Rodney Redwing v. Oregon State Prison

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 24 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RODNEY JAMES REDWING, No. 19-35049
Petitioner-Appellant, D.C. No. 6:17-cv-00796-HZ
v.
MEMORANDUM*
OREGON STATE PRISON,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Submitted December 13, 2019**
Seattle, Washington
Before: GOULD and BERZON, Circuit Judges, and BENITEZ,*** District Judge.
Rodney Redwing appeals the district court’s denial of his petition for a writ
of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
§§ 1291 and 2253, and we review the district court’s denial of Redwing’s habeas
petition de novo. Sanders v. Cullen, 873 F.3d 778, 793 (9th Cir. 2017). We
affirm.
Following a trial by jury, Redwing was sentenced to 186 months in prison
for kidnapping and other crimes. Redwing argues his counsel rendered ineffective
assistance under Strickland v. Washington, 466 U.S. 668 (1984). Specifically,
Redwing claims that his attorney should have moved for acquittal on the
kidnapping charge by arguing that there was insufficient evidence of asportation
based on State v. Wolleat, 111 P.3d 1131 (Or. 2005). To demonstrate ineffective
assistance of counsel and warrant habeas relief, a petitioner must show both:
(1) his attorney’s performance was deficient; and (2) resulting prejudice. See
Strickland, 466 U.S. at 687. On this record, Redwing has not made the necessary
showing on either prong.
Redwing made this same argument pro se on direct appeal. The Oregon
Court of Appeals rejected the argument. Redwing again made the argument in
Oregon post-conviction proceedings. The argument was rejected by the post-
conviction court, and that conclusion was affirmed by the Oregon Court of
Appeals. The Oregon Supreme Court denied review. Whether the evidence of
Redwing’s actions satisfied the kidnapping elements under Wolleat is an
interpretive question of state law. Here, two Oregon courts have already applied
2 19-35049
Oregon law to Redwing’s facts and concluded that Redwing’s sufficiency-of-the-
evidence argument was unavailing. Normally on federal habeas review, “[a] state
court has the last word on the interpretation of state law.” Mendez v. Small, 298
F.3d 1154, 1158 (9th Cir. 2002); see also Bains v. Cambra, 204 F.3d 964, 972 (9th
Cir. 2000) (“[I]n reviewing such a [§ 2254] petition, a federal court is bound by the
state court’s interpretations of state law.”).
Moreover, the state courts’ conclusions that the evidence was sufficient to
prove the asportation element of the crime is consistent with other Oregon
decisions. For example, while Wolleat held that moving a victim fifteen to twenty
feet within the same home, by itself, is not sufficient to show asportation, 111 P.3d
at 1135-36, Redwing’s crime was more like that in State v. Mejia, 227 P.3d 1139(Or. 2010). In Mejia, the defendant pushed the victim from her open front door as
she was leaving her home, moved her to a bedroom a distance of approximately
thirty-four feet, took away her cell phone when she tried to call for help, and
repeatedly choked her. Id. at 1140-41. The Oregon Supreme Court decided the
movement and confinement were sufficient proof of an intention to interfere with
the victim’s personal liberty apart from the assaultive and menacing acts, and thus
qualified as kidnapping. Id. at 1145.
Redwing’s victim had escaped the brutality inside the home and made it
seven feet outside before being picked up and carried back inside. Redwing also
3 19-35049
took away the victim’s car keys and cell phone. Had his attorney made the Wolleat
argument Redwing claims his attorney should have made, it would have failed, as
it did when Redwing himself presented the argument. Thus, it is clear that
Redwing’s trial attorney did not perform deficiently by not pursuing what would
have been a losing motion for acquittal. And Redwing was not prejudiced by the
motion not made. Thus, the district court was correct in holding that the Oregon
courts reasonably applied federal law and satisfied § 2254(d) in denying
Redwing’s claim of ineffective assistance of trial counsel.
AFFIRMED.
4 19-35049