Keith Ingram v. Jeff Premo

575 F. App'x 717

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 19, 2014
• Docket: 12-35925
• Status: Unpublished

Opinion

MEMORANDUM *

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.

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 Ap-pellee’s assertion that Ingram’s claim is procedurally defaulted. Oregon law requires prisoners seeking collateral relief to state any grounds for relief in a postcon-viction 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, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991).

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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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 ear, 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 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.

* This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.