                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 22 2015

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



                            FOR THE NINTH CIRCUIT


KELLY GENE GETTLING, AKA Kelley                  No. 14-35152
Gettling,
                                                 D.C. No. 6:11-cv-01176-AC
              Petitioner - Appellant,

 v.                                              MEMORANDUM*

JEFF PREMO, Superintendent, OSP,

              Respondent - Appellee.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Marco A. Hernandez, District Judge, Presiding

                        Argued and Submitted May 8, 2015
                                Portland, Oregon

Before: W. FLETCHER and HURWITZ, Circuit Judges and BAYLSON,** Senior
District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Michael M. Baylson, Senior District Judge for the
U.S. District Court for the Eastern District of Pennsylvania, sitting by designation.
      Kelly Gene Gettling, an Oregon state prisoner, appeals the district court’s

denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Our review is

de novo, Clabourne v. Ryan, 745 F.3d 362, 370 (9th Cir. 2014), and we affirm.

      Gettling claims that he is entitled to habeas relief because he is actually

innocent, because his trial counsel furnished ineffective assistance of counsel

(“IAC”) by allowing him to plead to a kidnapping charge that was not supported

by sufficient evidence, and because both his trial and appellate counsel were

ineffective for subsequently failing to challenge the sufficiency of the evidence of

the kidnapping conviction. We address only the first two claims, because the

district court did not issue a certificate of appealability on the third claim and

Gettling did not follow the procedure delineated in our rules for requesting the

expansion of a certificate of appealability. See Mendez v. Knowles, 556 F.3d 757,

771 (9th Cir. 2009). Gettling does not dispute that he procedurally defaulted on

these first two claims. We conclude that he has not established cause and prejudice

to excuse this default.

      First, Gettling cannot overcome his procedural default by demonstrating that

he is actually innocent of the crime of conviction. See Schlup v. Delo, 513 U.S.

298, 313–15 (1995). Gettling has not satisfied Schlup’s “demanding” standard,

McQuiggin v. Perkins, 133 S. Ct. 1924, 1936 (2013), because he has not shown “in

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light of subsequent case law that he cannot, as a legal matter, have committed” the

crime of first-degree kidnapping. Vosgien v. Persson, 742 F.3d 1131, 1134 (9th

Cir. 2014). Regarding the intent element, there is sufficient evidence, when viewed

in the light most favorable to the state, that Gettling intended to interfere

substantially with the victim’s personal liberty. See Or. Rev. Stat. §§ 163.235 &

163.225; State v. Wolleat, 111 P.3d 1131, 1134 (Or. 2005) (explaining that the

state must show that the defendant intended to move the victim a “substantial

distance” or confine the victim for a “substantial period of time”). Gettling bound

the victim with duct tape, stuffed a sock in the victim’s mouth, knocked the victim

down when he tried to get up, and moved the victim toward the door after telling

his accomplice to get the truck. There is sufficient evidence that Gettling took the

victim “from one place to another” to satisfy the asportation element. Or. Rev.

Stat. §§ 163.235 & 163.225. Gettling moved the victim to a “qualitatively

different” place because he moved the victim within the room in order to duct tape

him, which enhanced Gettling’s ability to control the victim, and because he

moved the victim to the back door and toward the truck in order to further isolate

him. State v. Sierra, 254 P.3d 149, 153 (Or. 2010), aff’d as modified, 247 P.3d 759

(Or. 2011). This movement was not incidental to Gettling’s other crimes because




                                            3
Gettling moved and taped the victim after he beat and robbed him. See id. at

153–54.

      Because Gettling cannot excuse his procedural default under Schlup, he also

cannot prevail on his freestanding substantive claim of actual innocence. See

House v. Bell, 547 U.S. 518, 555 (2006) (explaining that the “hypothetical”

freestanding claim of actual innocence “requires more convincing proof of

innocence than [a] Schlup” gateway claim).

      Second, Gettling cannot excuse his procedural default under Martinez v.

Ryan, 132 S. Ct. 1309, 1318 (2012), because he has not demonstrated that his post-

conviction relief (“PCR”) counsel was ineffective under Strickland v. Washington,

466 U.S. 668 (1984). See Dickens v. Ryan, 740 F.3d 1302, 1319 (9th Cir. 2014)

(en banc) (explaining Martinez’s requirements). PCR counsel was not deficient for

failing to include in the PCR petition the claim that Gettling is actually innocent.

As we have explained, that argument is unavailing. Nor was PCR counsel

deficient for failing to include in the PCR petition the claim that trial counsel was

ineffective for advising Gettling to plead to a charge that Gettling believes could

not be substantiated. Trial counsel did not know what Gettling’s accomplice

would say at trial and he did not have the benefit of the Oregon Supreme Court’s

subsequent clarification of the elements of kidnapping. In light of this uncertainty,

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trial counsel made a reasonable judgment that Gettling should not risk incurring a

sentencing penalty by going to trial. PCR counsel, in turn, competently declined to

include this claim in the PCR petition. Cf. Miller v. Keeney, 882 F.2d 1428, 1434

(9th Cir. 1989) (“In many instances, appellate counsel will fail to raise an issue

because she foresees little or no likelihood of success on that issue; indeed, the

weeding out of weaker issues is widely recognized as one of the hallmarks of

effective appellate advocacy.”). Even if PCR counsel’s performance was deficient,

Gettling cannot show that he suffered prejudice because there is no reasonable

probability that he would have prevailed on such a weak claim had PCR counsel

pressed it. See Strickland, 466 U.S. at 694.

      AFFIRMED.




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