Everett v. Kelly

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

RONALD ALAN EVERETT, Case No. 6:20-cv-00070-JR

Petitioner, OPINION AND ORDER

v.

BRANDON KELLY, Superintendent,

Respondent.

IMMERGUT, District Judge.

On November 4, 2021, Magistrate Judge Jolie A. Russo issued her Findings and

Recommendation (“F&R”). ECF 41. Judge Russo recommended that this Court deny Petitioner

Ronald Alan Everett’s Amended Petition for Writ of Habeas Corpus, ECF 14, and enter a

judgment of dismissal. ECF 41. Judge Russo also recommended that a certificate of appealability

be denied. Id. On November 17, 2021, Petitioner filed objections to the F&R. ECF 43. On

December 14, 2021, Respondent filed its response in opposition to Petitioner’s objections. ECF

47. This Court adopts Judge Russo’s F&R as explained and supplemented in this Opinion and

Order.

STANDARDS

Under the Federal Magistrates Act (“Act”), as amended, the court may “accept, reject, or

modify, in whole or in part, the findings or recommendations made by the magistrate judge.”

28 U.S.C. § 636(b)(1). If a party objects to a magistrate judge’s F&R, “the court shall make a de

novo determination of those portions of the report or specified proposed findings or

recommendations to which objection is made.” Id. But the court is not required to review, de

novo or under any other standard, the factual or legal conclusions of the F&R to which no

objections are addressed. See Thomas v. Arn, 474 U.S. 140, 149–50 (1985); United States v.

Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Nevertheless, the Act “does not

preclude further review by the district judge, sua sponte” whether de novo or under another

standard. Thomas, 474 U.S. at 154.

DISCUSSION

Petitioner, an adult in custody of the Oregon Department of Corrections, brings this

habeas corpus action pursuant to 28 U.S.C. § 2254 challenging his 2008 conviction on two

counts of Solicitation to Commit Murder and one count of Solicitation to Commit Assault.1 This

Court addresses Petitioner’s claims with respect to Grounds Four and Six that are the subject of

his Objection to the F&R.2 ECF 43 at 8–15.

1 The court entering the decision at issue is the Clackamas County Circuit Court, in State

v. Everett, Clackamas County Circuit Court Case No. CR0800419. ECF 14 at 2.

2 This Court agrees with Judge Russo’s conclusion that Petitioner has failed to adequately

address the claims alleged in Grounds One, Two, Three, and Five. ECF 41 at 17. This Court is

satisfied that these claims are procedurally defaulted and Petitioner has not established cause and

I. Ground Four – Confrontation Clause:

In his Fourth Claim for Relief, Petitioner alleges that he was denied his right to confront

witnesses against him under the Sixth Amendment. ECF 14 at 11–12. At trial, defense counsel

cross-examined Barry Piatt, a police informant and prosecution witness who Petitioner allegedly

solicited to commit murder. ECF 41 at 3–4. After defense counsel asked, outside the presence of

the jury, if Piatt had ever killed anyone, Piatt invoked his Fifth Amendment right against self-

incrimination. Id. at 4. Petitioner then moved to strike all of Piatt’s testimony and the trial court

denied his motion. Id. Petitioner argues that his right to confrontation required the trial court to

strike all of Barry Piatt’s testimony because Piatt’s assertion of his Fifth Amendment rights

deprived Petitioner of his confrontation rights under the Sixth Amendment. ECF 43 at 7–8.

Petitioner claims that he is entitled to habeas relief because the Oregon Court of Appeals

erred when it neither cited nor applied the Supreme Court’s decision in Davis v. Alaska, 415 U.S.

308 (1974)—a seminal Confrontation Clause case. While it is true that the Oregon Court of

Appeals did not evaluate Petitioner’s case under Davis, ECF 41 at 12 n.1, this Court is not

persuaded that the Court of Appeals’ decision was somehow contrary to, or involved an

prejudice or a fundamental miscarriage of justice to excuse his procedural default. Murray v.

Carrier, 477 U.S. 478, 495–96 (1986). Further, this Court agrees that Petitioner’s cumulative

error claim is not meritorious. ECF 41 at 18. This Court “may not ignore the default to consider

the cumulative impact of the errors” alleged in Grounds One, Two, Three, and Five. Smith v.

Brown, No. 1:18-cv-01702-IM, 2021 WL 4433178, at *13 (D. Or. Sept. 27, 2021). With respect

to Grounds Four and Six, there is insufficient evidence that any potential cumulative error

“rendered a criminal defense ‘far less persuasive’ and had a ‘substantial and injurious effect or

influence’ on the jury’s verdict.” Parle v. Runnels, 505 F.3d 922, 928 (9th Cir. 2007) (quoting

Strickland v. Washington, 466 U.S. 668, 696 (1984)).

unreasonable application of, clearly established law; or that it was based on an unreasonable

determination of the facts.3 28 U.S.C. § 2254(d).

Petitioner presents an expansive reading of Davis that urges this Court to find that

“[w]hen a defendant is denied the right to inquire on a relevant issue that may impact the

credibility of a prosecution witness, there is always a Confrontation Clause violation.” ECF 43 at

9 (emphasis added). But Petitioner’s interpretation fails to account for a key exception that the

Supreme Court in Davis carved out for situations where the constitutional rights of a witness and

a defendant collide. Davis involved a question of whether the government’s interest in protecting

the anonymity of juvenile offenders outweighed a defendant’s competing interest in

confrontation. While the Supreme Court vindicated the defendant’s confrontation rights, it also

cautioned that a trial court is not required to “protect a witness from being discredited on cross-

examination, short of an attempted invasion of his constitutional protection from self

incrimination.” 415 U.S. at 320 (emphasis added) (internal quotation marks omitted) (quoting

Alford v. United States, 282 U.S. 687, 694 (1931)).

Despite no explicit reference to Davis, the Oregon Court of Appeals still comported with

the substance of the Davis decision because it refused to find a Confrontation Clause violation in

light of Piatt’s invocation of his Fifth Amendment rights. See State v. Everett, 249 Or. App. 139,

147 (2012) (“[D]efendant’s question to Piatt also was not necessary to prove defendant’s theory

because the trial court allowed ample opportunity for defendant to elicit testimony to bolster his

defense without Piatt invoking his constitutional right against compelled self-incrimination.”).

Petitioner cannot chide the Court of Appeals for failing to cite Davis when he only offers a

3 The reason that Davis was not discussed could be because Petitioner himself did not cite

Davis in his briefing to the Oregon Court of Appeals. ECF 47 at 2.

strained interpretation of the case law and fails to address a major doctrinal distinction

undercutting his claim.

Further, this Court agrees with Judge Russo that this is a collateral issue that may even

cut against Petitioner’s arguments. See ECF 41 at 13. Piatt’s credibility was effectively cross-

examined at trial.4 And Petitioner has not sufficiently explained how an inquiry into whether

Piatt ever killed anyone would have been critical to his defense.5 In fact, this line of questioning

is potentially incriminating because it supports the theory that Piatt was approached specifically

because of his alleged criminal background. The trial court was well within its discretion to

refuse to strike Piatt’s testimony.

II. Ground Six – Sufficiency of the Evidence:

In his Sixth Claim for Relief, Petitioner alleges that his conviction and sentence violate

his rights under the Fifth and Fourteenth Amendments because there was insufficient evidence to

convict him of Solicitation to Commit Murder. ECF 14 at 14. While Petitioner was in custody on

a different solicitation charge, he met Benjamin Van Alstine, a fellow inmate, and police

informant. ECF 41 at 3. Petitioner would eventually ask Van Alstine to retrieve and deliver an

indictment to the Outsiders biker gang—to which Piatt belonged—that could prove that Piatt was

4 Judge Russo noted that Piatt’s criminal history was well-documented at trial. See ECF

41 at 8 (“Piatt testified about his criminal history, including eight prior convictions for assault, as

well as burglaries, unlawful possession of weapons, and other crimes for which he had never

been caught.”).

5 Petitioner argues that defense counsel was merely inquiring into Piatt’s criminal history

after the prosecution opened the door. ECF 43 at 9. But even if the prosecution invited this line

of questioning, Petitioner provides no argument why this should negate a witness’s ability to

invoke his right against self-incrimination.

a police informant. Id. Petitioner told Van Alstine that upon learning of Piatt’s cooperation with

police, the gang would “take care of Barry Piatt” and “get rid” of him. Id.

In reviewing a sufficiency of the evidence claim, this Court must determine if after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 319 (1979). Additionally, a federal court may not grant a habeas petition

unless it finds that the state court unreasonably applied the principles underlying the Jackson

standard when reviewing petitioner’s claim. See e.g., Jaun H. v. Allen, 408 F.3d 1262, 1274–75

(9th Cir. 2005); Jones v. Wood, 114 F.3d 1002, 1013 (9th Cir. 1997) (recognizing that the

“unreasonable application” standard applies to insufficient evidence claim).

Petitioner argues that he merely asked Van Alstine to deliver materials to the gang and

that his actions do not meet the statutory elements of solicitation under Oregon law. ECF 43 at

11–12. Under O.R.S. 161.435(1), a person commits the crime of solicitation if, inter alia, that

person “commands or solicits” another to engage in conduct that constitutes a felony, including

murder. Petitioner’s argument rests on the theory that because his only contact was with Van

Alstine, who Petitioner did not directly solicit to kill Piatt, there is no direct link connecting

Petitioner to the gang. See id. at 11–12. In Plaintiff’s view, the Oregon Supreme Court erred

when it attempted to close that gap by finding that if the gang “had killed Mr. Piatt, both

[Petitioner] and Mr. Van Alstine would have been guilty of ‘aiding and abetting the murder’

under Or. Rev. Stat. § 161.155(2)(b).”6 Id. at 12–13. (quoting Everett, 355 Or. at 674).

6 Under O.R.S. 161.155, a person is “criminally liable” for the conduct of another,

including murder, if that person, inter alia, “[a]ids or abets” a crime. O.R.S. 161.155(2)(b).

Under Oregon law, to “aid and abet” means, inter alia, “to advise, counsel, procure, or encourage

another to commit a crime.” State v. Everett, 355 Or. 670, 675 (2014).

Petitioner seeks to construe the criminal statute so strictly that it essentially insulates any

defendant who is clever enough to maintain an extra degree of separation between himself and

the criminal actor who ultimately commits the murder. This Court is not persuaded by this

reading of the statute. See Everett, 355 Or. at 677 (endorsing criminal liability under O.R.S.

161.435(1) “where A solicits B to solicit C to commit [a] crime . . . A’s act constitutes the act of

solicitation whether or not B (or C, as the case may be) actually commits the crime or attempts to

commit the crime”). The record reflects that the only reason Petitioner engaged with Van Alstine

was to set in motion the killing of Piatt. Petitioner solicited Van Alstine to encourage the murder

of Piatt, which would have made Van Alstine himself “criminally liable” for the murder under

O.R.S. 161.155. Thus, Petitioner solicited Van Alstine “to engage in specific conduct

constituting a crime punishable as a felony” under O.R.S. 161.435.

This Court disagrees with Petitioner’s analysis that the Oregon Supreme Court’s reliance

on O.R.S. 161.155 expanded his criminal liability so far that his rights against ex post facto laws

were violated. ECF 43 at 13. The Court merely applied existing law to the facts in this case and

did not engage in an “unforeseeable judicial enlargement of a criminal statute.” Bouie v. City of

Columbia, 378 U.S. 347, 353 (1964) (emphasis added). Additionally, Petitioner’s argument that

he was supplied with inadequate notice, ECF 43 at 14, depends on the same faulty logic

deconstructed above where he assumes that he was held liable for an entirely new criminal

offense. Further, these ex post facto and inadequate notice claims are procedurally defaulted

anyway because they were not properly exhausted in state court. O'Sullivan v. Boerckel, 526

U.S. 838, 842 (1999).

CONCLUSION

The F&R, ECF 41, as supplemented in this Opinion and Order, is adopted in full.

Petitioner’s Amended Petition for Writ of Habeas Corpus, ECF 14, is DENIED. A certificate of

appealability should be DENIED as Petitioner has not made a substantial showing of the denial

of a constitutional right. See 28 U.S.C. 2253(c)(2).

IT IS SO ORDERED.

DATED this 18th day of January, 2022.

/s/ Karin J. Immergut

Karin J. Immergut

United States District Judge