Opinion
2:20-cv-01115-CL
05-13-2022
RICHARD E. GURULE, Petitioner, v. SUE WASHBURN, Respondent.
FINDINGS AND RECOMMENDATION
MARK D. CLARKE UNITED STATES MAGISTRATE JUDGE
Petitioner Richard E. Gurule (“Petitioner”), an individual in custody at Oregon State Correctional Institution, filed this habeas corpus proceeding pursuant to 28 U.S.C. § 2254, challenging his conviction by a non-unanimous jury. For the reasons the follow, the district judge should DENY the First Amended Petition for Writ of Habeas Corpus (ECF No. 18), and decline to issue a certificate of appealability.
In 2012, a Douglas County jury found Petitioner guilty of attempted murder and second-degree assault. (Resp't Exs. (ECF No. 30), Ex. 103 at 8.) The jury's verdict was not unanimous with respect to the attempted murder charge, voting eleven to one in favor of conviction. (Id. at 41.) Petitioner appealed, asserting, among other things, that “[t]he trial court committed plain error when it instructed the jury that it could return a guilty verdict with only ten votes and when it entered a conviction based on a less than a unanimous jury verdict.” (Id. at 39.) The Oregon Court of Appeals affirmed without opinion, State v. Gurule, 267 Or.App. 124 (2014), and Petitioner did not raise the non-unanimous jury claim to the Oregon Supreme Court. (Resp't Ex. 105 at 6-8.) Petitioner also sought postconviction relief but did not appeal after relief was denied. (See Resp't Exs. 108.)
The appellate judgment became effective on May 18, 2015. (Resp't Ex. 107.)
In April 2020, the United States Supreme Court decided Ramos v. Louisiana, 590 U.S., 140 S.Ct. 1390 (2020), holding that the Sixth Amendment right to jury trial, as incorporated against the states by the Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a serious offense. Ramos, 140 S.Ct. at 1397. The Supreme Court then granted certiorari in Edwards v. Vannoy, 141 S.Ct. 1547 (2021) on May 4, 2020, to consider whether its decision in Ramos applied retroactively to cases on federal collateral review. In light of these developments, Petitioner filed a pro se Petition for Writ of Habeas Corpus in this Court on July 10, 2020, raising a single ineffective assistance of counsel claim based on his conviction by a non-unanimous jury. (Pet. (ECF No. 2), at 5.) Petitioner subsequently clarified his claim in an amended petition. (ECF No. 18.)
On May 17, 2021, the Supreme Court decided Edwards, holding that the jury unanimity rule announced in Ramos is not retroactive in cases on federal collateral review. Edwards, 141 S.Ct. at 1559. Although Petitioner “acknowledges the broad language of Edwards barring retroactive application of Ramos[, ] ” he argues that applying Edwards would be “fundamentally unfair” in this case because he would be barred from relief despite raising the non-unanimous jury issue on direct appeal, while “[t]hose whose direct appeals proceedings that were delayed sufficiently to be pending when the Supreme Court issued Ramos have already had their rights vindicated by the state courts.” (Pet'r's Br. (ECF No. 37), at 3-5.)
Petitioner's argument is not well taken. The Edwards Court precluded retroactive application of Ramos to cases on federal collateral review such as this one. Edwards, 141 S.Ct. at 1559. In doing so, the Edwards Court expressly acknowledged that “under the . . . holdings in Ramos and this case, criminal defendants whose cases are still on direct review or whose cases arise in the future will have the benefit of the jury-unanimity right announced in Ramos.” Id. at 1562. Those who, like Petitioner, challenged non-unanimous jury verdicts prior to the Supreme Court's decision in Ramos were subject to the “clearly established Federal law” in place “at the time of the state-court adjudication on the merits” - that unanimous jury verdicts were not constitutionally required in state criminal prosecutions. Greene v. Fisher, 565 U.S. 34, 37 (2011); see also Apodaca v. Oregon, 406 U.S. 404 (1972). Because Ramos does not apply retroactively on federal habeas review, the district judge should deny habeas relief.
CONCLUSION
Based on the foregoing, the First Amended Petition for Writ of Habeas Corpus (ECF No. 18)should be DENIED, and this proceeding should be DISMISSED, with prejudice. Petitioner has not made a substantial showing of the denial of a constitutional right, and therefore the district judge 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 or judgment entered pursuant entered pursuant to the Magistrate Judge's recommendation.