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