Schaper v. Mills, No. 1:2009cv01286 - Document 41 (D. Or. 2011)
Court Description: Opinion and Order. The Petition for Writ of Habeas Corpus 26 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. Signed on 5/16/2011 by Judge Owen M. Panner. (dkj)
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Schaper v. Mills Doc. 41 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION DAVID HENRY SCHAPER, Civil No. 09-1286-PA Petitioner, v. DON MILLS, OPINION AND ORDER Respondent. Nell Brown 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. tioner brings u. S. C. this habeas corpus to 28 2254 challenging the legality of his underlying state § convictions for Sodomy and Sexual Abuse. follow, case pursuant the Amended Pet For the reasons that ion for Writ of Habeas Corpus [26J is denied. BACKGROUND tioner pled guilty in Washington County to two counts of Sodomy in the First Degree and one count of Sexual Abuse First Degree children, for crimes committed aga his three all of whom were under the age of 12. Exhibit 103. the Respondent's The parties were free to argue for a sentence ranging between 100 and 275 months, and the trial court ultimately imposed sentences totaling 240 months after concluding that "this is one of the most horrific cases that I have ever had to preside over." Respondent's Exhibit 105, p. 28. Peti filed a appel oner took a direct appeal, where his appointed counsel Balfour brief a review,l and pet finding no meritorious ioner filed his own mer issues s brief. for The 1 Balfour procedure provides that counsel need not ethically withdraw when faced with only frivolous issues. Rather, the attorney may file Section A of an appellant's brief containing a statement of the case suffi ent to "apprise appellate court of the jurisdictional basis for the appeal." The defendant may then the Section B segment of the brief containing any assignments of error he wishes. State v. Balfour, 311 Or. 434, 451-52, 814 P.2d 1069 (1991). 2 - OPINION AND ORDER Oregon Court of Appeals af opinion, rmed and the petitioner's sentence without Oregon review. conviction Supreme Court and Respondent's Exhibits 109, 110. Petitioner next filed for post-conviction relief umatilla County where the PCR t his c ims. affirmed PCR trial court Supreme Court denied review. Petitioner led his ("PCR") al court denied relief on Respondent's Exhibit 126. the denied I in of The Oregon Court of Appeals without opinion, and the Oregon Respondent's Exhibits 126, 129, 130. Amended Pet ion for Writ of Habeas Corpus on September 3, 2010 raising thirteen grounds for relief. Respondent asks the court to deny reI because: (1) some claims were not f on the Amended Petition irly presented to the State's highest court in a manner in which they would be considered; and (2) the claims which were fairly presented to Oregon's state courts were denied in a decision that was neither contrary to, nor an unreasonable application of, clearly established federal law. DISCUSSION I. Unargued Claims In ngle s supporting memorandum, claim: ineffective when whether he trial failed to petitioner elects to brief a counsel object was to const utionally allegedly incorrect information contained in the presentence report. [38]. Although Memo in Support raises twelve additional grounds for reli in his Amended Petition which respondent addressed in his Response, 3 - OPINION AND ORDER ---- pet _ ... -------- ioner has not supported these claims with any briefing. The court has nevertheless reviewed petitioner's unargued claims on the existing record and determined that they do 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.") i see also Silva v. 279 F. 3d 825, 835 (9th Cir. 2002) (petitioner bears the burden of proving Woodford, his claims). II. Standard of Review An application for a writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court's findings of fact are presumed correct, and petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. A state court established precedent decision if the 28 U.S.C. § 2254(e) (1). is "contrary state court clearly to applies a rule that contradicts the governing law set forth in [the Supreme Court's] 4 - OPINION AND ORDER cases" or "if the state court confronts a set of facts that are materially indistinguishable from a de and nevertheless precedent." arrives Williams v. at a sion of [the Supreme] Court result Taylor, different 529 U.S. 362, from 405-06 [that] (2000). Under the "unreasonable application" clause, a federal habeas court may grant relief "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id at 413. The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. Id at 410. The state court's application of clearly established law must be objectively unreasonable. Id at 409. III. Ground 1(10): Ineffective Assistance of Counsel According to petitioner, ineffecti ve when he failed trial counsel was constitutionally to obj ect to and rebut inaccurate information contained in the presentence report upon which the trial court relied as a basis for imposing consecutive sentences. The Ninth Circuit has concluded that a habeas corpus petitioner cannot prevail on an ineffective assistance of counsel claim arising out of a non-capital sentencing proceeding because there is no clearly established federal law on point. Davis v. Grigas, 443 F.3d 1155, 1158 (2006); Cooper-Smith v. Palmateer, 397 F.3d 1236, 1244 (9th Cir. 2004); see also Moses v. Payne, 555 F.3d 742,754-55 (9th Cir. 2009) (where no Supreme Court decision squarely addresses 5 - OPINION AND ORDER an issue, § 2254 (d) (1) bars relief). Because pet ioner ts counsel's performance as it relates to his sentencing, he cannot prevail on this claim. CONCLUSION For the reasons identified above, Habeas Corpus [26J is DENIED. Certificate of Appealabil The the Petition for Writ of court declines to issue a y 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 Iff day of Owen M. Panner United States District Judge 6 - OPINION AND ORDER
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