IN THE UNITED STATES DISTRlCT COURT 

FOR THE DISTRJCT OF OREGON 

JOSEPH C. NORTHUP, Case No. 2:14-cv-01639-PK 

Petitioner, 

v. 

JERJTAYLOR, 

Respondent. 

PAP AK, Magistrate Judge. 

FINDINGS AND 

RECOMMENDATION 

Petitioner, a prisoner in the custody of the Oregon Department of Corrections, brings this 

habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons set forth below, this Court 

recommends that Petitioner's Habeas Petition (ECF No. 2) be DENIED. 

BACKGROUND 

On January 31, 2006, a grand jury indicted Petitioner on charges of Robbe1y in the First 

Degree (two counts), Robbery in the Second Degree (three counts), and Aggravated Theft in the First 

Degree (one count). The charges arose out of robberies oftlu·ee downtown Portland businesses: 

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(1) Cutter's Jewelry on January 9, 2006; (2) Poliland Swimwear on January 17, 2006; and (3) Pasta 

Bangs on January 22, 2006. Resp't Ex. 102. The underlying facts of the robberies and the course of 

Petitioner's trial are as follows. 

I. The Robberies 

A. Cutter's Jewelry 

Sandra Timm testified she was working at Cutter's Jewelry on January 9, 2006. Tr. Vol. 2 

at 22. That afternoon, a man came into the store and said he wanted to look at some jewehy but 

wanted to buy a coke first. Id. at 23. She directed him to a nearby Rite Aid. Id. Timm testified the 

man left the store and returned about ten minutes later with a coke and a cigarette in his hand. Id. He 

stated he was going to finish his cigarette and coke and then he would like to see some jewehy. Id. 

Timm testified the man returned to the store and she showed him some diamonds. Id. After 

about fifteen minutes of discussion, she noticed the diamond he was looking at was gone. Id. at 26-

27. The man stated "I have the stone and I'm leaving." Id. at 27. Timm testified the man stuck his 

hand in his coat and said I'm leaving and I have a gun. Id. 

According to Timm, she described the robber to police as thin, average height, in his fifties, 

with short "salt and pepper" hair, a gray mustache, and a goatee. Id. at 29-30, 44. She told the officer 

the man was wearing jeans, a black turtleneck, tweed jacket, a knit cap, and glasses. Id. at 29, 44-45. 

Timm testified that she subsequently identified the robber in photographs taken from the Rite Aid 

video camera. Id. at 37; see also Tr. Vol. 2 at 154. On Januaiy 25, 2006, police also showed her a 

photo montage and she identified Petitioner as the robber with ninety-eight percent ce1tainty. Id. at 

3 7-41, 4 7-48; see also Tr. Vol. 2 at 200. At trial, Timm testified she was one-hundred percent ce1tain 

of her identification and pointed to Petitioner as the robber. Id. at 40, 48-49. She testified that 

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because she had been robbed before, she paid special attention to customers' facial features. Id. at 

20-22. 

B. Portland Swimwear 

Amy Stell testified she was working at Portland Swimwear on Januaiy 17, 2006. Id. at 54, 

56. That afternoon, a man entered the store and stated he was looking for his wife. Id. at 58-59, 61-

62. When Stell told him she was not there, the man indicated he would come back in ten minutes. 

Id. at 59. Stell testified the man returned, they had a brief conversation, and he asked for change for 

the bus. Id. at 59-60, 62, 79-80. When she opened the cash register, the man reached over and grab 

money out of the till. Id at 60; see also Tr. Vol. 2 at 143-44. Stell testified he had a black gun that 

didn't look real. Id. at 60, 64, 67-68. 

Stell testified that because she had been robbed before, she paid special attention to the 

robber's face. Id at 62-64. She described the man to police as white, in his forties or fifties, six feet 

tall, about 185 pounds, with a dty patch of skin on his face. Id. at 66-67; see also Tr. Vol. 2 at 147. 

He was wearing glasses, a straw hat, an overstuffed green jacket, black pants, and "spo1iy" black 

shoes. Id. at 66, 68-69; see also Tr. Vol. 2at147. Stell testified she identified Petitioner as the robber 

in a police photo montage. Id. at 72-76, 82; see also Tr. Vol. 2 at 200. She testified his "picture 

jumped off the page." Id. at 74. Stell identified Petitioner at trial with one-hundred percent 

confidence. Id. at 77. 

C. Pasta Bangs 

Anastacia Furniss testified she was working at Pasta Bangs, an Italian restaurant, on Janua1y 

22, 2006. Id. at 87-88. That evening, a man entered the restaurant and said he was looking for a 

woman with brown hair. Id. at 90-92, 102; see also Tr. Vol. 2 at 129. He left and then returned ten 

to fifteen minutes later and ordered a beer. Id. at 93-94. She set the beer on the counter and opened 

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the cash register. Id. at 94. He jumped across the counter and grabbed money out of the till, leaving 

a footprint on the counter. Id. at 94-99; see also Tr. Vol. 2 at 132-33. He had a gun in his left hand. 

Id. at 94. 

Fumiss describe the robber to police as a white older male, grey hair, thin, six feet tall, with 

a sore on his mouth. Id. at 93, 100-02, 119-21. He was wearing a big green coat and black pants. Id. 

at 101; see also Tr. Vol. 2 at 437. She later identified Petitioner in a photo montage. Id. at 103-05, 

124; see also Tr. Vol. 2 at 199. She testified she was one-hundred percent sure of her out-of-court 

identification and identified Petitioner in the comiroom. Id. at 105-06. 

II. Petitioner's Arrest 

On or before January 23, 2006, Petitioner was taken into custody. Id. at 156-57. Portland 

Police Sergeant Troy King testified Petitioner had a large backpack containing a gun, wire-rim 

glasses consistent with those shown in the Rite Aid video, a black cap, coat, and shoes with a sole 

comparable to the footprint found on the Pasta Bangs' counter. Id. at 162-63, 166-73. 

III. Pretrial Motion to Sever 

Defense counsel filed a pretrial motion to sever the robbery charges for trial on the basis that 

a consolidated trial would result in substantial prejudice. Resp't Ex. 123. At a pretrial hearing, 

counsel argued at length that the descriptions of the robber and the modus operandi for the crimes 

were different. Tr. Vol. 1 at 282-86. Defense counsel argued the evidence between the three 

robberies should not be cross-admissible and failure to sever the trials would deprive Petitioner of 

the opportunity to testify in one case and not the other two (resulting in the admission of his prior 

felonies in all three cases). Id. at 287-90. The trial court denied the motion, opining that a joint trial 

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was proper under Oregon Revised Statute§ 132.5601 and would not "result in substantial prejudice." 

Id. at 291. Although the trial court first opined the evidence of the separate robberies would be cross 

admissible (Id. at 292-93), the court instructed the jmy prior to trial to consider each case separately: 

I instruct you that this trial involves the presentation of three separate cases. 

Each case will be presented by the State separately. Each case must be decided 

separately. The fact that tlu·ee cases are being presented in one trial cannot affect the 

absolute requirement that you must deliberate on each case separately. 

Evidence from one case cannot and must not be used in deciding a separate 

case. Similarly, the verdict in one case cannot affect the verdict in another case. In 

other words, when you deliberate one case to verdict, that verdict, whether not guilty 

or guilty, cannot enter into deliberations on either of the other two cases. 

Tr. Vol. 2 at 9-10. 

IV. Petitioner's Defense 

Petitioner testified in his own defense. During direct examination, Petitioner testified he came 

to Po1tland in Janumy, 2006, and was living on the streets. Id. at 256-57. Petitioner admitted he had 

been convicted of four prior felonies. Id. at 255. Petitioner testified he did not commit the robberies 

at Cutter's Jewelry or Pasta Bangs and he did not know who committed the robberies. Id. at 258-59, 

265. However, he surmised that two menhe recently met named Dave Brown (a heroin dealer) and 

Jolut, may have robbed Cutter's Jewehy because he had seen them with a diamond. Id. at 259-61, 

265, 273. He explained that Jolut looks ve1y similar to him and some of the items found in his 

backpack, including the gun, shoes, and glasses belonged to Jolut and Dave. Id. at 262-63 & 271-73.2 

1 OR. REV. STAT.§ 132.560(l)(b) provides that an indictment may charge multiple 

offenses if they are of the same or similar character or based on two or more acts part of a 

common scheme or plan. 

2 During the prosecution's case, Pmtland Police Sergeant testified that while in police 

custody David Brown provided infonnation concerning Petitioner's involvement in the robberies 

and assisted in the arrest of Petitioner. Tr. Vol. 2 at 178-83, 208-17. 

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Defense counsel did not question Petitioner about the Portland Swimwear robbery on direct 

examination. Id. at 284. 

On cross examination, however, the prosecutor asked Petitioner where he was on the day of 

the Portland Swimwear robbe1y. Id. at 282. Petitioner asserted his Fifth Amendment right not to 

testify against himself. Id. at 282-83, 290. Outside the presence of the jmy, counsel and the court 

discussed whether the prosecutor's question was outside the scope of direct. Id. at 283-86. However, 

after confe1Ting with Petitioner, defense counsel advised the court that Petitioner did not want to 

raise an objection, and instead wished to resume testimony. Id. at 287-90, 293-95. When questioning 

resumed, Petitioner immediately admitted to robbing Portland Swimwear. Id. at 295-96. 

V. The Verdict 

During closing arguments, counsel addressed the fact that the jmy would be returning 

verdicts on three separate crimes, and that Petitioner's confession to the Portland Swimwear robbery 

should not impact the verdict on the other two. Id. at 314-15, 322. The trial court instructed the jmy 

to the same effect, stating that evidence from one case cannot and must not be used in deciding a 

different case. Id. at 340. The jury convicted Petitioner of Aggravated Theft in the First Degree, and 

three counts of Robbery in the Second Degree. Id. at 353; Resp't Exs. 101 & 131.3 The trial court 

sentenced Petitioner to a 210-month term of incarceration. Tr. Vol. 2 at 383-85; Resp't Ex. 101. 

Petitioner filed a direct appeal raising multiple assignments of en-or, including that the trial 

court erred in denying his motion to sever. Resp't Exs. 103, 104 at 53-69. The Oregon Court of 

Appeals affomed without opinion, and the Oregon Supreme Court denied review. State v. Northup, 

217 P.3d 264 (Or. App. 2009), rev. denied, 228 P.3d 1214 (Or. 2010). 

3 Prior to trial, the Robbe1y in the First Degree charges were dismissed. Tr. Vol. 1 at 291; 

Resp't Ex. 125. 

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Petitioner subsequently sought state post-conviction relief (PCR) on the basis that (1) he 

received ineffective assistance of trial and appellate counsel; (2) the prosecutor engaged in 

misconduct; (3) he was deprived of a full and fair appeal; and ( 4) Ballot Measure 11 is 

unconstitutional. Resp't Ex. 117. The trial court denied relief, the Oregon Comi of Appeals affirmed 

without opinion, and the Oregon Supreme Comi denied review. Resp't Ex. 145 & 146; Northup v. 

Coursey, 329 P.3d 35 (Or. App.), rev. denied, 333 P.3d 333 (Or. 2014). During the course of the 

PCR proceeding, Petitioner and defense counsel submitted contradicto1y affidavits concerning 

whether Petitioner had always intended to testify on cross examination that he was guilty of the 

Po1iland Swimwear robbery in hopes the jury would find him not guilty of the other two robberies. 

Resp't Exs. 135 & 138. The PCR court found defense counsel credible, stating that"[ c ]!early no 

attorney would have advised this approach." Resp't Ex. 140 at 2. 

DISCUSSION 

Petitioner alleges six grounds for relief in his Habeas Petition: (1) Ineffective Assistance of 

Trial Counsel; (2) "Needlessly Suggestive Identification;" (3) Actual Innocence; (3a) Denial of 

Right to Full and Fair Appeal;4 ( 4) "Ballot Measure 11 is Unconstitutional;" and (5) Ineffective 

Assistance of Post-Conviction Counsel. Pet' r's Habeas Pet. (ECF No. 2) at 5(a)-5(r). 

In his supp01iing brief, however, Petitioner argues that (1) the trial court violated his due 

process right to a fair trial and his Fifth Amendment right not to be compelled to testify against 

himself when it refused to sever the three robbery cases; and (2) he was deprived of his right to 

effective assistance of counsel. Pet' r's Br. in Supp. (ECF No. 33) at 12, 16-18. 

Ill 

4 Petitioner alleges two Claims Three. Accordingly, this Comi refers to the second Claim 

Three as "3(a)." 

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I. Trial Court's Denial of Severance 

Petitioner contends he was prejudiced by the joint trial of entirely separate cases because "the 

combination of nearly identical charges in the three cases risked the reaction that 'well, he must be 

guilty of something."' Pet' r's Br. in Supp. at 14. Additionally, Petitioner argues that it "effectively 

coerced [him] into testifying in an inculpatory fashion as to the swimwear store robbery." Id 

Respondent moves the Court to deny habeas relief on the basis that this claim was not raised in 

Petitioner's Habeas Petition and because he has failed to demonstrate the trial court violated clearly 

established federal law. 

A. Failure to Raise Claim in Petition 

Rule 2( c) of the Rules Governing Section 2254 Cases in the United States District Courts 

provides a habeas petition must "specify all grounds for relief" and "state the facts supporting each 

ground." If a claim is not set fotth in the petition, this Comt need not address the claim. See Green 

v. Hemy, 302 F.3d 1067, 1070 n. 3 (9th Cir. 2002) (holding that court need not consider on appeal 

claims not raised in the habeas petition); Casoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 

1994) (same). 

Although Petitioner alleged ineffective assistance of counsel claims concerning the severance 

issue, Petitioner did not allege a due process claim premised on trial court error. Petitioner's 

reference to a "failure to sever" in his Habeas Petition, when summarizing the claims he presented 

on direct appeal to the state court (see Pet'r'r Habeas Pet. (ECFNo. 2) at 2), does not suffice to raise 

the claim to this Cout1. Accordingly, habeas relief should be denied for failure to comply with Rule 

2( c ). Nevettheless, this Court addresses Petitioner's claim on the merits and concludes habeas relief 

is not warranted. 

Ill 

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B. Lack of Clearly Established Federal Law 

Pursuant to 28 U.S.C. § 2254( d), a petition for writ of habeas corpus filed by a state prisoner 

shall not be granted, with respect to any claim that was adjudicated on the merits in state court, 

unless the adjudication resulted in a decision that was "contrary to, or involved an unreasonable 

application of, clearly established Federal law;" or "resulted in a decision that was based on an 

unreasonable determination of the facts in light of the evidence presented." 28 U.S. C. § 2254( d)(l) 

& (2) (emphasis added); Harrington v. Richter, 562 U.S. 86, 100 (2011); Whitev. Woodall, 134 S.Ct. 

1697, 1702 (2014). 

"Clearly established Federal law" under 28 U.S.C. § 2254(d)(l) consists of holdings (as 

opposed to dicta) of Supreme Court decisions as of the time of the relevant state-court decision. 

Williams v. Taylor, 529 U.S. 362, 412 (2000). However, a habeas court may look to "Ninth Circuit 

case law as persuasive authority for purposes of dete1mining whether a particular state comi decision 

is an unreasonable application of Supreme Court law." Davis v. Woodford, 384 F.3d 628, 638 (9th 

Cir. 2003); Woods v. Sinclair, 764 F.3d 1109, 1121 (9th Cir. 2014). 

In suppo1i of his assertion that the state trial court's denial of his motion to sever violated 

clearly established federal law, Petitioner cites Smith v. Phillips, 455 U.S. 209, 215-17 (1982), and 

Bruton v. United States, 391U.S.123, 131 n.6 (1968). In Smith, the Courtaddressedju1ybias, and 

in Bruton, the Comi held the admission of an extrajudicial confession of a defendant in a joint trial 

violated the co-defendant's right to confront witnesses. Neither case addresses improperjoinder of 

multiple counts against a single defendant. 

Petitioner also relies on several Ninth Circuit cases holding that habeas relief is wananted 

if the joinder of multiple counts results in a fundamentally unfair trial. See Sandoval v. Calderon, 

241 F.3d 765, 771-72 (9th Cir. 2000); Bean v. Calderon, 163 F.3d 1073, 1084 (9th Cir. 1998); see 

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also Davis, 384 F.3d at 638; Parkv. California, 202 F.3d 1146, 1149 (9th Cir. 2000). Under those 

cases, the requisite prejudice for a due process violation is a "substantial and injurious effect or 

influence in determining the jmy's verdict." Sandoval, 241 F.3d at 772; Davis, 384 F.3d at 638. In 

Bean, the Ninth Circuit explained the potential due process ramifications caused by improperjoinder 

of counts for trial: 

[T]here is 'a high risk of undue prejudice whenever ... joinder of counts allow 

evidence of other crimes to be introduced in a trial of charges with respect to which 

the evidence would be otherwise inadmissible ..... It is much more difficult for 

jurors to compartmentalize evidence against separate defendants joined for trial, and 

by recognizing studies establishing that joinder of counts tends to prejudice jurors' 

perceptions of the defendant and of the strength of the evidence on both sides of the 

case. 

These concerns resonate with particular force here: not only did the trial court 

join counts for which the evidence was not cross-admissible, but the State repeatedly 

encouraged the jmy to consider the two sets of charges in concert, as reflecting the 

modus operandi characteristic of Bean's criminal activities. Thus, the jmy could not 

reasonably have been expected to compmimentalize the evidence so that evidence of 

one crime did not taint the jmy's consideration of another crime, when the State's 

closing m·gument and the import of several of the instrnctions it heard urged it to do 

just the opposite. 

163 F.3d at 1084-85 (quotations and internal citations omitted); see also Sandoval, 241 F.3d at 772 

(risk of undue prejudice particularly great where joinder allows evidence of other crimes that would 

otherwise be inadmissible, and where joinder is of a strong evidentiary case with a weaker one). 

None of the foregoing Ninth Circuit decisions cite controlling Supreme Court precedent 

when recognizing a due process right against improper joinder. Nevertheless, they are "persuasive 

authority" for purposes of determining whether the state trial court's refusal to sever Petitioner's trial 

is an unreasonable application of Supreme Comi law. Davis, 384 F.3d at 638. More recently, 

however, the Ninth Circuit has opined there is no clearly established Supreme Comi precedent 

dictating when a state court must sever criminal charges relating to separate incidents. },fartinez v. 

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Yates, 585 F. Appx. 460, 460-61 (9th Cir. 2014); Collins v. Uribe, 564 F. Appx. 343, 343 (9th Cir. 

2014); Hollie v. Hedgpeth, 456 F. Appx. 685, * 1 (9th Cir. 2011).5 Based on these more recent 

decisions, this Court concludes Petitioner has failed to demonstrate that the trial court's decision not 

to sever the three robbery counts was contrary to, or an umeasonable application of clearly 

established federal law. Accordingly, habeas relief should be denied on that basis. Due to the 

uncertainty of the issue, however, I address whether Petitioner's due process rights were violated 

under the standards set f01ih by the Ninth Circuit. 

C. Petitioner Received a Fundamentally Fair Trial 

Petitioner contends he was prejudiced by the joint trial of the three robbe1y charges in two 

ways. "First, the combination of nearly identical charges in the three cases risked the reaction that 

'well, he must be guilty of something."' Pet'r's Br. in Supp. (ECF No. 33) at 14. Second, it is 

Petitioner's "fundamental contention that, contrary to his trial counsel's representation to the PCR 

court, he ... never intended to admit to the commission of the robbe1y of the swimwear store. He 

asse1is he was effectively compelled to do so by a combination of the prosecutor's cross examination 

of him, the trial comi's ultimate ruling, and by his trial counsel's off-the-record advice and actions, 

prior to that judicial ruling." Id. Petitioner concludes "he was not only denied a fair trial but he was 

effectively coerced into testifying in an inculpato1y fashion as to the swimwear store robbe1y." Id. 

Petitioner has failed to demonstrate he was denied a fundamentally fair trial as a result of the 

trial court's refi1sal to sever the robbe1y counts for several reasons. First, the incriminating evidence 

5 It is wo1ihy of note that the Supreme Cou1i's decision in United States v. Lane, 474 U.S. 

438, 446 n. 8 (1986) is not clearly established federal law on this issue because it addressed 

misjoinder of defendants and not multiple counts against a single defendant. Moreover, in 

Collins v. Runnels, 603 F.3d 1127, 1132 (9th Cir. 2010), the Ninth Circuit held that the footnote 

in Lane addressing the due process right is dicta and therefore not well established federal law. 

(citing Williams, 529 U.S. at 412). 

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in each of the robberies was based on equally compelling eye-witness testimony. The three witnesses 

to the robberies identified Petitioner in the comiroom with certainty, and their testimony was 

cotToborated by other witnesses to the crimes and the physical evidence. Any prejudice caused by 

the joinder was limited by the trial comt's instructions to the jury, at the beginning and end of the 

trial, directing them to deliberate on each count separately and not to consider evidence on one 

robbery to determine Petitioner's guilt on another. The properly instructed jury could easily 

compartmentalize the evidence for each distinct robbery, and nothing said by the prosecutor during 

opening and closing arguments created an undue risk of prejudice. See Davis, 384 F.3d at 639 

(noting that jmy instructions have a better chance of being effective when each crime is simple and 

distinct). 

Second, Petitioner has failed to demonstrate that improper joinder of the robbery counts 

effectively coerced him into testifying, and ultimately confessing, to the Po1tland Swimwear robbery. 

Although Petitioner first asse1ted his constitutional right not to testify, and then confessed to the 

P01tland Swimwear robbe1y, those events were not caused by the improperjoinder of the charges, 

but rather by Petitioner's personal trial strategy to testify about two of the robberies and then confess 

to the third robbery on cross examination in hopes it would convince the jmy to find him not guilty 

of the robberies to which he testified. See Resp't Ex. 135 at 2-5; Resp't Ex. 140 at 2. The failure of 

Petitioner's trial strategy does not give rise to a due process violation. 

In sum, Petitioner has failed to prove that the trial court's denial of his motion to sever was 

contrmy to, or an umeasonable application of clearly established federal law because (1) there is no 

clearly established Supreme Court precedent dictating when a state co mt must sever criminal charges 

relating to separate incidents; and (2) he was not denied a fundamentally fair trial. Accordingly, 

habeas relief is not warranted. See 28 U.S.C. 2254(d)(l). 

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II. Ineffective Assistance of Trial Counsel 

In his supporting brief, Petitioner argues that trial counsel rendered ineffective assistance of 

counsel when he failed to ( 1) renew his motion for severance after the prosecutor's opening and 

closing statements discussing the similarity of the charges; (2) "object or respond to the state's 

representation of, or statement regarding, the physical evidence as: 'It's all the same;"' and 

(3) impeach the reliability of Sandra Timm's identification testimony. Pet'r's Br. in Supp. at 16-18 

(emphasis in original). Petitioner argues that "[ c ]onsidered individually or collectively, trial 

counsel's various failures amount to ineffective assistance of counsel." Id at 18. 

A claim of ineffective assistance of counsel requires Petitioner to prove that counsel's 

perfonnance fell below an objective standard ofreasonableness, and there is a reasonable probability 

that, but for counsel's unprofessional e!1'ors, the result of the proceeding would have been different. 

Williams, 529 U.S. at 390-91; Stricklandv. Washington, 466 U.S. 668, 687-88 (1987). 

To prove deficiency of performance, Petitioner must show that counsel's representation fell 

below an objective standard ofreasonableness. Williams, 529 U.S. at 390-91; Strickland, 466 U.S. 

at 688. This Court's review of a claim of ineffective assistance of counsel is "doubly deferential" in 

that the Court takes a highly deferential look at counsel's performance under the deferential lens of 

§ 2254(d). Cullen v. Pinholster, 563 U.S. 170, 196 (2011 ); Zapien v. 1\ifartel, 805 F.3d 862, 869 (9th 

Cir. 2015). When applying this standard, it is not for this Court to second guess trial counsel's 

strategic decisions. Strickland, 466 U.S. at 689; Elmore v. Sinclair, 799 F.3d 1238, 1250 (9th Cir. 

2015),pet. for cert. filed (Jan. 27, 2016) (No. 15-7848); see also Zapien, 805 F.3d at 872 (strategic 

decisions, based on a thorough investigation of the law and facts, are virtually unchallengeable). 

"To establish 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."' 

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Williams, 529 U.S. at 391 (quoting Strickland, 466 U.S. at 694); Pinholster, 563 U.S. at 189. In the 

context of a failure to raise an objection, a habeas petitioner must demonstrate that trial counsel's 

failure fell below an objective standard of reasonableness and that, had the objection been made, 

there is a reasonable probability that the objection would have been sustained and the outcome of 

the trial would have been different. Flournoy v. Small, 681 F.3d 1000, 1005-06 (9th Cir. 2012); 

Shacklefordv. Hubbard, 234 F.3d 1072, 1079-80 (9th Cir. 2000). 

A. Failure to Renew Motion for Severance 

Petitioner contends that trial counsel was ineffective for not renewing his motion to sever or 

moving for a mistrial after the prosecutor's opening and closing statements. Petitioner argues the 

prosecutor "described the offense conduct and the resulting identifications as same and similar" and 

gave a "not-so-subtle directive to the jury that it should treat all the instances of alleged robbery the 

same and convict on everything." Pet'r's Br. in Supp. at 17. Petitioner concludes the prosecutor 

"effectively nullified" the trial court's admonition not to consider the evidence of one case as proof 

for another. This Court disagrees. 

During opening statements, the prosecutor outlined the evidence of each robbery and the 

victims' description of the robber: 

This is a little bit more unusual because there are tlu·ee cases that are going to be 

presented to you, and as the Judge just said. You need to -- we're going to try and 

parcel these out, one, two, tlu·ee, so that you don't get confused. We'll start with the 

first case, we'll move to the second, and then the third. 

The first case is [the] Cutter's Jewelry robbe1y. You'll hear evidence from 

Sandra Timm .... And she'll tell you that she was at work that day; that a man came 

into the store that she did not know .... 

. . . . He sits down across from a counter where's there's jewelry .... this 

person has a hat on, glasses, jewelry, and a bag. 

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I'm now moving on to the second case .... It's at a swimwear store. Amy 

Stell is working there .... January 17th, around 4 o'clock in the afternoon, a man 

walks in. 

Same general description as the manjiwn the previous case. But it's an older 

man .... 

January 22nd, 2006, Pasta Bangs is a restaurant on North Mississippi here in 

Pmiland .... It was around 8:30 or 9 o'clock at night. They were getting close to 

closing, and a man walks in. Similar description. An older man, forties, fifties, comes 

m. 

And the detective went out to, first, Sandra Timm from the Cutter's robbery. 

Showed her the photo montage. She studied it carefully, and said, boom, "That's the 

guy." She picked the defendant out of the photo montage. 

Same thing with Amy Stell down at Pmiland Swimwear. They showed her 

the photo montage. And it's about at least 10 days later, showed her the photo 

montage. She looks at it, boom, "Definitely." It's the defendant. She picks him out 

immediately. 

Then there's the Pasta Bangs robbery. Stacey Furniss, and you'll hear from 

her. She had the best oppo1iunity to observe who this person was. They showed her 

the photo montage. She's like, "Totally the guy." She knows it is this guy. And she 

picks out the defendant out of a photo montage. 

Tr. Vol. 2 at 10-18 (emphasis added). 

In closing statements, the prosecutor cautioned the jurors not to draw inferences from 

Petitioner's confession to one robbery when determining his guilt of the other two: 

Mr. Northup took the stand, and he admitted that he committed the Pmiland 

Swimwear robbe1y, and the tendency by juries is to think, "Well, let's split the baby," 

and will say, "Okay. Guilty on that. We'll find him [sic: not] guilty on something 

else." That's a tactic that's used ve1y often. Don't fall for that. Don't split the baby. 

He's clearly guilty. 

You will hear an instruction you have to look at each case separately and look 

at the evidence in each case, and I suspect that when you go back there, you will look 

at all the evidence that's been presented. 

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Id at 627. 

Petitioner has failed to demonstrate the foregoing statements provided sufficient grounds for 

a renewed motion for severance or mistrial. On the contrmy, the prosecutor referenced the trial 

court's cautionmy instruction to consider each charge separately, and organized her argument 

sequentially to enable the jury to compartmentalize the evidence. Moreover, defense counsel attested 

at the PCR proceeding that, based on his trial experience, a renewed motion for severance would 

have been denied and tactically a motion for mistrial would not have benefitted Petitioner: 

The case law favors joinder, and my experience has shown that Multnomah County 

was not likely to grant severance with the same or similar charges involved. I have 

no reason to believe that additional arguments, or renewing the motion, would have 

changed the trial court's decision. The trial court instructed the jurors to consider 

each case separately, and I saw no evidence that the jurors failed to follow the co mi's 

instructions. 

It was my professional assessment that the Deputy District Attomey' s 

opening statement did not contain sufficient grounds for a mistrial. .... Also, a 

mistrial, if granted, could have yielded a jmy less favorable to the defense and 

increased the likelihood of conviction. 

Resp't Ex. 135 at 2, 4. 

The PCR couti rejected Petitioner's ineffective assistance of counsel claim on the basis that 

the three robbe1y cases were properly consolidated and there were no grounds for mistrial based on 

the deputy district attomey's opening and closing arguments. Resp't Ex. 140 at 2. To the extent those 

underlying holdings are premised on the construction of state law, this Couti defers to the state law 

rulings. Woods, 764 F.3d at 1138-39. In any event, this Court's review of the record confirms that 

the prosecutor's isolated statements regarding the "similarity" of the victims' descriptions of the 

robber, and her admonition to the jmy not to "split the baby," did not "nullify" the couti's jmy 

instructions or otherwise provide a basis for a mistrial. Rather, she provided an appropriate summary 

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of the evidence and rebutted defense counsel's suggestion that there was only sufficient evidence to 

convict Petitioner of the Po1tland Swimwear robbe1y because he confessed to that robbe1y. See Tr. 

Vol. 2 at 314-15. Accordingly, Petitioner has not demonstrate that counsel's perfonnance was 

deficient, or that he suffered prejudice as a result of counsel's strategic decision not to renew his 

motion to sever or move for a mistrial. The PCR court's rejection of this claim is not contrmy to, or 

an unreasonable application of, clearly established federal law. 6 See 28 U.S.C. § 2254(d)(l). 

B. Failure to Object to Statement "It's all the same" 

At trial, Christopher Godfrey testified to his observations during the Pasta Bangs robbe1y. 

Godfrey testified he was working on the day of the robbery and tookpmticular notice of the robber's 

gun. Tr. Vol. 2 at 128-132. Godfrey testified the gun was an automatic and resembled one used by 

German soldiers in World War II. Id. Godfrey describe the distinguishing features of the gun as a 

strip/ridge along the side of the pistol, a circle at the top, and a sho11 barrel. Id. at 137. Godfrey drew 

a picture of the gun that was later admitted into evidence. Id. at 135, 138. When Godfrey was shown 

a photograph of the gun found in Petitioner's backpack, Godfrey testified it "very strongly" 

resembled the robber's gun. Id. at 136-37; see also Tr. Vol. 2 at 163. 

During closing arguments, the prosecutor referenced Godfrey's testimony as follows: 

[H]e focused explicitly on the gun. He just focused on that. In fact, he made a really 

great little drawing of the gun that he saw. Although he said he's not familiar with 

guns, you'll notice when you take the evidence in the back and you look at the gun, 

compared it to the photograph, pretty good. Pretty good for someone who sees a gun 

and then it's gone. 

6 Because this claim lacks merit, this Comt need not address the more complex issue of 

whether Petitioner procedurally defaulted the claim. See 28 U.S.C. § 2254(b)(2); Henry v. Ryan, 

720 F.3d 1073, 1079-80 (9th Cir. 2013) (applying§ 2254(b)(2) to a procedurally defaulted 

claim). 

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You'll notice that it doesn't work. It's non-functioning. Exactly how it was 

smt of the description of the gun. Everytlting is tlte same. Just happens to be in the 

defendant's possession. Of course, he says he just got it a day ago. 

Id at 305 (emphasis added). 

In the instant proceeding, Petitioner contends trial counsel was ineffective "when he failed 

to object or respond to the state's representation of, or statement regarding, the physical evidence 

as: 'It's all the same.' Just happens to be in the defendant's possession." Pet'r's Br. in Supp. at 18. 

Petitioner reasons the prosecutor's statement is not accurate "regarding the physical evidence seized 

[from] him .... [and] buttresses his claim that counsel should have moved for a mistrial or renewed 

his motion for severance due to the remark's effect on the juty to let the evidence of one case impact 

them all". Id 

Petitioner's claim is premised on the assumption that the Prosecutor's statement was 

referencing all of the physical evidence in the case. However, when her statement is viewed in 

context it is apparent she was simply making a comparison between Godfrey's drawing and the 

photograph of the gun seized from Petitioner's backpack. Petitioner offers no basis for an objection 

to this line of argument, and there is no reasonable probability that, had an objection been made, it 

would have been sustained and the result of the proceeding would have been different. See Juan H 

v. Allen, 408 F .3d 1262, 1273 (9th Cir. 2005) (trial counsel is not constitutionally deficient for failing 

to make a meritless objection). Accordingly, the state court's rejection of this claim is neither 

contraty to, or an umeasonable application of clearly established federal law. See 28 U.S.C. 

§ 2254( d)(l ). 

C. Failure to Impeach Sandra Timm 

Finally, Petitioner contends defense counsel was ineffective for failing to effectively impeach 

Sandra Timm "by showing suggestiveness elements in the pretrial identification and the unreliability 

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of her ultimate comiroom identification of Mr. Northup." Pet'r's Br. in Supp. at 18. Petitioner 

explains that Timm's identification was umeliable because she testified at a pre-trial hearing that 

"when viewing the montage, she was looking for a man with a thin face and that she picked 

photograph number five, in pati, because "[t]he others are too heavy." Id 7 Respondent moves the 

Comito deny habeas relief on the basis that (1) the claim was not alleged in the Habeas Petition; (2) 

the claim is procedurally defaulted because it was not raised to the Oregon Supreme Comt; and (3) 

it lacks merit. 

A review of Petitioner's Habeas Petition reveals he did not allege an ineffective assistance 

of counsel claim premised on counsel's failure to effectively cross exam Timm. Accordingly, habeas 

relief should be denied on that basis. See Rule 2( c) of the Rules Governing Section 2254 Cases in 

the United States District Comts; Green, 302 F.3d at 1070 n. 3; Casoperdo, 37 F.3d at 507. 

Additionally, Petitioner procedurally defaulted the claim by failing to raise it in his Third Amended 

Petition for Post-Conviction Relief (Resp't Ex. 117), or on appeal therefrom (Resp't Ex. 141, 142 

& 144). See Casey v. lvioore, 386 F.3d 896, 916 (9th Cir. 2004) (petitioner satisfies exhaustion 

requirement by raising it on every level of the state appellate process). Petitioner has not argued 

otherwise, nor has he demonstrated any basis to excuse his procedural default. Accordingly, habeas 

relief is precluded. See Coleman v. Thompson, 501 U.S. 722, 750 (1991) (habeas review of 

procedurally defaulted claims is barred absent showing of cause for the procedural default and actual 

prejudice, or that the failure to consider the claims will result in a miscaniage of justice). 

7 Prior to trial, defense counsel moved to suppress identifications made by the three 

victims using photo montages compiled by the Pmiland Police on the basis that the montage 

included only one man remotely similar to him. Resp't Ex. 124 at 10-11; Tr. Vol. 1at18-19, 

255-57. The trial court denied Petitioner's motion to suppress. Resp't Ex. 128. 

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Finally, the claim fails on the merits because a review of the trial transcript reveals that 

defense counsel did cross examine Timm to highlight her selection of Petitioner's photograph was 

done through a process of elimination. During direct examination, Timm testified she selected 

Petitioner's picture from a six-person photo montage because four of the men were too heavy, and 

one was thin but "[h]is face was all wrong." Tr. Vol. 2 at 39. However, Timm also testified she was 

one-hundred percentage certain of her selection of Petitioner's picture based on "the shape of[his] 

eyes, the shape of his face ... and his nose." Id at 39-40. On cross examination, defense counsel 

thoroughly questioned Timm about her selection process and ultimately obtained her agreement that 

it was a process of elimination. Id at 51. During closing arguments, defense counsel questioned the 

fairness of the photo montages given the fact that only two of the pictures were of men with naiTow 

faces. Id. at 312-13. 

Petitioner fails to explain what more defense counsel should have done when crossexamining Timm. Accordingly, Petitioner has failed to demonstrate counsel's conduct fell below an 

objective standard of reasonableness or, given the overwhelming evidence against Petitioner, that 

he suffered prejudice. See Strickland, 466 U.S. at 696 (when evaluating proof of prejudice, habeas 

court considers the totality of the evidence before the jury). Moreover, reviewing all of Petitioner's 

claims as a whole, he has failed to demonstrate cumulative e11"or so prejudicial as to require reversal. 

See Cunningham v. Wong, 704 F.3d 1143, 1165 (9th Cir. 2013). 

III. Unarguecl Claims/Request for Evidentiary Hearing 

Petitioner does not address the remaining claims in his Habeas Petition. I have reviewed the 

claims, without additional argument from Petitioner, and conclude he has failed to sustain his burden 

of proving that habeas relief is warranted. See Lambert v. Blodgett, 393 F.3d 943, 970 n. 16 (9'h Cir. 

2004) (petitioner bears burden of proving his case). 

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Petitioner seeks an evidentiary hearing to "substantiate his claim." Pet'r' s Br. in Supp. at 19. 

A habeas petitioner is entitled to an evidentiaiy hearing ifhe establishes a colorable claim for relief 

and that he was not afforded a full and fair state hearing to develop his claim. Insyxiengmay v. 

i11forgan, 403 F.3d 657, 670 (9th Cir.2005); Earp v. Ornoski, 431 F.3d 1158, 1167 (9th Cir. 2005); 

Westv. Ryan, 608 F.3d 477, 484-85 (9th Cir. 2010). To allege acolorable claim, he must allege facts 

that, if true, would entitle him to habeas relief. Insyxiengmay, 403 F.3d at 670; West, 608 F.3d at 

485; Stokley v. Ryan, 659 F.3d 802, 811 (9th Cir. 2011). 

Petitioner requests an evidentiaiy hearing to "testify as to the unfairness he faced during his 

post-conviction case" and to "admit additional original police reports to prove his counsel failed to 

properly and effectively impeach the State's eyewitness testimony." Pet'r's Br. in Supp. at 19. 

Petitioner would testify to the unfairness of his PCR proceeding and "explain, inter a/ia, that when 

his post-conviction trial began, he did not even know that an affidavit from Mr. Bethune had been 

submitted" or that "the State has responded to his claims." Id Petitioner argues he was "materially 

hindered in his ability to present a meaningful rebuttal to Bethune's rendition of events and the 

state's legal arguments." Id Petitioner's assertion, however, is belied by the state PCR record. 

At the PCR hearing, Petitioner raised the fact that he did not receive a copy of the state's trial 

memorandum until the day before the hearing, and he did not have the opportunity to depose trial 

counsel about the statements in his affidavit. Resp't Ex. 139, Vol. 4 at 43-46. However, Petitioner 

subsequently declined the court's offer of a continuance, stated that he would testify in response to 

defense counsel's affidavit, was allowed to give a closing argument at which time he attacked the 

content of the counsel's affidavit, and advised the court he did not want additional time to respond 

to the state's memoranda. Id. at 47-48, 74-78, 80-81; Resp't Ex. 138. 

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Accordingly, this Court concludes Petitioner has failed to demonstrate he was denied a full and fair 

hearing to develop any of his claims. Moreover, Petitioner makes no showing that additional 

testimony would produce anything more than what is already in the state record. See Gri.fjin v. 

Johnson, 350 F.3d 956, 966 (9th Cir. 2003) (denying evidentiaiy hearing because it would not 

produce evidence more reliable or more probative than the testimony and affidavits already 

presented). 

Finally, an evidentiaiy hearing is not wauanted to afford Petitioner the oppo1tunity to offer 

"additional original police reports," to "prove that his counsel failed to properly and effectively 

impeach" Sandra Timm because (1) the claim is procedurally defaulted; and (2) Petitioner has failed 

to demonstrate diligence and the existence of clear and convincing evidence that, but for 

constitutional etTor, no reasonable juror would have found him guilty of robbe1y. See 28 U.S.C. 

§ 2254( e )(2). 

CONCLUSION 

Based on the foregoing, Petitioner's Habeas Petition (ECF No. 2) should be DENIED, and 

this proceeding should be dismissed, with prejudice. Additionally, a Ce1tificate of Appealability 

should be 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). 

SCHEDULING ORDER 

The Findings and Recommendation will be refeued to a district judge. Objections, if any, are 

due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, 

the Findings and Recommendation will go under advisement on that date. If objections are filed, then 

a response is due fomteen (14) days after being served with a copy of the objections. When the 

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response is due or filed, whichever date is earlier, the Findings and Recommendation will go under 

advisement. 

NOTICE 

A patty's failure to timely file objections to any of these findings will be considered a waiver 

of that party's right to de nova consideration of the factual issues addressed herein and will constitute 

a waiver of the party's right to review of the findings of fact in any order or judgment entered by a 

district judge. These Findings and Recommendation are not immediately appealable to the Ninth 

Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(l) of the Federal Rules of 

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