Christine v. Coursey, No. 1:2009cv00388 - Document 36 (D. Or. 2011)
Court Description: Opinion & Order Petition for Writ of Habeas Corpus 1 denied. Court declines to issue a Certificate of Appealability. Ordered & Signed on 1/24/11 by Judge Owen M. Panner. (kf)
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Christine v. Coursey Doc. 36 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MEDFORD DIVISION BRIAN EDWARD CHRISTINE, Civil No. 09-388-PA Petitioner, v. SUPERINTENDENT COURSEY, OPINION AND ORDER Respondent. Thomas J. Hester Assistant Federal Public Defender 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 Attorney for Petitioner John R. Kroger Attorney General Kristen E. Boyd Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent 1 - OPINION AND ORDER Dockets.Justia.com PANNER, District Judge. Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 in which he challenges the legality of his underlying convictions for Custodial Interference, Robbery Degree, and Unlawful Use of a Motor Vehicle. follow, in the First For the reasons that the Petition for Writ of Habeas Corpus (#1) is denied. BACKGROUND In July 2000, petitioner, his wife, and three daughters aged six, three, and two southern Oregon. were living On July 21, in 2000, a converted school bus in the children were taken into state custody based upon allegations of neglect. A physician found the children to be emaciated, with the two-year-old weighing only 15 pounds. The middle child had a head wound and healing skull fracture caused when the father struck her for wetting the bed. The placement of the children in state custody contentious battle between petitioner and the State. in petitioner confronting two began a It culminated social workers at gunpoint at an Oregon rest stop where he stole the workers' van and spirited his children away to Montana. The children were ultimately located and returned to state custody, and a jury convicted petitioner of three counts of Custodial Interference, two counts of Robbery in the First Degree, and one count of Unlawful Use of a Motor Vehicle. Respondent's Exhibit imposed 10l. During sentencing, 2 - OPINION AND ORDER the trial court gun minimums on of these convictions. appeal, Court and t wr i t ten opinion, ction in a review. Supreme Court its 105, 108, 111. While this first a motion see ~irect itioner filed appeal was pe sentencing to modify his criminal court grant minimum of Appeals affirmed t the Oregon Respondent's Petitioner took a direct it imposed a gun motion to the extent t y as to Respondent's a Exhibit single count of Custodial 112. Thus, titioner sentenced to 60 months on the Count convict 1uding the gun Robbery sentence of 90 months Interference. was ultimately Custodial Interference minimum), to (a mandat a consecutive minimum sentence in Oregon) . Petitioner appealed the modifi criminal history score was sentencing, sentence, arguing that his improperly reconstituted during his reby leading to a hars r Court of Appeals disagreed and affi The Oregon sentence. t trial court without and the Oregon Supreme Court denied review. Respondent's Exhibits 115, 116. Ie the second appeal was State fi its own motion to , on December 22, 2004, correct explicitly state that the sentence on t Inter rence conviction was pursuant Respondent's Exhibit 117. 3 - OPINION AND ORDER to the second to j Count Eight Cus ORS 161.610 as 1 a Petitioner opposed the mot and raised granted the State s motion and rejected itioner's responsive I challenges. Peti tioner again Oregon Court of and the 0 trial court 1 challenges to his sentence. t sought 1 ew, e and the Is affirmed the trial court without opinion, Supreme Court denied review. Respondent's Exhibits 120, 121. Petitioner led this federal habeas corpus action on April 15, 2009 rais the following grounds relief: 1. T trial court violated petitioner's right to due ss when it imposed nimum on the Custodial Interference conviction (Count 8) instead of his Robbery conviction (Count 1); 2. trial court improperly utili Counts 1 and 2 to raise petitioner's c history score for ses of counts 8, 9, 10, 11 in violation of his right to due process; State did not sustain its failed to offer evidence of theft element of Robbery. 3. Re asks the court to of proof when pertaining to deny relief on the Petition because: (1) all three grounds for relief were not fairly presented to 's state courts, and are now procedurally default c (2 ) ; and lack merit. DISCUSSION I . Unargued Claim Respondent addressed Re b ioner's Ground Three cIa nse, but petitioner has not efi The court has 4 - OPINION AND ORDER in s ed Ground Three with any nevertheless reviewed it r's unargued claim on the existing record and determined that it does not entitle him to relief. See 28 U.S.C. § 2248 ("The allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true."); see also Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (petitioner bears the burden of proving his claims) II. Exhaustion and Procedural Default A habeas petitioner presenting them to the must exhaust state's highest his claims court, before a will consider the merits of those claims. Rose v. 519 (1982). "As a general rule, fairly either through a direct appeal or collateral proceedings, 509, by federal court Lundy, 455 u.s. a petitioner satisfies the exhaustion requirement by fairly presenting the federal claim to the appropriate state courts . state courts, thereby in the manner required by the 'affording the state courts a meaningful opportuni ty to consider allegations of legal error.'" Moore, 386 F.3d 896, Hillery, 915-916 474 U.S. 254, 257, (9th Cir. 2004) (1986)). Casey v. (quoting Vasquez v. If a habeas litigant failed to present his claims to the state courts in a procedural context in which the merits of the claims were actually considered, the claims have not been fairly presented to the state courts and are 5 - OPINION AND ORDER therefore not eligible for federal habeas corpus review. v. Peoples, Castille 489 U.S. 346, 351 (1989) A petitioner is deemed to have "procedurally defaulted" his claim if he failed to comply with a state procedural rule, or Edwards v. failed to raise the claim at the state level at all. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). If a petitioner has procedurally defaulted a claim in state court, a federal court will not review the claim unless the petitioner shows "cause and prejudice" for the failure to present the constitutional issue to the state court, or makes a colorable showing of actual innocence. Gray v. Netherland, 518 U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992); Murray v. Carrier, A. In 477 U.S. 478, 485 (1986). Analysis of Ground One Ground improperly One, applied petitioner a 60-month asserts gun that minimum Interference conviction in Count Eight when, the to trial court his Custodial instead, it should have applied the gun minimum to the Robbery conviction in Count One. To prove that he fairly presented the federal nature of this claim to Oregon's state courts, petitioner directs the court's attention to his Appellant's Brief from his second direct appeal wherein he cited Walker v. Deeds, 50 F.3d 670, 673 (9th Cir. 1995). But petitioner cited that case not in support of the merits of his 6 - OPINION AND ORDER s argument that claim process claim, but rather to support clusion did not apply to criminal s: Oregon appellate courts never ied claim clusion in a criminal case, let alone applied the doctrine against a criminal defe state offers no reason to extend the doctrine apply against criminal defendants. Indeed, cr fendants have strong liberty interests at sta in litigating sentencing challenges. As a matter of Due Process, this court should not foreclose to s the opportunity to avoid unlawful sentences. v. Deeds, 50 F3d 670, 673 (9th Cir 1995) (sentenci court's failure to comply with statutory sentenc authority violates Due Process) . Respondent's Exhibit 117, . 24 25. Petitioner's citation to a si his argument against cIa c merits of his due process cIa Court of Appeals to t e federal case in support of sion (and not in support of would not have alerted the ral nature of his due process cIa To conclude otherwise would require the state appellate court to dissect and reorder i Appellant's Br for him. Cir. something which fair McFadden, presentation 399 F. ion demands more than ci ta t constitutional underlying sion, detached from any arti 993, does 1002 not (9th to a general ion of the ral legal theory). Analysis of Ground Two With re court is See Castillo v. 2005) B. f so as to construct petitioner's federal a This contemplate. dual sentences and citations from ct to petitioner's Ground Two c that the state rly reconstituted his criminal history score during 7 - OPINION AND ORDER sentencing, petitioner clearly rais Appellant's Brief, but rel Oregon Administrative such a c im in his first exclusively on the interpretation of Regulations Oregon state cases. Respondent's Exhibit 112, pp. 6-9. Petitioner raised t in in his second direct appeal, again relying on Oregon law. Respondent's provide a nistrative Regulations and Oregon case 11 7, t single citation to arguing the substance of s an alternate argument, 1 He authority, process claim. did, but however, not while Specifically, as r alleged that the reconstitution of his criminal history score Amendment right to a j 3 a 33. pp . s violated his Sixth tal: Moreover, a de is entitled to a jury trial on whether charges arise out of the same or separate criminal s s t nding authorizes the sentencing court to er sentence. State v. Ice, 343 Or 248, 170 (holding that criminal defendants a Sixth Amendment right to a jury trial on whe out of the same or separate criminal t finding authorizes the imposition of consecutive sentences). Determining that defendant's cr 1 history score was B rather than I authoriz sentencing court to impose a greater sentence on Counts 8, 9, 10, and 11. Defendant did not have a jury t al on t factual findings that authoriz the sentences. Accordingly, the trial court 's Sixth Amendment right to a jury fendant's criminal history score. Id at 32-33. It is not t to predicat 8 petitioner's single federal citat 1 due process argument, but ins on an alternate Sixth Amendment theory rega OPINION AND ORDER was r to a jury trial. As a result, petitioner failed to fairly present his Ground Two claim to the Oregon Court of Appeals. Because petitioner may no longer present either his Ground One or Ground Two procedurally claims to defaulted. Oregon's Petitioner state has courts, not they are argued cause and prejudice, nor has he made a colorable showing of actual innocence sufficient to excuse his default. Relief on the Petition is therefore denied. CONCLUSION For the reasons identified above, Habeas Corpus (#1) is DENIED. The the Petition for Writ of 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). DATED this Owen M. Panner United States District Judge 9 - OPINION AND ORDER
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