Opinion
3: 07-CV-00779-BR.
October 3, 2011
ORDER
After carefully considering the parties' briefs, including Petitioner's Pro Se Memorandum [118] in Opposition and accompanying Exhibits [119-1 to 119-4], the Court is prepared to enter the attached Proposed Order resolving Respondent's pending Motion [104] to Dismiss by dismissing the unexhausted federal habeas claims contained in Petitioner's mixed Amended Petition and proceeding in this federal habeas action on the fully exhausted claims only.
On November 2, 2011, the Court will enter the Proposed Order as its operative Order resolving Respondent's Motion #104 unless before November 2, 2011, Petitioner moves the court through his appointed counsel for leave to invoke the three-step stay and abeyance procedure outlined in Calderon v. U.S. District Court (Taylor), 134 F.3d 981 (9th Cir. 1998), and Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143, 1149 (9th Cir. 2007). See also James v. Pliler, 269 F.3d 1124, 1127 (9th Cir. 2001) (decision to hold an exhausted petition in abeyance is a matter of trial court's discretion). This procedure allows "(1) a petitioner to amend his petition to delete any unexhausted claims; (2) the court in its discretion to stay and hold in abeyance the amended, fully exhausted petition, providing the petitioner an opportunity to proceed to state court to exhaust the deleted claims; and (3) once the claims have been exhausted in state court, the petitioner to return to federal court and amend[] his federal petition to include the newly-exhausted claims." King v. Ryan, 564 F.3d 1133, 1139 (9th Cir. 2009) (citing Taylor, 134 F.3d at 986).
The Court and Petitioner's appointed counsel have repeatedly advised Petitioner of the risks of proceeding solely on his exhausted claims at this juncture; i.e., that he would forever forgo his ability to raise his now-unexhausted claims in a federal habeas corpus action. Petitioner is further advised the Court cannot control the timing of Petitioner's state post-conviction proceedings and will not manipulate this federal action to accommodate him.
In Petitioner's Pro Se Memorandum [118] in Opposition, he proffers additional arguments as to why, beyond delay in his appellate and post-conviction proceedings, certain of his claims should be exempted from the exhaustion requirement. These arguments notwithstanding, the Court is satisfied Petitioner's Amended Petition [98] contains dozens of unexhausted claims for which no exception to the exhaustion requirement applies. If Petitioner elects to proceed solely on his exhausted claims, the Court will address in a future round of briefing any additional arguments by Petitioner related to exemption from the exhaustion requirement.
CONCLUSION
For these reasons, the Court will enter the attached Proposed Order dismissing Petitioner's unexhausted federal habeas claims 30 days from the date of this Order unless Petitioner moves through his appointed counsel to stay his Petition pursuant to the three-step stay and abeyance procedure set out in Kelly and Taylor.IT IS SO ORDERED.
PROPOSED ORDER
This matter comes before the Court on Respondent's Motion [104] to Dismiss this habeas corpus proceeding under Rule 4 of the Rules Governing § 2254 Cases on the ground it is plain on the face of the Amended Petition that Petitioner has not exhausted his available state remedies.
In his Response Petitioner asks the Court to excuse exhaustion under 28 U.S.C. § 2254(b)(1)(B)(ii) on the ground that the delays in the state-appellate and post-conviction process render that process ineffective in protecting his rights.
For the following reasons, the Court GRANTS in part and DENIES in part Respondent's Motion [104].
PROCEDURAL BACKGROUND
On March 11, 1999, a Washington County Grand Jury returned an indictment charging Petitioner with six counts of Aggravated Murder. On June 15, 2001, a grand jury issued a new indictment charging Petitioner with eleven counts of Aggravated Murder. The case went to trial, and at the close of evidence the trial court granted Petitioner's motion for judgment of acquittal on three counts of Aggravated Murder. A jury found Petitioner guilty on the remaining counts and voted to impose the death penalty. Petitioner was sentenced to death, and the trial court entered judgment on August 24, 2001. On direct review the Oregon Supreme Court upheld Petitioner's convictions and death sentence. State v. Johnson, 340 Or. 319, cert. denied, 549 U.S. 1079 (2006).
On June 30, 2006, Petitioner filed a petition for post-conviction relief (PCR) in state court. Johnson v. Belleque, Marion County Circuit Court Case No. 06C1678. Petitioner filed his Fourth Amended Petition on June 3, 2011. The post-conviction trial is currently scheduled to take place on December 2011, but Petitioner indicates his state post-conviction counsel intend to seek a continuance until at least July 2012. Pro Se Mem. [118] in Oppos'n at 1-2.
On May 25, 2007, Petitioner filed a pro se Petition [3] for Writ of Habeas Corpus in this Court. He then filed a counseled Amended Petition [98] for Writ of Habeas Corpus on February 14, 2011. On March 28, 2011, the State moved to dismiss the Amended Petition on the ground it is plain on its face that Petitioner failed to exhaust his available state-court remedies.
DISCUSSION
In response to the State's Motion, Petitioner seeks to bypass the requirement that he exhaust all available state-court remedies and to proceed in federal habeas now both on the exhausted and unexhausted claims set forth in his Amended Petition due to excessive delay in his state-appellate and post-conviction proceedings.
In his Pro Se Memorandum [118] in Opposition, Petitioner sets forth additional reasons for exempting certain of his claims from the exhaustion requirement. The Court will address these arguments in a future round of briefing.
STANDARDS
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). A petitioner must seek discretionary review in the state's highest court in order to fully exhaust his state remedies. O'Sullivan v. Boerckel, 526 U.S. 838 (1999). Exhaustion is not required, however, if "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1)(B)(ii). Unusual delay in state court that amounts to a due-process violation is such a circumstance. Edelbacher v. Calderon, 160 F.3d 582, 586 (9th Cir. 1998). See also Phillips v. Vasquez, 56 F.3d 1030, 1035 (9th Cir.), cert. denied, 516 U.S. 1032 (1995); Coe v. Thurman, 922 F.2d 528, 530-31 (9th Cir. 1990).According to the Ninth Circuit, "there is no talismanic number of months, after which due process is automatically violated." Id. at 531. See also United States v. Mohawk, 20 F.3d 1480, 1485-88 (9th Cir. 1994) (no due-process violation found despite ten-year delay when petitioner failed to show delay resulted in prejudice). Instead district courts must consider four factors to determine whether delay rises to the level of a due-process violation: (1) the length of the delay; (2) the reason for the delay; (3) whether the petitioner diligently asserted his right to a speedy appeal in state court; and (4) prejudice to the petitioner. Coe, 922 F.2d at 531 (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). No single factor is a necessary or sufficient condition to the finding of a deprivation of rights. Id. at 532. "`Rather, they are related factors and must be considered together with such other circumstances as may be relevant. . . . [C]ourts must still engage in a difficult and sensitive balancing process.'" Id. (quoting Barker, 407 U.S. at 533).
ANALYSIS
After examination of the Coe factors and other relevant circumstances, the Court concludes Petitioner cannot establish the delay in his state-appellate and post-conviction proceedings amounts to a due-process violation exempting him from the exhaustion requirement.
I. Length of Delay
A. Direct Appeal
Petitioner was sentenced to death on August 21, 2001, and the Oregon Supreme Court affirmed his convictions and sentence nearly five years later on June 21, 2006. Petitioner cites Coe for the proposition that delays as short as four years can render a state corrective process ineffective. In Coe the delay in processing the direct appeal was less than four years and resulted from the state's failure to monitor the "dilatory court reporter" so the transcript could be certified, Coe consistently asserted his right to expedite his appeal, and the passage of time would have made retrial difficult if his conviction had been overturned. Id. at 531-32. In Coe the petitioner was convicted on one count of conspiracy and nine counts of burglary resulting in a ten-year prison sentence. Here, in contrast, Petitioner was convicted on eight counts of Aggravated Murder and sentenced to death. Moreover, capital trials are by their nature lengthy and involved.
Accordingly, the Court finds Petitioner has not shown his death-penalty case was inordinately delayed by the passage of just under five years from the date the trial court imposed Petitioner's death sentence until the Oregon Supreme Court affirmed his convictions and sentence on direct appeal.
B. Post-Conviction Proceeding
Petitioner's state post-conviction case has been pending since June 2006, and, according to Petitioner, his trial will not take place before July 2012. While the State concedes Petitioner's post-conviction action is proceeding slowly, it insists progress is being made and this is not a case with "`no end in sight.'" Reply to Mem. in Opp'n [115] at 10 (quoting Phillips, 56 F.3d at 1038). Petitioner maintains the passage of more than ten years to date with no firm PCR trial date coupled with the fact that it is likely to take years to complete his PCR appeal makes the facts in his case akin to those in Phillips. The Court disagrees. In Phillips, a capital case, the Ninth Circuit determined the greater than 15-year delay in final adjudication of the death sentence rendered the state corrective process ineffective, thus eliminating the requirement to exhaust state remedies as to conviction and sentence prior to the petitioner bringing a federal habeas action that consisted only of claims challenging his conviction and that he asserted were fully exhausted. Id. at 1033-35.
Here, in contrast, Petitioner seeks to bypass the exhaustion requirement by presenting both exhausted and unexhausted claims as he continues to challenge both his conviction and his sentence in his state post-conviction proceedings. Moreover, as noted, the Oregon Supreme Court affirmed Petitioner's conviction and sentence on direct appeal within five years whereas more than 15 years passed without resolution of Phillip's death sentence on direct appeal.
Finally, as the Court has previously advised Petitioner, it will not excuse exhaustion based on speculative delay. See Order [12] at 5 (Petitioner's "desire to avoid future, speculative delays cannot by itself constitute an independent due-process violation sufficient to allow the Court to excuse the exhaustion requirement altogether.").
II. Reasons for the Delay
A. Direct Appeal
It took Petitioner's appellate counsel three years after the Notice of Appeal to file an opening brief in the direct appeal. In contrast, the State asked for and was granted one 147-day extension of time to file its response. Although Petitioner maintains he objected to his counsel's motions for extension of time to file the opening brief, the delay in filing the opening brief, nevertheless, constitutes the bulk of the time it took to resolve Petitioner's direct appeal and that time is not fairly attributable to the State. See United States v. Lam, 251 F.3d 852, 857 857 n. 8 (9th Cir. 2001) (delay caused by continuances requested by defendant's appointed counsel should not be attributed to the government absent a showing that defendant sought to replace his attorney or that the government acted in bad faith by taking advantage of the delay). In addition, the record reflects Petitioner filed hundreds of pages of pro se motions and an 1147-page pro se supplemental brief containing 169 assignments of error. Reply [115] at 3. As discussed at greater length below, these voluminous pro se filings contributed to the delay in Petitioner's state-court proceedings.
B. Post-Conviction Proceedings
The parties dispute who is responsible for the delay in Petitioner's post-conviction proceeding. After reviewing the record, the Court finds the delay is due to Petitioner and his post-conviction counsel's actions and is not fairly attributable to the State. Specifically, the Court finds the record supports the State's assertions: (1) Petitioner engaged in motion practice seeking access to his own computer and software in his prison cell on death row during the pendency of his PCR case; (2) former appointed PCR counsel, Michael Haines, withdrew in large part because he could not keep up with Petitioner's extraordinary demands; (3) the original PCR petition has been amended several times due in part to appointed counsel's submission of vague and deficient pleadings (see Reply [115], Attachment 7 at 3-4); (4) the PCR court issued multiple orders intended to manage Petitioner's voluminous pro se submissions ( see Reply [115], Attachment 6); (5) even after more than five years of post-conviction litigation and the collection of some 8,000 pages of discovery, Petitioner's PCR counsel continue to seek discovery to identify additional claims; and (6) Petitioner delayed responding to the State's dispositive motions and instead sought production of items from his brother, some of which had already been produced and others which appear to have no relevance to the case, thus prompting the State to move for a protective order and stay of discovery pending resolution of the dispositive motions.
Michael Haines was appointed to represent Petitioner in his post-conviction case on November 20, 2006, but was permitted to withdraw approximately eight months later on the basis that his client discharged him. Mr. Haines later averred the following in an affidavit in support of Petitioner's motion for access to the courts:
A primary reason for my request to withdraw was my inability to satisfy petitioner's insistence that I read all of his voluminous pro se pleadings, virtually all of which included literally hundreds of citations to legal authority, that I study all of the cases cited, and that I file his pleadings over my signature, signifying my approval of his legal research and analysis. In addition, petitioner wanted me to obtain for him all manner of scientific and legal treatises, so that he could file still further pleadings. I did not agree with petitioner about the usefulness of the legal research he wanted done or of the pleadings he wanted to file.
Reply [115], Attachment A at 1. Counsel further averred in his twenty-four years of practicing criminal law and representing many difficult clients, including those charged with serious crimes and suffering debilitating mental illness, "petitioner's demands of [him] with respect to this case far outstripped those of any other client whom [he could] remember." Notably, counsel averred he found Petitioner genuine in his belief that the issues he wanted raised and the research he wanted accomplished were necessary to obtain PCR relief and to protect the record for future federal proceedings. Id. at 2. In counsel's opinion, however, it would require "multiple lawyers [more than two] and legal assistants working seven days a week" to keep up with Petitioner and to do the work he wanted done. Id.
In this federal habeas case, Petitioner has filed approximately thirty-eight (38) pro se motions as well as other letters and submissions despite the Court's notice to Petitioner of the local rule prohibiting a represented party from appearing or acting except through counsel. The Court notes it takes considerable time to read and to digest these legally dense, repetitive, and often convoluted submissions.
Moreover, Petitioner contends "[l]ots of PCR investigation is still on-going and expert witness, pathologists, toxicologist, forensic computer experts, histologists, hydrologist, drug addiction experts, Psychiatrists, etc, are being worked with to review the records and write reports and prepare to testify in depositions and at trial, so much remains to be done and I would be stupid to go to PCR trial without being 100% ready, but I can express frustration at the delay." Pro Se Mem. in Opp'n [118] at 3.
Petitioner argues the State caused the delay in his PCR case when it sought and received a stay of all discovery "until the PCR petition is acceptable and final-settled, but for which the state keeps challenging for wordage and content under the various civil rules." Pro Se Mem. in Opp'n [118] at 2. The Court disagrees. First, it appears from the Court's review of the record that the State's motion was appropriate and intended to speed up matters rather than to delay proceedings by narrowing the number of claims to be decided on the merits and to avoid unnecessary discovery. Moreover, the State's motion for a protective order and to stay discovery was filed on March 8, 2011, and, therefore, could not be the source of the vast majority of the delay in Petitioner's PCR case that began in June 2006.
Based on the foregoing, the Court concludes on this record that Petitioner and his PCR counsel bear responsibility for the delay in resolving Petitioner's PCR case and, therefore, such delay is not fairly attributable to the State.
III. Assertion of the Right to Speedy Resolution in State Court
Petitioner has consistently asserted his right to speedy resolution of his state-court proceedings by repeatedly making a record of his objections to all continuances and expressing his desire that his case move ahead. The Court, however, finds Petitioner's assertions and objections are undermined by his actions as noted above; i.e., the demands he has placed on his counsel and the continuous filing of voluminous pro se motions and materials with the PCR court. The PCR court appears to be making every effort to allow Petitioner to present appropriate pro se claims. See Reply [115], Attachment 6 at 5 ("At the point of settling the Petition, Petitioner will be entitled to raiseChurch issues as discussed above in paragraph 1. In the meantime, Petitioner shall not file any papers except through counsel. The Court has every intention of allowing Petition[er] a full and fair issue on all claims but currently it does not appear appropriate for Petitioner to attempt to raise issues beyond his Petition because of the potentially temporary nature of the Petition."). Presumably, too, Petitioner's appointed PCR counsel are endeavoring to review and to keep up with his voluminous pro se submissions in an effort to maintain a working relationship with Petitioner. Although both of these accommodations may well be appropriate, they necessarily and significantly delay resolution of an already complex capital case and, therefore, such delay is not fairly attributable to the State.
IV. Prejudice to the Petitioner
Petitioner asserts he suffers prejudice from the delay in his state-court proceedings because: (1) the conditions on death row are oppressive, (2) he has developed physical and mental-health problems for which he is not being properly treated, and (3) both his appeal and the viability of his defense in the event of a retrial are being impaired. See Decl. of Counsel and Petitioner [110-1, 112].
With respect to prejudice, the fourth Coe factor, the Court must consider the following: (1) oppressive incarceration while awaiting resolution of the state proceedings, (2) anxiety and concern of the petitioner awaiting resolution of the state proceedings, and (3) impairment of the petitioner's grounds for relief or viability of the defense in case of retrial. See Coe, 922 F.2d at 532.
Here, in light of the fact that his conviction and sentence were affirmed on direct appeal, Petitioner cannot demonstrate his incarceration during the pendency of such appeal was unjustified and oppressive. Moreover, whether his incarceration during the pendency of his post-conviction proceedings is unjustified and oppressive cannot be determined because it depends on the outcome of those proceedings or any subsequent retrial. See United States v. Antoine, 906 F.2d 1379, 1382 (9th Cir. 1990). If Petitioner's conviction and sentence were proper, his confinement cannot have been oppressive because he would merely be serving his sentence as mandated by law. See id.
With regard to the second prejudice factor, Petitioner asserts the State will never execute him. In any event, the Court does not doubt Petitioner has experienced anxiety and concern related to the outcome of his pending state-court proceedings. Nevertheless, Petitioner has not alleged any particular anxiety that significantly distinguishes his case from that of other prisoners on death row awaiting the outcome of their state-court proceedings. See id. at 1382-83.
Finally, Petitioner alleges the delay in his state proceedings has already compromised and will continue to compromise his appeal and his ability to get a fair retrial. Specifically, he argues in the ten years since his conviction, two potential retrial witnesses have died: the assistant medical examiner Nicholas Hawthorne (who performed the autopsy on the victim and testified at trial) died on August 6, 2002, and Petitioner's mother, Betty Johnson, died in May 2010 (Ms. Johnson did not testify at Petitioner's guilt or penalty phase trials). In addition, Petitioner argues the file at the Clatsop County District Attorney's office containing pre-indictment investigation and grand-jury materials as well as portions of Petitioner's trial attorney and trial investigation team's files have been lost or destroyed. Mem. in Opp'n [110] at 9.
Notably, in light of the fact that the medical examiner died less than a year after Petitioner was sentenced to death, Petitioner cannot show inordinate delay in his appellate or post-conviction proceedings resulted in the loss of this witness for retrial. Moreover, with regard to the loss of Petitioner's mother and the alleged missing documentary evidence, Petitioner has not made a showing of how their loss actually prejudices him to the extent that this Court would be compelled to dispense with the exhaustion requirement to serve the interests of justice. Cf. Simmons v. Blodgett, 910 F.Supp. 1519, 1524 (W.D. Wash. 1996), aff'd, 110 F.3d 39 (9th Cir. 1997) (case was one of those exceptional matters in which the Petitioner's "entire constitutional claim hinge[d] on the testimony and credibility of one witness, who [was] elderly, marginally competent, and in poor health."). This is particularly true in light of the Court's finding that Petitioner and his PCR counsel are responsible for the delay in his state post-conviction proceedings and, therefore, also responsible for any resulting prejudice arising from such delay.
CONCLUSION
For these reasons, the Court concludes after careful examination of the record that Petitioner cannot demonstrate the Court should excuse the exhaustion requirement at this time based on delay in his state-court proceedings. Accordingly, Respondent's Motion [104] to Dismiss is GRANTED in part and DENIED in part to the extent that Petitioner's unexhausted claims contained in the Amended Petition will be dismissed and this federal habeas action will proceed on Petitioner's remaining exhausted claims only.
The parties are directed to confer and to file a proposed schedule for the filing of a possible express waiver pursuant to 28 U.S.C. § 2254(b)(3) of the exhaustion requirement as to particular claims, identification of exhausted claims, and briefing on the merits as to the identified exhausted claims no later than Noon, December 2, 2011.
IT IS SO ORDERED.
DATED this [to be determined] day of November, 2011.