Hamman v. Hill, No. 3:2007cv00473 - Document 45 (D. Or. 2009)
Court Description: Opinion & Order: Petitioner's original and amended petitions for a writ of habeas corpus are Denied, and this proceeding is Dismissed with prejudice. Signed on 3/2/09 by Judge Malcolm F. Marsh. (gm)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON DWIGHT LEE HAMMAN, CV. 07-473-MA Petitioner, OPINION AND ORDER v. JEAN HILL, Respondent. Dwight L. Harrunan SID # 14930921 Snake River Correctional Institution 777 Stanton Blvd. Ontario, Oregon 97914 Petitioner, Pro Se John Kroger Attorney General Jonathan W. Diehl Assistant Attorney General Department of Justice 1162 Court Street N.E. Salem, Oregon, 97301-4096 Attorneys for Respondent MARSH, Judge Petitioner, an inmate at the Snake River Correctional Instituiton, brings this habeas corpus proceeding pursuant to 28 1 -- OPINION AND ORDER U.S.C. § 2254. For the reasons set forth below, the petition is denied, and this proceeding is dismissed. BACKGROUND On April 22, 2003, petitioner entered pleas of guilty and no contest to charges daughters. that he raped and sodomized Petitioner was sentenced to a two of his total of 300 months imprisonment. Petitioner did not file a direct appeal. However, petitioner did seek state post-conviction relief alleging eight grounds of ineffective assistance of counsel in a additional petition. three grounds for relief formal petition, in a and an supplemental pro se The post-conviction court denied relief. On appeal to the Oregon Court of Appeals, petitioner raised one assignment of error: the post-conviction court erred in denying post-conviction relief when petitioner was not competent to enter a plea. Under the heading "preservation of error", petitioner noted that he raised claims of ineffective assistance of counsel below. In Strickland v. support of Washington, this assignment, 466 U.S. 668 petitioner (1984), cited to and argued that trial counsel was ineffective for failing to ensure that petitioner was competent to enter a plea. In sum, petitioner presented what appears to be an amalgamation of both a direct challenge to the voluntary nature of his plea, and an ineffective assistance of counsel claim. 2 -- OPINION AND ORDER The Oregon Court of Appeals summarily affirmed. review by the Oregon Supreme Court, result of voluntary. Peti tioner sought again alleging that, ineffective assistance of counsel, as a his plea was not The Oregon Supreme Court denied review. In the instant proceeding, petitioner filed pro se an original habeas petition, and an amended petition (which purports supplement rather than replace the original petition). original petition, relief: (1) In his petitioner alleges the following grounds for confession without O.R.S. 136.425(1); to corroborating evidence violates (2) trial court erred in accepting guilty plea due to petitioner's unstable mental state; (3) presumptive sentence violates rule announced in Blakely v. (2004); waive 542 U.S. 296 (4) violation of due process - petitioner not competent to jury trial; presentence report; (7) Washington, (5) trial court erred in failing to order (6) violation of right to speedy trial; denied right to confront witnesses; consecutive sentences; (9) adequate findings; (10) and (8) "misapplication" of post-conviction court failed to make ineffective assistance of appellate counsel for failing to investigate errors. In his amended petition, petitioner alleges the following grounds for relief: (1) state statutes under which he was convicted lacked enactment clauses; (2) due process violation as a result of being forced to accept an "Oregon State Bar attorney" as counsel; and (3) ineffective assistance of counsel for failing to 3 -- OPINION AND ORDER (a) challenge court's subject matter jurisdiction, and (b) "insist on due process". DISCUSSION Respondent moves the court to deny habeas corpus relief on the basis that petitioner procedurally defaulted his available state remedies as to all grounds asserted in his original and amended petitions. claim of Respondent argues that petitioner exhausted only one ineffective assistance of counsel petitioner was competent to pled guilty), raised in the instant proceeding. (failure to ensure and that claim is not I agree. Generally, a state prisoner must exhaust all available state court remedies either on direct appeal or through collateral proceedings before a federal court may consider granting habeas corpus relief. 28 U.S.C. § 2254(b) (1); Cook v. Schriro, 538 F.3d 1000, 1025 (9th Cir. 2008), cert. denied, 129 S.Ct. 1033 (2009). A state prisoner satisfies the exhaustion requirement by fairly presenting his claim to the appropriate state courts at all appellate stages afforded under state law. Baldwin v. Reese, 541 U.S. 27, 29 (2004). Cook, 538 F.3d at 1025; The presentation of a claim in a procedural context in which it will not be considered by the state exhaustion. court is not a "fair presentation" for purposes of Castille v. Peoples, 489 U.S. 346, 351-52 (1989). When a state prisoner fails to exhaust his federal claims in state court, and the state court would now find the claims barred 4 -- OPINION AND ORDER under applicable state rules, the federal claims are procedurally defaulted. Coleman v. Thompson, 501 U. S. Casey v. Moore, 386 F.3d 896, 919-21 545 U.S. claims 1146 (2005). (9~ 722, 735 n.l (1991); Cir. 2004), cert. denied, Habeas review of procedurally defaulted is barred unless the petitioner demonstrates cause and prejudice, or that the failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. In the instant proceeding, petitioner alleged on appeal from the denial of post-conviction relief, that he received ineffective assistance of trial counsel due to counsel's failure to ensure that petitioner was competent to pled guilty. in this proceeding. That claim is not alleged The grounds for relief which are raised in this proceeding are procedurally defaulted due to petitioner's failure to raise them in a direct appeal, conviction proceeding. or in the state post- Because petitioner can no longer pursue those avenues of relief (O.R.S. 138.071, 138.550(3) & 138.650), petitioner has procedurally defaulted his available state remedies. To the extent that petitioner's post-conviction appellate brief and petition for review can be construed as raising a direct challenge to the constitutionality of his plea, the claim was presented would considered in a procedural because it conviction trial court. App. P. 5.45(1) was context not in which preserved in it the state not be post- See Castille, 489 U.S. at 351-52; Or. R. (no error will be considered on appeal unless it 5 -- OPINION AND ORDER was preserved in the lower court, provided that the appellate court may consider errors of law apparent on the face of the record). Accordingly, any direct challenge to the voluntary nature of his plea is procedurally defaulted. Petitioner has failed to make a showing of cause and prejudice sufficient to overcome his procedural default, and he has not demonstrated that failure to consider his claims will result in a fundamental miscarriage of justice. Accordingly, habeas corpus relief is precluded. CONCLUSION Based on the foregoing, petitioner's original and amended petitions for a writ of habeas corpus (#1 & #38) are DENIED, and this proceeding is DISMISSED, with prejudice. IT IS SO ORDERED. DATED this ::z. day of March, 2009. ~~.;z~~ Malcolm F. Marsh United States District Judge 6 -- OPINION AND ORDER
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