Keith Ingram v. Jeff Premo

FILED
NOT FOR PUBLICATION MAY 19 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEITH MITCHELL INGRAM, No. 12-35925
Petitioner - Appellant, D.C. No. 6:10-cv-00736-TC
v.
MEMORANDUM*
JEFF PREMO, Superintendent, Oregon
State Penitentiary,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Argued and Submitted May 14, 2014
Portland, Oregon
Before: ALARCÓN, TASHIMA, and IKUTA, Circuit Judges.
Oregon state prisoner Keith Ingram appeals the district court’s denial of his
petition for writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction
under 28 U.S.C. § 2253 and affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Ingram challenges his conviction for first-degree kidnapping. He contends
his trial counsel was ineffective for failing to move for a judgment of acquittal. He
asserts that the evidence introduced at trial did not prove beyond a reasonable
doubt that he had the intent to interfere substantially with the alleged victim’s
personal liberty. Had his counsel moved for acquittal, he argues, there was a
reasonable probability that the motion would have been granted.
I
As a preliminary matter we address Appellee’s assertion that Ingram’s claim
is procedurally defaulted. Oregon law requires prisoners seeking collateral relief to
state any grounds for relief in a postconviction petition. Or. Rev. Stat.
§ 138.550(3). Ingram did not raise the ineffective-assistance claim at issue here in
his petition for postconviction relief. Nevertheless, the Oregon postconviction trial
court denied Ingram’s claim on the merits. The Oregon Court of Appeals affirmed
without opinion, and the Oregon Supreme Court summarily denied review.
Because the last reasoned state-court decision considered Ingram’s claim on the
merits, there is no bar to federal-court review. Ylst v. Nunnemaker, 501 U.S. 797,
801 (1991).
//
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II
The Oregon postconviction trial court determined it was “highly unlikely”
that a judge would have granted a motion for judgment of acquittal in light of the
evidence against Ingram. Accordingly, the Oregon court, applying Strickland v.
Washington, 466 U.S. 668 (1984), determined that Ingram’s trial counsel was not
ineffective for failing to move for a judgment of acquittal.
Under the Antiterrorism and Effective Death Penalty Act of 1996, we must
defer to the Oregon postconviction trial court’s decision unless it was contrary to,
or unreasonably applied, clearly established Supreme Court precedent, or was
based on an unreasonable determination of the facts in light of the evidence. 28
U.S.C. § 2254(d). That court’s determination that a motion for judgment of
acquittal was unlikely to be granted is reasonable in light of the evidence. The trial
testimony shows that Ingram took the victim to a lookout, told her he was looking
for a place to bury her, drove from the lookout to his house after she said she
wanted to go home, chased her after she tried to flee his car, dragged her by the
hair, threw her down on the ground, and kicked her. This evidence was sufficient
under Oregon law to demonstrate that Ingram intended to interfere substantially
with his victim’s personal liberty. The Oregon court’s decision also reflects a
reasonable application of Strickland. An attorney is not ineffective for failing to
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make a motion that lacks a reasonable probability of being granted. See United
States v. Moore, 921 F.2d 207, 210 (9th Cir. 1990) (“[T]he lawyer’s failure to
move for a directed verdict did not prejudice [the appellant] because it would have
been meritless.”).
AFFIRMED.
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