Hill v. Tailor
Filing
48
OPINION AND ORDER: The Petition for Writ of Habeas Corpus (# 2 ) is dismissed. 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). In addition, given the repeated litigation of the issues presented in this case over the past several years (including five motions for reconsideration in 1:11-cv-00426-PA), the Court will not accept any motions for reconsideration in this case. Signed on 12/11/2019 by Judge Michael W. Mosman. (joha)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
LAIRD WAYNE HILL,
Case No. 2:17-cv-00538-MO
Petitioner,
OPINION AND ORDER
v.
JERI TAYLOR,
Respondent.
Nell Brown
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
Ellen F. Rosenblum, Attorney General
Samuel A. Kubernick, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent
1 - OPINION AND ORDER
MOSMAN, District Judge.
Petitioner brings this habeas corpus case pursuant to 28
u.s.c.
2254
§
challenging
the
legality
of
his
state-court
convictions from 2005. Because Petitioner did not file the action
within
the
applicable
one-year
statute
of
limitations,
the
Petition for Writ of Habeas Corpus (#2) is dismissed.
BACKGROUND
On September 23, 2005, a jury convicted Petitioner in Marion
County of
prompting
prison.
four
the
counts
trial
of
Sexual
court
to
Abuse
sentence
in
the
him
First
to
150
Degree,
months
in
Petitioner pursued a direct appeal that was ultimately
unsuccessful, and his Appellate Judgment issued with an effective
date of April 15,
limitations
2010. To comply with the one-year statute of
applicable
until July 11,
to habeas
corpus
cases,
Petitioner had
2011 in which to file for federal habeas corpus
relief. 1
Petitioner
assistance
of
presenting his
post-conviction
believed
counsel
claims
relief
he
at
was
the
his
trial.
ineffective
( "PCR")
victim
ineffective
However,
assistance
action
of
in
of
instead
counsel
state
of
in a
court, 2
he
1
A habeas corpus petitioner must generally file his federal challenge to his
state convictions within one year of the time those convictions become final
at the conclusion of his direct review. 28 U.S.C. § 2244(d) (1) (A). The Antiterrorism and Effective Death Penalty Act's ( "AEDPA' s") one-year statute of
limitations did not begin to run for another 90 days (July 13, 2010) because
Petitioner was permitted to petition the U.S. Supreme Court for certiorari
during this time. Lawrence v. Florida, 549 U.S. 327, 337 (2007). As a result,
Petitioner had until July 11, 2011 in which to file for federal habeas corpus
relief, or file a petition for post-conviction relief which would toll the
AEDPA's one-year statute of limitations. See 28 U.S.C. § 2244(d) (2).
2
Oregon law requires that claims of ineffective assistance of trial counsel
be raised in a PCR proceeding.
Sexton v. Cozner, 679 F. 3d 1150, 1159 (9th
Cir. 2012).
2 - OPINION AND ORDER
proceeded directly to federal court where he filed his Petition
for Writ of Habeas Corpus in Hill v.
00426-PA,
Case No. 1:ll-cv-
Coursey,
assigned to the Honorable Owen M.
Panner.
Petitioner
signed his Petition on March 16, 2011 such that he complied with
the AEDPA' s
one-year statute
of
limitations
with 117
days
to
spare.
In his Second Amended Petition for Writ of Habeas Corpus in
1:11-cv-00426-PA, Petitioner raised four grounds for relief, two
of which were claims of trial court error that were procedurally
defaulted and ineligible for federal habeas corpus review. 3 In
his
two
remaining
ineffective
grounds
assistance
of
for
counsel
bypassing the state PCR remedy,
Oregon's
claims
state
were
courts.
not
The
relief,
that,
raised
by
claims
virtue
of
of
his
he had not fairly presented to
ineffective
procedurally
he
assistance
defaulted,
of
however,
counsel
because
Petitioner still had time to file a PCR petition in state court. 4
Judge Panner noted that the issue of potentially staying the
action was not something the Court needed to raise sue sponte
and, even if it was, neither Rhines v. Weber,
544 U.S. 269, 275
{2005) nor Kelly v. Small, 315 F.3d 1063 {9 th Cir. 2003) could be
3
A petitioner seeking habeas relief must exhaust his claims by fairly
presenting them to the state's highest court, either through a direct appeal
or collateral proceedings, before a federal court will consider the merits of
habeas corpus claims pursuant to 28 U.S.C. § 2254. Rose v. Lundy, 455 U.S.
509, 519 (1982). A petitioner is deemed to have "procedurally defaulted" his
claim if he failed to comply with a state procedural rule, or failed to raise
the claim at the state level at all. Edwards v. Carpenter, 529 U.S. 446, 451
(2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991).
4
Oregon allows a convicted person two years from the conclusion of his direct
appeal to file a PCR action. ORS 138.510(3).
3 - OPINION AND ORDER
properly applied. Judge Panner appeared to be primarily concerned
that Petitioner,
appearing to have no viable claims to present
for federal habeas review at that time, might become time-barred
from raising his claims of ineffective assistance of counsel in a
state PCR proceeding because the two-year statute of limitations
applicable to such cases was due to expire in less than 60 days.
He
therefore
dismissed
the
habeas
without further leave to amend,
case
without
prejudice
and
and advised Petitioner that his
best avenue for relief was a state PCR action. He reasoned that
it was best to dismiss the action without prejudice and without
further leave to amend because:
. by giving petitioner the option of
proceeding, it could be seen as suggesting to
a prose litigant that federal habeas corpus
is a legitimate option for his direct appeal
claims only for petitioner to later find out
not only that it was not, but that by
pursuing the habeas remedy he lost his only
opportunity
to
ever
receive
a
merits
adjudication of his ineffective assistance of
counsel claims in any court.
Order {#29), p. 6.
Following
Judge
Panner's
February
21,
2012
dismissal,
Petitioner timely filed a PCR action on April 6, 2012 wherein he
litigated his claims against his trial attorney.
The PCR court
denied relief on Petitioner's claims, the Oregon Court of Appeals
dismissed
a
subsequent
appeal,
and
the
Oregon
Supreme
Court
denied review.
At the conclusion of his state PCR action,
and more than
four years after Judge Panner dismissed his federal case, on July
5,
2016,
4 -
Petitioner
filed
OPINION AND ORDER
what
amounted
to
a
Third
Amended
Petition in the terminated case and a Motion seeking to reopen
the case. Judge Fanner appointed the Federal Public Defender to
represent
Petitioner,
and
counsel
filed
her
own
Motion
for
Reconsideration seeking to restart the earlier proceedings.
Following Judge Fanner' s retirement,
1: 11-cv-00426-PA to me.
On June 7,
2017,
the Clerk transferred
I
concluded that the
Motion for Reconsideration seeking to invalidate Judge Panner's
Judgment
was
untimely.
I
further
concluded
that
even
if
Petitioner had timely filed his Motion for Reconsideration,
a
stay would not have been proper in the case because:
(1)
there
was no "good cause" to justify a Rhines stay; and (2)
there was
no authority requiring a Kelly stay in a case that involved only
unpreserved claims.
Petitioner appealed that decision,
Ninth Circuit denied Petitioner's request for a
but the
certificate of
appealability.
In the meantime, on March 29, 2017, Petitioner filed this 28
U.S.C.
§ 2254 habeas corpus case,
and the Court again appointed
the Federal Public Defender's Office to represent him. With the
assistance
of
counsel,
Petitioner
does
not
dispute
that
his
Petition is untimely. He argues, however,
that the Court should
fashion an equitable remedy that renders
the Petition in this
case timely on the basis that Judge Fanner should have stayed
1:11-cv-00426-PA pursuant to Kelly.
the
Court
to
conclude
that
he
is
In the alternative, he asks
actually
innocent
of
his
underlying criminal conduct such that he can excuse his untimely
filing.
Ill
5 - OPINION AND ORDER
DISCUSSION
I.
Equitable Tolling
Equitable tolling is available to toll the one-year statute
of
limitations
cases.
applicable
to
Holland v. Florida,
u. s. C.
28
2254
§
habeas
560 U.S. 631, 645 (2010). A litigant
seeking to invoke equitable tolling must establish:
has
been
pursuing
his
corpus
rights
diligently;
and
(1)
(2)
that he
that
some
extraordinary circumstance prevented him from timely filing his
Pace
petition.
v.
DiGuglielmo,
petitioner who fails to file a
544
U.S.
408,
418
(2005).
timely petition due to his own
lack of diligence is not entitled to equitable tolling.
v. Long, 253 F.3d 494, 504
burden
of
showing
apply to him.
that
Miranda v.
A
Tillema
(9th Cir. 2001). Petitioner bears the
this
"extraordinary
Castro,
exclusion"
292 F. 3d 1063,
1065
should
( 9th Cir.
2002).
A Rhines stay requires that a Petitioner show "good cause"
justifying a
stay,
such as a petitioner's reasonable confusion
about whether a state PCR proceeding will toll the federal habeas
corpus period.
Pace v.
DiGuglielmo,
544 U.S. 408,
416
(2005). A
Kelly stay, on the other hand, does not require a showing of good
cause. A Kelly stay authorizes:
(1) a petitioner to amend his petition to
delete any unexhausted claims; (2) the court
in its discretion to stay and hold in
abeyance
the
amended,
fully
exhausted
petition,
providing
the
petitioner
the
opportunity to proceed to state court to
exhaust the deleted claims; and {3) once the
claims have been exhausted in state court,
the petitioner to return to federal court and
6 - OPINION AND ORDER
amend[] his federal petition to include the
newly-exhausted claims.
King v. Ryan, 564 F.3d 1133, 1139 (9 th Cir. 2009). While a Kelly
stay does not impose the "good cause" burden associated with a
Rhines
stay,
it
is
not
without
risk
as
it
leaves
open
the
possibility that any claims to be re-added to a petition after
exhaustion might not be timely filed. Id at 1140-41.
The
operative
procedurally
unexhausted
pleading
defaulted
claims
of
in
claims
l:11-cv-00426-PA presented
of
ineffective
trial
court
assistance
error
two
two
counsel.
of
and
The
claims of trial court error, while technically exhausted because
there were no remaining state remedies available for them, were
subject
to
immediate
procedural default.
dismissal
with prejudice
because
of
the
Such a dismissal would have left Petitioner
only with his two unexhausted claims of ineffective assistance of
counsel. The Kelly procedure would have required Judge Panner to
dismiss the unexhausted claims,
leaving Petitioner without any
claims at all. To the extent Petitioner believes the Court should
have
stayed his
procedurally defaulted claims,
falsely
giving
them the appearance of viability so as to allow him to escape his
mistake of bypassing the
clearly available
state
PCR process,
this is not something that a Kelly stay requires.
Petitioner's
fundamental
issue
is
that
he
mistakenly
bypassed his available state PCR option causing him to breach the
AEDPA's statute of limitations during the pendency of his first
habeas corpus action. 5 Petitioner's mistake or ignorance of the
5
The pendency of a federal habeas corpus action does not toll the AEDPA' s
statute of limitations. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). As a
result, at the time Judge Panner dismissed the habeas corpus case, the one-
7 -
OPINION AND ORDER
law
does
not
limitations.
justify
equitable
Rasberry v.
Garcia,
tolling
of
the
448 F.3d 1150,
statute
1154
of
(9 th Cir.
2008) .
Even if Judge Panner had issued a
dismissing
the
case,
Petitioner
Kelly stay
would
have
in lieu of
faced
the
same
procedural bar he does now. Not only would the AEDPA's statute of
limitations have passed by seven months at the time Judge Panner
issued the Kelly stay and necessarily dismissed the unexhausted
claims of ineffective assistance of counsel,
but it would have
continued to run during the years that Petitioner spent fairly
presenting the unexhausted claims in his PCR proceedings. In such
a circumstance,
into his
if Petitioner tried to add the new claims back
stayed Petition,
statute of
limitations
they would have been barred by the
leaving him only with his procedurally
defaulted claims of trial court error.
Although Petitioner claims that he may have been able to
seek a stay at an earlier time had Judge Panner appointed counsel
at
the
argument
outset
in
Reconsideration
of
the
response
in
case,
to
the
Court
already addressed
Petitioner's
1:11-cv-00426-PA and
fourth
that
Motion
for
concluded
that
it
is
without merit where there is no right to counsel
in a
habeas
corpus case in the absence of an evidentiary hearing. See Order
(#50). For all of these reasons, the Court declines to fashion an
equitable remedy for the time-barred Petition.
Ill
year statute of limitations for filing another such action had already passed
by approximately seven months.
8 - OPINION AND ORDER
II.
Actual Innocence
Petitioner also
untimely
filing
argues
under
the
that
the
Court
fundamental
should
miscarriage
excuse
of
his
justice
exception to procedural default. A petitioner who fails to comply
with the AEDPA' s
one-year statute of
limitations may overcome
such a default if he is able to show that he is actually innocent
of his underlying criminal conduct.
U.S.
383,
actual
386
(2013).
innocence,
evidence-whether
a
it
In order
to make
petitioner
be
McQuiggin
must
Perkins,
569
gateway showing of
present
exculpatory
trustworthy eyewitness accounts,
a
v.
"new
scientific
reliable
evidence,
or critical physical evidence-
that was not presented at trial" which establishes that "it is
more likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt." Schlup v. Delo, 513
U.S. 298, 324, 327 (1995).
Petitioner's new evidence of innocence, when weighed against
the evidence of guilt adduced at trial,
conclusion that
in light of
the
does not
totality of
the
reasonable juror would have voted to convict him.
lead to the
evidence,
no
He therefore
fails to pass through the gateway of actual innocence to excuse
his untimely filing.
CONCLUSION
For the reasons identified above,
Habeas Corpus
(#2)
is dismissed.
the Petition for Writ of
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). In addition, given the
9 - OPINION AND ORDER
repeated litigation of the issues presented in this case over the
past several years (including five motions for reconsideration in
1:11-cv-00426-PA),
the
Court
will
not
accept
any motions
for
reconsideration in this case.
IT IS SO ORDERED.
DATED this
--t+- day of
December, 2019.
Judge
10 - OPINION AND ORDER
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