Phillips v. Angelozzi, No. 1:2012cv01022 - Document 38 (D. Or. 2013)
Court Description: Opinion and Order. The Petition for Writ of Habeas Corpus 3 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). Signed on 12/20/2013 by Judge Owen M. Panner. (dkj)
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Phillips v. Angelozzi Doc. 38 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MATTHEW STEVEN PHILLIPS, Civil No. 1:12-cv-01022-PA Petitioner, OPINION AND ORDER v. RICK ANGELOZZI, Respondent. MATTHEW STEVEN PHILLIPS 1417 Appleton Circle Medford, OR 97504 Petitioner Pro Se ELLEN F. ROSENBLUM Attorney General NICK M. KALLSTROM Assistant Attorney General Department of Justice 1162 Court Street NE Salem, OR 97301 Attorneys for Respondent 1 - OPINION AND ORDER - Dockets.Justia.com •'. PANNER, Judge. Petitioner, Corrections, a former brings U.S.C. § 2254. this inmate of habeas the corpus Oregon action Department pursuant to of 28 For the reasons that follow, the Court DENIES the Petition for Writ of Habeas Corpus (#3). BACKGROUND On March 25, 2005, a Jackson County jury found Petitioner guilty on charges of Robbery in the First Degree, Kidnaping in the First Degree, and Kidnaping in the Second Degree. On May 6, 2005, the trial judge sentenced Petitioner to 90 months of imprisonment on the first two counts, and merged the conviction on count three into the conviction on count two. Petitioner appealed. of Appeals Phillips, affirmed 217 Or. In a written opinion, the Oregon Court the App. conviction 93, 174 and sentence. P.3d 1032 (2007). sought review from the Oregon Supreme Court, State v. Petitioner which was denied. State v. Phillips, 345 Or. 159, 190 P.3d 380 (2008). Petitioner then sought state post-conviction relief ("PCR"). Following relief. an evidentiary hearing, the PCR trial Petitioner appealed the PCR judgment. filed a Balfour brief on Petitioner's behalf, judge denied Appellate counsel in which counsel acknowledged he had "not identified any arguably meritorious issue 2 - OPINION AND ORDER - on appeal." 1 Resp. Exh. 164, p. 3. Counsel although he had "supplied [petitioner] trial court records opportunity to and provided 'raise any issue' also noted that with copies of pertinent [petitioner] a reasonable in a Section B portion of the brief[,]" petitioner chose not to file a Section B. 164, p. 4. and the Angelozzi, Resp. Exh. The Oregon Court of Appeals affirmed without opinion, Oregon Supreme 247 Or. App. Court 766, denied review. 274 P.3d 315, rev. Phillips denied, v. 351 Or. 761, 280 P.3d 393 (2012). On June 7, 2012, Petitioner filed this action. The Petition for Writ of Habeas Corpus alleges four grounds for relief: denial of effective assistance of trial counsel; (2) ( 1) conviction obtained by the unconstitutional failure of the prosecution to disclose evidence evidence; and (4) favorable to petitioner; (3) new evidence of actual innocence. insufficient Respondent contends that Petitioner procedurally defaulted all of the claim alleged and that, to the extent Petitioner's third and fourth grounds are construed as free-standing claims of actual innocence, they are not cognizable. 1 Under Or. R. App. P. 5.90, if court-appointed counsel finds no meritorious issues for appeal, he or she may submit a brief with two parts. State v. Balfour, 311 Or. 434, 814 P.2d 1069 (1991). Section A is signed by counsel and provides a brief statement of the case. Section B is prepared by the petitioner, and may include any claim of error that the petitioner wishes to assert. 3 - OPINION AND ORDER - DISCUSSION I. Exhaustion and Procedural Default A habeas petitioner must exhaust his presenting them to the state's highest court, claims by fairly either through a direct appeal or collateral proceedings, before a federal court will consider the merits of those claims. 28 U.S.C. § 2254 (b) (1); Rose v. Lundy, petitioner 455 U.S. satisfies 509, the 519 (1982). exhaustion "As a general rule, a requirement by fairly presenting the federal claim to the appropriate state courts . . in the manner required by the state courts, thereby 'affording the state courts a meaningful opportunity to consider allegations of legal error.'" 2004) Casey v. Moore, 386 F.3d 896, 915-916 (9th Cir. (quoting Vasquez v. Hillery, 474 U.S. 254, 257 (1986)). 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. Castillo 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. Carpenter, 529 U.S. 446, 451 (2000); Coleman 722, 750 (1991). v. or Edwards v. ·Thompson, 501 U.S. If a petitioner has procedurally defaulted a 4 - OPINION AND ORDER - 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). On direct appeal, Petitioner assigned as error the admission of evidence of a prior bad act and the constitutionality of his sentence. Neither claim is at issue in this habeas corpus action. During petitioner's state PCR proceeding, claims of ineffective assistance misconduct to the PCR trial court. of he presented numerous counsel and prosecutorial Petitioner did not, however, raise any claim whatsoever on appeal. 2 Petitioner did not fairly present any of the claims alleged in his Petition to the highest state court, and he is barred from now doing so. Accordingly, Petitioner procedurally defaulted all of the grounds for relief. 2 In the brief on appeal to the Oregon Court of Appeals, petitioner's PCR appellate attorney contended that by filing a section A Balfour brief, petitioner was not abandoning any of the allegations made in the formal PCR petition to the trial court. Attachment of a petitioner's PCR petition to a Balfour brief can present legal questions for review "so long as the attachment serves as . the Section B of the petitioner's brief." Farmer v. Baldwin, 346 Or. 67, 80, 205 P.3d 871 (2009). However, mere reference in section A of a Balfour brief to the claims asserted in the underlying trial proceeding is not sufficient to fairly present those claims on appeal. See Jackson v. Belleque, 2010 WL 348357, *4 (D.Or. Jan. 21, 2010) (inclusion of post-conviction petition in excerpt of record does not function as an incorporation by reference). 5 - OPINION AND ORDER - II. Fundamental Miscarriage of Justice Exception to Procedural Default In Grounds Three and Four, petitioner appears to assert that he is actually innocent. A claim of actual innocence can excuse a procedural default where the petitioner introduces new evidence of his factual innocence such that, in light of that new evidence, no reasonable juror would have convicted him. u.s. 298, 327 (1995) of his innocence. Schlup v. Delo, 513 Petitioner has not introduced new evidence Petitioner claims he has identified three witnesses who would testify in his favor, but he does not identify the witnesses testimony. or indicate Accordingly, the substance of their proposed Petitioner cannot excuse his procedural default. Moreover, because petitioner cannot make a gateway showing of actual innocence under Schlup, to the extent Grounds Three and Four are construed as asserting a free-standing actual innocence claim, petitioner cannot prevail. 3 555 (2006) stronger House v. Bell, 547 U.S. 518, (a freestanding claim of innocence requires an even showing of' innocence than a gateway showing under Schlup) . 3 To the extent Ground Three is intended to constitute a due process challenge to the sufficiency of the evidence, such a claim is procedurally defaulted because it was not raised on direct appeal. 6 - OPINION AND ORDER - CONCLUSION For these reasons, (#3) is DENIED. Appealability substantial the Petition for Writ of Habeas Corpus on The court declines to issue a Certificate of the showing basis of pursuant to 28 U.S.C. § the that denial petitioner of a has not made constitutional 2253(c) (2). IT IS SO ORDERED. DATED this of December, 2013. 7 - OPINION AND ORDER - Owen M. Panner United States District Judge a right
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