Lundy v. Nooth

Filing 41

Opinion and Order. Petitioner's Petition for Writ of Habeas Corpus 2254 2 is DENIED. The Court declines 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). Ordered and signed on 01/22/2010 by Judge Owen M. Panner. (jw)

IN THE UNITED STATES D I S T R I C T COURT FOR THE D I S T R I C T OF OREGON REX A. LUNDY, Petitioner,
v.

CV. 0 7 - 1 5 1 3 - P A

OPINION AND ORDER

MARK NOOTH, Respondent.

HAROLD DUCLOUX, I I I Office of the Federal Public Defender 1 0 1 SW M a i n S t r e e t , S u i t e 1 7 0 0 P o r t l a n d , OR 9 7 2 0 4 Attorney for Petitioner JOHN KROGER Attorney General LESTER R. HUNTSINGER Oregon Department of Justice 1 1 6 2 C o u r t S t r e e t , NE S a l e m , OR 9 7 3 0 1 Attorneys for Respondent

1 - OPINION AND ORDER

Panner, J u d g e . Petitioner, an inmate at Snake River Correctional Institution, brings t h i s habeas corpus a c t i o n pursuant t o 28 U.S.C. § 2254. challenges the legality of his 2000 state court He

convictions, For

a l l e g i n g he was denied the e f f e c t i v e a s s i s t a n c e of counsel.

the reasons set forth below, the Petition for Writ of Habeas Corpus (#2) i s DENIED.

BACKGROUND
I n May 2 0 0 0 , in the Second P e t i t i o n e r was i n d i c t e d on three counts of Rape (Counts

Degree

1,

2,

and

3),

Unlawful

Sexual

Penetration in the Second Degree First Degree (Counts 5, 6, and 7),

(Count 4),

Sexual Abuse in the for acts

and Sodomy (Count 8)

with a 12 y e a r o l d g i r l who l i v e d next door t o him.

Petitioner

admitted to police that he had had sexual relations with the victim a t l e a s t once, and t h a t he loved her and intended t o marry her when he was released from prison. (#18, Resp. at 2; # 3 3 , Mem. a t 2 . )

The victim was prepared to t e s t i f y she had engaged in sex with Petitioner on five or six different occasions. at 5.) On t h e m o r n i n g s e t f o r t r i a l , defense counsel informed the

(Id.; #20, Ex. 104

t r i a l court Petitioner wished to waive his right to a jury t r i a l and wished to have the court decide his case. (#20, Ex. 104 a t 2.)

After a recess, the parties informed the court they had reached a plea agreement Counts 1 and and that 2, Rape Petitioner would be pleading guilty to in the Second Degree, with the State

2 - O P I N I O N AND ORDER

dismissing a l l r e m a i n i n g c o u n t s ; a n d t h a t t h e S t a t e w o u l d a s k f o r consecutive terms of imprisonment under Measure 11, for a t o t a l of 150 months, and P e t i t i o n e r was free to argue for concurrent terms, for a total of 75 months. when the
(Id.

at

3.) if

Petitioner he

responded the

affirmatively

court

asked

understood

negotiations that had taken place and i f he understood that by entering a g u i l t y plea he was waiving his c o n s t i t u t i o n a l r i g h t s to have a t r i a l .
(Id. )

Petitioner also affirmed that he understood

the terms of the plea and that he could be subject to consecutive terms of imprisonment. Count One,
(Id. )

When a s k e d w h a t h i s p l e a w a s t o and when asked what h i s
(Id. )

Petitioner replied "guilty",

p l e a w a s t o C o u n t Two, P e t i t i o n e r r e p l i e d " g u i l t y . " Counsel requested as informed part of the the court plea that was a condition

Petitioner occur

that

sentencing

immediately.

The t r i a l court asked P e t i t i o n e r t o confirm t h i s was
(Id.)

his request, which he did.

Following counsel's argument for

concurrent terms, the t r i a l court imposed two consecutive 75-month terms for a t o t a l of 150 months imprisonment, noting the v i c t i m ' s vulnerability and Petitioner's criminal history.
(Id.

at 18.)

Petitioner directly appealed his convictions, but the Oregon Court of Appeals affirmed without opinion. Or.App. 522, 19 P.3d 387 (2000). the Oregon Supreme Court.
State v. Lundy,

171

Petitioner did not seek review by

(#20, Exs. 105, 106.)

3 - OPINION AND ORDER

Petitioner

filed

for

post-conviction

relief

(PCR)

raising

numerous claims of ineffective assistance of counsel, and claims of t r i a l c o u r t e r r o r a n d p r o s e c u t o r i a l m i s c o n d u c t , b u t t h e PCR c o u r t denied relief. (#20, Ex. 121.) Petitioner appealed advancing two

claims of ineffective assistance of counsel, but the Oregon Court of Appeals summarily affirmed, and the Oregon Supreme Court denied review. (#20, Exs. 122-127.)

P e t i t i o n e r f i l e d t h e i n s t a n t p e t i t i o n r a i s i n g 14 c l a i m s o f ineffective assistance of trial counsel, assistance of appellate counsel, 2 1 claim of ineffective of prosecutorial

claims

misconduct, and 1 claim of t r i a l court error.

(#2, Pet. at 4-5.)

In his memorandum, P e t i t i o n e r argues t r i a l counsel was d e f i c i e n t in failing to investigate witnesses and in failing to investigate that P e t i t i o n e r was under the influence of Mellaril p r i o r to allowing him to waive his right to a jury t r i a l and enter a plea of guilty. (#33, Mem. at 10.) Respondent asserts the claims not argued in

P e t i t i o n e r ' s memorandum were not r a i s e d t o the Oregon Supreme Court in appellate proceedings Resp. at 3, and are procedurally defaulted, (#18,

6-7), and that In failing to argue the claims in his

memorandum, P e t i t i o n e r has not met h i s burden of proof for habeas relief. (#38, Reply at 4-5.) As to the claims the
§

argued

in

Petitioner's

memorandum,

Respondent

asserts

state

court and

f i n d i n g s a r e e n t i t l e d t o deference under 28 U.S.C.
(e) (1) .

2254(d)

(#18 a t 7.)

4 - OPINION AND ORDER

DISCUSSION I. STANDARDS
Under the Antiterrorism and Effective Death Penalty Act

("AEDPA"), a habeas p e t i t i o n e r whose claim was adjudicated on the merits in state court is not entitled to relief in federal court unless he demonstrates that the state court's adjudication: (1) r e s u l t e d i n a d e c i s i o n t h a t was c o n t r a r y t o , or clearly invol ved an unreasonable application of, established Federal law as determined by the Supreme Court of the United States; or (2) r e s u l t e d in a decision t h a t was 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). In construing t h i s provision the Supreme Court stated: "[I]t

seems clear that Congress intended federal judges to attend with the utmost care to state court decisions, including all of the

reasons supporting their decisions, before concluding that those proceedings were infected by constitutional error sufficiently

serious to warrant the issuance of the writ." 529 u.S. 362, 386 (2000).

Williams v. Taylor,

"We a l l a g r e e t h a t s t a t e c o u r t j u d g m e n t s

must be upheld unless, after the closest examination of the state court judgment, a federal court is firmly convinced that a federal constitutional right has been violated."
Id.

at 389.

The l a s t

reasoned decision by the state court i s the basis for review by the federal court.
See Ylst v. Nunnemaker,

501

u.S.

797,

803-04

5 - OPINION AND ORDER

(1991).

T h e d e c i s i o n o f t h e s t a t e PCR t r i a l c o u r t i s t h e b a s i s f o r

review in the instant proceeding. (1) Contrary to, or unreasonable established Federal law application of clearly

"'Clearly established Federal law' under

§

2254 (d) (1)

is the

governing legal principle or principles set forth by the Supreme Court at the time the state court renders i t s decision." v. Andrade, 538 u.S. 63, 71 (2003). Lockyer

C i r c u i t c o u r t law may be used

as guidance in determining whether a state court decision i s an unreasonable application of the law, but not for purposes of

determining what the law i s . 974

Lambert v. Blodgett, 126 S.Ct. 484

393 F.3d 943,

(9th Cir. 2004), cert. denied,

(2005).

A state court decision is "contrary to" clearly established Federal law i f "the state court applies a rule that contradicts the governing law set forth in [Supreme Court] court confronts
a

cases or i f the state that are materially Court and

set a

of

facts of

indistinguishable

from

decision

the

[Supreme]

nevertheless arrives at a r e s u l t different from [the Supreme Court] precedent." Lockyer, 538 u.S. a t 73 ( i n t e r n a l quotations omitted).

A state court decision i s an "unreasonable application" of clearly established the Supreme Court law when "the state court but

identifies

correct

governing

legal

principle

unreasonably applies that principle to the facts of the [ ] case." Lambert, 393 F.3d a t 974 (citing Williams.) The s t a t e c o u r t ' s Id. (emphasis

application of law must be objectively unreasonable. 6 - O P I N I O N AND ORDER

added) .

"Under

§

2254(d) ' s

'unreasonable application' clause, a

f e d e r a l habeas c o u r t may not i s s u e the w r i t simply because t h a t court concludes in i t s independent judgment that the state court decision applied of [the law] law incorrectly. is different An from

unreasonable
an

application

federal

incorrect

application of federal law." 24-25 (2002),

Woodford v. V i s c i o t t i , 537 U.s. 19,
537 U.s. 1149 (2003) (internal

rehearing denied,

citations omitted).

" [ I ] t i s the habeas a p p l i c a n t ' s burden to show

that the s t a t e court applied [the law] to the facts of his case in an obj ecti vely unreasonable manner." (2)

Id.

(emphasis added) .

Law g o v e r n i n g c l a i m s o f i n e f f e c t i v e a s s i s t a n c e c o u n s e l

Generally,

Strickland v.

Washington,

466

U.s.

668

(1987),

governs claims of ineffective assistance of counsel. be granted under

For r e l i e f to prove 1) that of

Strickland,
fell

a

petitioner must an objective

counsel's

performance

below

standard

reasonableness and, 2) t h a t t h e r e i s a reasonable p r o b a b i l i t y t h a t , but for counsel's unprofessional errors, the result of the

proceeding would have been different. 695 ( 2002) ;

Bell v. Cone, 535 U.s. 685,
U. S . 362 , 3 9 0 - 91 ( 2 0 0 0) ;

Wi 1 1 i am s
466 U.s.

v.

Ta y 1 o r ,

52 9

Strickland,

687-88.

"Not every error that conceivably

could have influenced the outcome undermines the r e l i a b i l i t y of the resul ts of the proceeding" and "every effort eliminate the distorting effects of hindsight." [must] be made to

Id. at 690, 693.

"The reasonableness of counsel's performance i s to be evaluated

7 - OPINION AND ORDER

from c o u n s e l ' s p e r s p e c t i v e a t t h e t i m e o f t h e a l l e g e d e r r o r a n d i n light of all the circumstances, and the standard of 477 U.S. review is 365, 1036 381 (9th an

highly deferential."
(1986);

Kimmelman v.

Morrison,

see also Hendricks v.
( " [U] n d e r the

Calderon,
of

70 F.3d 1032,

Cir.

1995)

rule

contemporary

assessment,

a t t o r n e y ' s a c t i o n s must be examined according t o what was known and reasonable a t the time the attorney made his c h o i c e s . " ) .

Hill v.

Lockhart,

474 U.S.

52

(1985),

established that the

principles articulated in Strickland apply in the context of a guilty plea, but that to prevail a Petitioner has the burden of

showing c o u n s e l ' s advice was not "within the range of competence demanded of attorneys in criminal cases,"

I d . a t 5 6 ( c i t i n g McMann
and that there was a

v.

Richardson,

397

U.S.

759 that

(1970)), "but

"reasonable

probability"

for"

counsel's

deficient

representation he would not have pleaded guilty.
II . C L A I M S NOT ADVANCED I N MEMORANDUM

Id. at 59.

Pursuant t o 28 U.S.C. § 2248, " [ t ] h e a l l e g a t i o n s of a r e t u r n to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, i f not traversed, shall be

accepted as true except to the extent that the judge finds from the evidence that they are not true." find Petitioner is not entitled I have reviewed the record and to relief on the claims not

advanced in his memorandum.

8 - O P I N I O N AND ORDER

On h a b e a s r e v i e w ,

P e t i t i o n e r must show t h a t the s t a t e court

determination of his claims was contrary to or an unreasonable application of established Supreme Court precedent.
§

28

U.S.C.

2254(d).

By n o t a d d r e s s i n g c l a i m s i n h i s m e m o r a n d u m , P e t i t i o n e r

has failed to meet the burden of proof for habeas r e l i e f under
§

2254(d).

Accordingly,

r e l i e f on the claims Petitioner did not

advance i n h i s memorandum must be denied.
I I I . THE MERITS

The

claims

Petitioner

advances

in

his

memorandum

allege

counsel was d e f i c i e n t 1) i n f a i l i n g t o i n v e s t i g a t e witnesses, and 2) in failing to investigate that Petitioner was under the

influence of Mellaril, prior to allowing him to waive his right to a jury t r i a l and enter a plea of guilty. ( # 3 3 , Mem. a t 1 0 . )

To p r e v a i l i n t h e PCR p r o c e e d i n g s P e t i t i o n e r h a d t o s h o w t h e PCR c o u r t t h a t t r i a l c o u n s e l ' s p e r f o r m a n c e w a s d e f i c i e n t w h e n h e allowed Petitioner to enter into a plea agreement, and that, but for counsel's deficient performance, plea agreement and gone to t r i a l . he would have rejected the I

Upon r e v i e w o f t h e r e c o r d ,

conclude P e t i t i o n e r f a i l e d t o make the necessary showing and i t was neither contrary to nor an unreasonable application of Strickland f o r t h e PCR c o u r t t o d e n y r e l i e f . I n i t s j u d g m e n t d e n y i n g r e l i e f , t h e PCR t r i a l c o u r t m a d e t h e following findings: (1) [P]etitioner had a romantic relationship with the g i r l and that both he and the g i r l admitted that they had sexual intercourse.

9 - OPINION AND ORDER

(2) (3)

Additional investigation would not have disclosed evidence that would help petitioner. There were no witnesses t h a t could have t e s t i f i e d that p e t i t i o n e r did not do what he admitted he had done. P e t i t i o n e r ' s medications did not render him unable to understand the nature of the charges, the consequences of pleading guilty and the potential sentence he could receive i f convicted of a l l the charges. T h e PCR c o u r t f i n d i n g s a r e p r e s u m e d t o b e c o r r e c t

(4)

(#20, Ex. 121.)

absent Petitioner presenting clear and convincing evidence to the contrary. burden. While Petitioner argues the medication he received while in j a i l caused him t o be "mentally i n c a p a c i t a t e d when he waived his j u r y t r i a l a n d e n t e r e d i n t o a g u i l t y p l e a [ , ] " ( # 3 3 , Mem. a t 1 ) , h i s m e d i c a l r e c o r d s , h i s PCR d e p o s i t i o n , a n d t r i a l c o u n s e l ' s a f f i d a v i t do not support t h i s assertion. A review of the record before the 28 U.S.C. 2254 (e) (1). Petitioner has not met t h i s

PCR t r i a l c o u r t , i n c l u d i n g t h e p l e a p e t i t i o n P e t i t i o n e r s i g n e d , t h e transcript of the plea and sentencing proceeding in which

Petitioner affirmed he understood his plea and i t s consequences, t r i a l counsel's a f f i d a v i t c l e a r l y s t a t i n g there was no indication Petitioner's consequences ability of his to plea understand was the proceedings the or the of

impaired,

transcript

P e t i t i o n e r ' s PCR d e p o s i t i o n i n w h i c h h e a d m i t s n o t m e n t i o n i n g h i s medications to his attorney or the court, and Petitioner's medical records covering the time he was medicated while in j a i l which

10 - OPINION AND ORDER

mention l o n g s t a n d i n g a n g e r m a n a g e m e n t i s s u e s b u t m a k e n o m e n t i o n of cognitive impairment or confusion, leads to the conclusion the PCR c o u r t ' s f i n d i n g s a r e s u p p o r t e d b y t h e r e c o r d . P e t i t i o n e r f a i l e d t o s h o w t h e PCR c o u r t t h a t c o u n s e l ' s a d v i c e was not within the range of competence demanded of attorneys in criminal cases and that, have pleaded guilty. but for counsel's advice, he would not

Accordingly, i t was n e i t h e r contrary t o , nor

a n u n r e a s o n a b l e a p p l i c a t i o n o f S t r i c k l a n d f o r t h e PCR c o u r t t o d e n y relief. Petitioner's request for an evidentiary
§

hearing

is

unsupported and,

therefore, denied.

See 28 U.S.C.

2254(e) (2);

Insyxiengmay v. Morgan,

403 F.3d 657, 669-70 (2005).
CONCLUSION

Based on the Habeas Corpus (#2)

foregoing, is DENIED.

Petitioner's The Court

Petition for Writ of declines to issue a

Certificate of Appealability on the basis that Petitioner has not made a s u b s t a n t i a l showing of the denial of a c o n s t i t u t i o n a l r i g h t pursuant t o 28 U.S.C. I T I S SO ORDERED. DATED t h i s
§

2253 (c) (2).

)r1V d a y

of January, 2010.

~nMe. SPtanenser D i s t r i c t a U it d t

'1tt~lIte&L~
Judge

1 1 - OPINION AND ORDER