Pinnell v. Belleque (638 F. Supp. 2d 1231, 2009)

United States District Court for the District of Oregon 2009-06-26

Judiciary and Judicial Procedure

Citations

Full opinion text

OPINION AND ORDER

BROWN, District Judge.

This matter comes before the Court on Respondent Brian Belleque’s Motion (# 108) for Partial Summary Judgment on exhaustion/procedural default grounds and Petitioner Mark Allen Pinnell’s Motion (# 120) for Evidentiary Hearing on the adequacy of state-court process and the existence of state-created impediments.

In its Motion for Partial Summary Judgment, the State seeks to preclude analysis on the merits of one or more of the claims set forth in Petitioner’s First Amended Petition for Writ of Habeas Corpus on the basis that such claims are unexhausted and/or procedurally defaulted.

In his Response to the State’s Motion, Petitioner asserts he fairly presented and exhausted certain claims that the State characterizes as defaulted. According to Petitioner, he is also excused from exhausting certain other claims on the basis that a state-court remedy was not available, a clear or consistent rule pertaining to the claims did not exist, or the claims were not previously available. In addition, Petitioner contends any default should be excused because he can satisfy both exceptions to procedural default; namely, the fundamental miscarriage-of-justice exception and the cause-and-prejudice exception. In Petitioner’s Motion for an Evidentiary Hearing, he seeks a hearing to develop the record further in support of his argument that he can satisfy the cause-and-prejudice exception to procedural default.

For the following reasons, the Court GRANTS in part and DENIES in part Respondent’s Motion and DENIES in part Petitioner’s Motion.

FACTUAL BACKGROUND

In August 1985 Petitioner contacted Randy Brown in response to an advertisement that Brown had placed in Swing N Sway magazine. Petitioner and Brown met and engaged in sex. On approximately September 9, 1985, Petitioner contacted Brown and arranged to meet him that evening at Brown’s residence. A friend dropped off Petitioner and another friend, Donald Cornell, at Brown’s house. Upon entry, the two men blindfolded and gagged Brown and tied his hands and feet behind his back with an electrical cord. They threatened him with a knife, and one of them kicked him in the side of the head when he attempted to free himself. Petitioner and Cornell ransacked the house, left Brown bound and gagged on the bathroom floor, and left in Brown’s pickup after loading it with his belongings. Brown eventually managed to get help and ultimately did not sustain any permanent injuries.

On approximately September 19, 1985, Petitioner called John Ruffner, who also had placed an advertisement in the same issue of Swing N Sway magazine as Brown. Petitioner, Cornell, and Velma Varzali drove in a borrowed car to Ruffner’s apartment. Petitioner went inside to see Ruffner, and Cornell followed in five minutes. Several hours later, Petitioner and Cornell returned to the car, loaded it with Ruffner’s belongings, and drove away.

The next day, September 20, 1985, Ruffner’s body was discovered on the bathroom floor of his ransacked apartment. His hands and feet were bound behind his back in part with electrical cords ripped from appliances in the apartment. A large wad of tissue paper was stuffed in his mouth, he was gagged, and a ligature was wrapped around his neck. An autopsy revealed he died of asphyxiation as a result of the wad of tissue, the ligature, or a combination of both. He also had cuts on his hands and had sustained a blunt-force injury to his head.

On September 22, 1985, Petitioner and Cornell were arrested in connection with Ruffner’s murder.

PROCEDURAL BACKGROUND

On October 23, 1985, a Washington County Grand Jury returned an indictment jointly charging Petitioner and Cornell with one count of Aggravated Murder and two counts of Felony Murder. The trial court granted Petitioner’s demurrer to the charge of Aggravated Murder based on the allegation of torture, and the State of Oregon appealed. On February 11, 1987, 83 Or.App. 559, 732 P.2d 922 (1987), the Oregon Court of Appeals affirmed the trial court, but the Oregon Supreme Court reversed and remanded on August 24, 1987, with instructions to reinstate the indictment as originally charged. State of Or. v. Pinnell, 304 Or. 27, 741 P.2d 501 (1987).

On January 7, 1988, the Washington County Grand Jury returned a second (but not superseding) indictment jointly charging Petitioner and Cornell with five additional counts of Aggravated Murder. Petitioner was tried first and separately from Cornell in May and June 1988. A jury found Petitioner guilty on all counts. Petitioner was sentenced to death on October 7, 1988. On direct review, the Oregon Supreme Court upheld Petitioner’s convictions but remanded for a new penalty-phase trial. State of Or. v. Pinnell, 311 Or. 98, 806 P.2d 110 (1991).

Cornell was tried in July 1988 and was convicted of only two counts of Felony Murder. State v. Cornell, 109 Or.App. 396, 820 P.2d 11 (1991).

Petitioner’s second penalty-phase trial was held in 1992, and the jury again sentenced him to death. On direct review, the Oregon Supreme Court upheld the death sentence. State of Or. v. Pinnell, 319 Or. 438, 877 P.2d 635 (1994). The Oregon Supreme Court entered its judgment on September 7, 1994. Petitioner did not file a petition for writ of certiorari in the United States Supreme Court.

On November 3, 1994, Petitioner filed a petition for post-conviction relief (PCR) in state court. The PCR court held an evidentiary trial and denied Petitioner’s request for relief on January 3, 2001. While Petitioner’s PCR appeal was pending in the Oregon Court of Appeals, Petitioner filed a successive PCR petition in state court on June 24, 2003. Pinnell v. Belleque, Marion County Circuit Court Case No. 03C-15644. On February 2, 2004, the state court entered final judgment dismissing the successive petition without prejudice. Petitioner did not appeal this judgment of the PCR court.

In 2005, the Oregon Court of Appeals affirmed the first PCR judgment in a written opinion, and, thereafter, the Oregon Supreme Court denied Petitioner’s petition for review without comment. Pinnell v. Palmateer, 200 Or.App. 303, 114 P.3d 515 (2005), rev. denied, 340 Or. 483, 135 P.3d 318 (2006). On May 24, 2006, the Oregon Supreme Court entered its judgment. Petitioner did not file a petition for writ of certiorari in the United States Supreme Court regarding these decisions.

On May 24, 2007, Petitioner timely filed his Petition for Writ of Habeas Corpus (# 70) in this Court.

On January 25, 2008, the State moved for partial summary judgment on exhaustion/procedural default grounds. On May 1, 2008, Petitioner moved for an evidentiary hearing on the adequacy of the state-court process and the existence of state-created impediments.

DISCUSSION

The Court first addresses the issues pertaining to fair presentation and the exhaustion requirement for the purpose of identifying any claims that are defaulted. Next, the Court will apply the two exceptions to procedural default to the identified defaulted claims. Finally, the Court will consider Petitioner’s Motion, if necessary, to determine whether he is entitled to an evidentiary hearing to develop the record further in support of his contention that he can satisfy the cause-and-prejudice exception to procedural default.

STANDARDS

I. Summary Judgment

Federal Rule of Civil Procedure 56(c) authorizes summary judgment if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. The moving party must show the absence of an issue of material fact. Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir.2005). In response to a properly supported motion for summary judgment, the nonmoving party must go beyond the pleadings and show there is a genuine issue of material fact for trial. Id.

An issue of fact is material ‘“if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.2002)(quoting Anderson v. Liberty Lobby, Inc., All U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The court must draw all reasonable inferences in favor of the nonmoving party. Id. “Summary judgment cannot be granted where contrary inferences may be drawn from the evidence as to material issues.” Easter v. Am. W. Fin., 381 F.3d 948, 957 (9th Cir.2004)(citing Sherman Oaks Med. Arts Ctr., Ltd. v. Carpenters Local Union No. 1936, 680 F.2d 594, 598 (9th Cir.1982)). A mere disagreement about a material issue of fact, however, does not preclude summary judgment. Jackson v. Bank of Haw., 902 F.2d 1385, 1389 (9th Cir.1990).

When the nonmoving party’s claims are factually implausible, that party must “come forward with more persuasive evidence than otherwise would be necessary.” Wong v. Regents of Univ. of Cal., 379 F.3d 1097 (9th Cir.2004), as amended by 410 F.3d 1052, 1055 (9th Cir.2005)(citing Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1149 (9th Cir.1998)).

The substantive law governing a claim or a defense determines whether a fact is material. Miller v. Glenn Miller Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006). If the resolution of a factual dispute would not affect the outcome of the claim, the court may grant summary judgment. Id.

The Federal Rules of Civil Procedure apply to habeas proceedings to the extent that the practice in such proceedings is not set forth in the Rules Governing 2254 Cases. Fed. R. Civ. P. 81(a)(2). See also Blackledge v. Allison, 431 U.S. 63, 80-81, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977)(sum-mary judgment is an appropriate vehicle for resolving habeas-corpus cases).

II. Exhaustion and Procedural Default

A habeas petitioner must exhaust his claims by presenting them to the state’s highest court either through a direct appeal or collateral proceedings before a federal court will consider the merits of those claims. Smith v. Baldwin, 510 F.3d 1127, 1137-38 (9th Cir.2007)(citing Rose v. Lundy, 455 U.S. 509, 515, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982)). “As a general rule, a petitioner satisfies the exhaustion requirement by fairly presenting the federal claim to the appropriate state courts ... in the manner required by the state courts, thereby ‘affording the state courts a meaningful opportunity to consider allegations of legal error.’ ” Casey v. Moore, 386 F.3d 896, 915-16 (9th Cir.2004)(quoting Vasquez v. Hillery, 474 U.S. 254, 257, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986)). If a habeas petitioner failed to present his claims to the state courts in a procedural context in which the merits of the claims were considered, the claims have not been fairly presented to the. state courts and, therefore, are not eligible for federal habeas review. Id. at 916-18 (citing Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989)).

A petitioner is deemed to have “procedurally defaulted” his claim if he failed to comply with a state procedural rule or failed to raise his claim at the state level. Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir.2003)(citing O’Sullivan v. Boerckel, 526 U.S. 838, 844-45, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999)). See also Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Similarly, if a federal constitutional claim is expressly rejected by a state court on the basis of a state procedural rule that is independent of the federal question and adequate to support the judgment, the claim is procedurally defaulted. Coleman, 501 U.S. at 729-30, 111 S.Ct. 2546. See also Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir.), cert. denied, 540 U.S. 938, 124 S.Ct. 105, 157 L.Ed.2d 251 (2003).

Nonetheless, a procedural default may be excused if the petitioner “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546. In the habeas-corpus context, a fundamental miscarriage of justice occurs when a “constitutional violation has probably resulted in the conviction of one who is actually innocent.” Smith, 510 F.3d at 1139 (citing McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991)). See also Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).

DISCUSSION

The State either concedes the following claims are properly exhausted or waives its objection to these claims as unexhausted or procedurally defaulted: II—B-H; V—A; V—B; VI—B (as to Petitioner’s allegation that trial counsel did not properly supervise investigators during the guilt phase); VI — C (as to Petitioner’s allegations that counsel in the guilt phase was ineffective because he (1) did not ask prospective jurors whether they would be willing to consider a life sentence and did not challenge any juror for cause, (2) conceded in his opening statement that Petitioner went to the victim’s home to rob him, (3) did not call critical witnesses, including Anthony Johnson, Officer Gene Garten, Michael McDonald, Gary Christensen, Louis Schultz, Steven Mace, Suzette La-pine, Donald Cornell, Alex Holuka, Dr. William Brady, and Dr. Verner Spitz, (4) did not present evidence of Petitioner’s low intelligence and organic brain damage, (5) did not present evidence that Petitioner was in the parking lot instead of in the victim’s apartment, and (6) presented a deficient closing argument by failing to articulate a theory of the case, to explain how the evidence supported that theory, and to address the prosecution’s case); VIII—F (as to Petitioner’s allegations that the trial court’s guilt-phase instructions on the terms “personally” and “aiding and abetting” were constitutionally insufficient); IX — A; IX — B (as to the ex post facto challenge only); X — A (to the extent that this claim is a facial challenge to Oregon’s capital-sentencing scheme); XI— E (as to Petitioner’s allegations that penalty-phase counsel were ineffective when they (1) failed to present evidence about Petitioner’s ability to adapt to prison life in a peaceful manner and (2) failed to object to the verdict form that indicated the jurors verdict had to be unanimous); XIII—A; XIII—B; XVI—B; XVII—A-C; and XXI—E.

To the extent the State’s Motion for Summary Judgment applies to these claims, the Court denies the State’s Motion. The Court will address the merits of these claims in due course.

For his part, Petitioner does not dispute the State’s contention that he failed to exhaust the following claims and that they are now procedurally defaulted: III; IV; V—E; V—F; V—G; VI—E; VIII—A; VIII—B; VIII—D; VIII—E; IX—B (with respect to the parts of the claim unrelated to an ex post facto challenge); IX—C, X—A (to the extent it is an as applied claim); X—D; XI—B; XI—H; XII; XIII—C; XIII—E; XIII —F; XIV; XVI—A; and XVI—G. The Court has reviewed the record as to these claims and finds the State’s contention they were not fairly presented to the Oregon Courts and are now procedurally defaulted is well taken. See 28 U.S.C. § 2248 (“The allegations of a return to the writ of habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true.”). Exceptions to procedural default will be addressed below.

Accordingly, the Court will examine whether the following remaining claims were fairly presented to the Oregon courts and, thus, properly exhausted and/or whether they were excused from the exhaustion requirement: I; V — C-D; VI— A-G; VII; VIII — C; VIII — F; X — B; X — C; X — E; XI — A; XI — C-G; XII — H; XIII — B; XIII — D; XIII — G; XV; XVI— C-F; XVIII; XIX — A-B; XX; XXI — AD; XXII — A-E; and XXIII. The Court will address these claims in a sequence in accord with Petitioner’s particular argument.

I. FAIR PRESENTATION AND EXCEPTIONS TO EXHAUSTION

A. Actual Innocence (Claims I and XVIII)

Petitioner contends any failure to exhaust Claim I (substantive claim of actual innocence relating to his conviction) is excused on the basis that there is not a state-court forum for litigating this claim and the State is judicially estopped from contending a forum is available, any procedural rule for hearing such claim is not clear or consistently applied, or the claim was previously unavailable. Because the Court concludes below that Petitioner cannot demonstrate he is entitled to pass through the Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), procedural actual-innocence gateway to have the Court reach the merits of his defaulted claim, the Court will not determine whether Petitioner’s substantive actual-innocence claim was fairly presented to Oregon’s state courts. See 28 U.S.C. § 2248(b)(2) (“An application for writ of habeas corpus may be denied on the merit s, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”). As Petitioner correctly acknowledges,

[w]hile similar to the substantive claim that an individual is actually innocent of the crime for which he has been convicted, recognized by the Supreme Court in Herrera v. Collins, 506 U.S. 390 [113 S.Ct. 853, 122 L.Ed.2d 203] (1993), the Schlup-gateway requirement is less onerous, because it is “procedural, rather than substantive.” Schlup, 513 U.S. at 313-315 [115 S.Ct. 851].

Pet’r Resp. in Opp’n to Mot. for Summ. Adjudication on Exhaustion/Procedural Default (# 117) at 8. In order to ensure Petitioner has been adequately heard on this issue, however, the Court directs Petitioner to make a written showing by August 3, 2009, as to why the Court’s conclusion that he is unable to satisfy Schlup’s procedural gateway standard is not fatal to his substantive actual-innocence claim and, therefore, why the Court should not dismiss Claim I on the merits.

Petitioner makes the same arguments regarding Claim XVIII (substantive claim of actual innocence relating to his sentence and the jury’s finding of future dangerousness). Petitioner’s arguments in support of his contention that he is actually innocent of his capital sentence do not persuade the Court that Petitioner could pass through the Schlup gateway. Because challenges to the jury’s finding of future dangerousness (a statutory requirement for imposition of the death penalty in Oregon) were not briefed in the context of procedural actual innocence, however, the Court does not consider this issue in its Schlup analysis. Nevertheless, the Court defers its decision as to whether freestanding, substantive claims of actual innocence are cognizable in Oregon post-conviction proceedings and whether Claim XVIII is exhausted pending submission by the parties of further briefing when the Court addresses the merits of this claim. See 28 U.S.C. § 2248(b)(2) (“An application for writ of habeas corpus may be denied on the merit s, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”).

B. Prosecutorial Misconduct (Claims VII and XV)

Petitioner contends any failure to exhaust his claims of prosecutorial misconduct in the guilt phase (Claim VII — A-E) and in the penalty phase (Claim XV — A-D) is excused since there is not an available state-court remedy or forum for these claims, there is not a clear or consistent rule sufficient to bar federal review of these claims, and certain claims were unavailable previously. Petitioner asserts his prosecutorial-misconduct claims are independent of any ineffective-assistance claims and fall into two categories: claims based on the prosecutor’s ongoing obligation to disclose evidence that is exculpatory and that could have an impact on the outcome of the guilt or penalty phase proceedings pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and claims based on the rule that a prosecutor may not obtain a conviction arising from the presentation of perjured testimony pursuant to Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935). Petitioner contends the State is judicially estopped from asserting that stand-alone claims of prosecutorial misconduct in state post-conviction proceedings are procedurally barred because the State has consistently taken the position that Palmer v. State, 318 Or. 352, 867 P.2d 1368 (1994), bars relief on such claims unless they are couched in terms of ineffective assistance of counsel.

The State disputes Petitioner’s characterization of its position and contends

[i]f petitioner could not reasonably have raised his claims of prosecutorial misconduct at trial or on direct appeal because the facts essential to support those claims were not available to him, he could have raised the claims in his post-conviction proceeding by alleging those circumstances and thus avoided the procedural bar in Palmer.

Resp’t Reply at 34.

The State relies on Brown v. Zenon, 133 Or.App. 291, 891 P.2d 666 (1995), a post-Palmer case, to support its argument. In Brown, the petitioner alleged in his post-conviction petition that the prosecutor intentionally delayed filing charges against him until after his 18th birthday to avoid juvenile court jurisdiction. Contrary to Petitioner’s representation at oral argument that it is not clear in Brown that anyone ever considered on the merit s, much less granted relief on, a freestanding claim of prosecutorial misconduct, the Oregon Court of Appeals specifically noted in Brown that “[t]he post-conviction court found that the claim of prosecutorial misconduct was not supported by the evidence.” Id. at 294, 891 P.2d 666.

Although Brown may be thin support for the State’s position that standalone claims of prosecutorial misconduct are cognizable in state post-conviction proceedings, the Court is not persuaded Palmer altogether bars a state post-conviction court from resolving a true standalone claim of prosecutorial misconduct that could not have been raised at trial or on direct appeal. Moreover, the Court finds consideration of whether Palmer is a clear, consistent, and regularly-applied state procedural rule sufficient to bar federal review is not relevant to the determination of whether these claims may be excused from the exhaustion requirement. A federal court’s examination of whether a state procedural rule is independent and adequate is triggered by the State pleading “the existence of an independent and adequate procedural ground as an affirmative defense.” King v. A. Lamarque, 464 F.3d 963, 966-67 (9th Cir.2006). Petitioner never raised these claims in state court, and, as a result, neither Palmer nor any other state procedural rule was ever invoked to deny them.

Nevertheless, Petitioner’s prosecutorial-misconduct claims do not need to be excused from the exhaustion requirement because they are technically exhausted through Petitioner’s procedural default since the time for Petitioner to return to state court to exhaust his remedies on these claims has expired. Smith, 510 F.3d at 1139. “In cases such as this, where a petitioner did not properly exhaust state remedies and ‘the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred,’ the petitioner’s claim is procedurally defaulted.” Id. (quoting Coleman, 501 U.S. at 735 n. 1, 111 S.Ct. 2546). Thus, the relevant inquiry with these claims is whether the procedural default can be excused. See id. This issue is addressed below.

C. Deprivation of Right to a Speedy Trial (Claims XIX — A-B)

Petitioner contends he fairly presented these speedy-trial claims in his second automatic direct appeal and argues he sufficiently exhausted the substance of these claims in his Petition for Alternative Writ of Mandamus to the Oregon Supreme Court. The Court has carefully reviewed Petitioner’s appellate brief and Petition for Alternative Writ of Mandamus. Petitioner’s plea for relief with regard to his speedy-trial rights is based exclusively on Oregon law. While Petitioner characterized the handling of the right to a speedy trial under the Sixth Amendment as being analogous, he specifically noted “this case deals with [his] rights under ORS 135.760.”

In the Ninth Circuit, a petitioner has not fairly presented his federal claim to a state court unless he “specifically indicated to that court that those claims were based on federal law.” Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir.2000), amended by 247 F.3d 904 (9th Cir.2001). The federal claim must be apparent from the appellate briefs or similar papers. Baldwin v. Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). Accordingly, the State’s contention that Claim XIX — A is procedurally defaulted is well taken. Petitioner never challenged the trial court’s refusal to grant his request for a speedy penalty trial on federal constitutional or statutory grounds in the Oregon courts.

In addition, notwithstanding the fact that Petitioner relies on his Petition for Alternative Writ of Mandamus to support his contention that he exhausted his claims arising from the alleged violations of his speedy-trial rights, he argues in Claim XIX — B that the Oregon Supreme Court’s failure to maintain records of his mandamus proceedings deprives him of the right to a full and fair review of these issues before this Court. He asserts exhaustion of these claims should be excused because he could not have known before bringing his claims to federal court that the Oregon Supreme Court had destroyed the record of his mandamus proceedings in this capital case. The State, however, questions which records Petitioner believes the Oregon Supreme Court destroyed and points out that Petitioner has submitted the record of the mandamus proceedings. As noted, the Court reviewed Petitioner’s submission of this record (Pet’r Ex. 39) and compared it with the relevant OJIN report relating to Petitioner’s mandamus proceedings (Pet’r Ex. 8). The Court, therefore, is satisfied the record is sufficiently complete to allow a full and fair review of these issues. Again to ensure Petitioner has been adequately heard, the Court directs Petitioner to show cause by August 3, 2009 why the Court should not deny Claim XIX—B on the merits. See 28 U.S.C. § 2248(b)(2) (“An application for writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”).

D. Constitutionally Insufficient Automatic Appeal and State Post-Conviction Proceedings (Claims XXI — A-D, F)

Petitioner contends he could not have challenged the sufficiency of Oregon’s automatic appeal and state post-conviction proceedings in the state courts because the basis for the challenge did not exist until the conclusion of those proceedings in June 2006. Petitioner’s claims, however, do not need to be excused from the exhaustion requirement because they are technically exhausted through Petitioner’s procedural default since the time for Petitioner to return to state court to exhaust his remedies on these claims has expired. Smith, 510 F.3d at 1139. “In cases such as this, where a petitioner did not properly exhaust state remedies and ‘the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred,’ the petitioner’s claim is procedurally defaulted.” Id. (quoting Coleman, 501 U.S. at 735 n. 1, 111 S.Ct. 2546). Thus, the relevant inquiry as to these claims is whether the procedural default can be excused. See id. This issue is addressed below.

E. Single Presentation (V — C, XIII— D, XIII — G, and XII — H)

Petitioner argues claims fairly presented in his first direct appeal did not have to be raised again in his second direct appeal following his penalty-phase retrial because “repetitious presentation is not required.” Petitioner relies on Humphrey v. Cady, 405 U.S. 504, 516 n. 18, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972); O’Sullivan v. Boerckel, 526 U.S. 838, 846, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); and Gardner v. Pitchess, 731 F.2d 637, 639-40 (9th Cir. 1984), to support his position.

1. Claim V — C

With regard to Petitioner’s Claim V — C in which Petitioner asserts he was deprived of his right to a guilt trial before a fair, impartial, and representative jury when prospective jurors Coleman and Johnson were removed, the Court has carefully reviewed Petitioner’s appellate brief on his first direct appeal. The Court concludes regardless whether presentation of the claim in his first appeal was sufficient to exhaust the claim, Petitioner failed to raise an “as-applied challenge” to the exclusion of juror Coleman during the death-qualification process based on the United States Constitution. Accordingly, the Court finds this claim to be procedurally defaulted and will address exceptions to procedural default below.

Petitioner, however, specifically challenged the removal of juror Johnson based on federal law. The Court finds such challenge sufficient to exhaust Claim V — C as to prospective juror Johnson only.

2. Claims XIII — D, XIII— G, and XIII — H

As to Claims XIII — D, XIII — G and XIII — H (claims relating to the “future dangerousness” question), the Court is unpersuaded by Petitioner’s contention that presentation of these claims in his first direct appeal is sufficient to exhaust them. The Oregon Supreme Court vacated Petitioner’s first death sentence and remanded his case for a full re-sentencing trial. That second penalty-phase trial necessarily superseded the first. Having been given the benefit of a totally new penalty-phase trial and subsequent direct appeal, Petitioner, through counsel, was obligated to make appropriate objections regardless whether they had been made in his first penalty-phase trial. Petitioner also was obligated on appeal to raise claims of error identified in his second penalty-phase trial. Because the as-applied claims at issue here involve evidence presented during the second penalty-phase trial as well as the actual jury instructions given in that proceeding, presentation of similar claims based on evidence presented during the first penalty-phase trial and the jury instructions given in that proceeding is not fair presentation of the subject claims that stem from an entirely different proceeding. Humphrey, O’Sullivan, and Gardner do not contradict this conclusion. Accordingly, Claims XIII — D, XIII — G, and XIII — H are proeedurally defaulted. The Court will address below the issue of exceptions to procedural default as to these claims.

F. Identical Presentation (Claims XI — A and XXII — A-E)

As Petitioner correctly notes,

To fairly present his claims, a petitioner must assert the substance of his claims, including the “operative facts” and “legal principles” underlying each claim, to the state court. Picard [v. Connor], 404 U.S. 270, 277-78 [92 S.Ct. 509, 30 L.Ed.2d 438] (1971). However, the exhaustion doctrine does not require a mechanical presentation of completely identical petitions or “an exact correlation between the pleading in both state and federal court.” Rice v. Wood, 44 F.3d 1396, 1403 (9th Cir.1995), vacated in part on other grounds, 77 F.3d 1138 (9th Cir.) (en banc), cert. denied 519 U.S. 873 [117 S.Ct. 191, 136 L.Ed.2d 129] (1996); citing Vasquez v. Hillery, 474 U.S. 254, 257-258 [106 S.Ct. 617, 88 L.Ed.2d 598] (1986).

Resp. in Opp’n (# 117) at 2-3 (emphasis in original).

1. Claim XI — A

Petitioner contends he fairly presented Claim XI — A (claim alleging ineffective assistance of guilt-phase counsel had a continuing prejudicial impact on his second penalty-phase trial) through the presentation of claims alleging prejudice from individual ineffective assistance of guilt-phase counsel claims. The Court disagrees. Claim XI — A raises a distinct ground for relief separate from Petitioner’s specific, fairly presented individual ineffective assistance of guilt-phase counsel claims.

On this record, the Court concludes Petitioner did not challenge the PCR court’s express finding that Petitioner did not suffer prejudice in his second penalty phase as a result of his guilt phase and first penalty-phase trial. Accordingly, the Court concludes Claim XI — A is proeedurally defaulted. The Court will address exceptions to procedural default below.

2. Claims XXII — A-E

As to Claims XXII — A-E (claims alleging cruel and unusual punishment), the Court concludes Petitioner’s cursory allegation in his first direct appeal that death by lethal injection administered by the State constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States Constitution is not sufficient to fairly present the specific Eighth and Fourteenth Amendment claims raised in his First Amended Petition relating to (1) the drugs and methods used to execute inmates, (2) the delegation of medical procedures to nonmedical personnel, (3) the secrecy of the execution procedures, (4) the length of time that Petitioner must spend on death row, and (5) the execution itself as a violation of evolving standards of decency. Accordingly, these claims are unexhausted.

G. Demurrer Sufficient to Exhaust (Claims VIII — F and XVI — C-E)

As to Claim VIII — F (claim alleging the guilt-phase jury instructions and verdict forms failed to adequately instruct the jury on critical issues and were hopelessly convoluted and confusing), Petitioner asserts his pretrial challenge to the torture murder charge on interlocutory appeal was sufficient to preserve a challenge to any jury instruction related to elements of such charge. Similarly, as to Claims XVI — C and E (claims alleging jury instructions defining “beyond a reasonable doubt” and “mitigation” were constitutionally infirm) and Claim XVI — D (claim challenging the decision of the trial court to instruct the jury on all three sentencing options), Petitioner asserts he adequately preserved these claims when he demurred these issues and raised the issue of the trial court’s denial of relief on direct appeal. The State contends Petitioner’s arguments are contrary to Oregon law and cites State v. Pinnell, which holds raising an issue by demurrer does not preserve a later challenge to jury instructions on that issue. 319 Or. 438, 443-45, 877 P.2d 635 (1994).

The State’s position is well taken. To exhaust these claims, Petitioner must have taken exception to the asserted infirmities in the jury instructions and verdict forms and appealed any denial of relief from the trial court on that basis. Accordingly, the Court concludes these claims are procedurally defaulted. The Court will address exceptions to procedural default below.

H. Request for Transcript Sufficient to Exhaust (Claim X — C)

In Claim X — C, Petitioner alleges failure to provide a full transcript of voir dire from his second penalty-phase trial precludes this Court from determining whether a fair, impartial, and representative jury was impaneled in that proceeding. Petitioner cites Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), to support his argument that this claim was sufficiently exhausted through his repeated requests to counsel and the State for transcription of the voir dire proceedings. The portion of Murray cited by Petitioner, however, focuses on the'issue of satisfying the cause-and-prejudice exception to procedural default rather than whether alleged requests to counsel and the State for transcription of the voir dire proceeding adequately exhausted the subject claim.

Petitioner did not fairly present this claim to Oregon’s highest court in a procedural context in which its merit was considered. As the time for presenting such a claim has expired, the Court concludes this claim is procedurally defaulted. As noted, the Court will address exceptions to procedural default below.

I.Cumulative-Error (Claim XX)

Petitioner raises a claim of cumulative error in Claim XX. Petitioner, however, failed to raise this claim as a federal constitutional violation in his state-court proceedings, and his assertion that he “raised numerous arguments regarding reliability previously” is not sufficient to establish exhaustion of this specific cumulative-error claim. Cumulative error must distinctly be raised as an issue at the state level for purposes of exhaustion before seeking federal habeas review. See Solis v. Garcia, 219 F.3d 922, 930 (9th Cir. 2000)(the district court properly declined to review petitioner’s cumulative-error claim when the claim was not presented during the state-court appeals).

Nevertheless, Petitioner’s cumulative-error claim does not need to be excused from the exhaustion requirement because it is technically exhausted through Petitioner’s procedural default since the time for Petitioner to return to state court to exhaust his remedies on this claim has expired. Smith, 510 F.3d at 1139. “In cases such as this, where a petitioner did not properly exhaust state remedies and ‘the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred,’ the petitioner’s claim is procedurally defaulted.” Id. (quoting Coleman, 501 U.S. at 735 n. 1, 111 S.Ct. 2546).

Thus, the relevant inquiry as to this claim is whether the procedural default can be excused. See id. Again, the Court will address exceptions to procedural default below.

J. Incompetency (Claim XXIII)

Petitioner alleges in Claim XXIII that he is not competent to be executed. He acknowledges, however, that this allegation is not ripe and is premature for federal review. Pursuant to MartinezVillareal v. Stewart, a claim of incompetency for execution “must be raised in a first habeas petition, whereupon it also must be dismissed as premature due to the automatic stay that issues when a petition is first filed.” 118 F.3d 628, 634 (9th Cir. 1997), aff'd, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998). If presented to the district court after the claim is ripe for review, it shall not be treated as a second or successive petition. See id. at 643-44, 118 S.Ct. 1618. The Court, therefore, will not consider whether this claim is exhausted at this time and dismisses Claim XXIII without prejudice as premature.

K. Artiñcial Limits on Appeal from PCR Trial Court’s Denial of Relief (Claims V — D, VI-A-G, VIII— C, X — B, X — E, XI — C, XI— D, XI — E, XI — F, XI — G, XIII — B, and XVI — F)

Petitioner concedes he failed to raise numerous other claims as assignments of error in his appeal to the Oregon Court of Appeals following the PCR court’s denial of relief. Nevertheless, he contends exhaustion of these claims should be excused due to what he asserts are artificial limits the Oregon state courts placed on his ability to exhaust these claims. While Petitioner asks the Court to excuse the exhaustion requirement, the Court notes he does not argue he was prevented from raising certain specified individual PCR claims on appeal or that the Oregon appellate courts would not have addressed these claims. Instead he contends the Oregon state courts placed “artificial” limits on his ability to exhaust all of his potentially meritorious claims. The Court assumes Petitioner refers to the Oregon Court of Appeals’ denial of his motion to file an oversized brief of 225 pages and a separate oversized abstract and appendices of 150 pages.

In any event, Petitioner does not need to be excused from the exhaustion requirement for these claims because they are technically exhausted through Petitioner’s procedural default due to the fact that the time has expired for Petitioner to return to state court to exhaust his remedies on claims he raised in his PCR Petition but failed to raise as assignments of error on appeal. Smith, 510 F.3d at 1139. “In cases such as this, where a petitioner did not properly exhaust state remedies and ‘the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred,’ the petitioner’s claim is procedurally defaulted.” Id. (quoting Coleman, 501 U.S. at 735 n. 1, 111 S.Ct. 2546). Thus, the relevant inquiry with these claims is whether the procedural default can be excused, which will be addressed below.

II. FUNDAMENTAL MISCARRIAGE-OF-JUSTICE EXCEPTION TO PROCEDURAL DEFAULT/SCHLUP’S GATEWAY ACTUAL-INNOCENCE EXCEPTION

Petitioner argues this Court should consider the merits of all of his claims regardless of any default because he can satisfy the fundamental miscarriage-of-justice exception to procedural default.

Minor discrepancies exist between the parties’ Concise Statements of Material Facts with regard to facts underlying the proffered new evidence. For the limited purpose of determining whether Petitioner can satisfy the fundamental miscarriage-of-justice exception to procedural default and for the purpose of resolving Respondent’s Motion for Partial Summary Judgment, the Court considers the agreed-upon facts as presented by and in the light most favorable to Petitioner.

A. Standards

The Supreme Court in House v. Bell elaborates on the test for satisfying the fundamental miscarriage-of-justice exception to procedural default:

In Schlup [v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) ], the Court adopted a specific rule to implement this general principle. It held that prisoners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” 513 U.S. at 327, 115 S.Ct. 851. This formulation, Schlup explains, “ensures that petitioner’s case is truly ‘extraordinary,’ while still providing petitioner a meaningful avenue by which to avoid a manifest injustice.” Ibid. (quoting McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991)).

[T]he Schlup standard does not require absolute certainty about the petitioner’s guilt or innocence. [Instead a] petitioner’s burden at the gateway stage is to demonstrate that more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt — or, to remove the double negative, that more likely than not any reasonable juror would have reasonable doubt.

547 U.S. 518, 536-38, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (emphasis added).

At the outset of this inquiry, Petitioner asserts he need only demonstrate it is more likely than not that “a reasonable juror” (ie., one juror) reviewing the new evidence would have had reasonable doubt as to Petitioner’s guilt. The Court disagrees and rejects Petitioner’s interpretation of the principles set out in Schlup. In his argument, Petitioner ignores the actual language of Schlup and House and his argument is not consistent with the Supreme Court’s interpretation of Schlup as ensuring the fundamental miscarriage-of-justice exception is only applied in extraordinary cases. See House, 547 U.S. at 538, 126 S.Ct. 2064. (“[T]he Schlup standard is demanding and permits review only in the ‘extraordinary’ case.”) (citing Schlup, 513 U.S. at 327, 115 S.Ct. 851) (quotations omitted).

To be credible, an actual-innocence claim must be supported by “new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851.

Schlup makes plain that the habeas court must consider “ ‘all the evidence,’ ” old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under “rules of admissibility that would govern at trial.” See id., at 327-328, 115 S.Ct. 851 (quoting Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 160 (1970)). Based on this total record, the court must make “a probabilistic determination about what reasonable, properly instructed jurors would do.” 513 U.S. at 329, 115 S.Ct. 851. The court’s function is not to make an independent factual determination about what likely occurred, but rather to assess the likely impact of the evidence on reasonable jurors. Ibid.

House, 547 U.S. at 538, 126 S.Ct. 2064. Thus the Court considers Petitioner’s evidentiary arguments to determine whether it is “more likely than not ... [that] no reasonable juror would find him guilty beyond a reasonable doubt.”

B. Petitioner’s “New” Evidence

Petitioner offers two categories of “new” evidence to support his claim that he is actually innocent of aggravated murder: (1) evidence available at the time of trial but not presented during his guilt-phase trial and (2) newly-discovered evidence not available at the time of his guilt-phase trial. The following is in the former category:

1. Cornell’s Criminal History

Petitioner asserts the jury never heard Cornell had a history of committing person-to-person robberies that included hogtying victims.

Specifically, Cornell and another person robbed and hog-tied a Plaid Pan try clerk in August 1976 nine years before Ruffner’s murder, and Cornell robbed the same clerk two days later and forced him to drive to another location at gunpoint. Cornell pled guilty to a series of four robberies as a result of these acts.

In 1984 Cornell was convicted of another person-to-person robbery.

The State admits Cornell had a history of hog-tying victims, and the lead investigative officer at Cornell’s murder trial noted hog-tying the victim of a robbery was so unique that in 15 years of experience he had only seen it done to victims of crimes involving Cornell. Despite being familiar with Petitioner’s extensive criminal history, the State denies having knowledge or information as to whether Petitioner had a history of hog-tying victims before he committed crimes with Cornell.

Petitioner also asserts the jury at his trial did not hear Cornell had a history of selling stolen property and passing stolen checks. Specifically, Petitioner refers to evidence the State presented at Cornell’s trial that indicated Cornell was known for his ability to sell stolen property and to cash stolen checks, Cornell personally sought to cash checks belonging to Ruffner, and Cornell possessed all of Ruffner’s stolen credit cards and checks at the time of his arrest.

2. Cornell’s Connection to the Victim

Petitioner asserts the jury did not hear evidence that it was Cornell rather than Petitioner who was seen with Ruffner before his murder. Specifically, the jury did not hear evidence that Suzette Lapine, Ruffner’s neighbor, saw Cornell and Ruffner walking to Ruffner’s apartment either the night of the murder or the night before.

The jury also did not hear evidence that Ruffner made entries for the several days before his murder in a notebook documenting contacts with men with whom he apparently engaged in sex. Those entries included the name “Don” and Cornell’s first name is “Donald,” but they did not include the name “Mark,” which is Petitioner’s first name.

3.Cornell’s Greater Intelligence and Petitioner’s Possible Legal Insanity

Petitioner contends the jury did not hear evidence that Cornell is significantly more intelligent than Petitioner or that Petitioner may have been legally insane at the time of the crime. Specifically, the jury was not given the results of psychological testing that indicated Cornell’s IQ was 98 and Petitioner’s IQ was 81. In addition, evidence exists that indicates Petitioner suffered from organic brain damage; was functionally illiterate; and was abusing alcohol, speed, and heroin at the time of the crime at a level that had previously caused him to undergo a psychotic decomposition. The State, however, disputes Petitioner’s assertion that there was evidence he was abusing drugs at the time of the crime.

Petitioner also asserts the jury did not hear evidence that, on two previous occasions, Petitioner’s abuse of drugs and alcohol together with his organic brain damage rendered him guilty but insane for his criminal conduct. Petitioner apparently refers to his April 4, 1974, commitment to the Oregon State Hospital on a Criminal Court Commitment as not being capable of understanding the burglary charges then pending against him and as being unable to assist in his own defense and his September 14, 1973, readmission to the Oregon State Hospital after he was adjudged not guilty by reason of mental defect on the burglary charges. Pet’r Ex. 20, pp. 12 & 18.

4.Others Were Involved in the Crimes Against Brown and Ruffner

Petitioner contends the guilt-phase jury was not given evidence that others, including Robert Meadows and Steve Mace, were involved in the crimes against Brown and Ruffner. Specifically, Brown testified at Petitioner’s second penalty-phase trial that even though he only saw two people come into his apartment initially, others may have come in after he was blindfolded, particularly in light of the amount of property stolen. In addition, Roylene Meadows testified at Petitioner’s penalty-phase retrial that she had not been truthful when she testified at Petitioner’s guilt-phase trial regarding Robert Meadows and Mace’s alibis; i.e., she testified at Petitioner’s second penalty-phase trial that they did not return to the house until much later than she had testified to previously. The Court notes her testimony on this issue at Petitioner’s second penalty-phase trial was corroborated by the testimony of Diane Brown, Roylene’s houseguest.

5.Ruffner’s Death was Accidental

Petitioner contends the jury did not receive the medical evidence from the State’s own medical expert that Ruffner’s death was accidental rather than the result of torture. Specifically, the jury did not hear the testimony of Larry Lewman, M.D., that the wad of tissue placed in Ruffner’s mouth may have worked its way into his throat and blocked his airway accidentally rather than that the tissue was intentionally shoved into the back of his throat; that once Ruffner’s airway was occluded, he would have become unconscious within 20-30 seconds and would have died in minutes; that having the airway totally blocked would not by itself result in “intense physical pain”; that even though the blow to Ruffner’s head tore his ear and caused bruising on his scalp, it did not result in a skull fracture or visible brain injury and most likely did not cause Ruffner to lose consciousness; and that Dr. Lewman would not characterize the pain resulting from the defensive wounds that Ruffner received as “intense physical pain.” Although Dr. Lewman testified at the trials of both Petitioner and Cornell, the Court notes this described evidence was only presented at Cornell’s trial.

6.Evidence Rebutting Varzali’s Testimony

Petitioner also asserts the jury did not hear evidence that rebutted the testimony of the State’s primary witness, Velma Varzali. Specifically, although Suzette Lapine, who did not have a role in the crime, testified she saw Ruffner and Cornell together, additional witnesses, including Lloyd Cornell, asserted Varzali admitted to them that she did not have any knowledge of the crime against Ruffner.

In addition, Petitioner contends the following evidence, which was not available at the time of his guilt-phase trial, also supports his claim of actual innocence:

7. Cornell’s Statements to the Oregon Board of Parole and PosP-Prison Supervision

Petitioner asserts Cornell’s statements to the Oregon Parole Board in 2002, 2004, and 2006 in which he confessed that he was responsible for Ruffner’s death, that he had tied Ruffner up, and that Ruffner accidently suffocated as a result proves Petitioner is actually innocent of aggravated murder. Although Cornell denied he intentionally killed Ruffner, he admitted he tied up and robbed a different victim (presumably Brown) ten days before Ruffner’s death.

The State responds to Petitioner’s assertions by enumerating the following evidence that it believes establishes Petitioner’s guilt beyond a reasonable doubt, contradicts Petitioner’s suggestion that his proffered “new evidence” establishes Cornell alone committed the acts that resulted in Ruffner’s death, and contradicts Petitioner’s suggestion that his proffered “new evidence” establishes Ruffner’s death was an accident:

8. Petitioner’s Involvement in the Brown Crime

a.Randy Brown testified both Petitioner and another man participated in tying him up and gagging him.

b. A Yamhill County corrections officer testified Petitioner told him the most he could be convicted of in the Brown crime was possession of stolen property. Petitioner allegedly stated, “I didn’t rob nobody, but I sure lit his ass up”.

c. Robert Meadows testified Petitioner and Cornell came to his house on September 9, 1985, and asked for a pistol, rope, and use of Meadows’s truck. Meadows testified he gave them a hunting knife.

d. Mace testified he drove Petitioner and Cornell to the vicinity of Brown’s house on September 9, 1985; several hours later he saw Petitioner driving Brown’s truck full of household items; and Petitioner and Cornell talked about the robbery stating they tied Brown up, put his truck in the garage, and loaded it up.

e. Petitioner pled guilty to First Degree Robbery for his crimes against Brown.

9.Petitioner’s Involvement in Ruffner’s Murder

a. Meadows testified Petitioner was looking through Swing N Sway magazine after the Brown robbery and before the Ruffner murder and said, “[H]ere is one that has a VCR.”

b. Varzali testified she was with Petitioner and Cornell when they drove to Ruffner’s apartment; Petitioner entered the apartment first, and Cornell followed five minutes later; Cornell came back to the car three hours later and drove it around to the front of the apartment to load it with property sitting on the sidewalk and more property from upstairs; Cornell was nervous, upset, and angry with Petitioner, and Petitioner was in a good mood; she thought they had been partying; that Petitioner had been perspiring ■ or had taken a shower; Petitioner said “[H]e went for the ear, but [Cornell] had gotten their [sic ] first”; Park Eldridge, the State’s investigator, told her that Petitioner had admitted to the murder and told him that Varzali drove the car that night; and Eldridge told her that Petitioner said “he would go ahead and plead guilty to just a murder beef ..., but Washington County wanted to try him for aggravated murder, and he wasn’t going for [it].”

c. John Thomas, a former police officer, testified he went into the living room area after , discovering Ruffner’s body and confirming he was dead and found a black table lamp tipped over with a small piece of white cord left on it after the remainder had been ripped off. The stub of cord matched the cord used to truss Ruffner.

d. Petitioner’s fingerprints were found on two different lamps seized from Ruffner’s apartment, an Automobile Club card in Ruffner’s name, and a March 1985 issue of Swingers magazine and volume of Stag magazine.

e. Thomas Jenkins, a criminalist with the Oregon State Police, testified the cords used to tie Ruffner came from items in the apartment. He further testified the cord from a dark-colored lamp had the same general characteristics and was consistent in size and shape as a cord used to truss Ruffner. Finally, he testified a knit cap found in the apartment contained head hair from a Caucasian that was consistent with Petitioner’s head hair.

f. Robert and Roylene Meadows testified Petitioner, Cornell, and Varzali came to their house on the morning of September 19, 1985, and showed them a stack of credit cards — one with an eagle hologram for which Roylene testified Petitioner told her that he did not need a PIN. At trial Roylene identified four of Ruffner’s credit cards as those Petitioner had shown her on the morning of September 19, 1985.

g. At trial the parties stipulated that Michelle Sturgis would identify Petitioner as the person who tried to pass a check belonging to Ruffner at Fred Meyer. Joy Brady testified she cashed one such check for $275. Brady testified Petitioner told her the check was good and gave her $70 after she cashed it.

h. Jenkins testified the wad of tissue found lodged in Ruffner’s throat was bigger than a golf ball and smaller than a baseball. Dr. Lew-man testified Ruffner probably only lived a few minutes after he was bound and gagged (a scarf was tied tightly around his mouth over the three-inch wad of tissue) and that the wad of tissue and ligatures contributed to his death.

i. When he was arrested, Petitioner kissed Cornell on the lips and begged him not to tell police he had been driving the car in the driveway. Petitioner told his ex-wife, Dixie Timmons, to ditch the TV. Varzali identified the portable TV set that Petitioner brought to Timmons’s house as the one taken from Ruffner’s apartment.

Reply to Pet’r Resp. in Opp’n to Mot. for Summ. Adjudication on Exhaustion/Proeedural Default (# 138) at 15-21.

C. Analysis

As a preliminary matter, the parties disagree as to whether the State had to prove under Oregon law that Petitioner personally and intentionally caused Ruffner’s death in order to convict him of aggravated murder. The State asserts that only the two charges of Aggravated Felony Murder pursuant to Oregon Revised Statute § 163.095(2)(d) require the State to prove Petitioner personally and intentionally caused Ruffner’s death. The State notes the Oregon Supreme Court approved an instruction defining “personally” in State v. Nefstad that is identical to the instruction given in Petitioner’s case.

Personally in the context of aggravated murder means that to be guilty of that crime the Defendant must have had an actual role in causing the death and not merely a role in the felony during which the death occurred.

309 Or. 523, 541, 789 P.2d 1326 (1990).

The Oregon Supreme Court recently revisited this jury instruction in State v. Link, 346 Or. 187, 208 P.3d 936 (2009). Petitioner contends the court in Link rejected the argument the State makes that it did not need to prove Petitioner was responsible for the actual physical acts that led to Ruffner’s death in order to prove Petitioner acted “personally” so as to be guilty of aggravated felony murder. In Link, the court rejected the State’s position that any time a defendant has an “actual role in causing the death,” he commits the murder personally. Id., at 207, 208 P.3d 936. Instead, the court held the State must prove the defendant performed the physical act of homicide himself. The court specifically noted, however, in accord with the conclusions in Nefstad, that the State did not have to prove the defendant acted alone or that the homicide had to be a solitary physical act or limited to the final fatal act:

As in Nefstad, people acting together each may “personally * * * commit[]” the physical act of homicide. And as in Nefstad, it may take a confluence of physical acts to effectuate the act of homicide.

Id., at 210-11, 208 P.3d 936.

Though there was evidence the defendant in Link took part in murder preparations and encouraged and directed others to shoot the victim, it was undisputed he was not physically present when the victim was shot. In that case where “the act of homicide was one act-the act of shooting-committed by one person[-not the defendant,]” the court held the defendant could not have committed the act personally, either individually or by controlling the shooter. Id., at 211, 208 P.3d 936. Notably too, the court in Link directed trial courts to refrain from using the Nefstad instruction defining “personally” in the future because it did not inform the jury the State must prove that a defendant performed the physical act of homicide himself. Id. at 211 n. 12, 208 P.3d 936.

Notwithstanding the Oregon Supreme Court’s clarification of the definition of “personally” in the context of aggravat