Schaper v. Mills
Filing
41
Opinion and Order. The Petition for Writ of Habeas Corpus 26 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. Signed on 5/16/2011 by Judge Owen M. Panner. (dkj)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
DAVID HENRY SCHAPER,
Civil No. 09-1286-PA
Petitioner,
v.
DON MILLS,
OPINION AND ORDER
Respondent.
Nell Brown
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
John R. Kroger
Attorney General
Kristen E. Boyd
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent
1 - OPINION AND ORDER
PANNER, District Judge.
tioner brings
u. S. C.
this
habeas
corpus
to
28
2254 challenging the legality of his underlying state
§
convictions for Sodomy and Sexual Abuse.
follow,
case pursuant
the Amended Pet
For the reasons that
ion for Writ of Habeas Corpus
[26J
is
denied.
BACKGROUND
tioner pled guilty in Washington County to two counts of
Sodomy in the First Degree and one count of Sexual Abuse
First
Degree
children,
for
crimes
committed
aga
his
three
all of whom were under the age of 12.
Exhibit 103.
the
Respondent's
The parties were free to argue for a sentence ranging
between 100 and 275 months, and the trial court ultimately imposed
sentences totaling 240 months after concluding that "this is one of
the most horrific cases that I have ever had to preside over."
Respondent's Exhibit 105, p. 28.
Peti
filed a
appel
oner took a direct appeal, where his appointed counsel
Balfour
brief a
review,l and pet
finding
no meritorious
ioner filed his own mer
issues
s brief.
for
The
1
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 suffi ent to "apprise
appellate court
of the jurisdictional basis for the appeal."
The defendant may
then
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).
2 - OPINION AND ORDER
Oregon
Court
of
Appeals
af
opinion,
rmed
and
the
petitioner's
sentence
without
Oregon
review.
conviction
Supreme
Court
and
Respondent's Exhibits 109, 110.
Petitioner next filed for post-conviction relief
umatilla County where the PCR t
his c
ims.
affirmed
PCR
trial
court
Supreme Court denied review.
Petitioner
led
his
("PCR")
al court denied relief on
Respondent's Exhibit 126.
the
denied
I
in
of
The Oregon Court of Appeals
without
opinion,
and
the
Oregon
Respondent's Exhibits 126, 129, 130.
Amended
Pet
ion
for
Writ
of
Habeas
Corpus on September 3, 2010 raising thirteen grounds for relief.
Respondent asks the court to deny reI
because:
(1) some claims were not
f on the Amended Petition
irly presented to the State's
highest court in a manner in which they would be considered; and
(2) the claims which were fairly presented to Oregon's state courts
were denied in a decision that was neither contrary to,
nor an
unreasonable application of, clearly established federal law.
DISCUSSION
I.
Unargued Claims
In
ngle
s
supporting memorandum,
claim:
ineffective
when
whether
he
trial
failed
to
petitioner elects to brief a
counsel
object
was
to
const
utionally
allegedly
incorrect
information contained in the presentence report.
[38].
Although
Memo in Support
raises twelve additional grounds for reli
in
his Amended Petition which respondent addressed in his Response,
3 - OPINION AND ORDER
----
pet
_
...
--------
ioner has not supported these claims with any briefing.
The
court has nevertheless reviewed petitioner's unargued claims on the
existing record and determined that they do not entitle him to
relief.
See 28 U.S.C. § 2248 ("The allegations of a return to the
writ of habeas corpus or of an answer to an order to show cause in
a habeas corpus proceeding, if not traversed, shall be accepted as
true except to the extent that the judge finds from the evidence
that they are not true.")
i
see also Silva v.
279 F. 3d
825, 835 (9th Cir. 2002)
(petitioner bears the burden of proving
Woodford,
his claims).
II.
Standard of Review
An
application
for
a
writ
of
habeas
corpus
shall
not
be
granted unless adjudication of the claim in state court resulted in
a decision that was:
(1) "contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the
Supreme Court
of
the
United States;"
or
(2)
"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).
A
state court's findings of fact are presumed correct, and petitioner
bears the burden of rebutting the presumption of correctness by
clear and convincing evidence.
A
state
court
established precedent
decision
if
the
28 U.S.C. § 2254(e) (1).
is
"contrary
state
court
clearly
to
applies
a
rule
that
contradicts the governing law set forth in [the Supreme Court's]
4 - OPINION AND ORDER
cases" or "if the state court confronts a set of facts that are
materially indistinguishable from a de
and
nevertheless
precedent."
arrives
Williams v.
at
a
sion of [the Supreme] Court
result
Taylor,
different
529 U.S.
362,
from
405-06
[that]
(2000).
Under the "unreasonable application" clause, a federal habeas court
may
grant
relief
"if
the
state
court
identifies
the
correct
governing legal principle from [the Supreme Court's] decisions but
unreasonably applies that principle to the facts of the prisoner's
case."
Id at 413.
The "unreasonable application" clause requires
the state court decision to be more than incorrect or erroneous.
Id at 410.
The state court's application of clearly established
law must be objectively unreasonable.
Id at 409.
III. Ground 1(10): Ineffective Assistance of Counsel
According to petitioner,
ineffecti ve
when
he
failed
trial counsel was constitutionally
to
obj ect
to
and
rebut
inaccurate
information contained in the presentence report upon which the
trial court relied as a basis for imposing consecutive sentences.
The Ninth Circuit has concluded that a habeas corpus petitioner
cannot
prevail
on
an
ineffective
assistance
of
counsel
claim
arising out of a non-capital sentencing proceeding because there is
no clearly established federal law on point.
Davis v. Grigas, 443
F.3d 1155, 1158 (2006); Cooper-Smith v. Palmateer, 397 F.3d 1236,
1244 (9th Cir. 2004); see also Moses v. Payne, 555 F.3d 742,754-55
(9th Cir. 2009)
(where no Supreme Court decision squarely addresses
5 - OPINION AND ORDER
an issue,
§
2254 (d) (1)
bars relief).
Because pet
ioner
ts
counsel's performance as it relates to his sentencing, he cannot
prevail on this claim.
CONCLUSION
For the reasons identified above,
Habeas
Corpus
[26J
is
DENIED.
Certificate of Appealabil
The
the Petition for Writ of
court
declines
to
issue a
y 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.
DATED this
Iff
day of
Owen M. Panner
United States District Judge
6 - OPINION AND ORDER
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