Dorazio v. Bowser
Filing
47
OPINION AND ORDER: The Petition for Writ of Habeas Corpus 2 is DENIED and this case is DISMISSED. A Certificate of Appealability is denied on the basis that petitioner has not made a substantial showing of the denial of a constitutional right. (See 8-page opinion for more information.) Signed on 4/28/2020 by Judge Michael J. McShane. (dsg)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
WILLIAM R. DORAZIO,
Case No. 2:17-cv-01745-MC
Petitioner,
OPINION AND ORDER
v.
MR. BOWSER,
Respondent.
____________________________
MCSHANE, District Judge:
Petitioner seeks federal habeas relief pursuant to 28 U.S.C. § 2254, alleging an
involuntary Alford plea and the ineffective assistance of trial counsel. Respondent argues that
petitioner’s claims are procedurally defaulted and otherwise lack merit. Based on the record
before the court, petitioner fails to establish he is entitled to federal habeas relief. The petition is
DENIED.
BACKGROUND
On June 27, 2013, petitioner was charged with three counts Rape in the First Degree and
four counts of Sodomy in the First Degree. Resp’t Ex. 102. The charges alleged that between
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January 2005 and January 2007, petitioner sexually abused his stepdaughters, DK and KK, who
were under the ages of twelve and sixteen at the time, respectively.
Petitioner eventually waived his right to jury trial and entered Alford pleas to Rape in the
First Degree and Rape in the Second Degree as alleged in Counts 2 and 5 (as amended). Resp’t
Exs. 102, 103, 118; see North Carolina v. Alford, 400 U.S. 25, 37-38 (1970) (holding that a
defendant can enter a valid guilty plea while still maintaining innocence if a factual basis for the
plea exist and the plea is knowing and voluntary). In exchange, the State dismissed the remaining
charges and agreed to a stipulated sentence of 150 months of imprisonment.
At the change of plea hearing, the trial court accepted the following factual basis for the
plea, as recited by the prosecutor:
Your Honor, Count 2 the State’s evidence would be that the victim’s name was
[DK], her date of birth was January 26, 1996. Between January 26, 2005 to
January 26, 2007 in Klamath County, that she – he knowingly engaged in sexual
intercourse with her when she was under 12 years of age. Her testimony would be
that he made her go to bed, after she went to bed he put his penis in her vagina
and she recalls that it hurt, and this did happen in a house in Klamath Falls. In
regard to Count 5, testimony would be that [KK] whose date of birth is August
30, 1991, she would testify between January 26, 2005 to January 26, 2007 that she
did unlawfully and knowingly engage in sexual intercourse with the defendant at
his demand, and at the time that this happened she was under the age of 14, and
she does remember this happening in the Klamath County apartment houses that
have subsequently been torn down.
Resp’t Ex. 118 at 5-6. The trial court sentenced petitioner in accordance with the parties’
stipulation, and petitioner did not appeal his conviction or sentence. Resp’t Exs. 101, 104.
In August 2015, petitioner filed a state court petition for post-conviction relief (PCR) and
alleged various claims of trial court error and ineffective assistance of counsel. Resp’t Ex. 106.
Petitioner’s PCR counsel eventually submitted a declaration indicating he was unable to identify
a valid claim, and the State moved to dismiss the petition. Resp’t Exs. 107, 119. At the hearing
on the State’s motion, PCR counsel explained that petitioner’s underlying criminal case was not
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“triable” because of the evidence against him, including a “pretext” call between petitioner and
one the victims:
He was facing, it wasn’t a terribly triable case and wasn’t triable at all actually,
the victim [DK] had done her own pretext call before coming into the police
station. And so she played this to the – to the authorities and then in that call, Mr.
Dorazio makes the admission to – when she asks him, “Why did you [you know],
were you high or something when you raped me all those times,” and then he
said, “Yeah.”
Resp’t Ex. 120 at 3; see also Pet’r Ex. F. Further, PCR counsel emphasized that the stipulated
150-month sentence was an “excellent outcome” when the State initially sought a sentence of at
least 300 months and petitioner faced a “daunting” sentence of 600 months. Resp’t Ex. 119 at 3.
Given those facts, PCR counsel believed that petitioner could not show prejudice arising from
trial counsel’s alleged deficiencies. Resp’t Ex. 119 at 3; Resp’t Ex. 120 at 3-4. The PCR court
granted the State’s motion and dismissed the petition. Resp’t Exs. 109-110.
Petitioner appealed the dismissal of his PCR petition and requested that the Oregon Court
of Appeals assume jurisdiction. Resp’t Ex. 112. The Court of Appeals dismissed the appeal for
lack of jurisdiction, on grounds that a dismissal for failure to assert a viable PCR claim was not
appealable. Resp’t Exs. 114, 117.
On November 1, 2017, petitioner filed the instant federal habeas action.
DISCUSSION
In his federal Petition, petitioner raises seven grounds for relief. See Pet. (ECF No. 2). In
his supporting brief, however, petitioner presents argument in support of only Grounds Two and
Three. See generally Pet’r Br. (ECF No. 42). Accordingly, petitioner fails to sustain his burden
of establishing entitlement to habeas relief with respect to the unargued claims. See Mayes v.
Premo, 766 F.3d 949, 957 (9th Cir. 2014) (a habeas petitioner bears the burden of proving his
case); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004) (accord).
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A. Ground Two: Involuntary Plea
In Ground Two, petitioner alleges that his Alford plea was not voluntary because he was
pressured by his attorneys and the trial court to enter into a plea. Pet. at 6; see Brady v. United
States, 397 U.S. 742, 750 (1970) (holding that “a guilty plea obtained through coercion is
involuntary”).
Respondent maintains that petitioner did not fairly present this claim to the Oregon
courts, and, as a result, it is now barred from review through procedural default. See 28 U.S.C.
§ 2254(b)(1)(A) (requiring a state habeas petitioner to exhaust all available state court remedies
before a federal court may consider granting habeas relief); Coleman v. Thompson, 501 U.S. 722,
732, 735 n.1 (1991) (if a claim was not fairly presented to the state courts, it is barred through
procedural default); Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002) (“A procedural
default may be caused by a failure to exhaust federal claims in state court.”).
Petitioner does not dispute that he failed to exhaust his state court remedies for this claim.
Rather, petitioner argues that any default should be excused because he presents evidence of
actual innocence, his PCR counsel was constitutionally ineffective under Martinez v. Ryan, 566
U.S. 1 (2012), and the state corrective process did not permit the vindication of his rights. See 28
U.S.C. § 2254(b)(1)(B)(ii) (excusing exhaustion where “circumstances exist that render [the
available State corrective] process ineffective to protect the rights of the applicant”). Regardless
of procedural default, I find that petitioner’s claim fails on the merits. 28 U.S.C. § 2254(b)(2)
(“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the
failure of the applicant to exhaust the remedies available in the courts of the State.”).
A guilty plea that is not made voluntarily and knowingly violates due process. Brady, 397
U.S. at 748 (“Waivers of constitutional rights not only must be voluntary but must be knowing,
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intelligent acts done with sufficient awareness of the relevant circumstances and likely
consequences.”). The test to determine the validity of a guilty plea is “‘whether the plea
represents a voluntary and intelligent choice among the alternative courses of action open to the
defendant.”’ Parke v. Raley, 506 U.S. 20, 29 (1992) (citation omitted). Statements by a
defendant and counsel during a plea hearing, as well as any findings made by the trial court,
constitute a “formidable barrier in any subsequent collateral proceedings.” Blackledge v. Allison,
431 U.S. 63, 73-74 (1977).
Here, the record contains petitioner’s signed plea petition, which indicates petitioner
entered his plea “voluntarily, intelligently, and knowingly” and no one “threatened” or “forced”
him to enter a plea. Resp’t Ex. 103. During the plea hearing, petitioner and the trial court
discussed specifics of the plea agreement, including petitioner’s requested changes to the
language of the indictment, and the trial court confirmed petitioner understood the consequences
of entering a plea. Resp’t Ex. 118. While petitioner required clarification about the type of plea
he intended to enter – whether it was a “no-contest” or Alford plea – the record reflects that
petitioner understood he was relinquishing his constitutional rights associated with trial and
would be sentenced to the stipulated sentence of 150 months. Resp’t Ex. 118 at 2-6. Petitioner
gave no indication that he felt pressured to enter a plea, and the court and petitioner’s counsel
were satisfied that petitioner’s plea was knowing and voluntary.
Petitioner emphasizes that the trial court told petitioner, “It’s up to you Mr. Dorazio, if
you want to sit in the courtroom and listen to that testimony and spend the rest of your life in
penitentiary.” Resp’t Ex. 118 at 6. However, the trial court made this comment in the context of
explaining the difference between a no-contest and Alford plea and petitioner’s insistence that he
did not want to enter a plea requiring him to admit guilt. After the court’s comment, petitioner
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asked, “Well he’s telling me it doesn’t say guilty, and you’re telling me it does say guilty, now
which is it?” Id. The trial court answered, “Well, [under Alford] you will be – you will stand
convicted of the crimes, you will stand convicted, but you didn’t actually plead guilty,” and
petitioner declared, “I plead an Alford Plea.” Id.
This record does not suggest that petitioner was coerced into entering an Alford plea.
Petitioner did not hesitate to ask questions or raise issues with the trial court, and once petitioner
understood he could enter an Alford plea without admitting guilt, he freely did so. The fact that
petitioner did not like his choices does not render his plea involuntary when the record shows
that he made an informed choice “among the alternative courses of action open” to him. Parke,
506 U.S. at 29. Accordingly, petitioner fails to show that his plea was not voluntary.
B. Ground Three: Ineffective Assistance of Counsel
In Ground Three, petitioner alleges that trial counsel rendered ineffective assistance by
failing to adequately investigate the case and discover evidence that petitioner did not live in the
apartment where some of the abuse involving KK allegedly occurred between January 2005 and
January 2007, the time period alleged in the indictment. To support this claim, petitioner presents
records from a utilities company confirming that the utility bill for the apartment was not in
petitioner’s name during that time. Pet’r Brief Ex. C. Petitioner maintains that counsel’s failure
to investigate and obtain this information was unreasonable and caused him prejudice.1
Under well-established Supreme Court precedent, a habeas petitioner alleging ineffective
assistance of counsel must show that 1) “counsel’s performance was deficient,” and 2) counsel’s
Petitioner maintains that this evidence also proves he is “actually innocent” of the
charges and excuses any procedural default. Regardless of default, evidence that petitioner might
not have lived at the apartment during the time alleged in the indictment does not establish
factual innocence. Jaramillo v. Stewart, 340 F.3d 877, 882 (9th Cir. 2003) (“’actual innocence’
means factual innocence, not mere legal insufficiency”).
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1
“deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). To establish deficient performance, petitioner “must show that counsel’s representations
fell below an objective standard of reasonableness.” Id. at 688. To demonstrate prejudice,
petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694. Where, as here, “the
alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence,”
whether the error caused prejudice “will depend on the likelihood that discovery of the evidence
would have led counsel to change his recommendation as to the plea. This assessment, in turn,
will depend in large part on a prediction whether the evidence likely would have changed the
outcome of a trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Even if counsel’s investigation was deficient, petitioner fails to establish prejudice.
Petitioner does not show that he would have rejected the plea agreement and insisted on a trial,
even if trial counsel had investigated and discovered the utility records or similar evidence. See
Premo v. Moore, 562 U.S. 115, 130 (2011) (emphasizing that the issue is not whether the
petitioner believed he still would have been convicted if not for counsel’s errors, but whether the
petitioner “established the reasonable probability that he would not have entered his plea but for
his counsel’s deficiency”). As petitioner admits, the so-called exculpatory evidence regarding the
apartment would have shown, at most, “that half the accusations could not have occurred where
and when alleged.” Pet’r Br. at 1. This evidence would not have affected Counts 1 through 4, the
offenses involving DK, or the pretext telephone call DK recorded. During that telephone
conversation, DK asked, “When you molested me and raped me, were you on drugs or [were]
you sober?” Petitioner responded, “No, I was totally fucked up every time, you watched me do
it.” Pet’r Ex. F at 10.
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In light of evidence against him and the sentencing exposure he faced, petitioner fails to
show “a reasonable probability that, but for counsel's errors, he would not have pleaded guilty
and would have insisted on going to trial.” Hill, 474 U.S. at 59. Accordingly, petitioner fails to
establish that his counsel rendered ineffective assistance and he is not entitled to federal habeas
relief.
CONCLUSION
The Petition for Writ of Habeas Corpus (ECF No. 2) is DENIED and this case is
DISMISSED. A Certificate of Appealability is denied on the basis that 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 28th day of April, 2020.
s/ Michael J. McShane
Michael J. McShane
United States District Judge
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