Peed v. Nooth, No. 1:2008cv00651 - Document 58 (D. Or. 2011)
Court Description: Opinion and Order. The Petition for Writ of Habeas Corpus 2 is DENIED. The court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). Signed on 8/3/2011 by Judge Owen M. Panner. (dkj)
Download PDF
<![CDATA[
Peed v. Nooth Doc. 58 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MEDFORD DIVISION THOMAS EVAN PEED, Civil No. 08-651-PA Petitioner, v. MARK NOOTH, OPINION AND ORDER Respondent. Tonia L. Moro, Assistant Federal Public Defender 101 S.W. Ma Street, Suite 1700 Portland, Oregon 97204 Attorney for tioner John R. Kroger, Attorney General Lynn David Larsen, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent 1 - OPINION AND ORDER Dockets.Justia.com PANNER, District Judge. Peti tioner U.S.C. § brings this habeas corpus case pursuant to 28 2254 challenging the legality of his underlying state court convictions from 1998. For the reasons that follow, the Petition for Writ of Habeas Corpus (#2) is denied. BACKGROUND On February 19, 1997, the Josephine County Grand Jury indicted petitioner on four counts of Sexual Abuse in the First Degree, two counts of Sodomy in the rst Degree, three counts of Unlawful Sexual Penetration in the First Degree, and one count of Unlawful Sexual Penetration in the First Degree for crimes committed against two victims under the of Petitioner proceeded to a guilty on all counts. 12. Respondent's jury trial where the As a petitioner to 250 months result, prison. Exhibit 108. jury found him the trial court sentenced Respondent's Exhibit 101. Peti tioner took a direct appeal where the Oregon Court of Appeals granted partial relief and vacated one count of Unlawful Sexual Penetration in the rst Degree, but otherwise affirmed the remaining eight convictions. P.3d 82 (2000). State v. Peed, 168 Or. App. 236, The Oregon Supreme Court denied review. 4 330 Or. 470, 8 P.3d 220 (2000). Petitioner next filed for post-conviction rel Malheur County where the PCR trial court denied his claims. f ("PCR") in ief on all of The Oregon Court of Appeals affirmed the lower court 2 - OPINION AND ORDER without opinion, and the Oregon Supreme Court denied review. Peed v. Lampert, 188 Or. App. 765, 73 P.3d 313, rev. denied 336 Or. 125, 79 P.3d 882 (2003). Petitioner filed a federal habeas corpus petition on December 5, 2003 but voluntarily dismissed the action without prejudice in order to return to Oregon's state courts to raise a sentencing and confrontation claims. When he filed his second PCR action in the Malheur County Circuit Court, the PCR t al court dismissed the action as untimely, successive, and because the newly raised claims could have been raised on direct appeal or in challenge. Respondent's Exhibit 140. s first collateral The Oregon Court of Appeals affirmed the PCR trial court in a written decision, and the Oregon Court Supreme Court denied review. Peed v. Hill, 210 Or. App. 704, 153 P.3d 125 (2006), rev. denied 343 Or. 33, 161 P.3d 943 (2007). Petitioner filed yet another PCR action, which the PCR trial court dismissed as improperly successive, untimely, and meritless. Respondent's Exhibit 151. Petitioner filed a notice of appeal, but later moved to dismiss the appeal. Respondent's Exhibits 156, 157. Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on May 30, 2008 raising 23 grounds for relief. are adequately stated in the Pet Because those grounds ion and Attachment 1 to the State's Response brief, they need not be repeated here. Respondent asks the court to deny relief on the claims because: (1) petitioner does not support many of the claims with any argument; 3 - OPINION AND ORDER (2) most claims are procedurally defaulted; (4) (3) the claims lack merit; and the state court decisions denying relief on the claims are entitled to deference. DISCUSSION I. Unarqued Claims On page 19 of petitioner's supporting represents that he is proceeding on Grounds 4, 18, 21, and 23 of the Pet ion. memorandum, 5, he 9, 11, 13, 16, He has not supported the remainder of his claims or otherwise attempted to rebut the State's arguments that the unargued claims do not entitle him to rel has nevertheless reviewed petitioner I s unargued The court claims on the existing record and determined that they do not entitle him to relief. See 28 U.S.C. § 2248 (liThe allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true."); 825, 835 (9th Cir. 2002) see also Silva v. Woodford, 279 F.3d itioner bears the burden of proving his claims}. II. Exhaustion and Procedural Default According to respondent, pet ioner failed to present all of his remaining claims to Oregon's state courts, thereby leaving them unpreserved for federal habeas corpus review. III 4 - OPINION AND ORDER Standards A. A habeas petitioner must exhaust his claims presenting them to the state's highest court, by fairly either through a direct appeal or collateral proceedings, be will consider the merits of those claims. Rose v. Lundy, 455 U.S. 509, 519 (1982). "As a general rule, a exhaustion requirement by thereby itioner satis . in manner requi legations of 1 error.'" Moore, 386 F.3d 896, 915-916 (9th Cir. 2004) Hillery, 474 U.S. 254, 257, to present his claims to (1986)). v. Peoples, 489 If a habeas litigant failed state courts in a procedural context y presented to u.s. state courts and are Castille 346, 351 (1989). iled to comply with a state procedural rule, failed to raise the claim at the state level at all. Carpenter, 529 u.s. (1991). or Edwards v. 446, 451 (2000); Coleman v. Thompson, 501 U.S. If a pet claim in state court, unless the the ioner is deemed to have "procedurally defaulted" his claim if 750 Casey v. (quoting Vasquez v. therefore not eligible for federal habeas corpus review. 722, by the merits of the claims were actually considered, claims have not been A pet im to 'affording the state courts a meaningful opportunity to consider in which t es the irly presenting the federal c the appropriate state courts . state courts, re a federal court a ioner has procedurally defaulted a ral court will not review the itioner shows "cause and prejudice" for the fai 5 - OPINION AND ORDER im to present the constitutional issue to the state court, or makes a colorable showing of actual innocence. Gray v. U.S. 152, 162 (1996); Sawyer v. Whitley, 505 u.s. Netherland, 518 333, 337 (1992); Murray v. Carrier, 477 U.S. 478, 485 (1986). B. Analysis 1. Grounds One and Four In Grounds One and Four, attorney was ineffective petitioner alleges that his trial for iling to: (1) object Candelaria's trial testimony on the basis that Dr. to Dr. Candalaria's name was not on the indictment; and (2) object to the introduction of evidence from Family Friends Counseling because the relevant exhibits had been wrongfully withheld from petitioner. raised both of these claims in his first PCR Petitioner Petition. Respondent's Exhibit 117, pp. 2 4. On appeal, petitioner did not challenge the PCR trial court's decision regarding the Family Friends Counseling evidence. he did raise a claim of ineffective assistance of While counsel pertaining to Dr. Candeleria's testimony, that claim differed from the one raised during his PCR trial and in the operative pleading in this federal habeas case. Specifically, in his PCR trial and in his federal habeas Petition, petitioner alleges that counsel simply failed to object to Dr. Candeleria's petitioner's first PCR action, testimony. During the State responded that counsel did, in fact, object to that testimony, Respondent's Exhibit 123, I I 1 6 - OPINION AND ORDER p. 5, and the PCR trial court directly address the claim when it specifically found that counsel did attempt to have this evidence excluded. Respondent's Exhibit 133, p. 1. to change his claim in his admi tted that counsel This caus PCR Appellant's Bri obj ected to the relevant pet ioner where he now testimony, faulted counsel for not making a better objection. but Respondent's Exhibit 134, pp. 8-9. Ineffective assistance of counsel claims are discrete and must be properly raised in order to avoid procedural default. Carriger v. Stewart, 971 F.2d 329,333-34 (9th Cir. 1992), cert. denied, 507 U.S. 992 (1993). Petitioner's claim was the couns failed to object at all, but when the evidence clearly showed that counsel did object, petitioner changed his claim and alleged that counsel's objection could have been better. These are distinct claims, and the former does not encapsulate the second. Because petitioner raised neither his Ground One nor Ground Four claims on appeal, he failed to fairly present them to Oregon's state courts and they are now procedurally defaulted. 2. Ground Three As Ground Three, petitioner alleges that trial counsel failed to adequately object to the -trial court's exclusion of a 1995 police report and video tape where the victim allegedly stated that he was abused by Michael Meyer. his PCR Petition. Pet ioner'raised such a claim in Respondent's Exhibit 117, p. 2. 7 - OPINION AND ORDER He also raised the claim in his Appellant's Brief and Pet Oregon Supreme Court. ion for Review in the Respondent's Exhibit 134, p. 8; Respondent's Exhibit 136, pp. 7-8. though respondent properly asserts that petitioner did not specif lly argue on appeal that counsel had any more advantageous basis upon which to object, any weakness of the argument presented on appeal is not relevant to the issue whether pet ioner irly presented his claim. court will address the mer 3. Accordingly, the s of this claim later in this Opinion. Grounds Eleven, Thirteen, and Sixteen Grounds Eleven, Thirteen, and Sixteen all raise assistance of appellate counsel claims. to raise any c ffective Because petitioner iled im pertaining to the performance of appellate counsel during his only proper PCR appeal, Respondent's Exhibits 134 & 136, he failed to fairly present these claims to Oregon's state courts. As the time for doing so has passed, the claims are now procedurally defaulted. 4. Ground Five In Ground Five, petitioner all constitutionally de s that his t al attorney was cient because he did not adequat y challenge the trial court's ruling that counsel was not allowed to cross examine the State's witnesses. claim during his PCR appeal. Petitioner failed to raise this Respondent's Exhibits 134, 136. While he did raise the claim in his second PCR action, Respondent's Exhibit 139, he presented the claim in a procedural context in 8 - OPINION AND ORDER which the merits were not considered by the state courts because the Petition was untimely and improperly successive. As a result, petitioner failed to fairly present his Ground Five claim, which is now procedurally defaulted. 5. See Castille, supra. Ground Nine In Ground Nine, petitioner alleges that trial counsel erred when he failed to properly introduce Dr. Candelaria's 1996 report in which one of the victims allegedly asserted a false claim of sexual abuse against petitioner. anywhere wi thin defaulted. the first PCR Such a claim is not contained action and is now procedurally Respondent's Exhibits 117, 134, 136. 6. Grounds Eighteen, Nineteen, Twenty-One, and Twenty Three Finally, petitioner raises four grounds for relief pertaining to the fact that most of his convictions were imparted by a less than-unanimous jury. Petitioner did not raise these claims in his first PCR action, but attempted to do so in his second PCR action. Respondent's Exhibit because second the 139, PCR improperly successive, pp. action was As context discussed dismissed petitioner failed claims from that action in a actually considered. 7-8. to as previously, untimely and fairly present any in which the merits were Because the time for presenting such claims passed long ago, they are now procedurally defaulted. III III 9 - OPINION AND ORDER III. The Merits Pet ioner' s sole remaining claim arises from Ground Three where he alleges that trial counsel failed to make an adequate objection to the trial court's exclusion of a 1995 police report and video tape where the victim allegedly accused a different person of sexual abuse. A. Standard of Review An application for a writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was: application the (1) "contrary to, or involved an unreasonable ,clearly established Federal law, as determined by Supreme Court of the United States;" or (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. 2254(d). § A state court's findings of fact are presumed correct, and petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. A state court decision established precedent if the 28 U.S.C. is § "contrary state court 2254(e) (1). to clearly applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless precedent." arrives Williams v. at a Taylor, 10 - OPINION AND ORDER result different 529 U.S. 362, from 405 06 [that] (2000). Under the "unreasonable application" clause, a federal habeas court may grant reli "if the state court identif s the correct governing legal principle from [the Supreme Court's] decisions but unreasonablyappl case." that principle to the facts of the prisoner's Id at 413. The "unreasonable application" clause requires state court decision to be more than incorrect or erroneous. Id at 410. The state court's application of clearly established law must be objectively unreasonable. B. Id at 409. Analysis According to Ground Three of the Petition for Writ of Habeas Corpus, trial counsel failed to adequately obj ect to the trial court's exclusion of a 1995 police report and video tape where one of the victims allegedly stated that he had been abused by Michael Meyer. tha~ Because no Supreme Court precedent is directly on point corresponds to the facts of this case, general two-part test determine whether counsel. First, the Supreme Court the court uses the has established to itioner received ineffective assistance of Knowles v. Mirzayance, 129 S. ct. 1411, 1419 (2009). petitioner must show that his counsel's performance fell below an obj ecti ve standard of reasonableness. Washington, 466 U.S. 668, 686-87 (1984). Strickland v. Due to the difficulties in evaluating counsel's performance, courts must indulge a strong presumption that the conduct falls reasonable professional assistance." 11 - OPINION AND ORDER within the Id at 689. "wide range of Second, petitioner must show that his counsel's performance The appropriate test prej udiced the defense. whether the petitioner probability that, but can for show "that counsel's for prejudice is there is a unprofessional reasonable errors, result of the proceeding would have been different." Id at 694. A reasonable probability is one which is sufficient to confidence in the outcome of the trial. Id the at ~ndermine 696. When Strickland's general standard is combined with the standard of review governing 28 U.S.C. § 2254 habeas corpus cases, the result is a "doubly deferential judicial review." Mirzayance, 129 S. Ct. at 1420. In his rst PCR counsel was ineffect exclusion at trial previously been I petitioner alleged that trial for failing to "adequately object to the of an included by Exhibit 117, p. 2. ! Petition, October a 1995 video pre-trial judge. tape ff that had Respondent's During his PCR trial, the following exchange took place: State's Atty: Okay. Now, it sounds like your attorney fought pretty hard to get this information in, and that your main claims are really against the Trial Court and - its ruling? Petitioner: In somewhat yes and no because I feel that my attorney should have moved for a mis-trial on the grounds that we were denied due process. We were not allowed to bring the evidence in, which greatly destroyed my possibility of a fair trial. Respondent's Exhibit 132, pp. 18-19. 12 - OPINION AND ORDER It is clear from petitioner's PCR testimony that his claim against trial couns was based on couns 's failure to move for a mistrial based upon the alleged due process violation. Counsel had, however, repeatedly sought to admit evidence pertaining to the accusation against Michael Meyer, but the trial court consistently denied the introduction of such evidence and ultimately advised counsel that Meyer. it did "not want to Trial Transcript, " hear pp. anymore 78-85, about 164-176, Counsel was under no obligation to file a me Michael 307-318. tless motion for a mistrial, or otherwise make a fourth attempt to admit the evidence. See Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994), rev. denied, 513 U.S. 1001 (1994) (an attorney is not required to fi he knows to be meritless). a motion Indeed, it is apparent from the record that the judge had grown exasperated regarding the Michael Meyer issue following counsel's third attempt to admit the evidence, and it was a sound strategic decision not to raise the issue again in the form of a motion for mistrial. Counsel attorney did with performance what respect did not was reasonably to fall the required evidence below an at of issue, objective reasonableness when he did not move for a mistrial. the PCR trial court's decision denying reI a f competent thus standard his of Consequently, on this claim is neither contrary to, nor an unreasonable application of, clearly established federal law. 13 - OPINION AND ORDER IV. Insufficient Pleading Peti tioner, case, has pleading. through his argued new appointed attorney in this habeas claims The court not contained in the ive not detail them, as it has decided this case based solely upon the claims contained only in the Pet ion as required by Rule 2{c) of the Rules Governing Section 2254 Cases. 302 F.3d 1067, 1070 See Greene v. Henry, court need not cons 3 (9th Cir. 2002) claims not raised in the petit The appropriate procedure for adding claims to ) a (a . case is through the filing of an amended petition, not by alleging them in a supporting memorandum. wi thin petit all new claims rai counsel that, Consequently, the court summarily denies in future, such cl I S briefing and advises should be rais in an amended pleading or not at all. CONCLUSION ified above, For the reasons (#2) is DENIED. the Petition for Wr The court Habeas Corpus Certi cate of Appealability on the basis that petitioner has not made a substantial showing of the pursuant to 28 U.S.C. § declines to of issue a 1 of a constitutional right 2253(c) (2). IT IS SO ORDERED. DATED this ~ day Owen M. Panner Unit States District Judge 14 - OPINION AND ORDER
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
