IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

ARTURO GARCIA, 

Case No. 6:14-cv-01684-MO 

Petitioner, 

OPINION AND ORDER 

v. 

JEFF PREMO, 

Respondent. 

Anthony D. Bornstein 

Assistant Federal Public Def ender 

101 S.W. Main Street, Suite 1700 

Portland, Oregon 97204 

Attorney for Petitioner 

Ellen F. Rosenblum, Attorney General 

Samuel A. Kubernick, Assistant Attorney General 

Department of Justice 

1162 Court Street NE 

Salem, Oregon 97310 

Attorneys for Respondent 

1 - OPINION AND ORDER 

Case 6:14-cv-01684-MO Document 40 Filed 11/28/16 Page 1 of 9
MOSMAN, District Judge. 

Petitioner brings this habeas corpus case pursuant to 28 

U.S.C. § 2254 challenging the legality of two state-court Robbery 

convictions from 2008. For the reasons that follow, the Petition 

for Writ of Habeas Corpus (#2) is denied. 

BACKGROUND 

On January 28, 2008, 

convenience store in Eugene. 

petitioner robbed a Dari Mart 

At the time, Ellen Harrison and 

Jonathan Shields were working as store clerks, and a 10-year-old 

girl was in the store by herself to purchase a beverage. 

Petitioner, who was armed with a "big shiny gun, 11 approached 

Shields, pointed the gun at him, and yelled at him to give him 

money. Trial Transcript, pp. 146-47. Shields gave petitioner 

all the money in the till. Petitioner cocked the gun, pointed it 

at both Shields and Harrison, and told them to get down. Id at 

148, 161-62. The clerks complied with this directive. 

Petitioner also pointed his firearm at A.V. and told her not to 

move before he exited the store. Id at 246; Respondent's 

Exhibits 124 & 126. 

Law enforcement personnel ultimately apprehended petitioner, 

and the Lane County Grand Jury indicted him on three counts of 

Robbery in the First Degree and three counts of Robbery in the 

Second Degree. Respondent's Exhibit 102. The case proceeded to 

trial where defense counsel moved for a judgment of acquittal at 

the close of the State's case: "The defense moves for judgment of 

acquittal on Counts 1 through 6. I don't know if the Court wants 

to hear argument. 11 Trial Transcript, p. 248. The trial judge 

2 - OPINION AND ORDER 

Case 6:14-cv-01684-MO Document 40 Filed 11/28/16 Page 2 of 9
stated, "I'm going to deny your motions." Id. Although the 

judge then indicated a willingness to listen to any specific 

arguments counsel might have, she did not provide any. 

The jury ultimately found petitioner guilty on all counts, 

and the trial court sentenced him to 180 months in prison. 

Respondent's Exhibit 101. Petitioner took a direct appeal, but 

the Oregon Court of Appeals affirmed the trial court's decision 

without opinion, and the Oregon Supreme Court denied review. 

State v. Garcia, 232 Or. App. 284, 222 P. 3d 53 (2009), rev. 

denied, 347 Or. 718, 226 P.3d 709 (2010). 

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

Umatilla County where the PCR court denied relief on all of his 

claims. Respondent's Exhibit 128. The Oregon Court of Appeals 

affirmed the lower court's decision without opinion, and the 

Oregon Supreme Court once again denied review. Garcia v. Franke, 

262 Or. App. 237, 327 P.3d 572, rev. denied, 355 Or. 751, 331 

P.3d 1010 (2014). 

Petitioner filed this federal habeas corpus case on December 

23, 2014. With the assistance of appointed counsel, petitioner 

argues that trial counsel was constitutionally ineffective when 

she failed to make specific arguments supporting her motion for a 

judgment of acquittal as to the Robbery charges (Counts Five and 

Six) pertaining to A.V. Respondent asks the court to deny relief 

on the Petition because: (1) petitioner fails to carry his burden 

of proof as to the claims he raises but does not argue; and 

(2) the PCR court's denial of petitioner's argued claim was not 

objectively unreasonable. 

3 - OPINION AND ORDER 

Case 6:14-cv-01684-MO Document 40 Filed 11/28/16 Page 3 of 9
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's findings of fact are presumed 

correct, and petitioner 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 

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. 

4 - OPINION AND ORDER 

Case 6:14-cv-01684-MO Document 40 Filed 11/28/16 Page 4 of 9
§ 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). "If this standard is difficult to meet, 

that is because it was meant to be." Id. 

II. Unargued Claims 

As Ground 2.2 of his Petition, petitioner alleges that trial 

counsel failed to provide any argument in support of her motion 

for judgment of acquittal where there was insufficient evidence 

to support convictions as to Counts Five and Six. Petitioner 

does not argue the remainder of his seven sub-claims from Ground 

Two, nor does he provide argument to support the claims contained 

within Grounds One, Three, Four, and Five of his Pe ti ti on. 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) . 

III. Ineffective Assistance of Counsel: Motion for Judgment of 

Acquittal 

Petitioner believes that, had counsel properly argued the 

motion for judgment of acquittal, the trial court would have 

acquitted him as to Counts Five and Six. Because no Supreme 

Court precedent is directly on point that corresponds to the 

facts of this case, the court uses the general two-part test 

established by the Supreme Court to determine whether petitioner 

received ineffective assistance of counsel. Knowles v. 

5 - OPINION AND ORDER 

Case 6:14-cv-01684-MO Document 40 Filed 11/28/16 Page 5 of 9
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, 4 66 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 the 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 proceeding. Id at 696. 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. 

A.V. did not testify at trial, and petitioner asserts that 

the State failed to present sufficient evidence from which a 

rational jury could find he used or threatened the use of force 

upon A.V. during the robbery. He argues that counsel's general 

motion for judgment of acquittal was insufficient to effectively 

raise the issue or preserve it for his direct appeal. 

A person is considered a victim of robbery in Oregon if a 

defendant uses or threatens to use violence against her in the 

course of committing or attempting to commit the crime. State v. 

6 - OPINION AND ORDER 

Case 6:14-cv-01684-MO Document 40 Filed 11/28/16 Page 6 of 9
Hamilton, 348 Or. 371, 379 (2010). A motion for judgment of 

acquittal in Oregon is appropriate only where, viewing the 

evidence in the light most favorable to the prosecution, a 

rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt. State v. Shields, 184 Or. 

App. 505, 509, 56 P.3d 937 (2002). 

The PCR record includes defense counsel's rationale for 

electing not to make any specific argument in support of the 

motion for judgment of acquittal: 

6. Petitioner alleges that I did not provide 

argument in support of my motion for a 

judgment of acquittal on Counts 5 and 6. I 

did not feel that I had a very good specific 

argument that I could make. The video of the 

robbery showed the person purported to be the 

petitioner swinging the gun at [A.V.] during 

the course of the robbery. Therefore, he 

used a weapon and force against [A.V.] in the 

process of this robbery. The evidence of the 

video was sufficient to support the claim 

against [A.V.], with that evidence looked at 

in the light most favorable to the state. 

Respondent's Exhibit 123, p. 2. 

The PCR record also includes an affidavit from the 

prosecutor which sheds further light on the issue: 

5. If trial counsel had made a motion for 

judgment of acquittal on Counts 5 and 6 on 

the basis that petitioner did not threaten 

[A.V.] personally, I would have been able to 

effectively respond. The video showed that 

the girl, [A. V.], was subject to defendant 

pointing the gun directly at her and others 

to exert control over their movements in the 

store. He was within feet of her when he did 

this. He was menacing and clearly deadly 

serious. I recall he worked the action on 

the gun (which you could hear on the security 

recording) and whacked the gun on the 

7 - OPINION AND ORDER 

Case 6:14-cv-01684-MO Document 40 Filed 11/28/16 Page 7 of 9
counter. The video is better seen than 

explained. 

6. The argument would be that he used 

force/threat of force, with a deadly weapon 

to prevent anybody from getting in the way of 

the robbery, which would include a little 

girl who might otherwise run out of the 

building to her parents waiting in the 

parking lot or call the police, or simply 

freak out in the store and draw[] more 

attention from the outside. 

7. I do not know that I would even have had 

to make any argument because it was obvious 

to the jury from the video that everyone in 

his vicinity was the subject of his deadly 

threats which he made to accomplish his 

robbery efficiently and without interruption 

or complication. 

Respondent's Exhibit 126, p. 2. 

Based upon the record before it, the PCR court found that 

while counsel did not argue the motion for judgment of acquittal, 

petitioner suffered no prejudice as a result because "there were 

no legal grounds" upon which to base the motion, and the trial 

court "clearly would have denied [the motion.]" Respondent's 

Exhibit 128, p. 2. Taking the facts in the light most favorable 

to the prosecution, it was evident from the Dari Mart's 

surveillance recording that petitioner pointed his gun at A. V. 

and instructed her not to move so to dissuade her from 

interfering with the crime. Given this record, A.V. was a victim 

of robbery under Oregon law such that a motion for judgment of 

acquittal on this basis would not have been successful. 

Moreover, the PCR court's determination that there were no 

legal grounds to support the argument petitioner advocates in the 

context of a motion for judgment of acquittal constitutes a 

8 - OPINION AND ORDER 

Case 6:14-cv-01684-MO Document 40 Filed 11/28/16 Page 8 of 9
state-court determination of a state-law issue, something this 

court is obligated to accept. See Estelle v. McGuire, 502 U.S. 

62, 67-68 (1991) ("[W]e reemphasize that it is not the province 

of a federal habeas court to reexamine state-court determinations 

on state-law questions."). For all of these reasons, counsel was 

under no duty to make the argument petitioner advances here and, 

even if she had raised the argument, petitioner would not have 

succeeded on his motion for judgment of acquittal. Accordingly, 

the PCR court's decision denying relief on this claim is neither 

contrary to, nor an unreasonable application of, clearly 

established federal law. 

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. 

DATED this _Z/E day of November, 2016. 

l'AMdeN::C~ United States District Judge 

9 - OPINION AND ORDER 

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