Blocker v. Persson, No. 6:2011cv01096 - Document 40 (D. Or. 2013)
Court Description: OPINION AND ORDER. The Petition for Writ of Habeas Corpus 2 is denied. The court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). Signed on 8/28/2013 by Judge Michael H. Simon. (gw)
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,. ·- IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON TYRONE BLOCKER, Case No. 6 :11- cv- 01096 -S I Petitioner, v. ROB PERSSON, OPINION AND ORDER Respondent . Corinne J. Lai No. 2 Westlake Executive Suites 14523 Westlake Drive Lake Oswego , OR 97035 Attorney for Petitioner Elle n F. Rosenblum, Attorney General Nick M. Kallstrom, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent 1 - OPINION AND ORDER SIMON , District Judge . Petitioner brings u. s . c. 2254 § convictions this habeas challenging for Felon in the corpus legality Possession of a case of pursuant his to 28 state - court Weapon , Deli very of For the reasons that follow , Ma r ijuana , and Criminal Forfeiture . the Petition for Writ of Habeas Corpus (#2) is denied . · BACKGROUND On February 28 , 2008 , the Salem Police Department was contacted regarding a domestic disturbance involving petitioner and his girlfriend , Shalimar Reese . Reese in her apartment police interviewed for Reese Petitioner had been living with approximately two months , at her parents' home , she and when gave them permission to search the apartment. Police officers traveled to Reese ' s apartment to contact petitioner and , after waiting for between 20 and 25 minutes for him to answer the door , they as ked for his apartment to ensure no one else was inside . " Well , I don ' t Respondent ' s li ve here , so I can ' t Exhibit 103 , p. 26 . consent to check the Petitioner responded , give you consent to enter . " When Officer Gould asked petitioner whether any portion of the residence was his , petitioner told him that he had items in the downstairs closet , but nothing upstairs belonged to him. As a result , Officer Gould searched the upstairs of the apartment and avoided the downstairs closet . 28. 2 - OPINION AND ORDER Id at Once upstairs, Officer Gould found a men's shoe box under the bed which residue. contained baggies, a scale, and marijuana He also discovered a small locked safe in the closet with a key broken off in its lock . safe, digital When he contacted Reese about the Petitioner told she claimed it was petitioner's property . Id at 52. another officer that the safe did not belong to him. At that point , Officer Gould adv ised petitioner of his Miranda rights and asked petitioner about the safe and the items upstairs. Petitioner petitioner had denied locksmith to open it. a · going firearm, medications, owning the be to I want to talk to a lawyer. " questions found I'm "If responded, Id at 32. the safe , asked police these Because called a Once the locksmith opened the safe, police marijuana and evidence packaging material, indicating that the prescription safe belonged to petitioner . Despite petitioner having invoked his right to counsel, the police again approached him and asked if he was willing to turn over his keys and wallet . further police Petitioner consented and , in response to questioning , contents belonged to him. admitted that the wallet and its When the police searched petitioner ' s wallet, they found $4,000 . 00 in cash in a Wells Fargo envelope with a receipt showing he had withdrawn the money shortly before the police arrived at the apartment. Police then discovered that one of petitioner's keys fit the lock to the safe, prompting petitioner 3 - OPINION AND ORDER to assert th~t Reese had given it to him along with a key to the Id at 36 . apartment. Petitioner filed a pretrial motion to suppress in which he argued that the contents of the safe should not be introduced at trial because Reese did not own the safe and could not consent to its search, and he, as the owner , did not give his consent to search the safe. He also argued that Miranda prohibited the police from any asking him questions after he invoked his right to counsel , thus any incriminating evidence that resulted should be excluded. The State contended that simply handing over his wallet and keys did not amount to verbal statements by petitioner that were subject to Miranda protections. It did, however , following concession: The State concedes that there were some conversations here that frankly, again, were all self-serving. I wou l d think if nothing else, the Defendant might want me to adrni t them. But I can see that there were statements made post-Miranda after he had essentially asserted his right to a lawyer, but those statements are completely confined to, ''That is not my safe. I only have keys because Shalimar gave them to me to fit a mailbox" -- I 'm paraphrasing, but those are the statements. Again, completely selfserving. Those are the statements that we would be talking about post-Miranda. And the State concedes that he essentially asserted his right to a lawyer at that point. I could not offer those. Again, self-serving statements; not really sure why the Defendant 4 - OPINION AND ORDER make the wouldn ' t want them in, but that ' s from a trial strategy standpoint . his call Id at 93 .. The trial court made the following ruling : Defendant asserts that he was "pressured" into making statements and providing items to the police (such as his wallet and keys) after he had received his Miranda warnings and after he had invoked his right to remain silent and speak to an attorney. The state concedes that the defendant did make a few statements after he "invoked" but these statements were either self - serving or exculpatory. The state further argues that the voluntary "handing over" to the police of his wallet and keys does not constitute a "statement " which might be in violation [of] Miranda . I agree with the state. The defendant ' s actions (as opposed to statements) which he may have made after he invoked are not protected by Miranda . Respondent's Exhibit 114. When the case proceeded to trial , the State did not seek to put petitioner ' s post - Miranda statements into evidence . defense counsel cross - examined Officer Vanmeter and But when asked him whether he had taken petitioner ' s wallet or whether petitioner had voluntarily relinquished it , Vanmeter responded : He was handcuffed and I asked him if I could as I was patting down the jacket , I asked - I felt something in his coat and said, "What is it " and he said it's his wallet . And I said, "Can I look at it? " He said , "Yeah , go ahead ." Trial Transcript , p. 280 . Defense counsel also asked Officer Vanmeter whether he had taken anything out of the wallet , 5 - OP I NI ON AND ORDER and Officer Vanmeter replied , I asked him if I could - as I looked inside , "Yes. could look inside the case envelope , and he said , care . ' 281. I asked if I 'Yeah, I don ' t And at that point I saw several $100 and $50 bills . " In this way , these post - Miranda Id at statements pertaining to petitioner's ownership of the wallet and its contents were elicited at trial. At the conclusion of his trial , the jury convicted petitioner of Felon in Possession of a Firearm, Marijuana, and criminal forfeiture. two counts of Deli very of As a result, the trial court sentenced him to 58 months in prison . Petitioner took a direct Respondent ' s Exhibit 101 . appeal , but the Oregon Court of Appeals affirmed the trial court without opinion, and the Oregon Supreme Court denied review. 248 P . 3d 451, rev. denied , State v. 350 Or . Blocker , 423, 240 Or . App . 464 , 256 P . 3d 1097 (2011) . Petitioner filed a second direct appeal which the Oregon Court of Appeals dismissed on the State ' s motion . 111 - 113. Respondent's Exhibits Petitioner did not seek further direct review , nor did he file for post - conviction relief . Petitioner filed this 28 U. S . C. § 2254 habeas corpus action on September 9 , 2011. After withdrawing Ground One , petitioner argues a single cla i m: whether his convictions were obtained in violation of the privilege against self - incrimination. Respondent asks the court to deny relief on the Petition because petitioner ' s Miranda 6 - OPINION AND ORDER claim was properly denied in a state court decision that is not be ent itled to deference . DISCUSSION I. Standard of Review An application for a writ of habeas corpus shall 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 . A state established court decision precedent if the 28 U. S . C . is § " contrary state court 2254(e) (1) to clearly 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 precedent ." arrives Williams v. at a Taylor , result 529 di ff erent U. S . 362 , from 405 - 06 [that] (2000) . Under the " unreasonable applicat i on " clause , a federal habeas court may grant relief " if the state court identifies the correct governing legal principle from [the Supreme Court ' s] dec1sions but 7 - OPIN I ON AND ORDER unreasonably applies that principle to the facts of the prisoner ' s case. " Id at 413 . The " unreasonable application" clause requires the state court decision to be more than incorrect or erroneous . The state court ' s application of clearly established Id at 410. law must be objectively unreasonable. When a state court reaches a Id at 409. decision on the merits but provides no reasoning to support its conclusion , the federal habeas court must conduct an independent re view 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 decision . Harrington v . Pirtle v. Morgan, Richter, 131 S . Ct . 770, ultimate 784-85 313 F.3d 1160 , 1167 (9th Cir . 2002) . (2011) ; Because the state courts in petitioner ' s case did not specifically address the post - Miranda statements petitioner places at issue in this case , the court conducts an independent review of the record . II. Analysis Petitioner alleges that Officer Vanmeter improperly testified to the statements petitioner made following the invocation of his right to counsel. He specifically argues that the questions regarding owner ship of the wallet and the cash within it yielded incriminating information in violation of Miranda . 8 - OPINION AND ORDER Once petitioner asked for counsel , the officers in this case were obligated to cease their questioning . U.S . 436 , 473 - 74 (1966 ) . Miranda v. Arizona , 384 The prosecuting attorney recognized that the statements the officers subsequently elicited from petitioner were constitutionally problematic , and agreed that she wou l d not However , bring them out during the trial . Background of ownership of this the Opinion , wallet petitioner ' s and its as discussed in the statements contents were regarding nevertheless introduced at trial during defense counsel's cro ss - examination of Officer Vanmeter . The court is unaware of any clearly established federal law finding a Miranda violation where a petitioner ' s own attorney is responsible for introducing the preclude the State indicated that statements which Miranda would Indeed , from using. in order for the Supreme Court has a Miranda violation to occur , the protected statements must be introduced during the State's case in chief . United States (plurality opinion ) . v. Patane, 542 U. S . 63 0 , 640 - 41 (2004 ) Although petitioner believes that Officer Vanmeter could have kept his answers shor t er , the style in which Vanmeter answered questions during defense-counsel ' s cross- examination is not unusual , and it does not arise to the level of a constitutional violation . Accordingly , upon an independent review of the record , the state-court decision denying relief is 9 - OPINION AND ORDER neither contrary to , nor an unreasonable application of , clearly established federal law. CONCLUSION For the Habeas rea~ons Corpus ( #2) identified above , is denied . The the Petition for Writ of court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U. S . C . IT IS SO § 2253(c )( 2) . ORDEREf~ DATED this ~ day of August , 2013. United States District Judge 10 - OPINION AND ORDER
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