Easter v. Taylor, No. 2:2014cv00999 - Document 55 (D. Or. 2016)
Court Description: OPINION AND ORDER. The Petition for Writ of Habeas Corpus 2 is dismissed, with prejudice, as untimely. The court does, however, issue a Certificate of Appealability on the basis that petitioner has made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253 (c) (2). IT IS SO ORDERED. Signed on 9/20/2016 by Judge Marco A. Hernandez. (gw)
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Easter v. Taylor Doc. 55 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON TRAVIS MICHAEL EASTER, Case No. 2:14-cv-00999-HZ Petitioner, OPINION AND ORDER v. JERI TAYLOR, Respondent. Tonia L. Attorney 19 South Medford, Moro at Law P.C. Orange Street Oregon 97501 Attorney for Petitioner Ellen F. Rosenblum, Attorney General Kristen E. Boyd, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent 1 - OPINION AND ORDER Dockets.Justia.com HERNANDEZ, District Judge. Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his state court Sexual Abuse conviction from 2006 and resulting life sentence. reasons that follow, For the the Petition for Writ of Habeas Corpus (#2) is dismissed as untimely. BACKGROUND In August 1989, petitioner entered a guilty plea to Rape in the Second Degree in Jackson County. plea, In exchange for his guilty the court allowed him to enter into a deferred sentencing agreement whereby it required him to adhere probationary conditions for a period of two years. to satisfy the probationary conditions, appear in charge. court for imposition of a to certain If he failed he would be summoned to sentence on the Rape II However, if he satisfied the probationary conditions for the two-year duration, the prosecutor would so inform the court "and the court shall dismiss with prejudice the criminal charge herein." Petitioner's Exhibit 3, p. 2. Petitioner complied with the terms of his probation and avoided a prison sentence. In counts the of incidents summer Sexual of 2004, Abuse in petitioner was the Degree First involving two girls under the age indicted on four pertaining of 14. 1 to The case proceeded to trial in 2005 where a jury returned guilty verdicts as to all four charges, and the trial court sentenced petitioner to 150 months in prison. I These convictions were previously at issue in this District in Easter v. Franke, Case No. 2:11-cv-00906-JE. 2 - OPINION AND ORDER In 2006, while incarcerated based upon the 2005 convictions, the Jackson County Grand Jury indicted petitioner on six counts of Sexual Abuse in the First Degree, and one count each of Sodomy in the First Degree, Unlawful Sexual Penetration in the Second Degree, and Rape in the First Degree. Respondent's Exhibit 102. Petitioner elected to enter a guilty plea to one count of Sex Abuse I, and signed a plea agreement wherein he acknowledged that, although the statutory maximum for his crime was 10 years, the presumptive sentence in Respondent's Exhibit 103. his case was Petitioner was life in prison. subject to the true life sentence because the presumptive sentence for a felony sex crime in Oregon was elevated to life without parole where the offender "has been sentenced for sex crimes that are felonies at least two times prior to the current sentence." ORS 137. 719. Petitioner did not take a direct appeal. Three Gordon v. appellate years later, the Hall, 232 court concluded Or. Oregon App. 174 that a Court of Appeals decided Gordon, (2009). In trial attorney the rendered ineffective assistance when he did not challenge the use of a suspended sentence as a qualifying predicate for purposes of imposing a true life sentence pursuant to ORS 137.719. On November 18, 2010, petitioner filed for post-conviction relief ( "PCR") in Umatilla County. several claims of ineffective His assistance PCR of Pe ti ti on counsel, raised none of which were predicated upon his assertion in this case that his 198 9 probationary term was not a 137. 719. Respondent's Exhibit 106. 3 - OPINION AND ORDER sentence for purposes of ORS The State moved for summary judgment because the PCR Pe ti ti on was untimely, and petitioner had waived his right to seek collateral relief when he entered his guilty plea. Respondent's Exhibit 110. The PCR court granted the State's Motion for Summary Judgment and dismissed the case as meritless. Respondent's Exhibits 115-116. The Oregon Court of Appeals dismissed the subsequent appeal sua sponte as meri tless, and the Oregon Respondent's Exhibits 118, effective May 29, 2012. Supreme 122. Court denied The appellate review. judgment became Respondent's Exhibit 123. Petitioner filed this federal habeas corpus case on June 20, 2014 raising a variety of challenges to his conviction and resulting petitioner allowed life 2, 2 61 sentence. untolled 2006 Sexual Abuse The days to State elapse contends between the finality of his conviction and the filing of this habeas corpus case, placing limitations it well contemplated Death Penalty Act outside by ("AEDPA"). the of the one-year Anti-terrorism statute and of Effective Petitioner does not dispute that calculation, but argues that the court should excuse his untimely filing because: (2) statutory (1) and he is "actually innocent" of his sentence; equitable tolling are appropriate where petitioner's trial and PCR attorneys failed to understand that he did not qualify for a true life sentence under ORS 137.719; and (3) the state PCR process was ineffective to protect his rights. DISCUSSION I. Actual Innocence Habeas corpus petitioners must generally file federal challenges to their state convictions within one year of the time 4 - OPINION AND ORDER those convictions become final by the conclusion of their direct review. 28 U.S.C. 2244(d) (1) (A). A petitioner who fails to comply with this deadline may overcome such a default if he is able to show that he is actually innocent of conduct. (2013). In McQuiggin, the Supreme Court underscored that such an exception "applies to which evidence shows new a v. Perkins, severely 'it is confined more S.Ct. underlying criminal McQuiggin 133 his 1924, category: likely that cases in that no not reasonable juror would have convicted [the petitioner].'" 1933 (citing Schlup v. any new evidence of 513 U.S. Delo, innocence, 298, even the meritorious constitutional violation establish miscarriage justice a of 327 1928 (1995). Id at "Without existence of a is that not sufficient would allow court to reach the merits of a barred claim.'' a Schlup, to habeas 513 U.S. at 316. Petitioner in the innocent of because probationary Oregon underlying criminal allege that he conduct of which he is was Instead, he claims to be "innocent" of his true life convicted. sentence the case at bar does not law his term and 1989 that is Rape not therefore II conviction considered did not a resulted "sentence" constitute a in a under qualifying predicate sentence for purposes of ORS 137.719. Neither the Supreme Court nor the Ninth Circuit has extended the concept issue, of actual innocence and the Ninth Circuit has to a non-capital recognized that a sentencing showing of actual innocence requires a petitioner to demonstrate "that the petitioner is innocent 5 - OPINION AND ORDER of the charge for which he is incarcerated. " (9th Cir. 2001) Gandarela v. 286 F.3d. 1080, 1085 Johnson, (citing Schlup, 513 U.S. at 321). In the context of an Oregon inmate who alleged that his consecutive sentences were plainly unlawful under the applicable Oregon statute, the Ninth Circuit concluded that the inmate could not avail himself of the actual innocence exception to procedural default where he failed to conviction. establish his Wildman v. factual innocence as to 261 F.3d 832, Johnson, his crime 842-43 of (9th Cir. 2001). Where the actual innocence exception to procedural default is firmly factual rooted in the fundamental innocence as to the crime(s) question of an of conviction, inmate's this court declines to extend the actual innocence exception to non-capital sentencing error. 559 (1998) United States, 523 U.S. 538, (actual innocence means factual innocence, not legal insufficiency); ( 1992) See Bousley v. see also Sawyer v. 505 U.S. Whitley, 333, 340 (A "prototypical example" of actual innocence "is the case where the State has convicted the wrong person of the crime."); Johnson v. miscarriage 541 F. 3d 933, Knowles, of and establishes exception justice extraordinary cases with (9th Cir. is 2008) ("the to those limited where the petitioner asserts his innocence that the court contrary finding of guilt.") Consistent 937-38 this cannot have confidence in the (italics in original, bold added) . theme, the Supreme Court in McQuiggin extended the actual innocence exception only to those untimely petitioners who can demonstrate that in light of new evidence, it is more likely than not 6 - OPINION AND ORDER that no reasonable juror would have convicted them. 133 S.Ct. defendants of sentences. at Jurors 1928. do not convict Accordingly, petitioner cannot overcome his untimely filing by way of his allegation of sentencing error. II. Statutory Tolling Petitioner tolling next pursuant attorney did sentence that not to argues 28 U.S.C. understand was not that § that supported he is entitled 2244(d)(l) her by because client his to had criminal statutory his agreed trial to history, a and petitioner's PCR attorneys also failed to detect the error even in the wake of Gordon. He concludes that he could not reasonably be expected to discover the issue until his appointed attorney in this habeas case discovered it "sometime in the Fall 2015," in § Support 2244 (d) (1), (#38)' p. 23, and reasons that, Memo pursuant to AEDPA' s one-year limitation period was statutorily tolled until that time. Pursuant to 28 U.S.C. § 2244(d) (1), the one-year period in which to file for habeas corpus relief runs from the latest of: (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Cons ti tut ion or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and 7 - OPINION AND ORDER made retroactively applicable collateral review; or to cases on (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 u.s.c. 2244(d) (1). Petitioner filed this habeas corpus action pro se on June 20, 2014 alleging assistance of that counsel he in a was the variety of victim of ineffective particulars sentencing issue upon which he now focuses. beyond the Consequently, he cannot assert that he was effectively precluded from filing this case until his habeas attorney discovered his sentencing issue in the Fall of 2015. In addition, contrary to his argument here, it is evident from the record that petitioner discovered his sentencing claim without attorney assistance. Where petitioner claims his trial and PCR attorneys failed to advise him of the sentencing issue, he nevertheless specifically included it in his 2014 pro se Petition for Writ of Habeas Corpus which he filed before this court appointed an attorney to represent him: counsel (both trial and appellate) failed to otherwise object to or effectively object to, or assign error to the imposition of the life sentence pursuant to Or. Rev. Stat. § 137.719. Petitioner['s] 1989 second degree rape conviction was deemed a predicate under Or. Rev. Stat. § 137.719. It was not a predicate because petitioner receive[d] a probation sentence. See Gordon v. Hall 232 Or. App. 174 (2009) and State v. Carmickle, 307 Or 1, 762 P2d 290 (1988). Petition (#2), p. 3. 8 - OPINION AND ORDER Moreover, at the time petitioner entered his guilty plea, he knew the facts that would support his claim of sentencing error and, by extension, ineffective assistance of counsel. Even if he may not have understood the legal significance of those facts at that time, his awareness of the factual predicate of the claim was sufficient for the AEDPA's statute of limitations to commence running. See Hasan v. 2001). Galaza, 254 F.3d 1150, 1154 n. 3 (9th Cir. For all of these reasons, petitioner's statutory tolling argument lacks merit. II. Equitable Tolling Petitioner also argues that errors by the prosecutor and his trial and PCR attorneys justify equitable tolling of the statute of limitations. Equitable tolling is available to toll the one- year statute of limitations available to 28 U.S.C. corpus cases. litigant Holland v. seeking to 560 U.S. Florida, invoke equitable 631, tolling § 2254 habeas 645 (2010). must A establish: (1) that he has been pursuing his rights diligently; and (2) that some extraordinary circumstance prevented him from timely filing his petition. Pace v. petitioner who fails DiGuglielmo, 544 U.S. 408, 418 (2005). to file a timely petition due to his own lack of diligence is not entitled to equitable tolling. v. Long, burden 253 F.3d 494, 504 (9th Cir. 2001). of showing apply to him. that Miranda A v. this Petitioner bears the "extraordinary Castro, Tillema exclusion" 292 F.3d 1063, 1065 should (9th Cir. 2002). According to petitioner, the prosecutor in his case impeded his ability to challenge his sentence when he: 9 - OPINION AND ORDER ( 1) erroneously asserted that the 1989 rape conviction resulted in a qualifying predicate offense under ORS 137. 719; (2) either erroneously or vindictively brought additional charges in 2006 that arose from the same course of conduct as the 2005 convictions; (3) stated that two of the 2005 convictions sentenced together were separate predicates to a true petitioner waive his life direct exchange for nothing. sentence; and and collateral (4) demanded review that remedies in The State's filing of criminal charges and negotiation of a plea bargain did not constitute an extraordinary circumstance that rendered it impossible for petitioner to timely file this case. Petitioner's principal claim for equitable tolling appears to be that his trial and PCR attorneys failed to understand that his sentence counsel: ( 1) was unlawful. He further asserts that trial told petitioner he could not file a PCR petition; (2) abandoned petitioner when counsel advised him to enter into a plea agreement whereby he waived all collateral challenges, including any such claims against her; and (3) not only failed to understand sentence, that but her client did not was not eligible understand for the a law true life regarding proportionality, double jeopardy, and collateral remedy waivers. Generally, claims for equitable tolling based upon attorney error do not arise to the level of an extraordinary circumstance sufficient Hickman, to warrant equitable tolling. 273 F. 3d 1144, 1146 (9th Cir. 2001) See, e.g., Frye v. (attorney negligence in general does not justify equitable tolling); Holland, 560 U.S. at 651-52 ("garden variety" negligence does not warrant equitable 10 - OPINION AND ORDER tolling) . logic "Justice behind this Ali to framework, rationale is constructively explained understanding reasoning that attributable his the to that, error the of client an and circumstance beyond the litigant's control.'" 767 F.3d 879, 657 (Alita, p. 885 J., (9th Cir. 2014) concurring)). goes beyond error professional misconduct;" or (2) altogether. Luna v. Kernan, principal thus is v. (quoting Holland, Equitable and the attorney Gibbs tolling attorney performance is only appropriate where: performance 'the of is not a Legend, 560 U.S. based upon (1) an attorney's amounts to "egregious the attorney abandons her client 784 F.3d 640, 646 (9th Cir. 2015); Maples v. Thomas, 132 S.Ct. 912, 923-24 (2012). The fact that petitioner's trial and PCR attorneys were not aware that predicate legal that his sentence error his action, 198 9 for purposes imputed trial probationary to term might of ORS petitioner. attorney advised 137. 719 While him he not qualify a at most, is, as a petitioner could not contends file a PCR not only did counsel dispute this during the underlying PCR action, 2 but such advice would not, and did not, actually prevent petitioner from filing for collateral relief. Although petitioner casts trial counsel's advice regarding his guilty plea as "abandonment" sufficient to warrant equitable tolling, nothing in the record shows any attorney petitioner in the sense contemplated by Maples. S. Ct. at without 2 918-20 abandoned See Maples, 132 (two out-of-state attorneys left their law firm transferring petitioner's Respondent's Exhibit 111, p. 1. 11 - OPINION AND ORDER case to another attorney or notifying their client or the state court of their withdrawal such that petitioner never received notice that his appeal was due). Moreover, where petitioner now points to the Oregon Court of Appeals' decision in Gordon as the point in time where it became clear that his 2006 sentence was invalid, the fact that 3 it took petitioner another five years to raise the issue pro se in a habeas diligently, claims corpus challenge shows that he failed to act especially where his Petition presents a variety of independent of the Gordon issue. Equitable tolling is therefore not appropriate. III. Ineffective Corrective Process Finally, petitioner also asserts that the state corrective process was ineffective to protect his rights. court dismissed the action, at least in part, Where the because untimely, this does not render the process ineffective. it did, PCR it was Even if petitioner not only failed to come straight to federal court in the face of an allegedly ineffective state corrective process, but also allowed two additional years to pass after the Oregon Supreme Court denied review in his Appellate Judgment became final. PCR action and the Thus even if the court were to toll the limitation period until his Appellate Judgment issued on May 29, these 2012, reasons, this case would still be untimely. petitioner is unable to excuse For all of his untimely filing. Ill 3 As noted e·arlier, petitioner's Petition grounds his challenge in Oregon law dating back to 1983. 12 - OPINION AND ORDER CONCLUSION For the reasons ident ified above , the Petition for Writ of Habeas Corpus (#2) is Th e court does , however, dismissed, with prejudice, as untimely. issue a Certificate of Appealability on the basis that petit i oner has made a substantial showing of the denial § of a constitutional right pursuant 2253 (c) (2). IT IS SO ORDERED. DATED this 8-0 day of September , 2016. 1 3 - OPINION AND ORDER to 28 u.s . c.
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