Zavala v. Mills
Filing
24
Opinion and Order. Petition for Writ of Habeas Corpus 2 denied. Court declines to issue a certificate of appealability. Ordered & Signed on 5/17/11 by Judge Owen M. Panner. (kf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
VICENTE ZAVALA,
Civil No. 10-24S-PA
Petitioner,
v.
DON MILLS,
OPINION AND ORDER
Respondent.
Harold Ducloux, III
Assistant
ral
ic Defender
101 S.W. Main Street, S te 1700
Port
97204
Atto
Petitioner
John R.
Attorney General
Jonathan W.
1
General
Assistant
rtment of Justice
1162 Court Street NE
Salem,
310
for Respondent
1
OPINION AND ORDER
PANNER, Dist
ct
Petit
U.S.C.
s
2254
§
habeas
llenging the
court convict
Assault
this
corpus
suant
case
legality of his
rst Degree.
Petition for
28
state
1
sentences for Robbery in the
the
to
rst Degree and
follow,
For the reasons
the
of Habeas Corpus [2J is deni
BACKGROUND
On
13,
petitioner on
the
2003,
s of Attempted Murder, two counts of Robbery in
, Robbery in the Second
rst
First
Jury indicted
the Yamhill County
dnapping in the
ree,
, Kidnapping in the Second Degree, As
Degree,
As
Degree.
the Second Degree,
Re
's Exhibit 102.
Pet
the
s.
court
t
sentences.
to plead
e
e and one count of
Respondent's Exhibit 103.
sentenced
petitioner
to
On January 22, 2004,
consecut
t
al
court
's
Re
affi
error
Exhibit
which
105,
p.
he
3.
ac
a single claim
was
unpreserved.
Court
The
the trial court's decision without a wr
the Or
Court denied review.
109.
2
90-month
Respondent's Exhibit 104, pp. 55 59.
Petitioner took a direct appeal where he rais
of
Second
rst Degree and, in exchange, the State dropped the
rema
the
the First
the
Theft
guilty to one count of Robbery in the First
Assault
t
OPINION AND ORDER
Re
of Appeals
en opinion and
I
s Exhibits 108,
Petitioner next fil
post-conviction relief
Umatilla County where the
Petition.
Appeals
PCR trial court denied reI
its 117,
Respondent's
affirmed
Respondent I s
t
lower
Exhibit 121.
court I s
118.
("PCR")
f
in
on
The Oregon Court of
decision
without
opinion.
Petitioner's attorney did not file a
petition for
Oregon Supreme Court.
Petit
fil
s
federal
Petition
for
Wr
of
Habeas
Corpus on March 8, 2010 raising three grounds for relief:
1.
2.
Tri
couns
provided
ineffect
assistance in violation of the S
when he failed to object to the
sentences
and
failed
to
ely prepare for trial; and
3.
Petition
The
t
court
imposed
il
1
consecut
sentences in violation of the
14
Amendment
when
it
based
the
consecutive sentences on facts not proven
a reasonable doubt to a jury;
Petitioner did not enter his
knowingly and voluntarily as requi
Fourteenth Amendment.
of
r
Re
because
Oregon's
asks
none
of
s Corpus
the
court
petitioner's
Court,
and
default
III
III
III
3
OPINION AND ORDER
to
(#2).
deny
claims
the
ea
by
reI
were
claims
f
on
rly
are
now
the
Petition
presented
to
procedurally
DISCUSSION
I.
Exhaustion and Procedural Default Standards
A
habeas
itioner
presenting
will consi
519
s
exhaust
claims
to the state's highest court,
direct appea
509,
must
or co
r
(1982).
exhaustion
a
a
Rose v.
"As a general rule,
federal court
Lundy,
the federal claim to
the appropriate state courts .
t
state courts,
state courts
'affording
manner required by the
opportunity to consider allegations of 1
Moore,
386 F.3d 896,
474 U.S. 254, 257,
Hillery,
to present
in whi
s corpus review.
it
if he
r
is deemed to
failed to
comply
to raise the claim at t
lle
"procedurally defaulted"
th a
(1991) .
If a
state court,
state procedural
eman v.
Thompson,
petitioner has procedurally de
a
4 - OPINION AND ORDER
rule,
state level at all.
529 u.s. 446, 451 (2000);
750
Cas
489 u.s. 346, 351 (1989).
es,
Ca
cia
i
to the staJe courts and are
not eligible for federal
A
722,
(quoting Vasquez v.
the merits of the claims were actually considered,
there
il
Casey v.
If a habeas litigant
not been fairly present
v.
meaningful
1 error.'"
(9th Cir. 2004)
(1986)).
a
s claims to the state courts in a procedural context
cia
cIa
915-916
455 U.S.
a petitioner satisfies the
rement by fairly present
thereby
fairly
either through a
ateral proceedings,
merits of those
by
court will not review
s
or
v.
501 U.S.
ult
a
claim
unless the petitioner shows "cause and prejudice"
t
to present the constitutional issue to the state court, or rna
s a
colorable showing of actual innocence.
518
Gray v.
Ne
U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992);
Murray v.
II.
Ca
477 U.S. 478, 485 (1986).
er,
Analysis
On direct
ew,
erroneously
facts whi
i tioner alleged that
trial court
consecutive sentences in his case based upon
were
by the court, not by a jury.
the Background of t
s Opinion, petitioner conce
Court of Appeals t
this claim was unprese
review, and he
to
raise
s not argue otherwise here.
this
aim
Oregon
Court
pres
lly defaulted.
entitl
t
to
in Ii
s
r failed
Is
to
in
the
irly present
aim passed long
Even if
titioner had fairly
im to Oregon's state courts,
t
appellate
of
Because the time for fairly presenting
ago, it is
me
the
to the Oregon
As
1 context, petitioner fail
appropriate
it.
to
As noted in
he would not be
corpus relief because it is clearly without
of the Supreme Court's de
sion
Oregon v.
Ice,
129 S.Ct. 711, 719 (2009).
During
itioner's PCR appeal,
Oregon Court of Appeals:
imposed
consecutive
530 U.S.
5
466
(1)
sent
whether the t
sentences
in
vio
(2000);
and
(2)
OPINION AND ORDER
tion
two issues to the
al court improperly
of Apprendi
r
v.
New
trial counsel was
ineffective for faili
sentences
to object to the imposition of consecutive
under
Respondent's
petitioner did not
raise
Exhibit
portion of his Ground Two habeas
corpus claim where he alleges that counsel
trial, nor did
claims
of
t
1 court
counsel
a
to
preserved
r
r
O.R.A.P.
9.20(2) (
only questions p
petition for
error and
the
allegedly
review
in
inef
Oregon's
tions before. the Oregon
re for
to
s claim that
As a result, only
i ve assistance of
erroneous
sentence
were
Court.
See
Court include
rly before the Court of Appeals
ew claims were erroneously
Petitioner's PCR attorney wrote him a
2009 containi
il
raise his Ground Three habeas co
his guilty plea was not knowing and voluntary.
his
ter on February 4,
In your post-conviction brief, we raised
two issues: 1) that the court's imposition of
consecutive sentences was unlawful under State
v. Ice.
. and 2) that your tr 1 attorney
was incompetent for failing to raise an[] Ice
aim. These argument[s] were
ected by the
Court of Appeals on
31, 2008.
On
5, 2009, I wrote
told you that
would file a petition
by today,
ry 4, 2009.
Unfortunately, the United
States Supreme Court revers
Ice on January
14, 2009.
In ot
, the basis of
our claim has been definit
ly rejected by
the highest court in
land.
There is no
issue to advance to
Supreme Court.
As such, I will not
ling a petition for
ew on your behalf today.
I am sorry that
I cannot be of further assistance to you.
6
OPINION AND ORDER
which the
ided by that court) .
the following:
Petitioner's Exhibit 2.
Thus,
119.
In response, petitioner wrote to counsel asking him to file a
i tion for
a
so.
review so he would not
lly default these
,Petitioner's Exhibit 3, but counsel apparently did not do
As a result, petitioner procedurally
itioner claims he did all
While
a
ulted his Ice claims.
could to fairly present his
to Oregon's state courts, the conduct of his attorney does
not arise to the level of cause to excuse petitioner's default
e cause to excuse a
error can only be shown where
eman v.
It predicated on attorney
1
re is a constitutional violation,
501 U.S. 722, 752 (1991), and petitioner had
Thompson,
no constitutional right to counsel in post-conviction
481
Pennsylvania v. Finley,
In
addition,
u.s.
551, 556 (1987).
itioner
alt
asserts
abandoned his case in the wake of the U.S.
(2010), where the
where
documents
state
in
t
Ice
s
Florida,
claims
raised
rs,
action
state
failed to properly research
prevented
court.
Id
petitioner
at
from
not
7 - OPINION AND ORDER
entitle
him
to
s case,
fil
any
contrast,
2555-59.
If after the case law defini t
would
130 S.Ct. 2549
r's attorney failed to communicate with
it
oetitioner's attorney in this case declined to
peti tioner I s
counsel
Supreme Court's
in Holland v.
t
him over a period of
and
that
of petitioner's case by counsel
decision, any such aba
not begin to approa
ngs.
le a brief on
y
relief.
that the
This
is
insufficient to arise to the level of cause and
ce to excuse
j
petitioner's procedural default.l
Even if petitioner's PCR attorney
1
review with the Oregon Supreme Court so as to
aims which were properly before
Supreme Court's
held that the Sixth Amendment
t
ion for
irly present the
Court of Appeals,
peti tioner would nevertheless not be ent i tl
relief due to the U.S.
a
to habeas corpus
ision in Ice where it
judges from finding
s not
sentences.
the facts necessary to impose consecut
Accordingly,
relief on the Petition is
CONCLUSION
For the reasons identifi
Habeas
Corpus
[2]
is
above,
DENIED.
The
Certificate of Appealabil
y on
made a substantial show
of t
the Petition for Writ of
court
declines
to
issue
a
sis that petitioner has not
ial of a constitutional right
pursuant to 28 U.S.C. § 2253 (c) (2).
IT IS SO ORDERED.
DATED this
day of May, 2011.
iJ~M~~
Owen M. Panner
United States District Judge
It is also noteworthy that Holland involved
t
Ie
tolling of the Anti-ter
sm and Effective Death Penalty Act's
one-year statute of limitations, an area of the law
federalism concerns, while certainly present, are less s
than
rta
to fair presentation.
8
OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?