Mileham v. Premo, No. 6:2016cv00739 - Document 56 (D. Or. 2018)

Court Description: OPINION AND ORDER: For these reasons, the Court DENIES the First Amended Petition for Writ of Habeas Corpus (ECF No. 28) and DISMISSES this action. The Court DENIES a certificate of appealability as Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). Signed on 12/11/2018 by Judge Anna J. Brown. (kms)
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Mileham v. Premo Doc. 56 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON FORGE DENNIS MILEHAM, Civil No. 6:16-cv-00739-BR Petitioner, OPINION AND ORDER v. MR. PREMO, Respondent. OLIVER W. LOEWY Assistant Federal Public Defender 101 SW Main Street Suite 1700 Portland, OR 97204 Attorney for Petitioner ELLEN F. ROSENBLUM Attorney General SAMUEL A. KUBERNICK Senior Assistant Attorney General JAMES M. AARON Assistant Attorney General Department of Justice 1162 Court Street NE Salem, OR 97301 Attorneys for Respondent 1 - OPINION AND ORDER - Dockets.Justia.com BROWN, Senior Judge. Petitioner, an inmate in the custody of the Oregon Department of Corrections, brings this habeas corpus action pursuant to 28 u.s.c. § 2254. For the reasons that follow, the Court DENIES the First Amended Petition for Writ of Habeas Corpus (ECF No. 28). BACKGROUND On October 12, 2007, a Hood River County grand jury returned a thirteen-count indictment against Petitioner. Five counts pertained to an August 2007 attack on Petitioner's first victim, and eight counts stemmed from a September 2007 attack against a second victim. The case was tried to the court in August 2008. With respect to the first victim, the trial judge found Petitioner guilty on two counts of Sexual Abuse in the First Degree and two counts of Rape in the First Degree. As to the second victim, the trial judge found Petitioner guilty of Rape in the First Degree, Assault in the Second Degree, two counts of Sodomy in the First. Degree, and two counts of Unlawful Sexual Penetration. 1 The trial judge sentenced Petitioner to a total of 320 months of incarceration. court Following the conducted four hearings entering a restitution order. on sentencing hearing, the trial restitution before ultimately Petitioner was not present at any of the restitution hearings, and did not waive his right to be there. 1 The judge acquitted Petitioner on one count of Attempted Strangulation of the first victim and one count of Attempted Murder of the second victim. 2 - OPINION AND ORDER - Petitioner appealed his conviction and sentence. The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. State v. Mileham, 241 Or. App. 572, 250 P.3d 464, rev. denied, 350 Or. 423, 256 P.3d 1097 (2011). The appellate judgment issued on April 26, 2011. Petitioner then sought state post-conviction relief (''PCR"). Following relief. affirmed an evidentiary hearing, the PCR trial court denied Petitioner appealed, but again the Oregon Court of Appeals without opinion and the Oregon Supreme Court denied review. Mileham v. Taylor, 275 Or. App. 1032, 367 P.3d 568, rev. denied, 359 Or. 39, 370 P.3d 1252 (2016). The PCR appellate judgment issued on May 18, 2016. On April 29, 2016, Petitioner filed a prose Petition for Writ of Habeas Corpus with this Court. on April 4, 2017, Petitioner The Court appointed counsel, and filed a First Amended Petition alleging the following claims for relief: Claim I: Trial Counsel Rendered Ineffective Assistance of Counsel, in Violation of Petitioner's Sixth and Fourteenth Amendment Right to Effective Assistance of Counsel. A. Trial Counsel Failed to Adequately Advise Petitioner Regarding the Advantages, Disadvantages, and Risks in Rejecting or Accepting the State's Plea Offers and Proceeding to a Bench Trial. B. Trial Counsel Failed to Adequately Investigate Whether Petitioner Was Competent to Stand Trial and Failed to Move for a Competency Hearing. 3 - OPINION AND ORDER - C. Trial Counsel Failed to Ensure that Petitioner was Present at the Restitution Hearing. D. Trial Counsel Failed to Adequately Pursue Plea Negotiations. E. Trial Counsel Failed to Adequately Investigate and Present Evidence in Favor of a Lesser Sentence. Claim II: The Failure to Sever the Counts Concerning the Two Victims Violated Petitioner's Right to Due Process as Guaranteed by the Fourteenth Amendment to the United States Constitution. Claim III: Petitioner's Jury Waiver in Favor of a Bench Trial was Involuntary, in Violation of his Sixth Amendment Right to a Jury Trial and his Fourteenth Amendment Right to Due Process. Claim IV: Hearing. The Trial Court Failed to Conduct a Competency Claim V: Petitioner was Absent from his Restitution Hearings in Violation of his Sixth and Fourteenth Amendment Right to be Present. In his Brief in Support, Petitioner does not address sub-part D of Claim I or Claims II, III, or IV. Petitioner concedes he procedurally defaulted sub-parts A, B, C, and E of Claim One, but contends the procedural default is excused. Finally, Petitioner argues he is entitled to relief on the merits on Claim V. Respondent argues Petitioner failed to meet his burden on the unargued claims. Respondent also argues that Petitioner's procedural default of sub-parts A, B, and E of Claim I cannot be excused. 2 As to sub-part C of Claim I, Respondent argues the claim 2 Respondent argues alternatively that ~ub-part E of Claim I is not timely, but as the Court resdlves this claim on the principles 4 - OPINION AND ORDER - is not cognizable under§ 2254(a). Finally, Respondent contends Claim Vis untimely and, in the alternative, that the state court denied Claim V on independent and adequate state procedural grounds. DISCUSSION I. Procedural Default - Sub-parts A, B, and E of Claim I As noted, Petitioner concedes that sub-parts A, B, and E of Claim I are procedurally defaulted. He argues, however, that the procedural default is excused under Martinez v. Ryan, 566 U.S. 1, 132 S. Ct. 1309 (2012). In Martinez, the Supreme Court held that "[i]nadequate assistance of counsel at initial review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance of counsel at trial." 1315. The holding in Martinez does not, appellate counsel. to initial however, extend to PCR See Id. at 16 (explaining holding applies only review proceedings); Id. at proceedings, Davila v. Davis, and 137 S. not Ct. appeals 2058, from 2066-67 such (2017) (same). Before the state PCR trial court, Petitioner argued the claims alleged in sub-parts A, however, Petitioner of procedural default, need not be addressed. did not assert B, any and E. of alleged and On appeal, these claims. 3 Respondent's procedural default argument ~Petitioner's counseled brief on appeal asserted only that the PCR trial court erred in denying relief on Petitioner's claim of 5 - OPINION AND ORDER - Accordingly, the procedural default of sub-parts A, Petitioner's Claim cannot be excused I B, and E of occurred on post-conviction appeal, under Martinez. As such, Petitioner which is not entitled to habeas corpus relief on these claims. II. Cognizability - Sub-part C of Claim I In sub-part C of Claim I, Petitioner alleges trial counsel was ineffective in failing to ensure he was present at the restitution hearings. Respondent contends this claim is not cognizable under § 2254. "[A] state federal prisoner court may issue a writ of habeas 'only on the ground that he is corpus to a in custody in violation of the Constitution or laws or treaties of the United States. '" Swarthout v. Cook, 562 U.S. 216, 131 S. ( 2 0 11 ) ( quoting Wi 1 son v. Corcoran , 5 6 2 U . S . 1 , (2010) (per curiam)). Ct. 859, 861 131 S . Ct . 13 , 15 This language requires a nexus between the petitioner's claim and the unlawful nature of the custody in order for subject matter jurisdiction to exist. 976, 980 (9th Cir. 2010). Bailey v. Hill, 599 F.3d Imposition of a fine or restitution is not "custody" and thus the "in custody" jurisdictional requirement ineffective assistance of counsel based on trial counsel's failure to ensure Petitioner's presence at the restitution hearings; Petitioner's Pro Se Supplemental Brief assigned error to the PCR judge's denial of relief on the basis that trial counsel was ineffective in failing to seek recusal of the criminal trial judge and failing move to impeach a witness's testimony. 6 - OPINION AND ORDER - of § 2254 (a) is not met when a state inmate makes. an in-custody challenge to a restitution order. Id. Here, Petitioner does not challenge directly his restitution, instead he alleges trial counsel was ineffective in ensure his presence at the restitution hearings. claim is not cognizable under Thiele, 314 F.3d 399, 402 (9th Cir. 2002) to Nonetheless, the See 2254 (a) § failing United States v. (finding such a claim is not cognizable in a challenge to a federal conviction and sentence under 28 U.S.C. (9th Cir. 1999) applied to United States v. § 2255); see (same); this issue, §§ also 2254 (a) Kramer, Bailey, 599 F.3d and 2255 (a) analogous that Thiele and Kramer apply). 195 F.3d 1129 are at 982 (as sufficiently Accordingly, Petitioner is not entitled to habeas relief on Claim V. III. Timeliness - Claim V In Claim V, Due Process absence. Petitioner alleges the trial court violated his rights As by holding noted, Respondent the restitution contends this hearings claim is in his untimely because Petitioner's First Amended Petition was filed beyond the one-year statute of limitations and Claim V does not relate back to any of the claims contained in the timely filed initial petition. Under 28 U.S.C. § 2244(d)(l)(A), a petition filed by a prisoner challenging a noncapital state conviction or sentence must be filed within one year of the latest of the date on which the judgment of conviction became final after the conclusion of direct 7 - OPINION AND ORDER - review or the expiration of the time for seeking such review. "Direct review" includes the period within which a petitioner can file a petition for writ of certiorari with the United States Supreme Court, whether or not the petitioner actually files such a petition. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). Time during which a properly filed application for state post-conviction or other collateral review is pending is excluded from the one-year 28 U.S.C. time limit. Here, § 2244(d) (2). the appellate judgment in Petitioner's criminal case issued on April 26, 2011, and became final on July 25, 2011, when the time to file a petition for writ of certiorari expired. Petitioner signed his state PCR petition 324 days later, 13, 2012. judgment The issued PCR case on May remained pending 18, 2016. Amended Petition 321 days later, until Petitioner on April 4, the filed 2017". on June appellate his As First such, a total of 625 days elapsed before Petitioner alleged the trial court erred in conducting the restitution hearings without Petitioner's presence or waiver of his right to be present. Petitioner's Claim V does not relate back to any of the claims alleged in his timely initial petition limitations. and, therefore, is barred by the statute of Because Petitioner presents no evidence upon which the limitation period may be equitably tolled or otherwise excused, habeas relief must be denied. 8 - OPINION AND ORDER - IV. Claims Not Addressed in Petitioner's Brief in Support - Subpart D of Claim I, and Claims II, III, and IV As noted above, Petitioner does not address the claims in his Brief in Support of Amended Petition. remaining Additionally, Petitfoner does not attempt to refute Respondent's argument that these claims Accordingly, do not entitle Petitioner has him not to habeas corpus sustained his relief. burden of demonstrating why he is entitled to relief on his unargued claims. See Lampert v. 393 F.3d 943, Blodgett, 970 n. 16 (9th Cir. 2004) (petitioner bears burden of proving his case); Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2003) (same). Nevertheless, the Court has reviewed Petitioner's unargued claims and is satisfied that Petitioner is not entitled to relief on the remaining claims alleged in his Petition for Writ of Habeas Corpus. CONCLUSION For these reasons, the Court DENIES the First Amended Petition for Writ of Habeas Corpus (ECF No. 28) and DISMISSES this action. The Court DENIES a certificate of appealability as Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). IT IS SO ORDERED. DATED this \ day of ~ , 2018. United States Senior District Judge 9 - OPINION AND ORDER -