Gladwell v. DeCamp, No. 3:2010cv00061 - Document 44 (D. Or. 2012)
Court Description: OPINION AND ORDER. The Court FINDS Petitioner did not procedurally default his claim that he received constitutionally ineffective assistance of appellate counsel based upon counsel's refusal to file a notice of appeal. Respondent shall have until November 5, 2012, to file a response addressing the merits of this claim. Petitioner shall have until November 30, 2012, to file a reply. The merits of the claim shall be taken UNDER ADVISEMENT on November 30, 2012. IT IS FURTHER ORDERED that habeas corpus relief is DENIED on the remaining grounds for relief alleged in the Petition for Writ of Habeas Corpus. IT IS SO ORDERED. Signed on 10/16/2012 by Judge Anna J. Brown. (gw)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION JONATHAN DAVID GLADWELL, Civil No. 3:10-cv-00061-BR Petitioner, OPINION AND ORDER v. JOE DeCAMP, Superintendent, Deer Ridge Correctional Institution, Respondent. KRISTINA S. HELLMAN Assistant Federal Public Defender 101 SW Main Street Suite 1700 Portland, OR 97204 Attorney for Petitioner ELLEN F. ROSENBLUM Attorney General ANDREW D. HALLMAN Assistant Attorney General Department of Justice 1162 Court Street NE Salem, OR 97301 Attorneys for Respondent 1 - OPINION AND ORDER - BROWN, Judge. Petitioner, Institution, U.S.C. § an brings 2254. inmate this at habeas the Deer corpus Ridge action Correctional pursuant to 28 For the reasons that follow, the Court DENIES IN PART the Petition for Writ of Habeas Corpus and ORDERS further briefing on the merits of Petitioner's claim of ineffective assistance of appellate counsel. BACKGROUND On October 16, 2003, a Jefferson County grand jury indicted Petitioner on twelve charges of Sexual Abuse in the First Degree. The charges arose from allegations by twin brothers that Petitioner touched their genitals while they were on an overnight camping trip with Petitioner. In May 2005, the prosecution. Petitioner entered into a plea agreement with As part of the agreement, the District Attorney filed an additional Information charging Petitioner with one count of Attempted Sodomy in the First Degree. agreement, Pursuant to the plea Petitioner entered an Alford plea to two charges of Sexual Abuse in the First Degree from the original indictment and to Attempted Sodomy as charged in the information. The parties stipulated to a sentence totaling 100 months of imprisonment and 10 years of post-prison supervision. sentencing hearing, the trial right to appeal: 2 - OPINION AND ORDER - At the conclusion of the judge advised Petitioner of his THE COURT: [Y] ou have the right to appeal the judgment the Court's imposed. That appeal would be limited to the constitutionality of the sentence you received. If you wish to appeal the sentence, notice needs to be served on the Court within 30 days. If you can't afford the cost of the appeal, the Court will appoint you an attorney at state expense. Resp. Exh. 112, p. 11. On June 7, 2005, The judgment was entered on May 27, 2005. Petitioner wrote a Office of Public Defense Services appeal the judgment of the trial conviction and sentencing. letter to the Oregon ( "OPDS") court stating "I wish to in my recent criminal I request your office's assistance and representation in this appeal." Pet. Exh. 1. Attached to the letter was a form questionnaire Petitioner had completed which provided information about Petitioner and his case. Id. Petitioner concluded the letter "[p] lease notify me immediately to confirm that you have received this letter and that your office will be filing my notice of appeal." Id. On June 22, 2005, attorney John Susac from OPDS sent letters to Petitioner and to Petitioner's trial attorney requesting more information about potential claims to raise on appeal. letters stated: If we receive information from you or your attorney that enables us to identify an issue that is (1) properly preserved by motion or objection and (2) can be reviewed on direct appeal, we will file a notice of appeal on your behalf[,] If we receive information from you or your attorney that enables us to identify a sentencing provision that (1) increased your sentence above the statutory maximum based on judicial fact findings and (2) was not based on a stipulation, 3 - OPINION AND ORDER - The plea agreement, or waiver, we will be able to file a notice of appeal on your behalf. Pet. Exhs. 2, 3. The letters did not include information about filing a pro se appeal or filing an appeal utilizing a Balfour brief. 1 On July 18, 2005, Susac sent a letter to Petitioner informing Petitioner he would not file a notice of appeal on Petitioner's behalf because his sentences were stipulated to as part of the plea agreement. Pet. Exh. 5. This letter also did not contain information about filing a notice of appeal pro se, about seeking assistance elsewhere for an appeal, or about Oregon's Batson procedure. On August 29, 2005, Petitioner sent another letter to Susac containing another request to file a notice of appeal. 6. Pet. Exh. He indicated that if Susac would not file a notice of appeal, his case should be transferred to another attorney who would do so. Id. On September 19, 2005, Susac sent Petitioner a letter in which he again declined to file a notice of appeal. Pet. Exh. 7. Like the prior correspondence, the letter was silent as to options 1 Under Or. R. App. P. 5.90, if court-appointed counsel finds no meritorious issues for appeal, he or she may submit a brief with two parts. State v. Balfour, 814 P.2d 1069 (Or. 1991). Section A is signed by counsel and provides a brief statement of the case. Section B is prepared by the petitioner, and may include any claim of error that the petitioner wishes to assert. 4 - OPINION AND ORDER - beyond having Susac file a notice of appeal. By this date, Petitioner was precluded by Oregon law from filing an appeal. 2 On October 16, 2006 , Petitioner filed a petition for state post-conviction relief ( "PCR") . Following an evidentiary hearing, the PCR trial judge denied relief. Petitioner appealed, but the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Gladwell v. Hill, 228 Or. App. 367, 208 P.3d 1057, rev. denied, 347 Or. 258, 218 P.3d 540 (2009). On January 19, 2010 , Petitioner filed his Petition for Writ of Habeas relief. the grounds for The Court appointed counsel to represent Petitioner. In Brief Corpus in in Support this Court of Amended alleging fourteen Petition for Habeas Corpus 3 , counsel addresses two claims: Ground Two: My right to a criminal appeal was violated because Counsel Alexander and the Office of Public Defense Services refused to file a noti ce of appeal on my behalf after I repeatedly requested them to do so. My rights to effective assistance of counsel under the VI amendment to the United States Constitution and due process under the XIVth amendment to the United States Constitution were violated. 2 Under Oregon law, a criminal defendant has 30 days to file a notice of appeal. Or. Rev. Stat. § 137.071(1). Oregon law does provide a procedure under which an appellant can request leave to file a late notice of appal, but those requests must be filed within 90 days of the entry of judgment. Or. Rev. Stat. § 138.650 (2) (a), (b). As such, Petitioner had until August 25, 2005, to re~uest leave to file a late notice of appeal. No Amended Petition was ever filed, proceeding on the original, pro se Petition. 3 5 - OPINION AND ORDER - so this action is Three: The state failed to disclose the existence of exculpatory evidence; had I been aware of the excluded evidence, I would not have entered the Alford pleas and I would have taken the case to trial. This incident is a violation of Brady v. Maryland. My rights under the XIVth amendment to the United States Constitution were violated. Further, trial court counsel was ineffective in violation of my rights under the VI amendment to the United States Constitution. Ground Respondent contends Petitioner procedurally defaulted the claim alleged in Ground One because he did not fairly present it on appeal from the denial of state post-conviction relief. Respondent contends relief is not warranted on the claim alleged in Ground Two because the PCR court decision denying relief on Finally, Respondent argues this claim is entitled to deference. Petitioner is not entitled to relief on the remaining claims alleged in the Petition but not addressed in the Brief in Support. DISCUSSION I. Procedural Counsel Default - Ineffective Assistance of Appellate It is well established that before seeking federal habeas corpus relief, a state prisoner must _ exhaust his available state remedies by appropriate fairly presenting state courts. his Baldwin federal v. claims Reese, 541 U.S. 29 Peterson 2003). "A petitioner fully and fairly presents a claim to the Lampert, state courts if he presents the claim: and ( 2) through the proper vehicle; 6 - OPINION AND ORDER - 1155-56 27, the (2004); v. 319 F. 3d 1153, to (9th Cir. (1) to the proper forum; and ( 3) by providing the proper factual and legal basis for the claim." Scott v. Schriro, 567 130 F. 3d 573, 582 (9th Cir.), cert. denied, S. Ct. 1014 (2009); Insyx iengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (citations Fair omitted) . presentation requires that the petitioner describe both the operative facts and the federal legal Davis v. theory on which his claim is based. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008). When a state prisoner fails to fairly present 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. Cir. 2004), 501 U.S. Thompson, review cert. of denied, 722, 545 U.S. 735 n.1 demonstrates cause 1146 (1991). procedurally defaulted petitioner 386 F.3d 896, Casey v. Moore, the Coleman (9th v. Federal habeas corpus claims for (2005); 920 is barred unless procedural default the and actual prejudice, or that the failure to consider the claims will Smith v. result in a miscarriage of justice. 1127, 1139 Coleman, In (9th Cir. 2007), cert. denied, Petition for Baldwin, 555 U.S. 830 510 F.3d (2008); 501 U.S. at 501. his First Amended Petitioner alleged, inter alia, the Post-Conviction Relief ineffective assistance of appellate counsel claim for failure to file a notice of appeal. Resp. Exh. 113, p. 26. On appeal from the denial of PCR relief, 7 - OPINION AND ORDER - court - appointed PCR appellate counsel raised two assignments of error : (1) the state ' s failure to disclose exculpatory evidence ; and (2) Petitioner ' s plea was not made knowingly, intelligently , and voluntarily. Counsel, however , also attached a copy of the Amended Petition for Post-Conviction Relief as an excerpt of the record . Petitioner sought and received leave from the Oregon Court of Appeals to file a Pro Se Supplemental Brief . App . P. 5 . 92 ( 2) , unless the court orders Pursuant to Or. R. otherwise , Supplemental Brief " shall be limited to five pages." a Pro Se Petitioner sought leave to file an extended Pro Se Supplemental Brief , but the Oregon Court of Appeals denied Petitioner ' s request. Petitioner ' s ProSe Supplement Brief set forth and argued one assignment of error , that the indictment was void . However , the Brief also included the following statement : Complete Preservation of All Claims As Enumerated in Petitioner's Amended Petition In an effort to satisfy the " federalization " requirement and to preserve all his original claims for federal habeas corpus review, Petitioner incorporates all claims from his amended petition . Petitioner objects to the Court's five-page limitation as a constitutional violation of: his right of access to the courts , due process , and opportunity to seek redress . Petitioner gave his counsel a listing of claims for appellate review , but Counsel did not follow Petitioner ' s instructions. Resp. Exh . 351 , p. 1 . 8 - OPIN I ON AND ORDER - After the Oregon Court of Appeals affirmed without opinion, appointed PCR appellate counsel filed a Petition for Review with the Oregon Supreme Court raising the same two questions asserted in the opening brief to the Oregon Court of Appeals. Petitioner sought and obtained leave to file a Supplemental Pro Se Petition for Review, in which he included the following statement: For the purposes of possible subsequent Federal habeas corpus review, petitioner hereby incorporates by reference the full content and all claims of his Amended Petition for Post-Conviction Relief 2 within this Pro Se Supplemental Brief, and requests that this Court consider all of his enumerated claims review. Resp. Exh. 354, p. 2. stated " 2 See Petitioner Is The footnote Amended Petition for Post-Conviction Relief." Based on this record, procedurally defaulted his Respondent claim of Id. argues ineffective Petitioner assistance of appellate counsel because Petitioner did not "fairl y present" the claim to the Oregon Court of Appeals by merely attempting to incorporate the claim raised in his PCR petition on appeal without any additional argument in his briefing. Respondent contends this was not sufficient to fairly present those claims to the Oregon appellate courts and the time to do so has now expired. A properly exhausted constitutional claim should generally be presented within the four corners of the petitioner's appellate briefing. Castillo v. McFadden, cert. denied, 546 U.S. 818 (2005). 9 - OPINION AND ORDER - 399 F.3d 993 , 1000 (9th Cir.), However, in Farmer v. Baldwin, 346 Or. 67, 74, 205 P.3d 871 (2009), the Oregon Supreme Court has opined that Oregon law recognizes incorporation of arguments from an appellant's brief into a petition for review to the Supreme Court. In Farmer, the court clarified that it will consider the briefs filed in the Court of Appeals and other documents attached to the appellate briefing that were incorporated by reference to identify Farmer, and 205 evaluate P.3d at a party's 874-75. legal The arguments court for explained review. that the appellate briefing "need not be persuasive, correct, thorough or even reasonable," but must identify the claim of error that the prisoner wants to see corrected. Respondent argues Farmer Id. at 878. is distinguishable from the Petitioner's case because Farmer is limited to the situation where a prisoner attaches a copy of his or her PCR petition as "Section B" of a Balfour brief. Therefore, if a petitioner attaches a copy of his or her PCR petition as Section B of a Balfour brief in the Oregon Court of Appeals, and then cross-references the brief in the petition for review in the Oregon Supreme Court, presented Oregon's Respondent in the Supreme notes PCR petition have been Court. Farmer, appointed appellate at fairly 878. counsel the claims presented Here, did not however, file Balfour brief, but instead asserted two assignments of error. 10 - OPINION AND ORDER - to a In Farmer, the Oregon Supreme Court focused on the following language from Or. R. App. P. 5.90(1) (b) (I) regarding the contents of a Balfour brief's Section B: "[t]he client shall attempt to state the claim and any argument in support of the claim as nearly as practicable in proper appellate brief form." at 877. Farmer, 205 P.3d Based on the " key terms" of "att empt " and "as nearly as practicable," the Oregon Supreme Court concluded that the rule set forth a "relaxed standard" regarding presentation of claims, and perfect compliance with the rules of appellate procedure was not required to present a claim for review. The Oregon appellate rule governing Pro Supplemental Se Briefs contains terms identical to Rule 5.90 governing Section B of a Balfour brief. Rule 5.92(c) provides: attempt a to practicable 5.92(c). supplemental in proper appellant pro brief se brief form." as Or. nearly R. App. as P. Thus, this Court concludes the same fundamental concern that drove relaxed prepare "[t]he client shall the Oregon Supreme Court standard and permit in Farmer to incorporation by recognize reference in a a Balfour Section B exists when a Pro Se Supplemental Brief is filed under Or. R. App. P. 5.92. Respondent cites several cases from this District in support of the argument that Farmer should not be extended to a situation such as Petitioner's where a Pro Se Supplemental Brief is filed 11 - OPINION AND ORDER - rather than a Belleque, Hill, Balfour Section B filing, 2010 WL 3603781 2011 WL 740912 (D. (D. Belleque, 2010 WL 1141354 Or., Or., Sept. Feb. 22 , including Williams v. 13, Frazier v . 2010) , 2011), Cabine and (D. Or., Mar. 19, 2010) . v. These cases are, however, distinguishable. In Cabine, while supplemental brief, did not attempt claims from his to the Petitioner did file pro a se he raised only two assignments of error and incorporate PCR petition, or even mention the remaining which was attached to counsel's brief as an excerpt of the record. 4 In Williams, although the court found an attempt to incorporate by reference claims alleged in the PCR petition not sufficient to fairly present those claims, it is not apparent from the opinion that Petitioner attempted to do so by way of a Pro Se Supplemental Brief; in fact it appears the brief in question may have been filed by counsel. Finally, in Frazier, the court held the petitioner did not fairly present all the claims alleged in his PCR petition "thr ough the general statement in his pro se supplemental brief asking the court to 'fully review all issues for cumulative errors, which may amount 4 This Court has held repeatedly that the attachment of a PCR petition as an excerpt of the record to Section A of a Balfour brief, without more, is insufficient to fairly present the claims alleged in the PCR petition t o the Oregon Court of Appeals. See Tardy v. Belleque, 2011 WL 722773 (D. Or., Feb. 23, 2011) (citing cases) . 12 - OPINION AND ORDER - to ineffective assistance of counsel.'" Frazier, 2011 WL 740912, * 4. Here, in contrast, Petitioner specifically directed attention in the Oregon Court of Appeals to a review of the claims "enumerated in Petitioner's Amended Petition," and in the Oregon Supreme Court he again incorporated "the full content and all claims" of his petition and asked the court to "consider all his enumerated claims for review." In determining whether Petitioner's Pro Se Supplemental Brief's incorporation by reference of the claims alleged in his PCR petition was sufficient to fairly present those claims to the Oregon appellate courts, it is noteworthy that exhaustion requirement is intended to "ensure [] courts have the opportunity fully to the federal that the state consider federal-law challenges to a state custodial judgment before the lower federal courts may entertain a collateral attack upon that Duncan v. Walker, 533 U.S. 167, 178-79 (2001). judgment." It is not intended to be a procedural trap for the unwary pro se litigant. Slack v. McDaniel, 529 U.S. 473, 487 (2000); see also Sanders v. Ryder, 342 F.3d 991, 999 (9th Cir. 2003) (for the purposes of exhaustion, pro se petitions are held to a more lenient standard), 541 u.s. 956 (2004). 13 - OPINION AND ORDER - cert. denied Here, given the page restrictions placed upon Petitioner's Pro Se Supplemental Brief, his reference to his specific attempt to "federalize" his claims for future habeas corpus review, and the fact that he was briefing his additional claims without the assistance of counsel, this Court concludes Petitioner fairly presented and fully exhausted his claim of ineffective assistance of appellate counsel. See Mitchell v. Nooth, 2010 WL 3491520 (D. Or., (incorporation Aug. 3, supplemental 2010) brief properly by exhausted reference in pro claims), report se and recommendation adopted by 2010 WL 3491519 (D. Or., Aug. 30, 2010); McLain v. Blacketter, 2011 WL 4478483 (D. Or., Sept. 26, 2011) (same). Respondent, however, did not brief Petitioner's ineffective assistance of appellate counsel claim on the merits. notes the prevailing disregards specific notice appeal of unreasonable." (citing Peguero v. law holding acts v. in a that from the instructions Roe v. Rodriguez case defendant manner Flores-Ortega, United United States, States, 526 U.S. 23 that is "a The Court lawyer to file a professionally 528 u.s. 470, 477 395 u.s. 327 (1969) ( 1999)) . who Moreover, (2000) and under such circumstances the Supreme Court "pre sum [ es] prejudice with no further showing from the defendant of the merits of his underlying claims" because counsel's 14 - OPINION AND ORDER - error resulted in an "entirely non- existent" appeal. Id. at 484. Nonetheless, the Court concludes Respondent should be given the opportunity to brief the merits of this claim. II. Relief on the Merits - Brady Violation Under 28 U.S.C. § 2254(d) , an application for a writ of habeas corpus shall not be granted unless the adjudication on the merits in State court 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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. (2000), § 2254(d). In Williams v. Taylor, 529 U.S. 362 , 386-389 the Supreme Court construed this provision as requiring federal habeas courts to be highly deferential to the state court decisions under review. 1398-1402 (2011), the In Cullen v. Pinholster, 131 S.Ct. 1388, Court reiterated the nature of federal habeas review, highly deferential and limited federal review "t o the record that was before the state court that adjudicated the claim on the merits." " 1 Clearly established Federal law 1 is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." F.3d 943, 974 Lambert v. Blodgett, 393 (9th Cir.2004), cert. denied, 15 - OPINION AND ORDER - 546 U.S. 963 (2005). An ''unreasonable application" of clearly established federal law occurs when legal "the state court principle from [the identifies Supreme] the correct governing Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Lambert, 393 F.3d at 974 (citing Williams ) . "The state court's application of law must be objectively unreasonable." 529 U.S. at 411. Williams, "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state court decision applied clearly Woodford established v. federal Visciotti, 537 law U.S. erroneously 19, 24-25 or incorrectly." (2002) (internal citations omitted). "[A] habeas court must determine what arguments or theories . could have supporte[d] the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Pinholster, 131 S. Ct. at 1402 (citing Harrington v. Richter, 131 S. Ct. 770, 786 (2011)). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 131 S. Ct. at 786 (quoting Yarborough v. Alvarado, 541 u.s. 652, 664 (2004)). 16 - OPINION AND ORDER - In Brady v . Maryland, held that "the 373 U. S . 83 (1963), the Supreme Court suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment , irrespective of the good faith or bad faith of the prosecution ." Id . at 87. The Supreme Court has since made clear that the duty to disclose such evidence applies even when there has been no request by the accused , United States v . Agurs , 427 U. S . 97 , 107 (1976) , and that the duty encompasses impeachment evidence as well as exculpatory evidence , 676 (1985) . United States v. Bagley, For a Brady claim to succeed , issue must be exculpatory favorable or to the impeaching ; (2) accused, that ( 1) 473 U. S. the evidence at either because evidence 667, must it have is been suppressed by the prosecution, either willfully or inadvertently; and (3) prejudice must have ensued . 540 U.S . Banks v . Dretke , 668, 691 (2004); Strickler v . Greene, 527 U. S. 263, 281-82 (1999). For the purposes of Brady, "material" and " prejudicial" have the same meaning . (9th Cir . 2011). "materiality probability United States v . Kohring , 637 F . 3d 895 , 902 n.1 is that If the determined but for habeas petitioner by whether there the failure to pleaded is a disclose guilty , reasonable the Brady material , the [petitioner] would have refused to plead and would have gone to trial. " Smith , 17 -OPINION AND ORDER- 510 F . 3d at 1148 (quotations and citations omitted) . 5 would have chosen The test to determine whether a defendant to go to trial rather than plead "is an objective one that centers on 'the likely persuasiveness of the withheld information.'" 1454 (9th Cir. 1995) Sanchez v. United States, 50 F.3d 1448, (quoting Miller v. Angliker, 848 F.2d 1312, 1322 (2dCir. 1988)). Petitioner argues his plea was not knowing, intelligent, and voluntary because the state did not disclose a police report prior to Petitioner's Alford plea. The police report statements of the older sister of the victims. contains the The sister told a Washington County Sheriff Deputy that after the victims returned from the camping trip with Petitioner, one of them asked her what she would do if a friend did something to her but she did not want to get that person in trouble. 5 The sister asked what he was There is some question regarding the government's obligation to disclose Bradymaterial prior to entering into a plea agreement. See United States v. Ruiz, 536 U.S. 622, 629 (2 002) ("impeachment information is special in relation to the fairness of a trial, not in respect to whether a plea is voluntary") (emphasis in original); see also United States v. Controy, 567 F.3d 174, 179 (5th Cir. 2009) (applying Ruiz to exculpatory evidence and precluding the defendant from claiming failure to disclose an FBI report as a Brady violation), cert. denied, 130 S. Ct. 1502 (2010). In light of the Supreme Court's recent expansion of ineffective assistance of counsel principles to the plea agreement stage in Missouri v. Frye, 132 S. Ct. 1399 (2012) and Lafler v. Coooper, 132 S. Ct. 1376 (2012), however, the continued effect of Ruiz may well be called into question. This Court need not reach the issue, however, given the conclusion below that the PCR trial court's decision was not contrary to or an unreasonable application of Brady under the circumstances. 18 - OPINION AND ORDER - She encouraged talking about, but he was reluctant to tell her. the victim to tell her, and he eventually disclosed that Petitioner had touched him and his brother during the camping trip. The sister told the victim that, if he did not tell their father about the abuse, she would do so. In the state PCR proceedings, Petitioner argued the state's failure to disclose the report was a Brady violation. He premised his argument on his purported defense that the victims fabricated the abuse allegations so their father could obtain a refund of money he previously paid Petitioner for summer camps for the victims. Petitioner's theory was that the funds would have been used to purchase a laptop computer for the sister, and that she encouraged the victims to report the abuse not out of concern for their well-being, but in furtherance of a conspiracy to obtain the computer. The PCR court rejected specifically that the report 349, Findings p. 3. Petitioner's 11 argument, is not exculpatory. 11 finding Resp. The PCR judge went on to conclude: The court having reviewed all of the testimony and exhibits in this case finds that Petitioner is not a credible witness regarding any of the allegations of this petition. Particularly in regard to the claim of Petitioner that he would not have plead guilty but for various perceived violations of his constitutional rights, the court finds this allegation and testimony supporting it unbelievable. Id. at 11. 19 - OPINION AND ORDER - Exh. The PCR trial court's conclusion was not contrary to or an unreasonable application of the clearly First, best, establ~shed federal law. the information contained in the police report had, at Moreover, in impeachment value but was not e x culpatory. light of the evidence against Petitioner and the favorable outcome of the plea agreement in the face of the number of charges against him, even assuming exculpatory evidence was withheld there appears no reasonable probability that Petitioner would have refused to plead and proceeded to trial had the information be disclosed. Petitioner is not entitled to relief on his claim challenging the voluntariness of his plea based on the alleged Brady violation. III. Remaining Claims Alleged in Petition In his pro se Petition for Writ of Habeas Corpus, Petitioner alleges fourteen grounds for relief. In his supporting memorandum, however, Petitioner states it "addresses the following two grounds for relief" set forth above. The Court construes this language to be an affirmative waiver of the remaining grounds for relief. relief In the alternative, is not warranted on the Court concludes habeas corpus these remaining claims because Petitioner failed to sustain his burden of demonstrating that the state PCR court's rejection of these claims is contrary to or unreasonable application of clearly established federal law. 6 6 See To the extent the claim are not fully exhausted and/or are procedurally defaulted, this Court may decline to address these 20 - OPINION AND ORDER - Lambert v. Blodgett , 393 F.3d 943, 970 n . 16 (petitioner bears burden of proving his case) ; 28 U. S . C . § 1154(d). CONCLUSION For these reasons, the Court FINDS Petitioner did not procedurally default his claim that he received constitutionally ineffective assistance of appellate counsel based upon counsel ' s refusal to file a notice of appeal . Respondent shall have until November 5 , 2012 , to file a response addressing the merits of this claim. Petitioner shall have until November 30 , 2012 , to file a reply . The merits of the claim shall be taken UNDER ADVISEMENT on November 30 , 2012 . IT IS FURTHER ORDERED that habeas corpus relief is DENIED on the remaining grounds for relief alleged in the Petition for Writ of Habeas Corpus . IT IS SO ORDERED . DATED this I (p7vtLday of October , 2 012. A~W~ United States District Judge issues and instead deny relief on the merits. See Franklin v . Johnson , 290 F . 3d 1223 , 1232 (9th Cir . 2002) ; 28 U. S . C . § 22 54 (b) ( 2) . To the extent the claims allege procedural errors in the state PCR proceeding , such claims are not cognizable in a federal habeas corpus action. Franzen v . Brinkman , 8 7 7 F . 2d 2 6 (9th Cir. 1989); see also 28 U. S.C . § 2254(a) (habeas petitioner must allege he is in custody in violation of the Constitution or laws or treaties of the United States) . 21 - OPINION AND ORDER -
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