Corry v. Hill
Filing
24
Order: Petitioner's Petition 1 is denied. This proceeding is dismissed. Signed on December 12, 2009 by Chief Judge Ann L. Aiken. (cp)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON EUGENE DIVISION ROBERT A. CORRY, Petitioner, Civil No. 09-464-AA ORDER
v.
SUPERINTENDENT JEAN HILL, Respondent. AIKEN, ~istrictJudge.
Petitioner is in the custody of the Oregon Department of Corrections pursuant to the Judgment, dated August 6, 2003, from Marion County Circuit Case No. 03C42821 after a
conviction of Sexual Abuse in the First Degree. After pleading "no contest" to the charge, the trial court imposed a sentence
of 75 months.
Petitioner directly appealed his conviction on three separate occasions, but the Oregon Court of Appeals dismissed each appeal, Exhibits 108 - 119, and petitioner did not seek review by the Oregon Supreme Court. Petitioner filed a Formal Petition for Post-Conviction
1 - ORDER
Relief (Exhibit #120) but the court denied relief. The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Exhibit 140 - 146. Petitioner filed a successive petition for post-
conviction relief, but the court denied the petition and dismissed the case with prejudice. Exhibits 148, 151. Petitioner filed a petition for mandamus in
Carry,
State
v.
Supreme Court Case No. SO56773, but the Oregon Supreme
Court denied the petition.
a, Exhibits
152 - 154.
Petitioner filed a Petition for Habeas Corpus Relief under 28 U.S.C. 5 2254 alleging six claims of ineffective assistance of counsel and a claim about the "meaning of the work 'month1 as applied to Oregon Felony sentencing laws." Petition (#I) p. 6. Petitionerus federal habeas petition was filed after April 24, 1996, and is therefore governed by the Antiterrorism
28 and Effective Death Penalty Act (llAEDPA"), U.S.C. S 2254.
Woodford v. Garceau, 538 U.S. 202, 210 (2003). Under AEDPA, s habeas relief may be granted only when a state court I decision was "contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United Statesm or Imwas based on an
unreasonable determination of the facts in light of the evidence presented at the state court proceedings.It 28 U.S.C.
S
2254 (d); Wiaains v. Smith, 539 U.S. 510, 520 (20031.
A state court s decision is
contrary to federal law if
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it fails to apply the correct controlling Supreme Court authority or comes to a different conclusion
. ..
[from] a case
involving materially indistinguishable facts." Pirtle v. Morsan, 313 F.3d 1160, 1167 (gth Cir. 2002) (citing Bell v. Cone, 535 U.S. 685, 694). The Supreme Court has held that "a federal habeas court making the 'unreasonable application1 inquiry should ask whether the state court s application of clearly established federal law was objectively~nreasonable.~~ Williams v. Taylor, 529 U.S. 362, 409 (2000). I1II]t is past question that the rule set forth in Strickland, qualifies as 'clearly established Federal law, as determined by the Supreme Court of the United States. Williams v Tavlor, supra at 391. Under Williams, a petitioner
may therefore be granted habeas corpus relief on a claim of ineffective assistance of counsel only if the decision of the state court was contrary to, or an unreasonable application of Strickland v. Washinston, 466 U.S. 668 (1984). Under Strickland, a claim that counsel's assistance was so ineffective as to require reversal of a conviction has two components. First, the petitioner must show that counsel's
performance was deficient; second, the petitioner must show that the deficient performance prejudiced the defense. Id. at 687. The first prong of the Strickland test required the petitioner to demonstrate that Ncounsells representation fell below an objective standard of reasonableness.
3
Strickland,
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ORDER
sursra at 688. The second component of the test requires the petitioner to demonstrate that "there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different .
Id., at
694. A "reasonable probability" is one that is sufficient to
undermine confidence in the outcome." Id. In order to satisfy the prejudice requirement in the context of a plea agreement, the petitioner must demonstrate that there is a "reasonable probability that, but for counsellserrors, he would have not pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S.
52, 58-59 (1985). In plea agreement cases, the I1resolution of
the Iprejudicet inquiry will depend largely on whether [an] affirmative defense likely would have succeeded at trial. Id.
In Bell v. Cone, 535 U.S. 685
(2002)~ the Court
reiterated that when considering ineffective assistance of counsel claims: [Jludicial scrutiny of a counsel's performance must be highly deferential and that every effort [must be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsells challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Thus, even when a court is presented with an ineffective assistance claim not subject to 5 2254 (d)(1)deference, a defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Bell, 535 U.S. at 695 omitted) . 4 - ORDER (citations and quotations marks
When considering ineffective assistance of counsel claims under 28 U.S.C.
§
2254(d),
' i is the habeas applicant's lt
burden to show that the state court applied Strickland to the facts of his case in an objectively unreasonable manner. Woodford v. Visciotti, 537 U.S. 19, 25 (2002) In (percuriam) . In Ground A petitioner alleges that trial counsel "was ineffective when he failed to investigate claims of alleged victim that were disingenuous. If trial counsel had
investigated these claims, he would have been able to discredit the alleged victim, and insisted on going to trial. Petition ( # A ) p. 4. The PCR court considered this claim and concluded that trial counsel "fully investigated the case . . . and was fully ready to go to trial had petitioner wanted him to.11 Exhibit
138, p. 22.
This factual finding is presumed correct absent
28 U , S . C .
§
clear and convincing evidence to the contrary. 2254(d)(2).
The PCR court also made a legal conclusion that
petitioner's plea was knowing and voluntary. Exhibit 138, p.
22. This conclusion is entitled to deference and is supported
by the record before the court.
Petitioner argue that if trial counsel had investigated the claims of the victim he would have learned that the
victim's statements were udisingenuous.n In the context of a plea, the relevant inquiry is whether information found in the forsaken line of investigation would have caused counsel to change his advice on whether to plead guilty.
5
i ill v.
-
ORDER
Lockhart, s u ~ r a at 59.
Courts will reject claims of
ineffective assistance of counsel for failure to investigate when the record demonstrates that the "petitioner would have pled guilty despite the additional evidence and where the additional evidence was unlikely to change the outcome of the trial." Lambert v. Blodsett, 393 F.3d 943 (9
56).
t "
Cir. 2004)
(citing Hill, 474 U.S. t
Counsel testified that he engaged in an extensive investigation and was prepared to go to trial. Exhibit 135, p. 2.
He and his investigator spent 55 hours investigating
petitioner's case.
Id. Counsel obtained the victim and her
sister's school records and DHS records, interviewed several possible witnesses, and prepared 10 subpoena's. The PCR court finding that trial counsel fully investigated the case is supported by the record. Petitioner has not identified how the victim's statements would have proved lldisingenuous" what information that, if or discovered, would have caused him not to plead no contest. Accordingly, petitioner has failed to establish that his counsel was deficient for failing to investigate and Ground A is denied. In Ground B, petitioner alleges that his counsel was ineffective "when he misinformed defendant of the potential maximum sentence.'' Petition (#2) p. 4. Petitioner contends
that his attorney informed him that he faced the risk of consecutive sentences for the two counts of sex abuse if he
6
-
ORDER
proceeded to trial. Petitioner argues that he "would not have been at risk for any type of consecutive sentences, even if
he was convicted of both charges." Id.
The PCR court considered this claim and found that petitioner failed to meet his burden of proof, and also adopted the reasoning of the attorney general's brief that petitioner could have, in fact, received consecutive sentences for the two counts of sex abuse, Exhibit 139 and Exhibit 129
p. 13-14 ["Petitioner s exposure to a consecutive sentence was
high; he committed two separate acts of sexual abuse. Petitioner was aware of this risk and entered his plea."] This finding is entitled to deference because it is neither contrary to nor an unreasonable application of Strickland. Moreover, it is correct and supported by the record. Under Oregon law, petitioner could have received consecutive sentences for the two counts for which he was charged. &,
ORS 137.123 (5).
Petitioner's counsel was not deficient for
correctly informing petitioner that he faced a risk of consecutive sentences. In Ground C petitioner alleges that his counsel was ineffective for failing to "have a timely release hearing for the defendant." Petition (#I) p. 5. In Ground D petitioner
alleges that his counsel was deficient for failing to object to the indictment's lack of reference to Measure 11 at
7
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ORDER
petitioner's bail hearing.
Id.'
In Ground E petitioner
alleges that his counsel was deficient for not Irhavingaccess to his Criminal File at the Bail Hearingt1 and that as a result
. petitioner was denied bail. Id. p. 6 '
A habeas petition may be considered only if it alleges
that a petitioner is "in custody in violation of the Constitution or laws or treaties of the United States.
28
U.S.C. 1 2254 (a) There is no absolute Constitutional right to
.
bail other than the due process right to be free from
527 F.2d 1090, arbitrary decisions. See, Kellv v. S~rincrett, 1093 ( g t h Cir. 1975). The matters alleged in Grounds C, D and
E have to do whether petitioner was released on bail - prior
to the entry of his plea custody.
-
and do not related to his current
In Ground F, petitioner alleges that the cumulative errors of trial counsel caused him to enter a plea bargain when he otherwise would not have.
As
discussed above, trial counsel was not deficient in
any of the particulars alleged by petitioner. Since there was no error by counsel, there is no basis for a finding of cumulative error. See, Bovd v. Brown, 404 F.3d 1159, 1176 (gth
'O the extent that Ground D can be construed as a challenge T to the court's (alleged) lack of jurisdiction to llconvictand sentence petitioner under [Ballot Measure 111 , " it is without merit because petitioner accepted a negotiated plea agreement which provided for mandatory minimum sentence of 75 months.
'Petitioner d i d have a bail hearing, and bail was granted and set at the statutorily-requiredamount of $100,000. Exhibit 107, p.
10.
8
- ORDER
Cir. 2005) In Ground
GI
petitioner alleges that Oregon Courts and
the Oregon Department of Corrections misapply Oregon state sentencing statutes by misinterpreting the term 'fmonth.tl
A
state prisoner must exhaust all available state
remedies either on direct appeal or through collateral proceedings (eg. state post-conviction relief) before a
federal court may consider federal habeas corpus relief. 28
U.S.C. 5 2254 (b)(1) OISullivanv. Boerckel, 526 U.S. 838, 842 ;
(1999); Coleman v. Thom~son,501 U.S. 722 (1991) [requiring
dismissal of federal petition unless all available state remedies as to all federal claims are exhausted] . The essence of the requirement is that no state remedy exists at the time
the petition was filed. Rose v. Lundv, 455 U.S. 509 (1982).
A prisoner satisfies the exhaustion requirement by "fairly
presenting1' his claims to the highest state court with jurisdiction to consider them, thereby affording the state courts the opportunity to consider the allegations of legal error and correct any violations of its prisoner's federal
v. rights. ~aldwin Reese, 541 U.S. 27, 29 (2004)(citing Duncan v. Henw, 513 U.S. 364, 365
(1995)).
In Oregon, this
requirement is satisfied when the claim is fairly presented to the state supreme court. Peterson v. Lam~ert, 319 F.3d 1153,
1156 (gth Cir. 2003).
A prisoner fairly presents his claims by describing in
the state court proceeding both the operative facts and the
9
- ORDER
legal theory on which his claim is based. Id., Anderson v. Harless, 459 U.S. 4 (1982) Guizar v. Estelle, 843 F.2d 371 ; (gthCir. 1988); Tama~ua Shimoda , 796 F.2d 261, 262 ( 9 h' v.
Cir. 1986) . The claim must be specifically characterized in
the state proceedings as "federal,
Castillo v. McFadden, 370
F.3d 882, 886 (gth Cir. 2004) ; Baldwin v. Reese, 541 U.S. 27 (2004), and allege facts showing a right to relief. Grav v. Netherland, 518 U.S. 152, 162-63 (1996); Kellv v. Small, 315 F.3d 1063, 1066 (gth Cir. 2003) . State appellate courts are
"not required to comb the trial court's decision to discover" the federal issue. Castillo, 370 F.3d at 887.
Furthermore a petitioner must present the federal claims in a procedural context in which their merits will be considered. Castille v. Peowles, 489 U.S. 346, 351-52 (1989) (claim not fairly presented when raised for the first time on petition for review to state Supreme Court); Roettgen v. Co~eland,33 F.3d 36, 38 (gth Cir. 1994) (failure to exhaust because claim was presented in a procedurally defective manner); see also, Turner v. Comvov, 827 F.2d 526, 529 (9 th Cir. l987), cert. denied, 489 U.S. 1059, (if a state "mandates
a particular procedure to be used to the exclusion of other
avenues of seeking relief, the correct avenue must be fully exhausted) . Accordingly, a federal claim is "fairly presented to the state courts only if it was (1) properly presented to the staterssupreme court, (2) as a federal question, (3) in the 10 - ORDER
appropriate petition or brief, and
(4) in
the proper
procedural context so that its merits would be considered. Petitioner raised a claim about the meaning of the term "monthn in his Petition for Alternative Writ of Mandamus in the Oregon Supreme Curt. See, Exhibits 153 and 154. Assuming arguendo that an original petition for mandamus in the Oregon Supreme Court is the appropriate way to raise this sentencing issue, petitioner did not raise it as a constitutional claim. Accordingly, the constitutional
challenge he now raises was not "fairly presentedffto the state court. Gray v. Netherland, 581 U.S. 152, 162-163 (1996)
(to "fairly presentm a federal claim in state court, habeas
petitioner's must I1includea reference to a specific federal constitutional guarantee, as well as a statement of facts that entitle the petitioner to relieft1). Assuming
arguendo
that
Ground
Seven
was
"fairly
presentedl1 to Oregon state courts, exhausted, and is properly before this court, I find as follows. Federal courts may entertain applications for writ of habeas corpus by a state prisoner "only on the ground that he
is in custody in violation of the Constitution or laws or
treaties of the United States.If 28 U.S.C. 5 2254 (a). "It is
axiomatic that federal courts may intervene in the state judicial process only to correct wrongs of [federal]
constitutional dirnensi~n.~ Wainwrisht v. Goode, 464 U.S. 78,
83 (1983).
11
- ORDER
Petitioner's Ground Seven presents a state law issue relating to the interpretation of a state stat~te.~The Oregon court rejected this Oregon law claim in petitioner s mandamus proceeding, See, Exhibit 154, and that decision is bonding on the federal court. Estelle v. McGuire, 502 U.S . 62, 67-68 (1991) ("it is not the providence of a federal habeas court to reexamine state-court determinations on state law questions." )
.
Lastly, I find that petitioner's argument in support of Ground Seven is unconvincing and that the claim fails on the merits. Based on the foregoing, petitioner's denied. This proceeding is dismissed. IT IS SO ORDERED.
The court certifies that the petitioner has not made a
substantial showing of the denial of a constitutional right pursuant to 28 U . S . C .
1 2253(
Petition (#I) is
(c) ( 2 1 .
This cause is not
appropriate for appellate review.
IT IS SO ORDERED DATED this
Ann
Aiken United State District Judge
3 ~ petitioner's Responsive Pleading (#14),petitioner appears n to argue that Ground Seven arises under the Fourteenth Amendment to the Federal Constitutionu as well as an individual's "God given right to be treated equally." Responsive Pleading (#14) p. 2.
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