Pettigrew v. Belleque
Filing
46
Opinion and Order. Magistrate Judge Clarke's Report and Recommendation 40 is adopted. The petition 2 is denied and this action is dismissed. Because petitioner has not made a substantial showing of the denial of a constitutional right, a certficate of appealability is DENIED. Ordered and Signed on 07/08/2011 by Judge Owen M. Panner. (rsm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DAVID DOW PETTIGREW,
Petitioner,
Civ. No. 09-520-CL
OPINION AND ORDER
v.
BRIAN BELLEQUE,
Respondent.
PANNER, District Judge:
Magistrate Judge Mark D. Clarke filed a Report and
Recommendation (nR
court.
&
R")
[#40J, and the matter is now before this
See 28 U.S.C. § 636(b) (1) (B),
Petitioner timely filed objections
Accordingly,
Fed. R. Civ. P. 72(b).
[#44J to the R & R.
I have reviewed the file of this case de novo.
See
28 U.S.C. § 636(b) (1) (c); McDonnell Douglas Corp. v. Commodore
Bus. Mach.,
Inc.,
656 F.2d 1309, 1313
conclude the R & R is correct.
(9th Cir. 1981).
I
Petitioner raises three main objections to the R & R.
First, Petitioner objects to Judge Clarke's determination that
all but one of Petitioner's claims are procedurally exhausted.
Second, Petitioner objects to the R & R's determination that
Petitioner did not allege cause and prejudice regarding defaulted
claims.
Petitioner's third objection is to Judge Clarke's
recommendation denying a certificate of appealability.
Petitioner makes two separate arguments regarding
procedurally defaulted claims.
Petitioner argues his claim
regarding the victim's character testimony is not procedurally
defaulted because of a citation to US v. Jackson, 588 F.2d 1046
(5th Cir. 1979), cert. den., 442 U.S.
941
(1979).
Second,
Petitioner argues his claim regarding ORS 135.815 was federalized
because ORS 135.815 is based on Brady v. Maryland, 373 U.S. 83
(1963)
Petitioner's argument regarding the first claim is
unconvincing.
Jackson discusses the Fourth Amendment's Search
and Seizure protection extensively and Fed. R. Evid. 608 briefly.
rd. at 1050-55.
Amendment.
Petitioner makes no reference to the Fourth
Petitioner argues OEC 608 is based on Fed. R. Evid.
608, which "implicates the confrontation clause of the Sixth
Amendment."
(Pet.'s Reply to Resp. to Habeas Pet., at 2.)
Petitioner's Brief does not discuss the Sixth Amendment
explicitly or implicitly in his discussion regarding Jackson.
2- ORDER
The context of Petitioner's Brief's citation to Jackson
deals with cross examination of the victim.
See Pet'r.'s Writ of
Habeas Corpus, at 7-9 ("It is unclear that even a thorough crossexamination can ever give rise to an attack on a witness's
character.") .
Petitioner's argument claims the court erred in
allowing reputation testimony about the victim.
The Jackson
discussion of Fed. R. Evid. 608 does not "federalize"
Petitioner's claim.
In Jackson, the court discussed the
applicability of Fed. R. Evid. 608 to the accused's testimony.
588 F. 2d at 1055.
The court held that discrepancies between the
accused's testimony and witnesses' testimony did not amount to an
attack on the accused's reputation.
Id.
The applicability of
Jackson to Petitioner's claim is attenuated.
Therefore,
Petitioner's Brief and reference to Jackson did not give the
state court adequate nctice of the federal claims.
Petitioner's second argument is unconvincing. Petitioner
argues the claim based on ORS 135.815 raises a federal issue
because ORS 135.815 is based on the Supreme Court's ruling in
Brady v. Maryland, 541 u.S. 27
(2003).
(Pet'r's Reply to Resp.
to Habeas Pet., at 3-4.) Petitioner's argument regarding ORS
135.815 does not discuss a federal case or law.
Petitioner's
state Appellate Brief argument relies on Oregon case law (State
v. Warren and State v. King)
interpreting ORS 135.815.
Writ of Habeas Corpus, Ex. 103, at 15-17.)
3- ORDER
(Pet'r.'s
Neither case cited supports Petitioner's assertion that the
claim was federalized.
In King, the court did not examine any
constitutional provisicns.
30 Or App 223, 566 P.2d 1204
(1997)
In Warren, the court determined it did not need to consider the
constitutions because ORS 135.815 requires disclosure.
428,
431, 746 P.2d 711
(1987).
304 Or
The court determined:
Constitutional interpretation is required only if a law
does not otherwise provide for disclosure of
information to which the defense must have access to in
order to 'meet the witnesses face to face', Art. I, §
11, Oregon Const., 'to be confronted with witnesses
against him,' Sixth Amend., u.S. Const., or to receive
"due process of law," Fourteenth Amendment, u.s. Const.
Id.
Because Petitioner relies on ORS 135.815 as in Warren,
citing Warren is not
s~fficient
to alert the state court of a
federal claim.
Petitioner's first objection to the R & R fails.
Petitioner
failed to present "the claims he raised in state proceedings
specifically as federal claims." Castillo v. McFadden, 399 F.3d
993,
999
(9th Cir. 2004)
(quoting Lyons v. Crawford, 232 F.3d
666,
670
(9th Cir. 2000)
(emphasis in original), as modified by,
247 F.3d 904
(9th Cir. 2001)).
On both claims, Petitioner's
Brief does not discuss federal constitutional provisions or
challenges.
State courts must be given a "fair opportunity" to
apply "controlling legal principles" that affect Petitioner's
constitutional claims. Castillo, 399 F.3d at 999
v. Sma 11 , 315 F. 3 d 10 63 , 10 6 6 (9 t h Ci r. 2 003) ) .
4- ORDER
(quoting Kelly
Petitioner's attenuated application of federal law did not give
Oregon Courts a fair opportunity to know Petitioner was
"asserting federal claims under the United States Constitution."
Duncan v. Henry, 513 U.s. 364, 366 (1995).
Thus,
Judge Clarke
correctly determined that all but one of Petitioner's claims are
procedurally defaulted.
Petitioner's second objection claims Judge Clarke did not
address the cause and prejudice argument to Petitioner's
procedural defaults.
R,
at 2.)
(Pet'r's Objection to Magistrate Judge's R &
Petitioner's assertion relies heavily on a quote from
the R & R stating, "Petitioner has not alleged any cause or
prejudice for his procedural defaults .
R, at 9.)
"
(rd.
at 1-2);
(R
&
Petitioner's emphasis on his "cause and prejudice"
heading adds little substance to the argument. The fact that
Judge Clarke stated, "Petitioner has not alleged any cause and
prejudice," rather
tha~,
"Petitioner has not demonstrated
sufficient cause and prejudice," is of no consequence.
After a de novo review of Petitioner's objections,
I
agree
with Judge Clarke, that Petitioner has failed to demonstrate
sufficient cause and prejudice.
Petitioner argues ORS 138.590(4)
"mandates that a petitioner be provided 'suitable counsel' to
assist him in post conviction hearings."
Resp. to Habeas Pet., at 6.)
(Pet'r.'s Reply to
Petitioner claims absent "suitable
counsel" in state appellate proceedings, procedural exhaustion
5- ORDER
requirements are prejudicial.
(rd. at 6-7.)
Petitioner argues
he meets both the cause and prejudice requirements.
Petitioner
asserts his appellate counsel directly caused Petitioner's
procedural defaults, and Oregon's failure to provide suitable
counsel prejudiced his "several meritorious federal claims."
(rd.
at 8-10.)
Petitioner incorrectly argues ORS 138.590(4) "mandates"
suitable counsel for petitioners.
Habeas Pet., at 6).
(Pet'r.'s Reply to Resp. to
ORS 138.590(4) requires the court to appoint
counsel to indigent applicants who seek counsel, not to all
petitioners.
reasons.
Petitioners cause and prejudice claim fails for two
First, he requested post conviction counsel. Second,
"there is no constitutional right to an attorney in state postconviction proceedings."
111 S.Ct. 2546 (1991)
Coleman v. Thompson, 501 u.S. 722, 752,
(internal citations omitted).
Habeas
relief is only available when "in custody in violation of the
Constitution or laws or treaties of the United States."
28
u.S.C. §2254(a). Since post conviction counsel is not "mandated"
in Oregon and there is no constitutional right to post conviction
counsel, Petitioner's cause and prejudice claim is meritless.
Coleman, 501 u.S. at 757
("Because Petitioner had no right to
counsel to pursue his appeal in state habeas, any attorney error
that led to the default of Petitioner's claims in state court
cannot constitute cause to excuse the default in federal
6- ORDER
habeas. ") .
Petitioner's final objection is that the denial of a
certificate of appealability would deprive Petitioner of pursuing
debatable issues further.
However, as Judge Clarke correctly
determined, Petitioner failed to show cause and prejudice for any
of the procedurally defaulted claims. Additionally,
Petitioner
failed to make a substantial showing of the denial of a
constitutional right regarding the procedurally exhausted claim.
See 28 U.S.C.
§
22S3(c) (2).
I decline to issue a certificate of
appealability.
CONCLUSION
Magistrate Judge Clarke's Report and Recommendation [#40J is
adopted. The petition [#2J is denied and this action is
dismissed.
Because Petitioner has not made a substantial showing
of the denial of a constitutional right, a certificate of
appealability is DENIED.
IT IS SO ORDERED.
DATED this
day of July, 2011.
OWEN M. PANNER
U.S. DISTRICT JUDGE
7- ORDER
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