Phillips v. Angelozzi
Filing
38
Opinion and Order. The Petition for Writ of Habeas Corpus 3 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 pursuant to 28 U.S.C. § 2253(c)(2). Signed on 12/20/2013 by Judge Owen M. Panner. (dkj)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MATTHEW STEVEN PHILLIPS,
Civil No. 1:12-cv-01022-PA
Petitioner,
OPINION AND ORDER
v.
RICK ANGELOZZI,
Respondent.
MATTHEW STEVEN PHILLIPS
1417 Appleton Circle
Medford, OR 97504
Petitioner Pro Se
ELLEN F. ROSENBLUM
Attorney General
NICK M. KALLSTROM
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301
Attorneys for Respondent
1 - OPINION AND ORDER -
•'.
PANNER, Judge.
Petitioner,
Corrections,
a
former
brings
U.S.C. § 2254.
this
inmate
of
habeas
the
corpus
Oregon
action
Department
pursuant
to
of
28
For the reasons that follow, the Court DENIES the
Petition for Writ of Habeas Corpus (#3).
BACKGROUND
On March 25,
2005,
a Jackson County jury found Petitioner
guilty on charges of Robbery in the First Degree, Kidnaping in the
First Degree, and Kidnaping in the Second Degree.
On May 6, 2005,
the trial judge sentenced Petitioner to 90 months of imprisonment
on the first two counts, and merged the conviction on count three
into the conviction on count two.
Petitioner appealed.
of
Appeals
Phillips,
affirmed
217
Or.
In a written opinion, the Oregon Court
the
App.
conviction
93,
174
and
sentence.
P.3d 1032
(2007).
sought review from the Oregon Supreme Court,
State
v.
Petitioner
which was denied.
State v. Phillips, 345 Or. 159, 190 P.3d 380 (2008).
Petitioner then sought state post-conviction relief ("PCR").
Following
relief.
an
evidentiary
hearing,
the
PCR
trial
Petitioner appealed the PCR judgment.
filed a Balfour brief on Petitioner's behalf,
judge
denied
Appellate counsel
in which counsel
acknowledged he had "not identified any arguably meritorious issue
2 - OPINION AND ORDER -
on appeal." 1
Resp.
Exh.
164,
p.
3.
Counsel
although he had "supplied [petitioner]
trial
court
records
opportunity to
and
provided
'raise any issue'
also noted that
with copies of pertinent
[petitioner]
a
reasonable
in a Section B portion of the
brief[,]" petitioner chose not to file a Section B.
164, p. 4.
and
the
Angelozzi,
Resp. Exh.
The Oregon Court of Appeals affirmed without opinion,
Oregon
Supreme
247 Or. App.
Court
766,
denied
review.
274 P.3d 315,
rev.
Phillips
denied,
v.
351 Or.
761, 280 P.3d 393 (2012).
On June 7, 2012, Petitioner filed this action.
The Petition
for Writ of Habeas Corpus alleges four grounds for relief:
denial of effective assistance of trial counsel;
(2)
( 1)
conviction
obtained by the unconstitutional failure of the prosecution to
disclose
evidence
evidence; and
(4)
favorable
to
petitioner;
(3)
new evidence of actual innocence.
insufficient
Respondent
contends that Petitioner procedurally defaulted all of the claim
alleged and that,
to the extent
Petitioner's third and fourth
grounds are construed as free-standing claims of actual innocence,
they are not cognizable.
1
Under Or. R. App. P. 5.90, if court-appointed counsel finds
no meritorious issues for appeal, he or she may submit a brief with
two parts.
State v. Balfour, 311 Or. 434, 814 P.2d 1069 (1991).
Section A is signed by counsel and provides a brief statement of
the case. Section B is prepared by the petitioner, and may include
any claim of error that the petitioner wishes to assert.
3 - OPINION AND ORDER -
DISCUSSION
I.
Exhaustion and Procedural Default
A
habeas
petitioner
must
exhaust
his
presenting them to the state's highest court,
claims
by
fairly
either through a
direct appeal or collateral proceedings,
before a federal court
will consider the merits of those claims.
28 U.S.C. § 2254 (b) (1);
Rose v.
Lundy,
petitioner
455 U.S.
satisfies
509,
the
519
(1982).
exhaustion
"As a general rule, a
requirement
by
fairly
presenting the federal claim to the appropriate state courts .
. in the manner required by the state courts, thereby 'affording
the state courts a meaningful opportunity to consider allegations
of legal error.'"
2004)
Casey v. Moore, 386 F.3d 896, 915-916 (9th Cir.
(quoting Vasquez v. Hillery, 474 U.S. 254, 257
(1986)).
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.
Castillo v.
Peoples,
489 U.S. 346, 351
(1989).
A petitioner is deemed to have "procedurally defaulted" his
claim if he
failed to comply with a
state procedural rule,
failed to raise the claim at the state level at all.
Carpenter, 529 U.S. 446, 451 (2000); Coleman
722,
750
(1991).
v.
or
Edwards v.
·Thompson, 501 U.S.
If a petitioner has procedurally defaulted a
4 - OPINION AND ORDER -
claim in state court,
a federal court will not review the claim
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
U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992).
On direct appeal, Petitioner assigned as error the admission
of evidence of a prior bad act and the constitutionality of his
sentence.
Neither claim is at issue in this habeas corpus action.
During petitioner's state PCR proceeding,
claims
of
ineffective
assistance
misconduct to the PCR trial court.
of
he presented numerous
counsel
and prosecutorial
Petitioner did not, however,
raise any claim whatsoever on appeal. 2
Petitioner did not fairly
present any of the claims alleged in his Petition to the highest
state court,
and he is barred from now doing so.
Accordingly,
Petitioner procedurally defaulted all of the grounds for relief.
2
In the brief on appeal to the Oregon Court of Appeals,
petitioner's PCR appellate attorney contended that by filing a
section A Balfour brief, petitioner was not abandoning any of the
allegations made in the formal PCR petition to the trial court.
Attachment of a petitioner's PCR petition to a Balfour brief can
present legal questions for review "so long as the attachment
serves as . the Section B of the petitioner's brief."
Farmer v.
Baldwin, 346 Or. 67, 80, 205 P.3d 871 (2009).
However, mere
reference in section A of a Balfour brief to the claims asserted in
the underlying trial proceeding is not sufficient to fairly present
those claims on appeal.
See Jackson v. Belleque, 2010 WL 348357,
*4 (D.Or. Jan. 21, 2010) (inclusion of post-conviction petition in
excerpt of record does not function as an incorporation by
reference).
5 - OPINION AND ORDER -
II.
Fundamental Miscarriage of Justice Exception to Procedural
Default
In Grounds Three and Four, petitioner appears to assert that
he is actually innocent.
A claim of actual innocence can excuse
a procedural default where the petitioner introduces new evidence
of his factual innocence such that, in light of that new evidence,
no reasonable juror would have convicted him.
u.s. 298, 327 (1995)
of
his
innocence.
Schlup v. Delo, 513
Petitioner has not introduced new evidence
Petitioner
claims
he
has
identified
three
witnesses who would testify in his favor, but he does not identify
the
witnesses
testimony.
or
indicate
Accordingly,
the
substance
of
their
proposed
Petitioner cannot excuse his procedural
default.
Moreover, because petitioner cannot make a gateway showing of
actual innocence under Schlup,
to the extent Grounds Three and
Four are construed as asserting a free-standing actual innocence
claim, petitioner cannot prevail. 3
555
(2006)
stronger
House v. Bell,
547 U.S.
518,
(a freestanding claim of innocence requires an even
showing
of' innocence
than
a
gateway
showing
under
Schlup) .
3
To the extent Ground Three is intended to constitute a due
process challenge to the sufficiency of the evidence, such a claim
is procedurally defaulted because it was not raised on direct
appeal.
6 - OPINION AND ORDER -
CONCLUSION
For these reasons,
(#3)
is DENIED.
Appealability
substantial
on
the Petition for Writ of Habeas Corpus
The court declines to issue a Certificate of
the
showing
basis
of
pursuant to 28 U.S.C.
§
the
that
denial
petitioner
of
a
has
not
made
constitutional
2253(c) (2).
IT IS SO ORDERED.
DATED this
~~day of December, 2013.
~--
Owen M. Panner
United States District Judge
7 - OPINION AND ORDER -
a
right
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