Jones v. Nooth, No. 1:2009cv01055 - Document 46 (D. Or. 2011)
Court Description: Opinion & Order Petition for Writ of Habeas Corpus 1 denied. Court declines issuance of Certificate of Appealability. Ordered & Signed on 9/7/11 by Judge Owen M. Panner. (kf)
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Jones v. Nooth Doc. 46 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MEDFORD DIVISION MARVIN B. JONES, CV. 09-1055-PA Petitioner, v. OPINION AND ORDER MARK NOOTH, Respondent. THOMAS J. HESTER Office of the Federal Public Defender 101 SW main Street, te 1700 Portland, OR 97204 Attorney for Petitioner JOHN KROGER Attorney General JACQUELINE KAMINS Oregon Department of Justice 1162 Court Street, NE Salem, OR 97301 Attorneys for Respondent 1 - OPINION AND ORDER Dockets.Justia.com Panner, Judge. Petitioner, an inmate at Snake River Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. challenges the legality of his 2003 state court He ctions and sentencing, alleging ineffective assistance of trial counsel. For the reasons set forth below, the Petition for Writ of Habeas Corpus (#1) is DENIED. BACKGROUND In March 2003, Petitioner was indicted on 5 counts of Sodomy in the First rst Degree (Counts 1-5), one count of Sexual Abuse in the Degree Penetrat (Count 6), and one count because did not encouraging him to imprisonment. Petitioner's want take (Respt. 's years, and Petitioner requested a new attorney t plea bargain which ta second to a Ex. inted 126 at attorney bargain, but the state increased counsel seven 14; Ex. also was term of 125 at presented 62.) a plea term of imprisonment to ten in refused insisted on going to trial. Ex. 124 at 11; Ex. 126 at 14.) Following girlfr Sexual (Respt.' s Ex. 102; #44, at 2.) Petitioner was appointed counsel, but IS Unlawful in the First Degree (Count 7) for acts alleged by his ex-girlfriend's son and daughter. (Respt. of a bench trial at , and her children testifi on three counts of Sodomy in the which Petitioner, ,Petitioner was found gui ex y rst Degree (Counts I, 2, 4), and one count of Sexual Abuse in the First Degree (Count 6). 2 - OPINION AND ORDER his (Respt. 's Ex. He was 101.) found . 's Ex. 115 . ) not guilty on counts 3, 5, and 7. Petitioner was sentenced to two consecut 100-month terms of imprisonment Measure 11 on Counts 1 and 4; a concurrent 100-month term on 2, and a concurrent 75-month term on Count (Respt.'s 6. Ex. 101, Amended Judgment 7/29/2004.) Pet aI, arguing the court imposed a ioner filed a direct ional departure sentence Washington, 542 U.S. 296 (2004). Court of Appeals affi (" PCR") assistance of ew. of the and 42 claims, appellate courts. (Re alleging counsel . 's Ex . reI and 118 . ) Pet se. court denied counsel's mot to f ive chall the Pet was appointed counsel, but sought new counsel within a few mont PCR The (Respt. 's Ex. 107, 106.) ion for post-convict approximately trial v. Bl (Respt. 's Ex. 102 at 3.) ioner filed a pro se raising of Petitioner's sentencing, and the Supreme Court denied Pet olation in withdraw, The encouraging to work with his attorney or be prepared to proceed pro (Respt. 's Ex. 126, at 7.) er Petitioner filed a comp int PCR counsel with the Oregon State Bar, counsel was allowed to withdraw and Petitioner p 52.) Following the PCR trial, t a ral judgment specified: a 3 the case. pro se. (Respt. 's Ex. 124, at PCR court denied "Trial attorney investigated and Court believed State's case. OPINION AND ORDER ew and in Not ng se he could have done. Terrible facts for peti tioner." (Respt.' s Ex. 127.) Petitioner appealed the PCR court decision, with PCR appellate counsel filing a Balfour by Petitioner's Part B, f suppl which raised six assignments of error." .'s Ex. 129.) PCR court Oregon Court of Appeals affirmed opinion, (Re and the Oregon Supreme Court The sion without ed review. (Respt. 's Exs. 132, 131.) the instant Petitioner fil five grounds for relief, with 1 habeas numerous ition raising sub-claims. 2 In his supporting memorandum, Petitioner argues the following five claims: A. Trial counsel was ineffective in his handling of t motion to suppress because he iled to recognize that [ Petitioner's] initial statements were t fruit of a warrantless arrest in his horne. B. Trial counsel was inef in failing to impeach [Petitioner's] accusers with their own inconsistent accounts and in failing to argue those Upon concluding that only lous issues st on direct appeal, a Balfour f allows appointed counsel to meet constitutional requirement of "act advocacy" without violating rules of pro sional conduct. Section A, signed by counsel, contains a statement of t case, including a statement of facts, sufficient to se the court of the j sdictional basis for the appeal, but contains no assignments of error or argument. Section B, signed only by the appellant, is a presentation of the issues that appellant seeks to raise but that counsel considers to be frivolous. Balfour v. State of Oregon, 311 Or. 434, 451 52, 814 P.2d 1069 (1991). i Court notes Petitioner numbered the grounds for relief in his petition as Ground One, Two, Three, Five, and Six. (#1, Pet. at 4-14.) In his Memorandum Petitioner argues claims designated as A, B, C, D, and E. For cl y, the Court adopts designation A-E in discussing the me ts of Petitioner's claims. 4 - OPINION AND ORDER inconsis tween es, as well as inconsistencies accuser's accounts, to t fact finder. C. Tri counsel was defi ent in failing to obt n the prosecutor's grand jury notes even though the indicted charges were materially inconsistent with the children's accounts to authorit and CARES and, imately, their own testimony. D. Trial counsel iled to ef ively advocate for [Petitioner] at sentencing and he received a sentence double that recommended by the probation office. E. I counsel was inef ive in failing to exclude, and then failing to object to Dr. Lorenz's medically certain diagnosis that each of the children were sexually abused by [Petitioner]. Brief, at 29-37.) Respondent contends Petitioner has not met his burden of showing he is entitled to relief on t claims he does not argue in the supporting memorandum. (#44, at 4.) further and de a that ims A, C, 0, ted, and in any event claims A, B, C, merits. at 5-19.) (Id. E 0, are Respondent procedurally and E fail on the Upon review of the record, the Court s. DISCUSSION I. Exhaustion and Procedural Default Generally, before a ral court may cons granting habeas corpus relief, a state prisoner must have exhausted all avail state court remedies either on direct appeal or through collateral proceedings. 526 U.S. exhaustion See 28 U.S.C. § 2254 (b) (1) i O'Sullivan v. Boerckel, 838, 842 (1999). requirement 5 - OPINION AND ORDER by A fairly state prisoner presenting his satisfies claim to the the afforded under appropriate state courts at all appellate Baldwin v. state law. S.Ct. 2975 highest (2005). state satisfaction § 915-16 386 F.3d 896, Moore, 138.650 541 U.S. Reese, (9th Cir. In Oregon, court with 27, 29 2004), Peterson v. Casey v. cert. 125 ied, the Oregon Supreme Court is the jurisdiction to of the exhaustion requirement. (2005); (2004); Lampert, r See claims in Or. Rev. Stat. 319 F.3d 1153, 1156 (9th r. 2003). A federal claim is "fairly presented" to the state courts if it was presented "(1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper for the claim." r. 2005) reI Insyxiengmay v. Morgan, (internal citations 403 F.3d 657, omitted). For 93 Court (2000). has considered federal claims fairly (9th ction pet ion , 166 Or. App. See Bowen v. Under limited circumstances, 668 post f, claims must be raised in the petition or or they are considered waived. 89, I basis I t present Supreme when t specifically cross-referenced claims in the assignment error and attached a cl lower court brief arguing the I Farmer v. Baldwin, 346 Or. 67, 79-81, 205 P.3d 871 (2009). When a state prisoner fails to exhaust his federal ims state court and the state court would now find the claims under applicable state rules, the federal claims are lted. rally Casey, 386 F.3d at 920; Coleman v. Thompson, 501 U.S. 6 - OPINION AND ORDER 722, 735 n.1 (1991). Habeas review of procedurally defaulted is barred unless the petitioner demonstrates cause for the procedural default and actual prejudice, r cons the claims will result or that t to i in a miscarriage of justice. v. Carpenter, 529 U.S. 446, 451 (2000); eman, 501 U.S. at 750. Unargued and Procedurally Defaulted Claims A petitioner seeking federal habeas reli showing the court he is entitled to relief. 537 U.S. 19, 24 r. 2004), U.S.C. § s t Woodford burden of v. otti, (2002); Davis v. Woodford, 384 F.3d 628, 638 cert. denied 545 U.S. 1165 (2005). (9th Pursuant to 28 2248, "[t]he allegations of a return to t of habeas or of an answer to an order to show cause in a s corpus proceeding, if not traversed, shall be accepted as true extent that the judge finds from the evidence that t true." to are not Court has reviewed the record and finds Petit has not met his burden of showing he is entitled to relief on are not argued in his memorandum. Court's D, de and Furthermore, ew of the state proceedings confirms that claims A, C, E that are argued in the memorandum are procedurally ted. In his PCR appeal to the Oregon Court of Appeals, Petitioner raised s whi can assignments of error in Part B of the Balfour characterized as follows: (1) f the PCR court erred ng his request for new counsel and for an extension of time; 7 OPINION AND ORDER (2) PCR court erred in finding trial counsel investigated his case and provided effective sentation; (3) the PCR court e in finding trial counsel provided effective representat t al counsel did not challenge was possibly defective; fact Petitioner's PCR court erred in finding t (4) counsel provided effective 1 1 to relating to the detect 's entat stigate issues Petitioner rais because counsel and because counsel didn't properly challenge sses regarding conflicting testimony; ld (5) the PCR court erred in not granting an extension of time for Petitioner to file his memorandum; PCR hearing was unfair because he (6) se and was grieving was recent death of his step-brother. . 's Ex. 129 at 1-6.) (Re cla Petitioner argues in e s Stat. eman, the allegations pre Therefore, Claims A, C, 0, and E were not exhaust state court, and because the t Rev. the s Memorandum to this Court, with the ion of Claim 4 which inc as Claim B. claims are dist §138.650(1), 501 U.S. excuse his default. the 735 n.l. at for doing so has passed, are procedurally de Peti tioner makes no a tt in see Or. ted. to Accordingly, federal habeas review of Claims A, C, 0, and E is precluded. rds, 529 U.S. at 451. II. A. Standards of Review lowing passage of Antiterrorism and Effect Death ty Act of 1996 ("AEDPA"), an application for a writ of habeas 8 - OPINION AND ORDER corpus shall not be ed unless the adjudication on merits in State court was: (1) contrary to, or involved an unreasonable application of, clearly established Federal law as determined by t Supreme Court of United States; or 2) resulted unreasonable evidence pre 28 U.S.C. § 2254 (d). (2000), ision that was based on ion of the facts in light of the State court proceeding. In lliams v. Taylor, 529 U.S. 362, 38 389 the Supreme Court construed this provision as requir federal habeas courts to decisions under review. S.Ct. an 1388, highly deferential to the state court In Cullen v. Pinholster, 1398-1402 il 4, highly deferential nature of federal review "to the 2011), the Court reiterated ral habeas review, and limit that was before the state court t adjudicated the claim on t merits." law r " 'Clearly establis principle or princip 131 U. S. s set is the governing Ie I rth by the Supreme Court at the t the state court renders its cision." Lambert v. Blodgett, 393 F.3d 943, 974 (9th Cir. 2004) cert. denied, 126 S. Ct. 484 (2005). An "unreasonable applicat "of c ly established federal law if s the correct governing legal occurs when "the state court principle from [the Supreme] applies that principle to Lambert, Court's decisions but unreasonably 393 F.3d at 974 application Williams, of of the Williams) . law must 529 U.S. at 411 9 - OPINION AND ORDER s ( be objec sis added). prisoner's case." "The state court's vely "[AJ unreasonable." federal habeas court may not issue the writ simply its independent clearly Woodford, "[A] judgment that the established federal 537 U.S. at 24-25 law state court decision applied erroneous or (2002) (int habeas court must dete what ask whether it is possible s or theories ... sion; and then it must nded j s are incorrectly." tations omitted). could have supporte[d] the state court's those arguments or theor court concludes in e sts could disagree that is tent with the holding in a prior decision of this Court." 131 Pinholster, S.Ct. at 1402 (citing Harrington v. Richter, 562 U.S. , 131 S.Ct. 770, 786 (2011)). "A state court's determination t a precludes federal habeas relief so long as could disagree' on the correctness of t u.s. Richter, 131 S . Ct . 664 The last reasoned decision by t review by the federal court. 803-04 (1991); Cir. 2002). Franklin v. irminded jurists state court's decision." 770 , Yarborough v. Alvarado, 541 U.S. 652, aim lacks merit 786 (2011 ) (2004). state court is See Ylst v. Nunn Johnson, In this proceeding, (quoting basis for 501 U.S. 797, 290 F.3d 1223, 1233 n.3 Court (9th the state PCR trial court decision. In reviewing a state court decis not second-guess a state court's it court was not merely wrong, but actually unreas 10 - OPINION AND ORDER ral court may "[A] -f review of the state-court record, r ss unless, after the state t " Taylor v. Maddox, 366 F. 3d 992, 999 (9th Cir. that will be met in few cases. Id. 2004). This is a standard at 1000. When unchallenged, State court determinations of factual issues "shall be presumed to 28 U.S.C. be correct." u.S. 322, 340 §2254 (e) (1); Miller-el v. clearly 537 A Petitioner may rebut the presumption of (2003). correctness with clear and convincing evidence. The Cockrell, established federal law Id. governing claims of ineffective assistance of counsel is Strickland v. Washington, 466 u.S. 668, 687-88 Pinholster, (1984). 131 S.Ct. Under at 1403. Strickland, a petitioner must prove: 1) that counsel's performance fell below an obj ecti ve standard of reasonableness and, there is a reasonable probability that, but for 2) that counsel's unprofessional errors, the result of the proceeding would have been different. u.S. Bell v. Cone, 535 u.S. 685, 695 (2002); Williams, 529 at 390-91; Strickland, 466 u.S. at 687-88. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 u.S. at 694. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. "Judicial scrutiny of counsel's performance must be highly deferential," id. at 689, and "a court must indulge [the] strong presumption that counsel made all significant decisions in the exercise of reasonable professional 11 - OPINION AND ORDER judgment." Pinholster, (internal quotation 131 S.Ct. marks at 1407 omitted.) (quoting The Strickland) reasonableness of counsel's conduct must be evaluated in light of the facts of the case and the Strickland, circumstances 466 u.s. standard of review at at 690. the time of In addition, representation. a doubly deferential applies to federal habeas review of ineffective assistance of counsel claims. Knowles v. Mirzayance, 556 129 S.Ct. 1411, 1420 Cheney v. Washington, 995 (9th Cir. 2010) (2009); (deference under u.s. 111, 614 F.3d 987, 2254 and deference under § Strickland) . B. Analysis In Claim B, Petitioner alleges trial counsel was ineffective in failing to impeach his accusers with their inconsistent accounts and in failing to argue the inconsistencies to the fact finder. (#36, at 30.) Petitioner concedes the issue of the "children lying in order to get out of trouble in other circumstances" was raised and discussed with witnesses before the trier of facts, but argues counsel should have done more. under § court's 2254, Petitioner adjudication unreasonable of application (Id., at 32-33.) For habeas relief must his of demonstrate claim was Strickland, that the contrary or was state to, based PCR or an on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 12 - OPINION AND ORDER A review of the record leads the to conclude Petitioner has not met this accordingly, and, s relief must be denied. In the peR ng, Petitioner testified and argued that he was entitled to reI and he f because the children were highly sexuali their inappropriate behavior to their was of he acts alleged and wanted to prove his innocence; and in any event he should not have received as lengthy a sentence as was imposed. (Respt. 's Ex. 124-126.) In addition to Petitioner's testimony, the PCR court had for its consideration presentence text of a report t 1 to and apologized for inappropriate acts with Petitioner admi included, which included the ter to the children's mother in which handwritten the children. (PSI), (Respt.'s Ex. in relevant part: 123 at (a) 6.) The PCR record also Petitioner's PCR depos which Petitioner acknowledged the facts of his case were terr and that his tr barga 28); 1 counsel tried to convince him to ta re ,but ed, (Respt. 's Exs. 125 at 62; 126 at 14, (b) reports from CARES detailing exams and interviews of children and inte of identified lying as an Exs. a p 120, conclusion 122); and of their mother and grandmother sting problem for each child, (c) PCR relief, stating on t the bench aI, the trial PCR (Re transcript. court denied . 's At Pet ioner record: I've read what's in the files, I've looked at what [t counsel] had to work with and you know, I'm a t lawyer, this is what I did for a long time, and a t 13 - OPINION AND ORDER who 1 1 1 Judge and I can imagine - I can see why your lawyers though this was a bad case to go to trial on. The facts for you are terrible. ***** Based on police testimony, based on the physical evidence, based on what the children said, these facts are terrible. ***** I don't think there was anything else [trial counsel] could have done. I don't think he did anything wrong. A lot of things you wanted him to raise no Judge would have ever allowed in evidence. Ana a lot of the other ones are things that aren't very helpful when what you do, basically, is go after a couple of young kids. I think [trial counsel] probably told you that was a bad strategy and I think he was right. ***** [H]e did not do anything wrong here. And if the Judge believed the state's witnesses, which the Judge clearly did, I don't think there's anything [trial counsel] could have done to change that based on what the evidence was. ***** Once you're convicted of those charges the Judge had to give you a Measure 11 sentence; there's no choice. Measure 11 is a mandatory sentence. So once you're convicted of those charges there's no choice about a sentence. The court has to give a Measure 11 sentence. There's no way around it. ***** Under this set of facts I bet both lawyers told you you were going to lose. And I think that's exactly what they needed to tell you because it was their best estimate of what this case was like for trial. And I think they both gave you their honest opinion. But I don't think [trial counsel] had anything to do. ***** 14 - OPINION AND ORDER [s]o I do not find anything wrong with [trial counsel's] representation. He was simply not able to overcome the facts that were presented. But I don't think that's because he did a bad job. So I'm denying - I'm denying your petition for post-conviction relief. I understand you don't like the way it turned out; I don't blame you, but I don't think it's [trial counsel's] fault. (Respt. 's Ex. 126 at 37-39.) The PCR court's findings are presumed to be correct absent Petitioner presenting clear and convincing evidence to the contrary. this burden, § 2254 (e) (1) . Petitioner has not met and the record upon which the PCR court adjudicated Petitioner's claims supports the PCR court's findings. 3 In order to prevail on his claims, Petitioner had to show the PCR court that counsel's representation fell below objective standards of reasonableness, and that the outcome of the proceeding have would been representation. different but for counsel's In its general judgment, the PCR court specified: "Trial attorney investigated and argued the case. State's case. petitioner." deficient Nothing else he could have done. (Respt.'s Ex. 127.) Court believed Terrible facts for Petitioner did not meet his burden under Strickland, and the PCR court decision to deny relief was neither Strickland. contrary to nor an unreasonable application of Habeas relief is, therefore, precluded. The Court notes that because Petitioner was pro se, the PCR trial court was very accommodating as Petitioner argued all his claims, and the court took care to explain legal principles with which Petitioner was not familiar or which he had difficulty grasping. (Respt. 's Ex. 126 at 10-39.) 3 15 - OPINION AND ORDER CONCLUSION Based on the Habeas Corpus (# 1) foregoing, is DENIED. Petitioner's The Court Petition declines for Writ to issue of 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 ----.:l day of September, 2011. Of#t:K?a~-=Owen M. Panner United States District Judge 16 - OPINION AND ORDER
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