IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PAUL RAY VILLINES, 

Petitioner, 

v. 

JOHN MYRICK, Superintendent, 

Two Rivers Correctional Institution, 

Respondent. 

NELL BROWN 

Assistant Federal Public Defender 

101 SW Main Street 

Suite 1700 

Portland, OR 97204 

Attorney for Petitioner 

ELLEN F. ROSENBLUM 

Attorney General 

SAMUEL A. KUBERNICK 

Assistant Attorney General 

Department of Justice 

1163 Court Street NE 

Salem, OR 97301 

Attorneys for Respondent 

1 - OPINION AND ORDER -

Civil No. 2:14-cv-00700-BR 

OPINION AND ORDER 

Case 2:14-cv-00700-BR Document 38 Filed 02/13/17 Page 1 of 23
BROWN, Judge. 

Petitioner, an inmate at the Two Rivers Correctional 

Institution, brings this habeas corpus action pursuant to 28 U.S.C. 

§ 2254. For the reasons that follow, the Court DENIES the Amended 

Petition for Writ of Habeas Corpus. 

BACKGROUND 

On January 31, 2006, a Marion County grand jury indicted 

Petitioner on eight charges, including one count of Kidnapping in 

the First Degree, two counts of Coercion, two counts of Assault in 

the Fourth Degree Constituting Domestic Violence, one count of 

Strangulation, one count of Harassment, and one count of Tampering 

with a witness. Resp. Exh. 102, p. 1. The case was tried to a 

jury, who found Petitioner guilty on all charges. Resp. Exh. 104, 

pp. 201-202. 

Petitioner filed a direct appeal, assigning as error the trial 

court's denial of a motion for judgment of acquittal on the 

Kidnapping charge. Resp. Exh. 105. The Oregon Court of Appeals 

affirmed the trial court's judgment without opinion, and the Oregon 

Supreme Court denied review. State v. Villines, 224 Or. App. 687, 

200 P.3d 181 (2008), rev. denied, 346 Or. 116, 205 P.3d 888 (2009). 

Petitioner then sought state post-conviction relief ("PCR''), 

alleging claims of ineffective assistance of trial and appellate 

counsel, trial-court error, and prosecutorial misconduct. Resp. 

2 - OPINION AND ORDER -

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Exh. 110. Following an evidentiary hearing, the PCR trial judge 

denied relief. Resp. Exh. 132. 

Petitioner appealed, submitting both a counseled brief and a 

prose supplemental brief. Resp. Exhs. 133, 134. The Oregon Court 

of Appeals again affirmed without opinion and the Oregon Supreme 

Court denied review. Villines v. Nooth, 258 Or. App. 907, 313 P.3d 

1148, rev. denied, 354 Or. 597, 318 P.3d 749 (2013). 

On April 28, 2014, Petitioner filed a pro se Petition for Writ 

of Habeas Corpus in this Court. The Court appointed counsel, who 

filed an Amended Petition for Writ of Habeas Corpus on Petitioner's 

behalf on November 26, 2014. The Amended Petition alleges five 

grounds for relief: 

Ground One: The trial court violated Petitioner's 

constitutional rights, guaranteed by the Fifth and 

Fourteenth Amendments to the United States Constitution, 

when it denied the motion for judgment of acquittal 

because there was insufficient evidence to establish all 

of the necessary elements of Kidnapping. 

Ground Two: The trial court violated Petitioner's 

constitutional rights guaranteed by the Fifth, Sixth, and 

Fourteenth Amendments to the United States Constitution, 

when it did not permit the public to attend Petitioner's 

trial. 

Ground Three: Petitioner was denied the effective 

assistance of counsel as guaranteed by the Sixth and 

Fourteenth Amendments to the United States Constitution 

when trial counsel failed in the following particulars: 

A. to perform effectively with regard to plea 

negotiations, including, but not limited to, 

failing to ef ively advise Petitioner as to the 

applicable law, benefits of pleading guilty, and 

consequences of going to trial; 

3 - OPINION AND ORDER -

Case 2:14-cv-00700-BR Document 38 Filed 02/13/17 Page 3 of 23
B. to perform effectively with regard to Petitioner's 

right to a public trial; 

C. to perform effectively with regard to the motion 

for a mistrial; 

D. to perform effectively with regard to the motion 

for judgment of acquittal; [and] 

E. to perform effectively with regard to sentencing, 

including but not limited to, failing to ensure 

that Petitioner's stipulation to aggravating 

factors and/or waiver of his Blakely rights was 

knowing, voluntary, and intelligent. 

Ground Four: Petitioner was denied the effective 

assistance of appellate counsel as guaranteed by the 

Sixth and Fourteenth Amendments to the United States 

Constitution when appellate counsel failed to assign as 

error on appeal the denial of a motion for mistrial. 

Ground Five: Petitioner was denied his constitutional 

right to a unanimous jury verdict under the Sixth and 

Fourteenth Amendments to the United States Constitution. 

Respondent contends Petitioner procedurally defaulted the 

claims alleged in Grounds One, Two, and Five. In any event, 

Respondent argues, the claims alleged in Grounds One and Five fail 

on their merits. Respondent further argues Petitioner failed to 

meet his burden of proof on the claims alleged in sub-parts B, C, 

and D of Ground Three, as Petitioner did not address them in his 

brief in support. Finally, Respondent argues Petitioner is not 

entitled to relief on the remaining grounds because the state PCR 

court decisions denying relief on those grounds are entitled to 

de rence. 

4 - OPINION AND ORDER -

Case 2:14-cv-00700-BR Document 38 Filed 02/13/17 Page 4 of 23
DISCUSSION 

I. State Court Decisions Entitled to Deference 

An application for a writ of habeas corpus shall not be 

granted unless the adjudication on the merits in State court 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) was "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 an "unreasonable" application of 

clearly-established federal law if the court: (1) identifies the 

correct governing legal principle from Supreme Court decisions, but 

unreasonably applies that principle to the facts of the prisoner's 

case; or (2) either unreasonably refuses to extend the governing 

legal principle or unreasonably extends it to a new context where 

it should not apply. Williams v. Taylor, 529 U.S. 362, 407, 413 

(2000) . Under this standard of review, a federal court may not 

issue a writ of habeas corpus because it concludes the state court 

applied clearly-established federal law erroneously or incorrectly. 

Instead, the state court decision must be "objectively 

unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The 

last reasoned decision by the state court is the basis for review 

by the federal court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 

(1991); Comstock v. Humphries, 786 F.3d 701, 707 (9th Cir. 2015). 

5 - OPINION AND ORDER -

Case 2:14-cv-00700-BR Document 38 Filed 02/13/17 Page 5 of 23
A. Insufficient Evidence of Kidnappinq - Ground One 

In Ground One, Petitioner alleges the tri court violated his 

Fifth and Fourteenth Amendment due process rights in denying a 

motion for judgment of acquittal on the Kidnapping in the First 

Degree charge because there was insufficient evidence to establish 

all of the necessary elements of the crime. 1 

The Due Process Clause of the Fourteenth Amendment protects 

the "accused against conviction except upon proof beyond a 

reasonable doubt of every fact necessary to constitute the crime 

with which he is charged." In re Winship, 397 U.S. 358, 364 

(1970}. In reviewing the sufficiency of evidence to support a 

petitioner's state conviction, a federal habeas court must 

determine whether, after considering all of the evidence in the 

light most favorable to the prosecution, a rational trier of fact 

could have found each of the essential elements of the crime beyond 

1

As noted, Respondent contends Petitioner procedurally 

defaulted this claim. Respondent argues Petitioner did not raise 

this claim as a matter of constitutional error on direct appeal, 

but instead argued it strictly as a claim of state-law error. 

Respondent further argues that, in any event, Petitioner is not 

entitled to relief on the merits of his due process claim. Because 

the Court finds Petitioner is not entitled to relief on the merits 

of the due process claim alleged in Ground One, the Court need not 

address procedural default. See 28 U.S.C. § 2254 (b) (2) (" [a)n 

application for writ of habeas corpus may be denied on the merits, 

notwithstanding the failure of the applicant to exhaust the 

remedies available in the courts of the State"); Runningeagle v. 

Ryan, 686 F.3d 758, 778 n.10 (9th Cir. 2012) (exercising discretion 

afforded under § 2254 (b} (2) to decline to address procedural 

default issue where relief denied on the merits), cert. denied, 133 

S . Ct. 2 7 6 6 ( 2013) . 

6 - OPINION AND ORDER -

Case 2:14-cv-00700-BR Document 38 Filed 02/13/17 Page 6 of 23
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 

(1979); Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). The 

court must look to state law to determine the elements of the crime 

and the appropriate definition or parameters of such elements. 

Jackson, 443 U.S. at 324. 

Oregon law provides in pertinent part that a person commits 

the crime of Kidnaping in the First Degree if, with the intent to 

interfere substantially with another's personal liberty and without 

consent or legal authority, he takes a person from one place to 

another or secretly confines the person in a place where he is not 

likely to be found with the purpose to cause physical injury to the 

victim. Or. Rev. Stat. §§ 163.225 and 163.235(1) (c). In State v. 

Wolleat, 338 Or. 469, 474-5, 478, 111 P.3d 1131 (2005), the Oregon 

Supreme Court reviewed this law, its legislative history, and prior 

interpretive Oregon case law, and then drew the following 

conclusions: ( 1) "the legislature intended that there be no 

conviction of the defendant for the separate crime of kidnaping 

where the detention or asportation of the victim is merely 

incidental to the accomplishment of another crime;" ( 2) "the 

liberty interest that the statute protects from interference is the 

interest in freedom of movement and in order for the 

interference to be substantial, a defendant must intend either to 

move the victim a substantial distance or to confine the victim for 

a substantial period of time;" and (3) "moving a victim from one 

7 - OPINION AND ORDER -

Case 2:14-cv-00700-BR Document 38 Filed 02/13/17 Page 7 of 23
room to another while committing another crime does not constitute 

moving the victim a substantial distance." (Internal quotations 

omitted.) 

In Wolleat, the defendant entered the victim's bedroom, pulled 

the victim by her hair out of bed and into the living room 

approximately 15 to 20 feet away, and repeatedly struck her there 

until the victim broke free and the defendant fled the scene. Id. 

at 471. The court held this evidence was insufficient to convict 

the defendant of Kidnaping. Id. at 478 9. 

In State v. Mej , 348 Or. 1, 12 (2010), the Oregon Supreme 

Court held the defendant's acts were sufficient to prove the 

defendant intended to interfere substantially with the victim's 

personal liberty, apart from the assaultive and menacing acts, and 

was thus guilty of kidnaping. There, during a 90-minute ordeal, 

the defendant pushed the victim from her open front door as she was 

leaving her home, moved her to a bedroom a distance of 

approximately 34 feet, took away her cell phone when she tried to 

call for help, held his hand over her mouth to stifle her screams, 

pointed a gun at her and threatened to kill her, smashed a 

comforter into her face making it difficult to breathe, and 

repeatedly choked her. Id. at 3-5. In Mejia, the Oregon Supreme 

Court explained the Wolleat decision as follows: 

Wolleat and [State v. Zweigart, 344 Or. 619, 188 P.3d 242 

(2008)] involved situations in which the actual physical 

movement of the victim was the only evidence available to 

prove whether the defendants intended to kidnap the 

8 - OPINION AND ORDER -

Case 2:14-cv-00700-BR Document 38 Filed 02/13/17 Page 8 of 23
victims by substantially interfering with their personal 

liberty. Those cases demonstrate that, when the only 

evidence of a defendant's intent is physical movement of 

the victim, a reasonable juror may only infer intent to 

interfere substantially with a victim's freedom of 

movement if there is "evidence that the defendant moved 

the victim a substantial distance." Zweigart, 344 Or. at 

636 (emphasis added) . 

Mejia, 348 Or. at 10. 

The Oregon Court of Appeals came to the same conclusion and 

affirmed the kidnaping conviction in State v. Nguyen, 221 Or. App. 

440, 190 P.3d 462 (Or. App. 2008), modified on other grounds on 

reconsideration, 228 Or. App. 241, 206 P.3d 1219 (Or. App. 2009}, 

rev. denied, 348 Or. 669, 237 P.3d 824 (2010). In Nguyen, the 

defendant surprised the victim in her bedroom and held her at 

gunpoint, told her to be quiet, ordered her to move against the 

wall, ordered her to move about six feet to the bed, ordered her to 

lie face down, handcuffed her behind her back, gagged her mouth, 

moved her to the floor, bound her ankles, covered her head with a 

shirt, and left her in the bedroom while he searched the house for 

money. Id. at 442. 

Here, the victim was Petitioner's live-in girlfriend and the 

mother of his inf ant son. One night in October 2005, two of 

Petitioner's friends were visiting the apartment Petitioner and the 

victim shared. When one of Pet ioner's friend began to light a 

cigarette the victim asked him not to smoke in the presence of the 

baby. Petitioner became angry, and told the victim she 

9 - OPINION AND ORDER -

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disrespected him by ordering his friend around. The victim then 

grabbed her keys and walked out of the apartment. 

The evidence adduced at trial showed Petitioner followed the 

victim outside, grabbed her by the hair, shoved her against a wall, 

and choked her. Resp. Exh. 105, p. 3-4. As he did so, Petitioner 

yelled at the victim and demanded to know where she was going. 

Resp. Exh. 105, p. 3. When the victim told Petitioner she was 

going to the landlord's off to call the police, Petitioner told 

her she was not going to call the police on him. He next slammed 

the victim against her car. Resp. Exh. 103, Trial Tr., Vol. I, P. 

33). Petitioner then dragged the victim back into their home by 

the hair, over a distance of about 20 feet. Id., pp. 33-34; Resp. 

Exh. 105, p. 4. 

Once back inside the home in the kitchen, Petitioner ordered 

the victim to go back in the bedroom. When she refused, he grabbed 

her by the hair and slammed her against the counter top. 

Petitioner's friend came into the kitchen and asked Petitioner to 

stop. Petitioner then dragged the victim down the hallway by her 

hair from the kitchen into the bedroom. 

In the bedroom, Petitioner threw the victim on the bed, and 

began choking her. The friend came into the bedroom and again told 

Petitioner to stop. Petitioner got off the victim, and she 

apologized to him for whatever she had done. Petitioner told her 

that if she disrespected him again it was going to get worse, and 

10 - OPINION AND ORDER -

Case 2:14-cv-00700-BR Document 38 Filed 02/13/17 Page 10 of 23
that if she called the police he would harm her and the baby. The 

victim did not call the police then, but she did so several weeks 

later after another incident in which Petitioner assaulted her. 

Petitioner argues there was insufficient evidence to establish 

the intent element of first-degree kidnapping because the movement 

of the victim here was merely incidental to the ongoing assault, 

and, thus, did not permit a rational finder of fact to find or 

infer that Petitioner had the intent to substantially interfere 

with the victim's liberty. In particular, Petitioner asserts the 

movement of the victim here was so minimal that no reasonable juror 

could find Petitioner had the statutorily required intent to abduct 

the victim. 

Petitioner's argument is without merit. The evidence 

presented is such that a rational trier of fact could easily 

conclude that Petitioner intended to substantially interfere with 

the victim's liberty. Petitioner did much more than simply move 

the victim around the home to assault her. Rather, Pe ti ti oner 

followed the victim outside the home, grabbed her by the hair, 

shoved her against the wall, and began to choke her. When the 

victim told Petitioner she was going to the landlord's office to 

call the police, he told her she was not going to do so, he slammed 

her into the car, and he dragged her back into the apartment by 

her hair. Based on that evidence, a rational finder of fact could 

find that Petitioner not only intended to assault the victim, but 

11 - OPINION AND ORDER -

Case 2:14-cv-00700-BR Document 38 Filed 02/13/17 Page 11 of 23
that he intended to keep her from escaping to a place of safety and 

getting outside help. See Niehus v. Premo, Case No. 3:11-cv-00491-

PK, 2013 WL 2423794, at *11 (D. Or. 2013) (evidence sufficient to 

meet intent element of kidnapping where the petitioner "did not 

merely move the victim from room-to-room, but seized her outside 

her apartment as she was trying to escape and yelling for help, 

dragged her approximately 30 feet back inside the apartment, and 

shut the door") (emphasis in original) . 

At trial, Petitioner moved for a judgment of acquittal on the 

Kidnapping charge, arguing that the evidence did not support a 

finding of sufficient intent as required by Wolleat. The trial 

judge denied the motion, and the jury found Petitioner guilty. On 

appeal, the Oregon Court of Appeals and the Oregon Supreme Court 

rejected Petitioner argument that the trial court erred in denying 

the motion for judgment of acquittal. Under the circumstances of 

the case, the state courts' decisions were not objectively 

unreasonable and were not contrary to or an unreasonable 

application of clearly established federal law. Accordingly, 

Petitioner is not entitled to habeas corpus relief on the claim 

alleged in Ground One. 

B. Ineffective Assistance of Trial and Appellate Counsel -

Ground Three (subparts A and E) and Ground Four 

In Ground Three, subparts A and E, tioner alleges trial 

counsel provided ineffective assistance by failing to perform 

effectively with regard to plea negotiations and sentencing. In 

12 - OPINION AND ORDER -

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Ground Four, Petitioner asserts a single claim of ineffective 

assistance of appellate counsel, contending that counsel failed to 

assign as error on appeal the denial of Petitioner's motion for 

mistrial. These claims were fully exhausted in Petitioner's state 

PCR proceedings. 

A claim of ineffective assistance of trial counsel requires 

the petitioner to prove that counsel performed deficiently and that 

the petitioner suffered prejudice. Strickland v. Washington, 466 

U.S. 668, 687-88 (1987). The Strickland standard also applies to 

claims of ineffective assistance of appellate counsel. Evitts v. 

Lucey, 469 U.S. 387 (1985). 

If there is a failure of proof on either Strickland prong, 

habeas relief is not warranted. Murray v. Schriro, 746 F.3d 418, 

457 (9th Cir. 2014). When reviewing a state prisoner's habeas 

claim of ineffective assistance, federal courts must apply a doubly 

deferential standard of review taking into account the strong 

presumption of competence under Strickland, and the deferential 

standard of review under 28 U.S.C. § 2254(d). 

Pinholster, 563 U.S. 170, 190 (2011). 

Cullen v. 

To show counsel performed deficiently, a petitioner must 

establish that his counsel's representation fell outside the wide 

range of professionally competent assistance. Lafler v. Cooper, 

132 S.Ct. 1376, 1384 (2012); Strickland, 466 U.S. at 688. In order 

to establish prejudice, a petitioner must demonstrate that there is 

13 - OPINION AND ORDER -

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a reasonable probability that, but for counsel's errors, the result 

of the proceeding would have been different. Lafler, 132 S. Ct. at 

1384; Harrington v. Richter, 562 U.S. 86, 112 (2011). A reasonable 

probability is a probability sufficient to undermine confidence in 

the outcome of the proceeding. Strickland, 466 U.S. at 694. 

The state PCR trial court rejected Petitioner's claims of 

ineffective assistance of trial and appellate counsel as follows: 

No inadequacy or prej[udice] concerning att[orney] on 

appeal. Raised issues he felt were strongest. No 

inadeq[uacy] or prej [udice] by trial att [orney]-- no 

grounds for recusal made in judgment of appeal. 

Insufficient proof of ethnicity of jury or appeal. 

Knowing stipulation to departure factors -- no evidence 

that jury would not have found departure factors ( 18 

priors, prior [domestic violence] felonies) . [Court] 

findings agree. Court believes attorney discussed grid 

and departures and plea offers. Insufficient evidence 

that public, as opposed to witnesses, were denied access. 

Insufficient evidence that att[orney], court of DA made 

aware of concern. 

Resp. Ex. 132, p. 1. These findings and conclusions are not 

objectively unreasonable, and the record supports them. 

Petitioner contends trial counsel failed to advise him 

adequately regarding a potential plea agreement. 2 He alleges that 

when an initial plea of fer was extended, counsel should have 

advised him that if he did not accept the of fer the State could add 

2

The Court notes that this particular ineffective assistance 

claim was not presented to the Oregon Court of Appeals in 

Petitioner's state PCR proceeding; the only ineffective assistance 

of trial counsel claim advanced on appeal was the alleged failure 

associated with sentencing. Nonetheless, because Petitioner is not 

entitled to relief on the merits of this claim, the Court declines 

to address the procedural default issue. See footnote 1, supra. 

14 - OPINION AND ORDER -

Case 2:14-cv-00700-BR Document 38 Filed 02/13/17 Page 14 of 23
additional serious charges and could seek an upward departure 

sentence based upon Petitioner's prior criminal history. In his 

Brief in Support, Petitioner argues counsel never gave this advice. 

Petitioner does not, however, point to any evidence in the record 

to support this assertion, and the Court could locate none. 

To the contrary, Petitioner's trial counsel submitted a 

declaration in the PCR case explaining her advice to Petitioner 

regarding the plea negotiations: 

I had explained all aspects of the plea negotiations with 

him, including plea offers from the state. 

Consistent with my general practice, I explained to him 

the presumptive sentences, as well as the maximum and 

minimum sentences he could receive for each charge. My 

general practice is to show my clients the Oregon 

Sentencing Guidelines Grid and identify their gridblock 

on the grid. While I cannot recall specifically, I don't 

believe I deviated from my general practice in showing 

the grid to [Petitioner]. Over the number of 

conversations that I had with [Petitioner], it was clear 

that he was unwilling to consider any plea offer. He 

insisted upon a trial. 

Resp. Exh. 129, p. 2 (emphasis supplied). At the PCR evidentiary 

hearing, the trial judge asked Petitioner about his position on the 

plea negotiations: 

COURT: 

PETITIONER: 

Did you tell [counsel] that you were not 

going to accept any plea of and that 

you insisted on a trial? 

No. At rst -- at first, I told 

would go to trial. I had a 

indictment and it had no Kidnap, 

had no -- it had only Assault, 4, 

tampering with a witness. 

her we 

first 

1. It 

and no 

Resp. Exh. 131, pp. 20-21. 

15 - OPINION AND ORDER -

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No other evidence in the record supports Petitioner's claim 

that counsel failed to properly advise him in plea negotiations at 

the outset of the action; the declaration and amended declaration 

submitted by Petitioner in the state PCR proceeding are silent on 

the issue. In the absence of any such evidence, the PCR court 

decision denying relief on this claim was not unreasonable. 

Petitioner also alleges counsel provided ineffective 

assistance in the plea negotiations pertaining to sentencing. 

Following entry of the guilty verdict, Petitioner signed a waiver 

of his rights under Blakely v. Washington, 542 U.S. 296 (2004) and 

admitted three bases for upward departures, thereby alleviating the 

State's burden to prove to the jury relevant facts to support the 

departures. In return, the State agreed not to seek departures 

based on several other factors. 

In his written Blakely waiver, Petitioner agreed he was 

admitting to certain factors delineated in the State's "Notice of 

Intent to Rely on Enhancement Facts." Specifically, Petitioner 

admitted "persistent involvement," "prior sanctions have not 

deterred," and "demonstrated disregard for laws." Resp. Exh. 115, 

Addendum "A" to Plea Petition, and "Notice of Intent to Rely on 

Enhancement Facts"). 

In the PCR proceeding, trial counsel submitted an affidavit 

stating that she explained to Petitioner that the judge could 

increase his sentence based on his admissions to those aggravating 

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factors. Resp. Exh. 129, pp. 1-2. In addition, prior to 

sentencing, the trial court engaged in a colloquy with Petitioner 

to ensure he understood the potential implications of his 

stipulation to the enhancement facts, which Petitioner indicated he 

understood. Resp. Exh. 103, Trial Tr., Vol. I, p. 204). Under 

these circumstances, Petitioner has not established that the PCR 

trial court's conclusion that trial counsel performed effectively 

with regard to the Blakely waiver was objectively unreasonable. 

Moreover, the PCR trial court determined that, given 

Petitioner's extensive criminal history, there was "no evidence 

that [a] jury would not have found departure factors." Resp. Exh. 

132, p. 1. The record indicated that prior to the offenses in this 

proceeding, Petitioner had approximately eighteen prior 

convictions, including three for inflicting corporal injury on a 

spouse or co-habitant as a misdemeanor, felony battery against a 

spouse, violation of a protective order to prevent domestic abuse, 

sexual battery, and a number of property and drug crimes. Resp. 

Exh. 104, Trial Tr., Vol. II, 4/5/06 Sentencing Hearing, pp. 3-4). 

Given Petitioner's substantial criminal record, the PCR trial 

court reasonably concluded that, even if counsel had not 

recommended that Petitioner sign the Blakely waiver or had objected 

to the trial court's imposition of an upward departure sentence, 

Petitioner would not have received a lower sentence. Accordingly, 

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the PCR trial court's decision denying relief on this claim was not 

contrary to or an unreasonable application of Strickland. 

In Ground Four, Petitioner alleges one claim of ineffective 

assistance of appellate counsel, for failure to assign as error on 

appeal the denial of a motion for mistrial. At trial, the 

prosecutor was questioning on redirect a state's witness who was at 

the residence when the incident occurred. The prosecutor stated 

that Petitioner's trial counsel was ''quibbling" with the witness 

about what Petitioner said to the witness after the incident. At 

that point, outside of the presence of the jury, counsel moved for 

a mistrial. 

Counsel also argued that there had been a discovery violation, 

which provided additional grounds for a mistrial. The witness in 

question had not been interviewed by police or otherwise had his 

statements memorialized, and the prosecutor interviewed him prior 

to trial but apparently did not take notes of the interview or have 

an investigator present during the interview. The prosecutor did 

not disclose to the defense prior to trial the nature of the 

witness 1 s statements or the fact that he had interviewed the 

witness. 

The trial court found that the prosecutor 1 s comment about 

trial counsel "quibbling" with the witness was no different than 

"saying that you were arguing with the witness, and you were 

arguing with the witness." Resp. Exh. 103, Trial Tr., Vol. I, p. 

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110). The court found that the comment did not se "to the level 

of prosecutorial misconduct," or "to the level sufficient to cause 

a mistrial." Id. As to the alleged discovery violation, the court 

found that counsel was aware the witness would be testifying as his 

name had "been listed for at least three trial settings." Id. 

Moreover, the court found "[n]one of the testimony that [the 

witness] provided I would say is exculpatory to [Petitioner], and 

it in fact, is corroborating of the victim's testimony." Id., p. 

111. As such, the court denied the mistrial motion. 

Had appellate counsel assigned error to the denial of a 

mistrial, the Oregon Court of Appeals would have reviewed the 

denial on direct appeal for abuse of discretion. State v. Terry, 

333 Or. 163, 175, 37 P.3d 157 (2001). Under Oregon law, discretion 

"refers to the authority of a trial court to choose among several 

legally correct outcomes," and if the decision "was within the 

range of legally correct discretionary choices and produced a 

permissible, legally correct outcome, then the trial court did not 

abuse its discretion." State v. Ringler, 264 Or. App. 551, 553, 

333 P. 3d 1080 (internal citation and quotations omitted), rev. 

denied, 356 Or. 575, 342 P.3d 88 (2014). 

In light of the record, as a whole, and the de rential 

standard of review that would have been applicable on appeal, the 

PCR trial court reasonably concluded appellate counsel was not 

ineffective for failing to assign error, or that Petitioner would 

19 - OPINION AND ORDER -

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have more likely than not prevailed on his appeal had the issue 

been raised. Accordingly, Petitioner is not entitled to relief on 

the inffective assistance of appellate counsel claim alleged in 

Ground Four. 

II. Procedurally Defaulted Claims - Ground Two and Ground Five 

In Ground Two, Petitioner alleges the trial court violated his 

constitutional rights by closing Petitioner's trial to the public. 

In Ground Five, he asserts that he was denied his constitutional 

right to a unanimous jury verdict. As noted, Respondent contends 

Petitioner procedurally defaulted these two claims. 

Generally, a state prisoner must exhaust all available state 

remedies either on direct appeal or through collateral procedings 

before a federal court may consider granting habeas corpus relief. 

28 U.S.C. § 2254{b) (1). A state prisoner satisfies the exhaustion 

requirement by "fairly presenting" his claim to the appropriate 

state courts at all appellate states afforded under state law. 

Castille v. Peoples, 489 U.S. 346, 351 {1989); Baldwin v. Reese, 

541 U.S. 27, 29 {2004). 

If the petitioner's federal claim is not exhausted, and he can 

no longer do so becuase of a state procedural bar, his claim is 

procedurally defaulted. Cooper v. Neven, 641 F.3d 322, 327-28 {9th 

Cir.), cert. denied, 132 S.Ct. 558 (2011}. If a petitioner 

procedurally defaults his available sate remedies, habeas relief is 

precluded absent a showing of cause and prejudice, or that the 

20 - OPINION AND ORDER -

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failure to consider the defaulted claims will result in a 

fundamental miscarriage of justice. 

722, 750 {1991). 

Coleman v. Thompson, 501 U.S. 

Petitioner did not raise at trial or on direct appeal his 

claim that the trial court violated his constitutional right to a 

public trial. In Oregon, claims of trial court error are most 

properly brought on direct appeal. See Walker v. Howton, Case No. 

3:11-cv-00265-KI, 2013 WL 5787241, at *4 n.2 (D. Or. 2013) {"when 

a criminal defendant fails to raise an issue at trial that the 

defendant reasonably could have been expected to raise, the 

defendant cannot obtain post-conviction relief on that ground 

unless the defendant alleges and proves that the failure to raise 

the issue due to one {or more) of a few narrowly drawn exceptions") 

(citing Palmer v. State of Oregon, 318 Or. 352, 458, 867 P.2d 1368 

(1994)). Petitioner fails to establish that the claim alleged in 

Ground Two falls within one of the narrowly drawn exceptions, and 

his failure to exhaust this claim through a direct appeal appears 

procedurally defaulted because the time to do so has now expired. 

In any event, even if the error was one properly pursued in 

the state PCR proceedings, Petitioner procedurally defaulted the 

claim there as well. In his state PCR petition, Petitioner alleged 

both a trial error claim that he was denied his right to a public 

trial when the courtroom was closed to the public, and a claim that 

trial counsel was ineffective in failing to object to the court 

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denying Petitioner's right to a public trial. Resp. Exh. 110, pp. 

3, 5. On appeal from the PCR trial court's denial of relief, 

however, Pet ioner argued only that trial counsel provided 

constitutionally ineffective assistance by failing to ensure that 

Petitioner received a public trial; Petitioner did not address his 

claim that the trial court erred in closing the trial to the 

public. Resp. Exh. 133. Because Petitioner did not fairly present 

the claim alleged in Ground Two at all appellate levels afforded in 

the PCR proceedings, and because he can no longer properly do so, 

the claim is procedurally defaulted. 

As to Ground Five, Pe ti ti oner did not assert any claim in 

state court regarding the lack of a unanimous jury verdict. 

Because he can no longer properly present such a claim in state 

court, Ground Five is also procedurally defaulted. 3 

Petitioner does not present any evidence establishing cause 

and prejudice or a fundamental miscarriage of justice to excuse his 

procedural default of the claims alleged in Ground Two or Ground 

Five. Accordingly, Petitioner is not entitled to habeas corpus 

relief on these claims. 

3 In any event, Oregon's system of allowing convictions by nonunanimous juries was upheld by the Supreme Court in Apodaca v. 

Oregon, 406 U.S. 404, 406 (1972). 

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III. Claims Not Addressed by Petitioner - Ground Three (subparts B, 

C, and D) 

Finally, Petitioner does not address the remaining claims of 

ineffective assistance of trial counsel alleged in Ground Three. 

Accordingly, Petitioner has failed to sustain his burden of 

demonstrating why he is entitled to relief on his unargued claims. 

See Mayes v. Premo, 766 F.3d 949, 957 (9th Cir. 2014) (habeas 

petitioner bears the burden of proving his case), cert. denied, 135 

S.Ct. 879 (2015); Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 

2004) (same). Nevertheless, the Court has reviewed Petitioner's 

unargued claims on the existing record and finds that Petitioner is 

not entitled to habeas corpus relief. 

CONCLUSION 

For these reasons, the Court DENIES the Petition for Writ of 

Habeas Corpus (ECF No. 1), and DISMISSES this action. 

The Court DENIES a certificate of appealability 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 ~(}\ day of this ..d. February, 2017. 

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