Lane v. Nooth, No. 3:2008cv00115 - Document 84 (D. Or. 2016)
Court Description: OPINION AND ORDER: The Second Amended Petition for Writ of Habeas Corpus 32 is denied. The court declines to issue a Certificate of Appealabili ty 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). (See 16 page opinion for more information) Signed on 6/20/16 by Judge Robert E. Jones. (dsg)
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Lane v. Nooth Doc. 84 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON GILBERT L. LANE, Case No. 3:08-cv-00115-JO Petitioner, OPINION AND ORDER v. MARK NOOTH, Respondent. Kristina S. Hellman Assistant Federal Public Defender 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 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 JONES, District Judge. Petitioner brings U.S.C. 2254 § this challenging habeas the corpus case pursuant legality of his that follow, the Second Amended Pe ti ti on 28 state-court convictions for Robbery, Murder, and Aggravated Murder. reasons to for For the Writ of in the Habeas Corpus (#32) should be denied. BACKGROUND In First 1985, Degree, merged the a jury convicted petitioner of Murder, and Aggravated Murder. Robbery and Murder convictions Robbery The trial court into the Aggravated Murder conviction and sentenced petitioner to life in prison. The Oregon Court of Appeals affirmed the trial court's decision without opinion, and the Oregon Supreme Court State v. Lane, 82 Or. App. 551, 728 P.2d 977 denied review. (1986), rev. denied, 302 Or. 657, 733 P.2d 1381 (1987). Petitioner was later able to secure post-conviction relief ("PCR") where the PCR trial court determined that both trial and appellate counsel jury should have objected when the trial court's instructions did not require As a result, Aggravated Murder. a finding of intent for in May of 1998, the PCR trial court vacated the Aggravated Murder conviction and remanded the case for further proceedings. Petitioner times between appeared July October 9, 2000. to conduct legal 9, Respondent's Exhibit 129. before 1999 and the his sentencing ultimate court numerous resentencing on He repeatedly complained that it was difficult research while incarcerated, between wishing to proceed pro se, 2 - OPINION AND ORDER with the and vacillated assistance of an appointed attorney, or with an attorney The advisor. judges assigned to his case specifically advised him of the perils of representing himself along the way. The State informed the sentencing court that it would not proceed further on the Aggravated Murder charge. Exhibit 104 "unmerge" (9/16/1999), petitioner's p. 12. Respondent's Instead, the State wished to Murder, Murder, Aggravated and Robbery convictions, something petitioner asserted the State had no right to do. As a result, challenging the petitioner filed a pro se mandamus action State's unmerging of the charges wherein he alleged that because the charges could not be unmerged, and where the State had already dismissed the Aggravated Murder there was no valid custodial order. (2/2/2000), pp. 12-13. charge, Respondent's Exhibit 104 The sentencing court denied the petition. Petitioner once again moved for appointed counsel, and the court initially refused to appoint counsel stating that "we've been down that road several times and I'm just going to deny that because you've demonstrated over and over again that you are not able or willing Exhibit 104 to work (3/15/2000), with p. 49. an attorney [.]" The judge eventually relented and appointed Mark Cross to represent petitioner. petitioner's fifth attorney, Respondent's Mr. Cross was something that made him "somewhat hesitant" based upon the reputation petitioner had established among the defense bar. Respondent's Exhibit 144, p. 1. Mr. Cross appeared on petitioner's behalf in September 2000. Petitioner had pending pro se motions for a new trial and for appointment of counsel to represent him in the new trial. 3 - OPINION AND ORDER The court asked Cross whether a new trial was warranted, and Cross replied that he did not believe there to be any merit to the motion for a new trial. Id at 2. As a result, the court denied the motions for new trial and for counsel. On October 9, 2000, petitioner appeared for sentencing, but the court first addressed the issue of Cross' motion to withdraw. In an affidavit Cross filed with the court, he stated that in his 27 years of criminal defense practice, he had "never encountered a defendant as difficult as [petitioner]" and that he agreed with the opinion of prior counsel that it was not possible for petitioner to work peaceably with any attorney, whether appointed as such or in an advisory capacity. The court granted counsel's Respondent's Exhibit 143. request to withdraw, denied petitioner's request for substitute counsel, and required him to proceed with his sentencing pro se: Well, and I'll make a brief record on that I guess. We've had repeated - repeated times we've had attorneys, some of the best attorneys in the State appointed to represent you, you have repeatedly frustrated those attorneys to the point where they have resigned. You have refused to cooperate with them and you have sabotaged your case repeatedly. We are not going to delay any further. Respondent's Exhibit 104 (10/9/2000), p. 6. During the ensuing sentencing hearing, the State took the position that the court was required to give petitioner a life sentence, with no discretion to impose a lesser sentence. Petitioner argued against this sentence, but after 90 minutes of allocution, the court interrupted him and advised him "that any 4 - OPINION AND ORDER further discussion of mitigation is really irrelevant." 53. Id at The court then proceeded to impose the statutorily required life sentence. ORS 163.115(3) (1981). Petitioner took a direct appeal in which he argued that the sentencing court should have: (1) appointed substitute counsel; (2) granted petitioner additional time to prepare for sentencing; and (3) allowed him to fully present his mitigation evidence. The Oregon Court decision without review. of Appeals opinion, affirmed the sentencing court's and the Oregon Supreme Court denied Respondent's Exhibits 109 & 110. Petitioner next filed for post-conviction relief ("PCR") Malheur County where the PCR trial court denied relief. in In doing so, the PCR trial court stated the following: Court had authority to resentence. No proof of inadequacy of any attorney on any allegation. No proof of prejudice. Petitioner chose by his conduct and statements to the court to go pro se. Matter was litigated on appeal. Life sentence was statutorily required. No inadequacy by appellate attorney or prejudice. Insufficient proof that any transcript is missing or would in any way have changed outcome. Respondent's Exhibit 147. The Oregon Court of Appeals affirmed the PCR trial court's decision without opinion, Supreme Court denied review. and the Oregon Respondent's Exhibits 154 & 155. In this federal habeas corpus case, petitioner pursues the following claims: 1. The sentencing court erred when it (a) permitted Cross to withdraw on the day of sentencing and required petitioner to proceed 5 - OPINION AND ORDER pro se where it was debatable whether petitioner was responsible for the breakdown in the attorney-client relationship; (b) refused petitioner access to evidence that would prove his side of the story; and (c) denied petitioner's motion for a continuance to prepare for the resentencing; 2. Appellate counsel was constitutionally ineffective for failing to raise: (1) the unmerging of lawfully merged sentences; (2) the sentencing court's refusal to provide petitioner with new counsel and taped conversations he had with previous attorneys; and (3) the fact that the indictment was flawed in that it did not specifically allege "Felony Murder" such that the State could not obtain a conviction on that charge; 3. Petitioner's Sixth Amendment right to conflict-free counsel was violated where Cross: (a) presented prejudicial facts, made critical legal omissions, and provided the court with incorrect information during the resentencing hearing; and (b) failed to provide petitioner with a copy of his file and tapes of their meetings so he could establish that he was not at fault for the breakdown in the attorney-client relationship, thereby preventing petitioner from receiving new appointed counsel; and 4. Cross rendered ineffective assistance when he: (a) presented prejudicial facts, made critical legal omissions, and provided the court with incorrect information during the resentencing hearing; (b) failed to inform petitioner of critical legal authority that would have altered the outcome of the resentencing; (c) failed to provide petitioner with the file and tapes of their meetings so he could establish he was not responsible for the breakdown in their relationship, and this failure prevented petitioner from receiving new appointed counsel; (d) failed to challenge the remand order on all available bases; and (e) failed to investigate, develop, and present any 6 - OPINION AND ORDER mitigation evidence. Notice Regarding Claims Addressed in the Brief (#76) . 1 DISCUSSION I. Standard of Review An application for a writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) ''based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." § A state 2254 (d) . correct, and court's petitioner findings bears the of fact burden of 28 U.S.C. are presumed rebutting presumption of correctness by clear and convincing evidence. u.s.c. § A the 28 2254 (e) (1). state court decision established precedent if the is "contrary state court to clearly applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases'' or ''if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent." Under the Williams v. "unreasonable Taylor, 529 application" 1 U.S. 362, clause, a 405-06 (2000). federal habeas These claims reflect petitioner's argued claims, not the totality of the claims he raises in his Amended Petition. Petitioner's unargued claims are denied on the basis that he has not argued them and, therefore, has not sustained his burden of proof. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (petitioner bears the burden of proving his claims). Even if petitioner had briefed the merits of these claims, the court has examined them based upon the existing record and determined that they do not entitle him to relief. 7 - OPINION AND ORDER court may grant relief "if the state court identifies the correct governing legal principle from [the Supreme Court's] but principle unreasonably applies that Id at 413. prisoner's case." clause requires incorrect or application of When a clearly court Id the facts of the "unreasonable application" decision at 410. established to be The law must more state be than court's objectively Id at 409. state no state erroneous. unreasonable. provides the The to decisions court reasoning reaches a to support decision on the merits but its conclusion, the federal habeas court must conduct an independent review of the record to determine whether the state court application of Supreme Court law. 976, 982 (9th Cir. 2000). clearly Delgado v. erred in 223 F. 3d Lewis, In such an instance, its although the court independently reviews the record, it still lends deference to the state court's ultimate decision. 131 S.Ct. 770, 784-85 (2011); Harrington v. Pirtle v. Morgan, Richter, 313 F.3d 1160, 1167 (9th Cir. 2002). II. Ground One: Claims of Trial Court Error According to petitioner, the sentencing court should not have allowed Cross to withdraw on the day set for sentencing and, where it did, it should have granted a continuance. He also maintains that the court should have required Cross to turn over tape recordings of conversations between counsel and client because they might have shown that petitioner was not necessarily responsible relationship. for The the breakdown record 8 - OPINION AND ORDER is quite in the clear in attorney-client this case that petitioner had been particularly problematic for several different attorneys and for an extended period of time. described, "Mr. As Cross Lane was incapable of establishing any sort of relationship with some of the finest attorneys currently involved See Respondent's in death penalty litigation in this state." Exhibit 14 6, petitioner's p. 3. prior Even before attorneys Cross was "predicted appointed, to the one of court that [petitioner] would most likely not be able to [establish any sort of relationship] with any attorney." Based Id. upon the totality of the record, the sentencing court's determination that petitioner had refused to cooperate with appointed counsel was not an unreasonable factual ruling. There is no clearly established federal law which required the sentencing attorney after court to Cross provide withdrew, petitioner especially with yet where another the record supports the conclusion that petitioner was a constant problem for the attorneys appointed to represent him. Although petitioner believes he had a conflict of interest where Cross was not supportive of his motion for a new trial, opinion over the viability of a motion does a difference of not constitutionally-significant conflict of interest. Sullivan, 446 U.S. 335, 348 (1980) (an actual amount to a See Cuyler v. conflict of interest must adversely affect the performance of counsel). Given this history, and the excessive delay in petitioner's re-sentencing proceedings, the court reasonably declined to grant 9 - OPINION AND ORDER another continuance. 2 life sentence was This is especially true where petitioner's statutorily mandated with no room for a downward departure at the discretion of the sentencing court, and where the trial judge was unwilling to tolerate any more delay where he believed petitioner had repeatedly sabotaged his case by refusing to cooperate with his attorneys. 104 (10/9/2000) I Petitioner refusal to Respondent's Exhibit P• 6. also order takes defense issue with counsel the to recordings of their conversations. sentencing turn over court's audio tape Petitioner reasons that had the court required Cross to turn over the tapes as part of his client file, he could have shown that he was not the cause of the ultimate breakdown of the attorney-client relationship such that he was entitled to another attorney. Although petitioner asserts that the Oregon State Bar ethical rules required Cross to turn the tapes over to his client, there is no record that the Oregon State Bar took any action against Cross when petitioner presented it with this issue. petitioner cites recordings Respondent's to no evidence contained Exhibit in the information In addition, 145. record that that might have the taped affected the sentencing court's decision regarding the appointment of another attorney for sentencing. As such, petitioner is unable to prevail on this claim. 2 The court notes respondent's assertion that this claim is unpreserved for federal habeas corpus review, but elects to proceed to the merits of the claim because petitioner is not entitled to relief. See 28 U.S.C. § 2254 (b) (2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state. 11 ). 10 - OPINION AND ORDER III. Ground Two: Ineffective Assistance of Appellate Counsel Petitioner filed his direct appeal assistance of appointed counsel. in this case with the Appellate counsel elected to raise three claims as outlined in the Background of this Opinion. Petitioner, however, faults counsel for not raising several other challenges instead. Because no Supreme Court precedent is directly on point that corresponds to the facts of this case, the court uses the general two-part test established whether petitioner Knowles v. by the Supreme Court to determine received ineffective assistance of Mirzayance, 556 U.S. 111, 122-23 counsel. (2009). First, petitioner must show that his counsel's performance fell below an Strickland v. Washington, objective standard of reasonableness. 466 U.S. 668, 686-87 (1984). Due evaluating counsel's performance, presumption that the conduct to the courts must falls reasonable professional assistance.'' within difficulties indulge a the "wide in strong range of Id at 689. Second, petitioner must show that his counsel's performance prejudiced the defense. whether the petitioner probability that, The appropriate test for prejudice is can show "that there is a reasonable but for counsel's unprofessional errors, result of the proceeding would have been different." the Id at 694. In proving prejudice with respect to the performance of appellate counsel, that a petitioner must demonstrate a reasonable probability but for appellate counsel's prevailed on his appeal." 286 (2000). failure, Smith v. Robbins, ''he would 528 U.S. 259, have 285- When Strickland's general standard is combined with 11 - OPINION AND ORDER the standard of review governing 28 U.S.C. cases, the result is a "doubly deferential judicial review." 556 U.S. at 122. Mirzayance, Petitioner challenged the asserts that allegedly appellate unlawful authority in Oregon counsel unmerging merged convictions and sentences. statutory 2254 habeas corpus § of should have his previously He claims that there is no allowing for the unmerging of sentences, thus the sentencing court had no authority to unmerge his earlier convictions sentences and impose stemming new from sentences. his Murder The PCR and Robbery trial court specifically addressed this issue and recognized that there was not a specific statute prescribing the practice petitioner sought to challenge. Instead, the PCR trial court concluded that the sentencing court properly exercised its power under "the general court's ability to sentence and obligation to sentence and the fact that you had still two convictions that were convictions.• Respondent's Exhibit 146, pp. 84-85. The court specifically explained as follows: Your issue concerning whether the court had authority to resentence is a legal issue. You weren't represented by a lawyer to make that argument. I --- I'm prepared to make a finding on that, which is it's a legal issue. The court can easily review and tell me if I'm wrong. I think the court had authority to resentence, despite the fact that one of these convictions had been vacated. * * * * * Okay, this. there's no point in our arguing about I'm telling you legally that's what I 12 - OPINION AND ORDER believe to be a correct interpretation of the law. * * * * * But at this point, I am telling you that I am prepared to make a ruling, and am making a ruling that you were convicted of all of the charges. And then some of them were merged. The convictions, however, were never vacated for the remaining charges. The court had the authority to sentence on them. That's as clear as I can be and the issue is set up for appeal. Id at 83-84. It is concluded clear that from the the record sentencing that court the had PCR Oregon law to sentence petitioner as it did, judge authority the trial under and that the issue was squarely framed for the Oregon Court of Appeals. Court of Appeals affirmed that decision. The Oregon It is therefore evident that petitioner's sentence was valid as a matter of Oregon law, and is court.3 not subject to reinterpretation by a federal See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) habeas ("[W]e reemphasize that it is not the province of a federal habeas court to reexamine state-court questions."); Bains v. Cambra, determinations 204 F.3d 964, 972 on state-law (9th Cir.) ("a federal court is bound by the state court's interpretations of state law."), cert. Wainwright v. Goode, denied, 531 464 U.S. 78, 84 U.S. 1037 (1983); (2000)' citing see also Mendez v. 3 It is also noteworthy that the Oregon Court of Appeals had separately concluded that where a defendant was convicted of multiple crimes including Aggravated Murder, and the court merged several of the convictions into the Aggravated Murder conviction which was later invalidated, the sentencing court on remand was properly within its authority to sentence on the convictions that had been previously merged. State v. Wilson, 161 Or. App. 314, 985 P.2d 840 (1999). 13 - OPINION AND ORDER Small, the 298 F. 3d 1154, last word Mcsherry v. denied, on the Block, 1994) (9th Cir. 2002) interpretation 880 F. 2d 1049, 499 U.S. 943 (9th Cir. 1158 (1991); of 1052 ("A state court has state (9th Cir. Peltier v. Wright, ("state courts are law."), citing 1989), cert. 15 F.3d 860, 862 the ultimate expositors of state law.") . Pe ti ti oner also claims his appellate attorney should have challenged the validity of the indictment insofar as it did not specifically allege "Felony Murder" such that convicted and sentenced on that charge. he could not be At the conclusion of petitioner's first PCR action, the PCR trial court addressed this issue in its factual assistance of findings in the context of an ineffective trial counsel specifically concluded that claim. The PCR "petitioner had been trial court charged with murder committed 'in the course of and in the furtherance of' the crime of Robbery in the First Degree; Respondent's Exhibit 128, p. 110. factual finding and i, e., felony murder." It is evident from this mixed construction of state was, in fact, charged with Felony Murder. law that petitioner Accordingly, appellate counsel was under no obligation to challenge the indictment on this basis. Although petitioner also faults raising court the has claims he argues already determined appellate counsel for in Ground One, that these supra, claims where lack appellate counsel was under no obligation to raise them. IV. Ground Three: Right to Conflict-Free Counsel 14 - OPINION AND ORDER not the merit, As Ground Three, petitioner alleges that attorney Cross was unable to provide conflict-free representation and provide him with the audio tapes of their meetings. failed to The court has already resolved these issues in respondent's favor in Ground One, thus petitioner is not entitled to relief on these claims here. V. Ground Four: Ineffective Assistance of Sentencing Counsel As Ground Four, petitioner casts some of his previous claims as claims of ineffective assistance of sentencing counsel. the reasons merit such previously that identified, sentencing counsel the underlying cannot be claims For lack constitutionally faulted. Petitioner also asserts that Cross failed to inform him of the U.S. Supreme Court's decision in Apprendi v. New Jersey, U.S. 466 (2000) Art. 1 16. § 530 and the proportionality component of Or. Const. Not only does petitioner not mention Apprendi in his briefing, but he also fails to establish that counsel could have made a meaningful argument that a life sentence for Murder is so disproportionate proceeding issue. would have that been See ORS 163.115 (3) Lockyer v. Andrade, the different (1981) 538 U.S. result 63, had of his counsel sentencing raised the (requiring life sentence); Cf. 75-76 (2003) (25-year sentence for theft of three videotapes does not offend the Constitution) . Petitioner also asserts that Cross failed to challenge the remand order "on all available bases" but does not set out with specifics and argument what other available bases there might have been other than those already discussed in this Opinion. 15 - OPINION AND ORDER Accordingly, the court finds this claim to be too generic upon which to provide a specific ruling. Finally, investigate, petitioner develop, sentencing. that contends and present any Cross mitigation failed to evidence at Where counsel withdrew due to a breakdown of the attorney-client relationship and did not represent petitioner at sentencing, he was under no obligation to present evidence at sentencing. This fact aside, the absence of mitigation evidence where petitioner received the sentence required by law was not prejudicial. 4 For all of these reasons, and upon an independent review of the record, petitioner has not shown any state-court decision to be contrary to, or an unreasonable application of, clearly established federal law. CONCLUSION For the reasons identified Petition for Writ of Habeas Corpus above, (#32) the Second is denied. Amended The court declines to issue a Certificate of Appealabili ty 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). IT IS SO ORDERED. DATED this ;2..o-1;,- day of June, 2016. Judge 4 To the extent petitioner believes mitigation evidence would be beneficial for purposes of parole, such evidence would be more appropriately presented to the parole board, not during his pro se sentencing. Although he would have liked the assistance of an attorney to develop such evidence, he was without counsel due to his own reluctance to cooperate with his many appointed attorneys. 16 - OPINION AND ORDER
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