Acevedo v. Belleque
Filing
28
Findings & Recommendation: Petition for Writ of Habeas Corpus 2254 2 should be denied. Objections to the Findings and Recommendation are due by 2/11/2009; response(s) due 2/25/09. Signed on 1/27/09 by Magistrate Judge Dennis J. Hubel. (see formal 4-page f&r) (kb)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON GILARDO LEON ACEVEDO, Petitioner, v. BRIAN BELLEQUE, Respondent. Alison M. Clark Federal Public Defender's Office 101 SW Main Street, Suite 1700 Portland, Oregon 97204 Attorney for Petitioner John R. Kroger Attorney General Jacqueline Sadker Assistant Attorney General 1162 Court Street N.E. Salem, Oregon 97301-4096 Attorneys for Respondent HUBEL, Magistrate Judge Petitioner, an inmate at the Oregon State Penitentiary, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For CV. 07-1188-HU FINDINGS AND RECOMMENDATION
1 -- FINDINGS AND RECOMMENDATION
the reasons set forth below, the petition should be denied, and this proceeding dismissed. BACKGROUND On or about July 8, 2004, petitioner was convicted of
Attempted Murder with a Firearm, Assault in the Second Degree, and Attempted Assault in the Second Degree. Resp. Exh. 101 at 2.
Petitioner was sentenced to concurrent and consecutive sentences totaling 134 months. Petitioner had thirty days from the entry of judgment to file a direct appeal, but failed to do so. Approximately two years
later, on September 6, 2006, petitioner filed a motion to correct his sentence, which was denied by the trial court on November 8, 2006. Resp. Exh. 102. The Oregon Court of Appeals dismissed
petitioner's subsequent appeal, and the Oregon Supreme Court denied review. The appellate judgment issued on September 13, 2007. Petitioner did not seek state post-conviction
Resp. Exh. 103. relief.
On or about August 8, 2007, petitioner filed the instant proceeding. Petitioner's sole ground for relief is that his
consecutive sentence is unconstitutional because it is based upon judicial fact finding in violation of the rules announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). /// 2 -- FINDINGS AND RECOMMENDATION
DISCUSSION Pursuant to 28 U.S.C. § 2244(d)(1), a one-year period of limitation applies to an application for a writ of habeas corpus filed "by a person in custody pursuant to the judgment of a State court." It is undisputed that petitioner's habeas petition was Petitioner contends
filed beyond the one-year limitation period.
that "[a]ny lapse . . . in filing . . . should be tolled in the interests of justice" based because upon the his consecutive announced equitable sentence in is
unconstitutional Additionally,
rule that
Blakely. is
petitioner
argues
tolling
appropriate due to conditions of his confinement, and his lack of proficiency with the English language. The U.S. Supreme Court recently held that the rules announced in Apprendi and Blakely do not apply to Oregon's consecutive sentencing statute. Oregon v. Ice, 2009 WL 77896 (Jan. 14, 2009).
Accordingly, assuming that there are equitable grounds for tolling the limitation period, and assuming that petitioner could overcome his procedural default of available state remedies, habeas relief is not warranted given the recent holding in Ice. For all of these
reasons, petitioner's petition for writ of habeas corpus (#2) should be denied. SCHEDULING ORDER The above Findings and Recommendation are referred to a United States District Judge for review. 3 -- FINDINGS AND RECOMMENDATION Objections, if any, are due
February 11, 2009.
If no objections are filed, the Findings and
Recommendations will go under advisement on that date. If objections are filed, a response to the objections is due February 25, 2009, and the review of the Findings and
Recommendation will go under advisement on that date. DATED this __27th__ day of January, 2009. /s/ Dennis J. Hubel _____________________________ Dennis J. Hubel United States Magistrate Judge
4 -- FINDINGS AND RECOMMENDATION
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