                                                                           FILED
                     UNITED STATES COURT OF APPEALS                         JUN 18 2010

                                                                        MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                        U.S . CO UR T OF AP PE A LS




DONALD RAY WELLS,                                No. 09-35006

              Petitioner - Appellant,            D.C. No. 3:06-cv-00018-MA
                                                 District of Oregon,
  v.                                             Portland

ROSEANNE CAMPBELL; JOAN
PALMATEER, Warden,                               ORDER

              Respondents - Appellees.



Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.

       The petition for rehearing is GRANTED. The memorandum disposition

filed March 22, 2010, is withdrawn. A superseding memorandum disposition is

filed concurrently with this order. Further petitions for rehearing or rehearing en

banc may be filed.
                                                                             FILED
                            NOT FOR PUBLICATION                               JUN 18 2010

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S . CO UR T OF AP PE A LS




                             FOR THE NINTH CIRCUIT



DONALD RAY WELLS,                                  No. 09-35006

              Petitioner - Appellant,              D.C. No. 3:06-cv-00018-MA

  v.
                                                   MEMORANDUM *
ROSEANNE CAMPBELL; JOAN
PALMATEER, Warden,

              Respondents - Appellees.


                     Appeal from the United States District Court
                              for the District of Oregon
                     Malcolm F. Marsh, District Judge, Presiding

                      Argued and Submitted December 8, 2009
                                 Portland, Oregon

Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.

       Donald Wells, an inmate in the custody of the Oregon Department of

Corrections, appeals the district court's denial of his petition for a writ of habeas

corpus. We affirm.




       *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1.     Assuming Wells fairly presented his ineffective assistance claim

regarding suppression of his hospital-bed statements to the state post-conviction

court, the claim fails on the merits. Wells has not shown that 'there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different.' Stricµland v. Washington, 466 U.S. 668,

694 (1984). The state trial judge, Judge Luuµinen, refused to entertain Wells's

renewed suppression motion because he considered Judge Blensly's 1985 denial of

Wells's first suppression motion--summarily affirmed on appeal--to be law of the

case. Given the Oregon Supreme Court's application of the law of the case

doctrine to a renewed motion to suppress in State v. Pratt, 853 P.2d 827, 831-32

(Or. 1993), Wells has not established a reasonable probability that Judge Luuµinen

would have considered his renewed suppression motion even if he had µnown

about the contrary federal ruling by Judge Redden. Thus, the state post-conviction

court's rejection of the claim was not an unreasonable application of Stricµland.

      2. Wells's claim that the trial court violated his right to due process under

the Fourteenth Amendment when it refused to consider his renewed suppression

motion is procedurally defaulted. Wells raised no federal constitutional claims on

direct appeal, and in his state petition for post-conviction relief he raised only

claims of ineffective assistance of counsel.


                                           2
      3. Wells's claim that trial counsel provided ineffective assistance by failing

to move for severance of the felon in possession charges is also procedurally

defaulted. Wells did not raise any severance claim in his state petition for post-

conviction relief. Although he did discuss severance in supplemental pro se

filings, the state post-conviction court permitted supplementation only for purposes

of expanding on claims raised in the original petition.

      4. The state post-conviction court's holding that trial counsel did not

provide ineffective assistance by failing to object to Wells's shacµling was not an

unreasonable application of Stricµland. Wells himself did object to the shacµling,

and the trial court reasonably found that shacµling was appropriate given the

severity of the offenses with which Wells was charged and given that Wells's leg

brace was not visible to the jury.

      5. Finally, assuming Wells's federal habeas petition adequately presented

the claim that trial counsel was ineffective in failing to argue for merger of

sentences with respect to counts 2 and 7, the state post-conviction court's rejection

of this claim was not unreasonable. Oregon law applicable at the time of the

offense provided that the victim of a robbery is the person against whom a threat is

made, see State v. Dillman, 580 P.2d 567, 568-69 (Or. Ct. App. 1978), so Officer

Thompson was the victim of both robberies. Nonetheless, '[i]t is not necessarily


                                           3
true that a continuous sequence of criminal acts directed at a single victim can lead

to only one sentence.' State v. Kessler, 686 P.2d 345, 348 (Or. 1984). The two

thefts Wells committed reflected different criminal objectives: he stole the picµup

trucµ in an attempt to escape from police with money he had already stolen. See

id. Thus, the state post-conviction court reasonably determined that Wells had

failed to demonstrate prejudice under Stricµland.

      AFFIRMED.




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