Templeton v. Coursey et al, No. 2:2014cv01322 - Document 64 (D. Or. 2017)

Court Description: OPINION AND ORDER: the Petition for Writ of Habeas Corpus 2 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 2/14/17 by Judge Michael H. Simon. (Mailed copy to petitioner) (dsg)

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Templeton v. Coursey et al Doc. 64 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MARK FOREST TEMPLETON, Case No. 2:14-cv-01322-SI Petitioner, OPINION AND ORDER v. RICK COURSEY, et al., Respondents. Mark Forest Templeton 7947738 Eastern Oregon Correctional Institution 2500 Westgate Pendleton, OR 97801-9699 Petitioner, Pro Se Ellen F. Rosenblum, Attorney General Samuel A. Kubernick, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondents 1 - OPINION AND ORDER Dockets.Justia.com SIMON, District Judge. Petitioner brings this U.S.C. 2011 28 2254 in which he appears to challenge the legality of a § decision Supervision that habeas corpus case pursuant to by the ("Board") follow, the Oregon Board of deferring his Petition for Parole release. Writ of Habeas and Post-Prison For the Corpus reasons (#2) is count of denied. BACKGROUND In 1991, petitioner pleaded no-contest to one Murder in Umatilla County, and guilty to one count of Conspiracy to Commit Murder. Respondent's Exhibit 103. As a result, the trial court sentenced him to life imprisonment with a 20-year minimum 20-year on the Murder conviction, and a prison term on the Conspiracy conviction. 101. consecutive Respondent's Exhibit Petitioner was not successful in his subsequent direct and post-conviction relief ("PCR") appeals. In 2011, the Board determined that petitioner suffered from a present severe emotional disturbance so as to constitute danger to the health or safety of the community. Exhibit 136, pp. 6, 77. As a result, action in Umatilla Id. 2011, petitioner filed a state habeas corpus County wherein decision. Id at 1-3. petition as "meritless because he challenged the Board's The State asked the court to deny the it failed to allege facts to state a claim for habeas corpus relief." Exhibit 138, p. 1. Respondent's it deferred petitioner's projected release date approximately ten years. On August 26, a sufficient Respondent's Specifically, the State argued that because 2 - OPINION AND ORDER ORS 144.335 entitled petitioner to direct judicial review of the Board's order, relief. Id at finding he was not eligible to seek state habeas corpus habeas 2. The state habeas court granted the motion, corpus unavailable under state law where petitioner had other avenues by which to challenge the Board's action. Respondent's Exhibits 140-41. Petitioner appealed the state habeas court's dismissal with the assistance of appointed counsel, but counsel could not find any non-frivolous issues for appeal and submitted a Balfour brief on petitioner's behalf. 1 The Oregon Court of Appeals affirmed the state habeas court's decision without opinion, and the Oregon Templeton v. Coursey, 260 Or. App. Supreme Court denied review. 782, 325 P.3d 69, rev. denied, 355 Or. 381, 328 P.3d 697 (2014). Petitioner filed this 28 U.S.C. August 18, 2014. § 2254 habeas corpus case on In his Petition, he raises claims pertaining to both the Board's 2011 deferral of his release to parole as well as his court underlying to deny pertaining to procedurally criminal relief on the petitioner's defaulted; convictions. and Respondent Pe ti ti on because: 1991 convictions (2) petitioner ( 1) are asks any claims untimely failed the to and fairly present any claims pertaining to the Board's 2011 deferral of his release to parole to Oregon's state courts, leaving those claims procedurally defaulted. 1 Oregon's Balfour procedure provides that counsel need not ethically withdraw when faced with only frivolous issues. Rather, the attorney may file Section A of an appellant's brief containing a statement of the case sufficient to "apprise the appellate court of the jurisdictional basis for the appeal." State v. Balfour, 311 Or. 434, 451, 814 P.2d 1069 (1991). The defendant may then file the Section B segment of the brief containing any assignments of error he wishes. Id at 452. 3 - OPINION AND ORDER DISCUSSION I. Claims Arising from Petitioner's Convictions The cover page of the Petition for Writ of Habeas Corpus purports to challenge petitioner's 1991 convictions. (#2), p. 1. Indeed, the majority of the claims in his Petition attack those convictions. ( 1) Specifically, petitioner alleges that: his direct appellate counsel altered his criminal judgment (Ground Two); (2) the prosecution refused to provide him with any discovery until Three); of Petition four years after he entered his pleas (Ground (3) his criminal trial judge did not take a proper oath office (Ground (Ground Five); Four); (5) law evidence and witnesses ( 4) his indictments enforcement personnel (Ground Six); and (6) were unlawful tampered with his trial attorney improperly allowed him to enter into plea bargains despite his innocence (Ground Seven) . In his supporting memoranda, however, petitioner advises the court that he sentence. p. does seek Memo in Support Instead, 2. not to challenge his convictions (#43), p. 2; Memo in Support (#44), he asserts that he wishes to challenge "the Id. multiple court ordered plea agreement contract violations." Because the or Petition appears to place the legality of petitioner's convictions at issue, the court first addresses the claims related to those convictions. Petitioner entered his pleas in 1991, and his convictions became final shortly thereafter when he voluntarily dismissed his direct appeal in 1992. which challenge Respondent's Exhibits 111-12. convictions 4 - OPINION AND ORDER that became final Petitions before Anti- terrorism and Effective April 24, Ford v. Penalty Act's effective date 1996 are timely only if filed before April 24, 305 Hubbard, petitioner did August 2014, AEDPA' s Death not F.3d file 875, this 882 (9th federal Cir. of 1997. Where challenge habeas 2002). until there is no dispute that it falls outside of the one-year statute of limitations. Instead, petitioner argues that the one-year statute of limitations contained within the AEDPA is unlawful judicial oversight, amounts to an clearly predates because it to and because the AEDPA' s ex post violation facto the statute. limitations is lawful, Ferguson (2003), amounts AEDPA's v. an absence of application to him where his one-year Palmateer, conviction statute 321 F. 3d 820, of 823 and it is proper to apply the AEDPA to his case because he filed his Pe ti ti on after the statute's effective date. Woodford v. Garceau, 538 U.S. 202, 207 (2003). See Petitioner's grounds for relief pertaining to his convictions and sentence are therefore dismissed as untimely. 2 II. Challenge to Parole Deferral In his remaining ground for relief (Ground One), petitioner alleges that the Board improperly deferred his release to parole in 2011 when it violated his rights to due process and to be free from ex post facto punishment. his claims court, by fairly A habeas petitioner must exhaust presenting them to the state's highest either through a direct appeal or collateral proceedings, 2 Although not the basis of the dismissal of these claims, the court also notes that petitioner is prohibited from challenging multiple state court judgments in the same Petition. Rule 2(e) of the Rules Governing Section 2254 Cases. 5 - OPINION AND ORDER before a federal court will consider the merits of those claims. Rose v. 455 U.S. Lundy, 509, the "As a general rule, a 519 (1982). petitioner satisfies presenting the courts . in the manner required by the state courts, thereby federal exhaustion claim requirement the to by fairly appropriate state 'affording the state courts a meaningful opportunity to consider allegations of legal error.'" 916 (9th Cir. 257, (1986)). 2004) Casey v. Moore, 386 F.3d 896, 915- (quoting Vasquez v. 474 U.S. Hillery, 254, A federal court is precluded from reviewing the merits of a claim if the state court denial was based upon the application of a question Thompson, and state law that is adequate 501 U.S. to 722, independent of the federal support 729-32 the (1991); judgment. Coleman v. White, 166 Vansickel v. F.3d 953, 957 (9th Cir.), cert. denied, 528 U.S. 965 (1999). 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. 529 U.S. Carpenter, If a petitioner court, a federal 446, has 451 (2000); procedurally court will not defaulted review the Edwards v. 501 U.S. Coleman, a claim or at 750. in state 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. 162 (1996); Sawyer v. Whitley, Gray v. Netherland, 505 U.S. 333, 337 518 U.S. 152, (1992); Murray v. Carrier, 477 U.S. 478, 485 (1986). As discussed above, petitioner challenged the Board's 2011 deferral of his parole in a state habeas corpus action. 6 - OPINION AND ORDER However, ORS 144.335 provided that his judicial remedy was a direct appeal of the adverse parole decision to the Oregon Court of Appeals. Given that he had such a judicial remedy, ORS 34.330 forbade him from filing for habeas corpus relief. Consequently, the Umatilla County Circuit Court dismissed the state habeas action pursuant to statutory rules that were independent of the federal question and adequate to support the judgment of dismissal. The state habeas court issued its judgment on a standard form and, in so doing, checked the boxes indicating that the case presented federal and state constitutional issues and that "[a]ll questions were presented and decided." It does not appear from the record that the state habeas court actually considered the merits of petitioner's solely on procedural However, even alternative claims, 3 grounds. assuming holding and on the the instead decided Respondent's state merits habeas of the Exhibits court petitioner's case 140-41. reached an claims, "a state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, federal law." even Harris when v. the Reed, state 489 U.S. court 255, also 264 relies n.10 on (1989) (emphasis in original) . Because petitioner may no longer pursue his due process and ex post facto claims in Oregon's state courts, they are 3 This is especially true where the State did not file any briefing on the merits of petitioner's claims, and asked the Judge to dismiss the case solely for procedural reasons. Respondent 1 s Exhibit 138. 7 - OPINION AND ORDER procedurally defaulted. appeals be filed See ORS 138.071 within 30 (requiring that direct days). Petitioner has not demonstrated cause and prejudice or made a colorable showing of actual innocence so as to excuse his default. Accordingly, relief on the Petition is denied. CONCLUSION For the reasons identified above, Habeas Corpus ( #2) is denied. The the Petition for Writ of court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing right pursuant to 28 U.S.C. of § the denial of a constitutional 2253(c)(2). IT IS SO ORDERED. DATED this day of United States District Judge 8 - OPINION AND ORDER
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