Opinion
6:22-cv-01174-CL
07-01-2024
ROBERT MARTIN CHRISTENSEN, III, Petitioner, v. COREY FHUERE, Respondent.
FINDINGS AND RECOMMENDATION
MARK D. CLARKE, United States Magistrate Judge
Petitioner Robert Martin Christensen, III (“Petitioner”) brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the district judge should DENY the Petition for Writ of Habeas Corpus (ECF No. 1) and decline to issue a certificate of appealability.
BACKGROUND
In September 2014, Petitioner burglarized a Coos County residence, stealing various items worth approximately $10,000. (Resp't Exs. (ECF No. 12), Ex. 126 at 1-2.) After Petitioner's arrest and release, he moved in with an elderly woman in ill health,' stole checks from her, and forged several checks to himself amounting to over $6,000. (Id. at 4-5.) Petitioner then moved in with another elderly woman, stealing and forging checks to himself in the same manner, all while on pretrial release for the previous burglary. (Id. at 6.) Petitioner, who by then had stopped communicating with his attorney, subsequently failed to appear for three court proceedings. (Id. at 7.) As a result of these events, a Coos County grand jury returned three separate indictments charging Petitioner with a total of four counts of Burglary in the First Degree; one count of Aggravated Theft in the First Degree; nine counts of Identity Theft; seventeen counts of Aggravated Identity Theft; six counts of Forgery in the First Degree; six counts of Theft in the First Degree; five counts of Forgery in the Second Degree; six counts of Theft in the Second Degree; and three counts of Failure to Appear. (Resp't Exs. 102-104.)
When citing Respondent's Exhibits, the Court refers to the page numbers located in the lower right comer of each exhibit.
Petitioner ultimately entered into a global plea agreement that resolved all three cases. (Resp't Exs. 105-107.) The terms of the agreement required Petitioner to plead guilty to four counts of first-degree burglary, one count of first-degree aggravated theft, four counts of aggravated identity theft, and three counts of failure to appear. (Id.) The agreement also required Petitioner to stipulate that he was previously convicted of certain criminal offenses, that “each of the offenses are predicates for Repeat Property Offender, [Oregon Revised Statute (“ORS”) § 13 7.717[,]” and that “the departure factor of persistent involvement” applied. (Resp't Exs. 108 at 4-5, 125 at 6.) Finally, the agreement required Petitioner to stipulate that “the charges are all capable of consecutive sentences.” (Resp't Ex. 125 at 6.) In exchange, the State agreed to drop all remaining charges and to allow Petitioner to argue for whatever sentence he felt appropriate at sentencing. (Id.)
Those offenses “are listed out as a 1989, Burglary 1; 1992, Grand Theft Property; 1994, Taking a Vehicle Without Consent of the Owner; 1997, Burg[lary] 1 and Attempted Burg[lary] 1; 2006, Grant Theft.” (Resp't Ex. 108 at 4; see also Resp't Ex. 125 at 6 (setting forth the State's offer).)
ORS 137.717 provides for presumptive sentences for certain recidivist property offenders.
Pursuant to Oregon Administrative Rule (“OAR”) 213-008-0002(1)(b)(D), “persistent involvement in similar offenses” is a factor that may be considered in determining whether substantial and compelling reasons exist for an upward departure under the Oregon sentencing guidelines.
On May 18, 2015, Petitioner appeared for a plea hearing in the Coos County Circuit Court. After the prosecutor reviewed the terms of the global plea agreement, the trial court engaged in the following colloquy with Petitioner:
THE COURT: Mr. Christensen, do you understand that agreement?
DEFENDANT; Yes. I do, sir.
THE COURT: Okay, and that - and you're accepting the agreement?
DEFENDANT: Yes, I am. .
THE COURT: Okay. You understand that they're going to argue about the sentence, but you're agreeing that these sentences can be consecutive, which means the time can pile up on top of you. The Court can make them concurrent but doesn't have to.
And I assume open sentencing would basically be - mainly be arguing whether they should be consecutive or - and also possibly there's a grid block that gives a range of months that can be given. They'll argue - you're [sic] obviously will be arguing for the lower end. The State may be arguing for the higher end, but---
I don't know how many months this adds up to. But if it was consecutive with a higher end it could be, you know, ten - twenty years or more [than] that. I don't know whether it's more than that, but it could be a long time.
You understand that?
DEFENDANT: Yes.. I do, sir.
THE COURT: Okay. And nobody's threatened or promised you anything, other than that?
DEFENDANT: Uh, no more than what they've wrote [sic] here.
THE COURT: I'm sorry?
DEFENDANT: No more than what I see written down here.
THE COURT: Okay.
DEFENDANT: It's quite a bit.
THE COURT: Okay, but nobody's threatened or promised you anything than what's been said in Court here?
DEFENDANT: Correct.
THE COURT: Okay. Did you read and understand those Petitions to Enter a Plea of Guilty?
DEENDANT: Yes, I do.(Resp't Ex. 108 at 5-6.) Petitioner then signed the plea petitions, and the trial court accepted Petitioner's guilty pleas. (Id. at 7-9.)
At sentencing, the trial court confirmed with Petitioner that he had agreed to stipulate to having “consistently committed [similar] property crimes[,]” which “would be a departure factor [that] would allow the Court to depart upward.” (Resp't Ex. 109 at 6.) The trial court then imposed partially consecutive sentences totaling 248 months' in prison, which included an upward durational departure on one count of first-degree burglary. (Resp't Ex. 101 at 4-5.) The trial court also ordered that Petitioner could not be considered for “leave, sentence reduction, release, or sanctions” and would not be eligible for alternative incarceration programs (“AIP”) for the first 144 months of his sentence. (Id. at 5.)
Petitioner filed a direct appeal, asserting that the trial court erred when it (1) failed to merge two counts of aggravated identity theft (Counts 21 and 22); (2) imposed an upward departure sentence on one count of first-degree burglary; and (3) ordered Petitioner ineligible for AIP during the first 144 months of his sentence. (Resp't Ex. 110 at 2-3.), The Oregon Court of Appeals affirmed without opinion, State v. Christensen, 284 Or.App. 890 (2017), and the Oregon Supreme Court denied review, State v. Christensen, 361 Or. 886 (2017).' '
Petitioner next filed a petition for post conviction relief (“PCR”). (Resp't Ex. 115.) In his counseled amended petition, Petitioner alleged that his trial attorney was ineffective in several respects, including when he failed to argue that (1) Counts 21 and 22, two “identical, undifferentiated charges of aggravated identity theft[,]” should be merged; (2) the “persistent involvement” factor could not be used to support an upward departure because it was a necessary element of the statutory mandatory sentence under ORS 137.717(3); and (3) the trial court must find “substantial and compelling reasons” to deny AIP and could not find Petitioner eligible for only part of his sentence. (Resp't Ex. 116 at 5-9.) After a hearing at which Petitioner testified, the PCR court denied relief. (Resp't Exs. 129, 130.)
Petitioner appealed the PCR court's judgment, assigning as error the PCR court's denial of relief on the ineffective assistance claims outlined above. (Resp't Ex. 135 at 2.) The Oregon Court of Appeals affirmed without opinion, Christensen v. Kelly, 315 Or.App. 500 (2021), and the Oregon Supreme Court denied review, Christensen v. Kelly, 369 Or. 504 (2022).
On August 10, 2022, Petitioner filed a pro se Petition for Writ of Habeas Corpus in this Court, raising three grounds for relief:
Ground One: Petitioner was denied effective assistance of counsel under the Sixth and Fourteenth Amendments of the United States Constitution when trial counsel failed to object to the trial court erring by imposing separate convictions for Counts 21 and 22.
Ground Two: Petitioner was denied effective assistance of counsel under the Sixth and Fourteenth Amendments of the United States Constitution when trial counsel failed to object to the trial court imposing a departure sentence for Count . 1 in Case No. 15 CRO164.
Ground Three: Petitioner was denied effective assistance of counsel under the Sixth and Fourteenth Amendments of the United States Constitution when trial counsel failed to object to the trial court making [Petitioner] ineligible for programs under ORS 137.750 during the first 144 months of the sentence. The Court did not make the proper findings counsel failed to object on the record.(Pet. at 6-7.) Respondent urges the Court to deny habeas relief, arguing that Petitioner's claims a were denied in a state-court decision entitled to deference. (Resp. to Pet. (ECF No. 10) at 1.)
DISCUSSION
Petitioner renews his claims that trial counsel was ineffective in failing to object and argue for merger on two counts of aggravated identity theft, failing to object to the imposition of an upward departure sentence, and failing to object to the trial court's order that Petitioner would be ineligible for AIP during the first 144 months of his sentence. Petitioner did not, however, file a supporting brief or otherwise respond to Respondent's arguments that this Court must defer to the PCR court's decisions denying relief. Petitioner thus has failed to sustain his burden of demonstrating that he is entitled to habeas relief. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (recognizing that a habeas petitioner carries the burden of proving his case). However, this Court has thoroughly reviewed the existing record .and concludes that habeas relief is not warranted in this case.
This Court has twice ordered Petitioner to show cause in writing why he failed to file a supporting brief and whether he intended to do so. (ECF Nos. 13, 20.) This Court also has granted Petitioner's requests for extensions of time to file a supporting brief. (ECF Nos. 16,19.) Nevertheless, Petitioner has not filed a supporting brief, nor has he contacted the Court to request another extension of time in which to do so.
L Legal Standards
A federal court may not grant habeas relief on any claim “adjudicated on the merits” in state court, unless the state court ruling was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d). A state-court decision is “contrary to” clearly established federal law if it “applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases,” or if it “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” of clearly established federal law occurs if the state court applies the correct legal principle to the facts of the case in an “objectively unreasonable manner.” Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam).
Pursuant to well-established Supreme Court precedent, a habeas petitioner alleging an ineffective assistance of counsel claim must show that (1) counsel's performance was deficient, and that (2) the deficient performance “prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish deficient performance, a petitioner “must show that counsel's representations fell below an objective standard of reasonableness.” Id. at 688. Such a showing requires a petitioner to overcome a strong presumption that the challenged conduct falls within the “wide range of reasonable professional assistance; that is the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689 (simplified). To establish prejudice, a petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
Analyzing an ineffective assistance of counsel claim under the AEDPA is “all the more difficult” because both standards are “highly deferential and when the two apply in tandem, review is ‘doubly' so.” Richter, 562 U.S. at 105 (citations omitted). Accordingly, when considering an ineffective assistance claim under the AEDPA, the relevant question “is not whether counsel's actions were reasonable[,]” but “whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id.
II. Analysis
A. Ground One
In Ground One, Petitioner alleges that trial counsel was ineffective when he failed to object to the imposition of separate convictions for Counts 21 and 22, which are “identical, undifferentiated charges of aggravated identity theft.” (Pet. at 6.) Petitioner asserts that trial counsel should have argued for merger of Counts 21 and 22 because they “involved the same statutory provision and the same victim, and there was no record of a pause between them.”
Under Oregon law, “[w]hen the same conduct or criminal episode violates only one statutory provision and involves only one victim, but nevertheless involves repeated violations of the same statutory provision against the same victim, there are as many separately punishable offenses as there are violations, except that each violation, to be separately punishable ..., must be separated from other such violations by a sufficient pause in the defendant's criminal conduct to afford the defendant an opportunity to renounce the criminal intent.” OR. REV. STAT. § 161.067(3).
The PCR court rejected an identical claim during Petitioner's PCR proceedings, explaining:
The plea petition[] required that Petitioner stipulate the crimes in [Counts] 21 and 22 were separate incidents and he did so. They involved two separate checks . written at separate times on the same day. Trial counsel did raise this at
sentencing but could not argue merger because of the plea agreement. Petitioner has failed to prove he would have prevailed had [trial] counsel argued this.(Resp't Ex. 130 at 2.) .
The PCR court's decision was not objectively unreasonable. Petitioner agreed to plead guilty to both Counts 2'1 and 22, and the plea offer required Petitioner to agree that “the charges are all capable of consecutive sentences.” (Resp't Ex. 125 at 6.) As Respondent points out, if Counts 21 and 22 merged, they necessarily could not support separate sentences, consecutive or otherwise, and arguing for merger therefore would have violated the plea agreement. Because Petitioner “never told [trial counsel] that he had reconsidered and wanted to withdraw his guilty pleas to Counts 21 and 22[,]” (Resp't Ex. 125 at 3), the terms of the plea agreement controlled, and trial counsel could not have been ineffective in declining to object to the trial court's imposition of separate convictions for Counts 21 and 22.
Because the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review, this Court must look to the last reasoned decision on the issue, i.e., the PCR court's denial of Petitioner's ineffectiveness claims. See Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) (explaining that where the highest state court issues a decision on the merits unaccompanied by its reasons for the decision, a federal habeas court must “look through” to the last reasoned decision issued in a lower state court, and presume the unexplained decision adopted the same reasoning).,
Even if the plea agreement did not foreclose merger of Counts 21 and 22, the PCR court determined that Petitioner did not prove that those counts would have merged because they “involved two separate checks written at separate times on the same day.” That determination is based on state law and therefore is not reviewable in this Court. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (explaining that an inquiry into state law “is no part of a federal court's habeas review of a state conviction[,]” which is “limited to deciding whether the conviction violated the Constitution, laws, or treaties of the United States”) (simplified); see also Mendez v. Small, 298 F.3d 1154, 1158 (9th Cir. 2002) (acknowledging that “[s]tate courts are theultimate expositors of state law, and [federal habeas courts are] bound by the state's construction” on state law matters). Because Counts 21 and 22 would not have merged under state law, trial counsel was not ineffective for failing to object to the imposition of separate convictions on those counts. See Juan H. v. Allen, 408 F.3d 1262, 1273-74 (9th Cir. 2005) (noting that counsel is not ineffective for failing to raise a meritless objection). For these reasons, the PCR court's ruling is entitled to deference, and the district judge should deny habeas relief as to Ground One.
A. Ground Two
In Ground Two, Petitioner claims that trial counsel was ineffective when he failed to object to the trial court's imposition of an upward departure sentence on one count of first-degree burglary. (Pet. at 7.) Petitioner asserts that the trial court's reliance on the “persistent involvement” factor was prohibited by Oregon Administrative Rule (“OAR”) 213-008-0002(3), which provides that “[a]ny aspect of the current crime of conviction which serves as a necessary element of a statutory mandatory sentence may not be used as an aggravating factor if that aspect is also used to impose the mandatory sentence.” According to Petitioner, persistent involvement is “a necessary element of the statutory mandatory sentence required by ORS 137.717(3),” and therefore cannot support an upward departure from the mandatory sentence. (Pet. at 7.)
Petitioner presented an identical claim during his PCR proceedings. However, the PCR court rejected the claim, explaining:
Petitioner stipulated to persistent involvement as a departure factor as part of the plea, but even if [trial counsel] was deficient for not objecting, Petitioner is unable to show prejudice, as had [trial counsel] raised this, the [trial court] could have imposed the same sentence in a variety of other ways, including a finding of vulnerable victims. Petitioner is not legally correct that the [trial court] would have been able to do this because of the terms of the plea agreement.(Resp't Ex. 130 at 2.)
The PCR court's decision was not objectively unreasonable. As the PCR court explained, the plea agreement required Petitioner to stipulate to the persistent involvement departure factor. (Resp't Ex. 125 at 6.) Given that stipulation, there was no basis for objection, as trial counsel attested:
Part of the difficulty with this claim is that Petitioner was required to stipulate to the “persistent involvement” aggravating factor under the deal offered by DDA Chartrey. Had 1 objected during the plea negotiations, DDA Chartrey could have simply required that Petitioner stipulate to another aggravating factor, e.g., particularly vulnerable victims. I explained this to Petitioner and that by stipulating to the aggravating factor he would be allowing Judge Barron to impose an upward departure sentence on one or more of the charges, but Petitioner made the decision to take the deal. Nevertheless, 1 argued in my sentencing memorandum that the court should not rely on the “persistent involvement” aggravating factor because Petitioner's history of committing property crimes was already taken into account through the enhanced sentences provided for under ORS 137.717. [The trial court] did not agree with respect to the first Burglary 1st count in case number 164 because he imposed a 68-month departure sentence.(Resp't Ex. 125 at 4-5.) Trial counsel's strategic decision to forego objection during the plea negotiations, which allowed him to argue at sentencing that the trial court should exercise its discretion not to impose the departure sentence, was not objectively unreasonable. See Strickland, 466 U.S. at 690 (explaining that strategic decisions are presumptively within the wide range of professional assistance and are “virtually unchallengeable” under the Sixth Amendment).
In addition, this Court must defer to the PCR court's determination that the trial court could have imposed the same sentence “in a variety of other ways” under Oregon law. See McGuire, 502 U.S. at 67-68 (emphasizing that “it is not the province of a federal habeas court to reexamine state-court determinations based on state-law questions”); see also Woods v. Sinclair, . 764 F.3d 1109,1138-39 (9th Cir. 2014) (noting that a federal habeas court must defer to a state court's ruling if it is based on state law). Such finding necessarily precludes any showing of prejudice, even if trial counsel's failure to object could be considered deficient. The PCR court's decision therefore is entitled to deference, and the district judge should deny habeas relief as to Ground Two.
B. Ground Three
In Ground Three, Petitioner claims that trial counsel was ineffective when he failed to object to the trial court's denial of AIP for the first 144 months of Petitioner's sentence. (Pet. at 7.) Petitioner asserts that trial counsel should have objected because “[n]o statute authorized the trial court to make Petitioner eligible for programs during only part of the sentence[,]” and that “[e]ven if the trial court had authority to order that Petitioner be considered for programs during one part of the sentence but not another, [it] would still have to find substantial and compelling - reasons for doing so” under ORS 137.750, which it had not. (Id.)
ORS 137.750 provides that when a trial court sentences a defendant, “the court shall order on the record in open court as part of the sentence imposed that the defendant may be considered by the executing or releasing authority for any form of temporary leave from custody, reduction in sentence, work release or program of conditional or supervised release .. ., unless the court finds on the record in open court substantial and compelling reasons to order that the defendant not be considered for such leave, release or program.
Petitioner presented an identical claim during his PCR proceedings. (Resp't Ex. 130 at 2.) Rejecting that claim, the PCR court noted that Petitioner had failed to present “any legal authority that the sentencing judge was prohibited from limiting AIP to a portion of the sentence[,]” and that it “is common practice” to do so. (Id.) The PCR court further explained that trial counsel had reasonably decided not to object to the trial court's order because if he had, the trial court could have ordered Petitioner ineligible for AIP for the duration of his sentence instead of only the first 144 months. (Id.)
Upon review, this Court concludes that the PCR court's ruling was not objectively unreasonable. As noted above, the PCR court's determination that the trial court was not required to order Petitioner eligible for AIP for the entirety of his sentence or not at all was based on Oregon law. This Court therefore must defer to that ruling, see McGuire, 502 U.S. at 67-68, and trial counsel thus was not ineffective in failing to object on that basis, see Juan H., 408 F.3d at 1273-74.
Even if this Court was not required to accept the PCR court's ruling, trial counsel made a reasonable, strategic decision not to advance an “all-or-nothing” argument to avoid potentially pushing the trial court to deny programs for the entirety of Petitioner's sentence. (Resp't Ex. 125 at 5.)
With respect to Petitioner's claim that the trial court was required to find “substantial and compelling reasons” for denying AIP eligibility pursuant to ORS 137.750 and failed to do so, the PCR implicitly rejected that argument. (See Resp't Ex. 130 at 2 (adopting the facts and law set forth in the State's trial memorandum for all issues not specifically addressed).) As Respondent points out, the trial court explained its reasons for denying AIP eligibility for the first 144 months of Petitioner's sentence, including “the record and the amount involved,” the number of victims, and the vulnerability of those victims. (Resp't Ex. 109 at 18.) There is nothing in the record to suggest that an objection on this point would have been successful, nor does Petitioner suggest that the trial court would have otherwise been unable to identify substantial and compelling reasons to deny programs for the first 144 months of his sentence. Trial counsel therefore was not ineffective, and Petitioner was not prejudiced. Accordingly, the PCR court's decision is entitled to deference, and the district judge should deny habeas relief as to Ground Three.
CONCLUSION
Based on the foregoing, the district judge should DENY the Petition for Writ of Habeas Corpus (ECF No. 1), and should DISMISS this proceeding, with prejudice. Petitioner has not made a substantial showing of the denial of a constitutional right, and therefore the district judge also should DENY a Certificate of Appealability. See 28 U.S.C. § 2253(c)(2).
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 fourteen (14) 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 fourteen (14) 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 of judgment entered pursuant to the Magistrate Judge's recommendation.