Bumgarner v Nooth
Filing
23
OPINION AND ORDER: The Petition for Writ of Habeas Corpus 1 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 6/15/15 by Judge Michael W. Mosman. (dsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
KEVIN MITCHELL BUMGARNER,
Case No. 2:14-cv-01269-MO
Petitioner,
v.
MARK NOOTH,
OPINION AND ORDER
Respondent.
Jay W. Frank
Moule & Frank
259 E. 5th Avenue
Eugene, Oregon 97401,
Attorney for Petitioner
Ellen F. Rosenblum, Attorney General
Frederick M. Boss, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent
1 - OPINION AND ORDER
MOSMAN, District Judge.
Petitioner brings
U.S.C.
§
2254
this
habeas
challenging
the
corpus
legality
case pursuant to
of
his
28
state-court
convictions for Sexual Abuse, Rape, Unlawful Sexual Penetration,
Kidnapping,
Because the court finds petitioner's
and Assault.
claims to be procedurally defaulted,
the
Petition for Writ of
Habeas Corpus (#1) is denied.
BACKGROUND
On August 21,
2003, the Douglas County Grand Jury indicted
petitioner on eleven sex crimes involving a four-year-old girl.
A
jury ultimately convicted petitioner of two counts each of Sexual
Abuse in the
First Degree,
Rape in the First Degree,
Unlawful
Sexual Penetration with a Foreign Object in the First Degree, and
Kidnapping in the First Degree.
Trial Transcript, p. 1584.
The
jury also convicted petitioner of a single count of Assault in the
Third Degree.
Id.
As a result, the trial court sentenced him to
730 months in prison.
Trial Transcript, p. 1623.
Petitioner took a direct appeal,
and the Oregon Court of
Appeals initially remanded the case for resentencing on the basis
that the trial court had erred by imposing consecutive sentences
without the proper factual findings from the jury.
Exhibit 108.
Oregon v.
Respondent's
However, after the U.S. Supreme Court's decision in
Ice,
129 S.Ct.
711
(2009)
wherein it reaffirmed the
authority of courts to impose consecutive sentences in the absence
2 - OPINION AND ORDER
of
specific
findings
by
a
jury,
the
Oregon
Court
of Appeals
withdrew it's initial disposition and modified its decision to
affirm petitioner's sentence.
Respondent's Exhibit 114.
Petitioner next filed for post-conviction relief ("PCR")
Malheur County where the PCR trial court granted relief,
in
finding
that trial counsel should have argued for merger of petitioner's
convictions.
Respondent's Exhibit 141.
The PCR trial court denied
relief on the remainder of petitioner's convictions.
The
Id.
Oregon Court of Appeals affirmed the PCR trial court's decision in
a written opinion.
Respondent's Exhibit 150.
Neither party sought
review by the Oregon Supreme Court.
It
appears
petitioner's
case
was
then
remanded
for
a
resentencing proceeding that is not part of the record before this
court.
Respondent's Exhibit 141.
Following that resentencing, on
August 26, 2013, petitioner filed a Motion for New Trial on the
basis that the leg brace he was required to wear during his 2003
trial prevented him from having a fair trial.
1-2, p. 24.
Petition Exhibit
The trial judge denied the motion, finding it to be
untimely and not properly before the court.
Petitioner filed this 28 U.S.C.
August 6, 2014.
§
Id at 1.
2254 habeas corpus action on
In his Petition, he presents the following grounds
for relief:
1.
Petitioner's physical restraint at his
jury trial without prior evidence that
would have permitted the trial court to
find that petitioner posed an immediate
3 - OPINION AND ORDER
or serious risk of committing dangerous
or
disruptive
behavior,
or
that
petitioner posed a serious risk of
escape, and without any prior finding,
violated
petitioner's
right
to
Due
Process under the Fifth and Fourteenth
Amendments to the Constitution of the
United States.
2.
Ineffective assistance of counsel by
petitioner's attorneys at trial,
on
appeal,
during
post-conviction
proceedings, and during proceedings on
his motion for a new trial prevented
petitioner from properly raising or
exhausting the issue set out above as
Ground One.
Petition (#1), pp. 8-11.
Respondent
asks the court to deny relief on the
Petition
because:
(1) petitioner failed to fairly present Grounds One and
Two
the
to
Oregon
state
courts,
leaving
them
procedurally
defaulted; (2) to the extent petitioner fairly presented his Ground
One due process claim, the state court denied relief based upon an
independent and adequate state procedural rule such that the claim
is not eligible for federal review;
and
(3)
Ground Two alleges
freestanding claims of ineffective assistance of counsel that are
not subject to habeas corpus review.
DISCUSSION
I.
Exhaustion and Procedural Default Standards
A
habeas
petitioner
must
exhaust
his
presenting them to the state's highest court,
direct appeal or collateral proceedings,
4 - OPINION AND ORDER
claims
by
fairly
either through a
before a federal court
will consider the merits of those claims.
509, 519 (1982).
Rose v. Lundy, 455 U.S.
''As a general rule, a petitioner satisfies the
exhaustion requirement by fairly presenting the federal claim to
the appropriate state courts .
state courts,
thereby
. in the manner required by the
'affording the state courts a meaningful
opportunity to consider allegations of legal error.'''
Moore, 386 F. 3d 896,
Hillery,
915-916
474 U.S. 254, 257,
(9th Cir. 2004)
(1986)).
Casey v.
(quoting Vasquez v.
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.
v.
Carpenter,
529 U.S. 446,
453
(2000); Castille v.
Edwards
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.
or
Edwards v.
Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S.
722,
750
(1991).
If a petitioner has procedurally defaulted a
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.
5 - OPINION AND ORDER
Gray v.
Netherland,
518
U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992);
Murray v. Carrier, 477 U.S. 478, 485 (1986).
II.
Analysis
A.
Ground One: Due Process
As Ground One, petitioner alleges that the court's requirement
that he wear a leg restraint during his jury trial violated his
right to due process.
It is clear from the record that petitioner
did not raise his claim during his direct appeal.
Exhibit 103.
Respondent's
Petitioner argues, however, that he presented the due
process claim to the Douglas County Circuit Court in his Motion for
New Trial, which he filed after entry of the Amended Judgment in
2013.
He claims that because an appeal was not permitted from the
Douglas County Circuit Court's denial of his Motion,
he was not
obligated to present his claim to the Oregon Supreme Court in order
to fairly present it.
Petitioner's Motion seeking a new trial came approximately
nine years after the conclusion of his criminal trial.
Not only
was the Motion for New Trial not the method contemplated by Oregon
law for petitioner to raise his due process claim of trial court
error, 1 but the Douglas County Circuit Court specifically denied
See Guinn v. Cupp, 304 Or. 488, 497, 747 P.2d 984 (1987)
(where the record shows that a defendant was shackled, the record
is sufficient for the issue to be raised on direct appeal); see
also State v. Alvarez-Vega, 240 Or. App. 616, 618 n. 1 (2011)
("we do not wish to leave the impression that a motion for a new
trial based on alleged error in the trial proceedings may be
6 - OPINION AND ORDER
petitioner's Motion as untimely and not properly before the court.
In this respect, petitioner's claim is subject to the procedural
default
bar because
for
two
reasons:
( 1)
he
failed
to
fairly
present it in an appropriate procedural context; and (2) the state
court expressly rejected petitioner's claim based upon a
state
procedural rule independent of federal law, and adequate to support
the decision.
See Coleman v. Thompson, 501 U.S. 722, 729 (1991).
Petitioner contends that there is no evidence that the Oregon
Rules of Civil Procedure employed to reject his Motion as untimely
were firmly established and regularly followed,
thus the Douglas
County Circuit Court did not rely upon an independent and adequate
state procedural rule to bar his claim.
U.S.
411,
424
(1991)
(a
state
See Ford v. Georgia,
procedural
rule
constitutes
498
an
adequate bar to federal court review if it was "firmly established
and regularly followed" at the time it was applied by the state
court) .
Petitioner's conclusory contention is insufficient to show
that the state procedural rules are not firmly established and
regularly followed.
Cir. 2003)
See Bennett v. Mueller, 322 F.3d 573, 586 (9'h
(petitioner must make "specific factual allegations that
demonstrate the inadequacy of the state procedural rule, including
citations to authorities demonstrating inconsistent application of
timely filed after a resentencing following remand on appeal.
See ORCP 64 F. ") .
7 - OPINION AND ORDER
the rule.").
Because petitioner fails to carry his burden, he is
unable to excuse his procedural default.
Although petitioner also argues that his Motion was timely
under Oregon law, this assertion amounts to a disagreement with a
Such issues are not
state court over an issue of state law.
reviewable in the habeas corpus context.
U.S.
62,
67-68
province
of
(1991)
federal
a
("[W)e
habeas
Estelle v. McGuire, 502
reemphasize
court
to
that
it
is
reexamine
not
the
state-court
determinations on state-law questions.").
In his Ground Two claim,
petitioner offers
(but does not
argue) what might be considered another excuse for his procedural
default, namely that his PCR attorney "did not make a claim in the
petition
for
post-conviction
unconstitutional
trial.
restraining
relief
of
the
petitioner
Petition (#1), p.
"
on
10.
basis
during
of
his
the
jury
Pursuant to Martinez v.
Ryan, 566 U.S. ----, 132 S.Ct. 1309 (2012), inadequate assistance
from
a
PCR
trial
procedural default.
attorney
However,
can
establish
cause
to
excuse
a
this excuse to procedural default
applies only to claims of ineffective assistance of trial and
direct appellate counsel,
Nguyen v.
Curry,
not due process claims.
736 F.3d 1287,
1293
Martinez to direct appellate counsel).
(9th Cir.
2013)
Id at
1315;
(extending
For all of these reasons,
petitioner's Ground One claim is procedurally defaulted, and the
default is not excused.
8 - OPINION AND ORDER
B.
Ground Two: Ineffective Assistance of Counsel
In Ground Two, petitioner alleges that his attorneys during
his trial, direct appeal, PCR proceedings, and Motion for New Trial
all rendered ineffective assistance when they failed to raise his
due process claim or, in the case of PCR counsel, when they failed
to raise ineffective assistance of counsel claims predicated on the
due process claim. 2
Respondent contends that petitioner failed to
fairly present all of these claims to the state courts, and they
are now procedurally defaulted.
He also asserts that the claims
pertaining to PCR counsel and counsel on the Motion for New Trial
are not cognizable in a federal habeas proceeding.
Petitioner does not support his Ground Two claims with any
briefing,
relief
nor does he address respondent's arguments as to why
should
be
denied
on
these
claims.
In
this
respect,
petitioner fails to sustain his burden of proof on these claims.
See
Silva
v.
Woodford,
279
F.3d
825,
835
(9th
(petitioner bears the burden of proving his claims).
Cir.
2002)
Accordingly,
petitioner is not entitled to habeas corpus relief on these claims.
CONCLUSION
For the reasons identified above,
Habeas
Corpus
( #1)
is denied.
The
the Petition for Writ of
court declines
to
issue a
Certificate of Appealability on the basis that petitioner has not
2
In this respect, the court does not view petitioner as
raising freestanding claims of ineffective assistance of counsel
as the State argues.
9 - OPINION AND ORDER
made a substantial showing of the denial of a constitutional right
pursuant to 28 U.S.C.
§
2253(c) (2).
10 - OPINION AND ORDER
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