Morales v. Mills, No. 1:2009cv00096 - Document 36 (D. Or. 2010)
Court Description: Opinion and Order. For the reasons identified, 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). IT IS SO ORDERED. Ordered by Judge Owen M. Panner. (dkj)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION JAIME A. MORALES, Civil No. 09-96-PA Petitioner, v. MR. MILLS, OPINION AND ORDER Respondent. Anthony D. Bornstein Assistant Federal Public Defender 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 Attorney for Petitioner John R. Kroger Attorney General Kristen E. Boyd Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent 1 - OPINION AND ORDER PANNER, District Judge. Peti tioner U.S.C. § brings this habeas corpus case pursuant to 28 2254 in which he seeks to challenge the legality of his state court convictions for Robbery and Burglary. For the reasons that follow, the Petition for Writ of Habeas Corpus (#2) is denied. BACKGROUND In 2003, Degree, Degree. a petitioner was charged with Robbery in the First Robbery in the Second Degree, Respondent's Exhibit 102. jury trial, and Burglary in the First Petitioner waived his right to and the court found him guilty of Robbery in the Second Degree and Burglary in the First Degree. p. 109. Trial Transcript, The court imposed a seventy-month sentence for Robbery and a concurrent 34-month sentence for the Burglary conviction. Id at 122. The court also imposed restitution for medical expenses. Peti tioner took a direct appeal, but the Oregon Court Appeals affirmed the lower court without opinion, Supreme Court denied review. of and the Oregon Respondent's Exhibits 104-108. Petitioner next filed for post-conviction relief ("peR") In Umatilla County where the PCR trial court denied relief on all of his claims. Respondent's Exhibits 113, 114. The Oregon Court of Appeals summarily affirmed the PCR trial court, Supreme Court denied review. and the Oregon Respondent's Exhibits 118-122. Petitioner filed this federal habeas corpus action on January 22, 2009 raising one claim of trial court error and three claims of 2 - OPINION AND ORDER In his briefing, ineffective assistance of counsel. petitioner argues that he is actually innocent and asks the court to conduct an evidentiary hearing. on the claims because: Respondent asks the court to deny relief (1) petitioner's actual innocence claim was not properly presented in his habeas petition; presented in the habeas petition were not briefed; Grounds (4) One through petitioner's defaulted; deference; (5) Three Grounds the do One state (2) the claims (3) petitioner's not present through Three are procedurally decisions are entitled courts' (6) petitioner's claims lack merit; federal claims; to (7) petitioner does not establish that he is actually innocent; and (8) an evidentiary hearing is not warranted. DISCUSSION Petitioner has not briefed the merits of his claims, and he does not dispute respondent's contention that Grounds One, Two, and Three were not fairly presented to Oregon's state courts and are now procedurally defaulted. evidentiary hearing to Instead, he asks the court to hold an determine if he is actually innocent sufficient so that he may argue the merits of his procedurally defaulted claims. In Schlup v. Delo, 513 u.s. 298 (1995), the Supreme Court addressed the process by which state prisoners may prove "actual innocence" so as to excuse a procedural default. The Court explained that in order to be credible, a claim of actual innocence 3 - OPINION AND ORDER "requires petitioner to support his allegations of constitutional error with new reliable evidence--whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence--that was not presented at trial." Downs v. 121 S.Ct. (9 th Cir. 2000), 232 F.3d 1031, 1040 Hoyt, 1665 (2001). Id. at 324; cert. denied, The Ninth Circuit has held that "habeas petitioners may pass Schlup's test by offering 'newly presented' evidence of innocence." Cir. 2003). Griffin v. 350 F.3d 950, 963 (9th Johnson, The meaning of "newly presented" evidence is evidence that was not before the trial court. Id. Ultimately, petitioner must prove that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. States, 523 U.s. Schlup, 614, 623 of the newly U.s. (1998); making this determination, force 513 innocence in two Bousley v. United 232 F.3d at 1040. In this court "must assess the probative presented asserts 327; Downs, evidence evidence of guilt adduced at trial." Petitioner at that respects. he First, in Schlup, can connection with the 513 U.s. at 332. demonstrate he asserts his actual that he was the victim of inadequate interpretation and/or translation during his criminal trial, leading to a flawed fact-finding process. Second, petitioner argues that the trial judge's use of the words "I think" when finding him guilty demonstrate that he was convicted upon a 4 - OPINION AND ORDER lesser standard of proof than the required reasonable doubt standard. 1 Petitioner fails to provide any new evidence sufficient to allow the court to engage in a Schlup analysis. He simply seeks to provide this court with the testimony he provided to the state court, albeit approximately with six a different years to Having interpreter. scour the record to had determine, specifically, where his testimony was misinterpreted, petitioner is still unable to identify for the court what specific portion of his testimony, if any, was misinterpreted. Moreover, he does not explain why his testimony would prove his actual innocence. Similarly, while petitioner claims that he would like to locate the victim to testify at trial with a federally certified interpreter, the victim already testified in the state court, and petitioner fails to offer any basis to believe the victim might offer something useful. evidence of his Thus, petitioner has not offered any new innocence, and .. [w] i thout any new evidence of innocence, even the existence of a . . . meritorious constitutional violation is not sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim." Schlup, 513 U.S. at 316. Moreover, petitioner's actual The trial judge stated, "I think he was clearly involved in this and knew what was going on and was a participant and an active participant in trying to prevent people from leaving." Trial Transcript, p. 109. 1 5 - OPINION AND ORDER innocence arguments regarding interpretation and the standard of proof applied to his case amount to legal insufficiency, factual innocence. See Bousley v. United States, 523 (1998) a (requiring showing of factual not u.s. 538, 559 innocence, not legal insufficiency, to overcome a default). With respect to petitioner's request for an evidentiary hearing, his bare and unsupported claim to innocence "has failed to show what an evidentiary hearing might reveal of material import on his assertion of actual innocence." Gandarela v. Johnson, 286 F.3d declines 1080, to 1087 hold (9th an Cir. 2002). evidentiary Accordingly, hearing and the court concludes that petitioner is unable to excuse his default to Grounds One, Two, and Three. Petitioner does, however, have one fairly presented claim. Ground Four of his ineffecti ve for Petition, he alleges that his failing to obj ect to the imposed by the judge. In attorney was restitution which was Specifically, he alleges that the Supreme Court's decision in Blakely v. Washington, 542 u.s. 296 u.s. 294 (2004) requires such a decision to be made by a jury, not a judge. Petitioner has not argued this claim in his briefing, and has therefore not sustained his burden of proof. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) proof in a argued this habeas claim (petitioner bears the burden of corpus proceeding). in his 6 - OPINION AND ORDER brief, it Even is if petitioner had meritless because no objection was warranted. 1203 (9th Cir. United States v. DeGeorge, 380 F.3d See (restitution 2004) orders are unaffected by Blakely's holding); see also Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994), rev. 513 denied, u.s. 1001 (1994) (an attorney is not Thus, required to file a motion he knows to be meritless). state court contrary decision to, nor denying an relief on unreasonable established federal law. this claim application See 28 U.S.C. § 2254(d) is the neither of, clearly (identifying standard of review applicable to federal habeas cases). CONCLUSION For the reasons identified above, Habeas Corpus (#2) is DENIED. The the Petition for Writ of 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). _. IT IS SO ORDERED. DATED this 5 day of May, 2010. CJ//d 4;a3?~ Owen M. Panner United States District Judge 7 - OPINION AND ORDER
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