Cook v. Hall, No. 1:2010cv00355 - Document 34 (D. Or. 2012)
Court Description: Opinion & Order Petition for Writ of Habeas Corpus 1 denied; Court declines to issue a Certificate of Appealability. Ordered & Signed on 2/1/12 by Judge Owen M. Panner. (kf)
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Cook v. Hall Doc. 34 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MEDFORD DIVISION ERIC DWAYNE COOK, Case No. 1:10-CV-355-PA Pet ioner, v. GUY HALL, OPINION AND ORDER Respondent. Eric Dwayne Cook, #14485873 82911 Beach Access Road Umatilla, OR 97882-9419 Attorney for Petitioner John R. Kroger, Attorney General Lynn David Larsen, 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. Pet U.S.C. ioner brings this habeas corpus case pursuant to 28 2254 challenging the legality of his underlying state § court convictions and sentences. For the reasons that follow, the Petition for Writ of Habeas Corpus (#1) is denied. BACKGROUND On September 10, 2001, the Marion County Grand Jury indicted petitioner on two counts of Sexual Abuse in the First Degree, two counts of Rape in the Second Degree, Sodomy in the Second Degree, and Rape in the Third Degree for crimes he committed over the course of ve years against a girl who was nine years old when the abuse began. Respondent's Exhibit 102. In 2002, petitioner pled guil ty to Rape in the Third Degree and agreed to proceed to a stipulated facts trial on the charges of Rape in the Second Degree and Sodomy in the Second Degree. dismiss Degree. the most serious In exchange, t charges State agreed to of Sexual Abuse in the First Respondent's Exhibits 103, 104. The Plea Petition indicated that the charge of Rape in the Third Degree carried a presumptive sentence of 13 14 months with a maximum upward departure Exhibit 103, p. 3. sentence At sentencing, of 28 months. the trial Respondent's judge imposed an upward departure sentence of 60 months for Rape in the Third Degree due to the ctim's vulnerability and petitioner's violation of a position of trust. Respondent's Exhibit 105, p. 2 - OPINION AND ORDER 27. The court also sentenced petitioner to mandatory minimum sentences of 75 months each on the other three charges, which the consecutively to each other and to the sentence court ran Rape in the Third Degree for a total of 285 months in prison. Id at 26. court also imposed restitution in the amount of $21,600. The Id at 27. Petitioner directly appealed the restitution ordered by the trial judge, an issue Respondent's Exhib later fil two to 106; which objected at sentencing. Respondent's Exhibit 105, supplemental unpreserved challenge to he appellate p. briefs 28. raising He an the court's upward departure sentence concerning his Rape in the Third Degree conviction that was not raised at sentencing. Respondent's Exhibit 107, 109. The Oregon Court of Appeals issued a per curiam opinion affirming the trial court and citing to State v. Gornick, held that unpreserved Apprendi considered "plain error" in the absence of 340 Or. 160 and Blakely (2006), which claims are not Oregon such that they can be considered preservation at the trial court level. Respondent's Exhibit 111i see also Ailes v. Portland Meadows, Inc., 312 Or. 376, 381-82 823 P.2d 956 (1991) (addressing plain error exception to Oregon's preservation requirement) . Petitioner sought review by the Oregon Supreme Court which was denied. Respondent's Exhibit 113. Petitioner next filed for post-conviction relief ("PCR") in Umatilla County where the PCR trial court denied relief on all of 3 OPINION AND ORDER his claims. Respondent' s Exhibit 125. On appeal, pet ioner pursued a single claim that his trial attorney was ineffective when he failed to obj ect to the court's imposition of sentence for Rape in the Third Degree. departure Respondent's Exhibit 127. The Oregon Court of Appeals summarily affirmed the decision of the PCR t al court on this claim, and the Oregon Supreme Court denied review. Pet Respondent's Exhibits 130, 132. ioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in which he raises the llowing claims: Ground One: Ineffective assistance of couns Supporting Facts: Trial counsel il to object to defendant's sentencing under Apprendi and was therefore not included on the record. Defendant was given an upward departure, consecutive sentences, a judicially-created aggravating factor, increased criminal history score, and $21,600 restitution based on facts not found by a jury beyond a reasonable doubt. The error on the record is pIa Ground Two: Denial of due process, and fair t al under State and Federal Constitutions. Supporting Facts: Defendant's plea was not knowing, intelligent, and voluntary. Defendant was mislead in violation of Apprendi. Waiver of jury t I was not knowing, intelligent, and voluntary regarding facts used to give defendant departure and consecutive sentences. Trial counsel was ineffective under State and Federal Constitutions for failing to explain above and not obj ecting to sentences under Apprendi which was decided 2 years prior. Ground Three: Denial of due process, use of false evidence. 4 - OPINION AND ORDER knowing Supporting Facts: Defendant's pre-sentence investigation (P.S.I.) contained falsely stated facts never charged, or proven beyond reasonable doubt by a jury. The court did not strike this from the record and it became a formal tool for sentencing defendant. Further, this false information will be used for duration of defendant's confinement and subsequent release under post-prison supervision. The P.S.I. should have been corrected. This document was used against defendant solely for the purpose of sentencing. Ground Four: Failure to adhere to State law requirements. Supporting Facts: Defendant's sentencing-grid/criminal history score wasn't computed properly and the sentence received was more than the presumptive sentence. Therefore, the State failed to abide by its own statutory commands. Ground Five: Sentence was disproportionate. Supporting Facts: Defendant's sentence was harsher than most other sentences. Cruel and unusual punishment. For any and all reasons listed above. Respondent asks the court to deny relief on the Petition because, with the exception of the portion of Ground One dealing with counsel's failure to object to the imposition of a departure sentence, all of petitioner's claims are procedurally defaulted. Respondent also argues that meritless. III III III 5 - OPINION AND ORDER all of petitioner's claims are DISCUSSION I. Exhaustion and Procedural Default A. A Standards habeas petitioner must state I s senting them to t exhaust his c~aims highest court, ei by fairly through a direct appeal or collateral proceedings, before a federal court will consider the merits of those Rose v. Lundy, 455 U.S. 509, 519 (1982). "As a general rule, a petitioner satisfies the exhaustion requirement by appropr t state courts, aims. irly presenting the federal claim to state courts . thereby I . in the manner required by the affording the state courts a meaningful opportunity to consider allegations of legal error.'" Moorer 386 F.3d 896, Hillery, 474 U.S. 254, 257, sent to 915-916 (9th Cir. 2004) (1986)). Casey v. (quoting Vasquez v. If a habeas litigant iled s claims to the state courts in a procedural context in which the merits of the claims were actually considered, claims have not the fairly presented to the state courts and are therefore not eligible for federal habeas corpus review. Castille v. Peoples, 489 U.S. 346, 351 (1989). A petitioner is deemed to have "procedurally defaulted" his im if he iled to comply with a state procedural rule, failed to raise the claim at the state level at all. Ca 722, Edwa or v. ter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 750 (1991). If a petit 6 - OPINION AND ORDER r has procedurally defaulted a claim in state court, un s the a federal court will not review the claim ioner shows "cause and prejudice" for the failure to present the constitutional issue to state court, or makes a colorable showing of actual innocence. Gray v. U.S. 152, 162 (1996); Sawyer v. Whitley, 505 Murray v. Carrier, B. u.s. 518 Netherland, 333, 337 (1992); 477 U.S. 478, 485 (1986). Analysis As noted above, preserved claim: restitution itioner's direct appeal included a single whether the trial hout considering Respondent's Exhibit 106. court properly imposed titioner's ability to pay it. This claim was framed solely as one concerning state law, thus petitioner did not advance any federal claims on direct appeal which are eligible for federal habeas corpus proceeding. any of petit Because the time During petit not r's PCR appeal, inef ive sed long ed. whether the PCR trial court erred in was r presenting r's federal claims on direct appeal ago, they are procedurally defau counsel review in this when he pursued a single c ing that counsel itioner's trial iled to object to petitioner's departure sentence under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Respondent's titioner raised this claim in to the Oregon Supreme Court, for habeas Exhibit Because appropriate procedural context is fairly present Petitioner's remaining c 7 - OPINION AND ORDER 127. ims of and el ible ctive assistance of counsel which not fai II. abandoned during his PCR appeal were y presented, and are now procedurally defaulted. The Merits A. An Standard of Review application a writ granted unless adjudication a decis that was: of habeas corpus shall not be the claim in state court resulted in (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by t Supreme Court of the United States;" unreasonable determination of the (2) "based on an cts in light of the evidence State court proceeding." presented in or 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 dence. clear and convincing A state established court decision precedent if the 28 U.S.C. is 2254 (e) (1). § "contrary state court to clea applies contradicts the governing law set forth in a rule y that Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decis and neverthe precedent." ss arrives Wi 11 i am s v. at a Ta y 1 or, result of [t different 52 9 u. S . Under the "unreasonable application" clause, a may grant relief "if the state court Supreme] Court 3 62 , from 4 05- 0 6 [that] ( 2 0 0 0) . ral habeas court identifies the correct governing legal principle from [the Supreme Court's] decisions but 8 - OPINION AND ORDER 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 Id at 410. more than incorrect or erroneous. state court's application of clearly established objectively unreasonable. law must B. Id at 409. Analysis Because no Supreme Court precedent is directly on point that facts of this case, the court uses the general corresponds to t two-part test the whether petitioner Knowles v. Supreme Court received 129 Mirzayance, has established ineffective S. Ct. to assistance 1411, 1419 determine of counsel. (2009). First, petitioner must show that his counsel's performance fell below an objective standard of reasonableness. 466 U.S. 668, 686 87 (1984). counsel's per that the rmance, conduct falls wi thin the "wide range of reasonable petitioner must show that his counsel's per petitioner probabili ty that, t the a strong presumption Id at 689. udiced the defense. whether Washington, Due to the difficulties in evaluating courts must indul professional assistance." Second l Strickland v. but The appropriate test can for show "that counsel's there unpro rmance for prejudice is is a reasonable ssional errors, of the proceeding would have been different." the at 694. A reasonable probability is one which is sufficient to undermine confidence 9 in the outcome OPINION AND ORDER of the trial. Id at 696. When j f S general standard is combined with t ckland r S standard of review governing 28 U.S.C. § 2254 habeas corpus cases, the result is a "doubly deferent 1 judicial review." 129 S.Ct. Mirzayance, at 1420. The Supreme Court decided Apprendi more than two years prior to petitioner's sentencing. In Apprendi, the Supreme Court held that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." rcui t 530 U.S. at 490. in described permissible Schardt v. the in country Apprendi under Payne, the Oregon's state courts and every federal reasoned that constituted range of 414 F.3d 1025, the the "statutory maximum" maximum statutory 1035 punishment penalties (9th r. 2005); allowed. Peralta- Basilio v. Hill, 203 Or. App. 449, 453-54,126 P.3d 1 (2005); State v. Dilts, 179 Or. App. 238, 39 P.3d 276 (2002). Pursuant to this widely shared interpretation, an Oregon litigant convicted Rape the Third Degree could only raise a successful Apprendi claim to a court imposed departure sentence if the trial judge imposed a sentence exceeding 5 years. l Two years after titioner's sentencing, the Supreme Court went one step further and held that "the 'statutory maximum' I Rape in the Third Degree is a ass C felony Oregon. ORS 163.355. Pursuant to ORS 161.605, Class C felonies are punishable by up to five years in prison. 10 - OPINION AND ORDER for . . Apprendi purposes is the maximum sentence a judge may impose solely the facts on the basis by the defendan t. " (citation omitted) than just compel akely v. Washington, 542 U.S. 296, 303 (2004) (emphasis apply Apprendi; original). created a it Thus, Blakely "did more new rule that was by Apprendi or its progeny." 1 0 2 5, 1 0 3 5 (9 th r. 2005). Scha v. Payne, 414 F.3d itioner's position to the presumptive term contemplated by the sentencing guidel guidelines presumption subsumed statutory parameter was, itself, cons In not Under Blakely, a trial judge could only fendant in sentence a jury verdict or admit ected in s. within In other words, the broader 5-year red a "statutory maximum." itioner's case, the statutory maximum was 13-14 months, the sumptive sentence under the applicable guidelines. Respondent's Exhibit 103, p. 3. In his only claim prope argues that his trial atto y before is court, itioner was constitutionally ineffective for failing to object to the trial court's imposition of an upward departure sentence based on facts not proven to a jury beyond a reasonable doubt. counsel Pet did not But at the time of petitioner's sentencing, have the benefit of the akely decision. ioner cannot fault counsel based upon his failure to predict Blakely because object " Strickland does not mandate ly reasonable advice under prevailing Sophanthavong v. 11 Palmateer, OPINION AND ORDER 378 F.3d 859, prescience, only sional norms. " 870 (9th eir. 2004) (c Strickland, 466 U.S. at 690); see also Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (lawyers not required to antic decis be s, conduct). object and conduct must eva r As a result, counsel's ed at the time e t rmance did not fall below an standard of reasonableness, thus the state court decis denying relief unreas on this claim is application of, c neither contrary to, nor an y established federal law. CONCLUSION reasons identified above, For Habeas Corpus (#1) is DENIED. The court Petition for Writ of declines of Appealability on the basis Certi made a s to issue a t petitioner has not tantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 22S3(c)(2J. IT IS SO ORDERED. DATED t __ s __~/ day of February, 2012. Owen M. Panner United States District Judge 12 - OPINION AND ORDER
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