Andrade-Paromo v. Mills, No. 1:2009cv01159 - Document 47 (D. Or. 2011)
Court Description: Opinion and Order. The Petition for Writ of Habeas Corpus 2 is denied, and the court denies petitioner's request for an evidentiary hearing. 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. Signed on 10/18/2011 by Judge Owen M. Panner. (dkj)
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Andrade-Paromo v. Mills Doc. 47 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MEDFORD DIVISION LEONARDO ANDRADE-PAROMO, Civil No. 09- 59-PA Petitioner, v. DON MILLS, OPINION AND ORDER Respondent. Anthony D. Bornstein, Assistant Federal Public Defender 101 S.W. Ma Street, Suite 1700 Portland, Oregon 97204 Attorney Petitioner John R. Kroger, Attorney General Andrew Hallman, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent 1 - OPINION AND ORDER Dockets.Justia.com I PANNER, strict Judge. Pet U.S.C. § r brings this habeas corpus 2254 challenging the legality of convictions Mistreatment. r Murder by Abuse, to case s Wa 28 ington County Assault, and For the reasons that follow, the Pet Criminal ion for Writ of Habeas Corpus (#2) is denied. BACKGROUND r-old sister, Autumn, an 18-month-old girl, and her three Teresa" were aced eight-month riod of time until their primary ca retire petitioner's care for an antic job. During that time, Autumn di optic nerve hemorrhaging, caused minor could of Shaken Baby and other injuries. inj uries to Teresa. charged with Murder by Abuse, As a Pet result, Degree, and Respondent's Exhibit A jury convicted petitioner on all 1 court sentenced him to 25 years in ioner also itioner was Assault in the Criminal Mistreatment in the First Degree. tr r it was also discovered that she had broken bones, Syndrome, 102. ed six or charges, and the ison. Respondent's Exhibits 102, 124. Pet ioner took a direct appeal, Oregon Court of Appeals affirmed the trial court without Supreme Court denied review. 546, 99 P.3d 1239 (2004) i State v. on, and the Oregon -Paromo, 195 Or. App. rev. denied 338 Or. (2005) . 2 - OPINION AND ORDER 583, 114 P.3d 504 I Petitioner next filed for post-conviction relief ("PCR") Umatilla County where Respondent's Exhibit 130. the PCR trial court denied relief. The Oregon Court of Appeals affirmed the lower court without opinion, and the Oregon Supreme Court denied review. Andrade-Paramo v. Hall, 228 Or. Appl 367, 208 P.3d 1057, rev. denied 346 Or. 589, 214 P.3d 821 (2009). Pet ioner filed his Petition for Writ of Habeas Corpus on September 30, 2009 raising four grounds for relief, all of which are predicated on the ineffective of trial counsel: 1. Trial couns was ineffective for not ensuring that petitioner was provided a jury of his peers; 2. Tr 1 counsel was ensure petitioner trial; 3. Trial counsel was inef ctive for allowing hearsay evidence without objecting; and 4. Trial counsel denied confront his accuser. Petition ineffective when he failed to understood the events at his pet ioner his right to r Writ of Habeas Corpus (#2), pp. 5 7. Respondent asks the court to deny relief on the Petition because: (1) all of petitioner's claims are procedurally defaulted; and (2) the claims that were fairly presented to Oregon's state courts were properly denied de rence. III III III 3 OPINION AND ORDER in decisions that are entitled to DISCUSSION I. Argued and Unargued Petitioner four c days, Cla~s led this action on September 30, ims of ineffective assistance of counsel. 2009 raising In fewer than 30 the court granted him leave to proceed in forma pauperis, appointed counsel from the Federal Public Defender's Office to represent him, and issued a Scheduling Order which immediately served the Petition for Writ of Habeas Corpus on respondent. With the assistance of newly-appointed counsel, never sought leave to file an amended petition. pet petitioner Nevertheless, ioner now proceeds to argue a claim of trial court error not contained in the Petition. Specifically, he asserts that the state trial court denied his right to confrontation by admitting hearsay statements elicited from prosecution witnesses. not contained in the operative therefore not eligible for review. pleading for Such a claim is this case and is See Rule 2(c), Rules Governing Section 2254 Proceedings, 28 U.S.C. foIl. § 2254 (requiring each habeas petition to "specify all the grounds for relief which are available to the petitioner") fn 3 (9th Cir. 2002) i Greene v. Henry, 302 F. 3d 1067, 1070 (a court need not consider claims not raised in the petition) . The court has, however, reviewed the claims contained in the Pet ion but not argued in petitioner's Based upon the existing record, 4 - OPINION AND ORDER supporting memorandum. the court determines that these See 28 pled but unargued claims do not entitle him to relief. U.S.C. § 2248 ("The 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."); see also Silva v. Woodford, 2002) II. 279 F.3d 825, 835 (9th Cir. (petitioner bears the burden of proving his claims). Exhaustion and Procedural Default Even if petitioner had properly pled his confrontation claim, such a claim would be procedurally defaulted. must exhaust highest s claims by court, proceedings, either Rose v. general rule, a pet presenting courts . irly presenting them to the state's through a direct appeal or collateral before a federal court will consider the merits of those claims. irly A habeas petitioner Lundy, 455 U.S. 509, 519 (1982). "As a ioner satisfies the exhaustion requirement by the federal claim to the appropriate state . in the manner required by the state courts, thereby 'affording the state courts a meaningful opportunity to consider legations of legal error. '" 916 (9th C (1986)) . . 2004) (quoting Vasquez v. If a habeas litigant state courts Casey v. Moore, 386 F.3d 896, 915 llery, 474 U.S. 254, 257, iled to present his claims to the 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 5 - OPINION AND ORDER federal habeas corpus review. Castille v. Peoples, 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 rule, failed to raise the claim at the state level at all. or Edwards v. Carpenter, 529 u.S. 446, 451 (2000); Coleman v. Thompson, 501 u.S. 722, 750 (1991). 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. Gray v. Netherland, 518 u.S. 152, 162 (1996); Sawyer v. Whitley, 505 u.S. 333, 337 (1992); Murray v. Carrier, 477 U.S. 478, 485 (1986). In this case, petitioner's unpled confrontation claim arises out of the admission of hearsay statements elicited from prosecution witnesses, and it is clear he did not present such a claim to the Oregon Supreme Respondent's Exhibit 106. Court during direct review. Peti tioner attempted to raise a new confrontation claim during his PCR action, but under Oregon law he was not permitted to do so where he could have reasonably raised his claim on direct appeal. Palmer v. State, 318 Or. 352, 354, 867 P.2d 1368 (1994) Petitioner could have lodged a pre-Crawford confrontation objection at trial pursuant to Ohio v. Roberts, 448 u.S. 56 (1980), 6 - OPINION AND ORDER where the Supreme Court determined that the admission of hearsay evidence made by an unavailable declarant did not violate the Confrontation Clause only if the statement bore sufficient indicia of reliability, i.e., if there was an applicable hearsay exception. Id at 66. Indeed, petitioner preserved a confrontation objection to other hearsay statements during direct review, but did not include the claim he argues (but has not pled) here. Exhibit 103. Respondent's As a result, even assuming petitioner had raised his confrontation claim his Pet failed to fairly present it, ion for Writ Habeas Corpus, he and the claim is now procedurally defaulted. III. Evidentiary Hearing Regyest Petitioner asks the court to hold an evident order to establish his actual innocence so as ry hearing in to excuse his procedural default pursuant to Schlup v. Delo, 513 U.S. 298 (1995). Pet ioner's request for an evidentiary hearing is denied for two reasons: (1) the constitutional violation petitioner attempts to establish is not contained within his Petition Writ of Habeas Corpus, thus a gateway showing of actual innocence to overcome the claim's default could not possibly lead to habeas corpus relief; and (2) petitioner's re 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, F.3d 1080, 1087 (9th Cir. 7 - OPINION AND ORDER 2002). Indeed, petitioner 286 ils to allege that "Wi thout he has any new evidence any new evidence of of innocence, his innocence at even the existence of a . . . meritorious constitutional violation is not suf establish a miscarriage of justice t to the merits of a barred claim." all. cient to would allow a court Schlup, 513 U.S. at 316. CONCLUSION For the reasons Habeas Corpus request Certif (#2) ified above, is denied, an evident and hearing. Petition for Writ of court denies itioner's court decl to issue a te of Appealability on the basis that petit 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 1$ day of s~, 2011. ~IU~ Owen M. Panner United States District Judge 8 - OPINION AND ORDER
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