Opinion
6:19-cv-01904-MK
08-24-2021
RAND MAURICE CODON, Petitioner, v. BRAD CAIN, Respondent.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI (HE / HIM) UNITED STATES MAGISTRATE JUDGE
Petitioner brings this habeas corpus proceeding under 28 U.S.C. § 2254 and challenges his rape convictions on grounds that his trial and appellate counsel provided ineffective assistance. Respondent argues that petitioner's claims are untimely, unexhausted, and procedurally defaulted. In response, petitioner maintains that he filed his Petition within the statute of limitations and exhausted his claims. Alternatively, petitioner requests an opportunity to investigate potential claims of actual innocence. For the following reasons, the Petition should be denied.
BACKGROUND
In November 2008, petitioner was charged by indictment with three counts of Rape in the First Degree and two counts of Sexual Abuse. Resp't Ex. 102. The charges against petitioner arose from allegations of rape reported by his step-daughter. See State v. Codon, 282 Or.App. 165, 167-69 (2016), rev. den., 361 Or. 240 (2017). Petitioner's step-daughter told a friend that petitioner had raped her, and the friend's mother reported the allegations to the Oregon State Police. Id. at 167. When questioned by a police detective and a child welfare caseworker in separate interviews, petitioner admitted that he had sexual intercourse with his step-daughter on five occasions, when she was twelve and thirteen years old. Id. at 168-69; Resp't Ex. 108 at 25.
After trial by jury, petitioner was convicted on three counts of Rape in the First Degree. Petitioner directly appealed his convictions and argued that the trial court erred by allowing a nurse practitioner to testify that the victim had been sexually abused when no physical findings supported the diagnosis. Resp't Ex. 107. The Oregon Court of Appeals agreed and found that the trial court committed plain error by admitting the nurse practitioner's testimony. Resp't Ex. 110; State v. Codon, 247 Or.App. 756 (2012). The Court of Appeals reversed petitioner's convictions and remanded for further proceedings. Id.
In September 2012, petitioner stood trial a second time and the jury again found petitioner guilty of Rape in the First Degree. Resp't Ex. 101 at 5-7. Petitioner appealed and assigned error to the trial court's admission of statements made by the detective and the caseworker who interviewed him. Resp't Ex. 121 at 17-39. The Oregon Court of Appeals affirmed in a written decision, and on March 23, 2017, the Oregon Supreme Court denied review. Codon, 282 Or.App. 165; Resp't Exs. 125-26. On April 27, 2017, the appellate judgment issued. Resp't Ex. 127.
On September 12, 2017, petitioner signed a petition for post-conviction relief (PCR) in state court and alleged that trial counsel rendered ineffective assistance. Resp't Ex. 128. The PCR petition did not explain how counsel was ineffective or provide any facts to support petitioner's claim. Instead, the PCR petition indicated that the supporting facts would “follow in Amended Petition.” Resp't Ex. 128 at 2. Petitioner was subsequently appointed PCR counsel.
On May 25, 2018, petitioner's PCR counsel submitted an affidavit averring that although he had “fully investigated” petitioner's claims, he was unable to certify any PCR claim consistent with his obligations. Resp't Ex. 141. Respondent moved to dismiss, and the PCR court granted the motion and dismissed the PCR petition without prejudice for failure to state a claim. Resp't Exs. 129-30. The judgment was entered on August 8, 2018. Resp't Ex. 131.
Under Oregon law, a PCR petition dismissed for failure to state a claim is considered “meritless,” and “a judgment dismissing a meritless petition is not appealable.” See Or. Rev. Stat. § 138.525(2),(3). Nonetheless, petitioner appealed the dismissal of his PCR petition and filed a Motion to Determine Jurisdiction. Resp't Exs 132-33. Petitioner argued that although the dismissal of his PCR petition was non-appealable, the denial of his right to appeal was arbitrary and violated his due process rights. Resp't Ex. 133.
On December 28, 2018, the Appellate Commissioner for the Oregon Court of Appeals granted the motion, found that Or. Rev. Stat. § 138.525(3) “renders the judgment non-appealable,” and dismissed petitioner's appeal. Resp't Ex. 135. Petitioner sought reconsideration, and the Chief Judge of the Oregon Court of Appeals denied reconsideration. Resp't Exs. 136-37. The Oregon Supreme Court denied review, and appellate judgment entered on July 22, 2019. Resp't Ex. 138-40.
On November 18, 2019, petitioner signed the Petition in this action.
DISCUSSION
Petitioner claims that trial counsel was ineffective by failing to object to the admission of the detective's and the case worker's statements and appellate counsel was ineffective for failing to “sufficiently develop” arguments on direct appeal. Pet. at 6 (ECF No. 2). Respondent maintains that the Petition is untimely and that petitioner's claims are unexhausted and barred by procedural default.
In his Petition, petitioner asserts two additional claims of ineffective assistance of counsel based on trial counsel's performance during his first trial. Pet. at 5. Petitioner's convictions arising from his first trial were vacated by the Oregon Court of Appeals, and any claim arising from counsel's performance in his first trial is not properly before this Court.
A prisoner must file a federal habeas petition challenging a state court conviction within one year after the challenged conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). A conviction becomes final and the one-year statute of limitations begins to run upon completion of direct appellate review. If a petitioner seeks post-conviction relief in state court, the federal limitations period is tolled during the time in which a “properly filed” PCR petition is “pending.” Id. § 2244(d)(2) (“The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.”).
Petitioner's convictions became final on June 21, 2017, ninety days after the Oregon Supreme Court denied review of petitioner's direct appeal. See Bowen v. Roe, 188 F.3d 1157, 1158-59 (1999) (holding that “the period of ‘direct review' ... includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court”); U.S. Sup. Ct. R. 13 (requiring petition for certiorari to be filed “within 90 days after entry of the order denying discretionary review”). Eighty-three days elapsed before petitioner signed his PCR petition on September 12, 2017.
Respondent argues that the statute of limitations resumed running on August 8, 2018, when the PCR court entered final judgment on the PCR petition, because petitioner's PCR appeal was not “properly filed” and did not toll the limitations period beyond that date. Petitioner did not sign his federal Petition until November 18, 2019, more than one year later, and respondent contends that the Petition must be dismissed as untimely.
Decisions of the Ninth Circuit support respondent's position. In Ramirez v. Yates, 571 F.3d 993 (9th Cir. 2009), the petitioner filed a petition for writ of coram nobis in California state court and unsuccessfully sought post-conviction relief. Petitioner appealed, even though the denial of coram nobis relief was not appealable under California law. Id. at 999. The Ninth Circuit found that “[b]ecause the denial of the writ was determined to be not appealable in this case, Ramirez's appeal was not properly filed and the pendency of the appeal did not toll the limitations period.” Id.
More recently, the Ninth Circuit addressed the precise issue raised in this case. It found that, because the dismissal of a PCR petition for failure to state a claim is non-appealable under Oregon law, an appeal of such a dismissal is not “properly filed” under § 2244(d)(2) and does not toll the statute of limitations. Almanza-Garcia v. Amsberry, 838 Fed. App'x 301, 302 (9th Cir. 2021). The Ninth Circuit also held that equitable tolling was not available in the circumstances faced by petitioner. Id.; see also Holland v. Florida, 560 U.S. 631, 649 (2010) (allowing equitable tolling when a petitioner establishes that “he has been pursuing his rights diligently” and “some extraordinary circumstance stood in his way and prevented timely filing”).
Petitioner requests that this Court certify to the Oregon Supreme Court “the question of whether Mr. Codon's ‘properly filed' post-conviction petition remained ‘pending' within the meaning of Section 2244(d)(2) throughout the appellate process.” Pet'r Brief at 3. Whether petitioner's PCR petition remained pending under § 2244(d)(2) after its dismissal is not a state law question; it is a question of federal law.
Furthermore, petitioner's claims are barred by procedural default. A state habeas petitioner 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. See 28 U.S.C. § 2254(b)(1)(A); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004). To meet the exhaustion requirement, the petitioner must “fairly present” a federal claim to the State's highest court “in order to give the State the opportunity to pass upon and to correct alleged violations of its prisoners' federal rights.” Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam) (quotation marks omitted); Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011) (“Exhaustion requires the petitioner to ‘fairly present' his claims to the highest court of the state.”).
If a claim was not fairly presented to the state courts and no state remedies remain available for the petitioner to do so, the claim is barred from federal review through procedural default. See Coleman v. Thompson, 501 U.S. 722, 732, 735 n.1 (1991); Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002) (“A procedural default may be caused by a failure to exhaust federal claims in state court.”). A federal court may consider unexhausted and procedurally barred claims only if the petitioner demonstrates cause for the default and actual prejudice, or if the lack of federal review would result in a “fundamental miscarriage of justice.” Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman, 501 U.S. at 750.
Petitioner did not fairly present his federal habeas claims to any Oregon court. Petitioner's PCR petition raised a general ineffective assistance claim without reference to or incorporation of any supporting facts, and petitioner did not raise any specific claim of ineffective assistance of counsel before the Oregon Court of Appeals or the Oregon Supreme Court. Resp't Ex. 128 at 2. Thus, petitioner's claims are unexhausted and barred from federal review through procedural default. Although petitioner suggests that his PCR counsel caused the default by failing to certify and pursue claims, petitioner presents no argument showing that he suffered actual prejudice, e.g., that his PCR counsel failed to raise a “substantial” claim of ineffective trial counsel. See Martinez v. Ryan, 566 U.S. 1, 17 (2012) (holding that “a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective”).
Instead, petitioner requests the opportunity to investigate a potential claim of actual innocence to overcome the untimeliness and procedural default of his claims. See Schlup v. Delo, 513 U.S. 298 (1995) (providing a gateway through which credible claims of actual innocence may excuse procedurally defaulted habeas claims); McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) (holding that a claim of actual innocence may allow federal review of untimely habeas claims). To pass through the Schlup gateway, “a petitioner must produce sufficient proof of his actual innocence to bring him ‘within the narrow class of cases...implicating a fundamental miscarriage of justice.'” Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (quoting Schlup, 513 U.S. at 314-15). “Schlup requires a petitioner ‘to support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.'” Id. at 938 (quoting Schlup, 513 U.S. at 324).
Petitioner fails to explain what evidence could potentially support a claim of actual innocence, and I am not inclined to grant petitioner's request to investigate a speculative claim in the circumstances of this case.
CONCLUSION
For the reasons explained above, the Petition for Writ of Habeas Corpus (ECF No. 2) should be DENIED. A Certificate of Appealability should be denied on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 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 Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The parties may file specific written objections within fourteen (14) days from the date of service of a copy of this recommendation. If an objection is filed, any response to the objection is due within fourteen (14) days from the date of the objection. See Fed.R.Civ.P. 72. The parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).