Opinion
6:23-cv-01023-JE
06-17-2024
JOSHUA RAY RICHARDS, Petitioner, v. COREY FHUERE, Respondent.
Joshua Ray Richards 14316833 Oregon State Penitentiary Petitioner, Pro Se Ellen F. Rosenblum, Attorney General Nick M. Kallstrom, Assistant Attorney General Department of Justice Attorneys for Respondent
Joshua Ray Richards 14316833 Oregon State Penitentiary Petitioner, Pro Se
Ellen F. Rosenblum, Attorney General Nick M. Kallstrom, 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 Clackamas County convictions dated September 5, 2017. For the reasons that follow, the Petition for Writ of Habeas Corpus (#1) should be denied.
BACKGROUND
While on probation for a DUII he had committed six months earlier, Petitioner drove across the center line of a roadway and struck an oncoming vehicle containing five occupants. Four of those individuals suffered serious injuries, and the fifth person-a six-year-old child- died at the scene of the accident. A blood test administered at a hospital revealed that Petitioner had a blood alcohol content of .27%. As a result, the Clackamas County Grand Jury indicted him on one count of Manslaughter in the First Degree, three counts of Assault in the Second Degree, seven counts of Assault in the Third Degree, and one DUII count. Respondent's Exhibit 102.
On September 5, 2017, Petitioner entered into a plea agreement whereby he agreed to plead guilty to one count of Manslaughter in the First Degree, two counts of Assault in the Second Degree, two counts of Assault in the Third Degree, and the DUII charge. Respondent's Exhibit 103. The State agreed to drop the remaining counts within the indictment. Id. On the same day he signed his plea agreement, Petitioner entered his pleas in open court. The judge accepted his pleas and sentenced him to 180 months in prison. Respondent's Exhibit 104, pp. 16-21.
Petitioner initiated a direct appeal, but ultimately dismissed the case voluntarily. Respondent's Exhibits 105-107. He next filed for post-conviction relief (“PCR”) in Malheur County alleging that his guilty pleas were not knowing, voluntary, and intelligent. Respondent's Exhibit 109. He filed a Church motion in which he asked the PCR court to require his appointed attorney to raise additional claims on his behalf. Respondent's Exhibit 110. The PCR court denied the Church motion on the basis that counsel had acted reasonably with respect to the claims he had opted to raise. Respondent's Exhibit 112. Following a hearing, the PCR court denied relief on Petitioner's claims. Respondent's Exhibit 133.
In Church v. Gladden, 244 Or. 308, 311-21, 417 P.2d 993 (1966), the Oregon Supreme Court held that where a litigant wishes to pursue claims that his attorney refuses to pursue, he must inform the court of an attorney's failure to follow a legitimate request, and he may ask to have counsel replaced or ask the court to require the attorney to comply with the litigant's request.
Petitioner appealed the PCR court's decision, but his appellate attorney could not identify any non-frivolous issues. He therefore filed a Balfour brief on Petitioner's behalf that did not contain any claims. Respondent's Exhibit 134. Petitioner filed a Section B to the Balfour brief in which he raised two issues for the Oregon Court of Appeals' consideration: (1) whether the PCR court had erred when it denied his Church motion; and (2) whether the PCR court erred when it failed to inquire into his readiness for the PCR hearing. Respondent's Exhibit 135. The Oregon Court of Appeals affirmed the PCR court's decision without issuing a written opinion, and the Oregon Supreme Court denied review. Richards v. Cain, 322 Or.App. 614,519 P.3d. 901 (2022), rev. denied, 370 Or. 714, 523 P.3d 668 (2023).
The Balfour procedure provides that counsel need not ethically withdraw when faced with only frivolous issues. Rather, the attorney may file Section A of an appellant's brief containing a statement of the case sufficient to "apprise the appellate court of the jurisdictional basis for the appeal." State v. Balfour, 311 Or. 434, 451, 814 P.2d 1069 (1991). The defendant may then file the Section B segment of the brief containing any assignments of error he wishes. Id at 452.
On July 13, 2023, Petitioner filed this 28 U.S.C. § 2254 habeas corpus case in which he raises a single ground for relief: whether he entered his guilty pleas in a knowing, voluntary, and intelligent fashion. Petition (#1), pp. 5-8. Respondent asks the Court to deny relief on the Petition because Petitioner failed to fairly present this ground for relief in Oregon's state courts, thereby leaving it procedurally defaulted for habeas corpus review. Although Petitioner's supporting memorandum was due May 13, 2024, he has not filed such a brief.
DISCUSSION
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, 915916 (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).
In this case, Petitioner initially raised a PCR claim that his pleas were not knowing and voluntary, but he abandoned the claim during his PCR appeal so as to raise claims involving state procedural issues.3Respondent's Exhibits 134, 135, 137. He therefore did not fairly present the ground for relief he raises in this habeas case. Because the time for raising the claim during his PCR appeal passed long ago, it is now procedurally defaulted and ineligible for habeas corpus review.
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, 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.