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)

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