Zavala v. Mills, No. 1:2010cv00245 - Document 24 (D. Or. 2011)

Court Description: Opinion and Order. Petition for Writ of Habeas Corpus 2 denied. Court declines to issue a certificate of appealability. Ordered & Signed on 5/17/11 by Judge Owen M. Panner. (kf)

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Zavala v. Mills Doc. 24 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION VICENTE ZAVALA, Civil No. 10-24S-PA Petitioner, v. DON MILLS, OPINION AND ORDER Respondent. Harold Ducloux, III Assistant ral ic Defender 101 S.W. Main Street, S te 1700 Port 97204 Atto Petitioner John R. Attorney General Jonathan W. 1 General Assistant rtment of Justice 1162 Court Street NE Salem, 310 for Respondent 1 OPINION AND ORDER Dockets.Justia.com PANNER, Dist ct Petit U.S.C. s 2254 § habeas llenging the court convict Assault this corpus suant case legality of his rst Degree. Petition for 28 state 1 sentences for Robbery in the the to rst Degree and follow, For the reasons the of Habeas Corpus [2J is deni BACKGROUND On 13, petitioner on the 2003, s of Attempted Murder, two counts of Robbery in , Robbery in the Second rst First Jury indicted the Yamhill County dnapping in the ree, , Kidnapping in the Second Degree, As Degree, As Degree. the Second Degree, Re 's Exhibit 102. Pet the s. court t sentences. to plead e e and one count of Respondent's Exhibit 103. sentenced petitioner to On January 22, 2004, consecut t al court 's Re affi error Exhibit which 105, p. he 3. ac a single claim was unpreserved. Court The the trial court's decision without a wr the Or Court denied review. 109. 2 90-month Respondent's Exhibit 104, pp. 55 59. Petitioner took a direct appeal where he rais of Second rst Degree and, in exchange, the State dropped the rema the the First the Theft guilty to one count of Robbery in the First Assault t OPINION AND ORDER Re of Appeals en opinion and I s Exhibits 108, Petitioner next fil post-conviction relief Umatilla County where the Petition. Appeals PCR trial court denied reI its 117, Respondent's affirmed Respondent I s t lower Exhibit 121. court I s 118. ("PCR") f in on The Oregon Court of decision without opinion. Petitioner's attorney did not file a petition for Oregon Supreme Court. Petit fil s federal Petition for Wr of Habeas Corpus on March 8, 2010 raising three grounds for relief: 1. 2. Tri couns provided ineffect assistance in violation of the S when he failed to object to the sentences and failed to ely prepare for trial; and 3. Petition The t court imposed il 1 consecut sentences in violation of the 14 Amendment when it based the consecutive sentences on facts not proven a reasonable doubt to a jury; Petitioner did not enter his knowingly and voluntarily as requi Fourteenth Amendment. of r Re because Oregon's asks none of s Corpus the court petitioner's Court, and default III III III 3 OPINION AND ORDER to (#2). deny claims the ea by reI were claims f on rly are now the Petition presented to procedurally DISCUSSION I. Exhaustion and Procedural Default Standards A habeas itioner presenting will consi 519 s exhaust claims to the state's highest court, direct appea 509, must or co r (1982). exhaustion a a Rose v. "As a general rule, federal court Lundy, the federal claim to the appropriate state courts . t state courts, state courts 'affording manner required by the opportunity to consider allegations of 1 Moore, 386 F.3d 896, 474 U.S. 254, 257, Hillery, to present in whi s corpus review. it if he r is deemed to failed to comply to raise the claim at t lle "procedurally defaulted" th a (1991) . If a state court, state procedural eman v. Thompson, petitioner has procedurally de a 4 - OPINION AND ORDER rule, state level at all. 529 u.s. 446, 451 (2000); 750 Cas 489 u.s. 346, 351 (1989). es, Ca cia i to the staJe courts and are not eligible for federal A 722, (quoting Vasquez v. the merits of the claims were actually considered, there il Casey v. If a habeas litigant not been fairly present v. meaningful 1 error.'" (9th Cir. 2004) (1986)). a s claims to the state courts in a procedural context cia cIa 915-916 455 U.S. a petitioner satisfies the rement by fairly present thereby fairly either through a ateral proceedings, merits of those by court will not review s or v. 501 U.S. ult a claim unless the petitioner shows "cause and prejudice" t to present the constitutional issue to the state court, or rna s a colorable showing of actual innocence. 518 Gray v. Ne U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992); Murray v. II. Ca 477 U.S. 478, 485 (1986). er, Analysis On direct ew, erroneously facts whi i tioner alleged that trial court consecutive sentences in his case based upon were by the court, not by a jury. the Background of t s Opinion, petitioner conce Court of Appeals t this claim was unprese review, and he to raise s not argue otherwise here. this aim Oregon Court pres lly defaulted. entitl t to in Ii s r failed Is to in the irly present aim passed long Even if titioner had fairly im to Oregon's state courts, t appellate of Because the time for fairly presenting ago, it is me the to the Oregon As 1 context, petitioner fail appropriate it. to As noted in he would not be corpus relief because it is clearly without of the Supreme Court's de sion Oregon v. Ice, 129 S.Ct. 711, 719 (2009). During itioner's PCR appeal, Oregon Court of Appeals: imposed consecutive 530 U.S. 5 466 (1) sentences (2000); OPINION AND ORDER sent whether the t in and vio (2) tion two issues to the al court improperly of Apprendi r v. New trial counsel was ineffective for faili sentences to object to the imposition of consecutive under Respondent's petitioner did not raise Exhibit portion of his Ground Two habeas corpus claim where he alleges that counsel trial, nor did claims of t 1 court counsel a to preserved r r O.R.A.P. 9.20(2) ( only questions p petition for error and the allegedly review in inef Oregon's tions before. the Oregon re for to s claim that As a result, only i ve assistance of erroneous sentence Court. ew claims were erroneously OPINION AND ORDER which the ter on February 4, In your post-conviction brief, we raised two issues: 1) that the court's imposition of consecutive sentences was unlawful under State v. Ice. . and 2) that your tr 1 attorney was incompetent for failing to raise an[] Ice aim. These argument[s] were ected by the Court of Appeals on 31, 2008. On 5, 2009, I wrote told you that would file a petition by today, ry 4, 2009. Unfortunately, the United States Supreme Court revers Ice on January 14, 2009. In ot , the basis of our claim has been definit ly rejected by the highest court in land. There is no issue to advance to Supreme Court. As such, I will not ling a petition for ew on your behalf today. I am sorry that I cannot be of further assistance to you. 6 See ided by that court) . the following: Petitioner's Exhibit 2. were Court include rly before the Court of Appeals Petitioner's PCR attorney wrote him a 2009 containi il raise his Ground Three habeas co his guilty plea was not knowing and voluntary. his Thus, 119. In response, petitioner wrote to counsel asking him to file a i tion for a so. review so he would not lly default these ,Petitioner's Exhibit 3, but counsel apparently did not do As a result, petitioner procedurally itioner claims he did all While a ulted his Ice claims. could to fairly present his to Oregon's state courts, the conduct of his attorney does not arise to the level of cause to excuse petitioner's default e cause to excuse a error can only be shown where eman v. It predicated on attorney 1 re is a constitutional violation, 501 U.S. 722, 752 (1991), and petitioner had Thompson, no constitutional right to counsel in post-conviction 481 Pennsylvania v. Finley, In addition, u.s. 551, 556 (1987). itioner alt asserts abandoned his case in the wake of the U.S. decision, any such aba not begin to approa (2010), where the where documents state in t claims raised in Holland v. t Florida, Ice s 130 S.Ct. 2549 r's attorney failed to communicate with it rs, action state failed to properly research prevented court. Id petitioner at from not 7 - OPINION AND ORDER entitle him to s case, fil any contrast, 2555-59. If after the case law defini t would counsel Supreme Court's oetitioner's attorney in this case declined to peti tioner I s that of petitioner's case by counsel him over a period of and ngs. le a brief on y relief. that the This is insufficient to arise to the level of cause and ce to excuse j petitioner's procedural default.l Even if petitioner's PCR attorney 1 review with the Oregon Supreme Court so as to aims which were properly before Supreme Court's held that the Sixth Amendment t ion for irly present the Court of Appeals, peti tioner would nevertheless not be ent i tl relief due to the U.S. a to habeas corpus ision in Ice where it judges from finding s not sentences. the facts necessary to impose consecut Accordingly, relief on the Petition is CONCLUSION For the reasons identifi Habeas Corpus [2] is above, DENIED. The Certificate of Appealabil y on made a substantial show of t the Petition for Writ of court declines to issue a sis that petitioner has not ial of a constitutional right pursuant to 28 U.S.C. § 2253 (c) (2). IT IS SO ORDERED. DATED this day of May, 2011. iJ~M~~ Owen M. Panner United States District Judge It is also noteworthy that Holland involved t Ie tolling of the Anti-ter sm and Effective Death Penalty Act's one-year statute of limitations, an area of the law federalism concerns, while certainly present, are less s than rta to fair presentation. 8 OPINION AND ORDER

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