Rodney Redwing v. Oregon State Prison

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 24, 2019
• Docket: 19-35049
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 24 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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.

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