Lovelady v. Taylor

Filing 50

OPINION AND ORDER: Petitioner's habeas corpus petition (ECF No. 2 ) is DENIED, and this proceeding is DISMISSED. Petitioner's Motion for Resources to Have Altered Trial Disc Annualized [sic] for Proof of Tampering (ECF No. 40 ) i s also DENIED. The Court declines to issue a Certificate of Appealability because 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 5/31/2018 by Judge Anna J. Brown. (joha)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JEREMY LOVELADY,
Petitioner,

v.
JERI TAYLOR,
Respondent.
Jeremy Lovelady
Eastern Oregon Correctional Institution
2500 Westgate
SID No. 11717210
Pendleton, OR 97801

Pro Se
ELLEN F. ROSENBLUM
Attorney General
SAMUEL A. KUBERNICK
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301-4096
Attorneys for Respondent

1 - OPINION AND ORDER

Case No. 2:17-cv-00199-BR
OPINION AND ORDER

BROWN, Senior Judge.
Petitioner
Department

of

is

currently

to

28

the

He

Corrections.

proceeding pursuant

in

custody
this

brings

U.S. C.

2254.

§

For

of

the

Oregon

habeas

corpus

the

reasons

set

forth below, Petitioner's Petition for Writ of Habeas Corpus (ECF
No. 2) is DENIED.
BACKGROUND

On

January

12,

Petitioner of two
counts

of

2011,

counts

Robbery

in

The

charges

arose

Washington

of Robbery

the

Unlawful Use of a Weapon.
104.

a

Second

of

in the

Degree,

Resp't Exs.

out

County

jury

First
and

(ECF No.

Petitioner's

convicted

Degree,

two

counts

21),

Exs.

theft

of

two
of
101,

several

bottles of Oxycontin from a Rite Aid pharmacy in Tigard, Oregon.

1

The trial court sentenced Petitioner to a total of 135 months of
imprisonment. Resp't Exs. 101, 105.
Petitioner directly appealed his convictions, but the Oregon
Court of Appeals affirmed without opinion. State v. Lovelady, 255
Or. App.

826

(2013).

1

Petitioner did not timely file a Petition

Petitioner testified at trial that he smoked crack-cocaine
and drank alcohol in downtown Portland the night before the
robbery, until approximately 3 AM, at which time he summoned an
ambulance because he felt he was having a heart attack. Resp't.
Ex. 104 at 63, 67-72. At the hospital he was given several
medications, including Phenergan, which he testified caused him
to "black out" and not remember anything until he "came to" in
police custody. Id. at 74, 76-78. Consequently, according to
Petitioner, although he knows he robbed the Rite Aid, his lack of
recollection precluded him from forming the intent to commit a
crime. Id. at 71-74, 79-87.

2 - OPINION AND ORDER

for

Review

with

the

Oregon

Supreme

Court,

and

judgment issued on June 6, 2013. Resp't Ex. 110.

the

appellate

2

Petitioner then sought state post-conviction relief ("PCR 11 ) .
Umatilla

Coursey,

County

Circuit

Lovelady

v.

CV140343.

Following an evidentiary hearing,

denied relief.

Court

Case

No.

the PCR trial court

Resp't Ex's 120-131. On appeal,

the Oregon Court

of Appeals affirmed without opinion, and the Oregon Supreme Court
denied review. Lovelady v. Taylor, 275 Or. App. 1031 (2015).
On February 6, 2017, Petitioner filed a Petition for Writ of
Habeas Corpus (ECF No. 2) in this Court, alleging two grounds for
relief.

In

"obtained

Ground
by

incrimination,

a

One,

Petitioner

violation

of

alleges

the

his

conviction

privilege

against

In

self-

because the trial court permitted the state to

/1

introduce Petitioner's inculpatory statements at trial.
4-5.

was

Ground

Two,

Petitioner

alleges

trial

Pet.

counsel

at
was

ineffective for "fail[ing] to object to police officers changing
[their]

testimony

testified
.

Miranda

3

they
.

rights.

in

did
/1

front

not

know

of
how

the

jury

after

[Petitioner]

police

just

understood

his

Id. at 5.

Respondent urges this Court to deny all relief on the basis
that both grounds are procedurally defaulted and lack merit.

2

In

Petitioner later filed a motion for extension of time to
file a petition for review, but the Oregon Supreme Court
dismissed the motion on February 16, 2016. Resp't Ex. 140 at 9.
3

Miranda v. Arizona, 384 U.S. 436 (1966).

3 - OPINION AND ORDER

his

supporting

default.

brief

Petitioner

does

not

address

procedural

4

DISCUSSION

Generally, a state prisoner must exhaust all available state
court

remedies

either

on

direct

appeal

or

through

collateral

proceedings before a federal court may consider granting habeas
corpus relief.

See 28 U.S. C.

§

2254 (b) ( 1) (A) . A state prisoner

satisfies the exhaustion requirement by
federal

claim

to

the

appropriate

presenting" his

~fairly

state

courts

at

all

stages

afforded under state law,

in the manner required by the state

courts,

thereby

affording

the

correct

alleged

violations

of

its

541 U.S.

27,

29

Baldwin v.

Reese,

state

courts

an

prisoner's
(2004);

opportunity
federal

Casey v.

rights.

Moore,

F.3d 896, 915-16 (9th Cir. 2004); Castillo v. McFadden,

to

386

399 F.3d

993, 1003 (9th Cir. 2005). In Oregon, where review in the highest
court

is

discretionary,

a

prisoner

must

still

petition

the

highest court for review in order to exhaust his claim properly.
See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

If

a

state

prisoner's

claim

is

procedurally

defaulted,

federal habeas corpus review is barred unless he can demonstrate:
( 1)

cause for the procedural default,

4

and

( 2)

actual prejudice

On February 8, 2017, this Court appointed counsel to
represent Petitioner in this matter. ECF No. 6. Following several
motions to replace counsel, on September 11, 2017, this Court
ultimately granted Petitioner's Motion to Proceed Pro Se. ECF No.
38.

4 - OPINION AND ORDER

will result if the Court does not consider the claim. Edwards v.
Carpenter,

529 U.S.

U.S.

750

722,

446,

(1991).

451

(2000);

Procedural

Coleman

default

v.

of

501

Thompson,

available

state

remedies may also be excused when the failure to consider the
claims will result in a miscarriage of justice on a
showing of actual
1924,

1928

innocence.

(2013);

House v.

McQuiggin
Bell,

v.

133 S.

Perkins,

547 U.S.

518,

colorable

536-37

Ct.

(2006);

Schlup v. Delo, 513 U.S. 298, 314-15 (1995).

I.

Ground One

In Ground One,

Petitioner alleges the trial court erred by

allowing the state to present Petitioner's inculpatory statements
to the jury. According to Respondent, Petitioner's Ground One is
procedurally defaulted because it was not raised at trial or on
direct

appeal.

Resp't Resp.

(ECF No.

does not address procedural default.

41)

at

10-11.

Petitioner
Pet'r's Br.

See generally,

in Supp. (ECF No. 48).
Indeed,
filed

Part

identify

any

Petitioner's

on
A

direct

of

a

appeal,

Balfour

5

Petitioner's
brief

arguably meritorious
pro

se

Part

B

of

appellate

indicating
issues.

the

she

Resp't

brief,

he

counsel

could

Ex.

106.

alleged

not
In
the

sentencing court violated U.S. v. Booker, 543 U.S. 220 (2005), by

5

Pursuant to State v. Balfour, 311 Or. 434 (1991), when an
attorney does not believe any meritorious appellate issues exist
she prepares and signs a statement of facts and procedural
history (Part A of the brief), and invites the petitioner to
prepare his own section (Part B of the brief) assigning error
where he deems appropriate.
5 - OPINION AND ORDER

using facts not established by a jury to determine his sentence.
Resp't Ex.

107.

Plaintiff did not assert a claim that the trial

court erred in admitting his inculpatory statements. Accordingly,
plaintiff

procedurally

defaulted

his

trial

court

error

claim

alleged in Ground One.
On appeal, in his state PCR proceeding, plaintiff did assign
error

to

the

trial

court's

admission

of

the

inculpatory

statements. Resp't Ex. 134. However, he did not assert the claim
to the PCR trial court,
appeal. Resp't Ex.

so it would not have been considered on

120; Or. R. App.

Pro.

5.45(2), (3)

(2017).

In

any event, trial court errors in Oregon must be raised by direct
appeal, not in a collateral state PCR proceeding. See Kellotat v.
Hoyt,

719 F. 2d 1027, 1030 (9th Cir. 1983); Palmer v. State, 318

Or. 352, 356-58 (1994).
In short, this Court concurs with Respondent that Petitioner
did not properly present the claim alleged in Ground One at all
appropriate

stages

longer do so,

afforded under Oregon law.

Since he can no

the claim is procedurally defaulted.

In addition,

Petitioner has not established cause and prejudice to excuse this
procedural default,

or that failure to consider the claim will

result in a miscarriage of justice. Therefore, Petitioner is not
entitled to habeas relief on the claim alleged in Ground One.
II.

Ground Two

Respondent
defaulted

contends

because

Ground

al though

6 - OPINION AND ORDER

Two

Petitioner

is

procedurally

also

raised

a

claim

of

ineffective assistance of counsel before the PCR trial court,

he

failed to assert it on appeal of the PCR trial court's decision
to the Oregon Court of Appeals.
Respondent

concedes

conviction

appeal

Specifically,

that

does

the

Resp' t

Petitioner's

reference

"summary

of

counsel's alleged "fail[ure]

Ex.

opening

alleged

facts"

134.

Nevertheless,

brief

on

trial-counsel

section

refers

to properly investigate,

posterror.

to

trial

research,

or argue in support of petitioner's pre-trial motion to exclude
petitioner's

statements

that

were

obtained

in

violation

of

petitioner's privilege against self-incrimination under Article
I,

section 12,

of the Oregon

Fourteenth Amendments

to

the

[C]onstitution,
United

States

alleged "fail[ure] to object or question .

and the Fifth and
Cons ti tut ion,"

and

. the police in the

same fashion for the jury to hear." Resp't Ex. 134 at 10-11.
While Petitioner's reference to the deprivation of federal
constitutional rights may have sufficed to alert the appellate
courts that Petitioner sought to raise a federal constitutional
claim, his presentation of the ineffective assistance of counsel
issues

did

Procedure,
these

not

comply

meaning

references

the
as

with

the

appellate
an

Oregon
courts

allegation

of

Rules
would
the

of

not

Appellate
have

taken

deprivation

of

Petitioner's federal rights.
Specifically, under the Oregon Rules of Appellate Procedure,
assignments of error "must be separately stated under a numbered
heading" in the opening brief,

7 - OPINION AND ORDER

and "must identify precisely the

legal,

procedural,

factual,

challenged." See Or. R. App.
presented

two

assignments

or

other

ruling

Pro. 5.45(2), (3)

of

error,

neither

ineffective assistance of counsel claim.

that

(2017).
of

is

being

Petitioner

which

was

an

6

In any event, under Oregon appellate rules, "No matter
claimed as error will be considered on appeal unless the claim of
error was preserved in the lower court," which Petitioner must
show by, inter alia, specifying in the opening brief the stage in
the proceedings when the issue was previously presented, quoting
the record, and providing page references, under the subheading
"Preservation of Error." Id. at 5.45(1), (4). Although
Petitioner's opening brief does contain a preservation of error
section, there is no information about an ineffective assistance
of counsel claim.
Consequently, this Court concurs with Respondent that
Petitioner did not fairly present the claim alleged in Ground Two
at all appropriate stages afforded by Oregon law. As previously
stated, Petitioner does not address procedural default in his
briefing, and therefore fails to show cause and prejudice, or

6

In his opening brief on post-conviction appeal to the
Oregon Court of Appeals, Petitioner presented the following two
assignments of error: (1) "The trial court erred when the trial
process continued while the defendant's rights were violated. The
defendant suffered prejudice from the states attorney eliciting,
or allowing false testimony." (2) "The circuit court erred when
the department of justice failed to appear for petitioner's postconviction matter, and was not held liable." Resp't Ex. 134 at 12
(emphasis added) .

8 - OPINION AND ORDER

that failure to consider the claim will result in a miscarriage
of justice. Accordingly, Petitioner is not entitled to habeas
relief on the claim alleged in Ground Two.
CONCLUSION

Based on the foregoing,
(ECF

No.

2)

Petitioner's
Annualized

is

DENIED,

Motion
[sic]

for

for

Petitioner's habeas corpus petition
and

this

Resources

Proof

proceeding

to

Have

of Tampering

is

DISMISSED.

Altered

(ECF No.

Trial
40)

is

Disc
also

DENIED.
The Court declines to issue a Certificate of Appealability
because
denial

Petitioner
of

a

has

not made

constitutional

a

right

substantial
pursuant

to

showing
28

of

U.S.C.

the
§

2253 (c) (2).

IT IS SO ORDERED.
DATED this

3/ ~y

of May, 2018.

Ann~

United States Senior District Judge
District of Oregon

9 - OPINION AND ORDER