Miller v. Hill

Filing 58

Opinion and Order. The Court DENIES the Petition for Writ of Habeas Corpus and DISMISSES this action. The Court DENIES a certificate of appealability as Petitioner has not made a substantial showing of the denial of a constitutional right. Signed on 09/29/2010 by Judge Anna J. Brown. See 9 page Order. (bb)

Miller v. Hill

Doc. 58

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION WILLIAM N. MILLER, Civil No. 07-1066-BR Petitioner, OPINION AND ORDER v. JEAN HILL, Respondent. TODD H. GROVER 143 S.W. Shevlin-Hixon Dr. Suite 203 Bend, OR 97702 Attorney for Petitioner JOHN R. KROGER Attorney General JONATHAN W. DIEHL Assistant Attorney General Department of Justice 1162 Court Street N.E. Salem, OR 97301 Attorneys for Respondent 1 - OPINION AND ORDER -

Dockets.Justia.com

BROWN, Judge. Petitioner brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Court DENIES the

Amended Petition for Writ of Habeas Corpus. BACKGROUND On October 24, 2000, a Benton County grand jury indicted Petitioner on three counts of Sexual Abuse in the First Degree and three counts of Unlawful Sexual Penetration in the First Degree.1 Petitioner pleaded not guilty and waived his right to a jury trial. On September 10, 2001, the case proceeded to a bench trial. The trial judge found Petitioner guilty of each of the charged offenses. On October 31, 2001, the trial judge sentenced

Petitioner to concurrent 75-month prison terms on the three counts of Sex Abuse in in the First Degree. On two the of the Sexual imposed

Penetration

the

First

Degree

counts,

judge

mandatory-minimum 100 month prison terms.

On the final Sexual

Penetration in the First Degree count, the judge imposed a upward durational departure sentence of 200 months. The three sexual

penetration sentences were consecutive to one another, for a total term of imprisonment of 400 months.

The facts underlying the indictment and subsequent convictions are set forth in the Court's September 28, 2009, Opinion and Order (#52).
1

2 - OPINION AND ORDER -

Petitioner

filed

a

direct

appeal,

raising

issues

not

currently before this Court. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. Miller, 190 Or. App. 305, 79 P.3d 418 (2003), rev. denied, 336 Or. 534, 88 P.3d 20 (2004). Petitioner then sought state post-conviction relief ("PCR"). Following an evidentiary hearing, the PCR trial judge denied relief. Petitioner appealed, but again the Oregon Court of

Appeals affirmed without opinion and the Oregon Supreme Court denied review. Miller v. Hill, 209 Or. App. 816, 149 P.3d 347

(2006), rev. denied, 342 Or. 503, 155 P.3d 874 (2007). On July 23, 2007, Petitioner filed his habeas corpus action in this Court. Currently before the Court is Petitioner's Amended Petition for Writ of Habeas Corpus. for relief: [Petitioner] is entitled to federal habeas corpus relief for the reason that he was denied his right to the effective assistance of trial counsel, as guaranteed by the Sixth and Fourteenth Amendments to the United Stated Constitution, when trial counsel failed to object to the imposition of a durational departure sentence pursuant to Apprendi v. New Jersey. Respondent agrees Petitioner exhausted his available state remedies with respect to the claim before this Court. Respondent In it, he alleges one claim

argues, however, that Petitioner is not entitled to relief because the state PCR court's decision denying relief on Petitioner's

3 - OPINION AND ORDER -

Apprendi claim was not contrary to or an unreasonable application of clearly established federal law. LEGAL STANDARDS Under 28 U.S.C. § 2254(e)(1), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, habeas corpus relief may not be granted on any claim that was adjudicated on the merits in state court, unless the adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. A state court decision is not considered "contrary to" established Supreme Court precedent unless it "applies a rule that contradicts the governing law set forth in [Supreme Court cases]" or "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent." Andrade, 538 U.S. 63, 73 (2003). Lockyer v.

A federal habeas court cannot

overturn a state decision "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or

incorrectly."

Williams v. Taylor, 529 U.S. 362, 409 (2000).

4 - OPINION AND ORDER -

The

Supreme

Court

has

established

a

two-part

test

to

determine whether a defendant has received ineffective assistance of counsel. counsel's Under this test, a petitioner must prove that fell below an objective standard of

performance

reasonableness, and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different. 466 U.S. 668, 687-888 (1987).

Strickland v. Washington,

To prove a deficient performance of counsel, a petitioner must demonstrate that trial counsel "made errors that a reasonably competent attorney as a diligent and conscientious advocate would not have made." 1985). The Butcher v. Marquez, 758 F.2d 373, 376 (9th Cir. is whether the assistance was reasonably

test

effective under the circumstances, and judicial scrutiny must be highly deferential, with the court indulging a presumption that the attorney's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. DISCUSSION Petitioner argues trial counsel provided constitutionally ineffective assistance of counsel because he did not object, pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2001), to the upward durational departure sentence. In Apprendi, the Supreme

Court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed 5 - OPINION AND ORDER -

statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490.

Following Apprendi, Oregon state courts and federal circuit courts understood "statutory maximum" to be the maximum punishment permissible under the range of statutory penalties allowed. See

Schardt v. Payne, 414 F.3d 1025, 1035 (9th Cir. 2005) (collecting federal circuit court cases); State v. Dilts, 179 Or. App. 238, 39 P.3d 276 (2002), aff'd 336 Or. 158, 82 P.3d 593 (2003), vacated by Dilts v. Oregon, 542 U.S. 934 (2004). Four years later, however,

the Supreme Court decided Blakely v. Washington, 542 U.S. 296 (2004). In Blakely, the Supreme Court concluded that "the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." 542 U.S. at 303. In other

words, Blakely defined "statutory maximum" in this context to mean the applicable sentencing range under mandatory sentencing

guidelines.

See, e.g., Bush v. Hill, 2008 WL 4365206 (D. Or.

2008) (explaining effect of Blakely on Oregon's sentencing laws), aff'd 368 Fed. Appx. 840 (9th Cir. 2010). Here, Petitioner was sentenced within Oregon's applicable statutory parameters, satisfying the then-extant interpretations of Apprendi. Because his sentence exceeded the presumptive

sentence under the Oregon Sentencing Guidelines, however, the 6 - OPINION AND ORDER -

sentence violated Blakely.

Nonetheless, it is well settled that

Blakely does not apply retroactively to convictions which became final prior to that decision. Schardt, 414 F.3d at 1036.

Nevertheless, even though his sentencing took place three years before the Blakely decision, Petitioner argues counsel's services were constitutionally ineffective because counsel did not raise a Blakely-like objection to the upward durational departure in the wake of Apprendi. Petitioner argues that other attorneys

did make such objections at the time, and that his attorney should have done so as well. This Court disagrees.

As indicated by the post-Apprendi, pre-Blakely decisions of Oregon state courts and federal circuit courts, "the rule

announced in Blakely was clearly not apparent to all reasonable jurists, nor was it dictated by precedent." 1035. Schardt, 414 F.3d at

"Strickland does not mandate prescience, only objectively advice under prevailing professional norms."

reasonable

Sophanthavong v. Palmateer, 378 F.3d 859, 870 (9th Cir. 2004) (citing Strickland, 466 U.S. at 690). Thus, a court reviewing an

ineffective assistance of counsel claim cannot require that an attorney anticipate a decision in a later case. 21 F.3d 344, 346 (9th Cir. 1994).2 The court notes this case is distinguishable from Burdge v. Belleque, 290 Fed. Appx. 73 (9th Cir. 2008), which Petitioner cites in support of his argument. In Burdge, the Ninth Circuit faulted an attorney for his failure to object to and challenge the
2

Lowry v. Lewis,

7 - OPINION AND ORDER -

As Petitioner notes in his Memorandum of Law, this Court previously rejected an argument similar to that advanced here. See Reigard v. Hall, CV 08-293-BR, 2009 WL 3518029 (D. Or. Oct. 21, 2009). There, the Court concurred with every other judge faced

with this issue in this District and concluded that, because existing precedent did not support a Sixth Amendment objection at the time of Petitioner's sentencing, counsel's performance did not fall below an objective standard of reasonableness for his failure to raise such an objection. Id., 2009 WL 3518029 at *3 (citing

Bufford v. Hill, 2009 WL 1974442 (D. Or. 2009); Losh v. Hill, 2009 WL 1089478 (D. Or. 2009); Zurcher v. Hall, 2008 WL 3836301 (D. Or. 2008), aff'd, 2010 WL 2465128 (9th Cir., Jun. 15, 2010); Dunn v. Hill, 2008 WL 1967723 (D. Or. 2008), aff'd, 307 Fed. Appx. 83 (9th Cir. 2009), cert. denied sub nom Dunn v. Nooth, 129 S. Ct. 2798 (2009)). Petitioner's situation is no different than that addressed in Reigard and the cases cited therein. court's decision denying relief on Accordingly, the PCR trial Petitioner's ineffective

assistance of counsel claim was not contrary to or an unreasonable application of clearly established federal law. CONCLUSION constitutionality of an ambiguous Oregon sentencing statute although the Oregon court had not interpreted the statute. In Burdge, statutes similar to Oregon's had been successfully challenged for many years in other states. 8 - OPINION AND ORDER -

For these reasons, the Court DENIES the Petition for Writ of Habeas Corpus and DISMISSES this action. The Court DENIES a certificate of appealability as Petitioner has not made a substantial showing of the denial of a

constitutional right. IT IS SO ORDERED.

See 28 U.S.C. § 2253(c)(2).

DATED this 29th day of September, 2010. /s/ Anna J. Brown ANNA J. BROWN United States District Judge

9 - OPINION AND ORDER -

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