Thibodeaux v. Belleque

Filing 65

Findings & Recommendation: The amended petition 42 should be denied, and this proceeding should be dismissed, with prejudice. Objections to the Findings and Recommendation are due by 11/5/2009. Signed on 10/21/09 by Magistrate Judge Dennis J. Hubel. (see formal 6-page f&r) (kb)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON LOUIS J. THIBODEAUX, Petitioner, v. BRIAN BELLEQUE, Respondent. Corinne J. Lai 520 S.W. 6th Ave., Suite 825 Portland, Oregon, 97204 Attorney for Petitioner John R. Kroger Attorney General Kristen E. Boyd Assistant Attorney General Department of Justice 1162 Court Street N.E. Salem, Oregon, 97301-4096 Attorneys for Respondent HUBEL, Magistrate Judge Petitioner, an inmate at the Oregon State Penitentiary, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For CV. 07-985-HU FINDINGS AND RECOMMENDATION

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the reasons set forth below, the petition should be denied, and this proceeding dismissed, with prejudice. BACKGROUND In December, 2000, petitioner was convicted by a jury of Robbery in the First Degree and Unlawful Use of a Weapon.

Petitioner was sentenced to a 120-month term of incarceration. Petitioner filed a direct appeal, but filed a Balfour brief which contained no assignments of error. dismissed. Petitioner subsequently sought state post-conviction relief, raising multiple claims of ineffective assistance of trial and appellate counsel. conviction relief. Resp. Exh. 109. On appeal, The trial court denied postpetitioner filed a pro se The appeal was voluntarily

appellant's brief alleging that the trial and post-conviction courts committed multiple errors, and alleging generally that he was denied effective assistance of trial counsel. at 13 & 20. Resp. Exh. 136

The Oregon Court of Appeals affirmed the denial of Thibodeaux v. Lampert,

post-conviction relief, without opinion. 209 Or. App. 354, 147 P.3d 382 (2006).

On review to the Oregon Supreme Court, petitioner raised three assignments of trial court error: (1) unlawful durational departure sentence; (2) violation of plaintiff's right to a speedy trial; and (3) denial of discovery. Resp. Exh. 138 at 1. Petitioner's only

reference to ineffective assistance of counsel was that trial 2 -- FINDINGS AND RECOMMENDATION

counsel was ineffective for failing to object to petitioner's "enhancement sentences" based upon the holdings in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). review. Resp. Exh. 138 at 9. The Oregon Supreme Court denied

Thibodeaux v. Lampert, 342 Or. 727, 160 P.3d 992 (2007).

In the instant proceeding, petitioner raises five grounds of ineffective assistance of trial and appellate counsel (grounds 1-5), and alleges that he was denied due process in the state postconviction proceeding (grounds 6 & 7). DISCUSSION Respondent moves the court to deny habeas relief on the basis that all of petitioner's grounds for relief are procedurally defaulted. Petitioner contends that his procedural default should

be excused because it was caused by the post-conviction court's refusal to appoint substitute post-conviction trial counsel, and the subsequent denial of his request for appointment of counsel on appeal from the denial of post-conviction relief. 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. 28 U.S.C. § 2254(b)(1); Smith v. Baldwin, 510 F.3d

1127, 1137-38 (9th Cir. 2007), cert. denied, 129 S.Ct. 37 (2008); Carter v. Giurbino, 385 F.3d 1194, 1196 (9th Cir. 2004), cert. denied, 543 U.S. 1190 (2005). 3 -- FINDINGS AND RECOMMENDATION A state prisoner satisfies the

exhaustion requirement by fairly presenting his claim to the appropriate state courts at all appellate stages afforded under state law. Baldwin v. Reese, 541 U.S. 27, 29 (2004); O'Sullivan v.

Boerckel, 526 U.S. 838, 845 (1999); Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004), cert. denied, 545 U.S. 1146 (2005). If a petitioner procedurally defaults his federal claims in state court, federal habeas relief is precluded absent a showing of cause and prejudice, or that failure to consider his federal claims will result in a fundamental miscarriage of justice. Coleman v. To

Thompson, 501 U.S. 722, 750 (1991); Smith, 510 F.3d at 1139.

establish cause for a procedural default, a petitioner must prove that the procedural default is due to an objective factor that is external to the petitioner, and that cannot fairly be attributed to him. Coleman, 501 U.S. at 753; Smith v. Idaho, 392 F.3d 350, 356

(9th Cir. 2004); Manning v. Foster, 224 F.3d 1129, 1133 (9th Cir. 2000). It is uncontested that petitioner failed to fairly present any of his grounds for relief to the Oregon Supreme Court in his petition for review. defaulted because Accordingly, the claims are procedurally cannot again seek state postSee

petitioner

conviction relief or appeal to the Oregon appellate courts. O.R.S. 138.510(3) & 138.650(1).

Petitioner contends that because O.R.S. 138.590(4) provides that the state court shall appoint suitable counsel for a post4 -- FINDINGS AND RECOMMENDATION

conviction petitioner, the failure to appoint substitute counsel during his state post-conviction proceeding, or to appoint counsel to represent petitioner on appeal, violated his right to due process and equal protection and, therefore, constitutes cause sufficient to excuse his procedural default. The Ninth Circuit has ruled otherwise, however, holding that because there is no federal constitutional right to counsel during state post-conviction

proceedings, a state court's failure to appoint counsel during such proceedings, even if such failure violates state law, does not constitute cause to excuse a procedural default. Smith v. Idaho,

392 F.3d at 357; McLenithan v. Hill, 2009 WL 2972988, *2 (D.Or. 2009); see also Bonin v. Vasquez, 999 F.2d 425, 429-31 (9th Cir. 1993). Accordingly, petitioner has failed to demonstrate

sufficient cause to excuse his default, and federal habeas corpus relief is precluded. CONCLUSION Based on the foregoing, petitioner's first amended habeas petition (#42) should be denied, and this proceeding dismissed, with prejudice. SCHEDULING ORDER The Findings and Recommendation will be referred to a district judge. Objections, if any, are due November 5, 2009. If no

objections are filed, then the Findings and Recommendation will go under advisement on that date. 5 -- FINDINGS AND RECOMMENDATION

If objections are filed, then a response is due November 19, 2009. When the response is due or filed, whichever date is

earlier, the Findings and Recommendation will go under advisement. IT IS SO ORDERED. DATED this __21st__ day of October, 2009. /s/ Dennis J. Hubel _____________________________ Dennis J. Hubel United States Magistrate Judge

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