Opinion
3:21-cv-00282-CL
04-20-2023
JASON EDWARD STIDHAM, Petitioner, v. SUE WASHBURN, Respondent.
FINDINGS AND RECOMMENDATION
MARK D. CLARKE, UNITED STATES MAGISTRATE JUDGE
Petitioner, an individual in custody at Eastern Oregon Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. Because Petitioner's claims are procedurally defaulted or otherwise do not involve an unreasonable application of clearly established federal law, the Petition for Writ of Habeas Corpus (ECF No. 1) should be denied.
BACKGROUND
In late 2014, a Washington County grand jury indicted Petitioner for one count of first-degree aggravated theft and seven counts of second-degree burglary in connection with burglaries of seven businesses in a Tualatin strip mall. Resp't Ex. 101 at 28-29 (ECF No. 23-1). At the time of his indictment, Petitioner had also been indicted in Clackamas County for several counts of burglary, theft and unlawful use of a vehicle, see id. 101 at 31-35, and he was serving an eight to twenty-year sentence in a Nevada prison for various felony crimes, Resp't Exs. 103 at 9, 14; 108 at 22; 123. Petitioner was extradited from Nevada to Oregon and arraigned on the Washington County charges in August 2015. Resp't Ex. 108 at 18-25.
On August 19, 2015, Petitioner met with trial counsel and told him he wanted a global resolution of his Washington County charges and his then-pending Clackamas County charges, and wanted to exercise his right to a speedy trial. Resp't Ex. 120 at 1.
On August 27, the Washington County prosecutor extended a written plea offer that required Petitioner to plead guilty to four counts of second-degree burglary in Washington County for an agreed-upon sentence of sixty months to be served concurrently with his Nevada sentence. Id. at 1-2; Resp't Ex. 108 at 46. The offer stated that it would expire at a pre-trial conference on August 31, but, in an email to trial counsel, the prosecutor stated that the offer would remain open until September 10. See Resp't Ex. 108 at 46; Pet. at 32.
Soon thereafter, Petitioner and trial counsel met to discuss the offer. Petitioner asked trial counsel “to investigate the discovery and physical evidence” and to give him a copy of it. Pet. at 6.
At the pre-trial conference, trial counsel represented to the court that he had received the plea offer and that Petitioner “hope[dj to try and get some type of global resolution.” Resp't Ex. 103 at 9. The court asked trial counsel whether “that means it's sort of a rejection, maybe a potential counter offer,” and trial counsel replied, “Correct.” Id. The court also addressed outstanding discovery issues and addressed Petitioner directly, confirming that he had an opportunity to review the plea offer with counsel but had not viewed any discovery. Id. at 9-11; see also Pet. at 6.
On September 4, Petitioner spoke with trial counsel by phone. Resp't Ex. 127 at 13. He asked whether trial counsel had received discovery for Count 8 - relating to the burglary of Ace Cash Express - and stressed that he could not make any legal decisions without “full discovery.” Resp't Ex. 126 at 3. Petitioner again called but could not reach trial counsel on September 7, 10 and 14. Id.
They spoke next on September 17, at which time the August 27 plea offer was “off the table.” Id. Petitioner again asked trial counsel if he had a chance to view the evidence or get discovery for Count 8, and counsel said he was “working on it.” Id., During this time, trial counsel worked to negotiate a global resolution. Resp't Ex. 120 at 3-4.
On October 1, Petitioner told trial counsel that “he would resolve the case for 50 months with good time/eamed time and concurrent with his Nevada case.” Resp't Ex. 120 at 3. At a case management conference the next day, Petitioner was offered two alternative plea offers:
(a) petitioner could plead guilty to offenses in both Washington County and Clackamas County and agree to sentences which, assuming he received a 20% good time reduction, would require him to serve an additional 60 months in prison in Oregon after he completed his Nevada prison sentences in 2022;
(b) petitioner could plead guilty to four counts in Washington County with open sentencing and the state would cap its consecutive sentencing recommendation at 80 months.Resp't Ex. 110 at 3-4. Petitioner rejected both offers because he had not received full discovery on his Washington County charges and did not have “any idea what the charges were in Clackamas County.” Resp't Ex. 126 at 3.
At a second case management conference on October 6, Petitioner received additional discovery on Count 8, but by then “all deals [were] off the table.” Resp't Ex. 126 at 4. That same day, the parties attended a settlement conference but were “unable to reach a settlement agreeable to” Petitioner. Resp't Ex. 120 at 4. A trial date was set for October 13,2015. Resp't Ex. 103 at 23.
After a jury trial, Petitioner was convicted on all eight counts and sentenced to 60 months in prison, with 30 months to be served consecutive to the prison sentence he was then serving in Nevada. Resp't Exs. 101 at 5-12; 103 at 365-68.
Petitioner filed a direct appeal raising non-unanimous jury challenges that are not at issue here, and the State moved for summary affirmance. Resp't Exs. 104, 105. The Oregon Court of Appeals granted the State's motion. Resp't Ex. 106.
Petitioner next filed for post-conviction relief (“PCR”). See Resp't Ex. 108 at 4-9. Appointed counsel filed an Amended Petition raising a claim of ineffective assistance of counsel, asserting trial counsel failed to:
(1) Exercise an authorization which allowed him the opportunity to personally view the state's evidence on Counts 1-8 of the indictment;
(2) File a motion to compel production of color copies of crime scene and evidentiary photographs taken by law enforcement agencies regarding petitioner's indicted offenses and provide the same to petitioner;
(3) Adequately communicate with petitioner about his case, his charged offenses and the plea offers....; .
(4) Timely provide petitioner with discovery materials on Count 7 which [trial counsel] had received by email from the state on October 2,2015.Resp't Ex. 109 at 10-11. As relevant here, Petitioner argued that his failure to accept the August 27 plea offer was “the result of [trial counsel's] failure to take reasonable steps to obtain and share discovery materials with petitioner before expiration of that offer.” Resp't Ex. 110 at 11. After a brief evidentiary hearing at which Petitioner testified, the PCR court denied relief. Resp't Exs. 127, 128.
Petitioner appealed, alleging the PCR court erred in denying his claim that trial counsel was ineffective for “failing to adequately advise petitioner regarding the consequences of turning down the state's [August 27] plea offer.” Resp't Ex. 129 at 7. The state moved for summary affirmance, arguing that the appeal did not present a substantial question of law. Resp't Ex. 130. The Oregon Court of Appeals granted the motion, Resp't Ex. 132, and the Oregon Supreme Court denied review, Resp't Ex. 133,134.
On February 23, 2021, Petitioner filed a pro se habeas corpus petition in this Court. Petitioner asserts four grounds for relief:
After the pro se petition was filed, the Court appointed counsel to represent Petitioner herein.
Ground One: Discovery violation, trial counsel was ineffective and inadequate for failing to provide discovery and communicate with petitioner regarding the discovery throughout his case, which resulted in petitioner's conviction.
Ground Two: Trial counsel was ineffective and inadequate for failing to advise petitioner regarding the state's Aug 27, 2015 plea offer, and failing to answer calls and to communicate with petitioner during crucial time of plea negotiations, which resulted in the expiration of the Aug 27,2015 plea offer.
Ground Three: Trial counsel was ineffective and inadequate for failing to utilize the state's authorization to view evidence.
Ground Four: Trial counsel was ineffective and inadequate for failing to request additional D.N.A. analysis on the physical evidence.See Pet. at 5-18.
Respondent urges this Court to deny habeas relief, arguing that Petitioner's claims are procedurally defaulted or otherwise were denied in a state-court decision that is entitled to deference. Resp. to Pet. at 5-15 (ECF No. 21).
DISCUSSION
L Exhaustion and Procedural Default
A. Legal Standard
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 6 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 petitioner 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. Castille v, Peoples, 489 U.S. 346, 351 (1989).
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. Edwards v. 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).
B. Analysis
In Ground One, Petitioner alleges that trial counsel rendered ineffective assistance of counsel for “failing to provide discovery and communicate with Petitioner” about discovery. Pet. at 5. Petitioner alleges in Ground Three that trial counsel was ineffective for “failing to utilize the state's authorization to view evidence.” Id. at 15. And, in Ground Four, Petitioner alleges trial counsel was ineffective for “failing to request additional D.N.A. analysis on the physical evidence.” Id. at 17.
Petitioner raised claims similar to Grounds One, Three and Four in his PCR proceedings, but he did not renew them on PCR appeal as required for exhaustion purposes. See Resp't Exs. 108, 109, 129. Because Petitioner can no longer present Grounds One, Three and Four to the Oregon Court of Appeals, the claims are procedurally defaulted. See OR. R. APP. P. 9.05(2) (instructing that petition for review to the Oregon Supreme Court must be filed within thirty-five days of the decision by the Oregon Court of Appeals). Petitioner provides no argument or authority on which this Court might excuse the defaults. Accordingly, the district judge should deny habeas relief as to Grounds One, Three and Four.
II. The Merits
A. Legal Standards
1. Deference to State-Court Decisions
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. When applying these standards, the federal court should review the “last reasoned decision” by a state court that addressed the issue. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).
2. Ineffective Assistance of Counsel
The Sixth Amendment provides defendants with the right to assistance of counsel in all criminal prosecutions, which implies the right to effective assistance of counsel. Missouri v. Frye, 566 U.S. 134,138 (2012). The “Sixth Amendment guarantees a defendant the right to have counsel present at all ‘critical' stages of the criminal proceedings.” Id. at 140 (quoting Montejo v. Louisiana, 556 U.S. 778,786 (2009)). Under well-established Supreme Court precedent, the Sixth Amendment right to the effective assistance of counsel extends to “the plea-bargaining process” and the decision whether to accept or reject a plea offer. Lafler v. Cooper, 566 U.S. 156,162 (2012) (“During plea negotiations defendants are entitled to the ‘effective assistance of competent counsel.'”); Frye, 566 U.S. 134, 145 (2012) (holding that “defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused”). Defense counsel generally “has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” Frye, 566 U.S. at 145. Counsel is not required to “discuss in detail the significance of a plea agreement,” or “strongly recommend the acceptance or rejection of a plea offer.” Turner v. Calderon, 281 F.3d 851, 880-81 (9th Cir. 2002) (citations omitted).
The Supreme Court has established a two-part test to determine whether a petitioner has received ineffective assistance of counsel. First, the petitioner must show that his counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 686-687. 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, the petitioner must show that his 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. A reasonable probability is one which is sufficient to undermine confidence in the sentence petitioner received. Id. at 696. 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.” Knowles v. Mirzayance, 556 U.S. Ill. 122 (2009).
B. Analysis
Petitioner alleges in Ground Two that trial counsel was ineffective for failing to advise him about the State's August 27 plea offer, and “failing to answer calls, and to communicate with petitioner during [the] crucial time of plea negotiations.” Pet. at 12. Petitioner raised this claim in his PCR proceedings. See Resp'tExs. 109, 110, 129.
On PCR appeal, the State moved for summary affirmance pursuant to Or. Rev. Stat. § 138.660, arguing that Petitioner failed to argue that he was prejudiced by counsel's alleged ineffectiveness. Resp't Ex. 130 at 2. The Oregon Court of Appeals granted the motion finding that “petitioner's brief does not present a substantial question of law as to prejudice.” Resp't Ex. 132 Respondent argues that the district court should find that this claim is procedurally defaulted because the Oregon Court of Appeals “did not necessarily consider the merits” of Petitioner's claim. Resp. to Pet. at 8. However, pursuant to Or. Rev. Stat. § 138.660, a dismissal of the appeal “constitute[s] a decision upon the merits of the appeal.” Or. Rev. Stat. § 138.660; see also Buckman v. Hall, No. CV 07-141-HU, 2009 WL 1476703, at *5 (D. Or. May 26, 2009) (rejecting argument that Court of Appeals' summary affirmance due to failure to present a substantial question of law on appeal supported a finding of procedural default).
In opposition, the State submitted an affidavit from trial counsel. Resp't Ex. 120. According to trial counsel, Petitioner “stated that he wanted a global resolution, and wanted to exercise his speedy trial rights to get back to Nevada as soon as possible.” Id. at 1. He advised Petitioner that “not waiving his speedy trial rights may be to his detriment, especially with the seriousness of the charges.” Id. When trial counsel received the August 27 plea offer, he reviewed it with Petitioner. Id. at 1-2. Trial counsel noted that Petitioner “wanted a global resolution with the Clackamas County case or was willing to go to trial.” Id. at 3. He recounted that Petitioner “specifically said that he didn't care if he lost at trial or got a ton of prison time because, in his words T got nothing but time.'” He affirmed that Petitioner “was not, however, willing to waive his speedy trial rights despite knowing that he did not have the discovery yet and was looking at significant time in prison if he lost at trial.” Id.
Trial counsel recounted that he received some discovery on September 1, and, upon review, “found that the evidence against [Petitioner] was very strong.” Id. Thereafter, he drafted a memo summarizing the charges and evidence supporting them. Id. He recalled that he next spoke to Petitioner on September 21 about still-outstanding discovery on Count 8 - relating to the burglary of Ace Cash Express. Id. Between August 28 and October 2, counsel emailed or spoke with prosecutors several times regarding a potential global resolution. Id. at 2-4.
At the PCR hearing, Petitioner testified that counsel outlined the August 27 plea offer with him prior to the August 31 pre-trial conference. Resp't Ex. 127 at 10. If he accepted the offer, Petitioner knew his Washington County sentence would run concurrent to his Nevada sentence, and he would serve no additional time. Id. He testified that he knew the offer had an initial expiration date of August 31, but that it would “remain available while we explore[d] the possibility of a global resolution.” Id. at 12. He told counsel that the offer “looked fair,” and he was “definitely interested in accepting it,” but he “didn't want to just blindly go forward” without discovery. Id. at 13. Petitioner testified that, had he known he had no right to discovery prior to accepting the plea, he would have “asked [counsel] to immediately accept the offer.” Id. at 15.
The PCR court denied Petitioner's ineffective assistance of counsel claim. Resp't Ex. 128 at 2-3. In a written judgment, the PCR court made several findings of fact in supporting its decision:
A. [Petitioner] knew of the original [Washington County] offer but wanted a global offer to include [Clackamas County], As shown in [Defendant's PCR Trial Exhibit] 107, he knew when that offer expired.
B. He had not yet been arraigned in [Clackamas County] and was unwilling (until days before trial) to waive his 60 days in [Washington County].
C. [Trial counsel] sent [Petitioner] a very good summary of the law and evidence.
D. [Petitioner] never told his [trial counsel] to accept the offer. A global offer was made. [Petitioner] states that he was unwilling to take that offer since he didn't know what he would be charged with in [Clackamas County] and didn't know what evidence [Washington County] had on Count 8. Neither of those issues was really a bar to accepting the plea. His [Clackamas County] attorney could have agreed to specific charges. [Petitioner] argues that he had pages 1-142 of the discovery. Those [Washington County] reports contained enough evidence to convict him of [Counts] 1-7. The plea offer would have meant [Count] 8 would have been dismissed (he had only to plead to [four counts of second-degree burglary]). That deal was for 60 months, totally concurrent to his Nevada sentence. Yet [Petitioner] never accepted it. He told his [trial counsel] he would accept 50 months total, all concurrent. He never got such an offer.
E. The cases in both counties were strong. DNA, photos, [Petitioner] was stopped in the stolen truck full of stolen property. [Trial counsel] properly advised Petitioner. [Petitioner] chose the outcome. There was no inadequacy in the representation and no prejudice. This ruling is on the merits, not on procedure.Id.
Based on the record, the PCR court decision was not objectively unreasonable. Petitioner's own testimony confirms that counsel presented him with the August 27 plea offer and discussed the terms of it with him, including when it would expire. See Resp't Ex. 127 at 10,12. Petitioner's testimony also establishes that he was considering the offer but was unwilling to make any decisions without discovery relating to his Washington County charges. Id. at 13. Thus, the PCR court reasonably found that counsel adequately informed Petitioner of the terms of the August 27 plea offer, including when it would expire, and Petitioner never instructed counsel to accept it. Because the PCR court's decision does not involve an unreasonable application of clearly established federal law, habeas corpus relief is not appropriate.
CONCLUSION
Based on the foregoing, the district judge should DENY the Petition for Writ of Habeas Corpus (ECF No. 1), and should DISMISS this proceeding, with prejudice. Petitioner has not made a substantial showing of the denial of a constitutional right, and therefore the district judge also should DENY a Certificate of Appealability. 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 have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered 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 die Magistrate Judge's recommendation.