Roger Matthew Walters v. Manfred Maass, Superintendent

Opinion by Judge POOLE; Dissent by Judge TANG.

ORDER

Judge Kilkenny is unable to participate further in this appeal and Judge Canby has been drawn to replace him.

Walters’ petition for rehearing is granted. The majority, concurring and dissenting opinion filed December 8, 1993 are withdrawn, and the attached majority opinion and Judge Tang’s dissenting opinion are filed in their place.

OPINION

Roger Matthew Walters, an Oregon state prisoner, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction and sentence for attempted rape, attempted sodomy, and attempted kidnapping of a thirteen-year old girl. We review de novo. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989). We affirm in part and reverse in part and remand to the district court with instructions to grant the writ on the ground that insufficient evidence supports Walters’ convictions for attempted rape and attempted sodomy.

I

Walters first contends that he was denied a fair trial when the state court admitted evidence that in 1981, he approached another thirteen-year old girl with the ploy of searching for a nonexistent white German shepherd, offered her $20,…

dissenting:

I share Judge Poole’s concern with this ease; 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. I therefore respectfully dissent.

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, 501 U.S. 1209 , 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 should defer to state law and uphold Walters’s convictions. See Estelle v. McGuire, 502 U.S. 62, 67-69 , 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…

45 F.3d 1355 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. Filed Dec. 8, 1993. Rehearing Granted and Opinion Withdrawn Jan. 24, 1995. Decided Jan. 24, 1995. Charles Fadeley, Eugene, OR, for petitioner-appellant. Brenda J. Peterson, Asst. Atty. Gen., Salem, OR, for respondent-appellee. Appeal from the United States District Court for the District of Oregon. Before: TANG, POOLE, and CANBY, * Circuit Judges. Opinion by Judge POOLE; Dissent by Judge TANG. ORDER Judge Kilkenny is unable to participate further in this appeal and Judge Canby has been drawn to replace him. Walters' petition for rehearing is granted. The majority, concurring and dissenting opinion filed December 8, 1993 are withdrawn, and the attached majority opinion and Judge Tang's dissenting opinion are filed in their place. OPINION POOLE, Circuit Judge: 1 Roger Matthew Walters, an Oregon state prisoner, appeals the district court's denial of his 28 U.S.C. Sec. 2254 habeas corpus petition challenging his conviction and sentence for attempted rape, attempted sodomy, and…