Opinion
CV. 02-1260-KI.
July 30, 2004
Christine Stebbins Dahl, Assistant Federal Public Defender, Portland, Oregon, Attorney for Petitioner.
Hardy Myers, Attorney General, Lester R. Huntsinger, Assistant Attorney General, Department of Justice, Salem, Oregon, Attorneys for Respondent.
OPINION AND ORDER
Petitioner, an inmate at Snake River Correctional Institution, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons set forth below, petitioner's habeas corpus petition is denied.
BACKGROUND
On February 16, 1994, petitioner was convicted of five counts of Rape in the First Degree, two counts of Sodomy in the First Degree, two counts of Kidnapping in the First Degree, five counts of Sexual Penetration in the First Degree, four counts of Sexual Abuse in the First Degree, and one count of Assault in the Second Degree. Petitioner, represented by Deputy Public Defender Eric Johansen, filed a direct appeal challenging the trial court's admission of prior bad acts evidence. The Oregon Court of Appeals affirmed from the bench, and the Oregon Supreme Court denied review. State v. Thomas, 136 Or. App. 549, 903 P.2d 422, rev. denied, 322 Or. 362 (1995).
Petitioner, then represented by Todd C. McCann, sought state post-conviction relief alleging, inter alia, that he received ineffective assistance of trial counsel. The post-conviction court denied relief and petitioner filed a notice of appeal with the Oregon Court of Appeals. Alan Gallagher was appointed to represent petitioner on the post-conviction appeal.
After twelve extensions of time, Mr. Gallagher filed a Balfour brief on behalf of petitioner. The Court of Appeals subsequently affirmed the denial of post-conviction relief without opinion. Thomas v. Cook, 176 Or. App. 650, 32 P.3d 974 (2001). Mr. Gallagher failed to file a timely petition for review in the Oregon Supreme Court. On January 14, 2002, Mr. Gallagher was removed from the list of attorneys eligible to represent indigent prisoners on appeal in post-conviction proceedings.
DISCUSSION
It is uncontested that petitioner defaulted his federal habeas claims by failing to seek review of the denial of post-conviction relief in the Oregon Supreme Court. Petitioner argues, however, that the errors on the part of his post-conviction appellate counsel constitutes "cause" sufficient to excuse his procedural default. I disagree.
In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court examined when attorney error constitutes "cause" to excuse a procedural default. The Court concluded that only in proceedings in which the petitioner has a Sixth Amendment right to counsel will attorney ignorance or inadvertence constitute cause. 501 U.S. at 753-54. The Court explained that "[t]his is not because . . . the error is so bad that `the lawyer ceases to be an agent of the petitioner." 501 U.S. at 754. Rather, "`if the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that responsibility for the default be imputed to the State.'" Id. (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). "In other words, it is not the gravity of the attorney's error that matters, but that it constitutes a violation of petitioner's [Sixth Amendment] right to counsel, so that the error must be seen as an external factor, i.e., one which may be `imputed to the State'." Id. at 754.
Petitioner does not dispute that there is no constitutional right to counsel in state post-conviction proceedings. Rather, petitioner argues that the holding in Coleman is inapposite because his post-conviction appellate counsel's failure to notify him of the adverse Court of Appeals' decision and to seek review by the Oregon Supreme Court was such an "egregious error" that counsel was no longer acting as the petitioner's "legitimate agent."
The Fifth Circuit recently rejected a similar argument, concluding that it is merely a claim of "poor representation cloaked in the mantle of no representation":
[W]hile attempting to sidestep Coleman by arguing that his attorneys never represented him at all, [his claim] actually falls squarely within that holding. His argument is simply that his attorneys failed to act or otherwise inadvertently allowed deadlines to pass, contentions that are merely ones of poor representation cloaked in the mantle of no representation. [Petitioner] demonstrates no external impediment — necessary to show "cause" — that prevented his counsel from constructing or raising his claims.
. . . . .
The crucial, and in this case fatal, distinction for [petitioner] is that the attorney errors to which he adverts occurred at the post-conviction stage. Because [petitioner] had no right to counsel in his state collateral proceeding, insofar as his claim is for ineffective assistance, it must also fail because there can be no independent constitutional violation.Fairman v. Anderson, 188 F.3d 635, 643, reh'g reh'g en banc denied 200 F.3d 813 (5th Cir. 1999).
It is worthy of note that in Manning v. Foster, 224 F.3d 1129, 1135 (9th Cir. 2000), the Ninth Circuit concluded that an attorney's omission, committed by an attorney acting under a conflict of interest, may constitute cause to excuse a procedural default even in the absence of a Sixth Amendment violation. The Ninth Circuit opined that when an attorney's failure to act is caused by his own self-interest, the failure is an objective factor external to the defense and constitutes cause to excuse a procedural default. 224 F.3d at 1134. In the instant proceeding, however, there is no argument or evidence that petitioner's counsel acted under a conflict of interest.
In sum, petitioner has not identified any objective factor external to the defense that impeded his ability to file a timely petition for review in his post-conviction proceeding. Petitioner has not alleged any "interference" by government officials that prevented him from doing so, or that his attorney harbored any conflict of interest. Accordingly, and in the absence of any showing that the failure to consider his federal claims will result in a fundamental miscarriage of justice, federal habeas relief is barred.
CONCLUSION
Based on the foregoing, petitioner's habeas corpus petition (#1) is DENIED and this proceeding is DISMISSED, with prejudice.IT IS SO ORDERED.