                                                                              FILED
                            NOT FOR PUBLICATION                               MAY 19 2014

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


KEITH MITCHELL INGRAM,                           No. 12-35925

              Petitioner - Appellant,            D.C. No. 6:10-cv-00736-TC

  v.
                                                 MEMORANDUM*
JEFF PREMO, Superintendent, Oregon
State Penitentiary,

              Respondent - Appellee.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Ann L. Aiken, Chief District Judge, Presiding

                        Argued and Submitted May 14, 2014
                                 Portland, Oregon

Before: ALARCÓN, TASHIMA, and IKUTA, Circuit Judges.

       Oregon state prisoner Keith Ingram appeals the district court’s denial of his

petition for writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction

under 28 U.S.C. § 2253 and affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Ingram challenges his conviction for first-degree kidnapping. He contends

his trial counsel was ineffective for failing to move for a judgment of acquittal. He

asserts that the evidence introduced at trial did not prove beyond a reasonable

doubt that he had the intent to interfere substantially with the alleged victim’s

personal liberty. Had his counsel moved for acquittal, he argues, there was a

reasonable probability that the motion would have been granted.

                                           I

      As a preliminary matter we address Appellee’s assertion that Ingram’s claim

is procedurally defaulted. Oregon law requires prisoners seeking collateral relief to

state any grounds for relief in a postconviction petition. Or. Rev. Stat.

§ 138.550(3). Ingram did not raise the ineffective-assistance claim at issue here in

his petition for postconviction relief. Nevertheless, the Oregon postconviction trial

court denied Ingram’s claim on the merits. The Oregon Court of Appeals affirmed

without opinion, and the Oregon Supreme Court summarily denied review.

Because the last reasoned state-court decision considered Ingram’s claim on the

merits, there is no bar to federal-court review. Ylst v. Nunnemaker, 501 U.S. 797,

801 (1991).

//




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                                          II

      The Oregon postconviction trial court determined it was “highly unlikely”

that a judge would have granted a motion for judgment of acquittal in light of the

evidence against Ingram. Accordingly, the Oregon court, applying Strickland v.

Washington, 466 U.S. 668 (1984), determined that Ingram’s trial counsel was not

ineffective for failing to move for a judgment of acquittal.

      Under the Antiterrorism and Effective Death Penalty Act of 1996, we must

defer to the Oregon postconviction trial court’s decision unless it was contrary to,

or unreasonably applied, clearly established Supreme Court precedent, or was

based on an unreasonable determination of the facts in light of the evidence. 28

U.S.C. § 2254(d). That court’s determination that a motion for judgment of

acquittal was unlikely to be granted is reasonable in light of the evidence. The trial

testimony shows that Ingram took the victim to a lookout, told her he was looking

for a place to bury her, drove from the lookout to his house after she said she

wanted to go home, chased her after she tried to flee his car, dragged her by the

hair, threw her down on the ground, and kicked her. This evidence was sufficient

under Oregon law to demonstrate that Ingram intended to interfere substantially

with his victim’s personal liberty. The Oregon court’s decision also reflects a

reasonable application of Strickland. An attorney is not ineffective for failing to


                                          3
make a motion that lacks a reasonable probability of being granted. See United

States v. Moore, 921 F.2d 207, 210 (9th Cir. 1990) (“[T]he lawyer’s failure to

move for a directed verdict did not prejudice [the appellant] because it would have

been meritless.”).

      AFFIRMED.




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