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

> District Court, D. Oregon · October 25, 2021

URL: https://www.frixlaw.com/law-library/cases/10393970

## Case

- **Court:** District Court, D. Oregon
- **Decided:** October 25, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10393970. Public record. Not legal advice.