Soto-Nunez v. Nooth, No. 1:2009cv00578 - Document 39 (D. Or. 2011)
Court Description: Opinion & Order Petition for Writ of Habeas Cropus 2 denied. The court declines to issue a Certificate of Appealability. Ordered & Signed on 3/29/11 by Judge Owen M. Panner. (kf)
Download PDF
<![CDATA[
Soto-Nunez v. Nooth Doc. 39 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MEDFORD DIVISION JOSE PATRICO SOTO-NUNEZ, Civil No. 09-578 PA Petit r, v. MARK NOOTH, OPINION AND ORDER Re Thomas J. Hester Assistant ral Public Defender 101 S.W. Ma Street, Suite 1700 Port , Oregon 97204 Attorney for Petitioner R. Kroger Attorney General sten E. Boyd Assistant Attorney General rtment of Justice 1162 Court Street NE S em, Oregon 97310 Attorneys for Respondent 1 OPINION AND ORDER Dockets.Justia.com PANNER, District Judge. Petitioner U.S.C. § brings this habeas corpus case pursuant to 28 2254 in which he challenges the legality of his underlying criminal sentence. For the reasons that follow, the Petition for Writ of Habeas Corpus (#2) is denied. BACKGROUND Following a jury trial combining charges from two indictments, petitioner was convicted of two counts of felony DUll, two counts of Giving Theft. False Information to a Police Officer, and Identity Relevant to this habeas action,l at sentencing the trial court imposed an upward departure sentence on petitioner's Identity Theft conviction. The court based its departure sentence on petitioner's persistent involvement in similar offenses, namely his three prior convictions for Giving False Information to a Police Officer. Trial Transcript, ultimately imposed a Vol. sentence 2, pp. totaling 3, 18. The trial court 102 months in prison. Respondent's Exhibit 101. During his direct appeal, court lacked authority to petitioner argued that the trial impose a departure sentence on the Identity Theft conviction based on facts that were not pled in the indictment, admitted by petitioner, Respondent's Exhibit 113, p. 6. or found by a jury. Although he admitted his error was Petitioner limits his habeas challenge to the legality of his Identity Theft sentence. Memo in Support (#33), p. 4 n. 2. 2 - OPINION AND ORDER unpreserved for appellate ew, Appeals to reach it on t under Oregon law. 2 asked the Oregon Court of basis that it constituted "plain error" Oregon Court of Appeals agreed, the assignment of error, revi ed relief on petitioner's Si Amendment claim. Respondent pet i Oregon Supreme Court for review, which was granted. of the Oregon Supreme Court vacated the decision Court reconsideration n v. ts, Respondent's Exh Appeals and remanded case r of State v. Ramirez, 343 Or. 505 (2007), 1 adh'd to on recons, State of 344 Or. 343 Or 195 515 (2008) (S0542671 A123657), (2007) (s054609; A127874). n t 125. Upon remand, Oregon Court of Appeals concl s exercise of discretion to entertain petitioner's S claim as plain error had been erroneous. cally, t p. 1. Respondent's appellate court reasoned as it 133, llows: giving had three prior convictions ion to a police officer. offense, not identical to identity the sufficiently re is no legitimate the jury found defendant's three pr ctions to 2 review in Oregon's state courts is governed by ORAP 5.45(1) which states that n[n]o matter a as error will be cons on appeal unless the c imed error was preserved in the lower court. "ORAP 5.45 (1) s, however, provide an alternate whereby "the appellate court may consider an error law rent on the face of " This latter provision allows the Oregon Court of s to consider errors of law whi are" obvious" and "not rea y " Ailes v. Portland Meadows, Inc., 312 Or. 376, 381, 823 P.2d 956 (1991). 3 OPINION AND ORDER be for a "similar offense." Defendant did not dispute- in the trial court, on direct appeal, or on remand--the trial court's finding that the offenses were similar. Likewise, given the number of defendant's prior convictions, we conclude that there is also no legitimate debate that the jury would have found defendant to have been persistently involved in similar offenses. Accordingly, we decline to exercise our discretion to review the assigned error. Respondent's Exhibit 133, pp. 2-3 (internal citation omitted). The Respondent's Exhibit 135. Oregon Supreme Court denied review. Petitioner filed for state post-conviction relief, but later moved to voluntarily dismiss the case. federal habeas corpus relief He proceeded to file for on May 26, 2009 raising a single claim: whether the trial court's imposition of a departure sentence violated his right to a jury trial under the Sixth Amendment. Respondent because: asks the court to deny relief on the Petition (1) the specific argument petitioner makes here was never presented to any state court; (2) petitioner's Sixth Amendment claim was not fairly presented to Oregon's state courts and is now procedurally defaulted; (3) to the extent the claim he argues now was fairly presented to Oregon's state courts, they denied relief on the claim in decisions that are entitled to deference; and (4) petitioner's claim lacks merit. DISCUSSION I. Exhaustion and Procedural Default: Standards A habeas petitioner must exhaust his presenting them to the state's highest court, 4 - OPINION AND ORDER claims by fairly either through a direct appeal or collateral proceedings, before a federal will consider the merits of those claims. Rose v. Lundy, 455 u.s. 509, 519 (1982). "As a general rule, court a petitioner satisfies the exhaustion requirement by fairly presenting the federal claim to the appropriate state courts . state courts, thereby in the manner required by the 'affording the state courts a meaningful Casey v. opportuni ty to consider allegations of legal error.'" Moore, 386 F.3d 896, Hillery, 915-916 474 u.s. 254,257, (9th Cir. 2004) (1986)). (quoting Vasquez v. If a habeas litigant failed to present his claims to the state courts in a procedural context in which the merits of the claims were actually considered, the claims have not been fairly presented to the state courts and are therefore not eligible for federal habeas corpus review. v. Peoples, Castille 489 u.s. 346, 351 (1989). A petitioner is deemed to have "procedurally defaulted" his claim if he failed to comply with a state procedural failed to raise the claim at the state level at all. Carpenter, 529 722, 750 u.s. (1991). rule, or Edwards v. 446, 451 (2000); Coleman v. Thompson, 501 u.s. If a petitioner has procedurally defaulted a claim in state court, a federal court will not review the claim unless the petitioner shows "cause and prejudice" for the failure to present the constitutional issue to the state court, or makes a colorable showing of actual innocence. 5 - OPINION AND ORDER Gray v. Netherland, 518 u.s. v. II. (1996); Sawyer v. Whitley, 505 152, 1 u.s. 333, 337 (1992); e r , 477 U. S. 478, 485 (1986). Ca Analysis Respondent asserts that it factual basis underlying his S Amendment claim, procedurally default a red the r has materially a his 1 The court need not this iled to issue because, for the reasons which follow, petitioner irly sent any claims to the Oregon Supreme Court. When petitioner took his "did not object to the t obj ection that Exh he it 113, p. 7. now raises He thus re 1 is unpreserved." on s ure sentence imposed on ction," and that" ft that he rect appeal, he ity d not raise the constitutional on direct Respondent's appeal." 's argument ly conceded, "De at 8. He therefore as Oregon sis that Court of Appeals to review his unpreserved error on t it constituted plain error. As noted in the Background of this Opinion, the of Is ultimately e Sixth Amendment claim cIa s independent of rt the judgment. 6 by virtue of a state federal As a result, OPINION AND ORDER question, unpreserved As a result, procedural bar Respondent's Exhibit 133. was therefore reject was petitioner's scretion to overcome t r to review it. 0 that not constitute plain error. refused to exercise its in ned Court Petitioner's cedural rule, and adequate to this court is precluded from ng it. Coleman v. Thompson, 501 U.S. 722, 731-32 ekel v. White, 166 F.3d 953, 957 (9th Van (1991); r.), eert. denied, 528 U.S. 965 (1999). Put another way, lowing the procedural dismissal by t Court of Appeals, itioner was le s unpreserved Si raise Amendment cla with no ability to to the Oregon Supreme Court in a context in which the merits would Castille, 489 U.S. at 351. sent his Sixth Because considered. petitioner can no See longer claim to Oregon's state courts, procedurally defaulted the default has not is been excused. Relief on the Petition is therefore denied. CONCLUSION For the reasons i as Corpus (#2) is Certificate of Appeal ified above, DENIED. The court ility on the basis t Pet ion for Writ of lines to issue a petitioner has not 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 ~ day Owen anner United States District Judge 7 - 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.
