IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

CARL LEE SIMINGTON, 

Case No. 6:14-cv-01252-SI 

Petitioner, 

v. 

MARK NOOTH, 

OPINION AND ORDER 

Respondent. 

Nell Brown, 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-01252-SI Document 32 Filed 11/05/15 Page 1 of 25
SIMON, District Judge. 

Petitioner brings this habeas corpus case pursuant to 28 

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

convictions for Robbery. For the reasons that follow, the Amended 

Petition for Writ of Habeas Corpus (#16) is denied. 

BACKGROUND 

In the summer of 2003, petitioner and his accomplice, Stefanie 

Souders, stole cigarettes and cash from three different Plaid 

Pantry convenience stores in Portland, as well as several food 

items from a Whole Foods grocery store. As a result, the Multnomah 

County Grand Jury indicted petitioner and Souders on three counts 

of Robbery in the Second Degree and one count of Theft in the 

Second Degree. Respondent's Exhibit 102. Souders entered a guilty 

plea and received a probationary sentence. Respondent's Exhibit 

104, p. 33. 

Petitioner waived his right to a jury trial and proceeded to 

a court trial in front of Judge Sidney Galton. At the close of the 

State's case, petitioner's attorney moved for a judgment of 

acquittal on all counts, and Judge Galton granted the motion to the 

extent that he: ( 1) dismissed the charge of Theft in the Second 

Degree; and (2) reduced the Whole Foods charge from Robbery III to 

Robbery III. Id at 129-143. Judge Galton ultimately found 

petitioner guilty of the remaining charges and sentenced him to 

consecutive 70-month sentences for each of the two Robbery II 

2 - OPINION AND ORDER 

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convictions, and a consecutive 16-month sentence for the Robbery 

III conviction for a total prison sentence of 156 months. 

Respondent's Exhibit 105, pp. 259-260. 

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. Simington, 215 

Or. App. 703, 170 P.3d 1137, rev. denied, 344 Or. 110, 178 P.3d 249 

(2008). Petitioner filed a successive direct appeal which the 

Oregon Court of Appeals dismissed on its own motion. Respondent's 

Exhibits 112-113. 

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

Marion County where the PCR trial court denied relief. 

Respondent's Exhibits 144-146. The Oregon Court of Appeals 

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

Supreme Court denied review. Simington v. Williams, 261 Or. App. 

584, 326 P.3d 78, rev. denied, 355 Or. 567, 329 P.3d 770 (2014). 

Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on 

August 4, 2014, and amended his Petition on December 22, 2014 to 

state the following grounds for relief: 

Ground One: The trial court violated 

Petitioner's constitutional right to an 

impartial tribunal, guaranteed by the Fifth, 

Sixth, and Fourteenth Amendments to the United 

States Constitution, when the trial court 

presided over Petitioner' s case despite 

debilitating mental health issues. 

Ground Two: The trial court violated 

Petitioner's constitutional rights, guaranteed 

3 - OPINION AND ORDER 

Case 6:14-cv-01252-SI Document 32 Filed 11/05/15 Page 3 of 25
by the Fifth and Fourteenth Amendments to the 

United States Constitution, when it admitted 

certain evidence, including evidence of 

Petitioner's violent history and the in-court 

identification of Petitioner by Bruce A. 

Knight. 

Ground Three: The trial court violated the 

Petitioner's constitutional rights, guaranteed 

by the Fifth and Fourteenth Amendments to the 

United States Constitution, violated when he 

was shackled at trial. 

Ground Four: 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 effectively engage in plea negotiations, 

and to effectively advise Petitioner regarding 

the State's plea offer; 

B. to effectively advise Petitioner about his 

right to jury trial, rendering Petitioner's 

decision to waive his right to trial by jury 

not knowing, voluntary, and intelligent; 

C. to seek recusal of the trial judge or to 

object as necessary in order to safeguard 

Petitioner's right to an impartial tribunal; 

D. to pursue and preserve appropriate 

objections to inadmissible evidence, or to 

seek a mistrial in connection with the trial 

court' s admission of inadmissible evidence, 

including, but not limited to, challenging 

hearsay evidence, the in-court identification 

of Petitioner by Bruce A. Knight, and evidence 

about Petitioner's violent history; 

E. to object to the shackling of Petitioner at 

trial; 

F. to pursue and effectively argue appropriate 

motions, including motions to suppress and for 

judgment of acquittal; and 

4 - OPINION AND ORDER 

Case 6:14-cv-01252-SI Document 32 Filed 11/05/15 Page 4 of 25
G. to pursue and preserve appropriate 

objections to Petitioner's sentence. 

Ground Five: Petitioner was denied the 

effective assistance of counsel as guaranteed 

by the Sixth and Fourteenth Amendments to the 

United States Constitution when appellate 

counsel failed to pursue meritorious issues on 

appeal. 

Ground Six: The trial court violated 

Petitioner's constitutional rights, guaranteed 

by the Fifth and Fourteenth Amendments to the 

United States Constitution, in denying the 

motion for a judgment of acquittal. 

Ground Seven: The trial court violated 

Petitioner's constitutional rights, guaranteed 

by the Fifth, Sixth and Fourteenth Amendments, 

when it imposed sentence. 

Respondent asks the court to deny relief on the Amended 

Petition because: (1) it is questionable whether petitioner fairly 

presented his Ground One claim to Oregon's state courts; 

(2) petitioner fails to carry his burden of proof on the claims he 

does not support with argument; and (3) the state courts denied 

relief in decisions that were not objectively unreasonable, and 

which are entitled to deference from this court. Because 

petitioner's Ground One claim fails on its merits for the reasons 

discussed below, the court declines to decide the exhaustion issue. 

See 28 U.S.C. § 2254(b) (2) ("An application for a 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."). 

Ill 

5 - OPINION AND ORDER 

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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 

precedent." Williams v. 

at a result different from [that] 

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 

6 - OPINION AND ORDER 

Case 6:14-cv-01252-SI Document 32 Filed 11/05/15 Page 6 of 25
the state court decision to be more than incorrect or erroneous. 

Id at 410. The state court's application of clearly established 

law must be objectively unreasonable. Id at 409. 

When a state court reaches a decision on the merits but 

provides no reasoning to support its conclusion, the federal habeas 

court must conduct an independent review of the record to determine 

whether the state court clearly erred in its application of Supreme 

Court law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). 

In such an instance, although the court independently reviews the 

record, it still lends deference to the state court's ultimate 

decision. Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011); 

Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). 

II. Unargued Claims 

In his Amended Petition, petitioner raises seven grounds for 

relief. In his supporting memorandum, however, petitioner chooses 

to argue only Grounds One, Four(b), Four(D), Four(F), Five and Six. 

Petitioner does not argue the merits of his remaining claims, nor 

does he address any of respondent's arguments as to why relief on 

these claims should be denied. As such, petitioner has not carried 

his burden of proof with respect to these unargued claims. See 

Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (petitioner 

bears the burden of proving his claims). Even if petitioner had 

briefed the merits of these claims, the court has examined them 

7 - OPINION AND ORDER 

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based upon the existing record and determined that they do not 

entitle him to relief. 

III. Ground One: Fitness to Preside 

Petitioner claims Judge Galton violated his right to due 

process when he presided over petitioner's trial while suffering 

from debilitating mental issues. He asserts that there were 

instances during his trial when Judge Galton did not know what the 

attorneys were doing, engaged in a concerning "back and forth" with 

defense counsel as to whether he had used the word "chippy," and 

imposed a harsh sentence on petitioner based upon his unsupported 

belief that petitioner had acted violently toward Souders. Because 

the Oregon Court of Appeals did not issue a written opinion as to 

this claim, this court conducts an independent review of the 

record. 

"Due process implies a tribunal both impartial and mentally 

competent to afford a hearing." Jordan v. Massachusetts, 225 U.S. 

167, 176 (1912). Petitioner alleged during his direct appeal that 

Judge Galton was not mentally competent, and submitted several 

letters from Judge Galton's physicians detailing his mental health 

issues. Respondent's Exhibit 107. The letters express concern 

over Judge Galton's short-term memory, volatility, concentration, 

suicidal ideation, and difficulty making decisions. Id. The 

letters also reveal that in 2005, Judge Galton was disabled and 

unable to perform the duties of his office. Id. However, the 

8 - OPINION AND ORDER 

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earliest of the letters is dated March 2, 2005, and none of the 

letters indicate that Judge Galton was unable to effectively 

preside over a trial prior to 2005. Where petitioner's trial 

occurred in January of 2014, and Judge Galton imposed his sentence 

in May of 2004, the letters are of limited value to petitioner's 

attempt to establish that Judge Galton was unfit to preside over 

those proceedings. 

Petitioner also believes that two instances of confusion on 

the part of Judge Galton demonstrate his lack of capacity to hold 

the trial. In the first, the attorneys were discussing how to 

present the evidence, and whether to take each criminal incident in 

turn. During this discussion, the prosecutor erroneously referred 

to the incidents as separate cases, prompting Judge Galton to 

declare that there were not multiple cases and, "You guys scare me 

because I keep thinking you may be trying something about which I 

don't know. That's fine. However you guys want to do it is okay, 

fine by me." Respondent's Exhibit 104, p. 59. Given the erroneous 

reference to multiple cases by the prosecutor, Judge Gal ton's 

statements were reasonable. 

Petitioner also points to another portion of the record 

showing confusion on Judge Gal ton's part where the prosecutor 

elicited testimony from a police officer that one of the robbery 

victims provided a license plate number for petitioner's car that 

obviously did not correspond to petitioner's car (described as a 

9 - OPINION AND ORDER 

Case 6:14-cv-01252-SI Document 32 Filed 11/05/15 Page 9 of 25
"smaller import-type"), but instead purportedly belonged to a 1950 

pickup truck: 

Officer: Yeah, listed plate returns to a '50 

Chevrolet pickup. So a policeman 

would just say 777 AMR similar. 

Something's screwed up someplace. 

DA: And so something screwed up, either 

- you're saying either the clerk got 

it wrong or something else might be 

screwed up? 

Officer: Well, not that the clerk got it 

wrong, but there's -- some of the -

- a number 

Defense: Objection. 

Officer: -- a number or something's out of place. 

Defense: Judge, he's speculating as to what's 

going on here. 

Court: I take it that he's just explaining 

his answer and I'll allow it. 

DA: No further questions. 

Court: 

DA: 

Court: 

DA: 

Court: 

Okay. And at some point, you 

gentlemen are going to have to tell 

Officer Jensen what you all are 

doing because I don't really 

understand and I doubt he 

understands. I don't know if he was 

on any of the other incidents. 

He was. 

Okay. 

But --

Apparently they're doing something 

that you and I don't exactly know 

about, but we'll find out as to when 

you're going to be back, if you're 

10 - OPINION AND ORDER 

Case 6:14-cv-01252-SI Document 32 Filed 11/05/15 Page 10 of 25
going to be back after [defense 

counsel) asks you questions about 

this incident. I just want the 

witness to know what's going on 

because I don't really understand. 

Respondent's Exhibit 104, pp. 62-63. 

While Judge Gal ton demonstrates confusion as to where this 

line of questioning is headed, his confusion appears to be 

reasonable where: (1) the license number was not, itself, a 

material issue at the trial; (2) the fact that there might have 

been a clerical error was not germane to the charges petitioner 

faced; and (3) the prosecutor abruptly ended his line of 

questioning without achieving any apparent goal. 

Petitioner also contends that Judge Galton was overly 

argumentative when he engaged in a brief exchange with defense 

counsel as to whether he had ever referred to the various robberies 

as "chippy." The court immediately disagreed: 

Court: Not this. Chippy, that is not a word I use. 

Defense: Well, I thought that I heard that word. And 

if not, I'm in error. 

Court: It sure doesn't sound like me. 

Defense: But you were -

Court: But under any circumstances, it' s certainly 

smaller and far less serious than what we're 

discussing today. 

Defense: And you were describing them in that fashion. 

And perhaps I misspoke. 

Court: Chippy? 

11 - OPINION AND ORDER 

Case 6:14-cv-01252-SI Document 32 Filed 11/05/15 Page 11 of 25
Defense: To Mr. Simington. 

Court: Boy, it sure doesn't sound like me. 

Defense: Perhaps -

Court: Oh, well. 

Respondent's Exhibit 105, p. 231. 

This portion of the transcript does not reveal that Judge 

Galton's behavior was concerning in any way. Indeed, Judge Galton 

appeared not to dwell on the issue, simply indicating that it did 

not sound like him, saying "Oh, well," and moving on. Nothing 

about this exchange shows Judge Galton was unfit to proceed over 

the trial. 

While petitioner takes issue with the rationale underlying his 

sentence where the prosecutor opined that Souders was a victim of 

abuse by many pimps including petitioner, 1 it does not appear that 

these comments constituted any basis for his sentence. Judge 

Galton specifically identified the bases for the sentence he was 

imposing: 

The sentences that will follow are premised in 

part upon your persistent involvement in 

similar offenses, that you were on probation 

or parole at the time of your offenses, that 

you have had persistent, unrelenting 

misconduct while under supervision, and that 

prison can be a basis for departure, each 

separately and in concert. 

Respondent's Exhibit 105, p. 259. 

Respondent's Exhibit 105, pp. 252-25 

12 - OPINION AND ORDER 

Case 6:14-cv-01252-SI Document 32 Filed 11/05/15 Page 12 of 25
The court has conducted an independent review of the record as 

to petitioner's due process claim and finds that petitioner failed 

to prove Judge Galton was judicially unfit to preside over the 

trial. As a result, the state court decision denying relief on this 

claim is neither contrary to, nor an unreasonable application of, 

clearly established federal law. 

IV. Ground Four(B): Counsel's Failure to Advise Regarding Bench 

Trial 

Petitioner also claims that his appointed attorney performed 

ineffectively when he failed to inform him of Judge Gal ton's 

reputation before advising him to waive his right to a jury trial 

in favor of a bench trial, thereby rendering that decision 

unknowing, unintelligent, and involuntary. Specifically, 

petitioner faults counsel for failing to advise him that Judge 

Galton was routinely recused by counsel litigating both civil and 

criminal matters in Multnomah County for lack of appropriate 

judicial temperament. 

To prevail on a claim of ineffective assistance of counsel, 

petitioner must first show that his counsel's performance fell 

below an objective standard of reasonableness. Strickland v. 

Washington, 466 U.S. 668, 686-87 (1984). Due to the difficulties 

in evaluating counsel's performance, courts must indulge a strong 

presumption that the conduct falls within the "wide range of 

reasonable professional assistance.'' Id at 689. 

13 - OPINION AND ORDER 

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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 trial. 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." Knowles v. Mirzayance, 

556 U.S. at 122. 

Petitioner testified during his PCR deposition that counsel 

never disclosed any previous problems he may have had with Judge 

Galton, and never discussed the possibility of removing Judge 

Galton from the case. Respondent's Exhibit 135, pp. 19-20. 

Counsel submitted an affidavit wherein he did not deny that he had 

never discussed this issue with petitioner, but instead offered the 

following: 

3. I did not have negative experiences with 

Judge Galton. It may be that some, or 

many, lawyers would affidavit him. Such 

was not indicated in my experiences with 

him before Mr. Simington's trial. 

8. 

* * * * * 

As noted above, I did not have negative 

experiences with Judge Galton. In light 

of my previous experiences with Judge 

Galton and being aware of his mannerisms 

14 - OPINION AND ORDER 

Case 6:14-cv-01252-SI Document 32 Filed 11/05/15 Page 14 of 25
and preferences, I saw no evidence that 

Judge Galton lacked judicial fitness 

during Mr. Simington's case. 

Respondent's Exhibit 139, p. 2. 

The PCR trial court resolved this claim in a letter decision: 

While raised only by petitioner's pro se 

amended petition, the issue of whether counsel 

should have objected to the assignment of 

Judge Galton, is adequately addressed by 

counsel's affidavit that he did not have any 

problem with Judge Galton as a trial judge, 

and petitioner's failure to point to any 

evidence that he would have achieved a better 

outcome had any other judge heard the trial. 

Respondent's Exhibit 144, p. 8. 

Petitioner claims that the PCR trial court's decision does not 

address the central issue of whether a criminal defendant would 

want to know if his trial judge has a reputation for having mental 

health issues and being vindictive before consenting to a bench 

trial. Where trial counsel never had a bad experience with Judge 

Gal ton, and where he was aware of the Judge's mannerisms and 

preferences, his conduct did not fall below an objective standard 

of reasonableness when he failed to advise petitioner that other 

attorneys preferred to seek Judge Galton's recusal. 

Even assuming counsel should have so informed petitioner, 

petitioner fails to establish that the outcome of the proceeding 

would have been different had he proceeded to a bench trial with 

another judge or to a jury trial. See Osborn v. Belleque, 385 Fed. 

Appx. 701, 703 (9th Cir. 2010) (where a jury was not more likely to 

15 - OPINION AND ORDER 

Case 6:14-cv-01252-SI Document 32 Filed 11/05/15 Page 15 of 25
acquit than the trial judge, petitioner cannot succeed on 

ineffective assistance of counsel claim for failure to adequately 

advise as to the waiver). For these reasons, the PCR trial court's 

factual findings are not unreasonable, and its conclusion does not 

involve an unreasonable application of clearly established federal 

law. 

V. Ground Four(D): Failure to Object to Inadmissible Evidence 

Bruce Knight was a Plaid Pantry clerk working on June 25, 2003 

when petitioner committed one of his robberies. When a detective 

visited Knight at his home in the aftermath of the robbery to 

present him with a photo montage for purposes of identifying the 

perpetrator, "one of them looked rather like the fellow who robbed 

[him), but [he) wasn't positive that that was it's hard to tell 

from a picture." Respondent's Exhibit 104, p. 98. Knight was 

nevertheless able to provide a fairly detailed description of 

petitioner during the trial: "[H)e was tall and thin. I would 

estimate at least six foot two, slightly receding hairline, narrow 

build, no -- no prominent scars or tattoos." Id at 95. However, 

when the prosecutor asked Knight whether he recognized the 

perpetrator in the courtroom, Knight replied "I'm not certain." 

Id. He explained, "If the gentleman in the blue shirt would stand 

up, I would get a better idea." Id. 

Defense counsel objected, stating that such a procedure would 

be "terribly prejudicial" to his client. Id at 100. However, upon 

16 - OPINION AND ORDER 

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further reflection he advised the court, "I want to have just a 

brief recess to consider some strategic matters involving this. I 

may be able to simplify this." Id at 103. Defense counsel and the 

prosecutor held an off-the-record discussion after which defense 

counsel withdrew his objection without explanation. Id at 104. 

The court had petitioner stand, and Knight was able to positively 

identify him as the perpetrator of the June 25 Plaid Pantry 

robbery. 2 Id at 104-105. 

In counsel's Affidavit he prepared for petitioner's PCR trial, 

he stated that identification was not an issue in the case as "the 

videos of the robberies were quite good." Respondent's Exhibit 

139, p. 2. "Regarding the identification of Mr. Simington by Bruce 

Knight in court, I initially objected to the identification 

procedure, but later withdrew my objection but cannot recall why." 

Id. Petitioner claims there was no strategic reason for counsel to 

drop his objection, and that identification was an issue insofar 

as: (1) Knight was unable to identify him from the photo montage; 

(2) Knight was initially unable to identify him in court; and 

(3) contrary to counsel's recollection, Knight was of the opinion 

that the video from the Plaid Pantry was "very grainy." 

Respondent's Exhibit 104, p. 107. 

2 Defense counsel would later put petitioner on the stand, 

where petitioner admitted being present at the Plaid Pantry at 

the time of the robbery. Respondent's Exhibit 104, p. 148. 

17 - OPINION AND ORDER 

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Petitioner assumes that requiring him to stand up for 

identification purposes during his trial was unlawful, but he fails 

to provide any support for such a proposition. To the contrary, 

the case law supports the proposition that a court may require a 

defendant to stand for the purpose of identification. U.S. v. 

Zammiello, 432 F.2d 72 (9th Cir. 1970); State v. Cram, 176 Or. 577, 

582-583, 160 P.2d 283 (1945). Because counsel did not withdraw a 

meritorious objection, upon an independent review of the record, 

the PCR trial court's decision denying this claim did not involve 

an unreasonable application of clearly established federal law. 

VI. Grounds Four(F), Five & Six: Sufficiency of the Evidence 

Petitioner argues Grounds Four(F), Five, and Six together as 

these claims are all based upon the alleged sufficiency of the 

evidence against him. Specifically, he alleges: 

1. Counsel failed to challenge the 

applicability of the Robbery III charge 

involving Whole Foods (Count One) where 

he only aided and abetted Souders during 

the aftermath of a theft, not a robbery; 

2. Trial counsel erred when he did not seek 

a motion for a judgment of acquittal on 

the basis that there was insufficient 

evidence showing petitioner used or 

threatened the use of force as to the 

June 20 (Count Two) and June 25 (Count 

Three) Plaid Pantry robberies; 

3. While trial counsel moved for a judgment 

of acquittal as to Counts Two and Three 

as to whether petitioner was knowingly 

aided by another person who was actually 

present, appellate counsel was 

18 - OPINION AND ORDER 

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ineffective for failing to pursue this 

claim on appeal; and 

4. Trial counsel's argument that Count Three 

was improperly pled as plaintiff used 

physical force on Knight, as opposed to 

threatened the use of force, should have 

prevailed. Instead, petitioner was 

convicted based upon insufficient 

evidence. 

When reviewing a claim based on insufficient evidence, "[t]he 

relevant question is whether, after viewing the evidence in the 

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

could have found the essential elements of the crime beyond a 

reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) 

(emphasis in original). When the record supports conflicting 

inferences, courts must presume the factfinder resolved the 

conflicts in favor of the prosecution. Id at 326. 

1. Ground Four (F) : Failure to Move for Acquittal as to 

Robbery III (Count One) 

According to petitioner, the incident at Whole Foods was a 

theft, not a robbery, because Souders did not use or threaten the 

use of force, thus petitioner was guilty only of aiding Souders 

after she committed a theft. He therefore believes counsel should 

have moved for a judgment of acquittal as to the Robbery III 

charge. The PCR trial court rejected this claim noting that such a 

motion "would not have fallen on receptive ears, had it been made" 

because Judge Galton believed the Robbery III charge was "the 

easiest here, for what it's worth." Respondent's Exhibit 144, p. 

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9. It also determined that "the fact finder would have determined 

that petitioner was aware that Souders was 

intended to aid and abet that theft and 

committing a theft, 

personally used or 

threatened the use of physical force to prevent the apprehension of 

Ms. Souders, or to overcome resistance to her making away with the 

goods." Respondent's Exhibit 145, pp. 14-15. 

A person is guilty of Robbery III in Oregon if he uses or 

threatens the use of force in order to prevent or overcome 

resistance to the taking of property or to retain the property 

immediately after its taking, or if he aids and abets the 

perpetrator in the commission of the same. ORS 164.195; ORS 

161.155. In this case, the evidence showed: (1) Souders took food 

items from Whole Foods while petitioner waited outside; (2) when 

two store employees pursued her, Souders pushed one of them away; 

(3) Souders then called for petitioner to intervene, and he punched 

one of the employees in the jaw, and physically threatened the 

other; and (4) after petitioner stopped the employees' pursuit of 

Souders, she picked up one of the stolen items and left with him. 

Respondent's Exhibit 103, pp. 68-76. Taking the evidence in the 

light most favorable to the prosecution, petitioner and Souders 

acted together, and Souders used physical force when she pushed one 

of the Whole Foods employees, and enlisted petitioner to assault 

her pursuers so as to overcome resistance to her taking the goods. 

20 - OPINION AND ORDER 

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Accordingly, a motion for judgment of acquittal as to Robbery III 

would not have been successful. 

2. Ground Four (F) : Force Reauirement in 06/20 and 06/25 

Plaid Pantry Incidents (Counts Two and Three) 

Petitioner next asserts that while counsel moved for a 

judgment of acquittal as to the Plaid Pantry incidents from June 20 

(Count Two) and June 25 (Count Three), he failed to do so on the 

meritorious basis that petitioner neither used force, nor 

threatened the use of force. The PCR trial court determined that 

counsel would have filed such a motion if a legitimate likelihood 

of success existed. Respondent's Exhibit 144, p. 10. 

A review of the record reveals that during the June 20 

incident, he pushed the store clerk aside to grab four cartons of 

cigarettes while Souders yelled to the clerk that petitioner was 

crazy and would hurt him. Id at 40-42. This was sufficient to 

both threaten and use force to take the items from the Plaid 

Pantry, and thus counsel was under no obligation to make such an 

objection. 

Similarly, when petitioner robbed the Plaid Pantry on June 25, 

he walked around the counter to the clerk's area where Knight was 

standing. When Knight informed petitioner that he could not be 

back there, petitioner kept coming at him. When Knight put up his 

hands in a defensive gesture, petitioner walked right into them, 

forcing Knight to back up at which time petitioner informed him 

that it was a robbery. Id at 92. Viewed in the light most 

21 - OPINION AND ORDER 

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favorable to the State, this was sufficient to amount to the use of 

physical force. Accordingly, counsel was under no duty to seek a 

judgment of acquittal on these grounds. 

3. Ground Five: Ineffective Assistance of Appellate Counsel 

Petitioner next asserts that trial counsel raised a 

meritorious issue during his motion for judgment of acquittal as to 

Counts Two and Three when he claimed that the State had failed to 

prove that petitioner was knowingly aided by another who was 

actually present. He faults appellate counsel for not pursuing the 

claim during direct appeal. 

In proving prejudice with respect to the performance of 

appellate counsel, a petitioner must demonstrate a reasonable 

probability that but for appellate counsel's failure, ''he would 

have prevailed on his appeal.'' Smith v. Robbins, 528 U.S. 259, 

285-286 (2000). He must also demonstrate that the omitted claim was 

''clearly stronger than issues that counsel did present.'' Id 288. 

The PCR trial court resolved this issue in its letter opinion: 

The case against petitioner was replete with 

evidence of the criminal activity that 

supported his criminal convi~tions. In 

addition to eye witness testimony, video 

camera surveill[a]nce and the petitioner's own 

testimony, the court made credibility 

determinations that weighed against 

petitioner's view of events. It is eminently 

clear why appellate counsel would decide not 

to raise on appeal every colorable or 

nonfrivolous issue in order to discharge the 

obligation to provide the effective assistance 

of counsel. Jones v. Barnes, 463 U.S. 745, 

754 (1983) holds that nothing in the 

22 - OPINION AND ORDER 

Case 6:14-cv-01252-SI Document 32 Filed 11/05/15 Page 22 of 25
Constitution requires "judges to second-guess 

reasonable professional judgments and impose 

on appointed counsel a duty to raise every 

'colorable' claim suggested by a client." The 

"process of 'winnowing out weaker claims on 

appeal and focusing on' those more likely to 

prevail, far from being evidence of 

incompetence, is the hallmark of effective 

appellate advocacy." Smith v. Murray, 477 

U.S. 527, 539 (1986). 

An appellate attorney exercising reasonable 

professional skill and judgment would not have 

appealed the denial of petitioner's motions 

for judgment of acquittal. Appellate 

counsel's failure to raise this claim of error 

constitutes no violation of petitioner's 

rights. Furthermore, petitioner had an 

opportunity through his Pro Se Brief to the 

Appellate Court to raise any additional claims 

he thought were appropriate. Petitioner's 

failure to raise these claims on appeal 

reflects their lack of merit and an implicit 

waiver of post-conviction claims against 

appellate counsel on these issues. 

Respondent's Exhibit 144, pp. 10-11. 

The evidence in this case, including the video evidence in 

Appendix A, established that petitioner and Souders worked in 

concert in these robberies. As a result, counsel's performance did 

not fall below an objective standard of reasonableness when he did 

not pursue this argument. Moreover, based upon the record, it is 

unlikely petitioner would have prevailed on appeal had counsel 

pursued the claims, thus he is unable to demonstrate prejudice from 

any failure on counsel's part. 

4. Ground Six: Physical Force Element of Count Three as Due 

Process Violation 

23 - OPINION AND ORDER 

Case 6:14-cv-01252-SI Document 32 Filed 11/05/15 Page 23 of 25
As his final claim, petitioner argues that counsel correctly 

argued that Count Three was improperly pled where it alleged that 

plaintiff used physical force on Knight. He believes the record 

shows only that he threatened the use of physical force during the 

confrontation. He therefore concludes the trial court should have 

granted the motion for judgment of acquittal. 

In the absence of a reasoned state-court decision on this 

issue, the court has conducted an independent review of the record. 

As discussed above as to Ground Four(F), Knight told petitioner he 

could not come behind the counter where the register was located, 

and Knight put his hands up in a defensive gesture. Petitioner 

continued walking toward Knight, walking into his hands and forcing 

Knight to back up. Taken in the light most favorable to the 

prosecution, these facts were sufficient to constitute physical 

force, thus there was no due process violation. For all of these 

reasons, the state court decisions denying relief on these claims 

were neither contrary to, nor unreasonable applications of, clearly 

established federal law. 

Ill 

Ill 

Ill 

Ill 

Ill 

Ill 

24 - OPINION AND ORDER 

Case 6:14-cv-01252-SI Document 32 Filed 11/05/15 Page 24 of 25
CONCLUSION 

For the reasons identified above, the Amended Petition for 

Writ of Habeas Corpus (#16) should be denied. The court does, 

however, issue a Certificate of Appealability in this case as to 

petitioner's due process and ineffective assistance of counsel 

claims. 

IT IS SO ORDERED. f"il,--

DATED this ) day 

ited States District Judge 

25 - OPINION AND ORDER 

Case 6:14-cv-01252-SI Document 32 Filed 11/05/15 Page 25 of 25