Opinion
Civil No. 01-1546-JE.
April 23, 2004
Steven T. Wax Oregon Federal Public Defender, Portland, Oregon, Attorney for Petitioner.
Hardy Myers, Attorney General, Douglas Y.S. Park, Assistant Attorney General, Department of Justice, Salem, Oregon, Attorneys for Respondent.
FINDINGS AND RECOMMENDATION
Currently before the court are petitioner's Amended Petition for Writ of Habeas Corpus (#30) and Motion for Release Pending Resolution of the Case (#51), both of which are premised on the State of Oregon's alleged failure to provide petitioner with an effective appellate remedy. For the reasons set forth below, the Amended Petition and Motion for Release should be denied.
BACKGROUND
This case arises out of the September 21, 1986 murder of petitioner's estranged wife, Cheryl Keeton Cunningham. As the underlying facts of the case were set out in great detail by the Oregon Court of Appeals on February 6, 2002, they are not repeated here. See State v. Cunningham, 179 Or.App. 359, 40 P.3d 1065 (2002), petition for reconsideration allowed and opinion adhered to, 184 Or. App. 292, 57 P.3d 149, review allowed, 336 Or. 125, 79 P.3d 882 (2003). Seven years after the crime, and after the entry of a wrongful death judgment against him, petitioner was formally indicted and was arraigned for the murder on May 6, 1993. Petitioner's Exhibit A, p. 1.
Petitioner was represented by five different attorneys prior to his criminal trial. Petitioner found all of these attorneys to be unacceptable for a variety of reasons, and Circuit Judge Bonebrake accommodated petitioner's requests to dismiss all of them at various times prior to trial. Respondent's Exhibit 105. Judge Bonebrake was due to entertain petitioner's motion to proceed pro se in the trial when petitioner produced a copy of a civil rights complaint naming Judge Bonebrake as a defendant. Id at 3-4.
The case was then transferred to Circuit Court Judge Alexander who, on September 14, 1994, allowed petitioner to proceed pro se while retaining two of the previously dismissed attorneys as legal advisors. Id at 4. On October 20, 1994, petitioner proceeded to trial where a jury found him guilty of Murder. Petitioner's Exhibit A, pp. 11, 16. On February 24, 1995, the court sentenced him to life in prison. Id, p. 17.
On March 22, 1995, petitioner filed a notice of appeal through his sixth court-appointed attorney, Dan Maloney, who was employed by the State Public Defender's Office. Petitioner's Exhibit B, p. 1. Maloney's representation was short-lived because petitioner created a conflict of interest with him by filing a lawsuit naming Sally Avera, the State Public Defender, as one of the defendants. Respondent's Exhibit 105, p. 4; Petitioner's Exhibit B, p. 3; Petitioner's Exhibit E. Accordingly, on March 27, 1996, the court appointed Kathleen Correll, a private attorney, to represent petitioner on appeal. Petitioner's Exhibit B, p. 3. A second attorney, Michael Curtis, was also appointed to assist in petitioner's representation on September 5, 1996. Id at 4.
In the meantime, the court reporter from petitioner's trial received numerous extensions of time, beginning in May of 1995 and ending in November of 1996, to prepare the trial transcript. Petitioner's Exhibit B, pp. 2-6. When the trial transcript was certified on May 5, 1997, petitioner's attorneys filed 30 motions on his behalf to correct the transcript. Id at 25-28. On November 27, 1998, the court finally ordered the transcript settled. Id at 7.
Correll and Curtis filed petitioner's opening brief with the Oregon Court of Appeals on September 7, 1999, which contained 32 grounds for relief covering 290 pages. Petitioner's Exhibit F. The State filed its response on March 23, 2000 and Correll and Curtis filed a reply brief on October 25, 2000. At this point, petitioner became dissatisfied with Correll and Curtis, and asked the court to terminate their representation and appoint new counsel based on his belief that his attorneys were deliberately delaying his appeal. Petitioner's Exhibit I. Correll and Curtis also filed a motion on petitioner's behalf asking the court to remove them from his case. Petitioner's Exhibit J.
Petitioner then initiated another lawsuit in which he named Curtis and Correll as defendants. Respondent's Exhibit 105, p. 5. However, the Oregon Court of Appeals declined to allow the attorneys to withdraw. Id.
The Oregon Court of Appeals held argument in petitioner's case on June 21, 2001, and on February 6, 2002, determined that his Murder conviction should be set aside, and the case remanded for a new trial based on a state law evidentiary claim which was one of the many claims raised by Correll and Curtis. On April 10, 2002, the State moved the Oregon Court of Appeals to reconsider its decision. Response (#54), p. 13.
Meanwhile, petitioner's victory did not dissuade him from complaining about his attorneys. He continued to accuse them of conspiring against him, and repeatedly asked the Oregon Court of Appeals to replace them. Id. On April 11, 2002, the Oregon Court of Appeals appointed Walter Todd for the limited purpose of advising petitioner whether he should waive the right to counsel for the remainder of his appellate proceedings. Id at 6. On May 16, 2002, Todd filed a motion asking the court to substitute counsel, calling the lawsuit petitioner filed against Correll and Curtis a "key factor" in the breakdown of the attorney-client relationship, but noting other "significant concerns as well." Petitioner's Exhibit O.
In the meantime, Correll moved the court to evaluate petitioner's competence to aid and assist in his own defense. Petitioner's Exhibit B, p. 20. On August 12, 2002, the Oregon Court of Appeals found petitioner to be competent, and allowed Correll and Curtis to withdraw from the case. Petitioner's Exhibit S. In so doing, the Oregon Court of Appeals stated the following:
The court further determines that, despite a professed desire to be represented by counsel, defendant in effect has waived the right to counsel by electing repeatedly to pursue legal strategies that no reasonable attorney rendering adequate representation would approve. Therefore, the court declines to appoint new counsel. The court will consider appointing a legal advisor for defendant, provided that defendant moves for appointment of a legal advisor and provides the court with the name of one or more attorneys whose assistance defendant would accept.Id at 3.
On August 28, 2002, petitioner responded to this order claiming that it:
clearly shows extreme prejudice and bias on the part of the court, and demonstrates that no fair or equitable treatment can occur without significant measures. Based upon Judge Deits['] refusal to comply with the law, I fear any attorney now appointed by the court will be another lackey, equally biased and prejudiced, who will be instructed to subvert my appeal.
Petitioner's Exhibit T, p. 1.
On October 16, 2002, the Oregon Court of Appeals granted the State's motion for reconsideration, but affirmed its previous opinion. Petitioner's Exhibit V. Following this decision, the State's attorney and the Federal Public Defender jointly petitioned the Supreme Court to assign petitioner counsel. Petitioner's Exhibit W. The Supreme Court assigned Andy Simrin to represent petitioner for the remainder of his appeal. Petitioner's Exhibit X. On April 9, 2003, Simrin filed a response to the State's Petition for Review. Respondent's Exhibit 108.
The Federal Public Defender had been appointed by this court on January 15, 2002 to represent petitioner in connection with this habeas corpus proceeding which was filed by petitioner pro se on October 17, 2001.
On November 5, 2003, the Oregon Supreme Court allowed review and permitted each party 28 days to file a merits brief. Respondent's Exhibit 109. Petitioner then objected to Simrin's representation in part because Simrin was employed by the State Public Defender's Office at the time of plaintiff's lawsuit against Sally Avera in 1995. On January 22, 2004, the Oregon Supreme Court allowed Simrin to withdraw from the case. Respondent's Exhibit 122.
On February 18, 2004, the Oregon Supreme Court appointed George Kelly to represent petitioner. Respondent's Exhibit 128. The State represents that the Oregon Supreme Court has scheduled oral argument in petitioner's case for May 4, 2004. Status Report (#58).
Kelly is petitioner's eleventh attorney in the ongoing state court proceedings. This figure does not include Steven T. Wax, who is currently representing petitioner in this federal habeas corpus action.
DISCUSSION
Federal habeas corpus petitioners must typically exhaust their available state remedies before proceeding to federal court. 28 U.S.C. 2254(b)(1)(A). However, a petitioner will not be held to the exhaustion requirement where "circumstances exist that render [the state appellate] process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254 (b) (1) (B) (ii). Petitioner in this case claims that the delay he is currently experiencing in his direct appellate proceedings renders the state process ineffective, thus the exhaustion requirement should be waived and he should be permitted to proceed with this habeas corpus action immediately.
In Coe v. Thurman, 922 F.2d 528 (9th Cir. 1990), the Ninth Circuit addressed whether excessive delay in a state criminal appeal may constitute an independent due process violation sufficient to excuse the exhaustion requirement. The petitioner in Coe filed a notice of appeal with the California Court of Appeal on March 5, 1987. Id at 531. Due to delays caused by a shortage of court reporters and general court backlog, the intermediate appellate court failed to render a decision by the time petitioner filed a federal habeas corpus action on May 23, 1989, nor had the state court issued its opinion before the Ninth Circuit did on December 28, 1990.
The Ninth Circuit determined that the extraordinary 45-month delay in the state courts constituted a due process violation, thereby rendering the state corrective processes "ineffective" within the meaning of § 2254(b). Id at 530. The court in Coe stated that it would be "meaningless to insist that petitioner exhaust his state remedies when the essence of his due process claim arises directly out of his inability to do so." Id (citing Wheeler v. Kelly, 639 F.Supp. 1374 (1378 E.D.N.Y. 1986), aff'd, 811 F.2d 133 (2nd Cir. 1987)). It recognized that immediate release was "not appropriate," and ordered that the petitioner be released from custody only if the California Court of Appeal had not decided his appeal within 90 days. Coe, 922 F.2d at 532-33.
When petitioner initially filed this habeas corpus action on October 17, 2001, the Oregon Court of Appeals had not yet decided his case. However, as previously noted, on February 6, 2002, that intermediate appellate court determined that his conviction should be set aside and the case remanded for a new trial. This intervening decision puts petitioner in the unique position of claiming that the appellate process is ineffective to protect his rights, despite the decision by the Oregon Court of Appeals which grants him the relief for which he applied. The court must therefore determine whether the favorable decision moots his claim of delay as it relates to the intermediate appeal process.
In a case involving a habeas petitioner whose conviction was affirmed during the pendency of his habeas proceedings challenging a delay in New York's state courts, the Second Circuit noted that "[a] state court's hearing of an appeal does not moot a habeas petition based on a claimed denial of due process of the petitioner's right to appeal because it does not resolve the fundamental issue raised: whether delay . . . violated petitioner's right to an . . . effective appeal."Simmons v. Reynolds, 898 F.2d 865 (2nd Cir. 1990) (citing Evitts v. Lucey, 469 U.S. 387, 400-05 (1985). The court inSimmons focused on the fact that an affirmance does not moot the habeas petition. Id (citing Mathis v. Hood, 851 F.2d 612, 614 (2nd Cir. 1988). It reasoned that the petitioner in Simmons was "entitled to a habeas determination of whether his appeal was no more than a `meaningless ritual'. . . ." Id (citing Evitts, 469 U.S. at 394).
Here, unlike Simmons, the Oregon Court of Appeals determined that petitioner's conviction should be set aside, not affirmed. Given the favorable nature of the decision petitioner received from the Oregon Court of Appeals in 2002, the appellate process has been far from a "meaningless ritual." Because the Oregon Court of Appeals afforded petitioner the relief for which he applied, his claim that the appellate process is ineffective to protect his rights is now moot as to the delay he experienced during his intermediate appeal. Accordingly, the court is left to determine whether petitioner has suffered unconstitutional delay in the Oregon Supreme Court sufficient to warrant federal court intervention.
Petitioner also asks the court to include in its analysis the seven-year delay between the murder and the State's decision to file charges against him. The delay in filing criminal charges against a free person does not constitute a due process violation where, as here, any prejudice to the petitioner is speculative.United States v. Sherlock, 962 F.2d 1349, 1353 (9th Cir. 1989). "[T]he burden of showing actual prejudice is heavy and is rarely met." United States v. Doe, 149 F.3d 945, 948 (9th Cir. 1998).
The Oregon Supreme Court granted review in this case on November 5, 2003, and oral argument has been scheduled for May 4, 2004. The pendency of petitioner's case for little more than five months with the Oregon Supreme Court is insufficient to justify federal intervention. Even if the court were to consider the intermediate appellate delay in assessing petitioner's due process claim, because the record in this case reveals that petitioner was substantially responsible for the delay he experienced, the outcome of this case would not be different.
As the Oregon Court of Appeals rendered a favorable decision for petitioner, and because there has not been excessive delay at this point while the Court of Appeals' decision is being reviewed by the Oregon Supreme Court, the exhaustion requirement should not be excused, and this case should be dismissed without prejudice to petitioner's right to refile another habeas corpus action: (1) if he exhausts his available state court remedies; or (2) if he experiences excessive delay before the Oregon Supreme Court.
RECOMMENDATION
For the reasons identified above, the Amended Petition for Writ of Habeas Corpus (#30) and Motion for Release Pending Resolution of the Case (#51) and should be DENIED, and Judgment should be entered DISMISSING this case without prejudice.
SCHEDULING ORDER
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have ten (10) days from the date of service of a copy of this recommendation within which to file specific written objections. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issue, and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation.