Gonzalez-Aguilera v. Franke, No. 2:2012cv01438 - Document 24 (D. Or. 2013)
Court Description: OPINION AND ORDER. The Court DENIES the Petition for Writ of Habeas Corpus and DISMISSES this action without prejudice. IT IS SO ORDERED. Signed on 5/14/2013 by Judge Anna J. Brown. (gw)
Download PDF
<![CDATA[
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON C. MICHAEL GONZALEZ-AGUILERA, Civil No. 2:12-cv-01438-BR Petitioner, OPINION AND ORDER v. STEVE FRANKE, Respondent . TODD H. GROVER WARD GROVER, LLP 233 SW Wilson Ave. Suite 204 Bend, OR 97702 Attorney for Petitioner ELLEN F. ROSENBLUM Attorney General SAMUEL A. KUBERNICK Assistant Attorney General Department of Justice 1162 Court Street NE Salem, OR 97301 Attorneys for Respondent 1 - OPINION AND ORDER - BROWN, Judge. Petitioner, Institution, U.S.C. § an brings 2254. inmate this at habeas the Two corpus Rivers action Correctional pursuant to 28 For the reasons that follow, the Court DENIES the Petition for Writ of Habeas Corpus. BACKGROUND On April 24, 2008, a Multnomah County jury found Petitioner guilty of three September 22, counts 2008, of Robbery Multnomah in the County Second Degree. Judge Kenneth On Walker sentenced Petitioner to seventy months of imprisonment on the first robbery count. At that time, Judge Walker also sentenced Petitioner to 60 months of imprisonment on an unrelated assault conviction, to be served consecutive to the robbery sentence. remaining two robbery convictions were put on hold The while Petitioner resolved a federal criminal matter. On March 31, 2009, Petitioner pleaded guilty in the United States District Court for the State of Oregon to one count of sending threatening communications through the U.S. mail. District Judge Robert E. Jones sentenced Petitioner to 60 months in federal prison, to be served consecutive to the state robbery sentence imposed by Judge Walker. Petitioner was then returned to Multnomah sentencing on the two remaining robbery counts. County for The trial judge merged them for the purposes of sentencing, and on April 1, 2009, 2 - OPINION AND ORDER - imposed a 70-month term of imprisonment, to be served concurrently with the sentence imposed on the first robbery count. On April 6, 2009, Petitioner filed a notice of appeal with the Oregon Court of Appeals on the robbery convictions. On April 8, 2009, the Oregon Court of Appeals appointed counsel. On July 17, 2009, Petitioner's appellate attorney requested and received additional time to file an opening brief. counsel filed an opening brief. On November 30, 2009, The State of Oregon then requested and received two extensions of time to file an answering brief. The State filed its brief on November 30, 2009. On March 23, 2011, the Oregon Court of Appeals heard oral argument. April 13, 2011, the court convictions and sentences. summarily affirmed On November 22, the On robbery 2011 , the appellate judgment became final. While the direct appeal was pending, Petitioner ("PCR") filed a petition for state in Malheur County Circuit Court. on November 1, post-conviction 2010, relief On December 30, 2010, the Malheur County judge granted the state's motion to dismiss the PCR petition without prejudice. On July 11, 2011, Petitioner filed a pro se petition for state post-conviction relief filing fee ("PCR") and a motion to waive the in Marion County Circuit Court. Circuit Court denied the motion to waive the August 16, 2011, The Marion County filing fee. On Petitioner filed a motion for reconsideration, 3 - OPINION AND ORDER - and on August 29, 2011, he filed a notice of his intent to appeal the denial of the motion to waive the filing fee to the Oregon Court of Appeals. Following a hearing on January 23, 2012, the Marion County Circuit Court agreed to waive the filing fee and accept the PCR petition. On February 24, 2012, the PCR trial court appointed counsel for Petitioner and directed petition by May 28, 2012. counsel to file an amended PCR Counsel did not do so, and on July 3, 2012, the trial court contacted counsel via e-mail. On October 10, 2012, counsel filed an amended PCR petition on Petitioner's behalf. On November 21, 2012, the State of Oregon filed a motion to dismiss the Petitioner direct PCR filed appeal action the for lack of action before the judgment. On December jurisdiction, because effective date of 18, 2012, the the parties resolved the matter and agreed Petitioner should cure the alleged defect by filing a second amended PCR petition, which his attorney did that date. The matter remains pending in Marion County Circuit Court. On October 9, 2009, Petitioner filed his first Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court challenging the Multnomah County robbery convictions. Aguilera v. Coursey, Case No. 2:09-cv-1174-SU. Gonzalez- On June 8, 2010, the Honorable Garr M. King granted Respondent's Motion to Dismiss 4 - OPINION AND ORDER - and entered judgment dismissing the action without prejudice, because Petitioner had not exhausted his claims. On April 18, 2012, Petitioner filed a second Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court challenging the Multnomah County robbery convictions. 20, 2012, Motion to the Honorable Michael Dismiss and entered R. On August Hogan granted Respondent's judgment dismissing the action without prejudice because Petitioner had not exhausted his claims. On August 6, 2012, Petitioner filed the instant, Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § third 2254 in this Court challenging the Multnomah County robbery convictions which are the subject of his pending state PCR proceeding. Petitioner asserts that unreasonable delays in the state direct appeal and the PCR proceedings have rendered those proceedings "ineffective" as a means of protecting his federal constitutional rights. Respondents argues the petition should be dismissed without prejudice, for lack of exhaustion. DISCUSSION A state prisoner seeking federal habeas corpus relief must exhaust his available state remedies. 28 U.S. C. § In order to satisfy the exhaustion requirement, 2254 (b) ( 1) (A) . the petitioner must fairly present his claims to the highest state court, that court must dispose of the claim on the merits. Boerckel, 526 U.S. 838, 845 (1999). 5 - OPINION AND ORDER - and O'Sullivan v. Exhaustion is not required, however, if "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 state amounting court, circumstance. U.S.C. § 2254 (b) (1) (B) (ii). to a due process Unusual delay in violation, is such a Edelbacher v. Calderon, 160 F.3d 582, 586 (9th Cir. 1998); Phillips v. Vasquez, 56 F.3d 1030, 1035 (9th Cir.), cert. denied, 516 U.S. 1032 (1995); Coe v. Thurman, 922 F.2d 528, 530-31 (9th Cir. 1990). This court considers the following four factors in determining whether or not delay rises to the level of a due process violation: delay; ( 3) the ( 1) the length of delay; petitioner's prejudice to the petitioner. v. Wingo, In assertion of ( 2) his the reason for right; and ( 4) Coe, 922 F.2d at 531 (citing Barker 407 U.S. 514,530 (1972)). the instant demonstrate that proceeding, Petitioner has failed to the delay in his direct appeal and state PCR proceeding was caused by a systematic failure of the state courts, or by appointed counsel's failure to pursue the appeal or the PCR proceeding with sufficient vigor. The record indicates that the direct appeal process was not unreasonably lengthy. Petitioner's appellate counsel filed the opening brief within eight months, and the state filed its respondent's brief in less than ten months. The Oregon Court of Appeals issued a decision approximately seven months later, and the appellate judgment became final within two and a half years after Petitioner filed his Notice of Appeal. 6 - OPINION AND ORDER - Petitioner's state PCR proceeding has been pending less than two years. are Moreover, it appears the delays in the PCR proceeding directly attributable to Petitioner's own actions; the premature filing of his pro se PCR petition and the filing of multiple PCR petitions in multiple courts. Although there is no "talismanic number of years or months, after which due process is automatically violated, 1 the Court " concludes any delay in the state proceedings has not been extreme, unusual courts. or attributable See to the 160 Edelbacher, ineffectiveness F.3d at 587. of the Further, state although petitioner has been diligent in asserting his right to a speedy disposition, he has failed to make a strong showing of prejudice. To determine whether the petitioner has been prejudiced by appellate delay, this court looks to the following three factors: ( 1) oppressive incarceration pending appeal; ( 2) anxiety and concern of the prisoner awaiting the outcome of the appeal; and (3) impairment of the prisoner's grounds viability of the defense in case of retrial. 532. u.s. appeal Coe, Of these factors, the most serious is the last. or the 922 F. 2d at Barker, 407 at 532. Petitioner contends that, sentence on the convictions at 1 for Coe, 922 F.2d at 531. 7 - OPINION AND ORDER - because of issue here, the length he has a of the need for immediate habeas relief. held, However, as this Court has repeatedly the fact that a petitioner may be serving a "relatively short sentence does not constitute an extraordinary circumstance justifying federal intervention." 884825, 5117887, *1 *5 (D. Or. Mar. See Stell v. Myers, 2011 WL 14, 2011); Westcott v. DeCampe, 2011 WL (D. Or. Oct. 25 , 2011) (same). "To hold otherwise would permit every state prisoner with a short sentence to bypass state remedies, a result which would be directly contrary to the strong presumption in favor of exhaustion." Stell, 2011 WL 884825, *1. The delay experienced by Petitioner in his state proceedings does not rise to the level of a due process violation so as to excuse his Accordingly, failure to exhaust available state remedies. the habeas corpus petition is denied for lack of exhaustion. CONCLUSION For these reasons, the Court DENIES the Petition for Writ of Habeas Corpus and DISMISSES this action without prejudice. IT IS SO ORDERED . . fl..-_, DATED this llf day of May, 2013. AN9tnfltw United States District Judge 8 - 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.
