Opinion
Civil No. 00-5-ST.
January 28, 2002
DENNIS N. BALSKE, Assistant Federal Public, Defender, Portland, OR., Attorney for Petitioner.
HARDY MYERS, Attorney General, DOUGLAS Y. S. PARK, Assistant Attorney General, Department of Justice, Salem, OR., Attorneys for Respondent.
OPINION AND ORDER
Petitioner brings this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Currently before the court is the Amended Petition For Writ of Habeas Corpus (#16). The parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with 28U.S.C. § 636(c) (#39). For the reasons set forth below, the Amended Petition For Writ of Habeas Corpus (#16) is DENIED IN PART, and this case shall proceed on Ground Two of the Amended Petition.
BACKGROUND
On April 9, 1997, members of a police task force arrived at petitioner's residence in response to a complaint of possible drug trafficking. After the officers identified themselves and explained to the petitioner they had received a complaint of drug activity at the residence, petitioner consented to a search of the residence. During the search, the officers discovered weapons and ammunition under the bed in the master bedroom. After this discovery, petitioner withdrew his consent, and the search was terminated.
The officers then checked to verify that the petitioner was in lawful possession of the discovered weapons. A records check revealed that the petitioner was convicted on March 4, 1980, for Assault in the Second Degree. After advising petitioner that the nature of his prior conviction made it unlawful for him to possess the weapons, the officers seized them.
On June 11, 1997, petitioner was indicted by a grand jury in Umatilla County on two counts of Felon in Possession. In exchange for the dismissal of one count, petitioner pleaded guilty to one count of Felon in Possession of a Firearm. Based on the evidence presented at the sentencing hearing and in a Pre-Sentence Investigation report ("PSI"), the court accepted the plea and sentenced petitioner to 13 months of imprisonment, with two years of post-prison supervision.
Petitioner did not directly appeal his conviction. He did, however, seek state post-conviction relief ("PCR"). In his First Amended Petition in the state PCR proceeding, petitioner alleged the following claims for relief:
First Claim: Petitioner's imprisonment is . . . in violation of both of the Constitution of the United States and the State of Oregon and of O. R. S. 138. 50 in that Petitioner was denied his right to effective assistance of counsel throughout the proceedings in that Petitioner's trial counsel:
1. Failed to adequately counsel Petitioner in his decision to plead guilty in this case. Petitioner's counsel advised that if Petitioner plead guilty he would most likely receive probation only, but that if he had to go to jail it would only be for thirty (30) days.
2. Failed to counsel the Petitioner to proceed with a Motion to Suppress which was well founded in the law and had a reasonable opportunity for success.
3. Failed to object to errors in the Pre-sentence Investigation of the following particulars:
a. That the probation officer did not and would of [sic] indicated that the Petitioner had a "drug problem" as indicated in the PSI.
b. Did not object or attempt to explain at sentencing the statement in the PSI that Petitioner had changes his story about the guns in his home.
4. Failed to hire an interpreter for Petitioner for consultations with counsel and court proceedings when Petitioner is a person who has some but no full knowledge of the English language.
Second Claim: Petitioner's imprisonment is . . . in violation of the Fourteenth Amendment and the Oregon Constitution when the trial court proceeded with a plea and sentencing without a Spanish language interpreter when Petitioner is a person who has some but not full use of the English language and was unable to understand fully technical and complicated legal language used during the proceedings.
The state moved for summary judgment, asserting there was no genuine issue of material fact as to the claims alleged by petitioner, and that the state was entitled to judgment as a matter of law. Petitioner filed a response to the state's motion, and simultaneously filed a motion for leave to amend his PCR petition to allege the following additional claims:
First Claim: . . . Petitioner's trial counsel:
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5. Failed to object to the court's acceptance of Petitioner's plea of guilty when it was not taken pursuant to ORS 135. 385 in that the court did not determine that the defendant understood:
a. That a plea of guilty waives the right to a trial by jury, of confrontation, and against self incrimination.
b. The maximum possible sentence on the charge.
c. That the plea may result in the deportation of the defendant.
Second Claim: . . . The trial court:
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2. Proceeded with a plea and sentencing when it was not taken pursuant to ORS 135. 385 in that the court did not determine that the defendant understood:
a. That a plea of guilty waives the right to a trial by jury, of confrontation, and against self incrimination.
b. The maximum possible sentence on the charge.
c. That the plea may result in the deportation of the defendant.
The state objected to petitioner's motion for leave to amend. Wth respect to the proposed due process claim, the state argued that it could have been raised on direct appeal as trial court error, and that the trial court's failure to follow the prescribed statutory procedure in taking the plea did not state a claim for post-conviction relief. The state did not present any argument with respect to the proposed ineffective assistance of counsel claim.
The PCR court denied the motion to amend, stating in a letter-ruling on the motion:
Petitioner's motion to amend is denied.
Defendant's arguments in objection are persuasive.
Defendant shall submit an order.
In the same letter ruling, the PCR court granted the state's motion for summary judgment as to some of the claims alleged in petitioner's First Amended Petition, and denied the motion as to the remaining claims. The court held an evidentiary hearing on the remaining claims, and eventually denied relief on those claims as well.
Petitioner appealed, asserting as one of his assignments of error that the PCR court should have granted his motion to amend. The Oregon Court of Appeals affirmed without opinion. Villarreal v. Schiedler, 161 Or. App. 128, 984 P.2d 958 (1999). Petitioner sought review from the Oregon Supreme Court, but his petition for review did not address the PCR court's denial of his motion to amend. The Oregon Supreme Court denied review. Villarreal v. Schiedler, 329 Or. 358, 994 P.2d 125 (1999).
Petitioner filed this action on January 3, 2000. In his original pro se petition, he alleged that he was denied effective assistance of trial counsel in several particulars. In response to the original petition, respondent argued that all of the grounds alleged therein were procedurally defaulted.
Following the appointment of counsel, petitioner conceded the procedural default of his original claims. He then filed a motion for leave to amend his petition to withdraw the ineffective assistance of counsel claim alleged in the original pro se petition, and instead assert the following grounds for relief:
Ground One: The trial court failed to ensure that I understood the constitutional rights I was waiving and the maximum sentence I would face when I pleaded guilty, in violation of Fourteenth Amendment due process.
Supporting Facts: In my plea petition, my lawyer wrote that I would be subject to a maximum sentence under guideline section 6E. At my change-of-plea hearing, I was told that the appropriate guideline classification was 6D. No one explained the difference in these two classifications to me. I did not know that the maximum sentence I could receive was 13-14 months, or that if I was sentenced to more than 12 months, I would be required to serve my sentence at a state correctional facility rather than the county jail.
Ground Two: My counsel did not provide me with effective assistance, in violation of the Sixth Amendment, because (a) he failed to object to the trial court's acceptance of my guilty plea, where the trial court did not ensure that I understood the constitutional rights I was giving up, and (b) he failed to advise me of the correct maximum sentence I could receive, but instead advised me of a shorter maximum sentence involving only county jail incarceration.
Supporting Facts: My guilty plea was taken without the benefit of an interpreter. During the plea, the court explained the constitutional rights I would be giving up by pleading guilty. The court did not determine whether I understood the rights I was giving up. Moreover, neither my lawyer nor the court explained to me the difference in guideline classifications 6E and 6D. As a result, I did not understand the maximum sentence in my case, or the fact that it would involve state correctional facility, rather than county jail, incarceration. But for my lawyer's ineffectiveness, I would not have pleaded guilty but would have insisted on going to trial.
These are essentially the same claims that petitioner unsuccessfully attempted to add to his PCR petition.
Over respondent's objection, this court granted petitioner's motion for leave to amend. Therefore, this court will address the claims alleged in the Amended Petition.
DISCUSSION
I. Legal Standards
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. Keeney v. Tamayo-Reyes, 504 U.S. 1, 9 (1992); Duckworth v. Serrano, 454 U.S. 1, 3 (1981). A prisoner satisfies the exhaustion requirement by "fairly" presenting his claims to the highest state court with jurisdiction to consider them.Keeney, 504 U.S. at 9; Picard v. Connor, 404 U.S. 270, 276 (1971). A prisoner fairly presents his claims by describing in the state court proceeding both the operative facts and the legal theory on which his claim is based. Anderson v. Harless, 459 U.S. 4, 6 (1982); Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988).
If a petitioner procedurally defaults on a claim in state court, federal habeas review is barred unless the prisoner can demonstrate cause for the procedural default and actual prejudice, or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice. Sawyer v. Whitley, 505 U.S. 333, 337 (1992); Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir. 1993). Cause "must be something external to the petitioner, something that cannot be fairly attributed to him. Coleman, 501 U.S. at 753. Prejudice is actual harm resulting from the alleged constitutional violation. Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991). In the extraordinary case, "[a] 'fundamental miscarriage of justice' occurs when 'a constitutional violation has probably resulted in the conviction of one who is actually innocent.'"Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998) (quoting Murray, 477 U.S. at 495-496).
A state prisoner may default a federal claim by violating a state procedural rule. In that event, he may raise the claim in a federal habeas proceeding, without showing cause and prejudice or actual innocence, if the state procedural rule does not constitute adequate and independent grounds to bar direct review. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). Under the independent and adequate state ground doctrine, "federal courts 'will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'" Bennett v. Mueller, 273 F.3d 895, 898 (9th Cir. 2001), quoting Coleman, 501 U.S. at 729; LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). "For a state procedural rule to be 'independent,' the state law basis for the decision must not be interwoven with federal law. "Bennett, 273 F.3d at 899, quoting LaCross, 244 F.3d at 704. "For a state procedural rule to be deemed adequate, the state law ground for decision must be well-established and consistently applied." Bennett, 273 F.3d at 901, citing Poland v. Stewart, 169 F.3d 573, 578 (9th Cir. 1998), cert. denied, 528 U.S. 845 (1999).
II. Analysis
Respondent claims that petitioner has procedurally defaulted the claims in his Amended Petition by failing to exhaust them in state court. Petitioner responds that he was unable to exhaust these claims because the PCR court denied his motion to amend his PCR petition to allege two new claims of due process and ineffective assistance of counsel violations. Therefore, the defining issue in this case is whether denial by the PCR court of petitioner's motion to amend his PCR petition was an "independent and adequate" procedural ground. If so, petitioner is procedurally barred from asserting those claims in this court. Specifically, the "adequacy" of the PCR court's ruling is at issue, as the parties do not, and cannot, dispute that the decision was "independent."
As noted above, in order for a state procedural rule to be deemed adequate, "the state law ground for decision must be well-established and consistently applied." Bennett, 273 F.3d at 901. Stated differently, "[a] state procedural rule constitutes an adequate bar to federal court review if it was 'firmly established and regularly followed' at the time it was applied by the state court.'" Poland, 169 F.3d at 578, quotingFord v. Goergia, 498 U.S. 411, 424 (1991).
The Ninth Circuit Court of Appeals recently reiterated that "[t]he fact that the 'application of a rule requires the exercise of judicial discretion does not render the rule inadequate to support a state decision.'" Bennett, 273 F.3d at 901, quoting Wood v. Hall, 130 F.3d 373, 376 (9th Cir. 1997), cert. denied, 523 U.S. 1129 (1998), quoting Morales v. Calderon, 85 F.3d 1387, 1392 (9th Cir.), cert. denied, 519 U.S. 1001 (1996). Rather, the court noted that "'judicial discretion may be applied consistently when it entails 'the exercise of judgment according to standards that, at least over time, can become known and understood within reasonable operating limits.'" Id.; but see Harmon v. Ryan, 959 F.2d 1457, 1461 (9th Cir. 1992) (to be adequate, a state rule must not be discretionary); Karis v. Vasquez, 828 F. Supp. 1449, 1462 (E. D. Cal. 1993) (a discretionary rule cannot bar federal review). By further definition, "[s]tate rules that are too inconsistently or arbitrarily applied to bar federal review 'generally fall into two categories:(1) rules that have been selectively applied to bar the claims of certain litigants . . . and (2) rules that are so unsettled due to ambiguous or changing state authority that applying them to bar a litigant's claim is unfair.'" Bennett, 273 F.2d at 901, quoting Morales, 85 F.3d at 1392.
The rule governing amendment of state PCR petitions is set forth in O.R.S. 138. 610, which provides that a court "may make appropriate orders as to the amendments of the petition for any other pleading, whereas to the filing of further pleadings, or as to extending the time of the filing of any pleading other than the original petition." In Ramsey v. Thompson, 162 Or. App. 139, 144, 986 P.2d 54, 56 (1999), rev. denied, 329 Or. 589, 994 P.2d 130 (2000), the Oregon Court of Appeals held that this provision confers "'broad discretion' with respect to amendment of post-conviction pleadings," but that the discretion should be exercised "to comport with ORCP 23A's directive that leave to amend 'shall be freely given when justice so requires.'" The court further noted that the few cases that have treated the issue of amending a petition do not "explicitly identif[y] the criteria that inform and circumscribe the exercise of the discretion. "Id. Still, the court noted, those prior cases at least "touched on" four considerations bearing on the appropriate exercise of discretion:
(1) the nature of the proposed amendments and their relationship to the existing pleadings; (2) the prejudice, if any, to the opposing party; (3) the timing of the proposed amendments and related docketing concerns; and (4) the colorable merit of the proposed amendments.Ramsey, 162 Or. App. at 145, 986 P.2d at 57, citing Temple v. Zenon, 124 Or. App. 388, 862 P.2d 585 (1993); Luther v. State of Oregon, 83 Or. App. 336, 732 P.2d 24, rev. denied, 303 Or. 483, 737 P.2d 1249 (1987).
In Ramsey, the Oregon Court of Appeals overturned the PCR court's denial of a motion to amend the PCR petition, because it "exceeded the bounds of reasonable discretion." 162 Or. App. at 147, 986 P.2d at 58. There, the petitioner's counsel had filed a Formal First Amended Petition for Post-Conviction relief setting forth numerous grounds of alleged ineffective assistance of counsel, as well as several due process trial errors. The state filed a motion to strike the due process claims on the basis that the claims alleged were not raised at trial in the underlying proceeding. Seventeen days before trial was set to commence, petitioner's counsel moved to amend the petition to restate the due process claims in terms of ineffective assistance of counsel claims, citing Palmer, supra. The state argued that it would be prejudiced by the allowance of an amendment "[b]ecause [the state] has not expended resources in preparing a defense to these claims. "Id. The trial court denied the motion to amend without explanation, and on appeal, the Oregon Court of Appeals reversed, finding the denial was an abuse of the trial court's discretion. The court did not dispute that the due process claim was barred, but instead focused on the attempt to restate the claim as an ineffective assistance of counsel claim, which would be appropriate in a PCR proceeding.
A. Due Process Violation
One claim that petitioner sought to add to his PCR proceeding, and now alleges as Ground One in this action, is that the trial court violated his due process rights under the Fourteenth Amendment by failing to ensure that he understood the constitutional rights he was giving up and the maximum sentence he faced when he pleaded guilty. Defendants argue that this claim was procedurally defaulted by petitioner's failure to raise the issue at trial or on direct appeal, and by his failure in his petition for review to the Oregon Supreme Court in the PCR proceedings to challenge the PCR court's denial of his motion to amend.
At the PCR court level, the state opposed the motion to amend to add the due process claim on the basis that it should have been raised at trial and/or in petitioner's direct appeal, and could not be raised in a PCR proceeding. The PCR court's denial of the motion to amend on this basis appears to follow a firmly established and regularly followed rule in Oregon.
Under Oregon law, a PCR petition challenging the legality of a state conviction or sentence shall be granted where, inter alia, a petitioner establishes "[a] substantial denial . . . of petitioner's right under the Constitution of the United States . . . ." O.R.S. 138. 530(1)(a). However, Oregon law does not allow a PCR petitioner to raise an issue that could have been raised at trial or upon direct appeal unless the petitioner argues that counsel at trial was incompetent or that petitioner was excusably unaware of facts that could have provided the basis for the challenged made in the post-conviction proceedings. Franklin v. State of Oregon, 109 Or. App. 274, 819 P.2d 739 (1991), rev. denied, 312 Or. 676, 826 P.2d 635 (1992); see also Palmer v. State of Oregon, 318 Or. 352, 352, 867 P.2d 1368 (1994) (post-conviction petitioner may not assert issue not raised at trial in underlying criminal proceeding, when petitioner reasonably could have been expected to raise that issue in the trial court and when the petitioner does not assert that the failure to raise the issue constituted inadequate assistance of counsel).
Accordingly, petitioner procedurally defaulted his claim that the trial court violated his due process rights in accepting his guilty plea. Because petitioner does not establish cause or prejudice, or a fundamental miscarriage of justice sufficient to excuse the procedural default, he is not entitled to relief on Ground One of his Amended Petition.
B. Ineffective Assistance of Trial Counsel
Although petitioner procedurally defaulted his due process claim alleged in Ground One, the same cannot be said of his ineffective assistance of counsel claim alleged in Ground Two of the Amended Petition. As counsel for respondent acknowledges, the PCR court erred in denying petitioner's motion to amend to add his ineffective assistance of counsel claims based on counsel's failure to object to the trial court's acceptance of petitioner's guilty plea. While the decision to deny the motion to amend was within the PCR court's discretion, that discretion was not "applied consistently . . . according to standards that [were] known and understood within reasonable operating limits." Burnett, 273 F.3d at 901. Although the PCR trial court's decision pre-dated Ramsey v. Thompson, supra, the underlying decisions setting forth standards for amendments in post-conviction proceedings were well-established. As such, the denial of petitioner's motion to amend his PCR petition was not "adequate" to form the basis for a procedural default.
Respondent argues that notwithstanding the PCR court's error in denying the motion to amend, petitioner nevertheless procedurally defaulted the claim by failing to raise the amendment issue in his petition for review before the Oregon Supreme Court. In support of this argument respondent relies upon the general law of exhaustion, which requires a habeas petitioner to present his federal claims to a state's highest court in order to "properly exhaust" them. See O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). Here, however, petitioner was prevented by the PCR court from presenting his federal claims to any state court. Respondent cites no case, nor could this court find any, requiring a petitioner to exhaust his state law claim that wrongfully denied him the opportunity to present his federal claim. Accordingly, respondent's argument is without merit.
Petitioner did not procedurally default the ineffective assistance of counsel claim alleged in Ground Two of the Amended Petition, and the claim is properly before this court for consideration on the merits. Accordingly, this action shall proceed on Ground Two of the Amended Petition.
ORDER
Based on the foregoing, IT IS ORDERED that the Amended Petition for Writ of Habeas Corpus (#16) is DENIED IN PART as to Ground One because it is procedurally defaulted.
IT IS FURTHER ORDERED that this action shall proceed on Ground Two of the Amended Petition.