Pitt v. Nooth

Filing 97

OPINION AND ORDER: The Court DENIES the Second Amended Petition for Writ of Habeas Corpus 37 and DISMISSES this action. (See 21 page opinion for more information.) Signed on 9/16/17 by Judge Anna J. Brown. (dsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DOUGLAS LEROY PITT,
Civil No. 2:13-cv-01929-BR
Petitioner,
OPINION AND ORDER
v.
MARK NOOTH,
Respondent.
KRISTINA HELLMAN
Assistant Federal Public Defender
101 SW Main Street
Suite 1700
Portland, OR 972014
Attorney for Petitioner
ELLEN F. ROSENBLUM
Attorney General
NICHOLAS M. KALLSTROM
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301
Attorneys for Respondent

1 - OPINION AND ORDER -

BROWN, Judge.
Petitioner,

an

inmate

at

the

Snake

River

Correctional

Institution, brings this habeas corpus action pursuant to 28 U.S.C.
§ 2254 challenging a Lane County conviction and sentence.

For the

reasons that follow, the Court DENIES the Second Amended Petition
for Writ of Habeas Corpus (ECF No. 37).
BACKGROUND
On September 13, 2002, a Lane County grand jury indicted
Petitioner on two counts of Unlawful Sexual Penetration in the
First Degree and two counts of Sexual Abuse in the First Degree.
Resp. Exh. 102; State v. Pitt, 209 Or. App. 270, 273, 147 P.3d 940
(2006).

Previously, in December 2001, a Clatsop County grand jury

indicted Petitioner on two counts of Unlawful Sexual Penetration in
the First Degree and two counts of Sexual Abuse in the First
Degree.

Resp. Exh. 125; see also Pitt, 209 Or. App. at 272.

The

Clatsop County charges involved a single minor female victim, while
the Lane County charges involved her along with another minor
female victim.
The Clatsop County case was tried first.

In January of 2003,

a Clatsop County jury found Petitioner guilty of all charges.

The

Clatsop County trial judge sentenced Petitioner to consecutive 100month terms of imprisonment on the two Unlawful Sexual Penetration
convictions, and two concurrent 75-month terms of imprisonment on

2 - OPINION AND ORDER -

the Sexual Abuse convictions. Resp. Exh. 101. Thus, in total, the
Clatsop County trial court imposed 200 months of imprisonment.
In May 2003, a Lane County jury found Petitioner guilty of all
charges.

The Lane County trial judge sentenced Petitioner as

follows:

(1) 75 months of imprisonment on Count 1 (Sexual Abuse),

concurrent with the Clatsop County sentences; (2) 130 months of
imprisonment

on

Count

2

(Unlawful

Sexual

Penetration),

also

concurrent with the Clatsop County sentences; (3) 75 months of
imprisonment on Count 3 (Sexual Abuse), also concurrent with the
Clatsop County Convictions; and (4) 130 months of imprisonment on
Count 4 (Unlawful Sexual Penetration), consecutive to Counts 1, 2,
and 3, and consecutive to the Clatsop County sentences. Resp. Exh.
101.

Thus, the Lane County trial judge imposed a total of 260

months of incarceration, with 130 months to be served consecutive
to the 200-month sentenced imposed in Clatsop County.
In

November

2006,

the

Oregon

Court

of

Petitioner's convictions from both counties.
209

Or.

App.

reconsideration

270,
by

147
212

P.3d
Or.

940

App.

Appeals

reversed

See Pitt v. State,

(2006),

523

Id.

(2007)

adhered

to

(Clatsop

upon
County

convictions), and Pitt v. State, 209 Or. App. 349, 150 P.3d 1
(2006), adhered to upon reconsideration by 212 Or. App. 549 (2007)
(Lane County convictions).
Retrial took place in Clatsop County in October 2007.

The

Clatsop County jury again found Petitioner guilty on all charges,

3 - OPINION AND ORDER -

and the trial judge imposed the same sentences totaling 200 months
of imprisonment.
Retrial in Lane County took place in November 2007.

This

time, the Lane County jury convicted Petitioner on the two charges
of Sexual Abuse (Counts 1 and 3) and one count of Unlawful Sexual
Penetration (Count 2), but acquitted Petitioner on the Unlawful
Sexual Penetration charged in Count 4.1

The trial judge imposed a

130-month term of imprisonment on the Unlawful Sexual Penetration
conviction on Count 2, consecutive to the Clatsop County sentence.
Id.

On Count 1, the trial judge sentenced Petitioner to 75 months

of imprisonment, concurrent with the 130-month term imposed on
Count 2.

Id.

On Count 3, the trial judge imposed a 75-month term

of imprisonment, concurrent with the Clatsop County sentence and
consecutive to the 130-month sentence imposed on Count 2. Thus the
trial court imposed a total of 205 months of imprisonment, again
with 130 months to be served consecutively to the 200-month Clatsop
County sentence.
Petitioner appealed his Lane County convictions.

He asserted

one assignment of error, that the trial judge erred in instructing
the jury that it could convict Petitioner on the basis of a nonunanimous verdict.

Resp. Exh. 109.

The Oregon Court of Appeals

affirmed without opinion, and the Oregon Supreme Court denied

1

The jury verdicts were unanimous on Counts 1 and 2, and 11-1
for conviction on Count 3.
4 - OPINION AND ORDER -

review.

State v. Pitt, 229 Or. App. 742, 213 P.3d 876 (2009), rev.

denied, 347 Or. 608, 226 P.3d 43 (2010).
Petitioner also appealed his Clatsop County convictions.

In

October 2012, the Oregon Supreme Court reversed those convictions.
State v. Pitt, 352 Or. 566 (2012).

On remand, Petitioner pleaded

guilty to one count of Sexual Abuse in the First Degree.
Exh. 101.
75

Resp.

The Clatsop County trial court sentenced Petitioner to

months

of

imprisonment,

concurrent

with

the

Lane

County

sentences. Thus, Petitioner's final total term of imprisonment for
both cases is 205 months.
Petitioner challenged his Lane County convictions in a state
post-conviction

relief

("PRC")

proceeding.

Resp.

Exh.

115.

Following an evidentiary hearing, the PCR trial judge denied
relief. Resp. Exh. 129. Petitioner appealed, but the Oregon Court
of Appeals affirmed without opinion and the Oregon Supreme Court
denied review.

Pitt v. Nooth, 254 Or. App. 418, 295 P.3d 695, rev.

denied, 353 Or. 533, 300 P.3d 1222 (2013).
In June 2016, Petitioner filed a motion in Lane County to
modify

his

convictions

sentence.
in

Clatsop

Petitioner
County

had

argued
been

that

reversed

because
and

he

his
had

subsequently pleaded guilty to only one count of Sexual Abuse, he
was entitled to have his criminal history recalculated and to have

5 - OPINION AND ORDER -

his Lane County sentence modified accordingly. Pet. Exhs. pp. 2-3.
The trial court denied Petitioner's motion.

Resp. Exh. 135.2

On October 20, 2013, Petitioner filed his habeas petition in
this Court challenging his Lane County convictions.

Petitioner

alleges four claims for relief in his Second Amended Petition for
Writ of Habeas Corpus:
Ground One:
Petitioner's right to trial by jury, as
guaranteed by the Sixth and Fourteenth Amendments to the
United States Constitution, was violated when he was
convicted by non-unanimous jury verdicts.
Ground Two: Petitioner's rights under the Due Process
Clause of the Fourteenth Amendment to the United States
Constitution were violated when the trial court imposed
consecutive sentences as punishment for Petitioner's
refusal to plead guilty and for exercising his
constitutional rights to a trial by jury and appeal.
Ground Three:
Petitioner did not receive effective
assistance of trial counsel, as guaranteed by the Sixth
Amendment to the United States Constitution, when counsel
failed to object to the sentence under the Due Process
Clause of the Fourteenth Amendment to the United States
Constitution because it was vindictive; that is, it
punished Petitioner for exercising his rights to trial
and appeal.
Ground Four: Petitioner's sentence violates the Eighth
Amendment and the Due Process Clause of the Fourteenth
Amendment to the United States Constitution because as
currently imposed, it is enhanced using non-existent
criminal history.
In his original Brief in Support of the Second Amended
Petition, Petitioner addressed the claims alleged in Grounds One,
2

In June 2016, while the current action was pending,
petitioner filed a second motion to modify his sentence in Lane
County. Pet. Exhs. pp. 13-19. On July 7, 2016, the Lane County
trial court denied the motion. Resp. Exh. 135.
6 - OPINION AND ORDER -

Two, and Four.

As to the claims alleged in Grounds One and Four,

Respondent argues the state court decisions did not violate clearly
established law and are, therefore, entitled to deference.
As to the claim alleged in Ground Two, a due process trial
court

error

based

upon

the

trial

court's

alleged

vindictive

sentencing, Petitioner acknowledged it as procedurally defaulted
because appellate counsel failed to assert the claim on direct
appeal.

Petitioner argued, however, that the procedural default

should be excused under Martinez v. Ryan, 566 U.S. 1, 132 S. Ct.
1309 (2012), which the Ninth Circuit had extended to claims of
ineffective assistance of appellate counsel.
736 F.3d 1287 (9th Cir. 2013).

See Nguyen v. Curry,

After Petitioner filed his Brief,

however, the Supreme Court decided Davila v. Davis, 137 S. Ct. 2058
(2017),

which

procedural

held

default

that
when

Martinez
the

does

underlying

assistance of appellate counsel.

not

apply

claim

is

to

excuse

ineffective

As such, Petitioner now concedes

he cannot succeed on the claim alleged in Ground Two.
As noted, Petitioner did not originally address the claim
alleged in Ground Three, i.e., ineffective assistance of trial
counsel for failure to raise a Fourteenth Amendment objection to a
vindictive

sentence.

Following

Davila,

the

Court

granted

Petitioner leave to file a supplemental brief providing argument on
this claim.

Petitioner now takes the position that the claim is

procedurally defaulted because it was not raised in his state PCR

7 - OPINION AND ORDER -

proceeding, but argues that the procedural default is excused under
Martinez because his PCR trial counsel failed to allege the claim.3
Respondent argues the procedural default is not excused under
Martinez because Petitioner has not established a substantial claim
of ineffective assistance of trial counsel.

Respondent contends

that Petitioner is not entitled to habeas relief in any event
because the trial judge did not vindictively sentence Petitioner.
LEGAL STANDARDS
A petition for writ of habeas corpus filed by a state prisoner
shall not be granted with respect to any claim that was adjudicated
on the merits in state court unless the adjudication resulted in a
decision

that

was

"contrary

to,

or

involved

an

unreasonable

application of, clearly established Federal law," or "resulted in
a decision that was based on an unreasonable determination of the
facts in light of evidence presented."
(2);

Harrington

v.

Richter,

562

28 U.S.C. § 2254(d)(1) &

U.S.

petitioner bears the burden of proof.

86,

100

(2011).

The

Cullen v. Pinholster, 563

U.S. 170, 131 S. Ct. 1388, 1398 (2011).
"Under § 2254(d)(1), a state prisoner must show that the state
court's ruling on the claim being presented in federal court was so
lacking in justification that there was an error well understood

3

In his original Brief, Petitioner argued trial counsel
preserved the error, but that appellate counsel failed to raise it
on appeal. Now, however, Petitioner contends trial counsel failed
to preserve the error.
8 - OPINION AND ORDER -

and

comprehended

in

existing

fairminded disagreement."

law

beyond

any

possibility

for

White v. Wheeler, 136 S. Ct. 456, 460

(2015) (citing White v. Woodall, 134 S. Ct. 1697, 1702 (2014))
(internal

quotations

omitted).

The

Supreme

Court

recently

reiterated the high standard of deference required by § 2254(d):
"[t]his Court, time and again, has instructed that the AEDPA, by
setting forth necessary predicates before state-court judgments may
be set aside, 'erects a formidable barrier to federal habeas relief
for prisoners whose claims have been adjudicated in state court.'"
White, 134 S. Ct. at 460 (quoting Burt v. Titlow, 134 S. Ct. 10, 16
(2013)).
DISCUSSION
I.

Ground One - Non-Unanimous Jury Verdict
In Ground One, Petitioner alleges his right to trial by jury

was violated when he was convicted on one of the counts of Sexual
Abuse in the First Degree by an 11-1 jury verdict. Petitioner
alleges he is entitled to habeas relief because the Oregon trial
court denied him his Sixth Amendment right to a unanimous jury
verdict.
Petitioner acknowledges, however, that existing United States
Supreme Court precedent forecloses habeas relief on such a claim.
See Apodaca v. Oregon, 406 U.S. 404, 406 (1972) (a state court
criminal conviction by a less than unanimous jury does not violate
the Sixth Amendment right to trial by jury made applicable to
9 - OPINION AND ORDER -

states by the Fourteenth Amendment).

Nevertheless, Petitioner

argues that this Court should find Apodaca effectively overruled in
light of the Supreme Court's holdings in Blakely v. Washington, 542
U.S. 296 (2004) and Cunningham v. California, 549 U.S. 270 (2007).
A habeas court is limited to evaluating whether a state court
has unreasonably applied clearly established federal law in light
of express holdings of the United States Supreme Court. See Thaler
v. Haynes, 559 U.S. 43, 130 S. Ct. 1171, 1173 (2010) ("[a] legal
principle is 'clearly established' within the meaning of [28 U.S.C.
§ 2254(d)(1)] only when it is embodied in a holding of this
Court").

Neither Blakely nor Cunningham held that non-unanimous

juries are unconstitutional, and this Court will not extend their
holdings by implication to find as much.

See Wells v. Howton, 409

Fed. Appx. 86, 87 (9th Cir. 2010) (unpublished) (rejecting argument
that Blakely and Cunningham have undermined Apodaca and concluding
that "Apodaca is directly appealable, and we must follow it");
Youravish v. Brown, Case No. 1:14-cv-00262-KI, 2015 WL 1637210 (D.
Or. Apr. 13, 2015) (rejecting claim seeking relief based on the
right to a unanimous jury verdict, explaining that Apodaca is still
controlling precedent). Accordingly, Petitioner is not entitled to
habeas corpus relief on the claim alleged in Ground One.

10 - OPINION AND ORDER -

II.

Ground Three4 - Ineffective Assistance of Trial Counsel For
Failure to Object to Petitioner's Sentence
In

Ground

Three,

Petitioner

alleges

trial

counsel

was

constitutionally ineffective for failing to object to his Lane
County sentence on the grounds that it was vindictive; that is, it
punished Petitioner for exercising his right to appeal.

After the

first trial, Lane County Judge Gregory G. Foote imposed the
sentence on Count 2 to run concurrent with the Clatsop County
sentence and the sentence on Count 4 to run consecutive.

Upon

retrial, the jury acquitted Petitioner on Count 4. This time, Lane
County Judge Maurice K. Merten imposed the sentence on Count 2 to
run

consecutive

sentence.

instead

Petitioner

vindictiveness.

of

concurrent

argues

to

this

the

Clatsop

change

County

demonstrates

Respondent argues Petitioner is not entitled to

relief on this claim because the trial court's sentence was not the
product

of

vindictiveness

constitutionally

ineffective

and
for

trial
declining

counsel
to

was

object

to

not
the

sentence on that basis.5
4

As noted, Petitioner concedes he is not entitled to habeas
corpus relief on the claim alleged in Ground Two. As such, the
Court need not address that claim.
5

The parties disagree whether this claim is procedurally
defaulted. Because the Court finds Petitioner is not entitled to
relief on the merits, the procedural default issue is not
addressed. See 28 U.S.C. § 2254(b)(2) ("[a]n application for writ
of habeas corpus may be denied on the merits, notwithstanding the
failure of the applicant to exhaust the remedies available in the
courts of the State"); Runningeagle v. Ryan, 686 F.3d 758, 778 n.10
(9th Cir. 2012) (exercising discretion afforded under § 2254(b)(2)
11 - OPINION AND ORDER -

"To punish a person because he has done what the law plainly
allows him to do is a due process violation of the most basic
sort."

Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) (citing

North Carolina v. Pearce, 395 U.S. 711, 738 (1969)).

In Pearce,

the Supreme Court held that a "presumption of vindictiveness"
applies when a trial court imposes a harsher sentence upon retrial,
a presumption that must be rebutted with objective evidence in the
record justifying the harsher sentence.

Pearce, 395 U.S. at 726;

see also United States v. Goodwin, 457 U.S. 368, 374 (1982).
Before the Pearce presumption arises, "the second sentence imposed
on a defendant must, in fact, be more severe than the first.
United States v. Bay, 820 F.2d 1511, 1513 (9th Cir. 1987).

When

reviewing the second sentence, a court should not assess it on each
count individually, but instead on whether the second sentence
imposes a net increase in the aggregate.

See Bay, 820 F.2d at 1513

(although the defendant had been acquitted on retrial of a count
that carried mandatory time and the trial court therefore increased
his sentences as to other counts to reach the same net result, no
presumption of vindictiveness arose "because the court must look in
the aggregate and not merely with respect to each individual
count") (internal quotation omitted).

to decline to address procedural default issue where relief denied
on the merits), cert. denied, 133 S. Ct. 2766 (2013).
12 - OPINION AND ORDER -

The presumption of vindictiveness also does not arise when
different judges enter the sentences.

Texas v. McCullough, 475

U.S. 134, 140-41 (1986) (citing Colten v. Kentucky, 407 U.S. 104,
117 (1953).

In Colten, the Supreme Court "recognized that when

different sentencers are involved, '[it] may often be that the
[second sentencer] will impose a punishment more severe than that
received from the [first].

But it no more follows that such a

sentence is a vindictive penalty for seeking a [new] trial than
that

the

[first

sentencer]

imposed

a

lenient

penalty.'"

McCullough, 475 U.S. at 141 (quoting Colten, 407 U.S. at 117)
(modifications in original).
Where circumstances do not give rise to a presumption of
vindictiveness, a due process violation may be established only by
proof of actual vindictiveness.

Wasman v. United States, 468 U.S.

559, 568 (1984); Alabama v. Smith, 490 U.S. 794, 799 (1989).
burden is on the petitioner to make such a showing.

The

Smith, 490

U.S. at 799-800 (citing Wasman, 468 U.S. at 569).
Petitioner

argues

that

Judge

Foote

sentence in the first Lane County trial.

imposed

a

vindictive

Petitioner cites Judge

Foote's discussion at sentencing about whether to run the Lane
County sentences concurrent or consecutive to the Clatsop County
sentences:
THE COURT: Well, from my standpoint, I think the Court
needs to look
at these cases as a whole.
And the
sentence needs to reflect, I think, the fact that you had
a very damaging and totally wrong relationship with these
13 - OPINION AND ORDER -

children. And the issue before the Court is what is the
appropriate overall sentence to reflect both of those
things.
But I also need to reflect on the fact that these two
girls [the victims] had to come back to court for this
trial, even though they were unable to testify. They
were here, put through the ordeal of having to face the
fact that they might have to testify and somehow get into
this courtroom.
And the Court made observations as to how difficult that
was for them. And I think for those reasons, a complete
-- concurrent sentences is not appropriate.
What I'm going to do, however, is order that, on the two
Sex Abuse cases, that you serve a period of 75 months
with the Department of Corrections, those to run
concurrent and run concurrent to other sentences; that,
on the Sexual Penetration in Count 2, that that be a -that's a 130-month sentence, with a 100-month mandatory
minimum pursuant to Measure 11, that to run concurrent;
on Count 4, 130 months, with a 100-month mandatory
minimum, that to run consecutive.
Transcript of Proceedings ("Transcr."), ECF No. 26-1, p. 185.
Petitioner further argues that Judge Merten perpetuated the problem
after the second trial when he stated his intent to impose the same
amount of imprisonment imposed by Judge Foote.

Transcr., ECF No.

26-2, p. 243.
Petitioner has not established actual vindictiveness on Judge
Foote's part. Though Judge Foote referenced the difficulty the two
victims suffered as a result of having to attend another trial, he
also made clear the impact the crimes had on the victims drove his
decision.
purpose

in

Petitioner has not demonstrated that Judge Foote's
imposing

the

Lane

County

sentence

Petitioner for exercising his right to trial.
14 - OPINION AND ORDER -

was

to

punish

Further, even if a

vindictive motive could be attributed to Judge Foote, Petitioner
provides no authority supporting a claim that Judge Foote's alleged
vindictiveness could somehow be imputed to Judge Merten, who
imposed a shorter total sentence.

Accordingly, trial counsel was

not ineffective for failing to object based on Judge Foote's
alleged vindictiveness in relation to the Clatsop County case.
Finally,

Petitioner

has

not

established

Judge

Merten's

sentence "punished" Petitioner for exercising his right to appeal
in the Lane County case. Judge Merten engaged in an extensive
colloquy

with

Petitioner's

counsel

retrial.

before

imposing

Transcr.,

ECF

sentence

No.

26-2,

following

pp.

243-54.

Petitioner's trial counsel argued that it was "quite clear" that
Judge Merten was not authorized to impose more time than Judge
Foote, and Judge Merten specifically stated "I don't want to
insinuate in any fashion that [Petitioner's] going to get punished
for appeal."
Merten

Transcr., ECF No. 26-2, pp. 242, 244.

stated

consecutive

his

to

intention

the

Clatsop

to

run

County

the

sentence

sentences,

When Judge
on

trial

Count

2

counsel

objected:
COUNSEL:
To conclude, for the record, by sentencing
[Petitioner] to consecutive time to Clatsop County on a
count other than County 4 as was done last time would
constitute punishing him for his right to appeal.
Transcr., ECF No. 26-2, p. 249. While trial counsel did not object
based on an argument that Judge Foote's sentence was imposed
vindictively,

and

that

Judge

15 - OPINION AND ORDER -

Merten's

sentence

continued

the

vindictive nature of Judge Foote's sentence, trial counsel provided
constitutionally effective assistance.
Petitioner

has

not

established

trial

counsel

constitutionally ineffective assistance of counsel.

provided
As such,

Petitioner is not entitled to habeas relief on the claim alleged in
Ground Three.
III. Ground Four - Unconstitutional Sentence
In Ground Four, Petitioner alleges the trial court's sentence
violates the Eighth Amendment and the Due Process Clause because as
currently imposed, it is enhanced based upon a no-longer existent
criminal history.

Following Petitioner's retrial in Lane County,

the trial court imposed a 130-month presumptive sentence on the
conviction for Unlawful Sexual Penetration (Count 2), consecutive
to the Clatsop County sentences. To impose the 130-month sentence,
the Lane County trial judge first had to determine that Petitioner
had previously been convicted of three or more "person felonies,"
resulting in Petitioner being classified as an "A" offender on
Oregon's Criminal History Scale.6

Because the Lane County trial

judge sentenced Petitioner on his conviction for Unlawful Sexual
Penetration first, Petitioner contends the Lane County trial judge
necessarily

relied

upon

the

6

four

convictions

that

had

been

The Oregon Administrative Rules provide that an offender's
criminal history is based upon the number of "convictions and
juvenile adjudications in the offender's criminal history at the
time the current crime or crimes of conviction are sentenced." Or.
Admin. R. 213-004-0006(2) (emphasis supplied).
16 - OPINION AND ORDER -

previously entered in Clatsop County to classify Petitioner as an
"A."
As noted, however, after Petitioner's sentencing on re-trial
in Lane County, the four Clatsop County convictions were overturned
and Petitioner pleaded guilty to one count of Sexual Abuse.

Thus,

Petitioner argues, the 130-month sentence imposed on Count 2 in
Lane County is no longer valid because it was based upon a criminal
history that, while existent at the time of sentencing, is no
longer extant.

As such, Petitioner contends he is entitled to be

re-sentenced, and the Lane County trial court may consider only the
single conviction from Clatsop County in calculating Petitioner's
criminal history score.
Petitioner presented this argument to the Lane County court in
two separate motions to modify his sentence, one in 2014 and the
other in 2016.

In both motions, Petitioner argued he was entitled

to re-sentencing because the prior Clatsop County convictions upon
which his Lane County sentence was based had been overturned.

The

Lane County Circuit Court denied both motions without explanation
and, as Petitioner notes, those decisions are not subject to
appeal.

State v. Hart, 188 Or. App. 650, 72 P.3d 671, 672 (2003).

Respondent argues Petitioner is not entitled to habeas relief
on the claim alleged in Ground Four for two reasons:

first, the

trial court did not unreasonably apply federal law in sentencing
Petitioner in accordance with his criminal history score at the

17 - OPINION AND ORDER -

time he was sentenced; and, second, any error in doing so was
harmless.

In presenting their respective arguments, the parties

focus on the initial sentencing to determine whether the trial
judge violated clearly established federal law.

In the Court's

estimation, however, the appropriate focus is the trial court's
denial of Petitioner's motions to modify his sentence S if the
denial of the motions to modify was contrary to or an unreasonable
application of clearly established federal law, then Petitioner
would be entitled to habeas corpus relief.
In Townsend v. Burke, 334 U.S. 736 (1948), the defendant
pleaded guilty to crimes without the assistance of an attorney, and
was sentenced on the basis of a criminal history he did not
possess; the trial court relied upon one charge that had previously
been

dismissed

and

two

charges

previously been found not guilty.

on

which

the

defendant

had

Townsend, 334 U.S. at 739-40.

The Supreme Court held the defendant's sentence unconstitutional,
explaining:
[O]n this record we conclude that, while disadvantaged by
lack of counsel, this prisoner was sentenced on the basis
of assumptions concerning his criminal record which were
materially untrue.
Such a result, whether caused by
carelessness or design, is inconsistent with due process
of law, and such a conviction cannot stand.
Id. at 740-41.

Here, by contrast, at the time the Lane County

trial judge imposed Petitioner's sentence, the criminal history
upon which the judge relied was accurate.

18 - OPINION AND ORDER -

In U.S. v. Tucker, 404 U.S. 443 (1972), the trial court gave
"explicit attention" to three of the defendant's prior state-court
convictions in sentencing him.

Tucker, 404 U.S. at 444.

In a

subsequent collateral proceeding, two of those prior convictions
were deemed invalid because the defendant had been denied the
assistance of counsel in violation of Gideon v. Wainwright, 372
U.S. 335 (1963).

Tucker, 404 U.S. at 445-46.

The Supreme Court

concluded that re-sentencing was appropriate premised on prior
violations of the fundamental right to counsel under Gideon.
The Supreme Court declined to extend its holding from Tucker
in Custis v. United States, 511 U.S. 485 (1994).

The Court

rejected the defendant's arguments that the Constitution entitled
him to collaterally challenge prior convictions used to enhance his
sentence at his sentencing hearing:
Custis invites us to extend the right to attack
collaterally prior convictions used for sentence
enhancement beyond the right to have appointed counsel
established in Gideon. We decline to do so.
Id. at 496.
Although the Court in Custis did not permit the defendant to
collaterally attack his prior convictions during his sentencing
hearing, it suggested that he may be able to challenge his sentence
in the event that the prior convictions used to enhance his
sentence were later overturned in another proceeding.
issue, the Court declined to express an opinion:

19 - OPINION AND ORDER -

On that

If Custis is successful in attacking these state
sentences, he may then apply for reopening of any federal
sentence enhanced by the state sentences. We express no
opinion on the appropriate disposition of such an
application.
Id. at 497.
A legal principle may be "clearly established" if the Supreme
Court

has

applicable

announced
to

a

a

"controlling

petitioner's

modification" of the standard.
(9th Cir. 2009).

claim

legal

standard"

without

that

is

"tailoring

or

Moses v. Payne, 555 F.3d 742, 754

Where the Supreme Court has explicitly declined

to address an issue, it cannot be said that the state court
unreasonably applied federal law with respect to that issue.

See

Wright v. Van Patten, 552 U.S. 120, 126 (2008) ("[b]ecause our
cases give no clear answer to the question presented, let alone one
in [petitioner's] favor, 'it cannot be said that the state court
unreasonably applied clearly established federal law.'") (quoting
Carey v. Musladin, 549 U.S. 70, 77 (2006)) (internal alterations
omitted).
The Supreme Court has not clearly established that a prisoner
in Petitioner's position may re-visit his sentence based upon a
later successful attack on prior sentences relied upon to justify
the current sentence.

As such, the Lane County court's decisions

denying Petitioner's motions to modify sentence are entitled to
deference, and Petitioner is not entitled to habeas relief on the
claim alleged in Ground Four.

20 - OPINION AND ORDER -

CONCLUSION
For

these

reasons,

the

Court

DENIES

the

Second

Amended

Petition for Writ of Habeas Corpus (ECF No. 37) and DISMISSES this
action.
The Court DENIES a certificate of appealability as Petitioner
has

not

made

a

substantial

constitutional right.

showing

of

the

denial

of

See 28 U.S.C. § 2253(c)(2).

IT IS SO ORDERED.
DATED this

16th

day of September, 2017.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge

21 - OPINION AND ORDER -

a