Herrera-Lopez v. Nooth
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 2:15-cv-01188-MO
OPINION AND ORDER
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
and Kidnapping convictions.
For the reasons
On June 1,
petitioner assaulted a
whom he believed had "ratted out" one of his friends.
Respondent's Exhibits 119 & 120.
the victim with brass
stabbed her with
confined her to a
and threatened to
As a result,
County Grand Jury indicted petitioner on two counts of Kidnapping
petitioner and two of his friends
Respondent's Exhibit 104.
On June 9,
Respondent's Exhibits 122 & 123.
Based upon this
incident, the Marion County Grand Jury indicted petitioner on two
Kidnapping in the Second Degree.
On July 9,
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
exchange for petitioner's guilty plea to the other Kidnapping I
2 - OPINION AND ORDER
charge as well as the Assault II charge.
The parties agreed that sentencing would be open.
petitioner agreed to plead guilty to an Amended Indictment that
reduced counts of Robbery
State dismissed the two charges of Kidnapping II.
The trial court engaged in a colloquy with petitioner before
sentences on each conviction as follows: 90 months for Kidnapping
I, 70 months for Assault II, and 70 months on each of the Robbery
Defense counsel asked the court to run only the
Kidnapping I and one Robbery II count consecutively for a total
convictions run consecutively for a total sentence of 300 months.
The court imposed the State's requested sentence.
Exhibit 108, pp. 18-20.
Pe ti ti oner took a direct appeal challenging the imposition
court's decision without opinion,
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")
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
his plea was neither knowing or voluntary.
The PCR court denied relief.
The Oregon Court of Appeals, affirmed the PCR court without
and the Oregon Supreme Court denied review.
Premo, 268 Or. App.
717, 344 P.3d 567, rev. denied,
Or. 299, 353 P.3d 594 (2015).
Petitioner filed this 28 U.S.C.
2254 habeas corpus case on
2015 raising five grounds for relief,
the court to deny relief on the Pe ti ti on because:
failed to fairly present four of his
( 1) petitioner
five grounds for
reasonably applied clearly established federal law when it denied
petitioner's remaining ground for relief.
Standard of Review
shall not be
granted unless adjudication of the claim in state court resulted
unreasonable application of, clearly established Federal law, as
(2) ''based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding."
A state court's findings of fact are presumed
presumption of correctness by clear and convincing evidence.
2254 (e) (1).
4 - OPINION AND ORDER
contradicts the governing law set forth in [the Supreme Court's]
cases'' or ''if the state court confronts a set of facts that are
Court and nevertheless arrives at a result different from [that]
court may grant relief "if the state court identifies the correct
legal principle from
[the Supreme Court's]
''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
It goes no farther."
"If this standard is difficult to meet,
that is because it was meant to be."
As previously noted,
petitioner raises five claims in his
In his supporting memorandum,
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
limit his sentencing
This claim corresponds to Ground Two of his Petition.
5 - OPINION AND ORDER
claims are procedurally defaulted and therefore ineligible for
See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002)
(petitioner bears the burden of proving his claims).
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
Because no Supreme Court precedent is directly on
point that corresponds to the facts of this case, the court uses
general two-part test
established by the
Supreme Court to
determine whether petitioner received ineffective assistance of
petitioner must show that his counsel's performance fell
below an objective
466 U.S. 668, 686-87 (1984).
Due to the difficulties
in evaluating counsel's performance, courts must indulge a strong
reasonable professional assistance.''
6 - OPINION AND ORDER
Id at 689.
Second, petitioner must show that his counsel's performance
prejudiced the defense.
The appropriate test for prejudice is
but for counsel's unprofessional
result of the proceeding would have been different.''
In proving prejudice,
petitioner who has
Id at 694.
pled guilty or no
contest to an offense must demonstrate that there is a reasonable
he would not have
entered such a plea and would have insisted on going to trial.
governing 28 U.S.C.
2254 habeas corpus cases, the result is a
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
may have told
likely would get 160 months but I
what his sentence would be."
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.
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
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
The impetus for the plea has something to do
with the charging reductions, the sentencing
was still open sentencing was a significant
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.
didn't have to point it at anybody for the
I believe that the attorney did
discuss the facts of the case and the
evidence for trial.
He did discuss and give
Based on Petitioner's statement, he never
pointed the gun.
He got a reduction to Rob
II. The original plea that was requested was
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
presumption of correctness.
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
adequately research and investigate the
invalid guilty plea.
He first asserts that no property was taken
from one of the Gervais victims,
thus he could not have been
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
Even if this
absolve a defendant from a robbery conviction as to that victim.
348 Or. 371,
(a victim of robbery
need not be the owner or possessor of the property sought by the
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
there are as many separately punishable offenses as there
are separate statutory violations."
merged by operation of law.
and ORS 164.405 (Robbery II).
9 - OPINION AND ORDER
Robbery II and Kidnapping II
they would not
Compare ORS 163.225
below an objective
clearly established federal law.
For the reasons identified above,
the Petition for Writ of
Certificate of Appealability on the basis that petitioner has not
right pursuant to 28 U.S.C. § 2253(c) (2).
IT IS SO ORDERED.
day of October, 2016.
10 - OPINION AND ORDER
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