Opinion
2:23-cv-00240-JE
09-07-2023
JOSHUA A-D HALL, Petitioner, v. ERIN REYES, Respondent.
Joshua A.D. Hall Petitioner, Pro Se Ellen F. Rosenblum, Attorney General Samuel A. Kubemick, Assistant Attorney General Department of Justice Attorneys for Respondent
Joshua A.D. Hall Petitioner, Pro Se
Ellen F. Rosenblum, Attorney General Samuel A. Kubemick, Assistant Attorney General Department of Justice Attorneys for Respondent
FINDINGS AND RECOMMENDATION
John Jelderks United States Magistrate Judge
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his Lincoln County convictions from 2016. For the reasons that follow, the Petition for Writ of Habeas Corpus (#2) should be denied.
BACKGROUND
On November 17, 2015, the Lincoln County Grand Jury indicted Petitioner in Case No. 15CR51206 on one count each of unlawful delivery of methamphetamine, unlawful delivery of heroin, unlawful delivery of oxycodone, unlawful possession of methamphetamine, felon in possession of a firearm, fleeing or attempting to elude a police officer, and failure to carry or present a driver's license. Respondent's Exhibit 102. While Petitioner was in pretrial custody for Case No. 15CR51206, he was alleged to have engaged in additional criminal activity, including attempting to convince others not to testify in Case No. 15CR51206. As a result, in Case No. 15CR56858, the Lincoln County Grand Jury charged him with two counts of supplying contraband, two counts of first-degree criminal mischief, and one count each of conspiracy to tamper with a witness, solicitation to tamper with a witness, solicitation to assault a public safety officer, harassment, and possession of a weapon by an inmate. Respondent's Exhibit 103. The Circuit Court consolidated these two cases for trial.
Petitioner was facing a minimum sentencing exposure of between 228 and 256 months in prison, “assuming favorable rulings on concurrence.” Respondent's Exhibit 139, p. 32. In the plea negotiations leading up to the trial, the State extended a plea offer whereby he would plead guilty to certain charges, and the State would argue in favor of a 120-month sentence. Petitioner rejected the offer and advised trial counsel to make a 60-month counteroffer. Respondent's Exhibit 131, pp. 1-2. The State refused to agree to the 60-month figure, but suggested that the parties settle on a sentence of approximately 90 months. Id at 2. Petitioner did not authorize counsel to agree to a 90-month prison term, and the case went to trial. Id. The post-conviction relief (“PCR”) court recounted what occurred at trial:
Petitioner's trial commenced on April 19, 2016. Prior to trial, trial counsel had filed a motion for a continuance which was denied. After listening to the testimony against him, petitioner, nearly at the end of the State's case, abruptly decided to inquire if a plea agreement was still available. Judge Sheryl Bachart told petitioner he could plead to the indictment in each of the two consolidated cases, and she would determine what the appropriate sentence would be, but that the jury having listened to the entire State's case, the time for negotiation was long past. The court recessed for about an hour while petitioner discussed his options with counsel. Petitioner ultimately decided to plead to nearly all of the charges in both cases and take his chances at sentencing. Petitioner was sentenced to a total of 209 months in prison.Respondent's Exhibit 138, p. 2.
Petitioner took a direct appeal in which he raised a challenge to his sentence that is not at issue in this case. The Oregon Court of Appeals affirmed the trial court's decision, and the Oregon Supreme Court denied review. State v. Hall, 290 Or.App. 936, 415 P.3d 598, rev. denied, 363 Or. 104, 420 P.3d 623 (2018).
Petitioner next filed a PCR petition in Marion County where he raised three claims of ineffective assistance of trial counsel. Respondent's Exhibit 112, p. 6. The PCR court denied relief on all of them and, in the process, made factual and credibility determinations adverse to Petitioner. Respondent's Exhibit 138. Petitioner filed a PCR appeal which was limited to a single claim: whether trial counsel had provided ineffective assistance when he failed to communicate the State's 120-month pretrial plea offer prior to its expiration two days after its issuance. Respondent's Exhibit 139. The Oregon Court of Appeals summarily affirmed the PCR court's decision, finding that “the post-conviction court's credibility findings and its related factual findings, which are supported by the evidence in the record, are dispositive of petitioner's claim.” Respondent's Exhibit 142. Petitioner sought review of that decision, but the Oregon Supreme Court denied review. Respondent's Exhibit 144.
Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on February 16, 2023. In his Petition, he raises four grounds for relief that can be summarized as follows:
1. Trial or appellate counsel rendered ineffective assistance by failing to raise issues Petitioner requested such as illegal search and seizure issues;
2. Trial or appellate counsel was ineffective for not putting forth the issues regarding the State's plea offer and the breach of that plea agreement;
3. Trial or appellate counsel provided ineffective assistance by not raising challenges to evidence that was illegally obtained; and
4. PCR trial or PCR appellate counsel was ineffective for not addressing illegal enhancements that Petitioner had raised in his original, pro se PCR petition but which his PCR attorney did not pursue.Petition (#2), pp. 5-6.
Respondent asks the Court to deny relief on the Petition because: (1) Petitioner failed to fairly present Grounds One, Three, and Four to Oregon's state courts, leaving them procedurally defaulted and ineligible for merits review; and (2) the Oregon Court of Appeals' denial of relief on Petitioner's Ground Two claim was not objectively unreasonable. Although Petitioner's supporting memorandum was due on August 22, 2023, he has not filed a brief nor has he otherwise communicated with the Court since he filed the case on February 16, 2023.
Although the Court advised Petitioner on February 21, 2023 that he could move for appointed counsel after the filing of Respondent's Answer, he has not done so. Even if he had, where the issues in this case are not of substantial complexity and no evidentiary hearing is. required, the interests of justice do not warrant appointment of counsel. See 18 U.S.C. § 3006A(g) (permitting the discretionary appointment of counsel if a court finds appointment to be in the interests of justice).
DISCUSSION
I. Exhaustion and Procedural Default
A habeas petitioner must exhaust his claims by fairly presenting them to the state's highest court, either through a direct appeal or collateral proceedings, before a federal court will consider the merits of those claims. Rose v. Lundy, 455 U.S. 509, 519 (1982). "As a general rule, a petitioner satisfies the exhaustion requirement by fairly presenting the federal claim to the appropriate state courts ... in the manner required by the state courts, thereby 'affording the state courts a meaningful opportunity to consider allegations of legal error.'" Casey v. Moore, 386 F.3d 896, 915-916 (9th Cir. 2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 257, (1986)).
If a habeas litigant failed to present his claims to the state courts in a procedural context in which the merits of the claims were actually considered, the claims have not been fairly presented to the state courts and are therefore not eligible for federal habeas corpus review. Edwards v. Carpenter, 529 U.S. 446, 453 (2000); Castille v. Peoples, 489 U.S. 346, 351 (1989). In this respect, a petitioner is deemed to have "procedurally defaulted" his claim if he failed to comply with a state procedural rule, or failed to raise the claim at the state level at all. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). If a petitioner has procedurally defaulted a claim in state court, a federal court will not review the claim unless the petitioner shows "cause and prejudice" for the failure to present the constitutional issue to the state court, or makes a colorable showing of actual innocence. Gray v. Netherland, 518 U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992); Murray v. Carrier, 477 U.S. 478, 485 (1986).
Petitioner raises four claims of ineffective assistance of counsel. A review of the record reveals that during his PCR appeal, he pursued a single claim: whether his defense attorney had been ineffective when he failed to timely communicate the State's 120-month pretrial plea offer that had a firm expiration date of two days. Respondent's Exhibit 139, pp. 4-5; Respondent's Exhibit 143, pp. 16-17. This claim appears to correlate with Ground Two of the Petition for Writ of Habeas Corpus. Where Petitioner did not present the substance of any other ineffective assistance of counsel claim during his PCR appeal, he failed to fairly present Grounds One, Three, and Four to Oregon's state courts. Because he can no longer do so, the claims are procedurally defaulted and Petitioner has not excused the default.
II. The Merits
A. Standard of Review
An application for a 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 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). Under the "unreasonable application" clause, a federal habeas court may grant relief "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id at 413. The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. Id at 410. Twenty-eight U.S.C. § 2254(d) "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents. It goes no farther." Harrington v. Richter, 562 U.S. 86, 102 (2011).
B. Analysis
In assessing Petitioner's Ground Two claim, the Court uses the general two-part test established by the Supreme Court to determine whether Petitioner received ineffective assistance of counsel. Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). First, Petitioner must show that his counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 686-87 (1984). Due to the difficulties in evaluating counsel's performance, courts must indulge a strong presumption that the conduct falls within the "wide range of reasonable professional assistance." Id at 689.
Second, Petitioner must show that his counsel's performance prejudiced the defense. The . appropriate test for prejudice is whether Petitioner can 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. “The likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. 86, 112 (2011) (citing Strickland, 466 U.S. at 693). When Strickland's general standard is combined with the standard of review governing 28 U.S.C. § 2254 habeas corpus cases, the result is a "doubly deferential judicial review." Mirzayance, 556 U.S. at 122.
During his PCR proceedings, Petitioner claimed that his attorney did not communicate the State's 120-month plea offer to him prior to its expiration. The PCR court did not disagree, but found that this was of no consequence to the case because: (1) the prosecutor was willing to keep the offer open beyond its expiration; (2) Petitioner rejected the plea offer when counsel conveyed it to him; and (3) none of the pretrial plea discussions were productive because Petitioner refused to accept a sentence of more than 60 months. Respondent's Exhibit 138, p. 3. Although Petitioner testified during his PCR hearing that he first learned of the 120-month plea offer after he had been convicted, Respondent's Exhibit 137, pp. 14-17, the PCR court found him not to be credible. Respondent's Exhibit 138, p. 2. In the absence of clear and convincing evidence to the contrary, this Court presumes these credibility and factual findings to be correct. See 28 U.S.C. § 2254(e)(1). Given the PCR court's findings, counsel's performance did not fall below an objective standard of reasonableness. Even assuming counsel erred by failing to communicate the State's initial plea offer to Petitioner within 48 hours, Petitioner cannot establish prejudice because the State later offered him a more favorable 90-month offer which he rejected. Accordingly, the Oregon Court of Appeals' decision denying relief on this claim was neither contrary to, nor an unreasonable application of, clearly established federal law. Habeas corpus relief should therefore be denied.
CONCLUSION
For the reasons identified above, the Petition for Writ of Habeas Corpus (#2) should be denied, and a judgment should be entered dismissing this case with prejudice. The Court should also decline to issue a Certificate of Appealability 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).
SCHEDULING ORDER
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 17 days. If no objections are filed, the Findings and Recommendation will go . under advisement on that date.
If objections are filed, 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.