Buss v. Premo, No. 6:2012cv01539 - Document 32 (D. Or. 2014)
Court Description: OPINION AND ORDER. The Court DENIES the Petition for Writ of Habeas Corpus 2 . The Court DENIES a certificate of appealability as Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253 (c) (2). Signed on 7/31/2014 by Judge Anna J. Brown. (gw)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PATRICK NICHOLAS BUSS, Civil No. 6:12-cv-01539-BR Petitioner, OPINION AND ORDER v. JEFF PREMO, Superintendent, Oregon State Penitentiary, Respondent. THOMAS J. HESTER Assistant Federal Public Defender 101 SW Main Street Suite 1700 Portland, OR 97204 Attorney for Petitioner ELLEN F. ROSENBLUM Attorney General SAMUEL A. KUBERNICK Assistant Attorney General Department of Justice 1162 Court Street NE Salem, OR 97301 Attorneys for Respondent 1 - OPINION AND ORDER - BROWN, Judge. Petitioner, an inmate at the Oregon State Penitentiary, brings this habeas corpus action pursuant to 28 U.S.C. For the reasons that follow, § 2254. the Court DENIES the Petition for Writ of Habeas Corpus. BACKGROUND On May Petitioner 26, 2006, on eight a Tillamook County grand counts sexually explicit conduct, of using a child jury indicted in a display of seven counts of third degree rape, three counts of third degree sodomy, and one count of furnishing alcohol to a minor. Petitioner and The charges arose from two encounters between his victim, a minor girl whom he met on the Internet in March 2006. On March 26 and 27, 2006, Petitioner and the victim stayed at a motel in Tillamook County. Over the course of the weekend, Petitioner and the victim engaged in sexual intercourse several times and performed oral photographed the sex on each other. victim in different Petitioner also outfits, including a cheerleading uniform and some lingerie he had purchased for her. On April 21, 22, and 23, 2006, Petitioner stayed with the victim at her home while her parents were away. visit, Petitioner and the victim again engaged intercourse and performed oral sex on each other. 2 - OPINION AND ORDER - During that in sexual This time, Petitioner took explicit nude pictures of the victim on each of the three days. On November 21, that would have 2006, required the prosecutor tendered a plea offer Petitioner to plead guilty to three counts of using a minor in a display of sexually e x plicit conduct and agree to three consecutive 70-month Ballot Measure sentences, for a total of 210 months of imprisonment. 11 Petitioner rejected the plea offer. On January 18, 2007, Petitioner entered guilty pleas to all but five counts of the indictment. 1 The plea petition signed by Petitioner indicated that sentencing would be "open." The plea petition stated the presumptive sentence, minimum sentence, and maximum sentence for each count, and stated that the trial court could order the sentences to be served concurrently or consecutively, unless prohibited by Oregon law. At the plea hearing, the trial judge engaged in a colloquy with Petitioner. the petition questions, and The judge established that counsel had reviewed with also Petitioner that and had Petitioner penalties for each conviction. answered all of his understood the maximum The judge accepted the plea "as having been knowingly and voluntarily made with a factual basis 1 Petitioner did not plead guilty to two of the three counts of Rape in the Third Degree or the three counts of Sodomy in the Third Degree; the state agreed to dismissal of these five counts. 3 - OPINION AND ORDER - for each," and scheduled a sentencing hearing for April 13, 2007. Resp. Exh. 104, p. 8. At the scheduled sentencing hearing, a question arose about whether the dates and times provided in reports submitted by the prosecutor taken. would were accurate q.s to when certain photographs were The court and counsel determined that the prosecution be required to provide defense counsel additional information in the form of "spec sheets," which would include the exact date and time of each digital image. reset to May 25, 2007. The sentencing was When the case was called on May 25, 2007, the state still had not produced the requested data and the case was again continued. At the sentencing hearing on June 29, 2007, the state recommended a sentence totaling 360 months of imprisonment. state called Sergeant Tom Nelson from Sheriff's Office as its first witness. the Deschutes The County Sergeant Nelson testified about the date and times of the various photographs from March 2627, 2006, and April 21-23, 2006, based on "EXIF" data embedded in the digital images. He testified that the March images were taken on the night of the 26th, and on both the morning and evening of the 27th. As to the April images, Nelson testified that the EXIF data showed the first image was taken at 10:14 p.m. on April 20, 2006. Then there was an image taken 121 minutes later, at 12:15 a.m. on April 22, 2006. At 2:43 p.m. on the afternoon April 22, 4 - OPINION AND ORDER - 2006, there were several images taken just seconds apart. Finally, Nelson testified that three additional images were taken at 8:58 and 8:59 a.m. on April 23 , 2006 . The state also called the lead investigating officer from Tillamook County, Jana McCandless. photos from March 26-27, and at-shirt. 2006, She testified that in the the victim was wearing underwear McCandless described the April images as coming in three groups, and testified that they were taken in the victim's home. Unlike the March pictures, these images involved "full nudity." Petitioner's attorney argued Petitioner should receive the mandatory minimum sentence of 70 months of imprisonment on the first count of using a child in a display of sexually explicit conduct, and asked the court to order the rest of the sentences to run concurrently. Trial counsel presented the testimony of Dr. Richard psychologist King, a evaluation of Petitioner. who performed a King testified that psychosexual Petitioner was amenable to treatment and that a lengthy prison sentence would make him more likely to re-offend. Petitioner's mother also testified that the conduct that led to the charges was "shocking" to her, and "out of character" for Petitioner. The trial judge found Petitioner took photographs of the victim on three separate days in April, therefore three discrete actions." 5 - OPINION AND ORDER - Resp. and "that there Exh. 104, pp. [were] 121-22. Thus, Petitioner's uninterrupted actions course of "not were conduct; significant breaks of time during . continuous instead that a there and [were] . which [Petitioner] had a chance to reconsider to not take the ne x t series of photographs." Resp. Exh. 104, p. 121. The judge sentenced Petitioner to consecutive terms of 70 months of imprisonment on each of three counts of using a child in a display of sexually explicit conduct, and a consecutive 30-month term on one count of third-degree rape, for a total of 240 months of incarceration. As to the remaining counts, the trial judge imposed concurrent sentences. Petitioner filed a direct appeal, raising as his single claim of error .sentences. that the trial court erred in imposing consecutive The Oregon Court of Appeals affirmed without opinion, State v. Buss, and the Oregon Supreme Court denied review. 228 Or. App. 756, 210 P.3d 945, rev. denied, 346 Or. 589, 214 P.3d 821 (2009) . Petitioner then filed a petition for state post-conviction relief ("PCR"). Following an evidentiary hearing, the PCR trial judge denied relief. affirmed without review. denied, Buss v. On appeal, opinion, Premo, the Oregon Court of Appeals and the Oregon Supreme Court denied 246 Or. App. 82, 262 P.3d 405, rev. 351 Or. 507, 272 P.3d 74 2 (2011). On August 24, 2012, Petitioner filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 6 - OPINION AND ORDER - § 2254 in this Court. Petitioner alleges one ground for relief: of Trial Counsel "Ineffective Assistance (Sixth and Fourteenth Amendments) counsel failed to provide suitable counsel." counsel to represent Petitioner, where trial The Court appointed and in the counseled Brief in Support of Petition for Writ of Habeas Corpus, Petitioner argues trial counsel Petitioner to was reject imprisonment; and been entered, ineffective (2) to the in two respects: ( 1) State's plea offer of failing, obtain advising 210 months of until after the plea had already data from digital demonstrating when the images were taken. photographs Petitioner argues that had he been properly advised, he would have accepted the 210-month plea offer. relief on Respondent contends the state PCR court's denial of this application claim was not contrary of clearly established law to or and, an as unreasonable such, must be shall not be granted deference. LEGAL STANDARDS An application for a writ of habeas corpus granted unless the adjudicatio n 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 7 - OPINION AND ORDER - federal habeas courts to be highly deferential to the state court decisions under review. 1398-14 02 ( 2 011) , the In Cullen v. Pinholster, 131 S.Ct. 1388, Court reiterated nature of federal habeas review, the highly deferential and limited federal review "to the record that was before the state court that adjudicated the claim on the merits." A state court decision is "contrary to" clearly established federal law if it is "in conflict with, " "opposite "diametrically different from" Supreme Court precedent. 529 U.S. at established identifies An 388. Supreme the "unreasonable Court correct law application" occurs governing legal when "the Lambert v. (citing Williams, Blodgett, 529 U.S. 393 F.3d 943, at 413), 974 of clearly state court but of the (9th Cir. cert. denied, or Williams, principle unreasonably applies that principle to the facts case." to," 2004) 126 S.Ct. 484 (2005) . A federal court making an "unreasonable application" inquiry should ask whether the state court's application of federal law was objectively unreasonable. Williams, 52 9 U.S. at 4 0 9. "[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 established federal law erroneously or incorrectly." (internal Woodford v. Visciotti, citations omitted) . 8 - OPINION AND ORDER - 537 U.S. Instead, "a 19, habeas 24-25 court (2002) 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." 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." (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 Id. (2004)). The last reasoned decision by the state court is the basis for review by the federal court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Franklin v . Johnson, 290 F. 3d 1 2 23, 1233 n. 3 (9th Cir. 2002). The decision of the state PCR trial court is the basis for review in the instant proceeding . "Defendants have a Si x th Amendment right to counsel, a right that extends to the plea-bargaining process." 132 S.Ct. 1376, established applies to 1384 that the challenges assistance of counsel. 52, 57 (1985). 1) counsel's (2 012) (citations two-part to Id. omitted). Strickland guilt y pleas Lafler v. Cooper, v. based (citing Hill v. It is well Washington upon test ineffective Lockhart, 474 U.S. Under Strickland, a petitioner must prove: performance fell below an objective standard of reasonableness and, 2) there is a reasonable probability that, but 9 - OPINION AND ORDER - for counsel's unprofessional errors, the result of the proceeding would have (2002); 466 been different. 529 U.S. Williams, Bell v. at 390-91; 535 Cone, U.S. Strickland v. 685, 695 Washington, u.s. 668, 687-88 (1984). For the performance prong, "[j]udicial scrutiny of counsel's performance must be highly deferential." 68 9. Moreover, "a court must indulge Strickland, 466 U.S. at [the] strong presumption that counsel made all significant decisions in the exercise of reasonable professional judgment." (quoting Strickland) (internal Pinholster, 131 S.Ct. at 1407 quotation marks omitted). The reasonableness of counsel's conduct must be evaluated in light of the facts of the representation. case and Strickland, the circumstances at the time of 466 U.S. at 690. "To establish Strickland prejudice a [petitioner] must 'show that there is a reasonable probability that, unprofessional errors, been different.'" Strickland, 466 U.S. but for counsel's the result of the proceeding would have Lafler, at 132 694). S.Ct. "In at the 1384-85 context of (quoting pleas a [petitioner] must show the outcome of the plea process would have been different with competent advice." Frye, 132 S.Ct. 1399, 1410 (2012) In other words, Id. (citing Missouri v. (additional citations omitted). in order to prevail upon a claim that counsel's 10 - OPINION AND ORDER - ineffective advice led to the rejection of a plea offer, a petitioner must show: [T]hat but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed. Lafler, 132 S.Ct. at 1385. Finally, a doubly deferential standard of review applies to federal habeas review of ineffective assistance of counsel claims. Knowles v. 556 Mirzayance, Washington, U.S. 111, is (2009); 614 F.3d 987, 995 (9th Cir. 2010) 2254 and deference under Strickland). there 1420 no reasonable argument Strickland's deferential standard. Cheney (deference under v. § Petitioner must prove that that counsel Premo v. satisfied Moore, 131 S.Ct. 733, 740 (2011); Harrington, 131 S.Ct. at 788. DISCUSSION Petitioner argues trial counsel was ineffective because when he advised Petitioner to reject the 210-year plea offer, counsel was not aware of the data from the digital photographs establishing the exact date and time they were taken. Those dates and times were deemed by the criminal trial judge to permit three consecutive sentences under 11 - OPINION AND ORDER - Oregon law. Although counsel ultimately received and told Petitioner about the evidence prior to sentencing, counsel did so only after the plea offer had been rejected and the trial judge had already accepted the open- sentencing plea. Petitioner testified in the PCR proceedings that he would have accepted the severe 210-month plea offer had he been told that the evidence of when the photographs were taken would permit the judge to find consecutive sentences. separate incidents, Resp. Ex h. 113, pp. thereby 9-10. supporting In response, the state proffered an extensive affidavit from Petitioner's trial counsel describing this overwhelming evidence against Petitioner and counsel's discussions with Petitioner about the 210-month plea offer. Although lengthy, Counsel's explanation is enlightening: 31. Upon review of the discovery provided, and after consul tat ion with Petitioner, I soon recognized the futility of denying the allegations. Trial on the merits might well have and probably would have resulted in conviction upon all 19 counts. 32. Therefore, it soon became apparent to counsel and to Petitioner that our goal was to try to minimize the sentence. 33. Eventually, the plea offer of 210 months was received. Both Petitioner and I regarded the offer as extremely severe, and therefore, untenable. To be clear, Petitioner communicated to me that acceptance of the state's plea offer was not an option; under no circumstances would Petitioner voluntarily agree to the proposed 1 7. 5 year sentence. However, despite my numerous attempts to negotiate a more favorable outcome, the prosecutor would not be swayed. 12 - OPINION AND ORDER - 34. On the other hand, despite Petitioner's insistence to th~ contrary, if the plea offer were accepted, and the parties joined in recommending to the sentencing court an agreed-upon sentence, at least the prosecutor would be bound against asking for a more severe sentence. (Of course, the sentencing court would not have been bound by the agreement of the parties, and agreement or no, the sentencing court could have imposed alternate sentence.) 35. In the final analysis, where defending against overwhelming evidence at trial was a poor option, and the plea offer was e x tremely severe, then the only remaining option was open sentencing upon Petitioner's guilty pleas. However, open sentencing would mean that the sentencing court could (and ultimately did) impose a more severe sentence than the plea offer. So there was risk in open sentencing. 36. I had long discussions with the Petitioner at the jail to explore the relative merits of these various options and Petitioner understood the possible risks. I recall explaining to Petitioner that the court could, upon making certain findings, impose consecutive sentences for all counts. I further explained that such consecutive sentences might form the basis for an appeal, depending upon whether the court correctly applied certain rules predicate to consecutive sentences. In short, Petitioner knew that multiple consecutive sentences were a possibility, and we could not possibly know in advance what the court's decision might be. * * * 40. After extensive consultations between myself and Petitioner, Petitioner made a knowing decision to reject the plea offer and proceed instead to open sentencing. Resp. Exh. 126, pp. 7-9 (emphasis provided). Trial counsel also addressed the timing of his receipt of the data about information the to digital photographs Petitioner; counsel and the disclosure did dispute not occurred after Petitioner entered his guilty plea. 13 - OPINION AND ORDER - of the that this Counsel also addressed the ultimate effect of obtaining the digital information: 49. [T]he date/time stamp on the photographs was not a significant event or important development. To the contrary, the date/time stamp on the individual photos was merely additional proof of what all parties had known from the beginning that Petitioner committed crimes on multiple dates at multiple times. 50. Petitioner and I (and the state) knew with scientific certainty from the very beginning when (date and time) the various photo episodes occurred. Petitioner's present claim that he lacked knowledge of the multiple dates and times is incorrect. After all, Petitioner was present at the crimes -- he knows when the photography occurred. Furthermore, the victim was also there, and she told the police every detail, as documented in the police reports. * * * 53. I do not know whether, prior to June 11, 2007 [when counsel discussed the photo data with Petitioner] Petitioner included in his risk assessment of open sentencing the fact that the state had computer proof of different photo dates. After June 11th, Petitioner certainly knew of this aspect of the state's evidence. But, more importantly, I communicated to Petitioner often and unambiguously that at open sentencing the court could impose consecutive sentences and the result could be worse than the plea offer. 54. Petitioner's risk assessment did not change, or should not have changed, after I received the date/time stamps. Both he and I knew about the "multiple dates and times" issue from the very beginning. The computer/photograph evidence was simply cumulative of the other evidence that Petitioner had, and that I discussed with him. 55. The state had overwhelming proof of the multiple dates and times from other evidence, including different settings (i.e., poses and costumes modeled by the victim) and locations depicted in the photographs, and from the complainant's detailed statements. The 14 - OPINION AND ORDER - computer/photo or date/time stamp evidence did not make consecutive sentences more likely. Instead, consecutive sentencing was a risk from the beginning. Resp. Exh. 126, pp. 11-12. As noted, the PCR trial judge denied relief. trial counsel's affidavit to be credible, The judge found and entered the following pertinent Findings of Fact: Findings of Fact * * * 2. Trial counsel explained his reasoning for the decisions he made and the information and advice he provided to Petitioner. Trial counsel's reasoning for his decisions and information and advice he provided to Petitioner was sound and competent. 3. This court finds trial counsel's affidavit to be credible. Resp. Exh. 134, p. 3. The PCR judge concluded Petitioner failed to prove facts to satisfy the showing required by Strickland and, as such, did not establish he was denied the right to effective assistance of counsel. The PCR trial judge's decision that counsel was not deficient was neither contrary to nor an unreasonable application of clearly established federal law as determined by the Supreme Court. counsel's guilty advice plea was regarding well the within professional assistance." 15 - OPINION AND ORDER - risks the of "wide Strickland, an "open range of Trial sentencing" reasonable 466 U.S. at 688-89. Trial counsel explained, "from the very beginning," before Petitioner entered his plea and before the digital photo date/time stamp evidence was discovered, that the trial judge had the authority to impose consecuti v e sentences on the basis that the photo episodes occurred on different dates. to trial counsel's affidavit, other Moreover, in addition evidence in the record supported the PCR trial judge's finding that Petitioner understood the risk of rejecting the 210-month plea offer. a plea petition sentences which described for each offense, the Petitioner signed presumptive and maximum and which also explained that the sentences could be consecutive unless prohibited by Oregon law. Resp. Exh. 103, p. 2. Petitioner's guilty Before the criminal trial judge accepted plea, the judge engaged Petitioner in a colloquy and specifically asked if he understood the potential sentences: THE COURT: There's an attachment that-- special sentencing -- Attachment number one, special sentencing provisions. And I just want to make sure that you have read through that and you understand what those provisions are. PETITIONER: Yes, Your Honor. Resp. Exh. 104, p. 7. In addition, although the PCR trial judge did not directly address the issue, Petitioner did not establish that he suffered prejudice. As Petitioner had trial counsel noted in his accepted the 16 - OPINION AND ORDER - plea offer affidavit, from the even if state, "the sentencing court would not have been bound by the agreement of the parties, and agreement or no, the sentencing court could have imposed alternate sentence." Petitioner failed counsel, different. the to outcome Resp. show that, of the Exh. but for plea 126, the p. 8. As such, alleged error of process would have been See Lafler, 132 S.Ct. at 1385 (a petitioner must show that the court would have accepted the terms of the rejected plea offer, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed) . CONCLUSION For these reasons, the Court DENIES the Petition for Writ of Habeas Corpus (#2). The Court DENIES a certificate of appealability as Petitioner has not made a substantial constitutional right. showing See 28 U.S.C. § of the denial 2253 (c) (2). IT IS SO ORDERED. DATED this 3/ sr day of July, 2014. A~ United States District Judge 17 - OPINION AND ORDER - of a
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