Archuleta v. Myrick
OPINION and ORDER - The Court DENIES the Petition for Writ of Habeas Corpus (ECF No. 2) and DISMISSES this action. The Court DENIES a certificate of appealability as Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).IT IS SO ORDERED. DATED this 13th day of February, 2017, by United States Magistrate Judge John V. Acosta. (peg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PAUL A. ARCHULETA,
Civil No. 2:15-cv-01895-AC
OPINION AND ORDER
ANTHONY D. BORNSTEIN
Assistant Federal Public Defender
101 SW Main Street
Portland, OR 97204
Attorney for Petitioner
ELLEN F. ROSENBLUM
NICK M. KALLSTROM
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301
Attorneys for Respondent
1 - OPINION AND ORDER -
ACOSTA, Magistrate Judge.
Petitioner, an inmate at the Two Rivers Correctional Institution, brings this habeas corpus
action pursuant to 28 U.S.C. § 2254. The parties have consented to the jurisdiction of a magistrate
pursuant to 28 U.S.C. § 636. For the reasons that follow, the Court DENIES the Petition for Writ
of Habeas Corpus (ECF No. 2).
In the summer of2010, Petitioner began discussing a plan to produce methamphetamine with
two co-conspirators, James Tilton and Nicholas Thomas. According the plan described by Thomas
at trial, he was to cook the meth, Tilton was to sell the meth, and Petitioner was to act as security for
The three came up with a plan to "do something really bad" for the purpose of binding their
commitment. The plan was to take someone into the woods and kill them, and for all tln·ee to take
part in the killing. Specifically, all three were to stab the victim, and then Tilton would slit the
victim's throat at the end. The chosen victim was Tilton's then-girlfriend.
On July 6, 2010, the tln·ee told the victim they were taking her with them on a trip to Mexico
and started driving into the coast range. At a secluded spot along the highway, they pulled over and
all four got out and walked into the woods. Tilton ordered the victim to take off all of her clothes,
which she did. Then, as planned, Tilton held the victim from behind while Thomas and Petitioner
each stabbed her tln·ee to four times in the abdomen and chest. Tilton then took the knife and slashed
the victim's throat several times, then twisted her neck in an effort to break it.
2 - OPINION AND ORDER -
The victim played dead, and Tilton and Thomas threw her down a slope toward a creek. She
then got up and ran. Thomas and the Petitioner ran after her and saw her lying on the ground next
to a tree. Only Petitioner went over to her, and when he returned he told Thomas and Tilton that he
had hit her with a stick, that she didn't move, and that he thought she was dead. The three left her
for dead and went back to town.
The victim got up and walked along a creek. Her left lung was punctured, so she often had
to stop and lie down. She was using her left hand to put pressure on her neck, and her right hand to
cover her other wounds, including one in her abdomen through which her intestines were hanging
out. Eventually, she crawled under a fence and came to a barn. The barn owner was working in her
yard when she spotted the victim, who was not wearing any clothes, was covered in blood, and
appeared very weak. The barn owner called police, and the victim was able to tell the 911 operator
the names of the people who had attacked her. The victim was transported to Emanuel Hospital,
where she recovered. Police apprehended the three men later that night.
On July 15, 2010, a Clatsop County grand jury indicted Petitioner on five counts of
Attempted Aggravated Murder and one count each of Assault in the First Degree, Robbery in the
First Degree, and Kidnapping in the First Degree. Resp. Exh. 102. The case was tried to a jury. The
u'ial judge dismissed three counts of Attempted Aggravated Murder and the charge of Robbery in
the First Degree. Resp. Exh. 116, p. 1. The jury acquitted Petitioner on one of the remaining counts
of Attempted Aggravated Murder and the Kidnapping in the First Degree charge. Id. The jury found
Petitioner guilty of Attempted Murder (as a lesser-included offense of the remaining Attempted
Aggravated Murder charge) and Assault in the First Degree. Id.
3 - OPINION AND ORDER -
The trial judge sentenced Petitioner to 90 months of imprisonment on each conviction, to be
served consecutively, and to be followed by three year of post-prison supervision. Resp. Exh. 116,
p. 15. The court also imposed a total money award of $120,771.56, including $20,487.56 in
restitution and a $100,000.00 compensatory fine. Resp. Exh. 116, pp. 2-3.
Petitioner filed a direct appeal, arguing that the trial court erred in imposing consecutive
sentences. Resp. Exh. 116, pp. 9-19. In response, the State argued that the court properly imposed
consecutive sentences for assaulting, and then attempting to murder the victim. Resp. Exh. 117. The
Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review.
State v. Archuleta, 257 Or. App. 70, 303P.3d1016, rev. denied, 354 Or. 389, 315 P.3d420 (2013).
Petitioner filed a petition for state post-conviction relief ("PCR") alleging, inter alia, that trial
counsel was constitutionally ineffective for failing to adequately object to the consecutive sentences.
Resp. Exh. 125, p. 4. Petitioner also asserted other ineffective assistance of counsel claims, as well
as claims of trial error. Id. at pp. 5-6.
The PCR trial court appointed counsel to represent Petitioner. At a hearing on the matter,
Petitioner's counsel stated that he was unable to construe Petitioner's PCR petition to state a ground
for relief. Resp. Exh. 135, pp. 104. Counsel explained:
I have reviewed the file and transcripts in their entirety. The trial court sentenced the
petitioner to consecutive sentences under ORS 137.123(5), making the required
findings to allow consecutive sentences. The court found not one, but both bas[e]s
for making its ruling regarding consecutive sentences. Evidence was presented by
witnesses at trial which allowed the court to impose consecutive sentences.
Petitioner's trial counsel ... requested the court impose concurrent sentences, but the
court chose not do do so. ORS 161.067 does not prevent the court from imposing
consecutive sentences. In point of fact, it states that these are two separate crimes.
4 - OPINION AND ORDER -
The court is allowed to make the sentences consecutive if it makes the required
findings under ORS 137.123(5).
Resp. Exh. 135, pp. 1-4.
Following the hearing, the PCR trial court issued a judgment dismissing the petition as
meritless pursuant to Or. Rev. Stat. § 138.525. Resp. Exh. 126. Petitioner appealed, but the appeal
was dismissed because the PCR trial court's order was not appealable pursuant to Or. Rev. Stat. §
138.525(3). Resp. Exh. 134. The Oregon Supreme Court dismissed the petition for review. Resp.
Petitioner filed a pro se Petition for Writ of Habeas Corpus in this Court, alleging seven
grounds for relief. (ECF No. 2). In his counseled Brief in Suppo1t of Petition for Writ of Habeas
Corpus, however, Petitioner asks this Court to reach only the claim alleged in Ground One, that trial
counsel was constitutionally ineffective in failing to properly object to the consecutive sentences.
A petition for writ of habeas corpus filed by a state prisoner shall not be granted with respect
to any claim that was adjudicated on the merits in state court unless the adjudication resulted in a
decision that was "contra1y to, or involved an unreasonable application of, clearly established
Federal law," or "resulted in a decision that was based on an unreasonable determination of the facts
in light of evidence presented." 28 U.S.C. § 2254(d)(l) & (2); Harrington v. Richter, 562 U.S. 86,
100 (2011). Petitioner bears the burden of proof. Cullen v. Pinholster, 131 S. Ct. 1388, 1398
"Under§ 2254(d)(l), a state prisoner must show that the state court's ruling on the claim
being presented in federal court was so lacking in justification that there was an error well
5 - OPINION AND ORDER -
understood and comprehended in existing law beyond any possibility for fairminded disagreement."
White v. Wheeler, 136 S. Ct. 456, 460 (2015)(citing White v. Woodall, 134 S. Ct. 1697, 1702(2014))
(internal quotations omitted). The Supreme Cami recently reiterated the high standard of deference
required by§ 2254(d): "[t]his Court, time and again, has instructed that the AEDPA, by setting forth
necessary predicates before state-court judgments may be set aside, 'erects a formidable barrier to
federal habeas relieffor prisoners whose claims have been adjudicated in state court."' White, 134
S. Ct. at 460 (quoting Burt v. Titlow, 134 S. Ct. 10, 16 (2013)).
Claims ofineffective assistance of counsel are examined under Strickland v. Washington, 466
U.S. 668 (1984). "The benchmark for judging any claim of ineffectiveness must be whether
counsel's conduct so undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result." Id. at 686. In order to prevail on a claim of
ineffectiveness of counsel, a petitioner must establish two factors.
First, the petitioner must establish that counsel's performance was deficient, i.e., that it fell
below an "objective standard of reasonableness" under prevailing professional norms, "not whether
it deviated from best practices or most common custom." Harrington, 562 U.S. at 105 (citing
Strickland, 466 U.S. at 690). "A court considering a claim of ineffective assistance must apply a
'strong presumption' that counsel's representation was within the 'wide range' of reasonable
professional assistance." Id. at 104 (quoting Strickland, 466 U.S. at 689).
Second, the petitioner must establish that he was prejudiced by counsel's deficient
performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A reasonable
probability is a probability sufficient to undermine confidence in the outcome. Id. "The likelihood
6 - OPINION AND ORDER -
of a different result must be substantial, not just conceivable." Harrington, 562 U.S. at 112 (citing
Strickland, 466 U.S. at 693).
The standards of both 28 U.S.C. § 2254(d) and Strickland are "highly deferential, and when
the two apply in tandem, review is doubly so." Harrington, 562 U.S. at 105 (quotation marks
omitted). "[T]he question [under § 2254(d)] is not whether counsel's actions were reasonable. The
question is whether there is any reasonable argument that counsel satisfied Strickland's deferential
At Petitioner's sentencing hearing, trial counsel objected to the imposition of consecutive
sentences on the basis of Or. Rev. Stat.§ 137.123, which provides in pertinent part:
(4) When a defendant has been found guilty ofmore than one criminal offense arising
out of a continuous and uninterrupted course of conduct, the sentences imposed for
each resulting conviction shall be concurrent unless the court complies with the
procedures set forth in subsection (5) of this section.
(5) The court has discretion to impose consecutive terms of imprisonment for
separate convictions arising out of a continuous and uninterrupted course of conduct
only ifthe court finds:
(a) That the criminal offense for which a consecutive sentence is
contemplated was not merely an incidental violation of a separate statutory
provision in the course of the commission of a more serious crime but rather
was an indication of defendant's willingness to commit more than one
criminal offense; or
(b) The criminal offense for which a consecutive sentence is contemplated
caused or created a risk of causing greater or qualitatively different loss,
injury or harm to the victim than was caused or threatened by the other
offense or offenses committed during a continuous and uninterrupted course
Or. Rev. Stat.§ 137.123(4) & (5).
7 - OPINION AND ORDER -
Trial counsel argued that the conduct underlying Petitioner's convictions was continuous and
uninterrupted. The trial court then announced its findings under both subsections 5(a) and 5(b), that
the assault indicated Petitioner's willingness to commit more than one criminal offense, and that the
assault caused a greater or qualitatively different injury to the victim.
The trial court's findings under subsection (5) were supported by evidence in the record.
Testimony revealed that the plan among the co-conspirators involved inflicting a number of nonlethal wounds before inflicting a lethal injury. Petitioner's conduct in conformity with the plan
supports the trial court's finding that Petitioner indicated a willingness to commit more than one
criminal offense; Petitioner intended to assault the victim by stabbing her several times before his
co-conspirator attempted to kill her by cutting her tluoat.
Similarly, the assault committed by Petitioner (i.e., when Petitioner stabbed the victim in the
abdomen) caused qualitatively different harm than the attempted murder (when Petitioner's coconspirator cut the victim's throat and twisted her neck). The surgeon who treated the victim
testified that due to the stab wounds to her abdomen, the victim had a three-to-five percent lifetime
risk of needing another operation because of bowel obstruction due to scar formation. Tr., pp. 37475. He also detailed the additional surgical steps and extended recovery time required for those
wounds. Tr., 365-73.
In his state PCR proceedings, Petitioner argued trial counsel should have objected to the
consecutive sentences under Or. Rev. Stat. § 161.067, which provides in pertinent part:
When the same conduct or criminal episode 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.
8 - OPINION AND ORDER -
Or. Rev. Stat. § 161.067(1). This statute, however, does not support any objection to Petitioner's
Under Oregon law, the statutory provisions prohibiting attempted murder and first-degree
assault each require proof of an element the other does not. Attempted murder is committed "when
a person intentionally engages in conduct that constitutes a substantial step toward intentionally
causing the death of a human being." State v. Lavender, 68 Or. App. 514, 516, 682 P.2d 823, 824
(1984); Or. Rev. Stat. § 161.405 (defining "Attempt")§ 163.005 (defining "Criminal homicide"),
§ 163.115 (defining "Murder"). Oregon law provides that a person commits first-degree assault if
he "[i]ntentionally causes serious physical injury to another by means of a deadly or dangerous
weapon." Or. Rev. Stat. § 163.185. Thus, one requires an intent to cause the death of a human
being, and the other requires infliction of serious physical injury with a weapon, which are two
different elements. As such, § 161.067 recognizes separately punishable offenses for each statutory
violation and does not support any objection to Petitioner's consecutive sentences.
The facts underlying Petitioner's convictions do not demonstrate that Petitioner was entitled
to concurrent sentencing under Oregon law, and trial counsel was not ineffective for failing to raise
Petitioner's proposed argument. Accordingly, the state PCR court's dismissal of Petitioner's claim
as meritless was not contrary to or an unreasonable application of clearly established federal law, and
Petitioner is not entitled to habeas corpus relief.
For these reasons, the Court DENIES the Petition for Writ of Habeas Corpus (ECF No. 2)
and DISMISSES this action.
9 - OPINION AND ORDER -
The Court DENIES a certificate of appealability as Petitioner has not made a substantial
showing of the denial ofa constitutional right. See 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED .
DATED this /-:iday of February, 2017.
"-----,====· (,, .
·John V. Acosta
United States Magistrate Judge
10 - OPINION AND ORDER-
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