Opinion
CIVIL 6:20-cv-00070-JR
11-04-2021
RONALD ALAN EVERETT, Petitioner, v. BRANDON KELLY, Superintendent, Respondent.
FINDINGS AND RECOMMENDATION
JOLIE A. RUSSO UNITED STATES MAGISTRATE JUDGE
Petitioner, an adult in custody of the Oregon Department of Corrections, brings this habeas corpus action pursuant to 28 U.S.C. § 2254 challenging his 2008 Clackamas County conviction on two counts of Solicitation to Commit Murder and one count of Solicitation to Commit Assault. For the reasons that follow, the Amended Petition for Writ of Habeas Corpus should be DENIED.
BACKGROUND
The facts underlying this case arose during the pendency of another criminal prosecution against petitioner in State v. Everett, Clackamas County Case No. CR0602017. There, petitioner was charged with Attempted Aggravated Murder, Attempted Assault in the First Degree, Fleeing or Attempting to Elude a Police Officer; Unauthorized use of a Motor Vehicle, and Failure to Perform the Duties of a Driver. Everett v. Premo, 279 Or.App. 470, 473 (2016) (hereafter referred to as “Everett I”). The charges arose from an incident between petitioner and Clackamas County Sheriff Deputy Karen Moss. The Oregon Court of Appeals described the incident as follows:
Moss, suspecting that [petitioner] was driving a stolen car, followed [petitioner] into the parking lot of an apartment complex. [Petitioner] pulled into a covered parking space and Moss's patrol car skidded to a stop right behind him. A car was parked in the space to the right of [petitioner's] car, but there were two empty spaces next to [petitioner] on the left. Moss got out of her car, drew her gun, and approached the driver's side of [petitioner's] car. [Petitioner] then maneuvered his car back and forth in an effort to get out of the parking space, ramming the patrol car behind him and a support pole in front of him multiple times. Moss repeatedly ordered him to stop, but [petitioner] kept maneuvering until he succeeded in rotating his car to the left so that it was pointed toward the two empty parking paces and Moss. [Petitioner] then accelerated in that direction. Moss jumped out of the way and fired three shots at [petitioner], striking him once. [Petitioner] nevertheless was able to flee the parking lot and evade Moss's attempts to find him. However, his escape was short-lived; the next day, police apprehended him at his parents' house.Everett I, 279 Or.App. at 472-73.
Petitioner pleaded not guilty, and the case was tried to a jury. Petitioner was acquitted of Attempt to Commit a Murder but convicted on the remaining charges. Id. at 476.
Petitioner's conviction was affirmed on appeal. Id. In state post-conviction relief (“PCR”) proceedings, however, the Oregon Court of Appeals held that the trial court had improperly instructed the jury on various elements and that trial counsel rendered ineffective assistance of counsel. Id. The court granted petitioner relief on his conviction for Attempted Assault in the First Degree and remanded the case. Id. On remand, the district attorney elected not to retry petitioner on this count, and the charge was dismissed. Pet. Exh. 2.
While petitioner was in custody awaiting trial on the charges involving the incident with Deputy Moss, he undertook the actions which led to the charges at issue in this case: two counts of Solicitation to Commit Aggravated Murder and one count of Solicitation to Commit Assault in the Second Degree. Resp. Exh. 102. Petitioner pleaded not guilty, and these charges were tried to a jury in August 2008. The jury convicted petitioner on both counts. On appeal, the Oregon Court of Appeals issued a written opinion which summarized the evidence presented at trial as follows:
[Petitioner] was arrested for, among other things, attempting to run over Clackamas County Deputy Sheriff Moss with his car. Moss was the only witness to that incident. While in custody at the Clackamas County Jail, [petitioner] met Piatt, who at the time was a member of a motorcycle gang called the Outsiders Motorcycle Club (the Outsiders). The Outsiders derives its income from illicit activities. Piatt was an “enforcer, ” who enforced the Outsiders's rules and “straightened out” people who were violating its guidelines. After learning that Piatt would be released from jail soon, [petitioner], who knew of Piatt's role in the Outsiders, solicited Piatt to murder Moss so she would not testify at his trial. Unbeknownst to [petitioner], Piatt was a police informant and notified Clackamas County detectives about [petitioner's] solicitation. Piatt's conversation with detectives was recorded onto a DVD.
Moss testified against [petitioner] at trial, and [petitioner] was subsequently convicted of various charges that are unrelated to this appeal. After that trial, the state charged [petitioner] with one of the crimes pertinent to this case, solicitation to commit aggravated murder of Moss. Piatt testified before the grand jury, and his name was listed as a witness on [petitioner's] indictment. [Petitioner] also learned about the DVD showing Piatt's interview with the detectives. While awaiting trial for the solicitation charge, [petitioner] met another inmate, Van Alstine, who was scheduled for release. [Petitioner] repeatedly talked to Van Alstine about Piatt being in a biker gang and how Piatt had “ratted him out” at his previous trial. Those conversations took place over several days, until [petitioner] asked Van Alstine if he would retrieve and deliver to the Outsiders the indictment showing Piatt's name as a witness and the DVD showing detectives interviewing Piatt. [Petitioner] told Van Alstine that, once the Outsiders saw the video, “they were going to take care of their own.” [Petitioner] told Van Alstine that the Outsiders “would take care of Barry Piatt” and would “get rid” of him. [Petitioner]
explained to Van Alstine that he wanted the Outsiders to have the DVD “so Barry Piatt doesn't show up to court.” [Petitioner] promised to give Van Alstine his sports car as payment if Van Alstine made the requested delivery.
Unbeknownst to [petitioner], Van Alstine was also an informant who notified the Clackamas County sheriff's department of his conversations with [petitioner]. As a result, the state charged petitioner with two counts of solicitation, solicitation to commit aggravated murder and to commit assault of Piatt, in addition to the earlier charge of solicitation to commit aggravated murder of Moss. All of the solicitation charges against [petitioner] were tried together.
Before trial, the trial court denied [petitioner's] motion in limine to exclude evidence of [petitioner's] prior conviction arising from his attempt to run over Moss. At trial, the state introduced the facts above. Piatt testified that he had prior convictions for assault and was an “enforcer” for the Outsiders. He admitted that he committed criminal acts as an enforcer. He also testified that a member who cooperates with police as an informant risks being killed.
Outside of the jury's presence, petitioner's attorney asked Piatt whether he had ever killed anybody. Piatt refused to answer, invoking his Fifth Amendment right against self-incrimination. [Petitioner] moved to strike all of Piatt's testimony, arguing that he would not have an adequate opportunity to cross-examine Piatt, thus depriving him of his confrontation rights under both the United States and Oregon constitutions. The court denied the motion, and [petitioner] moved for a mistrial, which was also denied. Despite Piatt's invocation of his constitutional right, [petitioner's] attorney cross-examined Piatt on a variety of issues, including Piatt's prior assaults and drug convictions, his plea agreement, the motorcycle culture, his motivations for testifying, the conversations that he had with [petitioner] while in jail, and his conversations with detectives.
At the conclusion of the state's case-in-chief, [petitioner] moved for a judgment of acquittal on Counts 2 and 3-solicitation to murder Piatt and solicitation to assault Piatt-arguing that the state failed to present evidence that [petitioner] solicited Van Alstine to do anything illegal and that no solicitation occurred because the solicitee, the Outsiders, never received the DVD. The court denied [petitioner's] motion. [Petitioner] ultimately was convicted on all counts.State v. Everett, 249 Or.App. 139, 140-42 (2012) (referred to hereafter as “Everett II”).
At sentencing, the trial court found that petitioner's conviction for solicitation to commit assault against Piatt merged with his conviction for solicitation to commit murder. Tr. 1045. The trial judge sentenced petitioner to a total of 260 months of imprisonment. Tr. 1044-45.
Petitioner filed a direct appeal. In his counseled brief, he asserted two assignments of error by the trial court: denial of his motions for acquittal on the charges related to the solicitation of Van Alstine to either assault or murder Piatt, and denial of his right to confrontation under Crawford v. Washington, 541 U.S. 36 (2004) when Piatt asserted his Fifth Amendment rights in response to counsel's question whether Piatt had ever killed anyone. Resp. Exh. 103. In a pro se supplemental brief, petitioner argued that trial counsel erred in denying his motion to exclude “other crimes evidence.” Resp. Exh. 104. The Oregon Court of Appeals affirmed the trial court in its written opinion in Everett II.
Petitioner sought review from the Oregon Supreme Court on the two issues raised in his counseled brief to the Oregon Court of Appeals. The Oregon Supreme Court granted review and affirmed the Oregon Court of Appeals' decision in another written opinion. State v. Everett, 355 Or. 670 (2014) (referred to hereafter as “Everett III”). The Oregon Supreme Court concluded there was sufficient evidence to establish that petitioner solicited Van Alstine to commit a crime and rejected without discussion petitioner's claim that the trial court erred in declining to strike Piatt's testimony or declare a mistrial. Id. at 676-78
Petitioner then sought state post-conviction relief (“PCR”). Petitioner alleged several claims of ineffective assistance of trial counsel, as well as a claim that he was entitled to resentencing due to an “intervening change in his criminal history, ” i.e., the dismissal of the charge of Attempted Assault in the First Degree as a result of the remand in Everett I. Resp. Exh. 115. Following an evidentiary hearing, the PCR trial judge denied relief on all of petitioner's claims. Resp. Exhs. 127-28.
Petitioner appealed, asserting only a claim that the PCR trial court erred in denying his claim that he was entitled to re-sentencing. Resp. Exh. 129. The Oregon Court of Appeals affirmed without opinion. Everett v. Amsberry, 297 Or.App. 888 (2019). Petitioner did not seek review from the Oregon Supreme Court.
Petitioner then filed a pro se Petition for Writ of Habeas Corpus in this Court. The Court appointed counsel, and in an Amended Petition for Writ of Habeas Corpus petitioner alleges seven claims for relief (some of which contain several subclaims): (1) ineffective assistance of trial counsel; (2) deprivation of the right to be presumed innocent and unconstitutional use of restraints; (3) deprivation of the right to a trial before a fair and impartial adjudicator and fact finder; (4) deprivation of the right to confront the evidence and present a defense; (5) prosecutorial misconduct; (6) insufficient evidence and actual innocence; and (7) cumulative error. Respondent contends petitioner procedurally defaulted all of his claims with the exception of those alleged in Grounds Four and Six, and that the state court decisions denying relief on those claims are entitled to deference. In his brief in support, petitioner provides arguments to support his Fourth and Sixth claims for relief, argues that his cumulative error claim alleged in Ground Seven is not procedurally defaulted, and requests an evidentiary hearing to demonstrate his “actual innocence” to excuse the admitted procedural default of his remaining claims.
DISCUSSION
I. Relief on the Merits - Grounds Four and Six
A. Legal Standards
An application for 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 a materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the “unreasonable application” clause, a federal habeas court may grant relief “if the state court identifies the correct legal principle from [the Supreme Court's] decisions, but unreasonably applies that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 413. The “unreasonable application” clause requires the state court decision to be more than incorrect or erroneous. The state court's application of clearly established law must be objectively unreasonable. Id. at 409-10. A federal habeas court reviews the state court's “last reasoned decision.” Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).
B. Ground Four - Confrontation Clause
In his Fourth Claim for Relief, petitioner alleges that he was denied his rights under the Sixth Amendment to confront witnesses against him. He argues his right to confrontation required the trial court to strike all of Barry Piatt's testimony because Piatt invoked his Fifth Amendment right against self-incrimination when asked whether he had ever killed anyone.
As noted, the Oregon Court of Appeals rejected a similar claim in a written decision, and the Oregon Supreme Court affirmed that ruling without discussion. As such, this Court looks to the Oregon Court of Appeals' decision to determine whether deference must be afforded under the AEDPA.
At trial, Barry Piatt testified he had been a member of the “Outsiders, ” a motorcycle gang that derives its income from illicit activities, including selling drugs and prostitution. Tr. 285, 288-89. Piatt stated he had been a member of the club for eight years, and that during that time he served as an “enforcer” who enforced the rules of the club and committed criminal acts in that role. Tr. 286, 290-91. Piatt testified about his criminal history, including eight prior convictions for assault, as well as burglaries, unlawful possession of weapons, and other crimes for which he had never been caught. Tr. 284-85.
During Piatt's direct testimony, petitioner's trial attorney requested permission to conduct an offer of proof. Outside the presence of the jury, counsel asked, “Mr. Piatt, in your direct testimony you indicated that you've been involved with and/or committed crimes that you've never been caught. Have you ever, either as a-as a principal actor or as an aider and abettor, killed anyone?” Tr. 314. Piatt responded, “I refuse to answer that on the grounds that it may incriminate me.” Tr. 314. After Piatt invoked his right against self-incrimination, trial counsel argued that he was prohibited from asking the question on cross-examination and that, as a result, Piatt's invocation violated petitioner's confrontation rights. Tr. 315. By way of remedy, trial counsel requested that Piatt's testimony be stricken in its entirety. Tr. 315. The trial judge denied the motion to strike Piatt's testimony, and in so doing, advised trial counsel that it had “no intention of limiting [his] cross-examination pre-emptively” but agreed with trial counsel that he likely had an obligation not to pose a question that he knew would cause Piatt to invoke his right against self-incrimination. Tr. 372. Trial counsel moved for a mistrial, which the trial judge denied. Tr. 373. Defense counsel subsequently cross-examined Piatt at some length on numerous other topics. Tr. 474-536.
On appeal, petitioner relied on Crawford v. Washington, 541 U.S. 36 (2004) to argue that the trial court's rulings violated his federal confrontation rights. As noted, the Oregon Court of Appeals rejected this claim. The Court of Appeals first addressed the relevance of trial counsel's question, describing petitioner's position as follows: “[i]n [petitioner's] view, had Piatt denied killing anybody, it would have been apparent that [petitioner] had no reason to approach Piatt and to ask him to murder Moss. Therefore, according to [petitioner], Piatt's answer to [petitioner's] question directly related to the subject matter of the case and to whether he had committed the crime of soliciting Piatt to kill the deputy, thereby requiring all of Piatt's testimony to be stricken.” Everett II, 249 Or.App. at 146. The Court of Appeals disagreed:
[Petitioner's] argument hinges on whether Piatt's invocation of privilege prevented [petitioner] from adequately cross-examining him. When a witness refuses to answer questions on cross-examination that are necessary to test the witness's direct testimony, the trial court has discretion to strike the witness's testimony because it undermines the trier of fact's ability to rely on the witness's direct testimony. . . . Whether the court should strike the witness's testimony depends on whether the question directly relates to the subject matter of the witness's direct examination or relates to a collateral matter.
In this case, we cannot say that the trial court abused its discretion in refusing to strike all of Piatt's testimony. First, [petitioner's] question to Piatt as to whether he had ever killed anybody was of limited relevance to [petitioner's] theory that he had no reason to ask Piatt to murder Moss or to ask Van Alstine to deliver the indictment and the DVD showing Piatt's interview with detectives to
the Outsiders. Given that Piatt had not testified that he had killed anyone and instead testified to committing assaults, even after the exclusion of the question, [petitioner] maintained the ability to argue that there accordingly was no evidence from Piatt that any of the Outsiders or Piatt himself had killed anyone, or that [petitioner] believed that Piatt or the Outsiders had done so. Second, [petitioner's] question to Piatt also was not necessary to prove [petitioner's] theory because the trial court allowed ample opportunity for [petitioner] to elicit testimony to bolster his defense without Piatt invoking his constitutional right against compelled self-incrimination. When the trial court denied [petitioner's] motion to strike, it told [petitioner] that it had no intention of limiting [petitioner's] cross-examination of Piatt to certain subjects. That allowed [petitioner] to ask Piatt other questions to suggest why [petitioner] had no reason to believe that Piatt was capable of murdering Moss or that the Outsiders were capable of murdering Piatt or any other witness. Given the attenuated relevance of the proposed question and possible answer and [petitioner's] otherwise unfettered ability to cross-examine Piatt, the trial court's exclusion of the question did not require it to strike all of Piatt's testimony.Id. (emphasis in original, internal citations omitted).
The Court of Appeals then turned to petitioner's contention that the trial court's rulings violated his Confrontation Clause rights as set out in Crawford, rejecting this claim as well:
[Petitioner] also argues that, because he was denied an opportunity to cross-examine Piatt about committing murder, Piatt's testimony as a whole cannot be admitted under Crawford v. Washington, 541 U.S. 36 (2004). In that case, the United States Supreme Court held that the Sixth Amendment's Confrontation Clause precludes admission of out-of-court testimonial statements, unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. Id. at 53-54. The Confrontation Clause guarantees only the “'opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'” State v. Sullivan, 217 Or.App. 208, 213 (2007), rev. den., 344 Or. 539 (2008) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)).
There at least two problems with [petitioner's] argument. First, Piatt's trial testimony was not an out-of-court statement, so Crawford does not apply to it. Second, Piatt was available for cross-examination and was, in fact, cross-examined about his direct testimony. And, as we discussed above, whether Piatt ever killed anyone was a collateral matter. Accordingly, we conclude that the trial court did not abuse its discretion when it denied defendant's motion to strike Piatt's testimony and his motion for a mistrial.Id. at 147-148 (emphasis in original).
The Supreme Court explains that Confrontation Clause cases “fall into two broad categories: cases involving the admission of out-of-court statements and cases involving restrictions imposed by law or by the trial court on the scope of cross-examination.” Fensterer, 474 U.S. at 18. The holding in Crawford, precluding the admission of out-of-court statements absent unavailability and a prior opportunity to cross-examine, concerns the first category of cases. Here, Piatt's assertion of his fifth Amendment right did not involve the admission of an out-of-court statement. Accordingly, the Oregon Court of Appeals reasonably concluded that petitioner could not succeed on a claim asserted under Crawford.
Moreover, as to the second category of Confrontation Clause cases, the Oregon Court of Appeals correctly noted that “the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Fensterer, 474 U.S. at 15 (emphasis in original). Petitioner was provided the opportunity to cross-examine Piatt at length as to his direct testimony; counsel's cross-examination of Piatt spanned 62 transcript pages. As the Court of Appeals noted, defense counsel cross-examined Piatt “on a variety of issues, including Piatt's prior assaults and drug convictions, his plea agreement, the motorcycle culture, his motivations for testifying, the conversations he had with [petitioner] while in jail, and his conversations with the detective.” Everett II, 249 Or.App. at 141-142. The only limitation on cross-examination was Piatt's invocation of his right not to incriminate himself.
Petitioner contends that the Oregon Court of Appeals erred in relying solely on Crawford to dismiss his Confrontation Clause claim and “intentionally ignored the controlling Supreme Court authority on point, ” citing Davis v. Alaska, 415 U.S. 308 (1974). Petitioner further argues that application of the analysis of Davis v. Alaska entitles him to habeas relief.
As petitioner correctly notes here, cases falling into the second category of Confrontation Clause situations identified in Fensterer, i.e., cases involving restrictions imposed by law or by the trial court on the scope of cross-examination, are controlled by the Supreme Court's ruling in Davis v. Alaska. The Court notes, however, that petitioner did not cite Davis v. Alaska to the Oregon Court of Appeals, and instead relied solely on Crawford. As such, this Court cannot conclude, as petitioner suggests, that the Oregon Court of Appeals “intentionally ignored” Davis v. Alaska.
In Davis v. Alaska, the Supreme Court held that, under certain circumstances, otherwise permissible exclusions of evidence from a criminal trial can deny a defendant's right under the Confrontation Clause to cross-examine witnesses against the defendant. Id. That case, however, involved the application of a state policy of preserving anonymity of juvenile offenders to exclude evidence of the existence of a juvenile witness's probation status. Id. at 311 n.1. The Supreme Court concluded that “the right of confrontation is paramount to the State's policy of protecting a juvenile offender” and, in supporting that holding explained, “'[n]o obligation is imposed on the court . . . to protect a witness from being discredited on cross-examination, short of an attempted invasion of his constitutional protection from self-incrimination, properly invoked.'” Id. at 320 (quoting Alford v. United States, 282 U.S. 687, 694 (1931)) (emphasis supplied).
Further, as noted by the Oregon Court of Appeals in Everett II, although the Sixth Amendment guarantees “an opportunity for effective cross-examination, ” it does not guarantee “cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Fensterer, 474 U.S. at 20. While the Ninth Circuit has not directly addressed the issue, the Second Circuit Court of Appeals opined that under Fensterer, “a witness' testimony may, in some cases, be used against a defendant, even though the witness invokes his privilege against self-incrimination during cross-examination.” United States v. Cardillo, 316 F.2d 606, 611 (2nd Cir. 1963); see also Denham v. Deeds, 954 F.2d 1501, 1503-04 (9th Cir. 1992) (citing Cardillo for the principal that the general rule that in cases where a defendant seeks to strike the direct testimony of prosecution witnesses who invoke the Fifth Amendment “calls for exclusion of the direct testimony unless the refusal to answer affects only collateral matters”) (emphasis added). Thus, the Sixth Amendment is violated only “when a witness asserts the privilege with respect to a non-collateral matter and the defendant is deprived of a meaningful opportunity to test the truth of the witness' direct testimony.” Bagby v. Kuhlman, 932 F.2d 131, 135 (2nd Cir. 1991) (emphasis in original).
Here, the Oregon Court of Appeals reasonably concluded that whether Piatt had actually killed someone at some unrelated point in the past was of “attenuated relevance” as to a collateral matter, as there had been no testimony by Piatt or any other evidence suggesting that Piatt had ever killed anyone. Everett II, 249 Or.App. at 147. In any event, whether Piatt had ever killed anyone before, the issue at trial was whether petitioner had asked Piatt to kill on his behalf. Accordingly, the Oregon Court of Appeals did not unreasonably apply Davis v. Alaska or any other Supreme Court precedent in concluding that the trial court had not abused its discretion in declining to strike Piatt's testimony in its entirety, and petitioner should not be entitled to habeas corpus relief on this claim.
C. Ground Six - Insufficiency of the Evidence and Actual Innocence
In Ground Six, petitioner alleges “insufficient evidence and actual innocence.” Petitioner contends his conviction and sentence violate his rights under the Fifth and Fourteenth Amendments because there was insufficient evidence to convict him of the charge contained in Count 2 of Solicitation to Commit Murder involving Van Alstine. Petitioner frames the issue as whether under Oregon law, as properly interpreted, the evidence could support petitioner's conviction for soliciting Van Alstine to deliver information to another individual, rather than asking Van Alstine to actually commit the crime himself.
1. Sufficiency of the Evidence
In reviewing a sufficiency of the evidence claim, the Court determines if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). In addition, AEDPA adds another layer of deference over the already deferential Jackson standard. Under AEDPA, the federal court may not grant a habeas petition unless it finds that the state court unreasonably applied the principles underlying the Jackson standard when reviewing petitioner's claim. See e.g., Jaun H. v. Allen III, 408 F.3d 1262, 1275 n.12 (9th Cir. 2005); Jones v. Wood, 114 F.3d 1002, 1013 (9th Cir. 1997) (recognizing that the “unreasonable application” standard applies to insufficient evidence claim).
Under Oregon law, a person commits the crime of solicitation “if with the intent of causing another to engage in specific conduct constituting a crime punishable as a felony or as a Class A misdemeanor or an attempt to commit such felony or Class A misdemeanor the person commands or solicits such other person to engage in that conduct.” Or. Rev. Stat. § 161.435(1). Here, Van Alstine testified that petitioner approached him while they were incarcerated together and asked Van Alstine to contact petitioner's father upon Van Alstine's release from jail to obtain a DVD and an indictment demonstrating that Piatt had been cooperating with police. Tr. 648. According to Van Alstine, petitioner asked him to deliver those items to the Outsider biker gang of which Piatt was a member and explained that “the bike gang would take care of Barry Piatt.” Tr. 649. Petitioner told Van Alstine that the biker gang “will take care of their own” and “get rid of” Piatt, such that “Barry Piatt would not testify, so [petitioner] would not have to go to court.” Tr. 655-66. Van Alstine testified that petitioner told him that if he made the delivery of the DVD and indictment as requested, petitioner would give Van Alstine a car. Tr. 656.
On direct appeal, petitioner argued to the Oregon Court of Appeals that, by asking Van Alstine to deliver the DVD and indictment to the Outsiders, he did not request Van Alstine to engage in criminal conduct and that “[n]o one knows what would have happened had Van Alstine made the requested delivery.” Resp. Exh. 103, pp. 15-16. The Oregon Court of Appeals rejected this claim, reasoning “that, because the evidence showed that defendant had solicited another person to engage in conduct that would have constituted aiding and abetting murder, that amounted to soliciting to engage in conduct constituting murder itself.” Everett III, 355 Or. At 671. On review to the Oregon Supreme Court, petitioner argued that the evidence, at best, showed that petitioner “solicited Van Alstine to solicit someone in the Outsiders to murder Piatt, which is not what the state charged.” Id. at 674.
In its written opinion, the Oregon Supreme Court reviewed the evidence presented at trial, as well as state law on accomplice liability and solicitation, and ultimately agreed with the Oregon Court of Appeals. The Oregon Supreme Court concluded that the fact that Van Alstine never delivered the information to the Outsiders was irrelevant, as “[t]he crime of solicitation is complete upon the act of soliciting, regardless of what else does or does not transpire.” Id. at 676. Further, the fact that there was no evidence that the Outsiders, upon receipt of the DVD and the indictment, actually would have killed Piatt, was also irrelevant: “[w]hether or not the Outsiders would have killed Piatt, the fact remains that the solicitation was complete at the moment that [petitioner] asked Van Alstine to deliver the information for the purpose of causing the murder to occur.” Id. at 677-78.
Because there was sufficient evidence in the record for a factfinder to find that petitioner solicitated Van Alstine to aid and abet the murder of Piatt, the Oregon Supreme Court did not unreasonably apply Jackson v. Virginia, 443 U.S. 307 (1979). Accordingly, petitioner should not be entitled to relief on the claim of insufficiency of the evidence.
2. Actual Innocence
The nature of petitioner's “actual innocence” claim is unclear because petitioner does not specify whether he seeks to excuse procedural default through a gateway actual innocence claim under Schlup v. Delo, 513 U.S. 298 (1995), or intends to assert a freestanding claim of innocence.To the extent petitioner seeks to overcome the procedural default of his remaining claims, he must present a “credible” claim of actual innocence by “support[ing] [his] allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” Id. at 324. Petitioner has not done so, and the default of his claims cannot be excused under Schlup.
As discussed below, petitioner seeks an evidentiary hearing on his actual innocence under Schlup v. Delo, in order to excuse the procedural default for his post-conviction claims. The inclusion of “actual innocence” in his insufficiency of the evidence claim, however, implies that petitioner is also stating a freestanding claim.
To the extent petitioner seeks to assert a freestanding claim of actual innocence, the Supreme Court has yet to hold that such a claim is cognizable in federal habeas proceeding. McQuiggin v. Perkins, 569, U.S. 383, 392 (2013). However, on several occasions both the Supreme Court and the Ninth Circuit have assumed, without deciding, that such a claim may exist in capital cases. House v. Bell, 547 U.S. 518, 554-55 (2006); Herrera v. Collins, 506 U.S. 390, 417-19 & 427 (1993); Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014). In so doing, courts have opined that a petitioner must “go beyond demonstrating doubt about his guilt and must affirmatively prove that he is probably innocent.” Jones, 763 F.3d at 1246 (quoting Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1994)); see also House, 547 U.S. at 555 (Supreme Court precedent implies that freestanding claim of actual innocence requires more convincing proof of innocence than Schlup). The petitioner's burden under this standard is “extraordinarily high” and requires a showing that is “truly persuasive.” Carriger, 132 F.3d at 476 (quoting Herrera, 506 U.S. at 417). Assuming such a claim is cognizable, petitioner's failure to establish a “gateway” claim of actual innocence necessarily means he has failed to meet the “extraordinarily high” standard required to establish a freestanding claim of actual innocence. Accordingly, petitioner should not be entitled to relief on his “actual innocence” claim.
II. Procedurally Defaulted Claims - Grounds One, Two, Three, and Five
In his Brief in Support, other than to request an evidentiary hearing to establish actual innocence to excuse his acknowledged procedural default, petitioner does not address the claims alleged in Grounds One, Two, Three, and Five. As such, petitioner has not sustained his burden to demonstrate why he is entitled to relief on these claims. See Lampert v. Blodgett, 393 F.3d 942, 970 n. 16 (9th Cir. 2004). Nevertheless, the Court has reviewed petitioner's remaining claims and is satisfied that petitioner is not entitled to habeas corpus relief as they are procedurally defaulted, and petitioner has not established cause and prejudice or a fundamental miscarriage of justice to excuse his procedural default.
III. Cumulative Error
In his seventh claim for relief, petitioner alleges “cumulative error.” While a series of errors might rise to a constitutional violation even where no single error is of a constitutional dimension, Davis v. Woodford, 384 F.3d 628, 654 (9th Cir. 2004), petitioner's claims here are not sufficiently meritorious to meet the threshold for cumulative error. Accordingly, petitioner is not entitled to habeas corpus relief on his seventh claim for relief.
IV. Request for Evidentiary Hearing
Finally, petitioner requests an evidentiary hearing so he may demonstrate that he is innocent of the charges against him under Schlup to excuse his procedural defaults. Petitioner, however, provides no “new reliable evidence” that he is actually innocent, and otherwise fails “to show what . . . an evidentiary hearing might reveal of material import on his assertion of actual innocence.” Gandarela v. Johnson, 286 F.3d 1080, 1087 (9th Cir. 2002). An evidentiary hearing, therefore, is not warranted. See Roy v. Lampert, 465 F.3d 964, 959 (9th Cir. 2006) (explaining that a habeas petitioner “should receive an evidentiary hearing when he makes ‘a good-faith allegation that would, if true, entitle him to equitable tolling'”). Accordingly, petitioner's request for an evidentiary hearing should be denied.
CONCLUSION
For these reasons, the Court should DENY the Amended Petition for Writ of Habeas Corpus [14] and enter a judgment of DISMISSAL. A certificate of appealability should be denied as petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. 2253(c)(2).
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.