Opinion
2:21-cv-01255-YY
10-24-2022
ERIC MICHAEL FREEBURG, Petitioner, v. FINDINGS AND RECOMMENDATION SUSAN WASHBURN, SUPERINTENDENT EASTERN OREGON CORRECTIONAL INSTITUTION, Respondent.
FINDINGS AND RECOMMENDATION
YOU, Magistrate Judge.
Petitioner, an adult in custody at the Eastern Oregon Correctional Institution brings this 28 U.S.C. § 2254 habeas corpus action challenging his August 26, 2014 convictions following guilty pleas to four counts of sexual abuse in the first degree, one count of sodomy in the first degree, and one count of rape in the second degree. For the reasons that follow, the Petition for Writ of Habeas Corpus should be DENIED.
BACKGROUND
On October 2, 2013, a Clackamas County grand jury indicted Petitioner on 30 counts of sexual offenses involving Petitioner's years-long abuse of his partner's five then-minor children. Resp. Ex. 102. Petitioner accepted a plea offer under which he agreed to plead guilty to six of the counts, with the parties free to argue for a total sentence of between 100 and 325 months. Resp. Ex. 103. Following an extended colloquy, the trial court accepted Petitioner's guilty pleas and sentenced him to a total of 300 months of imprisonment. Resp. Exs. 101, 104.
The indictment spans a period between 1994 and 2006. Resp. Ex. 102, ECF 11. During sentencing, the prosecutor explained that Petitioner began abusing some of the victims when they were under 12 years old; he started abusing one victim when she was only three or four years old. Resp. Ex. 104, at 20. One victim described “that it happened thousands of times.” Id. Petitioner was interviewed by detectives for two hours, and admitted to some conduct, but minimized his behavior by claiming the acts occurred when the victims were older-“more around the age of 13” and when they were adults. Id. at 22.
Respondent's Exhibits are contained in ECF 11.
Petitioner filed a direct appeal, arguing the trial court committed error by imposing mandatory minimum sentences on two of the counts when the judgment reflected crime commission dates that preceded the effective date of Measure 11, the Oregon law establishing mandatory minimum sentences. Resp. Ex. 105. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. Freeburg, 281 Or.App. 284, rev. denied, 360 Or. 697 (2016).
Petitioner then sought state post-conviction relief (“PCR”). Petitioner was represented by counsel in the PCR proceedings and filed a petition in which he alleged that: (1) trial counsel was ineffective in failing to move to suppress his statements to the police; (2) his guilty pleas were not knowingly, voluntarily, and intelligently made because he was unaware that mandatory minimum sentences under Measure 11 applied only to crimes committed on or after April 1, 1995; and (3) trial counsel was ineffective in failing to object to Measure 11 sentences for two of the counts. Resp. Ex. 116. Following an evidentiary hearing, the PCR trial court denied relief. Resp. Exs. 127, 128. Petitioner appealed, assigning error to the denial of relief on the second and third claims, Resp. Ex. 129, at 11-12, and the Oregon Court of Appeals affirmed without opinion. Freeburg v. Amsberry, 302 Or.App. 186 (2020). In his petition for review to the Oregon Supreme Court, Petitioner asserted only the third claim for relief, Resp. Ex. 132, at 8-10, and the Oregon Supreme Court denied review. Freeburg v. Amsberry, 366 Or. 731 (2020).
On April 14, 2021, Petitioner filed a successive petition for state PCR. Resp. Ex. 136. As of this date, that petition remains pending in Umatilla County Circuit Court. See Resp. Ex. 135; Eric Michael Freeberg v. David Pedro, Supt. EOCI, Umatilla County Circuit Court, Case No. 21CV15401.
On August 23, 2021, Petitioner filed his Petition for Writ of Habeas Corpus in this court alleging four claims for relief: (1) his plea was not knowingly, intelligently, and voluntarily made because he was not aware that Oregon's nonunanimous jury system was unconstitutional; (2) trial counsel was ineffective in advising Petitioner to accept the plea agreement and informing him that if he did not, a nonunanimous jury could convict him; (3) his conviction was obtained by the use of a coerced confession and trial counsel was ineffective in failing to assert a defense of coercion or duress on his behalf; and (4) trial counsel was ineffective in failing to file a motion to suppress and failing to secure a more favorable plea deal. ECF 1. Respondent argues that habeas relief is not available on the first two claims, and that Petitioner procedurally defaulted his third and fourth claims. In his brief in support, Petitioner addresses only his fourth claim, and contends that, to the extent the claim is procedurally defaulted, it is reviewable based on a showing of cause and prejudice under Martinez v. Ryan, 566 U.S. 1 (2012).
DISCUSSION
I. Claim Four-Procedural Default
A. Legal Standards
A habeas petitioner must exhaust all 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 those claims. Rose v. Lundy, 455 U.S. 509, 519 (1982). “As a general rule, a petitioner satisfies the exhaustion requirement by fairly presenting the federal claim to the appropriate state courts . . . in the manner required by the state courts, thereby ‘affording the state courts a meaningful opportunity to consider allegations of legal error.'” Casey v. Moore, 386 F.3d 896, 915-916 (9th Cir. 2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 257 (1986)). If a habeas litigant failed to present a claim to the state courts in a procedural context in which the merits of the claim were actually considered, the claim has not been fairly presented to the state courts and therefore are not eligible for federal habeas corpus review. Edwards v. Carpenter, 529 U.S. 446, 453 (2000); Castille v. Peoples, 489 U.S. 346, 351 (1989).
A petitioner is deemed to have “procedurally defaulted” a claim if the petitioner failed to comply with a state procedural rule or failed to raise the claim at the state level. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). If a petitioner has procedurally defaulted a claim in state court, a federal court will not review the claim unless the petitioner shows “cause and prejudice” for failure to present the constitutional issue to the state court or makes a colorable showing of actual innocence. Gray v. Netherland, 518 U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992); Murray v. Carrier, 477 U.S. 478, 485 (1986).
B. Analysis
Petitioner's fourth claim alleges that trial counsel was ineffective for failing to file a motion to suppress and for failing to secure a more favorable plea agreement. In his Brief in Support, Petitioner explains that “Counsel's failure to file a motion to suppress and the coercive nature of the ‘advice' to plead guilty under the final plea agreement constitute the underpinnings of this claim.” Pet. Br. 8, ECF 26.
At the state PCR trial level, Petitioner asserted that trial court was ineffective in failing to file a motion to suppress statements he made to a police detective. Petitioner also asserted that he “had no alternative but to plead guilty according to the terms of the prosecutor's plea offer” because of the “impending firm trial date, the trial court's refusal to appoint substitute counsel . . ., and [his attorney's] coercive and threatening statements.” Resp. Ex. 116. However, Petitioner did not raise these claims in his appeal to the Oregon Court of Appeals; rather, he claimed his attorney was ineffective for failing to advise him that he could not receive Ballot Measure 11 sentences on some of the counts, and for failing to object to his sentences on that basis. Resp. Ex. 129, at 11-12. In his petition for review to the Oregon Supreme Court, Petitioner asserted only that trial counsel was ineffective for “failing to ensure [he] was not sentenced pursuant to ballot measure 11 on some of his convictions.” Resp. Ex. 132, at 10. Thus, Petitioner never claimed in his PCR appeals that trial counsel was ineffective in failing to file a motion to suppress or that he was coercive regarding the plea agreement. Accordingly, Petitioner's fourth claim is procedurally defaulted. Petitioner argues the claim is nonetheless reviewable based on a showing of cause and prejudice under Martinez v. Ryan, 566 U.S. 1 (2012). Under Martinez, a procedural default of a claim of ineffective assistance of trial counsel may be excused if counsel was ineffective in the state PCR proceeding before the PCR trial court. In Davila v. Davis, 137 S.Ct. 2058, 2065 (2017), the Supreme Court made clear that Martinez applies only at the initial level of collateral review and does not apply to claims involving alleged errors of PCR appellate counsel. Because Petitioner's procedural default occurred on the appellate level, and not before the PCR trial court, Petitioner cannot avail himself of Martinez to excuse the procedural default.
II. Claims Not Addressed in Petitioner's Brief in Support
As noted, Petitioner does not address the remaining claims for relief alleged in his Petition. Accordingly, Petitioner has not sustained his burden to demonstrate why he is entitled to relief on these claims. See Lambert v. Blodgett, 393 F.3d 94 2, 970 n.16 (9th Cir. 2004). Nevertheless, the Court has reviewed Petitioner's remaining claims and is satisfied that Petitioner is not entitled to relief. Habeas corpus relief is unavailable on the first two claims because at the time of petitioner's plea agreement, controlling law was that nonunanimous jury verdicts comported with due process. See Apodoca v. Oregon, 406 U.S. 404 (1972); see also Edwards v. Vannoy, 141 S.Ct. 1547 (2021) (finding that Ramos v. Louisiana, 140 S.Ct. 1390 (2020), which held nonunanimous verdicts unconstitutional, does not apply retroactively). Plaintiff's third claim is procedurally defaulted, and he does not offer any basis to excuse that procedural default.
RECOMMENDATION
The Petition for Writ of Habeas Corpus (ECF 1) should be DENIED and a judgment of dismissal should be entered. Because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability should be DENIED. See 28 U.S.C. § 2253(c)(2).
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due by November 7, 2022. If no objections are filed, then the Findings and Recommendation will go under advisement that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
NOTICE
These Findings and Recommendations are 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 a judgment.