Tooley v. Highberger

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UNITED STATES DISTRICT COURT                           

                  DISTRICT OF OREGON                                 




JAMES CHARLES TOOLEY,                                Case No. 6:21-cv-01352-AA 

     Petitioner,                                    OPINION AND ORDER  

v.                                                                   

JOSHUA HIGHBERGER,                                                        

     Respondent.                                                     
____________________________                                              

AIKEN, District Judge.                                                    

Petitioner brings this action for federal habeas relief pursuant to
28 U.S.C. § 2254
and 
challenges his state court convictions for Aggravated Murder and Solicitation and Conspiracy to 
Commit Aggravated Murder. Petitioner contends that his counsel rendered ineffective assistance 
at  trial  in violation of his rights under the Sixth Amendment. The Oregon courts rejected 
Petitioner’s claims in decisions that are entitled to deference, and he is not entitled to federal 
habeas relief.                                                            
1     - OPINION AND ORDER                                                 
                    BACKGROUND                                       
 On October 16, 2009, Petitioner was indicted on four counts of Aggravated Murder and 
two counts each of Solicitation and Conspiracy to Commit Aggravated Murder. Resp’t Ex. 102 
at 2-3. The Aggravated Murder charges arose from the shooting deaths of Anthony Cooper and 

Melinda Kotkins, a married couple who were associates of Petitioner in the sale of illegal drugs, 
including Oxycontin. State v. Tooley,
265 Or. App. 30, 33
(2014). Cooper and Kotkins were 
found shot to death in their home, and Petitioner was allegedly the last person to have seen or 
spoken to them before their bodies were discovered.
Id. at 34
; Transcript of Proceedings (Tr.) 
3070-74, 3079-82, 3097.                                                   
The charges of Solicitation and Conspiracy to Commit Aggravated Murder arose from 
Petitioner’s alleged conspiracy with a third party to kill Petitioner’s cousin, Jesse Smith, to 
prevent Smith from testifying as a witness against Petitioner on the murder charges. Tr. 3641-42. 
While on a camping trip with Smith, Petitioner allegedly confessed and told Smith that he killed 
Kotkins at her home and then killed Cooper after giving him a ride home from jail. Tr. 2986, 

2993-94. According to Smith, Petitioner killed Cooper and Kotkins to take over their drug 
business.                                                                 
After  a multi-week jury trial, Petitioner was convicted of two counts of Aggravated 
Murder, two counts of Solicitation to Commit Aggravated Murder, and one count of Conspiracy 
to Commit Aggravated Murder. Following a penalty phase trial, the jury found that Petitioner 
should not be sentenced to death on the Aggravated Murder convictions. Tr. 5038-39. The trial 
court sentenced Petitioner to two consecutive terms of life imprisonment with a minimum of 
thirty years and a consecutive term of 120 months’ imprisonment. Resp’t Ex. 101 at 3-8. 


2     - OPINION AND ORDER                                                 
Petitioner filed a direct appeal asserting eight assignments of error. Resp’t Ex. 103. The 
Oregon Court of Appeals affirmed in a written opinion and the Oregon Supreme Court denied 
review. Resp’t Exs. 106, 108. Petitioner then sought post-conviction relief (PCR) in state court, 
arguing that counsel rendered ineffective assistance in several respects. Resp’t Ex. 110-11. The 

PCR court denied review, the Oregon Court of Appeals affirmed without opinion, and the 
Oregon Supreme Court denied review. Resp’t Exs. 143, 147-48.              
On September 13, 2021, Petitioner sought federal habeas relief in this action. 
                      DISCUSSION                                     
Petitioner asserts numerous Grounds for Relief in his Petition. See Pet. (ECF No. 2). In 
his supporting brief, however, Petitioner presents argument in support of only Grounds 1(B), 
1(D), 1(E), and 1(I). See generally Pet’r Brief (ECF No. 34). Upon review of the record, I find 
that Petitioner fails to prove entitlement to habeas relief on the remaining grounds for relief, for 
the reasons set forth in Respondent’s Response. See Mayes v. Premo,
766 F.3d 949, 957
(9th Cir. 
2014) (stating that a habeas petitioner bears the burden of proving the alleged claims); Davis v. 

Woodford,
384 F.3d 628, 637-38
(9th Cir. 2004) (accord).                  
In Claim 1(B), Petitioner alleges that trial counsel provided ineffective assistance by 
failing to argue that due process required the admission of statements Petitioner made to the 
police. In Claims 1(D) and (E), Petitioner contends that counsel was ineffective by failing to 
challenge  testimony  about  Petitioner’s  possession  of  a  semi-automatic  handgun  that  was 
unrelated to the murders. And in Claim 1(I), Petitioner alleges that trial counsel unreasonably 
failed to seek admission of evidence showing that a State’s witness was biased. The PCR court 
denied these claims, and Respondent maintains that the decision is reasonable and entitled to 
deference.                                                                

3     - OPINION AND ORDER                                                 
A federal court may not grant habeas relief regarding any claim “adjudicated on the 
merits” in state court, unless the state court ruling “was contrary to, or involved an unreasonable 
application of, clearly established Federal law.”
28 U.S.C. § 2254
(d)(1). A state court decision is 
“contrary to” established federal law if it fails to apply the correct Supreme Court authority or 

reaches a different result in a case “materially indistinguishable” from relevant Supreme Court 
precedent. Brown v. Payton,
544 U.S. 133, 141
(2005); Williams v. Taylor,
529 U.S. 362, 405-06
(2000). A state court decision is an “unreasonable application” of clearly established federal law 
if  the  state  court  identifies  the  correct  legal  principle  but  applies  it  in  an  “objectively 
unreasonable” manner. Woodford v. Visciotti,
537 U.S. 19, 24-25
(2002) (per curiam); see Penry 
v. Johnson,
532 U.S. 782, 793
(2001) (“even if the federal habeas court concludes that the state 
court decision applied clearly established federal law incorrectly, relief is appropriate only if that 
application  is  also  objectively  unreasonable”).  To  meet  this  highly  deferential  standard,  a 
petitioner must demonstrate that the state court’s ruling “was so lacking in justification that there 
was an error well understood and comprehended in existing law beyond any possibility for 

fairminded disagreement.” Harrington v. Richter,
562 U.S. 86, 103
(2011).  
To establish a claim for ineffective assistance under Strickland, a petitioner must show 
that 1) “counsel’s performance was deficient” and 2) the “deficient performance prejudiced the 
defense.” 466 U.S. at 687. To establish deficient performance and prejudice, a petitioner “must 
show that counsel’s representation fell below an objective standard of reasonableness” and “there 
is  a  reasonable  probability  that,  but  for  counsel’s  unprofessional  errors,  the  result  of  the 
proceeding  would  have  been  different.”  Id.  at  688,  694.  Unless a petitioner “makes both 
showings, it cannot be said that the conviction...resulted from a breakdown in the adversary 
process that renders the result unreliable.” Id. at 687.                  

4     - OPINION AND ORDER                                                 
Judicial review of an attorney’s performance under Strickland is “highly deferential” and 
carries a “strong presumption that counsel’s conduct falls within the wide range of reasonable 
professional assistance,” which, under the relevant circumstances, “might be considered sound 
trial strategy.” Id. at 689 (citation omitted). Counsel must be afforded “wide latitude … in 

making tactical decisions” and “strategic choices made after thorough investigation of law and 
facts  relevant  to  plausible  options are virtually  unchallengeable.” Id. at 689-90.  Notably,  a 
“doubly deferential” standard applies when “a federal court reviews a state court’s Strickland 
determination.” Cheney v. Washington,
614 F.3d 987, 995
(9th Cir. 2010). The state court “must 
be granted a deference and latitude that are not in operation when the case involves review under 
the Strickland standard itself.” Richter,
562 U.S. at 101
.                
A.  Petitioner’s Statements to Police                                
While investigating the deaths of Cooper and Kotkins, police detectives interviewed 
Petitioner  on  four  separate  occasions  and  recorded  his  statements  during  nine  hours  of 
questioning. During one of the interviews, investigators informed Petitioner that he was seen, via 

surveillance cameras, walking to the back of Cooper and Kotkins’s home around the time of their 
deaths. Tr. 2684-85, 3121, 3345. Petitioner then told investigators that, contrary to his previous 
statements, he had gone to their home and seen Cooper’s dead body. Tr. 3122-24. When asked 
why he did not call 911, Petitioner stated that he panicked and ran from the scene, because he 
“was just afraid for my family. These people aren’t normal people.” Tr. 2506. Petitioner also told 
investigators that Cooper’s associates in Las Vegas might have been involved with the murders 
and that he also knew of a “Russian” and several others who were involved with Cooper’s drug 
dealing. Tr. 2488, 2492, 2507.                                            


5     - OPINION AND ORDER                                                 
At trial, the State indicated its intent  to  introduce  Petitioner’s statements  about his 
contacts with Cooper and Kotkins and his activities on the day of their deaths. In anticipation 
that the defense would seek admission of hearsay statements Petitioner made to police, the State 
filed a motion in limine to exclude them. Tr. 2480. Petitioner’s counsel argued that, under the 

Oregon evidentiary rule of completeness, some of Petitioner’s statements should be admitted, 
including his statements that Cooper had dangerous associates in Las Vegas and that Petitioner 
did not call 911 when he discovered Cooper’s body because he panicked was afraid for his 
family. Tr. 2487-88, 2492-93, 2504-08. Although counsel argued that those statements should be 
admitted “in the interests of fairness,” he did not specifically argue that the Due Process Clause 
of the Fourteenth Amendment required their admission. Tr. 2493. The trial court found that 
Petitioner’s proffered statements were inadmissible hearsay and excluded them from trial.  
Petitioner argues that counsel was constitutionally inadequate for failing to argue that the 
federal Due  Process Clause required admission of the excluded statements. The PCR court 
rejected this claim, finding that counsel “reasonably focused on the arguments that he thought 

had the most merit.” Resp’t Ex. 143 at 9. The PCR court further found that Petitioner could not 
show prejudice, because raising a due process argument would not have likely changed the trial 
court’s decision and a reasonable jury would have viewed Petitioner’s “self-serving statements 
full of hearsay and speculation… as little more than an effort by petitioner to suggest some other 
mysterious strangers may have committed the murders.” Resp’t Ex. 143 at 9-10. The PCR court 
also noted that admission of the statements would have been improper because Petitioner did not 
testify and was not subject to cross-examination. Petitioner maintains that the PCR court’s 
decision unreasonably applied federal law.                                


6     - OPINION AND ORDER                                                 
Under clearly established federal law, state evidentiary rules may not be applied in a 
manner that prevents criminal defendants from “presenting directly exculpatory evidence when 
the evidence is essential to the defendant’s case and bears sufficient indicia of reliability.” Ayala 
v. Chappell,
829 F.3d 1081, 1113
(9th Cir. 2016); see Chambers v. Mississippi,
410 U.S. 284, 

300-01
(1973) (finding that the defendant’s due process rights were violated when the trial 
court’s evidentiary rulings prevented the defendant from introducing evidence that a third party 
had confessed to the crime). At the same time, Chambers “does not stand for the proposition that 
the defendant is denied a fair opportunity to defend himself whenever a state or federal rule 
excludes favorable evidence.” United States v. Scheffer,
523 U.S. 303, 316
(1998). Rather, a 
defendant must show that the out-of-court statements are essential to the defense and possess 
persuasive indicia of trustworthiness to overcome hearsay rules of exclusion. Ayala,
829 F.3d at 
1113-14
.                                                                  
Regardless  of  whether  the  PCR  court reasonably found  no  deficiency arising from 
counsel’s failure to raise a due process argument, the PCR court reasonably found no prejudice. 

The trial court rejected counsel’s argument that “fairness” required the admission of Petitioner’s 
statements, and nothing in the record suggests that invoking due process would have altered the 
trial  court’s  ruling.  As  the  PCR  court  found,  Petitioner’s  statements  were  self-serving, 
uncorroborated by other evidence, and lacked any indicia of trustworthiness. In fact, Petitioner’s 
explanation for failing to call 911 after finding Cooper’s body – because he panicked – was 
contradicted by evidence showing that Petitioner calmly walked away from the house. Tr. 4266. 
Finally, Petitioner chose not to testify, and the State would have had no opportunity to cross-
examine him about his out-of-court assertions. Given this record, it is unlikely that the trial court 
would have admitted Petitioner’s statements on due process grounds. Ayala,
829 F.3d at 1114
.  

7     - OPINION AND ORDER                                                 
 Even if the statements  had been admitted, the PCR court reasonably found that a 
reasonable jury would not have been swayed by uncorroborated assertions of “dangerous” people 
associated  with  Cooper.  As  noted  above,  Petitioner  presented  no  evidence to support his 
statements and the State presented substantial evidence of Petitioner’s culpability during the 

multi-week trial. See Tooley,
265 Or. App. at 33-38
.                      
B.  Petitioner’s Possession of a .45 Caliber Handgun                 
As part of their investigation, police officers searched Petitioner’s vehicle and found a .45 
caliber firearm in a holster underneath the seat. It is undisputed that the .45 firearm was not the 
murder weapon, and this fact was made clear at trial. See Tr. 2899.       
During  trial,  the  State  called  Melissa  Arne,  a  criminalist  for  the  Gresham  Police 
Department  involved  with  the  search  of  Petitioner’s  vehicle,  and  asked  her  to identify a 
photograph of the truck’s interior. Arne answered, “Yes, this is a photograph of a gun in a holster 
that  was  found  under  the  driver’s  seat  of that truck.” Tr.  2889.  Counsel objected to the 
photograph on grounds of relevance, arguing that it was prejudicial and not relevant to any 

evidence presented to the jury. Tr. 2890, 2900. The trial court sustained counsel’s objection and 
the State did not ask Arne further questions about the gun. Trial counsel did not move to strike 
Arne’s testimony or move for a mistrial.                                  
Another State’s witness who was a friend of Petitioner’s, Michael Bastrica, testified that 
he saw a .45 caliber firearm next to Petitioner on one occasion. Tr. 3362. Counsel objected on 
grounds of relevance, and the objection was overruled. Bastrica then testified that the gun was “a 
semiautomatic handgun” that “takes a magazine.” Tr. 3362.                 



8     - OPINION AND ORDER                                                 
Petitioner alleges that trial counsel rendered ineffective assistance by failing to move to 
strike Arne’s testimony  or for a mistrial and by failing to challenge Bastrica’s testimony on 
grounds of unfair prejudice. The PCR court reasonably rejected these claims.  
As the PCR court noted, whether to move to strike Arne’s testimony or seek a mistrial are 

strategic decisions. Given that the jury heard counsel’s objection to Arne’s testimony and did not 
view the photograph of the firearm, it is unlikely that the trial court would have granted a motion 
to strike or for mistrial, and  any  further objection would have served to only highlight the 
testimony. Resp’t Ex. 143 at 11. Likewise, the PCR court reasonably found no deficiency with 
respect  to  Bastrica’s  testimony.  Counsel  objected  on  grounds  of  relevance,  and  counsel’s 
objection was reasonable because a .45 caliber firearm was not used in the killings and counsel 
had successfully objected to Arne’s testimony on the same ground.         
The PCR court’s finding of no prejudice was also reasonable. Petitioner fails to show that 
the trial court would have found Arne’s or Bastrica’s testimony unfairly prejudicial when the 
jury heard other evidence regarding Petitioner’s familiarity with firearms. Tr. 3263-64, 3286-90, 

3362-63. Further, Petitioner fails to show that Arne’s and Bastrica’s brief testimony about a 
weapon unrelated to the murders had a likely effect on the jury’s verdict. As the PCR court 
noted, the State did not mention the .45 caliber firearm in its closing arguments and substantial 
evidence connected Petitioner to the killings. Resp’t Ex. 143 at 11.      
C.  Evidence of Witness Bias                                         
Finally, Petitioner alleges that counsel failed to effectively argue for the admission of 
evidence to impeach David Weismandel, a witness called by the State.      
On direct examination, Weismandel testified that, sometime after Cooper and Kotkins 
were killed, he and Petitioner went to a pharmacy to pick up a prescription for Oxycontin. Tr. 

9     - OPINION AND ORDER                                                 
3457-58. Weismandel testified that Petitioner commented about rumors Weismandel might have 
heard about Petitioner and Cooper and said, “Well, I did what I did to protect my family. And I 
just want you to know that I would never do anything in retaliation to hurt someone else’s 
family, or anything like that.” Tr. 3459. Weismandel  interpreted Petitioner’s statement as a 

confession that he had killed Cooper and Kotkins. Tr. 3459. Weismandel also testified that he 
had not made entered into any cooperation agreements with the State in exchange for his trial 
testimony. Tr. 3455.                                                      
On cross-examination, Weismandel admitted that he was on probation and had violated 
the terms of his probation several times:                                 
Q:   Since the time that you talked to the detectives back in March of 2009, has 
     your probation been revoked?                                    

A:   One probation has, yes.                                         

Q:   And the other ones have not?                                    

A:   Yes.                                                            

Q:   Okay. And how many violations since that time of probation have you 
     had?                                                            

A:   Multiple. I –                                                   

Q:   Multiple?                                                       

A:   Yeah. Multiple, yes.                                            

Tr. 3462. Counsel then attempted to introduce eight probation violation orders, and the State 
objected. Counsel argued that the proposed exhibits were admissible to impeach Weismandel’s 
testimony that he had not received any benefit in exchange for his testimony, stating, “I think the 
sheer volume of violations would be indicative that this witness at least believes that he’s being 
10     - OPINION AND ORDER                                                
granted special favors because of his testimony.” Tr. 3465, 3469. The trial court sustained the 
State’s objection to the probation violation reports and they were not admitted. 
Petitioner contends that counsel was ineffective by failing to move for introduction of the 
reports under Oregon Evidence Code (OEC) 609-1(1), which provides that the “credibility of a 

witness may be attacked by evidence that the witness engaged in conduct or made statements 
showing bias or  interest.” The PCR court rejected this claim, concluding that the probation 
violation records would not have been admissible under Oregon law. Resp’t Ex. 143 at 12. The 
PCR court’s resolution of state law is binding on this Court. Estelle v. McGuire,
502 U.S. 62, 67
(1991) (explaining that questions of state law play “no part of a federal court’s habeas review of 
a state conviction”). Moreover, OEC 609-1(2) prohibits “additional” evidence of bias or interest 
if  “a  witness  fully  admits  the facts claimed to show the bias or interest of the witness.” 
Weismandel admitted violating his probation multiple times, and the reports would not have 
been admissible. Thus, no deficiency or prejudice arose from the failure to invoke OEC 609-1. 
In sum, Petitioner fails to show that the PCR court unreasonably applied Strickland when 

denying his claims, and he is not entitled to habeas relief.              
                      CONCLUSION                                     
The Petition for Writ of Habeas Corpus (ECF No. 2) is DENIED. A Certificate of 
Appealability is DENIED on the basis that petitioner has not made a substantial showing of the 
denial of a constitutional right. See
28 U.S.C. § 2253
(c)(2).             
DATED this 1_2_t_h_ day of July, 2023.                               

                ________/s_/_A_n_n_ _A_i_k_e_n________               
                      ANN AIKEN                                      
                  United States District Judge                       
11     - OPINION AND ORDER