                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 25 2014

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



                            FOR THE NINTH CIRCUIT


WILLIAM WARREN WIELAND,                          No. 13-35173

              Petitioner - Appellant,            D.C. No. 3:10-cv-00059-MA

  v.
                                                 MEMORANDUM*
S. FRANK THOMPSON,

              Respondent - Appellee.


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

                       Argued and Submitted July 11, 2014
                                Portland, Oregon

Before: PAEZ, WATFORD, and OWENS, Circuit Judges.

       The state trial court found sufficient evidence to convict William Warren

Wieland under Oregon Revised Statutes section 163.095(2)(e). See Jackson v.

Virginia, 443 U.S. 307, 319 (1979). Under our doubly deferential review, see

Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012) (per curiam), and “viewing the

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                          Page 2 of 6
evidence in the light most favorable to the prosecution,” Jackson, 443 U.S. at 319,

we conclude that fair-minded jurists could find the State’s evidence sufficient. See

28 U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

      1. A reasonable jury could have found that Wieland committed arson in

1986 based on evidence describing the circumstances of the 1986 fires. The

Wieland family suffered through three fires in 1986, the first two of which

occurred on Mondays. After the second fire, Cindy Wieland and victim Katherine

Kimbrel decided that Kimbrel would sleep in the living room on the next Sunday

night in order to catch the arsonist on Monday morning. Cindy and Kimbrel told

Wieland, as well as friends of the family, about their plan. But the arsonist

thwarted the plan by uncharacteristically setting his next fire—in the locked

house—on a Sunday. A reasonable jury could have inferred that Wieland was the

arsonist based on Wieland’s knowledge of the plan, his access to the locked house,

and his motive to commit arson. After each of the fires, Wieland collected a

substantial insurance recovery.

      Wieland’s peculiar reaction to the near-death experience of his wife and

children strengthened the inference that Wieland was the arsonist. After the third

1986 fire, Wieland appeared neither grateful to the passersby who helped save his

family nor emotional about the serious danger and trauma his family had just
                                                                          Page 3 of 6
experienced. A reasonable jury could have found that these atypical reactions

implied that Wieland was the arsonist.

      2. A reasonable jury could have found that Kimbrel suspected Wieland was

the arsonist. After the third 1986 fire, Kimbrel had a conversation with her pastor

that left him with the impression that Kimbrel “knew what was going on but didn’t

feel like she could talk.” Kimbrel also told longtime friend Julie Raney about the

third fire. In response, Raney said that it seemed like someone was trying to kill

the Wielands, but Kimbrel replied that the real targets were Cindy and the Wieland

children. Raney told Kimbrel to “get out of there,” but Kimbrel replied that she

could not leave Cindy, and Cindy would not leave Wieland. A reasonable jury

could have inferred from this conversation that Kimbrel—by excluding Wieland

from the list of victims and suggesting that Cindy would be safer if she left

him—signaled that Wieland was the perpetrator.

      3. A reasonable jury also could have found that Wieland knew Kimbrel

suspected him. In the days prior to the murder, Kimbrel’s demeanor changed.

While she was previously energetic and enthusiastic, she became reserved and

quiet. She read scripture about fear in church, and, as one friend said, Kimbrel

simply “clammed up.” The jury could have inferred that Wieland, who lived with
                                                                         Page 4 of 6
Kimbrel at the time, observed the same changes in Kimbrel’s demeanor that her

friends saw.

      Evidence of tension between Kimbrel and Wieland also supported the

inference that Wieland knew that Kimbrel suspected him of arson. After the third

fire, the Wielands hired Jeff Starr to help clean and clear the damaged house. Starr

testified that he observed disagreements between Wieland and Kimbrel and that

tension marred their relationship. Starr could not describe the substance of any

specific disagreement, but because he observed this tension shortly before the

murder and after Kimbrel’s stark change in demeanor, the jury could have inferred

that Wieland knew Kimbrel suspected him.

      4. Finally, viewed in the light most favorable to the prosecution, a

reasonable jury could have found that Wieland killed Kimbrel to conceal his arson.

First, Wieland had a unique opportunity to commit the murder: When the murder

took place, he and Kimbrel were alone outside the farmhouse. His daughter was

away, his son was occupied watching cartoons in the house, and his wife was

asleep. No employees were on the Wieland property when Kimbrel was murdered.

One employee had been scheduled to work at the time during which the murder

took place, but Wieland called the night before to tell the employee not to come.
                                                                         Page 5 of 6
      Second, physical evidence discovered at the crime scene implicated

Wieland. Police found a footprint matching Wieland’s boots close to Kimbrel’s

body despite Wieland’s claim that he had not been within 30 feet of the body.

Additionally, trained trackers testified that, based on tracks around Kimbrel’s

body, the murderer had to have come from the direction of Wieland’s house.

Taken in the light most favorable to the prosecution, evidence of the boot print and

the tracks pointed to Wieland as the killer.

      Third, years after Wieland sold the farm, the property’s new owner

discovered a knife, the likely murder weapon, in Wieland’s old barn. The knife

had belonged to Kimbrel and was hidden in a pipe in the barn. A reasonable jury

could have inferred from testimony about the knife that the murderer was a

Wieland-family insider with access to the kitchen. The jury could also have

inferred that the same insider stashed the murder weapon in a familiar location on

the Wieland farm.

      5. Because Wieland does not raise a colorable federal claim, we need not

address the State’s procedural default argument. See 28 U.S.C. § 2254(b)(2);

Cassett v. Stewart, 406 F.3d 614, 623–24 (9th Cir. 2005). We also decline to

address Wieland’s uncertified issues, as he has not made a substantial showing of

the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
            Page 6 of 6
AFFIRMED.
