Exum v. State of Oregon et al

Filing 37

Opinion & Order: The First Amended Petition for Writ of Habeas Corpus (#22) is DENIED. Signed on 1/30/09 by Judge Michael W. Mosman. (mkk)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON CAROLYN EXUM, C i v i l No. 0 6 - 1 3 0 1 - M O Petitioner,

v.
STATE OF OREGON a n d BILL HOEFEL, OPINION AND ORDER Respondents. M i c h a e l R. L e v i n e A t t o r n e y a t Law 400 SW S i x t h A v e n u e , S u i t e 6 0 0 P o r t l a n d , O r e g o n 97204 Attorney for Petitioner J o h n R. K r o g e r Attorney General Jacqueline Sadker Assistant Attorney General Department of Justice 1 1 6 2 C o u r t S t r e e t NE Salem, Oregon 97310 Attorneys for Respondent

1 - OPINION AND ORDER

MOSMAN, D i s t r i c t J u d g e . Petitioner brings this habeas corpus case pursuant to 28

U.S.C. § 2254 in which she seeks to challenge the l e g a l i t y of her underlying state conviction for Murder. For the reasons which

follow, the F i r s t Amended P e t i t i o n for Writ of Habeas Corpus (#22) is denied.
BACKGROUND

Petitioner conspired with her lover, Allen Browning, to murder her husband. and, Browning bludgeoned p e t i t i o n e r ' s husband to death admitted his participation in the crime. He u l t i m a t e l y p l e d g u i l t y i n e x c h a n g e As p a r t of h i s petitioner.

when questioned,

Respondent's Exhibit 114.

for a life sentence with the possibility of parole. plea agreement, he also agreed to

testify against

Respondent's Exhibit 117. As a r e s u l t o f h e r p a r t i c i p a t i o n i n t h e c r i m e , p e t i t i o n e r was charged with three counts of Aggravated Murder, Attempted Murder, Kidnaping in the First Degree, Assault in the Second Degree, and Tampering with Physical Evidence. Respondent's Exhibit 102. She

agreed to plead guilty to Murder (the lesser included offense of Count One's Aggravated Murder), and the State agreed to drop the remaining charges. Respondent's Exhibi t 103. Following

petitioner's plea, the trial court sentenced her to life in prison with a 25-year minimum. Respondent's Exhibit 104, p. 6.

2 - OPINION AND ORDER

Petitioner's a t t o r n e y f i l e d f o r d i r e c t a p p e a l u s i n g a B a l f o u r brief,l but petitioner did not supplement the brief to include any issues for appellate review. Respondent's Exhibit 105. Petitioner

did not p e t i t i o n the Oregon Supreme Court for review. Petitioner next filed for post-conviction relief ("PCR") in

W a s h i n g t o n C o u n t y w h e r e t h e PCR t r i a l c o u r t d e n i e d r e l i e f o n a l l o f her claims. Respondent's Exhibits 124-126. The Oregon Court of

A p p e a l s s u m m a r i l y a f f i r m e d t h e PCR t r i a l c o u r t ' s d e c i s i o n , a n d t h e Oregon Supreme Court denied review. 132. P e t i t i o n e r f i l e d her F i r s t Amended P e t i t i o n for Writ of Habeas Corpus on March 10, 2008 in which she r a i s e s the following grounds for relief: 1. P e t i t i o n e r ' s plea of g u i l t y was not entered knowingly, intelligently, and voluntarily in violation of her rights to due process and the effective assistance of counsel; T r i a l counsel rendered i n e f f e c t i v e a s s i s t a n c e when he: a. Grossly misadvised her and misinformed her with respect to entering her guilty plea; Respondent's Exhibits 130,

2.

1 The Balfour procedure provides t h a t counsel need not e t h i c a l l y withdraw when faced with only frivolous i s s u e s . Rather, the a t t o r n e y may f i l e Section A of an a p p e l l a n t ' s b r i e f containing a statement of the case sufficient to "apprise the appellate court of the jurisdictional basis for the appeal." The defendant may then f i l e the Section B segment of the brief containing any assignments of error she wishes. State v. Balfour, 311 Or. 434, 451-52, 814 P.2d 1069 (1991).

3 - OPINION AND ORDER

b.

Provided erroneous advice and statements which threatened and coerced petitioner into entering her guilty plea; Misadvised and misled petitioner into believing that her fifteen-year-old son was a t r i s k of being prosecuted as an accessory to murder unless she pled guilty; Misadvised and misled petitioner into believing that her father would be prosecuted, convicted and incarcerated for being an accessory to murder or for obstruction of justice unless she pled guilty;

c.

d.

3.

Petitioner is actually innocent of the charge of murder and would not have pled guilty had t r i a l counsel effectively and properly investigated the case, properly filed motions to suppress evidence including her statements to the police, and properly advised her; and The conduct of respondents in continuing to incarcerate petitioner deprives her of her Sixth and F o u r t e e n t h Amendment r i g h t s .
DISCUSSION

4.

I.

Improper Respondent.

As a n i n i t i a l m a t t e r , p e t i t i o n e r p r o p e r l y b r i n g s t h i s c a s e against her warden, Bill Hoefel.

See Brittingham v. United States,
(proper respondent in a habeas She also brings t h i s action

982 F.2d 378, 379 (9th C i r . 1992)

case is the petitioner's custodian). against the State of Oregon. respondent, i t is dismissed.

Because the State i s not a proper

III III
4 - OPINION AND ORDER

II.

Standard of Review.
An application for a writ of habeas corpus shall not be

granted unless adjudication of the claim in state court resulted in a decision that was: (1) "contrary t o , or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) "based on an

unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U . S . C .
§

2254(d).

A

state court's findings of fact are presumed correct, and petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. A state court decision if the 28 U . S . C . § 2 2 5 4 ( e ) ( 1 ) . is "contrary court to applies a clearly rule that

established precedent

state

contradicts the governing law s e t forth in (the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of (the Supreme] Court and nevertheless arrives at a result different 362, from (that] (2000).

precedent."

Williams v.

Taylor,

529 U.S.

405-06

Under the "unreasonable application" clause, a federal habeas court may grant relief "if the state court identifies the correct

governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case."
Id at 413.

The "unreasonable application" clause requires

the s t a t e court decision to be more than incorrect or erroneous.

5 - OPINION AND ORDER

Id a t 4 1 0 .

The s t a t e c o u r t ' s a p p l i c a t i o n o f c l e a r l y e s t a b l i s h e d Id at 409.

law must be objectively unreasonable.
III. Ana1ysis. A.

I n v o l . u n t a r y G u i l . t y P 1 e a ( G r o u n d s 1 , 2 Ca) , 2 C b ) , 2 Ce) , a n d 2 Cd» .

Petitioner brings due process and ineffective assistance of counsel claims based on her purportedly involuntary guilty plea. Specifically, during her state court proceedings she argued that counsel misadvised her with respect to the potential culpability of her son and father, telling her that i f she did not plead guilty, her family might be prosecuted. Respondent's Exhibit 127, p. 12.

She also maintained t h a t her defense attorney and the prosecutor unethically struck a deal whereby defense counsel would give up on p e t i t i o n e r ' s case in exchange for a more favorable position in a subsequent case. Due process Id at 13. requires that a defendant's guilty plea be

voluntary and (1969).

intelligent~

Boykin v. Alabama, 395 U.S. 238, 242

A guilty plea i s voluntary i f i t i s given by a defendant
Mabry

who i s f u l l y a w a r e o f t h e d i r e c t c o n s e q u e n c e s o f h i s p l e a .

v . J o h n s o n , 467 U . S . 5 0 4 , 5 0 9 ( 1 9 8 4 ) ; B r a d y v . U n i t e d S t a t e s , 397
U.S. 742, 755 (1970). P e t i t i o n e r must present s u f f i c i e n t evidence to defeat the "formidable" presumption of verity accorded to plea proceedings.
B l a c k l e d g e v . A l l i s o n , 4 3 1 U . S . 6 3 , 74

(1977).

6 - OPINION AND ORDER

With r e s p e c t t o p e t : i t i o n e r ' s i n e f f e c t i v e a s s i s t a n c e o f c o u n s e l claims, the Supreme a Court has established a has two-part from test such to a

determine

whether

petitioner

suffered

constitutional defect in her trial.

First, the petitioner must

show t h a t her lawyer's performance f e l l below an objective standard of reasonableness.
(1984). Strickland v. Washington, 466 U.S. 668, 686-687

Due

to

the

difficulties

in

evaluating

counsel's

performance,

courts must indulge a

strong presumption that the

conduct f a l l s within the "wide range of reasonable professional assistance."
Id at 689.

Second, the p e t i t i o n e r must show t h a t her lawyer's performance prejudiced the defense. whether the petitioner The appropriate t e s t for prejudice i s can show "that there is a reasonable the

probability that,

but for counsel's unprofessional errors,

result of the proceeding would have been different." In proving prejudice, a p e t i t i o n e r who has

Id at 694.

pled guilty to

an

offense must demonstrate that there i s a reasonable probability that, but for counsel's errors, she would not have entered such a plea and would have i n s i s t e d on going to t r i a l .
474 U.S. 52, 59 (1985). Hill v. Lockhart,

I n t h i s c a s e , t h e peR t r i a l c o u r t m a d e t h e f o l l o w i n g f a c t u a l findings relevant to the claims at issue: 11. Petitioner's intelligent. plea was knowing, voluntary, and

7 - OPINION AND ORDER

20.

Prior to the plea, petitioner· further indicated t h a t she had not been threatened or made promises to force her into pleading, had no questions, and again indicated that she had been given the opportunity to fully speak with her attorneys. Petitioner failed to prove her claim that the district attorney threatened her with statements that her father and/or brother would be arrested. Petitioner failed to prove that counsel's advice regarding her plea was not sound. Petitioner failed to prove any facts necessary to support her claims. Petitioner claims that her mother and her s i s t e r ' s boyfriend overheard a conversation between counsel and the d i s t r i c t attorney at which time the d i s t r i c t attorney stated, " I f you give us t h i s one, then we'll give you the next one." According to counsel, no such conversation ever took place between the d i s t r i c t [attorney] and himself. Petitioner failed to prove that coerced her into pleading guilty. her attorneys

21.

23. 26. 28.

29.

45. 46.

The record r e f l e c t s t h a t p e t i t i o n e r ' s plea was knowing, voluntary, and i n t e l l i g e n t and that, at the time of her plea, petitioner affirmed that she was not coerced. Counsel swears under oath that he does not u n d e r s t a n d p e t i t i o n e r ' s r e f e r e n c e s t o h e r s o n , who had nothing to do with the murder. (The same holds t r u e for p e t i t i o n e r ' s f a t h e r , whose a r r e s t was never mentioned or discussed at the time petitioner decided to plead). Exhibit 125, pp. 3-7 (citations to state record

47.

Respondent's omitted) .

This case ultimately turned on a credibility determination between petitioner's deposition testimony and defense counsel's 8 - OPINION AND ORDER

competing a f f i d a v i t .

T h e PCR t r i a l c o u r t o b v i o u s l y r e s o l v e d t h i s and
therefor~

credibility contest in counsel's favor,

concluded

that petitioner had not been coerced into entering an involuntary guilty plea. constitutes a The PCR t r i a l court's credibility determination

factual finding which this court accepts as true 28 U.S.C.

absent clear and convincing evidence to the contrary.
§

2254 (e) (1) ·

After conducting a thorough review of the record in this case, the court finds no clear and convincing evidence which would lead i t t o d i s r e g a r d t h e PCR t r i a l c o u r t ' s c r e d i b i l i t y d e t e r m i n a t i o n . In fact, the record supports this determination since petitioner

specifically advised the t r i a l court that no threats or promises had been made t o induce her plea. Respondent's Exhibit 104, p. 4.

"Solemn declarations in open court carry a strong presumption of verity."
Blackledge v. Allison,

431

u.S.

63,

73-74

(1977). its

Accepting the

peR t r i a l c o u r t ' s c r e d i b i l i t y determination,

decision denying r e l i e f on p e t i t i o n e r ' s due process and ineffective assistance of counsel claims is neither contrary to, nor an

unreasonable application of, clearly established federal law.
B·

Ground 3:

Actual Innocence.

Petitioner next asserts that she is actually innocent of her husband's relief. murder, and is therefore entitled 390, to habeas corpus the

In Herrera v.

Collins,

506 u.S.

417

(1993),

Supreme Court assumed without deciding that "in a c a p i t a l case a

9 - OPINION AND ORDER

truly p e r s u a s i v e d e m o n s t r a t i o n o f

' a c t u a l innocence' made a f t e r

t r i a l would render the execution of a defendant unconstitutional, and warrant federal habeas r e l i e f i f there were no s t a t e avenue open to process such a claim." Even assuming p e t i t i o n e r in t h i s

non-capital habeas case could assert a freestanding claim of actual innocence as an independent ground for r e l i e f , she "must go beyond demonstrating doubt about [her] guilt, and must affirmatively prove that [s]he is probably innocent." 463, 476 (9th eire 1997) (en bane) .

Carriger v. Stewart, 132 F.3d

Petitioner admitted her guilt in the Plea Petition and at the plea hearing. Respondent's Exhibits 103 & 104. Browning, whose

affair with petitioner prompted the murder, implicated petitioner in the crime and was prepared to t e s t i f y against her. Exhibits 114
&

Respondent's

117.

Moreover,

even though petitioner realized she continued her

Browning had bludgeoned her husband to death, romantic a f f a i r with him uninterrupted. In light of these facts, and in the

Respondent's Exhibit 114. absence of any clearly

exculpatory evidence, the court cannot conclude that petitioner is actually innocent.

C.

Ground 4: Continued

~ncarceration.

Finally, petitioner alleges that her continued incarceration consti tutes rights. a violation of her Sixth and Fourteenth Amendment

Petitioner's challenge to the fact of her incarceration,

an incarceration which resulted from following a constitutionally-

1 0 - OPINION AND ORDER

permissible p l e a a n d s e n t e n c i n g , d o e s n o t a m o u n t t o a n i n d e p e n d e n t ground for habeas corpus relief.
CONCLUSION

F o r t h e r e a s o n s i d e n t i f i e d a b o v e , t h e F i r s t Amended P e t i t i o n f o r W r i t o f H a b e a s C o r p u s ( # 2 2 ) i s DENIED. I T I S SO ORDERED. DATED t h i s ~ d a y o f J a n u a 009~ Y , 2r~

J'J\MJcha-el W. -an- - ) iJ osm
United States District Judge

1 1 - OPINION AND ORDER