Opinion
Civil No. 01-1343-MO.
July 24, 2004
Kathleen M. Correll, Curtis Correll, Portland, OR, Attorney for Petitioner.
Hardy Myers, Attorney General, DOUGLAS Y.S. PARK, Assistant Attorney General Department of Justice, Salem, Oregon, Attorneys for Respondent.
OPINION AND ORDER
Petitioner brings this 28 U.S.C. § 2254 habeas corpus action challenging his conviction for Aggravated Murder on the basis that he received ineffective assistance of counsel. For the reasons set forth below, the Petition for Writ of Habeas Corpus (#2) is denied, and this proceeding is dismissed.
BACKGROUND
On October 10, 1995, petitioner was convicted of Aggravated Murder and sentenced to life imprisonment without the possibility of parole for the murder of Steve Novakowski. Respondent's Exhibit 101. Petitioner did not directly appeal the conviction, but did seek collateral relief in Oregon's post-conviction ("PCR") courts. The PCR trial court denied relief on October 25, 1999. Respondent's Exhibit 104. The Oregon Court of Appeals affirmed the lower court without opinion and the Oregon Supreme Court denied review. Petersen v. Palmateer, 172 Or. App. 537, 19 P.3d 364, rev. denied, 332 Or. 326, 28 P.3d 1176 (2001).
Petitioner filed the current action on September 10, 2001 raising claims of ineffective assistance of trial counsel related to his attorney's handling of pretrial investigation and plea negotiations. Petitioner concedes that he failed to timely file this action, but argues that the merits of his claims are nevertheless properly before the court because: (1) the one-year limitation period is an unconstitutional suspension of the writ; and (2) the fundamental miscarriage of justice exception to procedural default excuses his untimely filing.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act ("AEDPA") was enacted on April 24, 1996. The Act provides that a one-year statute of limitations applies to federal habeas corpus actions filed by state prisoners. The one-year period runs from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
©) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1).
Petitioner argues that § 2244 should be interpreted to allow equitable tolling during the two-year time period in which Oregon allows its prisoners to commence PCR proceedings. Petitioner asserts that to do otherwise violates the Suspension Clause. The Ninth Circuit squarely rejected this argument in Ferguson v. Palmateer, 321 F.3d 820 (9th Cir.), cert. denied, 124 S.Ct. 328 (2003).
Petitioner next claims that because he is actually innocent of aggravated murder, the fundamental miscarriage of justice exception to procedural default excuses his untimely filing. Neither the Supreme Court nor the Ninth Circuit has ever held that a habeas petitioner who breaches AEDPA's limitation period may overcome that procedural bar by proving his actual innocence.See Majoy v. Roe, 296 F.3d 770, 777 (9th Cir. 2002) (declining to resolve whether actual innocence can excuse an untimely petition). Even assuming a showing of actual innocence could excuse the timeliness bar, and further assuming petitioner has offered "new" evidence sufficient to initiate the fundamental miscarriage of justice analysis, he has not demonstrated that he is actually innocent of Aggravated Murder.
In Schlup v. Delo, 513 U.S. 298 (1995), the Supreme Court addressed the process by which state prisoners may prove "actual innocence" so as to excuse a procedural default. The Court explained that in order to be credible, a claim of actual innocence "requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial."Id. at 324; Downs v. Hoyt, 232 F.3d 1031, 1040 (9th Cir. 2000), cert. denied, 121 S.Ct. 1665 (2001). Ultimately, petitioner must prove that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. Schlup, 513 U.S. at 327;Bousley v. United States, 523 U.S. 614, 623 (1998); Downs, 232 F.3d at 1040.
Petitioner directs the court to the contents of his affidavit as illustrative of his temporary insanity at the time of the murder. In order to mount a successful insanity defense in Oregon, a defendant must show that he has a mental disease or defect that caused him to lack substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. O.R.S. 161.295. Petitioner offers his own affidavit as "new" evidence supporting this defense.
According to petitioner, Novakowski had been sexually involved with petitioner's minor nieces, a fact which was particularly infuriating to petitioner due to his own childhood history as a victim of sexual abuse. During a family barbecue at petitioner's uncle's home, Novakowski was accused of abusing the girls but "had nothing to say about it" and left the gathering to buy cigarettes. Affidavit of Travis Petersen, p. 7. When Novakowski returned, petitioner told his uncle that he "would take care of it for him." Id. "Everybody put in their two cents about what should be done with Novakowski and how." Id.
Petitioner then discussed the forthcoming murder with his uncle and girlfriend. Id. His uncle gave him "plastic trash bags and told me to kill [Novakowski], then cut off his head and hands so that [Novakowski] could not be identified." Id at 7-8. Petitioner then convinced the victim to go for a walk, and, with his girlfriend along, "walked off the back of the property and went down by the canal and across the railroad tracks." Id at 8. The three "walked for a long time" and petitioner "had time to calm down and think." Id. The three even stopped to watch a thunderstorm pass. Id.
At that point, petitioner attests that he "had decided that [Novakowski] was not worth killing" and therefore told him to leave. Id. When Novakowski responded with taunts, petitioner knocked him down, cut him with a knife, cut a tic-tac-toe game into his chest and severed his genitalia from his body. Id. Petitioner and Novakowski then "had a very weird conversation, talking about when we were friends, and he actually smoked a cigarette." Id at 9. Petitioner further attests that he and the victim then discussed what would be the fastest way for the killing to proceed, and the two of them decided that cutting an artery in his neck would be the best way. Id. However, "when he did not bleed to death right away [petitioner] stabbed him quickly in the chest, and he died." Id. Petitioner then cut the head and hands from Novakowski's body and disposed of the rest of the body. Id. After bringing the head and hands back for his uncle to see, he disposed of those as well. Id.
Although petitioner argues he was in a crazed state during the murder, his own affidavit reveals the calculating manner in which he took Novakowski's life. As respondent correctly notes, with the exception of the viciousness of the crime itself, petitioner presents no evidence that he was suffering from a mental disease or defect. He was angry about the sexual abuse of his young nieces, but had more than enough time to cool off and gather his thoughts before torturing, killing and dismembering his victim. The fact that he discussed the ultimate method of execution with his victim after the two had time to reflect upon their childhood friendship and smoke a cigarette shows that petitioner was not in a crazed state when he killed Novakowski. In light of the evidence presented, it cannot be said that no reasonable juror would have convicted him of aggravated murder had he presented an insanity defense on these facts.
Petitioner also argues that he is actually innocent of aggravated murder because he suffered from an extreme emotional disturbance as defined in ORS 163.135(1). He claims that such a finding would have resulted in a lesser conviction such a manslaughter. Under Oregon law, extreme emotional disturbance is not a defense to aggravated murder, thus petitioner cannot use it to prove his innocence. State v. Willie, 317 Or. 487, 492 (1993) (holding that extreme emotional disturbance "is a defense to the crime of intentional murder, and to no other crime"); Kibble v. Baldwin, 135 Or. App. 540, 541 (1995).
For the foregoing reasons, even if the fundamental miscarriage of justice exception to procedural default could excuse the untimely filing of a habeas corpus petition, petitioner is unable to demonstrate that he is actually innocent of Aggravated Murder. Accordingly, the Petition is barred by AEDPA's one-year limitation period.
CONCLUSION
For the reasons identified above, the Petition for Writ of Habeas Corpus (#2) is DENIED and this action is DISMISSED.
IT IS SO ORDERED.