Templeton v. Coursey et al
Filing
64
OPINION AND ORDER: the Petition for Writ of Habeas Corpus 2 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 2/14/17 by Judge Michael H. Simon. (Mailed copy to petitioner) (dsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MARK FOREST TEMPLETON,
Case No. 2:14-cv-01322-SI
Petitioner,
OPINION AND ORDER
v.
RICK COURSEY, et al.,
Respondents.
Mark Forest Templeton
7947738
Eastern Oregon Correctional Institution
2500 Westgate
Pendleton, OR 97801-9699
Petitioner, Pro Se
Ellen F. Rosenblum, Attorney General
Samuel A. Kubernick, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondents
1 - OPINION AND ORDER
SIMON, District Judge.
Petitioner brings this
U.S.C.
2011
28
2254 in which he appears to challenge the legality of a
§
decision
Supervision
that
habeas corpus case pursuant to
by
the
("Board")
follow,
the
Oregon
Board
of
deferring his
Petition
for
Parole
release.
Writ
of
Habeas
and
Post-Prison
For the
Corpus
reasons
(#2)
is
count
of
denied.
BACKGROUND
In
1991,
petitioner
pleaded
no-contest
to
one
Murder in Umatilla County, and guilty to one count of Conspiracy
to Commit Murder.
Respondent's Exhibit 103.
As a result,
the
trial court sentenced him to life imprisonment with a
20-year
minimum
20-year
on
the
Murder
conviction,
and
a
prison term on the Conspiracy conviction.
101.
consecutive
Respondent's Exhibit
Petitioner was not successful in his subsequent direct and
post-conviction relief ("PCR") appeals.
In 2011, the Board determined that petitioner suffered from
a
present
severe
emotional
disturbance
so
as
to constitute
danger to the health or safety of the community.
Exhibit 136, pp.
6,
77.
As a result,
action
in
Umatilla
Id.
2011, petitioner filed a state habeas corpus
County
wherein
decision.
Id at 1-3.
petition as
"meritless because
he
challenged
the
Board's
The State asked the court to deny the
it
failed
to allege
facts to state a claim for habeas corpus relief."
Exhibit 138, p. 1.
Respondent's
it deferred petitioner's
projected release date approximately ten years.
On August 26,
a
sufficient
Respondent's
Specifically, the State argued that because
2 - OPINION AND ORDER
ORS 144.335 entitled petitioner to direct judicial review of the
Board's order,
relief.
Id at
finding
he was not eligible to seek state habeas corpus
habeas
2.
The state habeas court granted the motion,
corpus
unavailable
under
state
law
where
petitioner had other avenues by which to challenge the Board's
action.
Respondent's Exhibits 140-41.
Petitioner appealed the state habeas court's dismissal with
the assistance of appointed counsel, but counsel could not find
any non-frivolous issues for appeal and submitted a Balfour brief
on petitioner's behalf. 1
The Oregon Court of Appeals affirmed
the state habeas court's decision without opinion, and the Oregon
Templeton v. Coursey, 260 Or. App.
Supreme Court denied review.
782, 325 P.3d 69, rev. denied, 355 Or. 381, 328 P.3d 697 (2014).
Petitioner filed this 28 U.S.C.
August 18, 2014.
§
2254 habeas corpus case on
In his Petition, he raises claims pertaining to
both the Board's 2011 deferral of his release to parole as well
as
his
court
underlying
to deny
pertaining
to
procedurally
criminal
relief on
the
petitioner's
defaulted;
convictions.
and
Respondent
Pe ti ti on because:
1991
convictions
(2)
petitioner
( 1)
are
asks
any claims
untimely
failed
the
to
and
fairly
present any claims pertaining to the Board's 2011 deferral of his
release to parole to Oregon's state courts, leaving those claims
procedurally defaulted.
1
Oregon's Balfour procedure provides that counsel need not ethically
withdraw when faced with only frivolous issues.
Rather, the attorney may file
Section A of an appellant's brief containing a statement of the case
sufficient to "apprise the appellate court of the jurisdictional basis for the
appeal." State v. Balfour, 311 Or. 434, 451, 814 P.2d 1069 (1991). The
defendant may then file the Section B segment of the brief containing any
assignments of error he wishes.
Id at 452.
3 - OPINION AND ORDER
DISCUSSION
I.
Claims Arising from Petitioner's Convictions
The cover page of the Petition for Writ of Habeas Corpus
purports to challenge petitioner's 1991 convictions.
(#2), p. 1.
Indeed,
the majority of the claims in his Petition
attack those convictions.
( 1)
Specifically, petitioner alleges that:
his direct appellate counsel altered his criminal judgment
(Ground Two);
(2) the prosecution refused to provide him with any
discovery until
Three);
of
Petition
four
years
after he entered his pleas
(Ground
(3) his criminal trial judge did not take a proper oath
office
(Ground
(Ground
Five);
Four);
(5)
law
evidence and witnesses
( 4)
his
indictments
enforcement
personnel
(Ground Six); and
(6)
were
unlawful
tampered
with
his trial attorney
improperly allowed him to enter into plea bargains despite his
innocence (Ground Seven) .
In his supporting memoranda, however, petitioner advises the
court
that
he
sentence.
p.
does
seek
Memo in Support
Instead,
2.
not
to
challenge
his
convictions
(#43), p. 2; Memo in Support (#44),
he asserts that he wishes to challenge "the
Id.
multiple court ordered plea agreement contract violations."
Because
the
or
Petition
appears
to
place
the
legality
of
petitioner's convictions at issue, the court first addresses the
claims related to those convictions.
Petitioner entered his pleas in 1991,
and his convictions
became final shortly thereafter when he voluntarily dismissed his
direct appeal in 1992.
which
challenge
Respondent's Exhibits 111-12.
convictions
4 - OPINION AND ORDER
that
became
final
Petitions
before
Anti-
terrorism and Effective
April 24,
Ford
v.
Penalty Act's
effective
date
1996 are timely only if filed before April 24,
305
Hubbard,
petitioner
did
August 2014,
AEDPA' s
Death
not
F.3d
file
875,
this
882
(9th
federal
Cir.
of
1997.
Where
challenge
habeas
2002).
until
there is no dispute that it falls outside of the
one-year
statute
of
limitations.
Instead,
petitioner
argues that the one-year statute of limitations contained within
the
AEDPA
is
unlawful
judicial oversight,
amounts
to
an
clearly
predates
because
it
to
and because the AEDPA' s
ex post
violation
facto
the
statute.
limitations is lawful,
Ferguson
(2003),
amounts
AEDPA's
v.
an
absence
of
application to him
where
his
one-year
Palmateer,
conviction
statute
321 F. 3d 820,
of
823
and it is proper to apply the AEDPA to his case because
he filed his Pe ti ti on after the statute's effective date.
Woodford
v.
Garceau,
538
U.S.
202,
207
(2003).
See
Petitioner's
grounds for relief pertaining to his convictions and sentence are
therefore dismissed as untimely. 2
II.
Challenge to Parole Deferral
In his remaining ground for relief (Ground One), petitioner
alleges that the Board improperly deferred his release to parole
in 2011 when it violated his rights to due process and to be free
from ex post facto punishment.
his
claims
court,
by
fairly
A habeas petitioner must exhaust
presenting
them
to
the
state's
highest
either through a direct appeal or collateral proceedings,
2 Although not the basis of the dismissal of these claims, the court also
notes that petitioner is prohibited from challenging multiple state court
judgments in the same Petition. Rule 2(e) of the Rules Governing Section 2254
Cases.
5 - OPINION AND ORDER
before a federal court will consider the merits of those claims.
Rose v.
455 U.S.
Lundy,
509,
the
"As a general rule, a
519 (1982).
petitioner
satisfies
presenting
the
courts .
in the manner required by the state courts, thereby
federal
exhaustion
claim
requirement
the
to
by
fairly
appropriate
state
'affording the state courts a meaningful opportunity to consider
allegations of legal error.'"
916
(9th Cir.
257,
(1986)).
2004)
Casey v. Moore, 386 F.3d 896, 915-
(quoting Vasquez v.
474 U.S.
Hillery,
254,
A federal court is precluded from reviewing the
merits of a claim if the state court denial was based upon the
application of a
question
Thompson,
and
state law that is
adequate
501 U.S.
to
722,
independent of the federal
support
729-32
the
(1991);
judgment.
Coleman
v.
White,
166
Vansickel v.
F.3d 953, 957 (9th Cir.), cert. denied, 528 U.S. 965 (1999).
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.
529 U.S.
Carpenter,
If
a
petitioner
court,
a
federal
446,
has
451
(2000);
procedurally
court
will
not
defaulted
review
the
Edwards v.
501 U.S.
Coleman,
a
claim
or
at 750.
in
state
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.
162
(1996);
Sawyer v.
Whitley,
Gray v.
Netherland,
505 U.S.
333,
337
518 U.S.
152,
(1992); Murray
v. Carrier, 477 U.S. 478, 485 (1986).
As discussed above,
petitioner challenged the Board's 2011
deferral of his parole in a state habeas corpus action.
6 - OPINION AND ORDER
However,
ORS 144.335 provided that his judicial remedy was a direct appeal
of the adverse parole decision to the Oregon Court of Appeals.
Given that he had such a judicial remedy, ORS 34.330 forbade him
from filing for habeas corpus relief.
Consequently, the Umatilla
County Circuit Court dismissed the state habeas action pursuant
to statutory rules that were independent of the federal question
and adequate to support the judgment of dismissal.
The state habeas
court
issued its
judgment on a standard
form and, in so doing, checked the boxes indicating that the case
presented federal and state constitutional issues and that "[a]ll
questions were presented and decided."
It does not appear from
the record that the state habeas court actually considered the
merits
of
petitioner's
solely
on
procedural
However,
even
alternative
claims, 3
grounds.
assuming
holding
and
on
the
the
instead
decided
Respondent's
state
merits
habeas
of
the
Exhibits
court
petitioner's
case
140-41.
reached
an
claims,
"a
state court need not fear reaching the merits of a federal claim
in an alternative holding.
By its very definition, the adequate
and independent state ground doctrine requires the federal court
to honor a state holding that is a sufficient basis for the state
court's
judgment,
federal
law."
even
Harris
when
v.
the
Reed,
state
489 U.S.
court
255,
also
264
relies
n.10
on
(1989)
(emphasis in original) .
Because petitioner may no longer pursue his due process and
ex
post
facto
claims
in
Oregon's
state
courts,
they
are
3
This is especially true where the State did not file any briefing on the
merits of petitioner's claims, and asked the Judge to dismiss the case solely
for procedural reasons.
Respondent 1 s Exhibit 138.
7 - OPINION AND ORDER
procedurally defaulted.
appeals
be
filed
See ORS 138.071
within
30
(requiring that direct
days).
Petitioner
has
not
demonstrated cause and prejudice or made a colorable showing of
actual
innocence
so as
to excuse his
default.
Accordingly,
relief on the Petition is denied.
CONCLUSION
For the reasons identified above,
Habeas Corpus
( #2)
is denied.
The
the Petition for Writ of
court declines to issue a
Certificate of Appealability on the basis that petitioner has not
made
a
substantial
showing
right pursuant to 28 U.S.C.
of
§
the
denial
of
a
constitutional
2253(c)(2).
IT IS SO ORDERED.
DATED this
~
day of
United States District Judge
8 - OPINION AND ORDER
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