Opinion
Civil 2:19-cv-00015-YY
01-13-2022
GREG EVENSIZER, Petitioner, v. JERI TAYLOR, Superintendent, Eastern Oregon Correctional Institution Respondent.
FINDINGS AND RECOMMENDATION
YOULEE YIM YOU UNITED STATES MAGISTRATE JUDGE
FINDINGS
Petitioner, an adult in custody at the Eastern Oregon Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Petition for Writ of Habeas Corpus (ECF 1) should be DENIED.
I. Background
On November 10, 2010, a Polk County grand jury indicted Petitioner on eleven separate sex offense charges. Resp. Ex. 105. Petitioner ultimately pleaded guilty to six offenses: one count of Sodomy in the First Degree, one count of Unlawful Sexual Penetration in the First Degree, and four counts of Sexual Abuse in the First Degree. Resp. Exs. 106, 107. Petitioner signed a plea petition stating that he understood the rights he was giving up by pleading guilty and the maximum possible penalty for each of the offenses. Resp. Ex. 106. The plea petition also noted that the mandatory minimum sentences for the six counts, if imposed consecutively, would total 900 months of imprisonment. Resp. Ex. 106, at 2. At sentencing, over trial counsel's objection, the trial court sentenced Petitioner to two consecutive 300-month sentences on the Sodomy and Unlawful Penetration counts, and a consecutive 150 months of imprisonment on the remaining counts, for a total of 750 months of imprisonment. Resp. Exs. 101, 108, at 17-22.
Petitioner appealed, arguing that the imposition of the two consecutive 300-month sentences was disproportionate and violated the United States Constitution's prohibition against cruel and unusual punishment. Resp. Ex. 109, at 2-3. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. Evensizer, 261 Or.App. 476, rev. denied, 355 Or. 380 (2014).
Petitioner then sought state post-conviction relief (“PCR”). His First Amended Petition included a claim that trial counsel was ineffective in failing to ensure that Petitioner entered his guilty plea knowingly, intelligently, and voluntarily, in part because he was “still under stress from the recent loss of his father.” Resp. Ex. 115, at 8. Following an evidentiary hearing, the PCR trial court denied relief. Resp. Ex. 127. Petitioner appealed, but again the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Evensizer v. Taylor, 293 Or.App. 300, rev. denied, 363 Or. 744 (2018).
On January 19, 2019, Petitioner filed his Petition for Writ of Habeas Corpus with this court, alleging six grounds for relief:
Ground One: Conviction obtained by plea of guilty which was unlawfully induced
or not made voluntarily with understanding of the nature of the charge and consequences of the plea.
Ground Two: Conviction obtained by coerced confession.
Ground Three: Conviction obtained by a violation of Double Jeopardy.
Ground Four: Conviction obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant. And from the defense attorney Chris Lilligard.
Ground Five: Denial of effective assistance of counsel.
Ground Six: Conviction resulting in unconstitutional sentencing.
Respondent contends that Grounds Two through Five are procedurally defaulted, and that Petitioner has not demonstrated cause and prejudice or a fundamental miscarriage of justice to excuse the procedural default. As to Grounds One and Six, Respondent contends the state courts' denial of relief on these claims was not objectively unreasonable and is entitled to deference in this court. In his Brief in Support, Petitioner addresses only his claim that his sentence violated the Eighth Amendment prohibition against cruel and unusual punishment.
II. Eighth Amendment-Excessive Sentence
Petitioner contends the two consecutive 300-month terms of imprisonment imposed on his convictions for Count 1-Sodomy in the First Degree and Count 2-Unlawful Penetration in the First Degree violate the Eighth Amendment because they are grossly disproportionate to the underlying harm for a defendant with no prior adult convictions and who promptly accepted responsibility for his crimes. As noted, this claim was presented on direct appeal and is fully exhausted.
A. Legal Standards
An application for writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was: (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” or (2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state court's findings of fact are presumed correct and petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
A state court decision is “contrary to . . . clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases” or “if the state court confronts a set of facts that a 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). Under the “unreasonable application” clause, a federal habeas court may grant relief “if the state court identifies the correct legal principle from [the Supreme Court's] decisions, but unreasonably applies that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 413. The “unreasonable application” clause requires the state court decision to be more than incorrect or erroneous. The state court's application of clearly established law must be objectively unreasonable. Id. at 409-10. A federal habeas court reviews the state court's “last reasoned decision.” Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).
B. Analysis
“The Eighth Amendment, which forbids cruel and unusual punishments, contains a ‘narrow proportionality principle' that ‘applies to noncapital sentences.'” Ewing v. California, 538 U.S. 11, 20 (2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 996-997, 1001 (1991)). To succeed on a proportionality claim, a habeas petitioner must make a threshold showing of gross disproportionality through a “comparison of the crime committed and the sentence imposed.” Id. at 30 (citing Harmelin, 501 U.S. at 1005); see also Norris v. Morgan, 622 F.3d 1276, 1287 (9th Cir. 2010) (explaining that “in applying [the] gross disproportionality principle[, ] courts must objectively measure the severity of a defendant's sentence in light of the crimes he committed”).
A successful challenge to the proportionality of particular sentences is “exceedingly rare” outside “the context of capital punishment.” Solem v. Helm, 463 U.S. 277, 289-90 (1983). Eighth Amendment jurisprudence “gives legislatures broad discretion to fashion a sentence that fits within the scope of the proportionality principle-the precise contours of which are unclear.” Lockyer v. Andrade, 538 U.S. 63, 76 (2003) (internal quotation marks and citations omitted).
Petitioner's sentence is undoubtably lengthy. However, when compared to Petitioner's crimes, the sentence does not raise an “inference” of gross disproportionality. Ewing, 538 U.S. at 30. Petitioner pleaded guilty to “Jessica's Law” crimes, i.e., first-degree sexual offenses committed against children under the age of 12. Resp. Ex. 106. The mandatory minimum sentence for such a crime is 25 years. O.R.S. 137.700(2)(b)(E), (F). The plea petition clearly indicates that the presumptive sentence for Counts 1 and 2 is 300 months each. Resp. Ex. 106, at 2.
Moreover, Petitioner committed Counts 1 and 2 against two different victims: in Count 1, Petitioner subjected a seven-year-old girl to deviate sexual intercourse, Resp. Ex. 105, at 2, 3, and in Count 2, Petitioner penetrated the anus of a girl who was 11 years old. Resp. Ex. 108, at 4. In fact, in Counts 3 and 4, Petitioner pleaded guilty to touching the vagina of yet another girl who was only eight years old. Id.; Resp. Ex. 105, at 2, 3. When the crimes were committed, two of the victims were visiting Petitioner and one lived with him in the home where he acted as a “step-father figure.” Resp. Ex. 108, at 18. The father of one of the victims spoke at the sentencing hearing and described how Petitioner had “robbed” the victims “of the notion of security . . . and placed in these children a sense of doubt in those that are meant to protect them and look after them.” Id. at 9. He observed that Petitioner changed the way the victims “will relate to other people” and the “scars caused by [Petitioner's] actions will last a lifetime.” Id. at 10. When imposing sentencing, the trial judge noted that the crimes involved different children and “somewhat of a trusting relationship.” Id. at 20.
The prosecutor noted that Petitioner had abused at least two more girls in that home. Resp. 108, at 4; see also id., at 7 (“pretty much every child in 24 the home at this point has made some statement about the defendant touching them”).
Petitioner fails to identify clearly established Supreme Court precedent that precludes a sentence such as the one he received for the crimes he committed or for similarly grievous offenses. To the contrary, the Supreme Court has upheld longer terms of imprisonment for far less egregious crimes. See Ewing, 538 U.S. at 30-31 (affirming a sentence of 25 years to life imposed on a “three strikes” offender convicted of stealing three golf clubs); Harmelin, 501 U.S. 961, 994 (affirming a sentence of life imprisonment without the possibility of parole imposed on a first-time offender convicted of cocaine possession). In light of, among other factors, the grave impact of sex offenses committed against children, the Ninth Circuit and judges in this district have rejected Eighth Amendment disproportionality claims similar to Petitioner's. See Norris, 622 F.3d at 1296 (upholding a sentence of life without the possibility of parole imposed after two convictions for child molestation); Galindo v. Cain, Case No. 2:17-cv-00105-MO, 2019 WL 2746722, at *6 (D. Or. July 1, 2019) (rejecting Eighth Amendment challenge to 300-month sentence based on one count each of sexual abuse in the first degree and sodomy in the first degree), cert. of app. denied, 2019 WL 8301816 (9th Cir. Dec. 19, 2019), cert. denied, 140 S.Ct. 2729 (2020); Rojas v. Taylor, Case No. 2:17-cv-00802-TC, 2018 WL 7857926, at *1-3 (D. Or. 2018) (finding 698-month sentence for multiple offenses, included sex offenses, against minor victims, not grossly disproportionate to crimes), findings and recommendations adopted, 2019 WL 1371135 (D. Or. 2019).
For these reasons, it was not objectively unreasonable for the state court to conclude that Petitioner's sentence is not among the “exceedingly rare” or “extreme” sentences that would violate the Eighth Amendment's “gross disproportionality” principle. Petitioner is not entitled to habeas corpus relief on this claim.
III. Remaining Grounds for Relief Not Addressed in Petitioner's Brief in Support
As noted, Petitioner does not address his remaining grounds for relief in his Brief in Support. As such, Petitioner has not sustained his burden to demonstrate why he is entitled to relief on these claims. See Lampert v. Blodgett, 393 F.3d 942, 970 n.16 (9th Cir. 2004). Nevertheless, the Court has reviewed Petitioner's remaining claims and is satisfied that Petitioner is not entitled to habeas corpus relief.
RECOMMENDATION
The Petition for Writ of Habeas Corpus should be DENIED and a judgment of dismissal should be entered. Because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability should be DENIED. See 28 U.S.C. § 2253 (c)(2).
SCHEDULING ORDER
These Findings and Recommendation will be referred to a district judge. Objections, if any, are due by January 27, 2022. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.