Opinion
2:21-cv-00539-JE
11-14-2022
JACOB HARPER-LEONARD, Petitioner, v. SUE WASHBURN, Respondent.
Thomas J. Hester Assistant Federal Public Defender Attorney for Petitioner Ellen F. Rosenblum, Attorney General James Aaron, Assistant Attorney General Department of Justice Attorneys for Respondent
Thomas J. Hester
Assistant Federal Public Defender
Attorney for Petitioner
Ellen F. Rosenblum, Attorney General
James Aaron, 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 Lane County convictions dated December 8, 2015. For the reasons that follow, the Petition for Writ of Habeas Corpus (#1) should be denied.
BACKGROUND
On January 29, 2015, Petitioner was driving under the influence of intoxicants when he veered into oncoming traffic. This resulted in a head-on collision with a car driven by Danielle May Roberts, who was pregnant at the time. Petitioner's vehicle pushed Roberts' car directly into the path of an 88,000-pound logging truck which drove over and crushed Roberts' car. Roberts was killed instantly, and Petitioner's friend who was riding in the passenger seat of Petitioner's car was also killed. The logging truck driver and Petitioner both sustained non-lifethreatening injuries. Respondent's Exhibit 128, p. 1.
The Lane County Grand Jury indicted Petitioner on two counts of Manslaughter in the First Degree, one count of Driving under the Influence of Intoxicants, and one count of Recklessly endangering another person. Respondent's Exhibit 102. Petitioner faced a potential sentencing exposure of 440 months if he went to trial. Respondent's Exhibit 128, p. 2. Accordingly, the State offered him a plea deal whereby: (1) it agreed to seek a prison sentence of no more than 240 months, and Petitioner could argue for a sentence of 120 months; (2) Petitioner agreed to waive his collateral remedies (including his federal habeas corpus remedy) with the sole exception of any challenge to his trial attorney's advice pertaining to the waiver of Petitioner's collateral remedies; and (3) Petitioner agreed to a 60-day limitation period in which to raise the ineffective assistance of counsel claim permitted by the plea agreement. Respondent's Exhibit 128, pp. 1-2. On August 19, 2015, Petitioner signed the Plea Petition and appeared in court that same day where he affirmed that decision. The trial court proceeded to sentence him to a total of 240 months in prison. Id.
On December 15, 2015, Petitioner filed for post-conviction relief (“PCR”) in Malheur County alleging that his trial lawyer was ineffective for allowing him to enter a plea that was not knowing, intelligent, and voluntary because he was “under the influence of prescribed psychoactive medication, extreme anxiety attendant to an anxiety disorder, and the continuing physically and psychologically debilitating effects of the motor vehicle collision underlying his charges.” Respondent's Exhibit 106, p. 5. The PCR court found that the action was untimely given the 60-day limitation period Petitioner had agreed to in his Plea Petition. Respondent's Exhibit 128, p. 3. It also concluded that his waiver of collateral remedies was valid and enforceable. Id. Finally, it concluded that even if Petitioner had properly raised his claim, he failed to establish that his plea was not knowing, voluntary, and intelligent, or that his trial lawyer acted unreasonably. Id. The Oregon Court of Appeals affirmed that decision without issuing a written opinion, and the Oregon Supreme Court denied review. Leonard v. Cain, 307 Or.App. 272, 473 P.3d 621 (2020), rev. denied, 367 Or. 668, 481 P.3d 918 (2021).
On April 9, 2021, Petitioner filed his Petition for Writ of Habeas Corpus in which he alleges three grounds for relief:
1. Petitioner's plea was unlawfully induced or not made voluntarily, and he was also denied his right of appeal.
2. Petitioner is actually innocent where, despite his conviction for driving under the influence of alcohol, the urinalysis conducted February 10, 2015 was devoid of any alcohol.
3. The prosecutor engaged in misconduct when it charged him with an alcohol-related offense despite the absence of alcohol in the February 10, 2015 urinalysis.
Respondent asks the Court to deny relief on the Petition because: (1) the Petition is untimely; (2) Petitioner's claims are procedurally barred because the PCR court determined that he failed to file his PCR case within the agreed-upon 60-day limitation period; (3) with the exception of his challenge to the knowing and voluntary nature of his plea, his claims are not cognizable where he waived his collateral remedies as part of his plea agreement; and (4) the state-court conclusion that Petitioner's plea was knowing, intelligent, and voluntary is not unreasonable.
DISCUSSION
I. Timeliness and Independent and Adequate State Procedural Ruling
Petitioner raises three grounds for relief but, with the assistance of appointed counsel, elects to argue only his Ground One claim that his trial attorney was constitutionally ineffective for permitting him to enter a guilty plea that was not knowing, voluntary, and intelligent. The first issue to address is whether Petitioner's waiver of his right to pursue collateral remedies, including the federal habeas remedy, precludes him from bringing this action.
Petitioner does not argue the merits of his remaining claims thus, even if there were no procedural hurdles to consideration of the merits of those claims, he has not carried his burden of proof as to his unargued claims. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (Petitioner bears the burden of proving his claims).
Generally, the waiver of appellate rights will be enforceable if it was voluntarily made. United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994). In this case, Petitioner's Plea Petition expressly permits him to “petition for post-conviction or habeas corpus relief for the limited purpose of challenging the validity of that waiver,” Respondent's Exhibit 103, p. 7. Even if his plea agreement did not contain this provision, the Ninth Circuit has held that “a plea agreement that waives the right to file a federal habeas petition under 28 U.S.C. § 2254 is unenforceable with respect to an IAC claim that challenges the voluntariness of the waiver.” Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005). Therefore, Petitioner's waiver of his right to pursue collateral remedies should not bar his Ground One claim.
Petitioner's Plea Petition also contains a provision that limited his time to file a PCR or federal habeas action to 60 days from the date of his Judgment. Petitioner's allegation that he entered an involuntary guilty plea due to the ineffective assistance of counsel, if true, would presumably negate the entire Plea Petition including the abbreviated limitation period. The Court should therefore not dismiss this federal habeas case without consideration of his argued claim simply because Petitioner failed to file it within 60 days of his Judgment.
Respondent also asks the Court to deny relief on the Petition because Petitioner failed to timely file his PCR action within the 60-day limitation period he agreed to in the Plea Petition, thereby procedurally defaulting his claims. 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)).
A federal court is precluded from reviewing the merits of a claim when the state court has denied relief on the basis of an independent and adequate state procedural rule. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991); Vansickel v. White, 166 F.3d 953, 957 (9th Cir.), cert. denied, 528 U.S. 965 (1999). A state procedural rule constitutes an "independent" bar only if it is not interwoven with federal law or dependent upon a federal constitutional ruling. Ake v. Oklahoma, 470 U.S. 68, 75 (1985); La Crosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). A state procedural rule constitutes an adequate bar to federal court review if it was "firmly established and regularly followed" at the time it was applied by the state court. Ford v. Georgia, 498 U.S. 411, 424 (1991).
The PCR court specifically concluded that “Petitioner did not file this Petition with[in] the 60 days provided for in the Plea Petition. Petitioner failed to present evidence or legal authority sufficient to show why the time limitation provision should not be enforced.” Respondent's Exhibit 128, p. 3. Petitioner argues that his claims are not procedurally defaulted because, even though the PCR court determined the action was untimely, it also resolved his ineffective assistance of counsel claim on its merits. However, "a state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law." Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) (emphasis in original). Because the Malheur County Circuit Court concluded that Petitioner failed to timely file his PCR action, it applied a procedural bar (timeliness) that was independent of the federal question and adequate to support its judgment. All of his claims are therefore procedurally defaulted.
Petitioner raises a claim of actual innocence, possibly in an attempt to excuse his procedural default. See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). In order to make such a showing, Petitioner must present “new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324, 327 (1995). Petitioner presents no such evidence. As a result, Petitioner is unable to excuse his procedural default.
Error! Main Document Only. Because petitioner was not able to meet the Schlup gateway showing of actual innocence to excuse his procedural default, he is unable to meet the more demanding showing required for a freestanding claim of innocence as described in Herrera v. Collins, 506 U.S. 390, 417 (1993). House v. Bell, 547 U.S. 518, 555 (2006) (Herrera requires more convincing proof of innocence than Schlup).
II. The Merits
Even assuming Petitioner could excuse his procedural default, he would still be unable to prevail in this case. 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).
Just as with his Ground One claim here, Petitioner alleged in his PCR proceedings that his attorney was ineffective for failing to ensure that he entered into the plea agreement knowingly, voluntarily, and intelligently. 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. In proving prejudice, a petitioner who has pled guilty or no contest to an offense must demonstrate that there is a reasonable probability that, but for counsel's errors, he would not have entered such a plea and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). “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.
According to Petitioner, his attorney's conduct fell below an objective standard of reasonableness because he: (1) substantially underestimated the actual sentencing exposure Petitioner faced if he proceeded to trial; (2) was not familiar with the relevant terms of the plea agreement in which Petitioner pleaded guilty to driving under the influence of alcohol when he was actually under the influence of narcotics to the exclusion of alcohol, and (3) improperly allowed Petitioner to enter his plea when he was in physical and psychological pain and receiving significant prescription medications. The PCR court determined that counsel did not perform deficiently:
The trial court noticed this discrepancy and addressed it on the record. Respondent's Exhibit 108, pp. 17-18.
Finally, even if Petitioner's claim were properly before this court, he has failed to prove that his plea was not knowingly, voluntarily and intelligently entered. His testimony that he did not understand the plea agreement or what was happening during the court process is not credible. Petitioner claims that his physical and mental condition prevented him from making a knowing, intelligent, and voluntary waiver of rights. This is completely contrary to the testimony of Petitioner's trial attorney and the testimony of the DDA who handled the case. The DDA listened to jail phone calls that Petitioner made to his family and heard no indication [of his] inability to understand. The transcript also demonstrates that Petitioner fully understood what was happening and th[at] he was proceeding knowingly, intelligently, and voluntarily. His allocution statement at sentencing demonstrates that he is in full control of his faculties. If Petitioner were as impaired as he claims at the time of the plea and sentencing, there should be people (jail staff, medical staff, family members, etc.) who could verify that fact. Petitioner's claims are unsubstantiated by any third party. Petitioner also fails to present evidence sufficient to show how his trial counsel acted unreasonably. There is no credible evidence that trial counsel was aware of any physical or emotional condition that would impair Petitioner's ability to enter the plea agreement and plea. Petitioner fails to allege or prove facts sufficient to show how his trial counsel acted unreasonably.Respondent's Exhibit 128, p. 3.
In the absence of clear and convincing evidence to the contrary, this Court accepts the PCR trial court's factual findings, including its credibility determinations, as true. See 28 U.S.C. § 2254(e)(1). Where Petitioner fully understood what was happening during the plea process and was not credible in his statements to the contrary, counsel's performance did not fall below an objective standard of reasonableness when he allowed Petitioner to enter into the plea agreement. Even if counsel had committed errors of any significance, Petitioner has not established that he would have foregone the plea agreement and insisted on proceeding to trial. His contention that he might have obtained a better plea offer if he had been properly advised regarding the State's initial offer does not satisfy the prejudice requirement of Hill, and his cursory assertion that he would have insisted on proceeding to trial in the absence of any deficient performance by counsel is unsubstantiated and not credible where there was no doubt as to his guilt and he faced the very real possibility of a 440-month sentence if he elected to proceed to trial. Accordingly, even if the procedural posture of this case permitted the Court to decide the action on its merits, the PCR court's decision is neither contrary to, nor an unreasonable application of, clearly established federal law. For all of these reasons, the Court should deny relief on the Petition.
RECOMMENDATION
For the reasons identified above, the Petition for Writ of Habeas Corpus (#1) 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, 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.