Roger Matthew Walters v. Manfred Maass, Superintendent

11 F.3d 892 Roger Matthew WALTERS, Petitioner-Appellant, v. Manfred MAASS, Superintendent, Respondent-Appellee. No. 92-35226. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 2, 1993. Decided Dec. 8, 1993. Charles N. Fadeley, Eugene, OR, for petitioner-appellant. Janet A. Metcalf, Asst. Atty. Gen., Salem, OR, for respondent-appellee. Appeal from the United States District Court for the District of Oregon. Before: KILKENNY, TANG, and POOLE, Circuit Judges. KILKENNY, Senior Circuit Judge: 1 In 1981 Roger Walters approached a 13-year old girl and lured her into his vehicle by offering her money to help him find a fictitious white dog. He then kidnapped, raped, and sodomized the girl. In 1987, not long after having been released from prison for these crimes, Walters approached a 13-year old girl and attempted to lure her into his vehicle by offering her money to help him find a fictitious white dog. He was arrested, tried and convicted on charges of attempted kidnapping, attempted rape, and attempted sodomy. After the Supreme Court of Oregon unanimously upheld his convictions and sentence, Walters filed the instant petition for a writ of habeas corpus in…

In 1981 Roger Walters approached a 13-year old girl and lured her into his vehicle by offering her money to help him find a fictitious white dog. He then kidnapped, raped, and sodomized the girl. In 1987, not long after having been released from prison for these crimes, Walters approached a 13-year old girl and attempted to lure her into his vehicle by offering her money to help him find a fictitious white dog. He was arrested, tried and convicted on charges of attempted kidnapping, attempted rape, and attempted sodomy. After the Supreme Court of Oregon unanimously upheld his convictions and sentence, Walters filed the instant petition for a writ of habeas corpus in federal district court. The district court denied relief and Walters has appealed, arguing that he was denied his right to a fair trial, that the evidence was insufficient to support his conviction, and that he was improperly sentenced. We reject each of these contentions and affirm.

I

Walters first argues that the state trial court’s admission of evidence of his 1981 crimes at the trial of the 1987 offenses deprived him of his right to a fair trial. Oregon Evidence Rule 404(3), which is virtually identical to…

concurring:

I share Judge Poole’s concern with this case; Oregon appears on the verge of criminalizing pure (albeit bad) thought. But in finding sufficient evidence of a “substantial step” toward rape and sodomy in Walters’s efforts to have his intended victim get into his truck, the Oregon Supreme Court retains at least a vestige of the actus reus requirement.

The actus reus element of state criminal laws is generally a matter of state law. As the Supreme Court has stated:

Powell v. Texas, 392 U.S. 514, 536 , 88 S.Ct. 2145, 2156 , 20 L.Ed.2d 1254 (1968). Here, Oregon has declared that “enticement” constitutes one form of the “substantial step” required for an attempt conviction under state law. State v. Walters, 311 Or. 80, 85-86 , 804 P.2d 1164 , cert. denied, — U.S. -, 111 S.Ct. 2807 , 115 L.Ed.2d 979 (1991).

Because there is sufficient evidence to support a finding of enticement under Oregon law, we must defer to state law and uphold Walters’s convictions. See Estelle v. McGuire, — U.S. -, -, 112 S.Ct. 475, 480 , 116 L.Ed.2d 385 (1991) (“[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas…

dissenting:

Because I would hold that insufficient evidence supports Walters’ convictions for attempted first-degree rape and sodomy, I respectfully dissent.

Walters was convicted, following a jury trial, of attempted first-degree kidnapping, attempted first-degree rape, and attempted first-degree sodomy. The trial court sentenced him as a dangerous offender (based on his 1981 convictions for kidnapping, rape, and sodomy) to consecutive sentences as follow: 30 years with a 15 year minimum for attempted kidnapping, 20 years with a 10 year minimum for attempted rape, and 10 years with a 5 year minimum for attempted sodomy. Walters contends that the evidence was insufficient to support his convictions on all three counts.

Under Oregon law, conviction for attempt requires proof beyond a reasonable doubt that the defendant “intentionally engages in conduct which constitutes a substantial step toward commission of the crime.” Or.Rev. Stat. § 161.405(1); State v. Walters, 804 P.2d 1164, 1167 (Or.), cert. denied, — U.S. -, 111 S.Ct. 2807 , 115 L.Ed.2d 979 (1991).

To constitute a substantial step toward the commission of a crime, the defendant’s conduct must (1) advance the criminal…