Stover v. Oregon Board of Parole and Post-Prison Supervision

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PAUL FREDERICK STOVER,

Case No. 2:18-cv-00043-HZ

Petitioner,

OPINION AND ORDER

v.

OREGON BOARD OF PAROLE &

POST-PRISON SUPERVISION,

Respondent.

Kristina S. Hellman

Assistant Federal Public Defender

101 S.W. Main Street, Suite 1700

Portland, Oregon 97204

Attorney for Petitioner

Ellen F. Rosenblum, Attorney General

Kristen E. Boyd, Assistant Attorney General

Department of Justice

1162 Court Street NE

Salem, Oregon 97310

Attorneys for Respondent

HERNANDEZ, District Judge.

Petitioner brings this habeas corpus case pursuant to 28

U.S.C. § 2254 challenging the legality of his Umatilla County

convictions dated December 17, 2013 and January 14, 2014. For

the reasons that follow, the Petition for Writ of Habeas Corpus

(#2) is denied.

BACKGROUND

The Umatilla County Circuit Court provided a comprehensive

factual background for this case:

At trial, the state presented the following

evidence. Over the course of four days

Petitioner assaulted his girlfriend, Earlene

Brown, three times. On one occasion, between

the late hours of Friday, August 24, and

early hours of Saturday, August 25, Brown

refused Petitioner's sexual advances. As a

result, Petitioner started pushing a naked

Brown outside. In an attempt to stay inside

the house, Brown dropped to the floor. With

Brown lying on the floor, Petitioner falsely

accused Brown of kicking him in the

testicles. Then, Petitioner punched Brown in

the head, knocking her out. Petitioner

punched Brown so hard that she was in pain

and bruised for several days. In love and

hoping Petitioner would change, Brown

decided not to call the police.

About two days later, however, Petitioner

again struck Brown. On that day, Petitioner

visited Brown at the store where she worked.

There, Petitioner began to talk to a woman

that was in the store. Petitioner asked the

woman to meet up with him later. Hearing

what Petitioner said, Brown became jealous

and tossed her phone towards Petitioner but

did not strike him. Although the phone

landed some distance away from his feet,

Petitioner stomped on Brown's phone,

cracking the screen. When Brown bent down to

pick up her broken phone, Petitioner grabbed

tongs from a fireplace set and, using the

tongs, smacked Brown on her right wrist. As

a result, she was in pain for several hours.

In fact, Petitioner hit Brown so hard that

Brown bore a tong-shaped bruise and a

swollen wrist. Then, Petitioner turned

around and began to walk out of the store.

As Brown followed Petitioner outside,

Petitioner turned around and punched Brown

in the mouth. Later that day the couple

talked and Petitioner, in tears, told Brown

he would never hit her again. Brown again

decided not to call the police.

On August 27, Brown refused Petitioner's

sexual advances. Demanding that Brown leave,

Petitioner again started to shove Brown

outside while she was naked. Brown began to

struggle to prevent Petitioner from throwing

her outside without pants. Then, Petitioner

punched Brown in the cheek. Subsequently,

Brown's cheek and mouth became bruised and

swollen and she was in immense pain. That

day, Brown realized Petitioner was never

going to stop abusing her so she decided to

call the police. The police arrived at the

scene and subsequently arrested Petitioner.

Based on the first and last assault, a grand

jury indicted Petitioner on two counts of

fourth-degree assault. Based on the second

assault, the grand jury indicted Petitioner

on one count of second-degree assault with

"a fire poker or tongs" and second-degree

criminal mischief for damaging Brown's cell

phone. Petitioner did not testify at his

trial. After deliberation, the jury

unanimously found Petitioner guilty of each

count of assault, but found him not guilty

on the count of criminal mischief.

Respondent’s Exhibit 122, pp. 1-2.

Based upon these incidents, the trial court sentenced

Petitioner to 47 months in prison. Petitioner also entered a no-

contest plea to Tampering with a Witness, leading to the

imposition of a consecutive 24-month prison term. As a result,

Petitioner’s prison sentence totaled 71 months. Trial

Transcript, pp. 317-20.

Petitioner took a direct appeal wherein he raised claims

pertaining to the trial court’s jury instructions and its

assessment of a court-appointed attorney fee. Respondent’s

Exhibit 104. The Oregon Court of Appeals affirmed the trial

court’s decision without issuing a written decision, and the

Oregon Supreme Court denied review. State v. Stover, 276 Or.

App. 919, 370 P.3d 565, rev. denied, 360 Or. 236, 381 P.3d 830

(2016).

Petitioner next filed for post-conviction relief (“PCR”) in

Umatilla County where the PCR court denied relief on his claims.

Respondent’s Exhibit 122. On appeal, and relevant to this habeas

corpus proceeding, he pursued a claim that his trial attorney

was ineffective when he failed to request a lesser-included jury

instruction of Assault in the Fourth Degree (“Assault IV”) as to

the incident at Brown’s workplace involving the fireplace tongs

which resulted in his Assault in the Second Degree (“Assault

II”) conviction. Respondent’s Exhibit 123. The Oregon Court of

Appeals affirmed the PCR court’s decision without opinion, and

the Oregon Supreme Court denied review. Stover v. Bowser, 299

Or. App. 123, 449 P.3d 581, rev. denied, 366 Or. 64, 455 P.3d 39

(2019).

Petitioner now brings this 28 U.S.C. § 2254 habeas corpus

case raising nine grounds for relief. Respondent asks the Court

to deny relief on the Petition because: (1) with the exception

of Petitioner’s Ground Eight claim of ineffective assistance of

counsel, he failed to fairly present any of his claims to

Oregon’s state courts thereby leaving them procedurally

defaulted; (2) the PCR court’s decision denying relief on Ground

Eight is neither contrary to, nor an unreasonable application

of, clearly established federal law; and (3) all of Petitioner’s

claims lack merit.

DISCUSSION

I. 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). 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 of

§ 2254(d)(1), a federal habeas court may grant relief "if the

state court identifies the correct governing 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.

Twenty-eight U.S.C. § 2254(d) "preserves authority to issue the

writ in cases where there is no possibility fairminded jurists

could disagree that the state court's decision conflicts with

[the Supreme] Court's precedents. It goes no farther."

Harrington v. Richter, 562 U.S. 86, 102 (2011).

Twenty-eight U.S.C. § 2254(d)(2) allows a petitioner to

“challenge the substance of the state court’s findings and

attempt to show that those findings were not supported by

substantial evidence in the state court record.” Hibbler v.

Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). A federal habeas

court cannot overturn a state court decision on factual grounds

“unless objectively unreasonable in light of the evidence

presented in the state-court proceeding.” Miller-El v. Cockrell,

537 U.S. 322, 340 (2003). This is a “‘daunting standard—one that

will be satisfied in relatively few cases,’ especially because

we must be ‘particularly deferential to our state-court

colleagues.’” Hernandez v. Holland, 750 F.3d 843, 857 (9th Cir.

2014) (quoting Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.

2004)).

II. Unargued Claims

Petitioner raises nine grounds for relief in his Petition.

In his supporting memorandum, however, he chooses to brief only

his Ground Eight claim that his trial attorney was ineffective

for failing to request a jury instruction on the lesser-included

offense of Assault IV. Petitioner does not argue the merits of

his remaining claims, nor does he address any of Respondent's

arguments as to why relief on these claims should be denied. As

such, Petitioner has not carried his burden of proof with

respect to these unargued claims. See Silva v. Woodford, 279

F.3d 825, 835 (9th Cir. 2002) (Petitioner bears the burden of

proving his claims). Even if Petitioner had briefed the merits

of these claims, the Court has examined them based upon the

existing record and determined that they do not entitle him to

relief.

III. Ground Eight: Ineffective Assistance of Counsel

In Oregon, the fundamental difference between Assault II

and Assault IV is that the former requires the State to prove

that a criminal defendant utilized a dangerous weapon whereas

the latter does not. Compare ORS 163.175(1)(b) (Assault II),

with ORS 163.160(1)(a) (Assault IV). At trial, Petitioner’s

attorney sought to secure a full acquittal as to the Assault II

charge by convincing the jury that Petitioner never attacked

Brown with a weapon. He did not, however, ask the trial judge to

give the jury a lesser-included instruction that would permit it

to convict Petitioner of Assault IV. Petitioner claims that

where counsel essentially conceded that an assault occurred at

Brown’s workplace while also arguing that the assault did not

involve a dangerous weapon, it was incumbent upon him to give

the jury the option to reach a guilty verdict as to Assault IV.

Where he did not, and where the jury could have found that the

State had not proven the dangerous weapon element of Assault II,

Petitioner maintains that counsel’s omission left the jury in

the uncompromising position of either convicting him of Assault

II or acquitting him even though criminal conduct had obviously

occurred at Brown’s workplace.

The Court uses the general two-part test established by the

Supreme Court to determine whether Petitioner received

ineffective assistance of counsel. Knowles v. Mirzayance, 556

U.S. 111, 122-23 (2009). First, Petitioner must show that his

counsel's performance fell below an objective standard of

reasonableness. Strickland v. Washington, 466 U.S. 668, 686-87

(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, Petitioner must show that his counsel's performance

prejudiced the defense. The appropriate test for prejudice is

whether Petitioner 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. In this

particular instance, Petitioner can demonstrate prejudice if he

can establish a reasonable probability that the jury would have

convicted him of Assault IV had counsel requested the lesser-

included instruction. When Strickland's general standard is

combined with the standard of review governing 28 U.S.C. § 2254

habeas corpus cases, the result is a "doubly deferential

judicial review." Mirzayance, 556 U.S. at 122.

During Petitioner’s PCR proceedings, counsel submitted a

Declaration wherein he explained his trial strategy:

2. I recall that my overall trial strategy

was to focus on the second-degree assault

charge and to argue that the state had not

met its burden of establishing that any of

her injuries were caused by petitioner using

the fire poker or tongs. Instead, the

injuries were the product of the victim

accidentally injuring herself while

repairing a bike or of one of the other

altercations with petitioner, in which no

weapon was involved.

* * * * *

5. I do not recall specifically why I did

not request a lesser-included-offense

instruction for fourth-degree assault.

However, based on my recollection of overall

trial strategy, I likely concluded that an

“all or nothing” approach would be best. As

explained above, the main focus of the

defense was that the state had not proven

that petitioner had caused any injury with

the weapon alleged in the indictment.

Instead, to the extent petitioner caused any

of the injuries, they occurred during the

other altercations in which no weapon was

used. Because petitioner was also charged

with various crimes relating to those

altercations, I did not believe there was

any risk that the jury would find him guilty

of second-degree assault simply to prevent

him from avoiding responsibility when he had

clearly committed a crime.

Respondent’s Exhibit 120, pp. 1-2.

After holding a hearing, the PCR judge denied relief on

this claim as follows:

I find [t]he testimony of [trial counsel] to

be credible. The trial attorney’s strategy

was to attack the credibility of the

complaining witness and to challenge the

charge of Assault in the Second Degree and

suggest that the victim was injured during

one of the other altercations and that

Petitioner did not attack her with the

fireplace tongs, therefore, no dangerous

weapon was involved. This strategy was

supported by evidence that the victim did

not mention being hit with fire tongs when

she obtained a restraining order the day

after she spoke to the police and Petitioner

was arrested. The victim did, however, tell

the investigating police officer who

responded to the 911 call that Petitioner

had struck her on the wrist with the fire

tongs.

* * * * *

Petitioner has not proven that his trial

attorney failed to exercise reasonable

professional skill and judgment by not

requesting a lesser included instruction of

Assault in the Fourth Degree to the Assault

in the Second-Degree charge. While trial

counsel does not at this point remember

specifically why he did not request the

lesser-included instruction, he believes he

likely concluded that an all or nothing

approach was best. The main focus of the

defense was that the state had not proven

that the Petitioner caused any injury with a

dangerous weapon. Because Petitioner was

also charged with other crimes, including

two counts of Assault in the Fourth Degree,

he did not believe the jury would find him

guilty of Assault in the Second Degree

simply to prevent him from avoiding

responsibility. Based on this testimony, I

find that trial counsel, more likely than

not, made a conscious strategic decision to

not request a lesser-included instruction.

The question then is whether that strategic

decision was reasonable. A decision to not

request a lesser-included instruction can

enhance the chance of an unwarranted

conviction and thus be unreasonable when the

element that elevates the lesser-included

offense to the greater one (in this case the

use of a dangerous weapon) is doubtful and

there is substantial evidence of a serious

lesser-included offense. In this case, there

was substantial evidence that Petitioner

repeatedly assaulted the victim and caused

injury even if he did not use the fire

tongs. However, the use of the fire tongs by

the Petitioner to assault the victim on one

occasion, thus elevating one of the assaults

to Assault in the Second Degree, was not

doubtful. The victim testified that

Petitioner hit her on the wrist with the

tongs and reported the same to the

responding officers. There were marks on the

victim’s wrist and the tongs were located.

Petitioner admitted his fingerprints would

be on the tongs. Petitioner did not testify

to dispute the victim’s account. The only

question raised about the victim’s version

came from her restraining order affidavit in

which she describes being struck on the arms

but does not mention that fire tongs were

used. Because of these factors and the fact

that there were other assault charges on

which the jury could convict the Petitioner

if they acquitted him on the Assault in the

Second-Degree charge, I find that the trial

attorney’s decision to not request a lesser-

included instruction was reasonable.

Respondent’s Exhibit 122, pp. 2-4.

Petitioner contends that the PCR court’s decision is flawed

because it failed to address a serious inconsistency in

counsel’s PCR Declaration. Specifically, he argues that pursuing

an “all or nothing” approach is inconsistent with counsel’s

concession that Petitioner assaulted Brown at her workplace. He

therefore concludes that the PCR court’s decision, which

depended on its finding that trial counsel was credible, was

based upon an unreasonable determination of the facts in light

of the evidence presented.1

This Court finds no inconsistency in trial counsel’s

Declaration or his approach to Petitioner’s defense. He

concentrated Petitioner’s defense on overcoming the Assault II

charge and, contrary to Petitioner’s representation, did not

concede that Petitioner caused the injury to Brown’s wrist

during the incident at her place of employment. Instead, he

stated that it was difficult to ascertain the origins of that

particular injury given the confusion and ambiguity in the case

stemming from the different altercations at issue as well as

Brown’s “clouded judgment,” poor recall, and “fuzzy” perception

as a result of her alcohol use. Id at 257, 261. As he stated in

his PCR Declaration, to the extent Petitioner caused the injury

to Brown’s wrist, it “occurred during the other altercations in

which no weapon was used.” Respondent’s Exhibit 120, p. 2.

1 Petitioner also asserts that the PCR court made an unreasonable factual

determination when it concluded that counsel’s strategy was supported by

Brown’s failure to mention the fire tongs in her restraining order affidavit,

all the while failing to recognize Brown’s statements that Petitioner hit her

on the wrist. To the contrary, the PCR court did recognize various ways in

which Brown stated that Petitioner hit her on the wrist including her trial

testimony, her application for a restraining order, and her statements to

authorities. Respondent’s Exhibit 122, p. 4. Consequently, even though the

PCR court found that counsel’s strategy had at least some evidentiary

support, it also recognized that contradictory evidence existed.

Consistent with that Declaration, counsel argued to the

jury that Brown suffered “so many injuries” that the “injury or

the pain [in the wrist] was not a result of the fire poker, if

there was any at all, but perhaps it was from something else.”

Trial Transcript, p. 261. He claimed that Brown’s injuries could

have occurred from any of the altercations she had with

Petitioner, and also directed the jury’s attention to Brown’s

testimony about injuries she sustained from a bicycle accident.

Id at 246, 252-254. He next pointed to the fact that Brown had

suffered an injury to her arm while attempting to repair her

bicycle. Id. Finally, he referenced law enforcement testimony

that Brown had suffered an injury to her arm while working on a

light fixture. Id. In this regard, counsel did not simply

concede that Petitioner assaulted Brown at her workplace causing

the injury to her wrist.

Although the jury could still find from the evidence that

Petitioner assaulted Brown at her workplace, this fact does not

lead inexorably to the conclusion that counsel was obligated to

request a lesser-included instruction. When counsel elected not

to request such an instruction, he sought to secure a full

acquittal as to the most serious charge his client faced.

Without a lesser-included instruction, if the jury had concluded

that Petitioner assaulted Brown but did not use a dangerous

weapon, the result would have presumably been a full acquittal

on the Assault II charge.2 Had he requested a lesser-included

2 Even with a lesser-included instruction, the jury would have been obligated

to render a decision based solely on the Assault II charge before considering

the lesser-included offense; it could not have simply weighed both options

instruction in this context, he would have exposed Petitioner to

the very real possibility of an additional Assault IV

conviction. Because counsel’s strategic decision not to do so

was a reasonable one, his performance did not fall below an

objective standard of reasonableness.

Even assuming counsel was constitutionally obligated to

request a lesser-included jury instruction under these

circumstances, Petitioner is unable to demonstrate prejudice. As

the PCR court found, aside from Brown’s omission in her

application for the restraining order, all of the evidence

adduced at trial showed that petitioner had, in fact, assaulted

her with fire tongs. This included Brown’s testimony, her

statement to law enforcement officers, Petitioner’s own

admission that his fingerprints would be found on the tongs, and

the fact that Brown displayed “a tong-shaped bruise.”

Respondent’s Exhibit 122, p. 1; see also 28 U.S.C. § 2254(e)(1)

(state-court factual findings are presumed correct absent clear

and convincing evidence to the contrary). Thus, even had counsel

successfully sought a lesser-included instruction on Assault IV,

the jury was not likely to acquit Petitioner of Assault II and

convict him of the lesser offense. For all of these reasons, the

PCR court’s decision was not objectively unreasonable and habeas

corpus relief is not warranted.

///

///

simultaneously before deciding which it preferred. See ORS 136.460(2)

(requiring juries to first make a finding as to the charged offense before

considering the lesser included offense).

CONCLUSION

For the reasons identified above, the Petition for Writ of

Habeas Corpus (#2) is denied. The Court declines to issue a

Certificate of Appealability on the basis that petitioner has

not made a substantial showing of the denial of a constitutional

right pursuant to 28 U.S.C. § 2253(c)(2).

IT IS SO ORDERED.

Octob er 25, 2 021

DATE Marco A. Hernandez

United States District Judge