Templeton v. Coursey et al
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
OPINION AND ORDER
RICK COURSEY, et al.,
Mark Forest Templeton
Eastern Oregon Correctional Institution
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
2254 in which he appears to challenge the legality of a
habeas corpus case pursuant to
Murder in Umatilla County, and guilty to one count of Conspiracy
to Commit Murder.
Respondent's Exhibit 103.
As a result,
trial court sentenced him to life imprisonment with a
prison term on the Conspiracy conviction.
Petitioner was not successful in his subsequent direct and
post-conviction relief ("PCR") appeals.
In 2011, the Board determined that petitioner suffered from
danger to the health or safety of the community.
Exhibit 136, pp.
As a result,
2011, petitioner filed a state habeas corpus
Id at 1-3.
The State asked the court to deny the
facts to state a claim for habeas corpus relief."
Exhibit 138, p. 1.
it deferred petitioner's
projected release date approximately ten years.
On August 26,
Specifically, the State argued that because
2 - OPINION AND ORDER
ORS 144.335 entitled petitioner to direct judicial review of the
he was not eligible to seek state habeas corpus
The state habeas court granted the motion,
petitioner had other avenues by which to challenge the Board's
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
Pe ti ti on because:
present any claims pertaining to the Board's 2011 deferral of his
release to parole to Oregon's state courts, leaving those claims
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
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.
the majority of the claims in his Petition
attack those convictions.
Specifically, petitioner alleges that:
his direct appellate counsel altered his criminal judgment
(2) the prosecution refused to provide him with any
after he entered his pleas
(3) his criminal trial judge did not take a proper oath
evidence and witnesses
(Ground Six); and
his trial attorney
improperly allowed him to enter into plea bargains despite his
innocence (Ground Seven) .
In his supporting memoranda, however, petitioner advises the
Memo in Support
(#43), p. 2; Memo in Support (#44),
he asserts that he wishes to challenge "the
multiple court ordered plea agreement contract violations."
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.
Respondent's Exhibits 111-12.
4 - OPINION AND ORDER
terrorism and Effective
1996 are timely only if filed before April 24,
there is no dispute that it falls outside of the
argues that the one-year statute of limitations contained within
and because the AEDPA' s
limitations is lawful,
application to him
321 F. 3d 820,
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.
grounds for relief pertaining to his convictions and sentence are
therefore dismissed as untimely. 2
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.
A habeas petitioner must exhaust
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
5 - OPINION AND ORDER
before a federal court will consider the merits of those claims.
"As a general rule, a
in the manner required by the state courts, thereby
'affording the state courts a meaningful opportunity to consider
allegations of legal error.'"
Casey v. Moore, 386 F.3d 896, 915-
(quoting Vasquez v.
A federal court is precluded from reviewing the
merits of a claim if the state court denial was based upon the
application of a
state law that is
independent of the federal
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.
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.
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
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
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
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
(emphasis in original) .
Because petitioner may no longer pursue his due process and
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
See ORS 138.071
(requiring that direct
demonstrated cause and prejudice or made a colorable showing of
to excuse his
relief on the Petition is denied.
For the reasons identified above,
the Petition for Writ of
court declines to issue a
Certificate of Appealability on the basis that petitioner has not
right pursuant to 28 U.S.C.
IT IS SO ORDERED.
United States District Judge
8 - OPINION AND ORDER
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