Kennaday v. Bartlett

Filing 43

Opinion and Order. Based on the foregoing, Petitioner's Petition for Writ of Habeas Cropus 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). Signed on 3/25/2010 by Judge Owen M. Panner. (dkj)

-.

I N THE UNITED STATES D I S T R I C T COURT FOR THE D I S T R I C T OF OREGON

MICHAEL J . KENNADAY, Petitioner, v. JAMES BARTLETT, Respondent.

CV. 0 7 - 6 2 5 8 - P A

O P I N I O N AND ORDER

KATHLEEN M. CORRELL A t t o r n e y a t Law 4 3 0 0 NE F r e m o n t , S u i t e 2 3 0 P o r t l a n d , OR 9 7 2 1 3 Attorney for Petitioner JOHN KROGER Attorney General JONATHAN W. DIEHL 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 - O P I N I O N AND ORDER

Panner, J u d g e . Petitioner, an inmate at Oregon State Correctional

I n s t i t u t i o n , b r i n g s t h i s habeas corpus a c t i o n pursuant t o 28 U.S.C.
§

2254.

He c h a l l e n g e s t h e l e g a l i t y o f h i s s e n t e n c i n g ,

alleging

ineffective assistance of appellate counsel.

For the reasons set

f o r t h b e l o w , t h e P e t i t i o n f o r W r i t o f H a b e a s C o r p u s ( # 2 ) i s DENIED.
BACKGROUND

In December 1998, P e t i t i o n e r was charged with ten felony sex offenses following allegations he sexually abused his step-daughter from 1993 to 1995. Following a t r i a l by jury in January 2000, the ( C o u n t s 7 a n d 9) b e c a u s e o f t h e The jury

t r i a l court dismissed two counts potential for jury confusion.

(Trial Tr. Vol 5 at 14.)

found Petitioner guilty of the remaining eight offenses: Counts 1, 2, 3, 4, 5, 6, 8, and 10. At sentencing on April 3, 2000, the

court orally imposed sentences as follows: What I'm going to do i s t h i s , in regard t o Counts 1, 2 and 4, which are the three Sex Abuse in the F i r s t D e g r e e t h a t a l l o c c u r r e d p r i o r t o M e a s u r e 1 1 , I am g o i n g to sentence the Defendant as an 8-1 on a l l three of those to 16 months in the custody of the Department of Corrections. * * * I'm going to sentence those all concurrent to each other to t h a t 16 months. Count 3, the Unlawful Penetration as a 10-1, I sentence t h e Defendant t o 58 months i n t h e custody of t h e Department of Corrections and I'm going t o make t h a t consecutive to Counts 1, 3[sic] and 4.

***
That drops us down t o Count 5, t h e Rape i n t h e F i r s t Degree, alleged to have occurred in 1994, I won't go t h r o u g h a l l my r a m b l i n g r e a s o n s t h a t I j u s t g a v e a g a i n , I sentence t h e Defendant t o 58 months i n t h e custody of 2 - OPINION AND ORDER

the D e p a r t m e n t o f C o r r e c t i o n s c o n s e c u t i v e t o t h e 1 6 months and consecutive t o t h e 58 months, what I j u s t gave him on Count 3. And t h a t t a k e s us t o t h e Sodomy i n t h e F i r s t Degree, Count 6. For the same reason I sentence the Defendant to 58 months i n t h e custody o f t h e Department o f C o r r e c t i o n s consecutive t o a l l o t h e r sentences, t h e 16 months, t h e 58 months, t h e 58 months. Then as to Count 8 and 10, the two sodomies that were under Measure 11, you get into the same kind of argument. * * * So the long and s h o r t of i t i s what I'm going to do on t h a t i s as to the two Measure 11 offenses, Count 8 and Count 10, I do sentence the Defendant to the custody of the Department of C o r r e c t i o n s f o r 1 0 0 m o n t h s o n e a c h o n e a n d I am g o i n g t o make the sentence on those two concurrent with each other, but consecutive to all the other sentences that I ' v e g i v e n h i m . S o a c c o r d i n g t o w h a t I h a v e o n my l i t t l e sheet here, I have sentenced the Defendant to 16, 58, 58, 5 8 a n d 1 0 0 f o r a t o t a l o f a b o u t 2 7 4 p l u s 1 6 , my j u s t quick math came out around 290. (Tr. Vol. 5, pp 18-21.) (Emphasis added.)

Following the court's discussion of ancillary issues in sex crime sentencing, the court granted counsel's request
(Id.

that

P e t i t i o n e r remain i n l o c a l custody f o r 48 hours.

at 23-24.)

The prosecutor, charged with preparing the written judgment, then made the following request: I would l i k e the c o u r t ' s permission to do t h i s , however. I would like to submit an order today for your signature which shows the p a r t i c u l a r s of each sentence, b u t t h e f o r m t h a t I h a v e d o e s n ' t g i v e me e n o u g h s p a c e t o s p e l l out p r e c i s e l y how you chose t o make them consecutive with each other, Your Honor. What I would l i k e to do i s have t h i s one be signed so i t provides a basis for [Petitioner] to be transported and turned over to the Department of Corrections, and within about two weeks, I ' l l submit an amended order with a copy to [counsel] so he can see the language that I'm including describing how the consecutives l i n e up. I think that would give a basis for the Department of Corrections to a c t and take him i n t o , you know, receive him i n t o 3 - O P I N I O N AND ORDER

custody. A n d t h e n t h i s w o u l d c a t c h u p a s t o t h e , how t h e sentences precisely wind up.
(Id.

at

25-26.)

(Emphasis

added.)

When a s k e d i f h e

had any

objection t o the p r o s e c u t o r ' s proposal, t r i a l counsel r e p l i e d , "No, Your Honor." The court found the proposal acceptable and signed

the Judgment of Conviction and Sentence that did not reflect the consecutive sentencing. On Amended or about April to the (Respt. ' s Ex. 112.) 14, 2000, the prosecutor sent a Ex. Draft 115,

Judgment

sentencing court.

(Respt. 's

Affidavit. )

On o r a b o u t May 4 , 2 0 0 0 , t h e p r o s e c u t o r l e a r n e d t h e
(Id.)

court had not yet signed the Amended Judgment.

On o r a b o u t

May 9 , 2 0 0 0 , P e t i t i o n e r f i l e d h i s N o t i c e o f D i r e c t A p p e a l , a n d o n o r a b o u t May 1 1 , 2 0 0 0 , h e f i l e d a n O b j e c t i o n t o A m e n d e d S e n t e n c e Order on the grounds an appeal had been f i l e d and the court lacked j u r i s d i c t i o n to enter an amended order. a b o u t May 1 2 , 2000, (Respt. ' s Ex. 114.) On o r

the prosecutor filed the State's Motion to

Modify Judgment and Sentence, referencing the d r a f t for an amended judgment submitted on April 14th. May 2 5 , (Respt. ' s Ex. 115.) On o r a b o u t

2000, t r i a l counsel filed Objection to State's Motion to (Respt.' sEx. 116.) On o r a b o u t

Modify Judgment and Sentence.

August 16, 2000, the court held a hearing on the S t a t e ' s Motion to Modify Judgment and Sentence. granted the motion. After oral arguments, the court

In correspondence addressed to Petitioner's

appellate counsel, t r i a l counsel raised the issue of the court's jurisdiction to amend the judgment and gave appellate counsel

4 - OPINION AND ORDER

ci t a t i o n s argument.

to

the

state

court

cases

he

relied

on

in

his

oral

(Respt. ' s Ex. 123, Attachment C.)

Petitioner directly appealed his conviction and sentencing, but did not raise as error issuance of the amended judgment. Oregon Court of Appeals affirmed without opinion, Supreme Court denied review.
State v. Kennaday,

The

and the Oregon

176 Or.App. 523,

32 P . 3 d 9 7 3 , r e v . d e n i e d , 3 3 3 O r . 1 6 2 , 3 9 P . 3 d 1 9 2 ( 2 0 0 1 ) . Peti tioner filed for post-conviction relief denied relief. (PCR), but was

P e t i t i o n e r a p p e a l e d t h e PCR c o u r t ' s d e c i s i o n , b u t

the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review.
Kennaday v. B a r l e t t , 212 Or.App. 712,

160 P.3d 639, rev. denied, 343 Or. 159, 164 P.3d 1160 (2007). In the instant petition, of Petitioner raises one claim of

ineffective assistance

appellate

counsel based on counsel's

failure to challenge the v a l i d i t y of the amended judgment f i l e d on or about August 16, 2000. Respondent argues the state court's

a d j u d i c a t i o n i s e n t i t l e d t o deference under 28 U.S.C. § 2254 (d) (1).
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 s t a t e court's adjudication: (1 ) r e s u l t e d i n a d e c i s l o n involved an unreasonable 5 - OPINION AND ORDER t h a t was contrary to, or application of, clearly

established F e d e r a l l a w a s d e t e r m i n e d b y t h e Court of the United States; or

Supreme

(2) r e s u l t e d i n 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). "[I]t

In construing t h i s provision the Supreme Court stated:

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 consti tutional 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 (1991). court.
See Ylst v. Nunnemaker,

501

U.S.

797,

803-04

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

cle#rly

'" C l e a r l y e s t a b l i s h e d F e d e r a l l a w ' u n d e r

2254 (d) (1) i s the
Sup~eme

governing legal principle or principles set forth by the 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 court law may be used

as guidance ln determining whether a state court decision is an 6 - OPINION AND ORDER

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). of

A state court decision is an "unreasonable application'" 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 clause, a

application of law must be objectively unreasonable. added). "Under
§

2254 (d) ' s 'unreasonable a p p l i c a t i o n '

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

unreasonable an incorrect

application

federal

from

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

Woodford v. Visciotti, 537 u.S. 1149

537 U.S. 19, (internal

rehearing denied,

(2003)

ci tations omitted).

" [ I ] t i s t h e h a b e a s a p p l i c a n t ' s b u r d e n t o Show

7 - O P I N I O N AND ORDER

that t h e s t a t e c o u r t a p p l i e d [ t h e l a w ] t o t h e f a c t s o f h i s c a s e i n an objectively 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 p e l
Strickland v. Washington,

Generally, governs claims

466 u.s. of

668

(1987),

of

ineffective

assistance

counsel,

includ.ing
Smith

those alleging ineffective assistance of appellate counsel.
v. Murray,

477 u.s. a

527,

536

(1986.) must

For r e l i e f to be granted prove 1) that counsel's

under

Strickland,

petitioner

performance f e l l below an objective standard of 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 c o u n s e l ' s unprofessional errors, the result of the proceeding would have been different.
Taylor, Bell v. Cone,

535 U.S.

685,

695

(2002); 466

Williams v.

529

u.s.

362, 390-91 (2000); Strickland,

u.s.

687-88.

"The reasonableness of counsel's performance i s to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances,
Kimmelman

and the
v.

standard of 477 u.s.

review 365, 1036

is 381

highly deferential."
(1986);

Morrison,

see also Hendricks v.

Calderon,

70 F.3d 1032,

(9th an

Cir.

1995)

( " [U] n d e r

the

rule

of

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 . " ) . II. THE MERITS In h i s Memorandum, failure to raise the Petitioner analyzes appellate counsel's of the amended judgement under the

issue

8 - O P I N I O N AND ORDER

principles

articulated

in

Strickland,

concludes

that

appellate

counsel was d e f i c i e n t and t h a t P e t i t i o n e r was prejudiced by his deficiencies, basis. and argues t h i s Court should grant r e l i e f on t h a t
§

However, under

2254, Petitioner must demonstrate that the

s t a t e ' s c o u r t ' s adjudication of h i s claim was contrary t o , or an unreasonable application of established federal law, or was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding. the record, I find Petitioner has not met

Upon review of burden and,

this

accordingly, habeas r e l i e f must be denied. U p o n r e v i e w o f t h e m e m o r a n d a a n d e x h i b i t s , t h e PCR t r i a l c o u r t made the following findings of fact that are relevant to the

instant proceeding: 24. Petitioner received effective assistance of appellate counsel. and adequate

***
26. 27. There were no meritorious claims t o be made about petitioner's sentence. There were no meritorious issues to be raised about imposition of the Amended Judgment. These findings are presumed to be correct

(Respt. 's Ex. 130 a t 5.)

absent Petitioner presenting clear and convincing evidence to the contrary.
§

2254 (e) (1) .

Petitioner has not met t h i s burden, and

r e v i e w i n g t h e r e c o r d u p o n w h i c h t h e PCR c o u r t m a d e i t s f i n d i n g s , t h i s C o u r t d o e s n o t f i n d a n y e v i d e n c e t h a t t h e PCR c o u r t a c t e d unreasonably.

9 - OPINION AND ORDER

In 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 d i d n o t d i s p u t e t h a t t h e sentencing court verbally imposed a combination of consecutive and concurrent sentences for a t o t a l of 290 months imprisonment. Nor

did he allege the original judgment correctly reflected the orally imposed sentences. Moreover, a review of the sentencing transcript

leads to the conclusion the sentencing court carefully considered the issue of concurrent and consecutive sentencing and was very deliberate in imposing a combination of consecutive and concurrent terms of imprisonment. the I t is also clear that the prosecutor sought file an amended judgment that would

court's permission to

reflect the court's verbal pronouncement of consecutive terms that he was unable to include on the form available at the time.

Petitioner's attorney did not object to this request, and the court granted i t . At the time the o r i g i n a l judgment was signed, i t was

clear to a l l parties that the judgment did not accurately reflect the o r a l l y imposed sentences and was t o be corrected. The PCR court considered Petitioner's argument that the

sentencing court did not have j u r i s d i c t i o n to amend the judgment to reflect its consecutive sentencing. In finding there were no

meritorious i s s u e s t o be r a i s e d regarding the Amended Judgment, the PCR court rejected on Petitioner's the question argument, of the and the underlying court's

determination

sentencing

j u r i s d i c t i o n t o i s s u e the Amended Judgment was one of s t a t e law that this court will not re-examine.
See Estelle v. McGuire, 502

1 0 - OPINION AND ORDER

U.s.

62,

67-68

(1991); Mendez v.

Small,

298 F.3d 1154, 1158

(9th

Cir. 2002). Upon review o f t h e r e c o r d , t h e Court c o n c l u d e s P e t i t i o n e r has not shown i t was contrary t o , or an unreasonable application of

e s t a b l i s h e d f e d e r a l l a w f o r t h e PCR c o u r t t o d e n y P e t i t i o n e r r e l i e f on his claim of ineffective assistance of appellate counsel.

Accordingly, Petitioner is not entitled to habeas relief. CONCLUSION Based on the Habeas Corpus (#2) foregoing, is DENIED. Petitioner's The court Petition for Writ of declines to issue a

C e r t i f i c a t e 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 ) - ) d a y of March, 2010.
§

2253 (c) (2).

w e n M. P a n n e r United States District Judge

1 1 - OPINION AND ORDER