KELLY GENE GETTLING, AKA Kelley Gettling v. JEFF PREMO, Superintendent, OSP

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KELLY GENE GETTLING, AKA Kelley
Gettling,
Petitioner - Appellant,
v.
JEFF PREMO, Superintendent, OSP,
Respondent - Appellee.
No. 14-35152
D.C. No. 6:11-cv-01176-AC
MEMORANDUM*
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.
FILED
MAY 22 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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.

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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
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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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