Hentz v. Premo, No. 6:2013cv00781 - Document 38 (D. Or. 2014)
Court Description: OPINION AND ORDER. The Court DENIES the Petition for Writ of Habeas Corpus. 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). IT IS SO ORDERED. Signed on 4/2/2014 by Judge Anna J. Brown. (gw)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON LEMUEL FRED HENTZ, Civil No. 6:13-cv-00781-BR Petitioner, OPINION AND ORDER v. JEFF PREMO, Respondent. LEMUEL FRED HENTZ SID #6750414 Two Rivers Correctional Institution 82911 Beach Access Road Umatilla, OR 97882-9419 Petitioner Pro Se ELLEN F. ROSENBLUM Attorney General KRISTEN E. BOYD Assistant Attorney General Department of Justice 1162 Court Street NE Salem, OR 97301-4096 Attorneys for Respondent 1 - OPINION AND ORDER - BROWN, Judge. Petitioner, Institution, an brings U.S.C. § 2254. inmate this at the habeas Two corpus Rivers action Correctional pursuant to 28 For the reasons that follow, the Court DENIES the Petition for Writ of Habeas Corpus. BACKGROUND On June 12, 1996, a Judgment of Conviction and Sentence was entered against Petitioner in Multnomah County Circuit Court after a jury found Petitioner guilty of charges of Unlawful Sexual Penetration in the First Degree (two counts) and Sexual Abuse in the First Degree (four counts). The trial judge sentenced Petitioner to a total of 394 months of imprisonment. Petitioner filed a direct appeal. Appeals affirmed without opinion, denied review. rev. denied, State v. Hentz, The Oregon Court of and the Oregon Supreme Court 152 Or. App. 403, 960 P.2d 394, 327 Or. 2, 961 P.2d 216 (1998). Petitioner then sought state post-conviction relief ("PCR"). The PCR trial court denied relief. On appeal, the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Hentz v. Lampert, 176 Or. App. 648, 32 P.3d 973 (2001), rev. denied, 333 Or. 567, 42 P.3d 1245 (2002). On March 8, 2002, Petitioner filed a second direct appeal. He subsequently moved to dismiss the second direct appeal, which the Oregon Court of Appeals granted on March 29, 2002. 2 - OPINION AND ORDER - On March 25, 2002, Petitioner filed a third direct appeal. Attached to the notice of appeal was a Multnomah County Circuit court's order denying Petitioner's Motion for Arrest of Judgment. The Oregon Court of Appeals dismissed the third direct appeal and issued an appellate judgment on March 13, 2003. On September 3, 2004, Petitioner filed a Petition for Writ of Habeas Corpus in this Court in Hentz v. Hill, 01253-AA. Case No. 6:04-cv- On August 22, 2005, District Judge Ann L. Aiken denied the Petition on the grounds that it was time-barred. Petitioner appealed, but on May 30, 2006, the Ninth Circuit Court of Appeals denied Petitioner's request for a certificate of appealability. On April 23, 2010, Petitioner filed a second PCR petition in state The court. petition as PCR successive trial court dismissed and time-barred. The Appeals summarily affirmed the PCR trial court, the second PCR Oregon Court of and the Oregon Supreme Court denied review on April 25, 2013. On May 8, 2013, Petitioner filed his Petition for Writ of Habeas Corpus in this action. Respondent argues the Petition must be dismissed because Petitioner failed to obtain authorization from the Ninth Circuit Court of Appeals before filing this second or successive Petition. 1 1 In his Answer to the Petition, Respondent also contends the Petition is time-barred and that Petitioner procedurally defaulted the claims alleged therein. Because this Court lacks jurisdiction over the Petition, Respondent's additional affirmative defenses are 3 - OPINION AND ORDER - DISCUSSION Pursuant to 28 U.S.C. § 2244 (b) (3) (A), before a second habeas petition raising new grounds may be filed in the District Court, "the applicant shall move in the appropriate court of appeals for an order authorizing application." petition, the district court to consider the In the absence of an order authorizing a successive this Court is without petition on the merits. jurisdiction to review such a Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001). Petitioner provides no proof he obtained an order from the Ninth Circuit Court of Appeals authorizing this Court to consider his successive habeas corpus application. Instead, Petitioner argues he is not required to obtain permission from the Ninth Circuit because the prior habeas action before Judge Aiken was "invalid, because the Attorney General's Office committed fraud upon the Dismissal subsequent of a prior petitions 2244(b)(3)(A)]." 2009). Petitioner's court." petition second or on argument timeliness successive McNabb v. Yates, is for without grounds merit. "renders purposes of [§ 576 F.3d 1028, 1030 (9th Cir. Accordingly, the Petition for Writ of Habeas Corpus must be denied. not addressed. 4 - OPINION AND ORDER - CONCLUSION For these reasons, the Court DENIES the Petition for Writ of Habeas Corpus. The Court DENIES a certificate of appealability as Petitioner has not made a substantial showing of the denial of a constitutional right. se·e 28 U.S.C. § 2253 (c) (2). IT IS SO ORDERED. DATED this ~~day of April, 2014. ANNA J. BROWN United States District Judge 5 - OPINION AND ORDER -
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