Hill v. Tailor, No. 2:2017cv00538 - Document 48 (D. Or. 2019)
Court Description: OPINION AND ORDER: The Petition for Writ of Habeas Corpus (# 2 ) is dismissed. 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). In addition, given the repeated litigation of the issues presented in this case over the past several years (including five motions for reconsideration in 1:11-cv-00426-PA), the Court will not accept any motions for reconsideration in this case. Signed on 12/11/2019 by Judge Michael W. Mosman. (joha)
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Hill v. Tailor Doc. 48 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON LAIRD WAYNE HILL, Case No. 2:17-cv-00538-MO Petitioner, OPINION AND ORDER v. JERI TAYLOR, Respondent. Nell Brown Assistant Federal Public Defender 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 Attorney for Petitioner Ellen F. Rosenblum, Attorney General Samuel A. Kubernick, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent 1 - OPINION AND ORDER Dockets.Justia.com MOSMAN, District Judge. Petitioner brings this habeas corpus case pursuant to 28 u.s.c. 2254 § challenging the legality of his state-court convictions from 2005. Because Petitioner did not file the action within the applicable one-year statute of limitations, the Petition for Writ of Habeas Corpus (#2) is dismissed. BACKGROUND On September 23, 2005, a jury convicted Petitioner in Marion County of prompting prison. four the counts trial of Sexual court to Abuse sentence in the him to First 150 Degree, months in Petitioner pursued a direct appeal that was ultimately unsuccessful, and his Appellate Judgment issued with an effective date of April 15, limitations 2010. To comply with the one-year statute of applicable until July 11, to habeas corpus cases, Petitioner had 2011 in which to file for federal habeas corpus relief. 1 Petitioner assistance of presenting his post-conviction believed counsel claims relief he at was the his trial. ineffective ( "PCR") victim ineffective However, assistance action of in of instead counsel state of in a court, 2 he 1 A habeas corpus petitioner must generally file his federal challenge to his state convictions within one year of the time those convictions become final at the conclusion of his direct review. 28 U.S.C. § 2244(d) (1) (A). The Antiterrorism and Effective Death Penalty Act's ( "AEDPA' s") one-year statute of limitations did not begin to run for another 90 days (July 13, 2010) because Petitioner was permitted to petition the U.S. Supreme Court for certiorari during this time. Lawrence v. Florida, 549 U.S. 327, 337 (2007). As a result, Petitioner had until July 11, 2011 in which to file for federal habeas corpus relief, or file a petition for post-conviction relief which would toll the AEDPA's one-year statute of limitations. See 28 U.S.C. § 2244(d) (2). 2 Oregon law requires that claims of ineffective assistance of trial counsel be raised in a PCR proceeding. Sexton v. Cozner, 679 F. 3d 1150, 1159 (9th Cir. 2012). 2 - OPINION AND ORDER proceeded directly to federal court where he filed his Petition for Writ of Habeas Corpus in Hill v. 00426-PA, Case No. 1:ll-cv- Coursey, assigned to the Honorable Owen M. Panner. Petitioner signed his Petition on March 16, 2011 such that he complied with the AEDPA' s one-year statute of limitations with 117 days to spare. In his Second Amended Petition for Writ of Habeas Corpus in 1:11-cv-00426-PA, Petitioner raised four grounds for relief, two of which were claims of trial court error that were procedurally defaulted and ineligible for federal habeas corpus review. 3 In his two remaining ineffective grounds assistance of for counsel bypassing the state PCR remedy, Oregon's claims state were courts. not The relief, that, raised by claims virtue of of his he had not fairly presented to ineffective procedurally he assistance defaulted, of however, counsel because Petitioner still had time to file a PCR petition in state court. 4 Judge Panner noted that the issue of potentially staying the action was not something the Court needed to raise sue sponte and, even if it was, neither Rhines v. Weber, 544 U.S. 269, 275 {2005) nor Kelly v. Small, 315 F.3d 1063 {9 th Cir. 2003) could be 3 A petitioner seeking habeas relief must exhaust his claims by fairly presenting them to the state's highest court, either through a direct appeal or collateral proceedings, before a federal court will consider the merits of habeas corpus claims pursuant to 28 U.S.C. § 2254. Rose v. Lundy, 455 U.S. 509, 519 (1982). A petitioner is deemed to have "procedurally defaulted" his claim if he failed to comply with a state procedural rule, or failed to raise the claim at the state level at all. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). 4 Oregon allows a convicted person two years from the conclusion of his direct appeal to file a PCR action. ORS 138.510(3). 3 - OPINION AND ORDER properly applied. Judge Panner appeared to be primarily concerned that Petitioner, appearing to have no viable claims to present for federal habeas review at that time, might become time-barred from raising his claims of ineffective assistance of counsel in a state PCR proceeding because the two-year statute of limitations applicable to such cases was due to expire in less than 60 days. He therefore dismissed the habeas without further leave to amend, case without prejudice and and advised Petitioner that his best avenue for relief was a state PCR action. He reasoned that it was best to dismiss the action without prejudice and without further leave to amend because: . by giving petitioner the option of proceeding, it could be seen as suggesting to a prose litigant that federal habeas corpus is a legitimate option for his direct appeal claims only for petitioner to later find out not only that it was not, but that by pursuing the habeas remedy he lost his only opportunity to ever receive a merits adjudication of his ineffective assistance of counsel claims in any court. Order {#29), p. 6. Following Judge Panner's February 21, 2012 dismissal, Petitioner timely filed a PCR action on April 6, 2012 wherein he litigated his claims against his trial attorney. The PCR court denied relief on Petitioner's claims, the Oregon Court of Appeals dismissed a subsequent appeal, and the Oregon Supreme Court denied review. At the conclusion of his state PCR action, and more than four years after Judge Panner dismissed his federal case, on July 5, 2016, 4 - Petitioner filed OPINION AND ORDER what amounted to a Third Amended Petition in the terminated case and a Motion seeking to reopen the case. Judge Fanner appointed the Federal Public Defender to represent Petitioner, and counsel filed her own Motion for Reconsideration seeking to restart the earlier proceedings. Following Judge Fanner' s retirement, 1: 11-cv-00426-PA to me. On June 7, 2017, the Clerk transferred I concluded that the Motion for Reconsideration seeking to invalidate Judge Panner's Judgment was untimely. I further concluded that even if Petitioner had timely filed his Motion for Reconsideration, a stay would not have been proper in the case because: (1) there was no "good cause" to justify a Rhines stay; and (2) there was no authority requiring a Kelly stay in a case that involved only unpreserved claims. Petitioner appealed that decision, Ninth Circuit denied Petitioner's request for a but the certificate of appealability. In the meantime, on March 29, 2017, Petitioner filed this 28 U.S.C. § 2254 habeas corpus case, and the Court again appointed the Federal Public Defender's Office to represent him. With the assistance of counsel, Petitioner does not dispute that his Petition is untimely. He argues, however, that the Court should fashion an equitable remedy that renders the Petition in this case timely on the basis that Judge Fanner should have stayed 1:11-cv-00426-PA pursuant to Kelly. the Court to conclude that he is In the alternative, he asks actually innocent of his underlying criminal conduct such that he can excuse his untimely filing. Ill 5 - OPINION AND ORDER DISCUSSION I. Equitable Tolling Equitable tolling is available to toll the one-year statute of limitations cases. applicable to Holland v. Florida, u. s. C. 28 2254 § habeas 560 U.S. 631, 645 (2010). A litigant seeking to invoke equitable tolling must establish: has been pursuing his corpus rights diligently; and (1) (2) that he that some extraordinary circumstance prevented him from timely filing his Pace petition. v. DiGuglielmo, petitioner who fails to file a 544 U.S. 408, 418 (2005). timely petition due to his own lack of diligence is not entitled to equitable tolling. v. Long, 253 F.3d 494, 504 burden of showing apply to him. that Miranda v. A Tillema (9th Cir. 2001). Petitioner bears the this "extraordinary Castro, exclusion" 292 F. 3d 1063, 1065 should ( 9th Cir. 2002). A Rhines stay requires that a Petitioner show "good cause" justifying a stay, such as a petitioner's reasonable confusion about whether a state PCR proceeding will toll the federal habeas corpus period. Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005). A Kelly stay, on the other hand, does not require a showing of good cause. A Kelly stay authorizes: (1) a petitioner to amend his petition to delete any unexhausted claims; (2) the court in its discretion to stay and hold in abeyance the amended, fully exhausted petition, providing the petitioner the opportunity to proceed to state court to exhaust the deleted claims; and {3) once the claims have been exhausted in state court, the petitioner to return to federal court and 6 - OPINION AND ORDER amend[] his federal petition to include the newly-exhausted claims. King v. Ryan, 564 F.3d 1133, 1139 (9 th Cir. 2009). While a Kelly stay does not impose the "good cause" burden associated with a Rhines stay, it is not without risk as it leaves open the possibility that any claims to be re-added to a petition after exhaustion might not be timely filed. Id at 1140-41. The operative procedurally unexhausted pleading defaulted claims of in claims l:11-cv-00426-PA presented of ineffective trial court assistance error of two and two counsel. The claims of trial court error, while technically exhausted because there were no remaining state remedies available for them, were subject to immediate procedural default. dismissal with prejudice because of the Such a dismissal would have left Petitioner only with his two unexhausted claims of ineffective assistance of counsel. The Kelly procedure would have required Judge Panner to dismiss the unexhausted claims, leaving Petitioner without any claims at all. To the extent Petitioner believes the Court should have stayed his procedurally defaulted claims, falsely giving them the appearance of viability so as to allow him to escape his mistake of bypassing the clearly available state PCR process, this is not something that a Kelly stay requires. Petitioner's fundamental issue is that he mistakenly bypassed his available state PCR option causing him to breach the AEDPA's statute of limitations during the pendency of his first habeas corpus action. 5 Petitioner's mistake or ignorance of the 5 The pendency of a federal habeas corpus action does not toll the AEDPA' s statute of limitations. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). As a result, at the time Judge Panner dismissed the habeas corpus case, the one- 7 - OPINION AND ORDER law does not limitations. justify equitable Rasberry v. Garcia, tolling of the 448 F.3d 1150, statute 1154 of (9 th Cir. 2008) . Even if Judge Panner had issued a dismissing the case, Petitioner Kelly stay would have in lieu of faced the same procedural bar he does now. Not only would the AEDPA's statute of limitations have passed by seven months at the time Judge Panner issued the Kelly stay and necessarily dismissed the unexhausted claims of ineffective assistance of counsel, but it would have continued to run during the years that Petitioner spent fairly presenting the unexhausted claims in his PCR proceedings. In such a circumstance, into his if Petitioner tried to add the new claims back stayed Petition, statute of limitations they would have been barred by the leaving him only with his procedurally defaulted claims of trial court error. Although Petitioner claims that he may have been able to seek a stay at an earlier time had Judge Panner appointed counsel at the argument outset in Reconsideration of the response in case, to the Court already addressed Petitioner's 1:11-cv-00426-PA and fourth that Motion for concluded that it is without merit where there is no right to counsel in a habeas corpus case in the absence of an evidentiary hearing. See Order (#50). For all of these reasons, the Court declines to fashion an equitable remedy for the time-barred Petition. Ill year statute of limitations for filing another such action had already passed by approximately seven months. 8 - OPINION AND ORDER II. Actual Innocence Petitioner also untimely filing argues under the that the Court fundamental should miscarriage excuse of his justice exception to procedural default. A petitioner who fails to comply with the AEDPA' s one-year statute of limitations may overcome such a default if he is able to show that he is actually innocent of his underlying criminal conduct. U.S. 383, actual 386 (2013). innocence, evidence-whether a it In order to make petitioner be McQuiggin must Perkins, 569 gateway showing of present exculpatory trustworthy eyewitness accounts, a v. "new scientific reliable evidence, or critical physical evidence- that was not presented at trial" which establishes that "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 324, 327 (1995). Petitioner's new evidence of innocence, when weighed against the evidence of guilt adduced at trial, conclusion that in light of the does not totality of the reasonable juror would have voted to convict him. lead to the evidence, no He therefore fails to pass through the gateway of actual innocence to excuse his untimely filing. CONCLUSION For the reasons identified above, Habeas Corpus (#2) is dismissed. the Petition for Writ of 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). In addition, given the 9 - OPINION AND ORDER repeated litigation of the issues presented in this case over the past several years (including five motions for reconsideration in 1:11-cv-00426-PA), the Court will not accept any motions for reconsideration in this case. IT IS SO ORDERED. DATED this --t+- day of December, 2019. Judge 10 - OPINION AND ORDER
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