Herrera-Lopez v. Nooth

Filing 31

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). (See 10 page opinion for more information) Signed on 10/18/16 by Judge Michael W. Mosman. (dsg)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON OMAR HERRERA-LOPEZ, Case No. 2:15-cv-01188-MO Petitioner, OPINION AND ORDER v. MARK NOOTH, Respondent. Nell Brown Assistant Federal Public Def ender 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 Attorney for Petitioner Ellen F. Rosenblum, Attorney General Nick M. Kallstrom, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent 1 - OPINION AND ORDER MOSMAN, District Judge. Pe ti ti oner U.S.C. that 2254 § Robbery, brings challenging the corpus legality case of pursuant his to 28 state-court and Kidnapping convictions. the For the reasons Petition Assault, follow, habeas this Corpus for Writ of Habeas (#2) is denied. BACKGROUND On June 1, 2004, petitioner assaulted a 15-year-old girl whom he believed had "ratted out" one of his friends. course of several knuckles, strangled her, three times, hours, petitioner hit closet, Respondent's Exhibits 119 & 120. her. the victim with brass stabbed her with confined her to a Over the a knife in the leg and threatened to As a result, kill the Marion County Grand Jury indicted petitioner on two counts of Kidnapping in the First Degree. Degree, one count of Assault in the Second petitioner and two of his friends robbed Respondent's Exhibit 104. On June 9, two and Gervais countryside. 2004, men at gunpoint and left them Respondent's Exhibits 122 & 123. stranded in the Based upon this incident, the Marion County Grand Jury indicted petitioner on two counts of Robbery in the First Kidnapping in the Second Degree. On July 9, both cases. girl, Degree and two counts of Respondent's Exhibit 105. 2004, petitioner entered into plea agreements in In the case involving the assault of the 15-year-old the State agreed to dismiss one count of Kidnappin~ I in exchange for petitioner's guilty plea to the other Kidnapping I 2 - OPINION AND ORDER charge as well as the Assault II charge. 107. Respondent's Exhibit Id. The parties agreed that sentencing would be open. In the case involving the robbery of the Gervais men, petitioner agreed to plead guilty to an Amended Indictment that included two reduced counts of Robbery II. In exchange, State dismissed the two charges of Kidnapping II. the parties to an open sentencing proceeding. the Once again, Respondent's Exhibit 106. The trial court engaged in a colloquy with petitioner before taking his plea, and ultimately imposed mandatory minimum sentences on each conviction as follows: 90 months for Kidnapping I, 70 months for Assault II, and 70 months on each of the Robbery II convictions. Defense counsel asked the court to run only the Kidnapping I and one Robbery II count consecutively for a total sentence of 160 months, whereas the State asked that all convictions run consecutively for a total sentence of 300 months. The court imposed the State's requested sentence. Respondent's Exhibit 108, pp. 18-20. Pe ti ti oner took a direct appeal challenging the imposition of consecutive convictions. The sentences Oregon on Court court's decision without opinion, the Assault of Appeals and Kidnapping affirmed the trial and the Oregon Supreme Court denied review. State v. Herrera-Lopez, 204 Or. App. 188, 129 P.3d 238, rev. denied, 341 Or. 140, 139 P.3d 258 (2006). Petitioner next filed for post-conviction relief ("PCR") in Marion County where he argued that his trial attorney failed to adequately advise him leading up to the entry of his plea such 3 - OPINION AND ORDER that his plea was neither knowing or voluntary. Exhibit 116. 137. The PCR court denied relief. Respondent's Respondent's Exhibit The Oregon Court of Appeals, affirmed the PCR court without opinion, and the Oregon Supreme Court denied review. Lopez v. Premo, 268 Or. App. Herrera- 717, 344 P.3d 567, rev. denied, 357 Or. 299, 353 P.3d 594 (2015). Petitioner filed this 28 U.S.C. June 26, § 2254 habeas corpus case on 2015 raising five grounds for relief, Respondent asks the court to deny relief on the Pe ti ti on because: failed to fairly present four of his leaving them procedurally defaulted; ( 1) petitioner five grounds for and (2) the relief, PCR court reasonably applied clearly established federal law when it denied petitioner's remaining ground for relief. DISCUSSION I. Standard of Review An application for a writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was: (1) ''contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) ''based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." U.S.C. § correct, 2254(d). A state court's findings of fact are presumed rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § and 28 petitioner 2254 (e) (1). 4 - OPINION AND ORDER bears the burden of A state court decision established precedent if is the "contrary state court to clearly applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases'' or ''if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent." Under the Williams v. "unreasonable 529 U.S. Taylor, application" 362, clause, 405-06 federal a (2000). habeas court may grant relief "if the state court identifies the correct governing but legal principle from unreasonably applies prisoner's case." clause requires incorrect § 2254(d) or that Id at the 413. state erroneous. [the Supreme Court's] principle The court Id at to the decisions facts of the ''unreasonable application'' decision 410. to be more Twenty-eight than U.S.C. ''preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents. U.S. 86, It goes no farther." 102 (2011). v. Richter, 562 "If this standard is difficult to meet, that is because it was meant to be." II. Harrington Id. Unargued Claims As previously noted, Petition. petitioner raises five claims in his In his supporting memorandum, however, he chooses to brief whether his trial attorney was constitutionally ineffective when he failed to advise petitioner before recommending that he enter into a plea agreement that did not exposure. limit his sentencing This claim corresponds to Ground Two of his Petition. 5 - OPINION AND ORDER Petitioner claims, nor does does not he argue address the merits respondent's of his argument remaining that these claims are procedurally defaulted and therefore ineligible for federal habeas corpus carried his claims. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) burden review. of As proof with such, respect petitioner to these (petitioner bears the burden of proving his claims). has not unargued Even if petitioner had briefed the merits of these claims, the court has examined them based upon the existing record and determined that they do not entitle him to relief. III. Ground Two: Ineffective Assistance of Counsel As Ground Two, petitioner contends defense counsel should have spent more time preparing his defense and meeting with him so as to fully and effectively advise him regarding whether to proceed to trial or accept an offer to plead guilty with open sentencing. Because no Supreme Court precedent is directly on point that corresponds to the facts of this case, the court uses the general two-part test established by the Supreme Court to determine whether petitioner received ineffective assistance of counsel. First, Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). petitioner must show that his counsel's performance fell below an objective Washington, standard of reasonableness. 466 U.S. 668, 686-87 (1984). Strickland v. Due to the difficulties in evaluating counsel's performance, courts must indulge a strong presumption that the conduct falls reasonable professional assistance.'' 6 - OPINION AND ORDER within the Id at 689. "wide range of Second, petitioner must show that his counsel's performance prejudiced the defense. whether the The appropriate test for prejudice is petitioner probability that, can show "that there is a but for counsel's unprofessional reasonable errors, result of the proceeding would have been different.'' In proving prejudice, a petitioner who has the Id at 694. pled guilty or no contest to an offense must demonstrate that there is a reasonable probability that, but for counsel's errors, he would not have entered such a plea and would have insisted on going to trial. Hill v. general Lockhart, 474 standard is governing 28 U.S.C. "doubly deferential § U.S. 52, combined 59 (1985) with the When Strickland's standard of review 2254 habeas corpus cases, the result is a Mirzayance, judicial review." 556 U.S. at 122. During petitioner's PCR proceedings, he claimed that defense counsel advised him that if he accepted the State's plea offer, he would receive a sentence of only 13 years, whereas he faced a 60-year term if he proceeded to trial. Respondent's Exhibit 136. Defense counsel submitted an Affidavit for consideration during petitioner's PCR action in which he asserted: "I never would have told [petitioner] plead[ed] guilty. that I he would only may have told likely would get 160 months but I what his sentence would be." get [him] 160 that months I if he though [t] he would not have said that is Respondent's Exhibit 133, p. 3. The PCR court ruled as follows: As I indicated, I've read this entire file. I'm denying post-conviction relief. The 7 - OPINION AND ORDER findings will be basically the following: this Court does not believe that the attorney promised 160 months. This was a negotiated [that] was open sentencing. It stated in the plea petition and on the record. Petitioner's 15 shows there was a breakdown done for the sentences. I think it most likely that the attorney told the client that 160 was the minimum possible, and obviously would be a nice goal, but I do not believe the attorney promised that that was going to happen. The impetus for the plea has something to do with the charging reductions, the sentencing was still open sentencing was a significant potential maximum. The Petitioner pled to Robbery II, so it was sufficient if Petitioner purported to have a gun, and of course he was arrested with a gun and told his lawyer he had a gun. So he didn't have to point it at anybody for the Rob II. I believe that the attorney did discuss the facts of the case and the evidence for trial. He did discuss and give Petitioner discovery. Based on Petitioner's statement, he never pointed the gun. He got a reduction to Rob II. The original plea that was requested was a Rob is Rob Is. The case proceeded quickly, but there is insufficient proof that the representation in any way was inadequate and I find no prejudice. I find the plea was knowing and voluntary. Respondent's Exhibit 136, pp. 23-24. The PCR court's factual findings, including its credibility determination that counsel did not promise petitioner he would receive only 160 months in prison if he pled guilty, are entitled to a presumption of correctness. See 28 U.S.C. § 2254 (e) (1). Petitioner has not overcome that presumption as to any of the PCR court's factual findings by clear and convincing evidence. 8 - OPINION AND ORDER Petitioner nevertheless argues that adequately research and investigate the invalid guilty plea. of case, failed resulting to in an He first asserts that no property was taken from one of the Gervais victims, convicted counsel Robbery II thus he could not have been involving that victim. The record reveals that petitioner and his friends deprived both victims of their possessions when they "took their keys, wallet, watch, cell phone, and money." Respondent's Exhibit 122, p. 5. were not the case, the failure to deprive one particular victim of property during a robbery in Oregon does not Even if this necessarily absolve a defendant from a robbery conviction as to that victim. State v. Hamilton, 348 Or. 371, 378 (2010) (a victim of robbery need not be the owner or possessor of the property sought by the assailant) . Petitioner also contends that although the State dismissed the two Kidnapping II charges in relation to the Gervais men as part of the plea deal, this was of no practical benefit to him where those convictions would have merged with his Robbery II convictions under Oregon law. Pursuant to ORS 161.067(1), where the same conduct "violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations." require proof of distinct elements, merged by operation of law. and ORS 164.405 (Robbery II). 9 - OPINION AND ORDER Robbery II and Kidnapping II thus they would not Compare ORS 163.225 have (Kidnapping II) Based that upon foregoing, counsel's performance reasonableness. relief on was the neither fell Accordingly, peti ti.oner's contrary petitioner not established below an objective standard of the PCR court's ineffective to, nor has an assistance decision denying of unreasonable counsel claim application of, clearly established federal law. 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 of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c) (2). IT IS SO ORDERED. DATED this ~ day of October, 2016. United Sta 10 - OPINION AND ORDER Judge

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