Soto-Nunez v. Nooth

Filing 39

Opinion & Order Petition for Writ of Habeas Cropus 2 denied. The court declines to issue a Certificate of Appealability. Ordered & Signed on 3/29/11 by Judge Owen M. Panner. (kf)

Soto-Nunez v. Nooth

Doc. 39

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MEDFORD DIVISION JOSE PATRICO SOTO-NUNEZ, Civil No. 09-578 PA Petit
v.

r,

MARK NOOTH, OPINION AND ORDER Re Thomas J. Hester
Assistant ral Public Defender
101 S.W. Ma Street, Suite 1700
Port , Oregon 97204
Attorney for Petitioner

R. Kroger
Attorney General
sten E. Boyd
Assistant Attorney General
rtment of Justice
1162 Court Street NE
S em, Oregon 97310

Attorneys for Respondent 1 OPINION AND ORDER

Dockets.Justia.com

PANNER, District Judge. Petitioner U.S.C.
§

brings

this

habeas

corpus

case

pursuant

to

28

2254 in which he challenges the legality of his underlying For the reasons that follow, the Petition for (#2) is denied.
BACKGROUND

criminal sentence.

Writ of Habeas Corpus

Following a jury trial combining charges from two indictments, petitioner was convicted of two counts of felony DUll, two counts of Giving Theft. False Information to a Police Officer, and Identity

Relevant to this habeas action,l at sentencing the trial

court imposed an upward departure sentence on petitioner's Identity Theft conviction. The court based its departure sentence on

petitioner's persistent involvement in similar offenses, namely his three prior convictions for Giving False Information to a Police Officer. ultimately Trial Transcript, imposed a Vol. 2, pp. 3, 18. The trial court in prison.

sentence

totaling

102 months

Respondent's Exhibit 101. During his direct appeal, court lacked authority to petitioner argued that the trial a departure sentence on the

impose

Identity Theft conviction based on facts that were not pled in the indictment, admitted by petitioner, or found by a jury.

Respondent's Exhibit 113, p. 6.

Although he admitted his error was

Petitioner limits his habeas challenge to the legality of his Identity Theft sentence. Memo in Support (#33), p. 4 n. 2. 2 - OPINION AND ORDER

unpreserved for appellate Appeals to reach it on t under Oregon law. 2 the assignment of error, Amendment claim. Respondent pet which was granted. of the Oregon Court
1

ew,

asked the Oregon Court of

basis that it constituted "plain error" Oregon Court of Appeals agreed, revi

ed relief on petitioner's Si

i

Oregon Supreme Court for review, Supreme Court vacated the decision of Appeals and remanded case
r

reconsideration n
adh'd to on recons, State

of State v. Ramirez, 343 Or. 505 (2007), 344 Or. Or 195 515 (2008) (2007) (S0542671 A123657), (s054609; A127874). n

v.

ts,

343

Respondent's Exh Upon remand,

t 125. Oregon Court of Appeals concl s

exercise of discretion to entertain petitioner's S claim as plain error had been erroneous.
p. 1.

Respondent's

it 133, llows:

cally, t

appellate court reasoned as

giving had three prior convictions ion to a police officer. offense, not identical to identity the sufficiently re is no legitimate the jury found defendant's three pr ctions to

2 review in Oregon's state courts is governed by ORAP 5.45(1) which states that n[n]o matter a as error will be cons on appeal unless the c imed error was preserved in the lower court. "ORAP 5.45 (1) s, however, provide an alternate whereby "the appellate court may consider an error law rent on the face of " This latter provision allows the Oregon Court of s to consider errors of law whi are" obvious" and "not rea y " Ailes v. Portland Meadows, Inc., 312 Or. 376, 381, 823 P.2d 956 (1991).

3

OPINION AND ORDER

be for a "similar offense." Defendant did not dispute- in the trial court, on direct appeal, or on remand--the trial court's finding that the offenses were similar. Likewise, given the number of defendant's prior convictions, we conclude that there is also no legitimate debate that the jury would have found defendant to have been persistently involved in similar offenses. Accordingly, we decline to exercise our discretion to review the assigned error. Respondent's Exhibit 133, pp. 2-3 (internal citation omitted). Oregon Supreme Court denied review. Respondent's Exhibit 135. The

Petitioner filed for state post-conviction relief, but later moved to voluntarily dismiss the case. federal habeas corpus relief He proceeded to file for 2009 raising a single

on May 26,

claim: whether the trial court's imposition of a departure sentence violated his right to a jury trial under the Sixth Amendment. Respondent because: asks the court to deny relief on the Petition

(1) the specific argument petitioner makes here was never (2) petitioner's Sixth Amendment

presented to any state court;

claim was not fairly presented to Oregon's state courts and is now procedurally defaulted; (3) to the extent the claim he argues now

was fairly presented to Oregon's state courts, they denied relief on the claim in decisions that are entitled to deference; and

(4) petitioner's claim lacks merit.
DISCUSSION I. Exhaustion and Procedural Default: Standards

A

habeas

petitioner

must

exhaust

his

claims

by

fairly

presenting them to the state's highest court,

either through a

4 - OPINION AND ORDER

direct appeal or collateral proceedings, will consider the merits of those claims. 509, 519 (1982). "As a general rule,

before a federal

court

Rose v. Lundy, 455 u.s.

a petitioner satisfies the

exhaustion requirement by fairly presenting the federal claim to the appropriate state courts . state courts, thereby in the manner required by the state courts a meaningful Casey v.

'affording the

opportuni ty to consider allegations of legal error.'" Moore, 386 F.3d 896, Hillery, 915-916 (9th Cir. 2004) (1986)).

(quoting Vasquez v.

474 u.s. 254,257,

If a habeas litigant failed

to present his claims to the state courts in a procedural context in which the merits of the claims were actually considered, the

claims have not been fairly presented to the state courts and are therefore not eligible for federal habeas corpus review. v. Peoples, 489 u.s. 346, 351 (1989). Castille

A petitioner is deemed to have "procedurally defaulted" his claim if he failed to comply with a state procedural rule, or

failed to raise the claim at the state level at all. Carpenter, 529 722, 750

Edwards v.

u.s.

446, 451 (2000); Coleman v. Thompson, 501

u.s.

(1991).

If a petitioner has procedurally defaulted a a federal court will not review the claim

claim in state court,

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

5 - OPINION AND ORDER

u.s.

152, 1
v. Ca

(1996); Sawyer v. Whitley, 505

u.s.

333, 337 (1992);

e r , 477 U. S. 478, 485 (1986).

II.

Analysis
Respondent asserts that it r has materially a Amendment claim, The court need not
1

red the his this iled to

factual basis underlying his S a procedurally default

issue because, for the reasons which follow, petitioner irly sent any claims to the Oregon Supreme Court. rect appeal, he

When petitioner took his "did not object to the
t

that he

ure sentence imposed on

s

ity

ft

ction," and that" he now raises

d not raise the constitutional on direct appeal." Respondent's 's argument Oregon sis that

obj ection that Exh on

it 113, p. 7.

He thus re

ly conceded, "De at 8. He therefore as

1 is unpreserved."

Court of Appeals to review his unpreserved error on t it constituted plain error. As noted in the Background of this Opinion, the of Is ultimately e ned that petitioner's

Court unpreserved As a result,

Sixth Amendment claim refused to exercise its in cIa
0

not constitute plain error. scretion to overcome t Respondent's Exhibit 133. by virtue of a state federal question,

procedural bar Petitioner's cedural rule, and adequate to

r to review it.

was therefore reject was independent of

s

rt the judgment.

As a result,

this court is precluded from

6

OPINION AND ORDER

ng it.
Van

Coleman v.

Thompson,

501 U.S. 722, 731-32

(1991);

ekel v. White, 166 F.3d 953, 957 (9th

r.), eert. denied, 528

U.S. 965 (1999). Put another way, Court of Appeals, raise s unpreserved Si lowing the procedural dismissal by t itioner was le Amendment cla with no ability to to the Oregon Supreme considered. can no
See

Court in a context in which the merits would
Castille,

489

U.S.

at

351.

Because

petitioner

longer is

sent his Sixth procedurally defaulted

claim to Oregon's state courts, the default has not

been excused.

Relief on the Petition is therefore denied.
CONCLUSION

For the reasons i as Corpus (#2) is

ified above, DENIED. The court

Pet

ion for Writ of lines to issue a

Certificate of Appeal

ility on the basis t

petitioner has not

a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. IT IS SO ORDERED. DATED this
§

2253 (c) (2).

~

day

Owen anner United States District Judge

7 - OPINION AND ORDER