Freeman v. Franke
Filing
78
OPINION AND ORDER: the court DENIES the Amended Petition forWrit of Habeas Corpus and DISMISSES this action. The court DENIES a certificate of appealability as petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). regarding Amended Petition for Writ of Habeas Corpus(2254) 48 . IT IS SO ORDERED. (See attached PDF for complete information). Signed on 9/26/2014 by Judge Owen M. Panner. (jkm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
STEVEN J. FREEMAN,
Civil No. 1:11-cv-00425-PA
Petitioner,
OPINION AND ORDER
v.
STEVEN FRANKE,
Respondent.
ANTHONY D. BORNSTEIN
Assistant Federal Public Defender
101 SW Main Street
Suite 1700
Portland, OR 97204
Attorney for Petitioner
ELLEN F. ROSENBLUM
Attorney General
.KRISTEN E. BOYD
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301
Attorneys £or Respondent
1 - OPINION AND ORDER -
PANNER, Judge.
an
Petitioner,
Institution,
U.S.C.
brings
2254.
§
inmate
this
at
habeas
the
Two
corpus
Rivers
action
Correctional
pursuant
to
28
For the reasons that follow, the court DENIES the
Amended Petition for Writ of Habeas Corpus.
BACKGROUND
On
May
16,
2002,
a
Lane
County
grand
jury
issued
a
superseding indictment charging petitioner with twelve counts each
of
Sodomy
Degree,
in
six
the
First
counts
of
Degree
Using
a
and
Sexual
Child
in
Abuse
in
Display
the
of
First
Sexually
Explicit Conduct, five counts of Encouraging Child Sexual Abuse in
the First Degree, and one count of Sodomy in the First Degree for
a total of 36 charges.
on June 4,
2003,
Resp. Exh. 103.
After plea negotiations,
petitioner signed a Petition to Consent to be
Found Guilty by Stipulated Facts Trial as to 17 of the charges
against
him.
Petition,
Resp.
Resp.
and
Exh.
Exh.
found
petitioner
106.
consecutive
imprisonment.
The
sentences
104.
trial
The trial
guilty
judge
totaling
of
judge accepted the
the
sentenced
1,240
months
agreed
charges.
petitioner
(103
to
years)
a
of
Resp. Exhs. 101, 107 p. 3.
Petitioner filed a direct appeal in which he asserted two
assignments of error:
(1)- was
petitioner's
103 year sentence
unconstitutionally cruel, unusual and/or disproportionate; and (2)
did the trial court err in imposing sentence pursuant to Or. Rev.
2 - OPINION AND ORDER ~
Stat. § 137.124 (Ballot Measure 11).
Resp. Exh. 104, p. 4.
The
Oregon Court of Appeals affirmed without opinion, and the Oregon
Court of Appeals denied review.
State v.
Freeman,
203 Or. App.
808, 129 P.3d 803, rev. denied, 340 Or. 483, 135 P.3d 318 (2006).
Petitioner then filed a petition for state post-conviction
relief
("PCR")
assistance
of
alleging
counsel
Following
an
relief.
Resp.
in
evidentiary
Exh.
trial
counsel
several
hearing,
129.
On
provided
Resp.
respects.
the
appeal,
PCR
ineffective
trial
Exh.
judge
petitioner's
112.
denied
appellate
counsel filed a brief in accordance with State v. Balfour, 311 Or.
434 (1991) . 1
Resp. Exh. 130.
Petitioner did not avail himself of
the opportunity to submit a section B argument.
The Oregon Court
of Appeals affirmed without opinion and the Oregon Supreme Court
1
Under Balfour appellate counsel need not withdraw from a case
if he or she determines that no meritorious issues exist on appeal.
To avoid violating the ethical requirement that an attorney may not
advance frivolous claims, the Oregon Supreme Court set out a series
of standards with which appellate counsel must comply when
confronted with this situation. Id. Accordingly, a Balfour brief
contains two .sections. Counsel files a "Section -A" which contains
the facts.and the basis for jurisdiction. Importantly, "Section A
Id. at
. shall contain no as~ignments of erior or argument.''
451.
If the appellant seeks to raise issues with the appellate
court, the appellant files a "Section B" containing the arguments
that counsel considers frivolous but the appellant wishes to
advance. Id. at 452. Then the court considers these issues in the
"same manner as it considers and decides issues that are raised in
any other direct criminal appeal."
Id. at 452-53.
In this way,
a~pellate
counsel may avoid advaricing frivolous claims and
violating ethical rules, and an appellant is able to have his
claims heard.
Id.
3 - OPINION AND ORDER -
denied review.
Freeman v. Nooth,
(2010), rev. denied,
239 Or. App. 187, 245 P.3d 710
349 Or. 601, 248 P.3d 419 (2011).
On April 4, 2011, petitioner filed a pro se Petition for Writ
of Habeas Corpus Pursuant to 28 U.S.C.
§
2254 in this court.
court appointed counsel to represent petitioner,
before the court
The
and currently
is petitioner's Amended Petition for Writ of
Habeas Corpus Under 28 U.S.C.
§
2254.
In it, petitioner alleges
three claims for relief:
Ground One:
Violation of the Sixth Amendment to the
United States Constitution Ineffective Assistance of
Trial Counsel.
Supporting Facts:'
Trial counsel failed to have
petitioner evaluated by a psychologist to determine
whether petitioner met the standards for a defense of
guilty except for insanity under Oregon law.
Ground Two:
Violation of the Sixth Amendment to the
United States Constitution Ineffective Assistance of
Trial Counsel.
Supporting Facts: Trial counsel advised, permitted, and
encouraged a stipulated facts trial, and corresponding
waiver of trial rights, when, due to his limited mental
functioning, petitioner w~~ not able to make a knowing,
voluntary, and intelligent waiver of the trial rights
inherent in a stipulated facts trial, as required by the
Fourteenth Amendment to the United States Constitution.
Ground Three: Violation of the Fourteenth Amendment to
the United States Constitution Competency.
Supporting Facts:
Petitioner's stipulated-facts trial
occurred in violation of the Fourteenth Amendment to the
United States Constitution, as applied in Drope v.
Missouri, 420 U.S. 162 (1965) and Pate v. Robinson, 383
U.S. 375 (1966), because petitionei was not compet~nt to
·stand trial.
4 - OPINION AND ORDER -
Respondent contends habeas relief should be denied on all
three
cl~ims
becabse all are procedurally defaulted.
Petitioner
concedes procedural default, but in the counseled Brief in Support
of
Amended
Petition
for
Habeas
Corpus,
petitioner
argues
the
procedural default of the ineffective assistance of counsel claim
alleged in Ground Two should be excused under Martinez v. Ryan,
132 S.Ct. 1309 (2012).
Petitioner does not address the remaining
two grounds for relief.
DISCUSSION
Generally, a state prisoner must exhaust all available state
court
remedies . either
on
direct
appeal
or
through
collateral
proceedings before a federal court may consider granting habeas
corpus relief.
28
u.s.c.
§
2254(b) (1)
When a state prisoner
fails to exhaust his federal claims in state court, and the state
court would now find· the claims barred under applicable state
rules, the federal claims are procedurally defaulted.
v.
Boerckel,
526
U.S.
838,
848
(1999).
If
a
O'Sullivan
state
prisoner
procedurally defaults on a claim in state court, a federal court
will not review the claim unless the state prisoner shows cause
for the procedural default and actual prejudice from it, or that
11
failure
to
consider
the
miscarriage of justice.
11
claims
Wainwright v.
(1977); Coleman. v. Thompson,
5 - OPINION AND ORDER -
will
result
Sykes,
in
a
fundamental
433 U.S.
501 U.S. 722, 750 (1991).
72,
87
Here,
petitioner presented numerous
claims
of ineffective
Petitioner
assistance of trial counsel to the PCR trial court,
did not,
however,
include a claim that trial counsel denied him
the right to effective assistance of counsel by advising him to
submit to a stipulated facts trial despite his diminished mental
capacity, which prevented a knowing and voluntary waiver of his
rights.
by
Petitioner concedes he procedurally defaulted this claim
failing
to
assert
it
to
the
PCR
trial
court.
However,
petitioner argues the default is attributable to the deficient
performance of his PCR trial counsel and,
as such,
the default
should be excused.
Traditionally,
used
to
establish
default.
Coleman,
the performance of PCR counsel could not be
cause
and
prejudice
501 U.S. at 753-54
to
excuse
a
procedural
(only the constitutionally
ineffective assistance of counsel constitutes cause); Pennsylvania
v.
Finley,
481 U.S.
551,
556
(1987)
(there is no constitutional
However,
right to counsel in a PCR proceeding) .
Ryan,
132 S.Ct.
1309
(2012),
in Martinez v.
the Supreme Court found "it
necessary to modify the unqualified statement in Coleman that an
attorney's
·proceeding
default."
assist~nce
or
ignorance
does
Id.
not
inadvertence
qualify
cause
to
a
post~conviction
excuse
a
procedural
The Court concluded that "[i]nadequate
at 1315.
of counsel at
as
in
initial-revi~w
6 - OPINION AND ORDER -
collateral proceedings may
establish cause for a prisoner's procedural default of a claim of
ineffective assistance at trial."
Id.
In order to satisfy Martinez,
a habeas petitioner must show
(1) the underlying ineffective assistance of trial counsel claim
is substantial;
the
state
(2) the petitioner had-ineffective counsel during
collateral
proceeding;
( 3)
the
state
collateral
proceeding was the initial review proceeding for the claim; and
(4)
state law required the petitioner to bring the claim in the
Trevino v.
initial review proceeding.
1918
Clabourne v.
(2013);
Ryan,
Thaler,
745 F. 3d 362,
133 S.Ct.
375-78
1911,
(9th Cir.
2014); Dickens v. Ryan, 740 F.3d 1302, 1319 (9th Cir.), motion to
vacate den.,
F.3d 477,
744 F. 3d 1147
494
(9th Cir.),
(9th Cir.
2014);
cert. denied,
Miles v.
Ryan,
713
132 S.Ct. 519 (2013).
When determining whether an ineffective assistance of counsel
claim is "substantial" under the first requirement of Martinez,
this
court
Martinez,
must
determine
132 S. Ct.
certificate
of
if
at 1318.
appealability,
the
claim
Like the
has
"some
standard for
"substantiality"
merit."
issuing a
requires
the
petitioner to show that "reasonable jurists could debate whether
. the petition should have been resolved in a different manner
or
that
the
encouragement
1237,
1245
issues _ presented
to proceed further."
(9th Cir.
2013)
7 - OPINION AND ORDER -
were
adequate
Detrich v.
to
Ryan,
deserve
740
(internal quotations omitted),
F.3d
cert.
denied,
134
S.Ct.
2662
(2014).
"Stated otherwise,
a
'insubstantial' if 'it does not have any merit or .
without
factual
Id.
support.'"
at
claim is
is wholly
(quoting Martinez,
1245
132
S.Ct. At 1319)
claim
A
petitioner
of
to
objective
ineffective
prove
standard
reasonable
that
of
assistance
counsel's
that,
but
counsel
performance
reasonableness,
probability
of
for
and
fell
that
counsel's
requires
below
there
is
an
a
unprofessional
errors,
the result of the proceeding would have been different.
Bell v.
Cone,
U.S.
362,
687-88
535 U.S.
390-91
(1987).
685,
(2000);
695
Williams v.
(2002);
Strickland v. Washington,
Taylor,
466 U.S.
To prove deficiency of performance,
529
668,
petitioner
"'must show that counsel's representation fell below an objective
Taylor, 529 U.S. at 390-91 (quoting
standard of reasonableness.'"
u.s.
Strickland,
466
[petitioner]
'must
at
688) .
"To
show that there
is a
establish
prejudice
reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.'"
(quoting Strickland,
The
Supreme
466 U.S. at 694).
Court
has
applied
ineffective-assistance claims
Hill v.
Lockhart,
Williams, 529 U.S. at 391
474 U.S.
S.Ct. 1376, 1384 (2012).
52,
this
two-part
analysis
to
arising out of the plea process.
59
(1985);
Lafler v.
Cooper,
132
The prejudice prong of Strickland iri the
8 - OPINION AND ORDER -
plea context ·requires a petitioner to
11
show the outcome of the
plea process would have been different with competent advice.
Lafler, 132 S.Ct. at 1384.
11
To satisfy this standard, petitioner
must demonstrate that there is a reasonable probability that, but
for counsel's errors, he would not have pled guilty and would have
insisted on going to trial.
S.Ct. at 1384.
trial.
Cir.)
Hill,
474 u.s.
at 59;
Lafler,
132
The same standard applies to a stipulated facts
See Cooper-Smith v. Palmateer, 397 F.3d 1236, 1243-44 (9th
(applying Strickland to ineffective assistance claim arising
out of stipulated facts trial), cert. denied, 546 U.S. 944 (2005);
Gagliano v. Mazur-Hart, 2009 WL 736628, *5 (D.Or., March 16, 2009)
(in proving prejudice, petitioner must demonstrate that there is
a reasonable probability that, but for counsel's errors, he would
not
have
agreed
to
a
stipulated
facts
trial
and
would
have
insisted on proceeding with a jury trial)
Petitioner argues Martinez should be applied to excuse the
procedural default of his claim that counsel was ineffective in
advising petitioner to submit to a stipulated facts trial despite
petitioner's diminished mental capacity which prevented a knowing
and voluntary waiver of his rights.
Whether this court reviews
petitioner's ineffective assistance claim to determine if it is
11
substantial 11 under Martinez,
r~lief
is not warrarited.
9 - OPINION AND ORDER -
or de novo on the merits,
See 28 U.S.C.
§
2254 (b) (2)
habeas
permitting
court to deny petition on the merits notwithstanding failure to
exhaust).
Although petitioner did not directly raise his ineffective
assistance claim in the PCR trial court as he failed to allege the
claim
in
his
nonetheless
PCR
petition,
attempted
to
petitioner's
address
understand the nature of the
guise
of
a
claim
that
PCR
petitioner's
stipulated facts
counsel
trial
failed
to
attorney
ability
to
trial under the
accurately
petitioner about the prospective length of incarceration.
advise
Counsel
argued that petitioner did not understand the documents he was
signing for the stipulated facts trial and that petitioner did not
have the capacity to understand what was taking place.
In his deposition and in the evidentiary hearing conducted in
the state PCR proceeding, petitioner testified that his criminal
attorney advised him that if he consented to a stipulated facts
trial, he would be out of jail "in two weeks."
11 and Resp. Exh. 126, p. 14.
Resp. Exh. 124, p.
Petitioner also testified that he
"just signed whatever [his attorney] asked [him] to;" and that he
did not understand what he was signing and what it meant.
Exh. 126, p. 14.
Resp.
He testified that he only signed the stipulation
because he thought it meant he would be released in two weeks.
Resp. Exh. 126, p. 16.
The record, however, belies petitioner's
testimony.
10 - OPINION AND ORDER -
In
an
affidavit
submitted
to
the
PCR
trial
court,
petitioner's criminal trial counsel addressed petitioner's claim
he did not understand the consent to a stipulated facts trial and
thought he would be released in two weeks:
[Petitioner] was at times a difficult and demanding
client.
Upon my first contacts with [petitioner], he
appeared "normal" and ca·pable of speaking and easily
assisting his defense.
However, when he learned the
severity o~ the charges and potential consequences, he
quickly modified his strategies .. He became a recluse as
he attempted to mentally withdraw from the criminal
process.
Ultimately, I never felt he suffered from any type
of mental disease and defect that would curtail,
inhibit f or limit his capacity to aid and assist.
However, because of the unfortunate developments in Post
Conviction Relief I felt compelled to ask for an aid and
assist evaluation at the State Hospital where he was in
fact sent for an evaluation. As I completely suspected
and believed,
[petitioner] had personality disorder
issues
but did not have any problems or
difficulties understanding the nature of the charges,
·criminal process, or potential for trial or change of
plea.
* * *
I never told petitioner that he would be out of
jail in two weeks.
This IS what [petitioner] insisted
occur.
I continuously told him that his request would
never occur unless a miracle occurred in his case.
* * *
I do not remember what I told him about the likely
"exact" amount of time that he could be incarcerated;
fortunately,
I
always provide my clients with a
sentencing grid block; he and I would have gone over all
of his charges and their potential consequences.
Basically, I would have told [petitioner] that he could
literally spend the rest of his life in prison b~sed
uporr the multiple victims, extreme nature of the sexual
11 - OPINION AND ORDER -
crimes, his total lack of remorse, vulnerability of the
child victims, etc.
We would have gone over all
mitigating factors along with the elevating aggravating
factors of which there were many.
Resp. Exh. 125, pp. 1-2,
4 (emphasis in original).
At the underlying stipulated facts
engaged in a
trial,
the trial
judge
lengthy colloquy with petitioner and his attorney
about the nature of the proceedings and petitioner's understanding
thereof.
The judge first described discussions which took place
before going o~ the record:
THE COURT: We have been engaged in talking about this
case this afternoon and the parties have reached a
resolution.
And I want to state a couple of things on
the record before we get started.
I have discussed with [petitioner]- his right to a
jury trial,
and I have explained to him what a
stipulated facts trial is and we will go over that
again.
But [petitioner] · executed in my presence the
stipulation in the petition that we will file today. It
is seven pages in length.
[Petitioner] went over it with [the prosecutor] and
[the Court] absent:
I know he's been over it with [his
attor~ey]
before, and. he went ov~r it today with his
[attorney's investigator], and then some, after that
with [his attorney].
And there have been a couple of
things that were stricken from the stipulation based
upon those conversations that [petitioner] had with
them.
* * *
Now, Mr. Freeman, I guess I' 11 just say out loud
for the record so that it's clear.
It's clear to me
today that you understand what I'm telling you and you
are able to respond to my questions but that you aren't
happy with your options.
I just wanted to say that.
It's clear that you aren't happy with the choices in
12 - OPINION AND ORDER -
u
'
..
this case and I don't think anyone blames you for not
being happy with those choices.
But within - having said that, I know that it's
been a hard decision for you to decide what to do, and
I'm not going to go over this in ariy great detail
because we've gone over it before off the record and
you've gone over it with your lawyers.
But·I have here
the petition to consent to be found guilty by stipulated
facts trial that you have signed.
Resp. Exh.
106, p.
3-5.
The trial judge went on to confirm that
petitioner had read the petition and his lawyer had read it out
loud to him, that there were some changes to the petition that the
parties had agreed to do,
and that petitioner understood that a
stipulated facts trial meant petitioner was waiving his right to
a jury and that no witnesses would be called.
Resp. Exh. 106, pp.
5-9.
Following
the
trial
judge's
colloquy
with
petitioner,
petitioner's trial attorney offered his opinion as to petitioner's
understanding:
COUNSEL: Judge, I have represented [petitioner] for
almost a year or more.
Year plus.
And in that time
frame, both [my investigator] and I have handled his
case.
[W]e have had numerous contacts with
[petitioner]
On some of those occasions, we've had excellent
conversations and contacts,
and on some of those
occasions we haven't.
[ Peti tionerJ was sent to the
Oregon State Hospital based upon an order signed· by
Judge
Karsten
Rasmussen
for
an
aid
and
assist
evaluation. The first report came back that he possibly
wasn't capable of aiding and assisting and that they
would keep him there for observation.
13 - OPINION AND ORDER -
;:f
'
•
-v
After further observation, that assigned doctor
determined that [petitioner] was clearly capable of
aiding and assisting and actually found that he was most
likely capable of aiding and assisting all along except
that he was highly manipulative, distortive of the facts
and his situation, and essentially [in] a high level of
denial.
We~ brought
[petitioner] back, of course, and at
that point, we began to talk to him again. We went over
on numerous occasions since he has returned from the
state hospital his constitutional and statutory right to
a trial.
We have explained to him that he could call
witnesses on his behalf, cross-examine any of the
State's witnesses, present evidence, [and] attack the
foundations of the State's evidence.
He could make motions pretrial that would be to
strike the indictment for statutory or constitutional
flaw.
That he [could ask] for a judgment of acquittal
halfway through the trial after the State rests and also.
to present his own witnesses and to make another motion
for dismissal. And also, if he was found guilty, to ask
for a retrial based upon statutory or constitutional
violations before it was appealed.
He, at various times, has agreed that he never
wanted to go to trial and that [it] would be a good
recommendation to accept to go forward on a stipulated
facts trial.
Resp. Exh. 106, pp. 13-14.
'
Based on the evidence ln the record, trial counsel would not
reasonably have had a good faith basis to believe petitioner was
not capable of knowingly and voluntarily waiving his rights and
consenting
to
a
stipulated
facts
trial.
Petitioner
cannot
establish that reasonable jurists could debate whether this is so.
Accordingly,
petitioner has not established under Martinez that
the claim alleged in Ground Two is a "substantiai" claim and that
14 - OPINION AND ORDER -
:J
I
o
.:.0
PCR tiial counsel was ineffective in not alleging it in the PCR
petition,
and petitioner's
Alternatively,
merits.
procedural
default
is
not
excused.
the claim does not warrant habeas relief on its
Because
petitioner
has
made
no
showing
as
to
what
evidence he could develop in an evidentiary hearing to support his
claims, his request for an evidentiary hearing is denied.
Finally,
remaining
as noted,
two
Consequently,
petitioner did not directly address the
grounds
for
relief
in
his
Brief
in
Support.
petitioner has not met his burden of proof with
respect to these claims.
Notwithstanding this fail-1,1re, the court
has reviewed petitioner's unargued claims on the existing record
and finds that they do.not erititle him to habeas corpus relief.
CONCLUSION ·
For these reasons, the court DENIES the Amended Petition for
Writ of Habeas Corpus and DISMISSES this action.
The court DENIES a certificate of appealability as petitioner
has
not
made
a
substantial
constitutional right.
showing
See 28 U.S.C.
§
of
the
denial
2253(c)(2).
IT IS SO ORDERED.
DATED this
~
day
Owen M. Fanner
United States District Judge
15 - OPINION AND ORDER -
of
a
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