Opinion
2:18-cv-00774-JR
09-30-2022
BOURNE HUDDLESTON, Petitioner, v. BRAD CAIN, Superintendent, Snake River Correctional Institution Respondent.
FINDINGS AND RECOMMENDATION
JOLIE A. RUSSO, UNITED STATES MAGISTRATE JUDGE
Petitioner, an adult in the custody of the Oregon Department of Corrections, brings this 28 U.S.C. § 2254 habeas corpus action challenging the legality of his Jackson County conviction on a plea of no contest to one count of Attempted Aggravated Murder. For the reasons that follow, the Amended Petition for Writ of Habeas Corpus (ECF No. 8) should be DENIED.
BACKGROUND
In 2012, a Jackson County grand jury charged Petitioner with the murder of his wife in Jackson County Case No. 12CR1371FE. While Petitioner was in custody awaiting trial on the murder charge, he conspired with another jail inmate to kill Joseph Nuckolls, a witness in the murder case. Using a wiretap within the jail, the state recorded a conversation regarding how Nuckolls would be eliminated and how much Petitioner would pay for the “job.” Respondent's Exhibits, ECF No. 24 (“Resp. Exh.”) 106, p. 6. The state then performed a “sting” operation to have Petitioner transfer money to the jail informant. Petitioner's sister agreed to help Petitioner transfer the funds. Resp. Exh. 106, p. 6.
On April 18, 2013, Petitioner was indicted in Jackson County Case No. 13CR02187 on two counts of attempted aggravated murder, two counts of criminal conspiracy to commit aggravated murder, criminal conspiracy to commit murder, attempted murder, two counts of solicitation to commit aggravated murder, and solicitation to commit murder. Resp. Exh. 103. Petitioner's sister was charged in a separate case for which she was arrested in her home in Florida and extradited to Oregon, where she was held in custody. Resp. Exh. 105, pp. 3-4.
Petitioner ultimately agreed to plead no contest to one count of attempted aggravated murder in exchange for dismissal of the remaining charges and a recommended sentence of 120 months in prison. As part of the plea agreement, the state also agreed that Petitioner's sister would be sentenced in her case to a term of probation, to be served at her home in Florida. Resp. Exh. 105, pp. 3-4.
Attached to and incorporated in the plea petition signed by Petitioner was a document titled “Waiver of Direct Appeal and Collateral Remedies.” Resp. Exh. 103, pp. 2, 7-13. The Waiver provided:
I understand and agree that the state and the victim(s) have a strong interest in foreclosing any further litigation on the charge(s) in this case. Therefore, in consideration for the state's promises that are set forth in this plea agreement, I hereby waive forever my right to file either a petition for post-conviction relief or a petition for federal habeas corpus relief that would challenge the validity of the conviction(s) and sentence entered in this case.
Resp. Exh. 103, p. 9. The waiver further provided that Petitioner “may be entitled to petition for post-conviction or habeas corpus relief for the limited purpose of challenging the validity of the waiver” and set out the respective statutes of limitations. It then imposed an abbreviated limitations period of 60 days for filing such proceedings. Lastly, the waiver provided that Petitioner was “completely satisfied” with his attorney's investigation, defense, and advice, and that he had “no further questions regarding the purpose, scope, and effect of this agreement and waiver[.]” Resp. Exh. 103, p. 9.
Petitioner signed the petition and the waiver and acknowledged in a colloquy with the trial judge that he read and understood both documents. Resp. Exh. 106, pp. 3-5. In the plea petition itself, Petitioner's attorney certified that he read and fully explained to Petitioner the allegations contained in the indictment and that, in his opinion, the plea was “voluntarily and understandingly made.” Resp. Exh. 103, p. 3. The trial court accepted the plea, finding that it was “voluntarily, intelligently, and knowingly made.” Resp. Exh. 106, at p. 7. The trial judge then sentenced Petitioner to the mandatory minimum sentence of 120 months, consecutive to the sentence on the murder conviction in Case No. 12CR1371FE. Resp. Exh. 106, p. 13; Resp. Exh. 101, pp. 8-10. The judgment of conviction was entered on May 7, 2014. Resp. Exh. 101, p. 7.
Petitioner did not file a direct appeal. On February 27, 2015, Petitioner signed a petition for state post-conviction relief (“PCR”) which was filed on March 5, 2015, in Malheur County Circuit Court Case No. 15CV1102. The PCR trial court appointed counsel, who filed an formal amended petition alleging four claims for relief: (1) trial counsel was ineffective in failing to intervene when the prosecutor “engaged in ex parte communication” with petitioner regarding the plea agreement; (2) trial counsel was ineffective in failing to object to the prosecutor's ex parte communication and allowing the prosecutor to “coerce” petitioner into accepting the plea; (3) the prosecutor violated due process by engaging in ex parte communication with petitioner; and (4) the prosecutor deprived petitioner of counsel by communicating with him without trial counsel's knowledge and consent. Resp. Exh. 109.
The state moved for summary judgment against the petition based on the waiver of collateral remedies, arguing that petitioner knowingly, intelligently, and voluntarily waived his right to seek post-conviction relief.Resp. Exh. 111. In response, Petitioner argued the waiver was invalid and unenforceable and that, because the trial judge did not explain the waiver on the record, there was a genuine issue of material fact as to whether the waiver was knowing and voluntary. Resp. Exh. 112. Petitioner did not, however, submit any evidence beyond the trial court record already before the court. Resp. Exh. 112.
The state did not raise the 60-day statute of limitations clause contained in the waiver. Id.
The PCR trial court denied relief. Resp. Exh. 115. The court concluded first that if the state argues that a post-conviction proceeding cannot be had because of a waiver, “at minimum, a defendant should be allowed to challenge the effectiveness of counsel in regard to the waiver,” which petitioner accomplished in his first claim for relief. Resp. Exh. 115, p. 2. The PCR court then noted that “summary judgment determinations are made based on evidence,” and that “[t]he only evidence regarding the waiver presented to the court is the waiver itself and portions of the trial transcript.” Resp. Exh. 115, p. 2. That evidence, the court held, “demonstrates that there is no genuine issue of material fact that the plea agreement and waiver was knowingly, voluntarily and intelligently agreed to by the petitioner.” Resp. Exh. 115, p. 2. Petitioner appealed the denial of PCR relief, but the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Huddleston v. Nooth, 288 Or.App. 853, 406 P.3d 621 (2017), rev. denied, 362 Or. 699 (2018).
On May 4, 2018, petitioner filed this habeas corpus action. In his Amended Petition for Writ of Habeas Corpus he alleges trial counsel was ineffective in failing to (1) file a motion to exclude the admissibility of evidence and to dismiss the charges; (2) file a motion to impeach the only prosecution witness; and (3) investigate various witnesses. Petitioner also alleges the prosecutor violated his due process rights by (1) engaging in ex parte communication with him; (2) soliciting testimony from a witness under false pretenses; and (3) placing a known jailhouse snitch to gain information from petitioner.
Respondent contends that habeas corpus relief should be denied because the petition is untimely under the terms of the waiver, the claims alleged are not cognizable except to the extent they challenge the knowing and voluntary nature of the waiver, and that the state PCR court's decision finding petitioner's waiver of collateral remedies was knowing, intelligent, and voluntary is entitled to deference. In his Brief in Support of Petition for Writ of Habeas Corpus, Petitioner advances a single claim: he contends he was denied effective assistance of counsel when his attorney failed to ensure that his waiver of collateral remedies was knowingly, intelligent, and voluntary. Petitioner argues he is entitled to an evidentiary hearing in this Court because the waiver is unenforceable, he presents a colorable claim for relief, his claims were not adjudicated on the merits, and he has diligently pursued them.
DISCUSSION
I. State PCR Decision Entitled to Deference
A. Legal Standards
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 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 of § 2254(d)(1), 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. Section 2254(d) “preserves authority to issue the writ in cases where there is no possibility fair-minded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents. It goes no further.” Harrington v. Richter, 562 U.S. 86, 102 (2011).
In assessing claims of ineffective assistance of counsel, the Court uses the general two-part test established by the Supreme Court. Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). First, a 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, a petitioner must show that counsel's performance prejudiced the defense. The appropriate test for prejudice is whether the 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 the context of a guilty plea, when a defendant enters his plea upon the advice of counsel, to satisfy the prejudice requirement, “the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 58-59 (1985).
B. Analysis
Petitioner contends he was denied effective assistance of counsel when his attorney failed to ensure that his waiver of collateral remedies was knowing, intelligent, and voluntary, and that his no contest plea and waiver were effectively coerced. Respondent counters that the PCR court decision denying relief on this claim is entitled to deference, precluding a grant of habeas corpus relief.
Although Petitioner does not explicitly allege this claim in his Amended Petition, the Court construes his claims of ineffective assistance of counsel described above as asserting that counsel's alleged failures caused him to enter the plea agreement and that he would not have done so had counsel provided constitutionally effective assistance.
The Court notes, and respondent concedes, that a waiver of the right to mount a collateral attack on a conviction obtained by a plea of guilty or no contest does not preclude a habeas petitioner from raising a claim of ineffective assistance of counsel in connection with the plea agreement containing the waiver. Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005) (holding that a plea agreement that waives the right to file a federal habeas petition pursuant to 28 U.S.C. § 2254 is unenforceable with respect to an ineffectiveness claim that challenges the voluntariness of the waiver).
As an initial matter, Petitioner contends the state PCR court did not issue a valid ruling on his Strickland ineffective assistance claim because the ruling was based only on the trial record, and because the PCR court conducted only a due process examination to conclude that Petitioner's waiver was knowing, intelligent, and voluntary. He argues that a valid Strickland ruling cannot be based solely on the trial court record; rather, the reviewing court must review evidence outside the trial court record. To be sure, the Supreme Court has long recognized that claims of ineffective assistance do often require factual development beyond the trial court record. See, e.g., Martinez v. Ryan, 566 U.S. 1, 11-12 (2012). Here, however, Petitioner had the opportunity to develop the facts outside of the trial record in response to the state's motion for summary judgment but failed to do so. As the PCR trial judge specifically noted, “[s]ummary judgment determinations are made based on evidence,” and other than the trial record “[n]o contradictory evidence was submitted.” Resp. Exh. 115, p.2.
Moreover, the lack of an express reference to Strickland in the PCR decision does not indicate the court failed to conduct the appropriate analysis. “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principle to the contrary.” Harrington, 562 U.S. at 99; see also Hogue v. Nooth, 738 Fed.Appx. 426, 427 (9th Cir. 2018) (holding that state PCR decision finding petitioner's agreement virtually identical to waiver language and was knowing, intelligent, and voluntary; the grant of summary judgment constituted a decision on the merits of petitioner's ineffective assistance of counsel claim despite lack of express reference to Strickland or Hill), cert. denied, 139 S.Ct. 851 (2019). As noted above, the state PCR trial judge plainly stated that Petitioner was allowed, “at minimum . . . to challenge the effectiveness of counsel in regard to the waiver.” Resp. Exh. 115, p. 2 (emphasis added). Contrary to Petitioner's argument, the state PCR court adjudicated Petitioner's ineffective assistance claim on the merits, and § 2254(d) therefore applies.
Petitioner argues the PCR court erred in finding his agreement to the waiver was knowing, intelligent, and voluntary because he “presented sufficient evidence to raise an issue of fact as to whether he waived his post-conviction rights.” In support of his argument, he cites PCR trial counsel's response to the motion for summary judgment, which argued that it was clear from the plea colloquy transcript that the judge failed to explain the waiver or its consequences, and that the coercive nature of tying the fate of petitioner's sister/co-defendant's case to petitioner's plea was self-evident, creating a genuine issue of material fact as to whether the plea and waiver were voluntary.
The only relevant evidence contained in the record before the PCR trial court, however, was the plea petition, which included the waiver, and the transcript of the plea colloquy. The waiver itself, which both Petitioner and his attorney signed, clearly and comprehensively set out the scope of the rights being waived. It stated that petitioner was “completed satisfied” and had no further questions regarding the purpose, scope, and effect. In signing the plea petition, Petitioner averred he had read and reviewed the contents, that his attorney had advised him of the consequences of accepting the plea, and that “there is nothing about the proceedings in this case against me which I do not fully understand.” Trial counsel also signed a statement certifying he had fully explained to Petitioner the allegations contained in the indictment, and that he believed that Petitioner's plea was “voluntarily and understandingly made.” Finally, during the plea colloquy, the trial judge specifically asked Petitioner whether he had read and understood the plea petition and waiver, and petitioner responded affirmatively. Resp. Exh. 106, pp. 4-5. The trial judge then explicitly found that Petitioner's no contest plea was factually based and was knowing, intelligent, and voluntary. Resp. Exh. 106, p. 7.
In the absence of any affirmative evidence that Petitioner had not, in fact, understood the waiver or that his attorney had failed to explain any salient point thereof, or any evidence that Petitioner would not have accepted the plea and instead proceeded to trial, the PCR court's determination that Petitioner was not entitled to relief on his claim of ineffective assistance of counsel was not contrary to or an unreasonable application of federal law, or based on an unreasonable determination of the facts. Accordingly, that decision is entitled to deference and habeas relief is not warranted.
Because the determination of whether the waiver of the statute of limitations contained in Petitioner's plea petition is operative necessarily depends upon a determination whether the waiver as a whole is enforceable, and because the PCR court's decision that Petitioner was not entitled to relief on his claim that ineffective assistance of counsel rendered the waiver unenforceable is entitled to deference, this Court need not address the limitations period or Petitioner's claim of equitable tolling. Likewise, the Court need not address the claims of prosecutor misconduct, as the enforceable waiver of collateral remedies precludes Petitioner from obtaining habeas relief thereon.
II. Request for Evidentiary Hearing
Petitioner seeks an evidentiary hearing on the merits of his claims arguing he diligently pursued his claims and has never been granted a meaningful hearing. This contention, however, is not supported by the record. Petitioner bore the burden of proof in his state PCR proceeding, and he had the opportunity to submit evidence in response to the state's motion for summary judgment to meet that burden. See Or. Rev. Stat. 138.620(2); Or. R. Civ. P. 47C. His failure to do so does not mean he was unable to develop the record such that an evidentiary hearing would be appropriate. See 28 U.S.C. § 22554(e)(2); Williams, 529 U.S. at 437 (“[f]ederal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state court proceedings”). Petitioner was afforded a full and fair opportunity to develop and present evidence in support of his ineffective assistance of counsel claim in state court but was not diligent in doing so. Accordingly, Petitioner's request for an evidentiary hearing should be denied.
CONCLUSION
For these reasons, the Court should DENY the Amended Petition for Writ of Habeas Corpus (ECF No. 8) and enter a judgment of DISMISSAL. A certificate of appealability should be denied as petitioner has not made a substantial showing of the denial of a constitutional right. 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 shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as 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 to this recommendation.