Opinion
Civil No. 02-6157-CO.
June 17, 2004
FINDINGS AND RECOMMENDATION
Petitioner, an inmate at the Snake River Correctional Institution, filed a petition under 28 U.S.C. § 2254 challenging his convictions for Sodomy in the First Degree (two counts), Unlawful Sexual Penetration in the First Degree (two counts), Using a Child in a Display of Sexually Explicit Conduct (two counts), and Sexual Abuse in the First Degree (two counts), on the following grounds:
1.) Ground One — Ineffective assistance of counsel at most all phases; Extradition, Trial, Direct-Appeal, Appeal of Post-conviction.
Ground Two: Violation of Speedy Trial rights, causing prejudicial delay; continuous denial of due process rights.
Ground Three: Prosecutorial misconduct/perjury/tainted witness evidence.
Ground Four: Unlawful 4th Amendment violation confiscation of petitioner's legal packet during transport without hearing.
Petition (#1) p. 5-6.
The facts of petitioner's crimes are set forth in the record and need not be repeated here. Petitioner was convicted of all counts charged in the indictment by a jury verdict and received consecutive sentences totaling 700 months of imprisonment.
Petitioner directly appealed his sentence, alleging sentencing errors under Oregon state law. The Oregon Court of Appeals remanded the case for re-sentencing because the trial court had improperly imposed sentences pursuant to ORS 137.635. State v. Allee, 143 Or. App. 626 (1996). Petitioner did not appeal the amended sentencing judgment.
Petitioner filed for post-conviction relief and the Marion County Circuit Court vacated the compensatory fine that petitioner had been ordered to pay as part of the criminal judgment, but denied relief on all of petitioner's other claims. Respondent's Exhibits 131-133. Petitioner appealed the denial of relief and the Oregon Court of Appeals affirmed the post-conviction court's decision in a written opinion. The Oregon Supreme Court denied review. Allee v. Morrow, 175 Or. App. 308 (2001), rev. den., 334 Or. 121 (2002).
In his Third Amended Petition for state post-conviction relief, petitioner arguably based his claims on alleged violations of both state and federal law. In the petition before the court however, petitioner has not alleged the legal basis for his claims.
To the extent petitioner seeks to base his claims on state law, he has failed to state a claim under 28 U.S.C. § 2254. See, Estell v. McGuire, 502 U.S. 62, 67 (1991); Wainwright v. Goode, 464 U.S. 78, 83 (1983).
To the extent petitioner intends to base his claims on federal law, he has failed to state a claim because he has not alleged in his petition the specific constitutional provisions he intends to rely on. See, Rule 2 of the Rules Governing Section 2254 cases;Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994).
Even if petitioner's claims are liberally construed as relying on federal law, they do not allege specific facts that would establish federal constitutional violations. Notice pleading or conclusory allegations are not sufficient in federal habeas corpus cases. O'bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); James v. Borg, 24 F.3rd 20, 26 (9th Cir. 1994), cert. denied, James v. White, 513 U.S. 935 (1994).
In Ground One, petitioner alleges that he received ineffective assistance of counsel at "extradition, trial, direct appeal, appeal of post-conviction." Alleged deficiencies in post-conviction representation does not give rise to a claim under 28 U.S.C. § 2254. See, 28 U.S.C. § 2254(i). Counsel's alleged failure to file for habeas corpus relief does not give rise to a Sixth Amendment claim of ineffective assistance because counsel's duty is to attempt to prevail at the proceeding he or she is litigating, and does not extend to a potential collateral proceeding. Petitioner's other allegations are impermissibly conclusory because he does not identify (1) how or why counsel "refused to be fired;" (2) in what respects counsel was "unfervent;" or (3) the "many issues not raised."
In Ground two petitioner alleges that his right to a speedy trial was violated because he was indicted on May 7, 1993 and not tried until July, 1995.
In order to establish such a claim, petitioner must establish (1) the length of the delay, (2) the reasons for the delay, (3) that he asserted his right to a speedy trial, and (4)that he was prejudiced by the delay.
Petitioner has not alleged that he ever asserted his right to a speedy trial. Moreover it appears from the record before the court that petitioner refused to waive extradition from Colorado, where he was in custody. Respondent's Exhibit 102 and 109. Thus, it is apparent that petitioner was responsible for the delay in his trial. Most importantly, however, petitioner has not alleged how his case was prejudiced by the delay.
In Ground Three petitioner alleges that the prosecution engaged in misconduct by coaching witnesses and proffering perjured testimony. However, petitioner has not alleged which witnesses were coached, or what testimony was perjured. Thus, he has failed to allege any specific facts in support of his claim.
In Ground Four petitioner alleges that his rights were violated because a federal marshal confiscated a "legal packet."
A Fourth Amendment search and seizure claim may not be litigated in a federal habeas corpus proceeding unless the petitioner demonstrates that he was denied a fair opportunity to raise the claim in state court. Stone v. Powell, 428 U.S. 465, 494 (1976); see also, Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996). Moreover, petitioner has not alleged that the state obtained any evidence from the confiscation that was used against him at trial, so even if such a confiscation occurred it is not relevant to his conviction and could not form the basis for habeas corpus relief.
In summary, even if petitioner's claims are liberally construed as alleging federal constitutional violations, the claims fail to allege any specific facts that would establish constitutional error, and therefore fail to state a claim for federal habeas corpus relief.
28 U.S.C. § 2254(b)(1) requires petitioners to exhaust state remedies on all claims alleged in the § 2254 petition, unless it appears there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the petitioner's rights. To properly exhaust state remedies, "the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition."O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Picard v. Conner, 404 U.S. 270, 275-76 (1971); see also, Gray v. Netherland, 518 U.S. 152 (1996); Baldwin v. Reese, ___ U.S. ___, 124 S.Ct. 1347 (2004).
Furthermore, petitioners must have presented their federal claims to the state courts in a procedural context in which the claim's merits will be considered. Castille v. Peoples, 489 U.S. 346, 351-52 (1989); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994); Turner v. Compoy, 827 F.2d 526, 529 (9th Cir. 1987), cert. denied, 489 U.S. 1059 (1989).
Thus, a claim is "fairly presented" to the state courts only if it was properly presented to (1) the state's Supreme Court, (2) as a federal question, (3) in the appropriate petition or brief, and (4) in the proper procedural context so that its merits would be considered.
If a petitioner fails to fairly present his federal claims to the state courts, and can no longer do so under state law, the petitioner's state court remedies are technically exhausted.Coleman v. Thompson, 501 U.S. 722, 723 (1991); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). However the claims are then also procedurally defaulted because the state-court remedies were not properly exhausted. O'Sullivan v. Boerckel, supra.
"When a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, 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 miscarriage of justice." Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir. 1993); Sawyer v. Whitley, 112 S.Ct. 2514, 2518 (1992); Keeney, 112 S.Ct. at 1718-19.
"`Cause' is a legitimate excuse for the default and `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, cause for procedural default may be established "where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. 478, 496 (1986);Keeney, 112 S.Ct. at 1721; Noltie, 9 F.3d at 806.
Because of the lack of specific factual allegations in the petition before the court it is difficult to determine which claims intended to be raised in this proceeding were exhausted in petitioner's state court proceedings.
Petitioner did not petition for Oregon Supreme Court review during his direct appeal. Thus, no federal claims were presented to Oregon's highest court during petitioner's direct appeal. This is fatal to petitioner's claims of trial-court error and prosecutorial misconduct, which could have been raised at petitioner's underlying trial and direct appeal, because under Oregon law, any claims that may be raised at a criminal defendant's underlying trial and direct appeal, must be raised during the underlying trial or direct appeal, or they are barred from review. See, Palmer v. State of Oregon, 318 Or. 352, 356-58 (1994); Kellotat v. Cupp, 719 F.2d 1027, 1030 (9th Cir. 1983).
Petitioner's claims of trial court error and prosecutorial misconduct were never "fairly presented" to the Oregon Supreme Court during petitioner's direct appeal proceeding. Thus although technically exhausted, the claims are procedurally defaulted. Petitioner has not alleged any cause and prejudice for his procedural default.
Respondent argues that petitioner failed to fairly present his ineffective assistance of counsel claim to the Oregon Supreme Court because his Court of Appeals brief "appears to have narrowed his arguments to the state ineffective assistance of counsel standard outlined in Krummacher v. Gierloff, 290 Or. 867 (1981)." Response to Habeas Corpus Petition (#77) p. 12-13. Respondent contends: "Consequently, under Oregon's appellate rules, petitioner could not have properly presented any federal ineffectivecounsel claims to Oregon's Supreme Court because nofederal ineffective-counsel claims were properly presented to the Oregon Court of Appeals."
Petitioner's Third Amended Petition for Post-Conviction Relief alleges that he was "denied the effective and adequate assistance of trial counsel under the Sixth and Fourteenth Amendments to the United States Constitution." Respondent's Exhibit 107 p. 3. The petition's allegation of ineffective appellate counsel also refers to the United States Constitution. Id, p. 9. Petitioner's post-conviction trial memorandum, Respondent's Exhibit (#108), does not mention the federal constitutional standard for evaluating the adequacy of counsel, and petitioner's Court of Appeals brief appears to rely on the state standard in arguing his ineffective of counsel claims. However, the brief cites Strickland v. Washington, 466 U.S. 668 (1984). Thus I find that the federal ineffective assistance of counsel standard was arguably before the Court of Appeals and thus "fairly presented" to the Oregon Supreme Court.
In Lockyer v. Andrade, ___ U.S. ___, 123 S.Ct. 1166, 1172 (2003) the United State Supreme Court reiterated that the "AEDPA circumscribes a federal court's review of a state-court decision." Thus, under 28 U.S.C. § 2254(e)(1), "a determination of a factual issue made by a State court shall be presumed to be correct . . ." unless the petitioner rebuts "the presumption of correctness by clear and convincing evidence. Furthermore, under 28 U.S.C. § 2254(d), habeas relief may not be granted on any claim that was adjudicated on the merits in state court, unless the adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."
Petitioner's Third Amended Petition for Post-Conviction Relief alleged a claim for ineffective assistance of counsel and as noted above, although that claim was argued in terms of state court standards, it can liberally be construed as encompassing a Sixth Amendment claim.
In Williams v. Taylor, 529 U.S. 362 (2000), the Court held that under the AEDPA, Strickland v. Washington, 466 U.S. 668 (1984), is the clearly established law that governs ineffectiveness of counsel claims. In order to establish ineffective assistance of counsel under Strickland, a petitioner must prove: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as `counsel' guaranteed the defendant under the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687.
Ineffective assistance of appellate counsel claims are also reviewed under the Strickland standard. Smith v. Robbins, 528 U.S. 259, 285 (2000); Miller v. Keeney, 882 F.2d 1428 (9th Cir. 1989). Accordingly, to prevail on an ineffective assistance of appellate counsel claim, petitioner must show that appellate counsel's performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, petitioner would have prevailed on appeal. Smith v. Robbins, supra at 285.
The post-conviction trial court made extensive factual findings with respect to petitioner's ineffective assistance of counsel claims. See Respondent's Exhibit #132 at p. 7-13. The court's factual findings have not been rebutted by clear and convincing evidence. In addition, the post-conviction trial court made conclusions of law, in denying relief on petitioner's claims.See, Id, at p. 13-14. These conclusions of law are neither contrary to nor an unreasonable application of the ineffective assistance of counsel standard set forth in Strickland.
In summary, the claims alleged in the petition before the court fail to state a claim under 28 U.S.C. § 2254 because they fail to allege a cognizable federal question and are conclusory. The only federal claim that can reasonably be construed as having been fairly presented to the Oregon Supreme Court is petitioner's ineffective assistance of counsel claim. The state court decisions denying relief on that claim were neither "contrary to" nor "unreasonable applications of" clearly established law as determined by the United States Supreme Court in Strickland v. Washington. Therefore, the state court decisions are entitled to deference by this court. In addition, the factual determinations of the state court are presumed to be correct and petitioner has not rebutted that presumption by clear and convincing evidence. A review of the post-conviction court's factual determinations and conclusions of law and a review of the entire record before the court establishes that petitioner's trial and appellate counsel's representation did not fall below an objective standard of reasonableness, or that there is there a reasonable possibility that, but for counsel's unprofessional errors, the results of the proceedings would have been different.
Petitioner's Petition (#1) should be denied and this proceeding should be dismissed.
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 with the court. Thereafter, the parties have ten (10) days within which to file a response to the 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 issues 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.