Dunn v. Belleque

Filing 71

Opinion and Order - Petitioner's petition for writ ofhabeas corpus (#2) is DENIED, and this proceeding is DISMISSED, withprejudice.Because petitioner has not made a substantial showing of thedenial of a constitutional right, a certificate of appealability isDENIED. See 28 U.S.C. § 2253(c)(2). Signed on 9/21/2010 by Judge Garr M. King. (mja)

Dunn v. Belleque

Doc. 71

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON P O R T L A N D DIVISION D O U G L A S WAYNE DUNN, Petitioner, v. BRIAN BELLEQUE, Respondent. THOMAS J. HESTER A s s i s t a n t Federal Public Defender 1 0 1 S.W. Main Street, Suite 1700 P o r t l a n d , OR 97204 A t t o r n e y for Petitioner J O H N R. KROGER A t t o r n e y General A N D R E W HALLMAN A s s i s t a n t Attorney General D e p a r t m e n t of Justice 1 1 6 2 Court Street NE S a l e m , OR 97301-4096 A t t o r n e y s for Respondent K I N G , Judge P e t i t i o n e r Douglas Wayne Dunn, an inmate in the custody of the Oregon Department of Corrections, brings this habeas corpus C V . 03-1165-KI O P I N I O N AND ORDER

1 - OPINION AND ORDER

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proceeding pursuant to 28 U.S.C. § 2254.

For the reasons set forth

b e l o w , the petition is denied, and this proceeding is dismissed. BACKGROUND O n December 16, 1998, petitioner was indicted on 44 counts in M u l t n o m a h County Circuit Case No. 98-12-20018. (Ex. 102.) The

c h a r g e s all stemmed from numerous armed robberies of motels and small businesses in November and December 1998. Additionally,

p e t i t i o n e r was a suspect in 18 armed robberies in King County and Snohomish County, Washington. The evidence against petitioner

i n c l u d e d surveillance videos picturing plaintiff and accomplices, as w e l l as stolen property and a gun matching that used in one of the r o b b e r i e s recovered from petitioner's car. (Ex. 117, 120.) Petitioner

P e t i t i o n e r was appointed counsel, Gary Bertoni.

p r o f e s s e d his innocence, and asserted that he had an alibi for the r o b b e r i e s underlying counts 9, 21, and 42. According to petitioner,

o n the occasions of those robberies, he switched places with his i d e n t i c a l twin brother, Brian Dunn. At that time, Brian Dunn was

i n c a r c e r a t e d at the Airway Heights Correction Center near Spokane, Washington. Petitioner asserts that on three occasions, he drove to

S p o k a n e , parked his car near the prison, scaled the perimeter fence, and met his brother Petitioner at the smoking that on pad near the back of he the then

building.

claims

those

occasions,

e n t e r e d the Airway Heights prison and took his brother's place for a day or two.

2 - OPINION AND ORDER

Petitioner petitioner was

maintains in

that

on

those Dunn

three drove

occasions, to

while in

prison,

Brian

Portland

p e t i t i o n e r ' s vehicle, met petitioner's friends (accomplices Edward G u e r r e r o and Gary Wilson), and committed the robberies underlying c o u n t s 9, 21, and 42. According to petitioner, his brother would

r e t u r n to the prison a day or two following the robberies, where p e t i t i o n e r and his brother would again switch places. Trial counsel hired an investigator, Philip Agrue, to

s u b s t a n t i a t e petitioner's alibi defense.

Mr. Agrue interviewed

p e t i t i o n e r and asked petitioner to make drawings of the Airway H e i g h t s Correction Center to verify petitioner's version of events. Trial counsel then sent Mr. Agrue to the prison for further

i n v e s t i g a t i o n , where Mr. Agrue met with prison officials, inspected t h e fence petitioner claims to have jumped, took photographs, and c o m p a r e d the interior to the drawings provided by petitioner. Mr. Agrue also met with petitioner's mother and girlfriend and other relevant and available witnesses. Although petitioner's

d r a w i n g s resembled the interior of the prison, the results of the i n v e s t i g a t i o n did not completely support petitioner's alibi. Trial

c o u n s e l determined that petitioner's best option was to enter into p l e a negotiations. Petitioner was facing approximately 60 years in prison on the 4 4 charges in the indictment. And, because petitioner previously

h a d been convicted of two felonies in Washington, petitioner faced

3 - OPINION AND ORDER

the possibility of life in prison if convicted of any of the 18 charges in King County and Snohomish County under Washington's

" t h r e e strikes" law.

(Ex. 140.)

P e t i t i o n e r insisted upon going to trial until a settlement c o n f e r e n c e on June 3, 1999, with Multnomah County Circuit Judge J u l i e Frantz. At the settlement conference, trial counsel showed

p e t i t i o n e r photographic and videotaped evidence of the Washington robberies. (Ex. 107.) At the settlement conference, the prosecutor

a g r e e d to dismiss the bulk of the charges against petitioner in e x c h a n g e for petitioner's guilty plea on Counts 9, 21, 42, and 44 a n d a stipulated 20 year sentence. The prosecutor also agreed to

p r o v i d e assurances from Washington authorities that petitioner would n o t be prosecuted on the additional 18 robberies under investigation i n Washington. (Ex. 104.) Petitioner accepted the plea bargain.

The following day, on June 4, 1999, petitioner pleaded guilty t o four separate charges: (1) Count 9, Robbery in the First Degree w i t h a Firearm; (2) Count 21, Robbery in the First Degree with a F i r e a r m ; (3) Count 42, Attempted Robbery in the First Degree with a F i r e a r m ; and (4) Count 44, Felon in Possession of a Firearm. Sentencing was delayed until June 16, 1999, to obtain written c o n f i r m a t i o n from the Washington authorities that petitioner would not be prosecuted on the charges under investigation. Having

r e c e i v e d that confirmation, petitioner was sentenced to a total of 2 4 0 months.

4 - OPINION AND ORDER

Petitioner voluntarily dismissed his direct appeal, and filed a petition seeking post-conviction relief (PCR). (Ex. 155.) In his

P C R petition, petitioner asserted that trial counsel was ineffective f o r failing to adequately investigate, failing to prepare a defense, and failing to ensure that his guilty plea was knowingly and

v o l u n t a r i l y given.

The PCR court denied relief.

(Ex. 143.)

Petitioner appealed to the Oregon Court of Appeals, which affirmed w i t h o u t opinion. The Oregon Supreme Court denied review. Dunn v.

L a m p e r t , 185 Or. App. 163, 58 P.3d 853 (2002), rev. denied, 335 Or. 1 8 0 (2003). In February 2002, petitioner filed a motion in the trial court to correct of his one. sentence In based on receiving petitioner three filed gun a minimums motion to

instead

March

2002,

w i t h d r a w his plea based on the misinformation he received from trial c o u n s e l about his sentence. (Ex. 152.) In response to the motions,

t h e trial court amended petitioner's sentence to delete two gun m i n i m u m s which had been improperly added and denied his motion to w i t h d r a w his plea. (Exs. 150, 153, 156.) Because petitioner was

s e r v i n g a Measure 11 sentence with a gun minimum, deleting the two a d d i t i o n a l gun minimums had no impact on the length of petitioner's 240 month sentence. (Id.) Thus, the trial court ruled that

p e t i t i o n e r received the bargain to which he agreed and was not e n t i t l e d to withdraw his plea. (Ex. 156, Motion Hearing Tr. at 3747.)

5 - OPINION AND ORDER

Petitioner then filed a second petition for post-conviction relief, asserting that he was denied Due Process and received

i n e f f e c t i v e assistance of counsel during his motion to withdraw his plea. (Ex. 152.) The trial court denied relief. The Oregon Court

o f Appeals affirmed without opinion, and the Oregon Supreme Court d e n i e d review. Dunn v. Belleque, 204 Or. App. 522, 131 P.3d 198,

r e v . denied, 340 Or. 483 (2006). Petitioner filed a third petition for post-conviction relief, r a i s i n g claims under Blakely v. Washington, 542 U.S. 296 (2004). The trial court denied relief. (Ex. 172). The Oregon Court of

A p p e a l s summarily affirmed, and petitioner did not seek review in t h e Oregon Supreme Court. (Exs. 175-176). DISCUSSION I n his first ground for relief, petitioner contends he received i n e f f e c t i v e assistance of counsel. In grounds two through six, Respondent moves

p e t i t i o n e r raises assorted Due Process violations.

t o deny habeas corpus relief on the basis that the state court's r e j e c t i o n of petitioner's first ground for relief is entitled to deference, defaulted. I. and that grounds two through six are procedurally

Respondent is correct.

S t a t e Court's Decision on Ground One is Entitled to Deference. I n ground one, petitioner contends that trial counsel rendered

ineffective assistance in the following regards: conduct an inadequate investigation, (b) failing

(a) failing to to adequately

6 - OPINION AND ORDER

prepare for trial, (c) failing to ensure that his plea was knowing and voluntary, (d) failing to withdraw, and (e) failing to

a d e q u a t e l y communicate with petitioner during his representation. A. Standards. U n d e r 28 U.S.C. § 2254(d), federal habeas corpus relief may not b e granted on a claim that was adjudicated on the merits in state c o u r t , unless the adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly e s t a b l i s h e d Federal law, as determined by the Supreme C o u r t of the United States; or ( 2 ) resulted in a decision that was based on an u n r e a s o n a b l e determination of the facts in light of the e v i d e n c e presented in the State court proceeding. Under Strickland v. Washington, to prevail on a claim of

i n e f f e c t i v e assistance of counsel, petitioner must show that (1) his c o u n s e l ' s performance was deficient, and (2) that the deficient p e r f o r m a n c e prejudiced the defense. 466 U.S. 668, 687 (1984); Bell

v . Cone, 535 U.S. 685, 698-99 (2002); Williams v. Taylor, 529 U.S. 3 6 2 , 390 (2000). Failure to make the required showing on either

p r o n g defeats the ineffectiveness claim. T o prove deficiency of performance, petitioner must demonstrate that counsel's performance fell below U.S. that an at objective 688. is standard To a of

reasonable n e s s . prejudice, probabilit y

Strickland, must for

466 show

establish reasonable

petitioner that, but

there

counsel's

unprofessional

errors,

the

7 - OPINION AND ORDER

result of the proceeding would have been different. a t 695; Williams, 529 U.S. at 390-91; Strickland, 694.

Bell, 535 U.S.

466 U.S. at 687,

When a habeas petitioner challenges a guilty plea based on ineffective assistance of counsel, to establish deficient

p e r f o r m a n c e under the Strickland test, petitioner must show that c o u n s e l ' s advice was not "within the range of competence demanded of a t t o r n e y s in criminal cases." Hill v. Lockhart, 474 U.S. 52, 58-59 To a

( 1 9 8 5 ) ( c i t i n g McMann v. Richardson, 397 U.S. 759, 771 (1970)). demonstrate prejudice under Strickland, petitioner must show

r e a s o n a b l e probability that, but for counsel's errors, he would not h a v e pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at 59. Petitioner presents no new evidence in this proceeding and asserts no defect in the state post-conviction process.

Accordingly, this court presumes that the state court's findings of f a c t are correct, unless rebutted by the petitioner with clear and c o n v i n c i n g evidence. 28 U.S.C. §§ 2254(d)(2),(e)(1); Lambert v.

B l o d g e t t , 393 F.3d 943, 978 (9th Cir. 2004), cert. denied, 546 U.S. 9 6 3 (2005); Taylor v. Maddox, 366 F.3d 992, 999 (9 th Cir.), cert. d e n i e d , 543 U.S. 1038 (2004); see also DeWeaver v. Runnels, 556 F.3d 9 9 5 , 1007 (9th Cir.), cert. denied, 130 S. Ct. 183 (2009). This

c o u r t reviews the state court's ultimate conclusion to ascertain

8 - OPINION AND ORDER

whether

it

is

contrary

to

or

an

unreasonable

application

of

Strickland. B.

28 U.S.C. § 2254(d)(1); Lambert, 393 F.3d at 978.

F a i l u r e to Investigate and Prepare for Trial. I n grounds one (a) and (b), petitioner complains that trial

counsel

failed

to

adequately

investigate

his

alibi

defense

and

o t h e r w i s e prepare a defense.

During the state PCR proceeding,

p e t i t i o n e r complained that Mr. Bertoni did little to investigate his a l i b i defense, was not prepared to proceed to trial, and failed to r e v i e w police reports or contact witnesses. Petitioner's alibi defense was that he switched places with his i d e n t i c a l twin brother, Brian Dunn, who was then incarcerated. At t h e post conviction proceeding, petitioner described how he and his b r o t h e r switched places, and that after-the-fact, he learned that h i s brother met petitioner's friends and committed three robberies. (Ex. 142, that only PCR Trial Tr. p. 70-75, 83-86.) his mother could tell the Petitioner suggested apart in the

brothers

s u r v e i l l a n c e videos.

(Id. at p. 87.)

I n support of his claim at the PCR proceeding, petitioner s u b m i t t e d an affidavit from his brother. is the identical twin brother of Mr. Dunn averred that he and that he and

petitioner,

p e t i t i o n e r have sometimes been confused. attested that while in prison, he

(Ex. 131.) had a

Mr. Dunn also with

conversation

p e t i t i o n e r , and that he indicated a desire to switch places with petitioner. (Id.)

9 - OPINION AND ORDER

Petitioner also submitted an affidavit from Edward Guerrero, p e t i t i o n e r ' s accomplice on the robbery in Count 21. (Ex. 127.) Mr.

G u e r r e r o averred that he was currently in prison, and that he robbed t h e Extended Stay America Hotel with Brian Dunn, not petitioner. According to Mr. Guerrero, it was petitioner who informed him that t h e brothers were switching places. Petitioner also submitted an (Id.). affidavit from Gary Wilson,

p e t i t i o n e r ' s accomplice in the robbery of the Holiday Inn Express in C o u n t 9. Mr. Wilson averred that he had ingested a large amount of

m e t h a m p h e t a m i n e prior to the robbery, and that during the police i n v e s t i g a t i o n , he was tricked into positively identifying petitioner a s his accomplice. (Ex. 135.) Mr. Wilson attested that since his

i n c a r c e r a t i o n , he has learned that petitioner has a twin brother and t h a t he cannot tell the brothers apart. Mr. Wilson averred that he

n o w believes it was Brian Dunn who was his accomplice when he robbed t h e Holiday Inn Express. 1 (Id.)

I n contrast, trial counsel Gary Bertoni attested that he hired a n investigator, Mr. Agrue, to contact all relevant witnesses, and that some of the witnesses 140.) identified counsel by petitioner that were Mr. not

relevant.

(Ex.

Trial

averred

Agrue Trial

c o n t a c t e d petitioner's girlfriend and mother several times.
1

P e t i t i o n e r also submitted affidavits from Louise Dunn ( p e t i t i o n e r ' s mother), Michael Haskins, Lynn Haskins, and Timothy D u l a n e y , none of which contained any personal knowledge concerning p e t i t i o n e r ' s alibi defense. (Exs. 130, 132-34.)

10 - OPINION AND ORDER

counsel

attested

that

he

sent

Mr.

Agrue

to

the

Airway

Heights

c o r r e c t i o n a l Center to investigate petitioner's alibi defense. Trial counsel stated that "[p]etitioner was fully apprised of our f i n d i n g s , which did not completely support [petitioner's] claim," a n d that petitioner still insisted upon proceeding with the alibi defense. (Id. at 2.)

In its decision, the PCR court made the following relevant findings: 7. P e t i t i o n e r raised an alibi defense to his trial c o u n s e l regarding counts 9, 21, and 44. This defense was that petitioner's identical twin b r o t h e r , Brian Michael Dunn, who was incarcerated at A i r w a y Heights Correctional Center in Spokane, W a s h i n g t o n would escape the correctional center by s w i t c h i n g places with petitioner. Petitioner would a s s u m e Brian Dunn's position in the prison for a day o r two at a time. This alibi defense covered three s e p a r a t e incidents each of which coincided with an a r m e d robbery or attempted armed robbery for which p e t i t i o n e r was charged and eventually pled. T r i a l counsel Gary Bertoni investigated this alibi defense and sent his investigator to the c o r r e c t i o n a l facility in Spokane. His investigation d i d not completely support petitioner's claim of a l i b i yet petitioner insisted on proceeding with the a l i b i defense. B r i a n Michael Dunn did not admit in his affidavit to h a v i n g committed the three robberies for which p e t i t i o n e r plead and was sentenced. N o other credible person could testify that Brian M i c h a e l Dunn had committed these three robberies.

8.

9.

10.

.... 14. T r i a l counsel had contacted all relevant and a v a i l a b l e witnesses for petitioner's alibi defense. ( E x . 143.)

1 1 - OPINION AND ORDER

Petitioner

has

failed

to

rebut,

with

clear

and

convincing

e v i d e n c e , the state court's factual findings. findings are presumed to be correct. 28

Accordingly, these § 2254(e)(1);

U.S.C.

L a m b e r t , 393 F.3d at 977-78. In the instant proceeding, petitioner focuses on trial

c o u n s e l ' s billing records and correspondence between petitioner and c o u n s e l as evidence that counsel did not adequately investigate and prepare. However, in light of the PCR court's factual findings that

M r . Bertoni sent an investigator to the prison to substantiate p e t i t i o n e r ' s improbable alibi defense, and contacted all available a n d relevant witnesses, I conclude that petitioner has not met his b u r d e n of demonstrating that trial counsel's advice to plead guilty w a s not within the range of competence demanded of attorneys in c r i m i n a l cases. failed to Hill, 474 U.S. at 58. that trial Accordingly, petitioner has counsel rendered deficient

demonstrate

performance.

Strickland, 466 U.S. at 688.

F u r t h e r m o r e , petitioner is unable to demonstrate that he was p r e j u d i c e d by trial counsel's alleged failure to investigate his a l i b i defense. "Where the alleged error is counsel's failure to

i n v e s t i g a t e a potential defense, the salient inquiry is whether ' d i s c o v e r y of the evidence would have led counsel to change his r e c o m m e n d a t i o n as to the plea.'" H i l l , 474 U.S. at 59). Lambert, 393 F.3d at 983 (quoting

And, the result of the inquiry may depend on

1 2 - OPINION AND ORDER

whether the defense would have succeeded at trial. M a h o n e y , 611 F.3d 978, 989 (9th Cir. 2010).

Id.; Smith v.

I n this regard, the PCR court made the following conclusion: P e t i t i o n e r ' s alibi defense that it was his incarcerated i d e n t i c a l twin brother, not himself, that committed three r o b b e r i e s is unbelievable and no witness was presented to t h e court that could or would verify any fact associated w i t h the alibi. The only witness to the fact is P e t i t i o n e r and this court finds his testimony unworthy of b e l i e f . (Ex. 143 p. 4.) As the PCR court concluded, petitioner has presented no

c r e d i b l e evidence to show that his alibi defense had any chance of s u c c e s s had he gone to trial. Petitioner's brother did not admit to

c o m m i t t i n g the robberies underlying Counts 9, 21, or 44, or even a d m i t to switching places on the dates in question. Aside from

p e t i t i o n e r ' s own self-serving testimony, petitioner presents only incredulous accounts from accomplices Wilson and Guerrero, who

s u g g e s t that they learned of petitioner trading places with Brian Dunn after-the-fact. As the PCR court reasonably concluded,

p e t i t i o n e r ' s alibi defense is unbelievable and certainly would not h a v e succeeded, and petitioner is unable to establish prejudice. Lambert, 393 F.3d at 983. The record wholly supports the PCR court's conclusions that petitioner was facing 60 years' imprisonment in Oregon, and a

p o t e n t i a l life sentence in Washington.

Because of trial counsel's

i n v e s t i g a t i o n and plea negotiation, trial counsel was able to secure a 20 year sentence for petitioner. In all probability, Mr.

1 3 - OPINION AND ORDER

Bertoni's Washington

ability state

to

secure

concessions to

from a

prosecutors potential

in life

enabled

petitioner

avoid

s e n t e n c e there. that his alibi

Therefore, in the absence of any credible evidence defense but would for have succeeded, counsel's petitioner alleged cannot

demonstrate

that

trial

inadequate

i n v e s t i g a t i o n and preparation, he would not have pleaded guilty and w o u l d have proceeded to trial. Strickland, 466 U.S. at 688; Hill,

4 7 4 U.S. at 59; Lambert, 393 F.3d at 983. In sum, I conclude that the PCR court's rejection of

p e t i t i o n e r ' s ineffective assistance of counsel claim is neither c o n t r a r y to, nor an unreasonable application of clearly established f e d e r a l law. C. 28 U.S.C. § 2254(d).

F a i l u r e to Withdraw and Ensure Petitioner's Plea Was Knowing a n d Voluntary. I n ground one(c), petitioner argues that trial counsel rendered

ineffective

assistance

when

counsel

failed

to

ensure

that

p e t i t i o n e r ' s plea was knowingly and voluntarily given.

According to

p e t i t i o n e r , on the day of the settlement conference, trial counsel i n f o r m e d petitioner that if he did not accept the plea bargain, c o u n s e l would not represent him at trial. argues, he was forced to accept the Consequently, petitioner or proceed to trial

plea

unprepared. In ground one(d), petitioner complains that trial counsel

r e n d e r e d ineffective assistance when he failed to withdraw because

1 4 - OPINION AND ORDER

trial counsel was unwilling to take the case to trial.

In support,

p e t i t i o n e r points to the notation made by Judge Frantz following the s e t t l e m e n t conference which states: "case taken off for plea (may be ethical problem if case goes to trial)." (Ex. 126 p. 6.)

Petitioner suggests that if counsel was concerned that petitioner w o u l d perjure himself at trial, counsel should have withdrawn, and that counsel's unwillingness to represent him at trial coerced

p e t i t i o n e r into pleading guilty. Petitioner argued these claims before the PCR court. When the

P C R court inquired about petitioner's plea colloquy and whether p e t i t i o n e r informed Judge Frantz about Mr. Bertoni's alleged poor r e p r e s e n t a t i o n , petitioner admitted that he did not complain to the c o u r t about counsel during the plea hearing. Petitioner argued

i n s t e a d that he raised concerns during the settlement conference the previous day. (Ex. 142, PCR Trial Tr. p. 73-77.) At the PCR

h e a r i n g , petitioner insisted that he was coerced to enter a guilty p l e a because trial counsel intended to withdraw, his trial date was s e t , and that he had no other option. In contrast, with trial counsel (Id. at 79.) that he had numerous and that

averred

discussions

petitioner

about

pleading

guilty,

p e t i t i o n e r "freely and voluntarily chose to plead guilty." (Ex. 140.) Trial counsel further attested that on the day of the plea,

p e t i t i o n e r had: a n opportunity to view a surveillance video from one of t h e robberies in Washington. It is my belief that 1 5 - OPINION AND ORDER

petitioner, after viewing the video and being advised that W a s h i n g t o n prosecutors (three counties were involved) a g r e e d not to indict him on any of the 12 robberies[.]... I knew that ... [petitioner] was very concerned that, if i n d i c t e d and convicted of a robbery in the State of W a s h i n g t o n , he would be sentence[d] to a life term under t h e 'three strikes' law in Washington. .... W e discussed all of the charges he was facing and t h o r o u g h l y discussed the prosecution's evidence against h i m and the merits of his defense. I fully advised p e t i t i o n e r of his rights and the likely consequences of g o i n g to trial versus pleading guilty or no contest. (Id.) I n its detailed determination, the state PCR court made the f o l l o w i n g relevant findings and conclusions: 6. P e t i t i o n e r did not complain to the court of the r e p r e s e n t a t i o n given to him by his trial counsel G a r y B. Bertoni. No written complaint was ever sent t o the court. No verbal complaint was made on the d a y the plea was given. No verbal complaint was m a d e on the day of sentencing.

.... 3. P e t i t i o n e r knowingly and voluntarily entered into a p l e a agreement with the State that guaranteed him a t w e n t y year sentence, the dismissal of other counts i n Multnomah County, and that precluded the State of W a s h i n g t o n from bringing unsolved robbery charges a g a i n s t him for which he was a suspect. P e t i t i o n e r was not forced by either his trial c o u n s e l or the circumstances of [the settlement c o n f e r e n c e ] to enter the plea unwillingly because t h e r e was no other available option for him. Petitioner had a new trial date of 18 June 1999. He h a d hearings on 4 June 1999 and 16 June 1999 to c o m p l a i n to the court about his trial counsel. His c r i m i n a l justice experience and knowledge were exten si ve. Petitioner's claim that he had no[] o t h e r choice than to accept the plea bargain is not p e r s u a s i v e or trustworthy. It is this court's o p i n i o n that petitioner did not like the idea of a

4.

1 6 - OPINION AND ORDER

twenty year sentence but realized it was better than t h e alternatives. 5. There was a conflict between trial counsel and petitione r . Petitioner wanted counsel to push an a l i b i defense that counsel ethically could not p u r s u e . The judge's note on Exhibit 15(A) is viewed b y the court as having reference to the fact that t r i a l counsel was concerned that his client might p e r j u r e himself at trial. This court does not a c c e p t the position of petitioner that this note has r e f e r e n c e to the fact that trial counsel has been i n e f f e c t i v e and not attentive to his duties to his c l i e n t . (Ex. 143, p. 3-4.)

Petitioner has not presented clear and convincing evidence to r e b u t the following factual findings: (1) petitioner made no verbal o r written complaint about counsel's performance; (2) petitioner received a 20 year sentence in exchange for the dismissal of

n u m e r o u s other charges; (3) petitioner had two opportunities, June 4 and 16, 1999, to complain to the judge who was accepting his plea a b o u t counsel's performance and did not do so; and (4) the PCR court d i d not find petitioner's allegations credible. Accordingly, these 28 U.S.C. §

f i n d i n g s are entitled to a presumption of correctness. 2254(e)(1).

I n light of these factual findings, petitioner has failed to d e m o n s t r a t e that the PCR court's conclusion that petitioner's plea was knowing and voluntary is objectively unreasonable. Before

e n t e r i n g a plea of guilty, a defendant must be aware of the nature and elements of the charges against him and the potential And,

punishment.

Brady v. United States, 397 U.S. 742, 749 (1970).

t h e contemporaneous record of the guilty plea hearing caries a 1 7 - OPINION AND ORDER

"strong presumption of verity." 7 3 - 7 4 (1977).

Blackledge v. Allison, 431 U.S. 63,

I n the plea colloquy with Judge Frantz, petitioner admitted t h a t he had reviewed the two page plea petition with his attorney a n d understood its terms. (Ex. 105 p. 4.) Petitioner also admitted

t h a t he was giving up his right to a jury trial, and to present and c r o s s - e x a m i n e witnesses. (Id.) In the colloquy, petitioner stated

t h a t he understood the sentence against him, and that in exchange for pleading guilty, other charges­including those under

i n v e s t i g a t i o n in Washington­would be dropped. (Id.)

Accordingly,

t h e PCR court's rejection of petitioner's ineffective assistance of c o u n s e l for failing to ensure petitioner's plea was knowingly and voluntarily 2254(d). Petitioner's suggestion that trial counsel had a duty to given is entitled to deference under 28 U.S.C. §

w i t h d r a w , and rendered deficient performance because he failed to do s o misses the mark. "The proper measure of attorney performance

r e m a i n s simply reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688-89. At the PCR proceeding, petitioner

a r g u e d at length his contention that Mr. Bertoni was unwilling to t a k e his case to trial, and informed petitioner the day of the s e t t l e m e n t conference that counsel would withdraw if petitioner did n o t plead guilty. The PCR court found petitioner's version of

e v e n t s "not persuasive or trustworthy," which petitioner has failed

1 8 - OPINION AND ORDER

to rebut.

Additionally, the PCR court's conclusion that trial

c o u n s e l may have indicated a desire to withdraw because of a perjury c o n c e r n , and not because counsel was inattentive, is supported by the record as a whole. trial In short, petitioner has in failed to

demonstrate

that

counsel's

performance

negotiating

p e t i t i o n e r ' s plea was not within the range of competence demanded of a t t o r n e y s in criminal cases. U . S . at 688. E v e n assuming arguendo that trial counsel rendered deficient p e r f o r m a n c e , petitioner's conclusory argument that he would have proceeded detailed evidence to trial falls short of establishing has a failed chance prejudice. to of provide As any Hill, 474 U.S. at 58; Strickland, 466

above, that

because alibi

petitioner defense

his

had

succeeding,

p e t i t i o n e r cannot demonstrate that but for trial counsel's alleged i n a d e q u a t e investigation, preparation or withdrawl, he would have p r o c e e d e d to trial. Lambert, 393 F.3d at 983; Hill, 474 U.S. at 59;

S t r i c k l a n d , 466 U.S. at 688. In sum, I conclude that petitioner has failed to demonstrate t h a t the PCR court's rejection of his ineffective assistance claim i n ground one(c) and (d) is (1) contrary to, or an unreasonable a p p l i c a t i o n of, clearly established federal law; or (2) premised u p o n an unreasonable determination of the facts in light of the e v i d e n c e presented. 28 U.S.C. § 2254(d)(1) and (2).

19 - OPINION AND ORDER

D.

F a i l u r e to Communicate. In ground one(e), petitioner complains that trial counsel

r e n d e r e d ineffective assistance by failing to adequately maintain communication with him in preparation for trial. i s meritless. A defendant has the right to effective representation, not a " m e a n i n g f u l relationship" with counsel. 1 , 14 (1983). Morris v. Slappy, 461 U.S. Petitioner's claim

Petitioner did express frustration with his counsel

b y sending counsel letters. However, petitioner presents no evidence t o rebut the PCR court's factual findings that petitioner did not c o m p l a i n to the trial court of his representation, despite having m u l t i p l e opportunities to do so. To be sure, the only evidence that

t r i a l counsel was not prepared or failed to investigate comes from p e t i t i o n e r , whom the PCR court concluded was not credible. petitioner's conclusory allegations, petitioner has Beyond to

failed

e s t a b l i s h that trial counsel's performance fell below an objective s t a n d a r d of reasonableness, or that he would not have pleaded guilty a n d would have proceeded to trial. Strickland, 466 U.S. at 688; Accordingly, the

H i l l , 474 U.S. at 59; Lambert, 393 F.3d at 983.

s t a t e court's rejection of petitioner's ineffective assistance of counsel claim is neither contrary to, nor an unreasonable

a p p l i c a t i o n of Strickland.

28 U.S.C. § 2254(d).

In so holding, I reject petitioner's assertion that the PCR c o u r t applied an incorrect evidentiary or legal standard because the

2 0 - OPINION AND ORDER

PCR court failed to discuss or cite Strickland.

The post-conviction

c o u r t ' s failure to cite Strickland does not support a conclusion t h a t its decision is contrary to well established federal law. See

E a r l y v. Packer, 537 U.S. 3, 8 (state court need not cite or even be a w a r e of governing Supreme Court case law so long as neither the reasoning Petitioner nor has the result to of its decision that contradicts the state them). court's

failed

demonstrate

r e a s o n i n g or result in this case contradicts controlling Supreme Court precedent. 28 U.S.C. § 2254(d). Habeas relief is not

warranted. II. P r o c e d u r a l Default. P e t i t i o n e r does not discuss the merits of grounds two through six in the briefing to this court. Respondent moves to deny

p e t i t i o n e r ' s remaining grounds for relief on the basis that they are p r o c e d u r a l l y defaulted. A. Standards. Generally, a state prisoner must exhaust all available state court remedies either on direct appeal or through collateral I agree.

p r o c e e d i n g s before a federal court may consider granting habeas c o r p u s relief. 28 U.S.C. § 2254(b)(1). A state prisoner satisfies

t h e exhaustion requirement by fairly presenting his claim to the a p p r o p r i a t e state courts at all appellate stages afforded under s t a t e law. Baldwin v. Reese, 541 U.S. 27, 29 (2004); Casey v.

2 1 - OPINION AND ORDER

Moore, 386 F.3d 896, 915-56 (9th Cir. 2004), cert. denied, 545 U.S. 1 1 4 6 (2005). A fair presentation requires a prisoner to state the facts that e n t i t l e him to relief, and to reference the federal source of the law on which he relies, or a case analyzing the federal

c o n s t i t u t i o n a l guarantee on which he relies, or to simply label his c l a i m "federal." Baldwin, 541 U.S. at 32; Gray v. Netherland, 518

U . S . 152, 162-63 (1996).

A petitioner also must have presented his

f e d e r a l claims to the state courts in a procedural context in which t h e merits of the claim will be considered. 4 8 9 U.S. 346, 351-52 (1989). federal claims in state Castille v. Peoples,

Where a petitioner has defaulted his pursuant to "an independent and

court

a d e q u a t e state procedural rule," federal habeas review is barred. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Cook v. Schriro, 538 F . 3 d 1000, 1025 (9th Cir. 2008); cert. denied, 129 S. Ct. 1033 (2009). Habeas review of procedurally defaulted claims is barred

u n l e s s the petitioner demonstrates cause for the procedural default a n d actual prejudice, or that failure to consider the claims will r e s u l t in a miscarriage of justice. B. Coleman, 501 U.S. at 750.

G r o u n d s Two Through Six are Procedurally Defaulted. In ground two, petitioner contends that the trial court

v i o l a t e d his Due Process rights when it misinformed him about the s e n t e n c e he would receive. In ground five, petitioner argues that

t h e trial court violated his Due Process rights when it coerced him

2 2 - OPINION AND ORDER

into entering a plea with that misinformation.

In ground six,

p e t i t i o n e r alleges that the trial court violated his Due Process r i g h t s when it based his sentence on a miscalculated offender score. Petitioner did not raise grounds two, five or six on direct appeal or in his first petition for post-conviction relief. Rather,

p e t i t i o n e r raised these issues in his second PCR petition, which was d i s m i s s e d on the state's motion by the second post-conviction court a s successive. (Exs. 153, 155, 157-59.) Because grounds two, five

a n d six were precluded by violation of a state procedural rule, they a r e procedurally defaulted. F . 3 d at 1025; O.R.S. § 138.550(3). In ground three, petitioner asserts that the prosecutor See Coleman, 510 U.S. at 732; Cook, 538

v i o l a t e d his Due Process rights when he threatened an unlawful s e n t e n c e to coerce petitioner into accepting the plea agreement. In

g r o u n d four, petitioner contends that the trial court violated his D u e Process rights when it failed to appoint him new counsel, or a d v i s e petitioner of his right to have new counsel appointed. Petitioner raises grounds three and four for the first time in the instant proceeding, and therefore they have not been properly

exhausted.

Castille, 489 U.S. at 351-52.

Because the time for

e x h a u s t i n g these claims has passed, grounds three and four are p r o c e d u r a l l y defaulted. See O.R.S. § 138.650.

23 - OPINION AND ORDER

Petitioner makes no attempt to excuse his procedural default of g r o u n d s two through six, or assert that a fundamental miscarriage of j u s t i c e will occur if they are not considered. r e l i e f on grounds two through six is precluded. CONCLUSION Based on the foregoing, petitioner's petition for writ of Therefore, habeas

h a b e a s corpus (#2) is DENIED, and this proceeding is DISMISSED, with prejudice. B e c a u s e petitioner has not made a substantial showing of the d e n i a l of a constitutional right, a certificate of appealability is DENIED. See 28 U.S.C. § 2253(c)(2).

IT IS SO ORDERED. D A T E D this 21st day of SEPTEMBER, 2010.

/s/ Garr M. King Garr M. King U n i t e d States District Judge

2 4 - OPINION AND ORDER