Opinion
Civil No. 00-845-ST
August 26, 2002
Barbara L. Creel, Assistant Federal Public Defender, Portland, Oregon, for Petitioner.
Hardy Myers, Attorney General, Douglas Y.S. Park, Assistant Attorney General, Salem, Oregon, for Respondent.
FINDINGS AND RECOMMENDATION
Petitioner brings this action for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner seeks to challenge his underlying no contest pleas on the basis that his Fifth, Sixth and Fourteenth Amendment rights were violated. For the reasons which follow, the Petition for Writ of Habeas Corpus (docket #2) should be denied.
BACKGROUND
Petitioner was charged in a six-count secret indictment on January 21, 1997, arising out of incident which occurred on September 12, 1996. On June 9, 1997, during a status hearing, petitioner asked the court to appoint another attorney to represent him. Petitioner claimed that his attorney had been both dilatory and disrespectful, and disapproved of counsel's advice to enter into a plea bargain. After a brief inquiry into these matters, the court denied the motion for a new attorney.
Petitioner ultimately entered a plea of "no contest" to one count of Burglary in the First Degree and one count of Conspiracy to Commit Assault in the First Degree. The other four charges were dismissed. On July 7, 1997, the trial court sentenced petitioner to 60 months in prison for the Conspiracy to Commit Assault conviction and a concurrent 36-month sentence for the Burglary conviction. Petitioner timely appealed his convictions, but the Oregon Court of Appeals affirmed the trial court without opinion and the Oregon Supreme Court denied review. State v. Stratton, 161 Or. App. 667, 984 P.2d 959 (1999), rev. denied 330 Or. 120, 6 P.3d 1097 (2000). Petitioner did not file a petition for post-conviction review.
The Petition for Writ of Habeas Corpus alleges four grounds for relief. Specifically, petitioner alleges that he was denied:
1. a fair trial in violation of the Sixth and Fourteenth Amendments when the trial court denied his motion to substitute counsel;
2. due process in violation of his Fifth and Fourteenth Amendment rights when the trial court falsely advised him of the nature of the charges and potential penalties;
3. due process in violation of the Fifth and Fourteenth Amendments when the trial court failed to rectify a misrepresentation of law which resulted in petitioner entering his no contest plea; and
4. due process in violation of the Fifth and Fourteenth Amendments when the Oregon Court of Appeals failed to correct the defects of the lower court hearings.
In his supporting memorandum, petitioner voluntarily dismisses Grounds Two, Three and Four. Memorandum in Support (docket #33), p. 2. Respondent asks the court to deny relief on the remaining Ground One because it was never fairly presented to the Oregon courts, is procedurally defaulted, and lacks merit.
DISCUSSION I. Exhaustion and Procedural Default
A 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 habeas corpus claims pursuant to 28 U.S.C. § 2254. Rose v. Lundy, 455 U.S. 509, 519 (1982). A state prisoner does not fairly present his federal claims to a state court unless he references specific provisions of the federal constitution or statutes or cites to federal case law. Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000) as modified by 247 F.3d 904 (9th Cir. 2001).
A petitioner also must present his claim in a procedural context in which its merits will be considered. Castille v. Peoples, 489 U.S. 346, 351 (1989). If a state "mandates a particular procedure to be used to the exclusion of other avenues of seeking relief," the correct avenue must be fully exhausted. Turner v. Compoy, 827 F.2d 526, 529 (9th Cir. 1987), cert. denied, 489 U.S. 1059 (1989). A petitioner is deemed to have "procedurally defaulted" his claim if he fails to comply with a state procedural rule or to raise the claim at the state level at all. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
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).
During his direct appeal, petitioner presented the Oregon Court of Appeals with a single ground for relief. He claimed the "trial court abused its discretion and deprived [petitioner] of effective assistance of counsel when it denied [petitioner's] motion for substitute counsel." Respondent's Exhibit 111, p. 9.
Petitioner reiterated this claim when petitioning the Oregon Supreme Court for review. Petitioner's Exhibit C, p. 1. This claim is the same as Ground One in this case.
However, respondent contends that Oregon's highest court could not consider the merits of this claim because petitioner was not entitled to directly appeal his convictions. Under Oregon law, a criminal defendant who pleads "guilty" or "no contest" may only appeal from that judgment if the sentence exceeds the maximum allowable by law or is unconstitutionally cruel and unusual. O.R.S. 138.050(1). The Oregon courts interpret this statute literally and will only review the propriety of a sentence; all other errors must be raised during collateral review. State v. Clevenger, 297 Or. 234, 683 P.2d 1360 (1984).
Petitioner's appellate counsel found no non-frivolous issues for appeal and filed a Balfour brief on petitioner's behalf which petitioner supplemented with a pro se appellant's brief.
The Balfour procedure provides that counsel need not ethically withdraw when faced with presenting the appellate court with only non-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." The defendant may then file the "Section B" segment of the brief containing any assignments of error he wishes. State v. Balfour, 311 Or. 434, 451-52, 814 P.2d 1069 (1991).
In response, the State focused its brief on the fact that petitioner's claim was not cognizable on direct appeal, citing both O.R.S. 138.050 and Clevenger. Here petitioner does not challenge the propriety of his sentence, but instead attacks the decision by the trial court not to appoint substitute counsel.
As previously noted, Oregon courts will only consider the merits of such a claim following a plea of "no contest" during collateral review proceedings.
Petitioner had an opportunity to file a petition for post-conviction relief prior to filing his habeas corpus petition, but elected not to do so. Respondent's counsel also "advised petitioner's counsel to advise petitioner to file for state post-conviction relief while there was still time available under the state's statute of limitations," but petitioner failed to do so. Reply to Petition (docket #56), p. 3, n. 4. Because petitioner presented his due process claim to the Oregon courts in a context in which its merits would not be considered, his Ground One claim was not properly exhausted. Since petitioner is no longer entitled to pursue state court remedies, his claim is procedurally defaulted. Petitioner has not demonstrated cause and prejudice, or made a colorable showing of actual innocence sufficient to excuse his procedural default.
As petitioner's sole ground for relief is defaulted, the court declines to address the merits of the Ground One claim.
RECOMMENDATION
For the reasons identified above, the Petition for Writ of Habeas Corpus (docket #2) should be DENIED, and this proceeding should be DISMISSED.
SCHEDULING ORDER
Objections to these Findings and Recommendation(s), if any, are due September 16, 2002. If no objections are filed, the Findings and Recommendation(s) will be referred to a district court judge and go under advisement on that date.
If objections are filed, the response is due no later than October 3, 2002. When the response is due or filed, whichever date is earlier, the Findings and Recommendation(s) will be referred to a district court judge and go under advisement.