Martinez v. Mills, No. 1:2009cv00251 - Document 28 (D. Or. 2010)
Court Description: Opinion and Order. Petition for Writ of Habeas Corpus 2254 2 is DENIED. The court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253 (c)(2). Please access entire text by document number hyperlink. Ordered and signed on 02/05/2010 by Judge Owen M. Panner. (jw)
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FILED' 10 FEB 08 09:04USDC'ORH IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON LINO CALATA MARTINEZ, CV. 0 9 - 251- PA Petitioner, OPINION AND ORDER v. DON MILLS, Respondent. ANTHONY D. BORNSTEIN Office of the Federal Public Defender 101 SW main Street, Suite 1700 Portland, OR 97204 Attorney for Petitioner JOHN KROGER Attorney General JACQUELINE KAMINS Oregon Department of Justice 1162 Court Street, NE Salem, OR 97301 Attorneys for Respondent 1 - OPINION AND ORDER Panner, Judge. Petitioner, an inmate at Two Rivers Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. challenges the legality of his 2003 state court alleging ineffective assistance of trial counsel. set forth below, He convictions, For the reasons the Petition for Writ of Habeas Corpus (#2) is using a DENIED. BACKGROUND Petitioner was arrested on January 26, 2003, for hammer and knife to assault a woman who had recently ended their domestic relationship. Petitioner was held in custody on a federal hold and fugitive warrant for parole violation in Utah, (Respt. 's Exs. 118 & 119), and on March 19, 2003, was charged in a six count indictment with Attempted Murder - Domestic (Count 1), Assault in the First Degree - Domestic (Counts 2 & 3), Assault in the Second Degree - Domestic Substance (Count (Counts 6). 4&5), and Possession of a On March 20, 2003, Controlled a public defender was appointed to represent Petitioner, but on April 4, 2003, counsel filed a Motion to Withdraw due to "irremediable breakdown in trust, confidence, and communication." 2003, (Respt. 's Ex. 117.) On April 8, the Umatilla County Circuit Court granted the motion and appointed new counsel. (Id.) In a pre-trial hearing on April 14, 2003, Petitioner refused counsel's request that he waive the 60-day rule and allow a short delay in scheduling the trial in order to give counsel more preparation time. 2 - OPINION AND ORDER (Respt.' sEx. 103 at 6.) Counsel he indicated investigator. (Id.) seeking was an of appointment the On the record, Counsel informed Petitioner he did not feel he could be properly prepared for trial without more at (Id. time. Counsel 7.) had met with Petitioner and an interpreter the Friday before the hearing, and he told the court: Yeah, [Petitioner's] got something in Utah, Your Honor, and what's - what' s driving him in this case is he's convinced that the D.A. has no victim and she [sic] he's wanting to get this over with because he's positive in his own mind that if we show up for trial, they have no victim, that it's gonna get dismissed and he can go on back to Utah where they have a hold on him. They've also got an FBI hold on him and we don't know why. But that's what's driving him. We've got this information that he's making a decision on. He's gonna have an attorney with less than a couple of weeks of trial preparation (Id. at 7.) does not The district attorney informed the court, "[T]he State agree witnesses." (Id. with this at 8.) defendant as to the status of our Trial was set for April 21, 2003, with the court having previously noted Petitioner's desire to proceed. At trial, the victim testified, the investigating officer and translator used during the investigation and victim interview testified, and photographic evidence of the victim's injuries and of the knife and hammer used were introduced. After a two day trial, the jury found Petitioner guilty on all counts. At sentencing counsel argued for merger of Counts 2-5 with Count 1, for a 90-months Measure 11 sentence concurrent sentencing on the merged counts. 5. ) on Count 1, (Respt. 's Ex. 105 at Taking the pre-sentencing investigation into account, court sentenced Petitioner to 270 months, under Measure 11, 3 - OPINION AND ORDER and the in a combination of consecutive and concurrent sentencing with Count 4 merging with Count 2 and Count 5 merging with Count 3. The court made findings on the record to support the consecutive sentencing. at 12.) (Id. Petitioner directly appealed his convictions challenging the imposition of consecutive sentences and Ballot Measure 11 sentences, but the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Or.App. 544, 129 P.3d 280 P.3d 28 (2005), State v. Martinez, 203 (2006.) rev. denied, Petitioner filed for post-conviction relief 340 Or. 308, ("PCR") 132 raising four claims of ineffective assistance of trial counsel, and a claim challenging the constitutionality of consecutive sentencing. general judgment, (Respt. 's Ex. 122.) the PCR court denied Petitioner In a relief. Petitioner appealed, advancing one claim that counsel provided inadequate representation when he failed to object to consecutive sentencing based on Apprendi. 2-3.) Ex. (Respt. 's Ex. 123 at The State filed a motion for Summary Affirmance, 124), to which Petitioner objected. (Respt. 's Ex. (Respt. 's 125.) The Oregon Court of Appeals granted the State's motion and summarily affirmed the PCR court. Court denied review. (Respt.' s Ex. 126.) The Oregon Supreme (Respt. 's Ex. 128.) Petitioner filed the instant federal habeas petition raising four grounds for relief. In his Memorandum, Petitioner indicates he abandons Grounds One and Two. 4 - OPINION AND ORDER (#24, Mem. at 6 n.4.) In Ground Three Petitioner alleges counsel provided deficient representation when counsel failed to obtain a continuance, and in Ground Four Petitioner alleges counsel provided deficient representation when counsel failed to prepare for trial. contends both Ground Three and (#2, Pet. at 7.) Ground Four are Respondent procedurally defaul ted because Petitioner did not present the claims to the state appellate courts. Upon review of the record, the Court agrees. DISCUSSION I. Exhaustion and Procedural Default Generally, a state prisoner must exhaust all available state court remedies either on direct appeal or through collateral proceedings before a federal court may consider granting habeas corpus relief. 28 U.S.C. § 2254(b) (1) A state prisoner satisfies the exhaustion requirement by fairly presenting his claim to the appropriate state courts at all appellate stages afforded under state law. Casey v. Moore, 386 F.3d 896, 915-16 (9th Cir. 2004), cert. denied, 125 S.Ct. 2975 (2005); Baldwin v. Reese, 541 29 (2004). In Oregon, u.s. 27, the Oregon Supreme Court is the highest state court with jurisdiction to hear post-conviction claims in satisfaction § of the exhaustion requirement. See Or. Rev. Stat. 138.650 (2005). A federal claim is "fairly presented" to the state courts if it was presented "( 1) to the proper forum, 5 - OPINION AND ORDER (2) through the proper vehicle, and (3) by providing the proper factual and legal basis Insyxiengmay v. Morgan, for the claim." 2005) (internal Cir. circumstances, 403 F. 3d 657, the Oregon Supreme Court has (9th limited Under omi tted) . citations 668 considered federal claims fairly presented when the petitioner specifically crossreferenced claims in the assignment of error and attached a lower court brief arguing the federal claims. Farmer v. Baldwin, 346 Or. 67, 79-81, 205 P.3d 871 (2009). When a state prisoner fails to exhaust his federal claims in state court and the state court would now find the claims barred under applicable state rules, the federal claims are procedurally defaulted. Coleman v. Casey v. Moore, 386 F.3d 386, 920 (9th Cir. 501 U.S. 722, 735 n.1 (1991). Thompson, 2004); Habeas review of procedurally defaulted claims is barred unless the petitioner demonstrates cause for the procedural default and actual prejudice, or that the failure to miscarriage of justice. (2000); Coleman, II. consider Edwards v. the claims will result Carpenter, 529 U.S. 446, in a 451 501 U.S. at 750. Analysis It is clear from the record that Petitioner did not raise Grounds Three and Four to the Oregon appellate appeals of PCR court's decision to deny relief. longer do so, see Or. procedurally defaulted. 6 - OPINION AND ORDER Rev. Stat. §138.650(1), courts in his Because he can no the Coleman, 501 U.S. at 735 n.1. claims are Petitioner makes no attempt to excuse his habeas relief is precluded. Accordingly, default. Edwards, 529 u.s. federal at 451. Even if this Court were to consider Petitioner's claims on the merits, a review of the record leads to the conclusion they are wi thout merit. The PCR court denied Petitioner's claim in a general judgment on the basis "Petitioner failed to prove each and every allegation of the petition." (Respt.' sEx. 122.) The record supports this conclusion. To prevail on a federal claim of ineffective assistance of counsel, a petitioner must show that counsel's representation fell below objective reasonable standards probability representation, the of that, outcome different. Bell v. Cone, Washington, 466 u.s. 535 of reasonableness but the u.s. and there counsel's for is a deficient proceeding would have been 685, 695 (2002); Strickland v. 668, 687-88 (1984). Petitioner failed to do so in the PCR proceedings. In his PCR deposition Petitioner admitted he was not willing to give his attorney more time to prepare for trial because he wanted to get things taken care of quickly. 10-11; 16.) (Respt. 's Ex. 114 at He admitted he believed the victim was in Mexico and "maybe [his] sentence would be lesser if she was not there." at 10.) (Id. He also admitted to turning down a plea agreement for 120 months "because they were doing - - giving me the 30 months extra because of what I had done in Utah, (Id. at 19-20.) so I did not accept that." He admitted he carried a 7 - OPINION AND ORDER knife and a hammer toward the victim, but claimed he was acting out of jealousy, that her injuries were self-inflicted, and he only wanted to scare her not hit her. argued the (Id. trial at 11-15.) court While refused to Petitioner's PCR counsel grant a continuance because Petitioner would not waive the 60-day rule, that the 60-day rule does not apply in cases of attempted murder, and that with a continuance trial counsel could have obtained medical records, for example, at 21-23), (Id. the argument was thoroughly undermined when the State pointed out the medical records "were handed to defense attorneys, both of them, and [ ] were admitted as exhibits at trial." Moreover, the transcript of the April 14, 2003, (Id.) pre-trial hearing, at which counsel sought a continuance, provided evidence Petitioner was asked to consent to a short delay in his trial date but refused because he believed he would be in a more favorable position by proceeding to trial immediately. Ex. 103 at 6.) (Respt. 's Peti tioner cannot refuse counsel's request for additional time to prepare and then, at a later date, fault counsel for not seeking additional time to prepare. With respect to Petitioner's claim trial counsel failed to prepare for trial, trial provided evidence that: counsel's affidavit to the PCR court Petitioner "was adamant that the case be sent out to trial quickly because he believed the victim was in Mexico and would not continuance he did appear"; not have at the time investigative counsel work sought completed the by Petitioner's previous counsel; counsel promptly received discovery 8 - OPINION AND ORDER and upon its review determined the case was straight forward; and counsel felt he was thoroughly prepared for trial and would not have prepared differently had he had more time. at 2.) (Respt. 's Ex. 116 Peti tioner failed to show the PCR court that counsel s I preparation fell below objective standards of reasonableness, and even assuming counsel's preparation was below standards, Petitioner failed to different. show that the outcome of his trial would have been Based on the record, it was neither contrary to, nor an unreasonable application of established federal court to deny relief. law for the PCR Accordingly, habeas relief is precluded. CONCLUSION Based on the Habeas Corpus (#2) foregoing, is DENIED. Petitioner's The court Petition for Writ of declines to issue a Certificate of Appealability on the basis that Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253 (c) (2). IT IS SO ORDERED. DATED this day of February, 2009. a~Jj~ owen~Panner United States District Judge 9 - OPINION AND ORDER
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