Antone v. Mills

Filing 53

Opinion and Order. For the reasons identified in this order, the Amended Petition for Writ of Habeas Corpus 12 is DISMISSED on the basis that it is untimely. Petitioner's alternative request for an evidentiary hearing is denied. The court d eclines 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). IT IS SO ORDERED. Signed on 8/11/2010 by Judge Owen M. Panner. (dkj)

FILED' 10 AUG 1110:41USOC{J1;ll

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION PARTICK ODINE ANTONE , Civil No . 08 - 9 6 4 - PA Petitioner , v. MILLS , OPINION AND ORDER Respondent . Tonia L . Moro
A s s i s t a n t Federal Public Defender
1 0 1 S . W. Main Street , Suite 1700
P o r t l a n d , Oregon 97204
A t t o r n e y for Petitioner John R . Kroger
A t t o r n e y General
K r i s t e n E . Boyd
A s s i s t a n t Attorney General
D e p a r t m e n t of Justice
1 1 6 2 Court Street NE
S a l e m , Oregon 97310
A t t o r n e y s for Respondent 1 - O P I N I O N AND ORDER

PANNER , District Judge . Peti t i o n e r brings this habeas corpus case pursuant to 28

U.S . C . § 2254 in which he challenges the legality of his underlying convictions for Kidnapping , Rape , Sodomy , and Attempted Aggravated Murder . For the reasons that follow , the Amended Petition for Writ

of Habeas Corpus ( # 1 2 ) is denied .

BACKGROUND
On July 29 , 2000 , petitioner violently attacked the victim in this case , choking her to unconsciousness before tying her up with telephone cord and duct tape . He duct - t a p e d a sock in her mouth

and placed a dark pillow case over her head and proceeded to rape and sodomize her over the course of several hours before locking her in a small compartment under the bed in his trailer . the

Respondent ' s Exhibit 119 .

When petitioner left the trailer ,

victim was able to kick her way out of the compartment , break a window in the trailer (the trailer had been padlocked to prevent A person in a neighboring trailer

her escape ) , and yell for help .

heard the victim ' s cries for help and summoned the police .

Id .

Petitioner was ultimately indicted in Lane County on charges of Kidnapping in the First Degree , Sodomy in the First Degree ,

Robbery in the First Degree , Attempted Aggravated Murder and four counts of Rape . Respondent ' s Exhibit 102 . Petitioner entered a

guilty plea but later filed a motion to withdraw the guilty plea based on an alleged mental deficiency, an issue which had

2 - O P I N I O N AND ORDER

previously

been he

resolved

in

favor plea

of

petitioner ' s

fitness

to

proceed when

changed his

from not

guilty to guilty .

Respondent ' s Exhibit 103 .

With respect to the motion to withdraw ,

petitioner ' s attorney refused to present the motion believing it to be meritless , and asked 104 , to pp . withdraw 5- 6 , from In representation . an abundance of

Respondent ' s

Exhibit

9-10 .

caution , the trial court ultimately allowed petitioner ' s attorney to withdraw and noted : I have been presented with no evidence that I know of that leads me to conclude that he ' s unfit to proceed. But I ' m going to request the verifiers to appoint him a new lawyer. . And new counsel can decide whether or not new counsel thinks there should be any fitness issue and so forth . But I ' m not held by what I ' ve heard that I should be doing anything about fitness to proceed . I had that before me at the time of change of plea and I wasn ' t convinced that he was unfit to proceed then . So new counsel is going to be appointed by the verifiers .
Id at 12 .

Following a fitness hearing which included expert testimony , the trial court concluded that petitioner : did not have a mental disease or defect , that he was able to understand the nature of the proceedings against him , was able to aid and assist and cooperate with counsel , defense . and that he was capable of participating in his

Respondent ' s Exhibit 107 , p. 3 .

Thereafter , petitioner informed his new attorney that he did not wish to withdraw his plea . Respondent ' s Exhibit 108. He also

stated he didn ' t really care , and that the court could kill him as 3 - OPINION AND ORDER

far as he was concerned.

Id.

Petitioner repeatedly refused to

answer the court's questions, and the court ultimately proceeded to sentence him to the stipulated plea agreement term of 410 months in prison.
Id.

Petitioner directly appealed, but his attorney could not find any meritorious issues to raise and filed a Balfour brief. 1 Oregon Court of Appeals granted the State's motion affirmance, and the Oregon Supreme Court denied for The

summary

review.

Respondent's Exhibits 113, 114. Petitioner next filed for post-conviction relief Umatilla petition. County where the Circuit Court denied ("PCR") on in the

relief

Respondent's Exhibit 128.

The Oregon Court of Appeals

affirmed the PCR trial court's judgment without issuing a written opinion, and the Oregon Supreme Court denied review. Exhibits 133, 134. Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on August 18, 2008. In his Amended Petition, petitioner raises the Respondent's

following grounds for relief:

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." 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)
1

4 - O P I N I O N AND ORDER

1.

P e t i t i o n e r suffered from the ineffective assistance of trial counsel when counsel failed to: (1) ensure that petitioner's waiver of his right to trial was knowing and voluntary; (2) object to consecutive sentences; (3) properly argue the . motion to wi t h d r a w petitioner's guilty plea; (4) obtain a reliable mental evaluation; and (5) advise petitioner of the departure maximum sentence that could be imposed; P e t i t i o n e r was denied his right to a lawful sentence because his sentence is not supported by findings of aggravating factors, and court findings are not constitutionally sufficient to justify the departure and consecutive sentences; and T h e trial court violated petitioner's right to due process when it: (1) denied his attempts to wi t h d r a w his guilty plea; (2) accepted his guilty plea after guards beat him and despite a conflict of interest and threats that induced the plea; and (3) allowed him to make a guilty plea that was unknowing, involuntary, and unintelligent. asks (1) the court to deny relief on the Amended (2) the

2.

3.

Respondent

Peti t i o n because:

this case was not timely filed;

claims petitioner raises are procedurally defaulted; and (3) and the claims lack merit.
DISCUSSION

Pursuant to the Anti-terrorism and Effective Death Penalty Act ("AEDPA"), a one-year statute of limitations applies to federal
28

habeas corpus actions. that 598 untolled state

u.s.c.
accrued

2244 (d) (1).

The parties agree the conclusion of case to this of

days

between the file the

peti t i o n e r ' s action, thus

proceedings failed

and to

filing this

habeas the the

petitioner

within excuse

limitation

period.

Petitioner

asks

court

5 - OPINION AND ORDER

untimely filing because : (1) the fundamental miscarriage of justice exception to procedural default should allow him to pursue his claims pertaining to his competency ; (,2) he was the victim of the

two - y e a r statute of limitations applicable to Oregon ' s PCR actions ;
a~d (3) his schizophrenia constitutes an extraordinary circumstance

to justify equitable tolling . turn.

The court takes these arguments in

I.

Fundamental Miscarriage of Justice

According

to

petitioner ,

the

fundamental

miscarriage

of

justice exception to procedural default should serve to excuse the untimely filing of his Petition . Specifically , he argues that he

was not sufficiently competent a t the time he entered his guilty plea for the court to have confidence in the outcome of that

criminal proceeding . In Schlup v .
Delo ,

513 u.S .

298

(1995) ,

the Supreme Court

addressed the process by which state prisoners may prove " a c t u a l innocence " to satisfy the fundamental miscarriage of justice

exception in order to excuse a procedural default .

The Court

explained that in order to be credible , a claim of actual innocence " requires petitioner to support his allegations of constitutional error with new reliable evidence- - w h e t h e r it be exculpatory

scientific evidence , trustworthy eyewitness accounts , or critical physical evidence- - t h a t was not presented at trial ."
D o w n s v . Hoyt , 232 F . 3d 1031 , 1040 Id . at 324;

(9 t h Cir . 2000 ) , cert . denied ,

6 - OPINION AND ORDER

121 S.Ct . 1665

(2001).

The Ninth Circuit has held that " h a b e a s

petitioners may pass Schlup ' s test by offering ' newly presented ' evidence of innocence. " Cir . 2003) .
Griffin v . Johnson , 350 F.3d 950 , 963 (9th

The meaning of " n e w l y presented " evidence is evidence
Id .

that was not before the trial court.

Ultimately , petitioner must prove that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt.
States , Schlup ,

513 U. s . (1998) ;

at 327 ;

Bousley

v.

United

523 U. S .

614 ,

623

Downs ,

232 F . 3d at 1040 .

In

making this determination , this court "must assess the probative force of the newly presented evidence in connection with the

evidence of guilt adduced at trial ." Here , petitioner does not

Schlup ,

513 U. s . at 332. prove his factual

attempt

to

innocence regarding his crimes , but instead seeks to establish that he did not knowingly plead guilty . In this way, petitioner seeks

to expand the coverage of the fundamental miscarriage of justice exception from factual innocence regarding the crime itself to

claims pertaining to the legal sufficiency of a guilty plea to excuse an untimely filing . is unable to find , any Petitioner does not cite , and the court binding authority requiring such an

expansion .

Indeed , the Supreme Court has expressly dictated that

a petitioner " s e e k i n g to demonstrate a fundamental miscarriage of justice must show factual innocence , not legal insufficiency .

7 - OPINION AND ORDER

Bousley v . United States , 523

u.s.

538 , 559 (1998 ) .

Petitioner has

not attempted to show his factual innocence in this case . Moreover , the evidence which petitioner offers to prove that he was not competent to plead guilty at the time he did so is insufficient to overcome in fact , the remainder of the evidence relies on that the

peti t i o n e r was ,

competent .

Peti t i o n e r

report of Dr . Crocker Wensel , but she concluded that petitioner appeared to understand the nature of the proceedings and was able to aid and assist his counsel . Petitioner ' s Exhibit 1 , p . 1 . The

issue of petitioner ' s competency was addressed by the trial court in depth , and the record shows that the trial court took extensive
p~ecautions

to ensure that petitioner was competent to enter his

plea , and petitioner ' s own belligerence during his hearings does not show that he was incompetent . In fact , multiple physicians

found petitioner fit to proceed , and the trial court twice found him competent . Accordingly , even assuming petitioner is not

required to make any showing whatsoever that he did not commit the crimes in question , he has not made a substantial showing that he was incompetent at the time he pled guilty . II. Two-Year peR Statute of Limitations Petitioner next argues that the two - y e a r Oregon state statute of limitations applicable to the filing of PCR actions creates a trap for unwary petitioners. Specifically , he claims that a

litigant may properly wait for more than one year to file a PCR 8 - OPINION AND ORDER

action in Oregon , but nevertheless find himself outside of AEDPA ' s one - y e a r limitation period to file a federal habeas corpus case because the two limitation periods run concurrently to each other . He asserts that this is precisely the trap he fell into , and asks the court to equitably toll the statute of limitations applicable to this case . The Ninth Circuit , addressing precisely this issue arising out of an Oregon case , makes here . explicitly rej ected the argume n t
Palmateer ,

petitioner (9th Cir .

Ferguson v .

321 F.3d 820 ,

823

2003) , cert . denied , 540

u.s .

924 (2003) .

Contrary to petitioner ' s

assertion , Ferguson remains good law and governs the disposition of this argument . III. Equitable Tolling for Schizophrenia Petitioner also asks the court to equitably toll the statute of limitations because he suffers from schizophrenia and was

therefore unable to fully educate himself regarding the interplay of Oregon ' s two - y e a r PCR statute of limitations and the one-year limitation period applicable to the current action . Equitable tolling is available to toll the one - y e a r statute of limitations available to 28 U.S . C.
Holland v. Florida ,
§

2254 habeas corpus cases . 2560 (2010 ) .
(1)

130

S . Ct.

2549 ,

A litigant

seeking equitable tolling must establish : pursuing his rights diligently and (2)

that he has been

that some extraordinary

circumstance stood in his way . 9 - O P I N I O N AND ORDER

Pace v . DiGuglielmo , 544

u. s .

408 ,

418

(2005 ) .

A petitioner who fails to file a timely petition due

to his own lack of diligence is not entitled to equitable tolling .
Tillema v. Long,

253

F . 3d

494 ,

504

( 9th

Cir .

2001 ) .

Mental

incompetence can support equitable tolling if the incompetence in fact caused him to fail to meet the AEDPA filing deadline .
Laws v .

Lamarque , 351 F . 3d 919 , 923 ( 9 t h Cir . 2003 ) . Petitioner bears the

burden of showing that this " e x t r a o r d i n a r y exclusion " should apply to him . Miranda v . Castro , 292 F . 3d 1063 , 1065 ( 9 t h Cir . 2002 ) . As previously noted , multiple physicians found peti t i o n e r able to aid and assist on two and fit to proceed , occasions and that the trial court was

determined competent.

different

petitioner

When petitioner was admitted to the Oregon Criminal 2001 , he was diagnosed with Major Functioning and prescribed

Institution on September 28 , Depression medication . and Low

Intellectual

Petitioner ' s Exhibit 2 , p . 16 .

Between May , 2002 and

August , 2004 petitioner was diagnosed as having a schizoaffective disorder and given medication and he was treated with a variety of medications . wi t h
Id at 3 - 4 .

In August 2004 , petitioner was diagnosed treated with medication . these illnesses ,
Id

schizophrenia asserts

and

at

6- 8 . his

Petitioner

that

especially

schizophrenia which was not diagnosed until August 2004 , rendered him so incompetent that he could not manage his legal affairs and timely file this federal habeas action.

10 - OPINION AND ORDER

The

record

reveals

that

petitioner

was

able

to

file

two

separate pro se briefs during his direct appeal in February 2003 and May 2003 . Petitioner was then able to timely file a pro se PCR Importantly, petitioner demonstrated his

petition in July of 2007.

awareness of his legal situation as recently as June 2008 when he filled his pro se Petition for Writ of Habeas Corpus in this case only a single day after the Oregon Supreme Court denied review in his PCR action . These actions do not support petitioner ' s

contention affairs .

that he was

too mentally incompetent to manage his

Although petitioner also claims that he was misadvised as to the calculation of his federal statute of limitations by a non l a w y e r law clerk within his prison , this is not an extraordinary event which gives rise to equitable tolling . 518 u.S. 343 , 351 (1996)
See Lewis v . Casey ,

(there is no " freestanding right to a law

library or legal assistance " ) ; see also Marsh v . Soares , 223 F . 3d 1217 , 1220 - 2 1 (10th Cir . 2000) (incompetence of inmate law clerk

does not create " e x t r a o r d i n a r y circumstances " warranting equitable tolling) . It is clear that petitioner was not so mentally incompetent that he simply could not have filed this case in a timely manner . Essentially , petitioner waited 19 months to file for PCR in

Oregon ' s courts , an acceptable time frame for that action , but one which precluded him from timely filing this action . OPINION AND ORDER As noted

11 -

above , the Ninth Circuit has clearly determined that a prisoner ' s confusion in this area does to not constitute toll not an extraordinary statute a real of and

circumstance limitations .

sufficient Because

equitably has

AEDPA ' s created

petitioner

substantial doubt as to his competency to timely file this habeas case , his alternative request for an evidentiary hearing is denied . CONCLUSION For the reasons identified above , Writ of Habeas Corpus untimely . (#12) the Amended Petition for

is DISMISSED on the basis that it is request for an evidentiary

Peti t i o n e r ' s

al t e r n a t i v e

hearing is denied . Appealability substantial on

The court declines to issue a Certificate of the of basis the that denial petitioner of a has not made a

showing

constitutional

right

pursuant to 28 U. S . C . § 2253 (c) (2) . IT IS SO ORDERED .
DATED this

~

d a y ~gust ' 2010 . , ; [ )

&L M. )Iif~ ~ Panner Owen
United States District Judge

12 - O P I N I O N AND ORDER