Donald Wells v. Roseanne Campbell , 384 F. App'x 634 ( 2010 )

FILED
UNITED STATES COURT OF APPEALS JUN 18 2010
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S . CO UR T OF AP PE A LS
DONALD RAY WELLS, No. 09-35006
Petitioner - Appellant, D.C. No. 3:06-cv-00018-MA
District of Oregon,
v. Portland
ROSEANNE CAMPBELL; JOAN
PALMATEER, Warden, ORDER
Respondents - Appellees.
Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.
The petition for rehearing is GRANTED. The memorandum disposition
filed March 22, 2010, is withdrawn. A superseding memorandum disposition is
filed concurrently with this order. Further petitions for rehearing or rehearing en
banc may be filed.
FILED
NOT FOR PUBLICATION JUN 18 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS
FOR THE NINTH CIRCUIT
DONALD RAY WELLS, No. 09-35006
Petitioner - Appellant, D.C. No. 3:06-cv-00018-MA
v.
MEMORANDUM *
ROSEANNE CAMPBELL; JOAN
PALMATEER, Warden,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, District Judge, Presiding
Argued and Submitted December 8, 2009
Portland, Oregon
Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.
Donald Wells, an inmate in the custody of the Oregon Department of
Corrections, appeals the district court's denial of his petition for a writ of habeas
corpus. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Assuming Wells fairly presented his ineffective assistance claim
regarding suppression of his hospital-bed statements to the state post-conviction
court, the claim fails on the merits. Wells has not shown that 'there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.' Stricµland v. Washington, 466 U.S. 668,
694 (1984). The state trial judge, Judge Luuµinen, refused to entertain Wells's
renewed suppression motion because he considered Judge Blensly's 1985 denial of
Wells's first suppression motion--summarily affirmed on appeal--to be law of the
case. Given the Oregon Supreme Court's application of the law of the case
doctrine to a renewed motion to suppress in State v. Pratt, 853 P.2d 827, 831-32
(Or. 1993), Wells has not established a reasonable probability that Judge Luuµinen
would have considered his renewed suppression motion even if he had µnown
about the contrary federal ruling by Judge Redden. Thus, the state post-conviction
court's rejection of the claim was not an unreasonable application of Stricµland.
2. Wells's claim that the trial court violated his right to due process under
the Fourteenth Amendment when it refused to consider his renewed suppression
motion is procedurally defaulted. Wells raised no federal constitutional claims on
direct appeal, and in his state petition for post-conviction relief he raised only
claims of ineffective assistance of counsel.
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3. Wells's claim that trial counsel provided ineffective assistance by failing
to move for severance of the felon in possession charges is also procedurally
defaulted. Wells did not raise any severance claim in his state petition for post-
conviction relief. Although he did discuss severance in supplemental pro se
filings, the state post-conviction court permitted supplementation only for purposes
of expanding on claims raised in the original petition.
4. The state post-conviction court's holding that trial counsel did not
provide ineffective assistance by failing to object to Wells's shacµling was not an
unreasonable application of Stricµland. Wells himself did object to the shacµling,
and the trial court reasonably found that shacµling was appropriate given the
severity of the offenses with which Wells was charged and given that Wells's leg
brace was not visible to the jury.
5. Finally, assuming Wells's federal habeas petition adequately presented
the claim that trial counsel was ineffective in failing to argue for merger of
sentences with respect to counts 2 and 7, the state post-conviction court's rejection
of this claim was not unreasonable. Oregon law applicable at the time of the
offense provided that the victim of a robbery is the person against whom a threat is
made, see State v. Dillman, 580 P.2d 567, 568-69 (Or. Ct. App. 1978), so Officer
Thompson was the victim of both robberies. Nonetheless, '[i]t is not necessarily
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true that a continuous sequence of criminal acts directed at a single victim can lead
to only one sentence.' State v. Kessler, 686 P.2d 345, 348 (Or. 1984). The two
thefts Wells committed reflected different criminal objectives: he stole the picµup
trucµ in an attempt to escape from police with money he had already stolen. See
id. Thus, the state post-conviction court reasonably determined that Wells had
failed to demonstrate prejudice under Stricµland.
AFFIRMED.
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