they were located at or near a duplex in

Springfield, Oregon. Id.

Officers arrived at the duplex and noticed an Oldsmobile Alero parked on the street. Id. at

5. Inside the car, officers saw several bags, jewelry, and a hardback book that the burglary

victims had identified as stolen. Id. One of the duplex residents, Jeffery Wedekind, eventually

consented to a search of the home and told officers that his wife had recently been “hanging out”

with petitioner and another man. Id. During the search, officers found and seized additional items

reportedly stolen from the burglary victims. Id. at 5-6.

Officers asked about the owner of the Alero, and Wedekind told them that it belonged to

petitioner. Officers determined that the Alero was registered to Pamela and Oscar Garrison and

had been “on loan” to petitioner since December 2011. Resp’t Ex. 116 at 6. After obtaining a

search warrant for the Alero, officers found and seized stolen items connected to eight residential

burglaries. Id. 6-7.

Officers could not locate petitioner, and his parole officer informed them that she was

seeking an arrest warrant because petitioner “was non-compliant with the conditions of his

supervision and she did not know where to locate him.” Id. at 10. Ultimately, a warrant was

issued for petitioner’s arrest.

On the morning of February 7, 2012, Officer McGuire of the Eugene Police Department

responded to a report of suspicious circumstances at a McDonald’s parking lot. According to an

Page 2 - OPINION AND ORDER

anonymous caller, two individuals appeared to be exchanging coins and gold jewelry stored in a

safe inside an Oldsmobile Alero. Resp’t Ex. 114 at 4; see also Resp’t Ex. 123. After arriving at

the scene, Officer McGuire ran a records check on the license plate of the Alero and learned that

petitioner was associated with the vehicle and had a warrant for his arrest. Resp’t Ex. 114 at 4.

Officer McGuire also reviewed a photograph of petitioner obtained from a police database. After

following the Alero for a short time, Officer McGuire pulled it over for suspected traffic

infractions. Id.

Officer McGuire recognized petitioner as the driver of the Alero and took him into

custody. Id. After obtaining petitioner’s consent, Officer McGuire reviewed petitioner’s

identification to confirm he was the subject of the arrest warrant. Resp’t Ex. 123 at 6. The Alero

was unlawfully parked in the middle of a parking lot, and officers conducted an inventory search

of the vehicle before it was towed. Resp’t Ex. 114 at 5. Officers discovered controlled substances

and stolen items connected to numerous burglaries. Id. at 5-8.

A grand jury eventually indicted petitioner on fifteen counts of Burglary in the First

Degree, one count of Attempted Burglary in the First Degree, eight counts of Theft in the First

Degree, eight counts of Theft in the Second Degree, seven counts of Identify Theft, two counts

of unlawful possession of burglary tools or theft devices, and one count of unlawful possession

of methamphetamine. Resp’t Ex. 102. The State also gave notice of several aggravating factors

that could increase petitioner’s potential sentence. Resp’t Ex. 118.

On June 8, 2012, petitioner pled guilty to all forty-two counts charged in the indictment

in exchange for the State’s agreement that it would not seek more than 300 months of

imprisonment. Resp’t Ex. 103. At sentencing, the court imposed the recommended sentence of

300 months. Resp’t Ex. 104 at 87-88; Resp’t Ex. 101.

Page 3 - OPINION AND ORDER

After an unsuccessful direct appeal, petitioner sought post-conviction relief (PCR) on

grounds of ineffective assistance of counsel. Specifically, petitioner alleged that trial counsel

failed to seek the suppression of evidence seized during the second search of the Alero and failed

to ensure petitioner’s plea was knowing and voluntary. Resp’t Ex. 111. The PCR court denied

both claims. Resp’t Ex. 126. On appeal, petitioner challenged the denial of his claim alleging

counsel’s failure to file a suppression motion. Resp’t Ex. 127. The Oregon Court of Appeals

affirmed without opinion, and the Oregon Supreme Court denied review. Resp’t Exs. 130, 131.

On May 9, 2019, petitioner filed the instant habeas action.

DISCUSSION

In this federal habeas action, petitioner claims that trial counsel was ineffective by failing

to seek the suppression of evidence seized from the Alero on February 7, 2012.1 Respondent

argues that habeas relief should be denied because the PCR court reasonably rejected this claim

and its decision is entitled to deference.

A federal court may not grant a habeas petition regarding any claim “adjudicated on the

merits” in state court, unless the state court ruling “was contrary to, or involved an unreasonable

application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A state court decision is

“contrary to” established federal law if it fails to apply the correct Supreme Court authority, or if

it reaches a different result in a case with facts “materially indistinguishable” from relevant

Supreme Court precedent. Brown v. Payton, 544 U.S. 133, 141 (2005); Williams v. Taylor, 529

1 Petitioner also alleges that counsel was ineffective by failing to ensure that petitioner’s

plea was knowing and voluntary. Pet. at 6 (ECF No. 1). However, petitioner concedes that this

claim is barred from federal review by procedural default because he did not fairly present it to

the Oregon courts. Pet’r Brief at 9, n.8 (ECF No. 41); 28 U.S.C. § 2254(b)(1)(A); Duncan v.

Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Coleman v. Thompson, 501 U.S. 722, 732,

735 n.1 (1991).

Page 4 - OPINION AND ORDER

U.S. 362, 405-06 (2000). A state court decision is an “unreasonable application” of clearly

established federal law if the state court identifies the correct legal principle but applies it in an

“objectively unreasonable” manner. Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per

curiam); Williams, 529 U.S. at 407-08, 413.

Under the well-established precedent of Strickland v. Washington, 466 U.S. 668 (1984), a

habeas petitioner alleging the ineffective assistance of counsel must show that 1) “counsel’s

performance was deficient,” and 2) counsel’s “deficient performance prejudiced the defense.” Id.

at 687. To establish deficient performance, petitioner “must show that counsel’s representations

fell below an objective standard of reasonableness.” Id. at 688. To demonstrate prejudice,

petitioner “must 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. Unless petitioner

“makes both showings, it cannot be said that the conviction...resulted from a breakdown in the

adversary process that renders the result unreliable.” Id. at 687.

During his PCR proceeding, petitioner argued that counsel should have filed a motion to

suppress on grounds that Officer McGuire unlawfully arrested petitioner prior to confirming his

identify and the search of the Alero arose from petitioner’s unlawful arrest. Resp’t Ex. 112 at 10-

11. In rejecting petitioner’s claim, the PCR found:

Petitioner failed to prove that his attorney was ineffective for failing to file a

motion to suppress. Petitioner’s case was resolved by plea negotiations. In Lane

County, filing a motion to suppress marks the end of plea negotiations. There was

no need to file a motion to suppress.

In addition, Petitioner failed to prove prejudice because there was no basis for a

motion to suppress. The officer pulled Petitioner’s vehicle over for a traffic

violation. He was aware that Petitioner was associated with the vehicle and that

there was an outstanding warrant for Petitioner’s arrest. The officer had a photo of

Petitioner and identified Petitioner when he got out of the vehicle. The officer

asked Petitioner his name and confirmed his identity. A motion to suppress would

have been unsuccessful.

Page 5 - OPINION AND ORDER

Resp’t Ex. 126 at 2. Based on the evidence of record, the PCR court’s decision was not an

objectively unreasonable application of Strickland.

As noted by the PCR court, petitioner’s counsel explained that he did not move to

suppress evidence seized from the Alero because filing a motion to suppress in Lane County

“signals the end of negotiations” and petitioner was “desperate to settle throughout the pendency

of his case.” Resp’t Ex. 121 at 2-3. Further, counsel believed a suppression motion would be

futile because police officers “knew precisely who petitioner was, and they knew his car. He was

sought in connection with a series of Burglaries, and he was on their radar.” Id. at 3. Indeed, the

record reflects that Officer McGuire confirmed petitioner’s identity and the validity of the arrest

warrant before officers conducted an inventory search of the Alero. Resp’t Exs. 114, 123. In light

of this record, the PCR court reasonably found no deficiency arising from the failure to file an

unmeritorious motion that would have interfered with petitioner’s stated interests in settlement.

See, e.g., Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (stating that “the failure to take a

futile action can never be deficient performance”); James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994)

(accord).

Petitioner next argues that the PCR court applied the incorrect legal standard when it

found that petitioner suffered no prejudice. To establish prejudice in the context of a guilty plea,

petitioner “must show that there is a reasonable probability that, but for counsel’s errors, he

would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474

U.S. 52, 59 (1985). Petitioner maintains that the PCR court relied on the perceived success of a

suppression motion and failed to consider the likelihood petitioner would have chosen to stand

trial if counsel had filed the motion. Petitioner maintains that he can establish prejudice because

“filing the suppression motion would have resulted in the case going to trial.” Pet’r Brief at 15.

Page 6 - OPINION AND ORDER

However, based on the evidence of record, the PCR reasonably found that petitioner

wanted to resolve the charges through a plea agreement rather than a trial, and an unsuccessful

motion to suppress would have terminated the plea negotiations. Given these findings, petitioner

fails to show that but for counsel’s alleged deficiency, he would have “insisted” on a trial and a

different “outcome of the plea process.” Hill, 474 U.S. at 59.

CONCLUSION

The Petition for Writ of Habeas Corpus (ECF No. 1) is DENIED and this case is

DISMISSED. A Certificate of Appealability is denied on the basis that petitioner has not made a

substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).

DATED this 9th day of September, 2021.

s/ Michael J. McShane

MICHAEL J. MCSHANE

United States District Judge

Page 7 - OPINION AND ORDER