Lane v. Nooth
Filing
84
OPINION AND ORDER: The Second Amended Petition for Writ of Habeas Corpus 32 is denied. The court declines to issue a Certificate of Appealabili ty on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c) (2). (See 16 page opinion for more information) Signed on 6/20/16 by Judge Robert E. Jones. (dsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
GILBERT L. LANE,
Case No. 3:08-cv-00115-JO
Petitioner,
OPINION AND ORDER
v.
MARK NOOTH,
Respondent.
Kristina S. Hellman
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
Ellen F. Rosenblum, Attorney General
Kristen E. Boyd, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent
1 - OPINION AND ORDER
JONES, District Judge.
Petitioner brings
U.S.C.
2254
§
this
challenging
habeas
the
corpus
case pursuant
legality
of
his
that
follow,
the
Second Amended
Pe ti ti on
28
state-court
convictions for Robbery, Murder, and Aggravated Murder.
reasons
to
for
For the
Writ
of
in
the
Habeas Corpus (#32) should be denied.
BACKGROUND
In
First
1985,
Degree,
merged the
a
jury convicted petitioner of
Murder,
and Aggravated Murder.
Robbery and Murder convictions
Robbery
The trial court
into the Aggravated
Murder conviction and sentenced petitioner to
life
in prison.
The Oregon Court of Appeals affirmed the trial court's decision
without
opinion,
and
the
Oregon
Supreme
Court
State v. Lane, 82 Or. App. 551, 728 P.2d 977
denied
review.
(1986), rev. denied,
302 Or. 657, 733 P.2d 1381 (1987).
Petitioner was later able to secure post-conviction relief
("PCR") where the PCR trial court determined that both trial and
appellate counsel
jury
should have objected when the trial court's
instructions
did
not
require
As a result,
Aggravated Murder.
a
finding
of
intent
for
in May of 1998, the PCR trial
court vacated the Aggravated Murder conviction and remanded the
case for further proceedings.
Petitioner
times
between
appeared
July
October 9, 2000.
to
conduct
legal
9,
Respondent's Exhibit 129.
before
1999
and
the
his
sentencing
ultimate
court
numerous
resentencing
on
He repeatedly complained that it was difficult
research
while
incarcerated,
between wishing to proceed pro se,
2 - OPINION AND ORDER
with the
and
vacillated
assistance of an
appointed
attorney,
or
with
an
attorney
The
advisor.
judges
assigned to his case specifically advised him of the perils of
representing himself along the way.
The State informed the sentencing court that it would not
proceed further on the Aggravated Murder charge.
Exhibit 104
"unmerge"
(9/16/1999),
petitioner's
p.
12.
Respondent's
Instead,
the State wished to
Murder,
Murder,
Aggravated
and
Robbery
convictions, something petitioner asserted the State had no right
to do.
As a result,
challenging
the
petitioner filed a pro se mandamus action
State's
unmerging
of
the
charges
wherein
he
alleged that because the charges could not be unmerged, and where
the State had already dismissed the Aggravated Murder
there was
no valid custodial order.
(2/2/2000), pp. 12-13.
charge,
Respondent's Exhibit
104
The sentencing court denied the petition.
Petitioner once again moved for appointed counsel,
and the
court initially refused to appoint counsel stating that "we've
been down that road several times and I'm just going to deny that
because you've demonstrated over and over again that you are not
able
or
willing
Exhibit 104
to
work
(3/15/2000),
with
p.
49.
an
attorney [.]"
The judge eventually relented
and appointed Mark Cross to represent petitioner.
petitioner's fifth attorney,
Respondent's
Mr. Cross was
something that made him "somewhat
hesitant" based upon the reputation petitioner had established
among the defense bar.
Respondent's Exhibit 144, p. 1.
Mr. Cross appeared on petitioner's behalf in September 2000.
Petitioner had pending pro se motions for a new trial and for
appointment of counsel to represent him in the new trial.
3 - OPINION AND ORDER
The
court asked Cross whether a new trial was warranted,
and Cross
replied that he did not believe there to be any merit to the
motion for a new trial.
Id at 2.
As a result, the court denied
the motions for new trial and for counsel.
On October 9,
2000, petitioner appeared for sentencing, but
the court first addressed the issue of Cross' motion to withdraw.
In an affidavit Cross filed with the court, he stated that in his
27 years of criminal defense practice, he had "never encountered
a defendant as difficult as [petitioner]" and that he agreed with
the
opinion
of
prior
counsel
that
it
was
not
possible
for
petitioner to work peaceably with any attorney, whether appointed
as such or in an advisory capacity.
The
court
granted
counsel's
Respondent's Exhibit 143.
request
to
withdraw,
denied
petitioner's request for substitute counsel, and required him to
proceed with his sentencing pro se:
Well, and I'll make a brief record on that I
guess.
We've had repeated - repeated times
we've
had attorneys,
some of the
best
attorneys in the State appointed to represent
you, you have repeatedly frustrated those
attorneys to the point where they have
resigned.
You have refused to cooperate
with them and you have sabotaged your case
repeatedly.
We are not going to delay any
further.
Respondent's Exhibit 104 (10/9/2000), p. 6.
During the ensuing sentencing hearing,
the State took the
position that the court was required to give petitioner a life
sentence,
with
no
discretion
to
impose
a
lesser
sentence.
Petitioner argued against this sentence, but after 90 minutes of
allocution,
the court interrupted him and advised him "that any
4 - OPINION AND ORDER
further discussion of mitigation is really irrelevant."
53.
Id at
The court then proceeded to impose the statutorily required
life sentence.
ORS 163.115(3)
(1981).
Petitioner took a direct appeal in which he argued that the
sentencing court should have:
(1)
appointed substitute counsel;
(2) granted petitioner additional time to prepare for sentencing;
and
(3)
allowed him to fully present his mitigation evidence.
The
Oregon
Court
decision without
review.
of
Appeals
opinion,
affirmed
the
sentencing
court's
and the Oregon Supreme Court denied
Respondent's Exhibits 109 & 110.
Petitioner next filed for post-conviction relief ("PCR")
Malheur County where the PCR trial court denied relief.
in
In doing
so, the PCR trial court stated the following:
Court had authority to resentence.
No proof
of
inadequacy
of
any
attorney
on
any
allegation.
No
proof
of
prejudice.
Petitioner
chose
by
his
conduct
and
statements to the court to go pro se. Matter
was litigated on appeal.
Life sentence was
statutorily required.
No inadequacy by
appellate
attorney
or
prejudice.
Insufficient proof that any transcript is
missing or would in any way have changed
outcome.
Respondent's Exhibit 147.
The Oregon Court of Appeals affirmed
the PCR trial court's decision without opinion,
Supreme Court denied review.
and the Oregon
Respondent's Exhibits 154 & 155.
In this federal habeas corpus case,
petitioner pursues the
following claims:
1.
The sentencing court erred when it
(a) permitted Cross to withdraw on the day of
sentencing and required petitioner to proceed
5 - OPINION AND ORDER
pro se where
it was debatable whether
petitioner was responsible for the breakdown
in
the
attorney-client
relationship;
(b) refused petitioner access to evidence
that would prove his side of the story; and
(c)
denied
petitioner's
motion
for
a
continuance to prepare for the resentencing;
2.
Appellate counsel was constitutionally
ineffective for failing to raise: (1) the
unmerging
of
lawfully merged sentences;
(2) the sentencing court's refusal to provide
petitioner
with
new
counsel
and
taped
conversations he had with previous attorneys;
and (3) the fact that the indictment was
flawed in that it did not specifically allege
"Felony Murder" such that the State could not
obtain a conviction on that charge;
3.
Petitioner's Sixth Amendment right to
conflict-free counsel was violated where
Cross: (a) presented prejudicial facts, made
critical legal omissions, and provided the
court with incorrect information during the
resentencing hearing;
and
(b)
failed to
provide petitioner with a copy of his file
and tapes of their meetings so he could
establish that he was not at fault for the
breakdown
in
the
attorney-client
relationship, thereby preventing petitioner
from receiving new appointed counsel; and
4.
Cross rendered ineffective assistance
when he:
(a) presented prejudicial facts,
made critical legal omissions, and provided
the court with incorrect information during
the resentencing hearing;
(b)
failed to
inform petitioner of critical legal authority
that would have altered the outcome of the
resentencing;
(c)
failed
to
provide
petitioner with the file and tapes of their
meetings so he could establish he was not
responsible
for the breakdown in their
relationship,
and this failure prevented
petitioner
from
receiving
new
appointed
counsel; (d) failed to challenge the remand
order on all available bases; and (e) failed
to investigate, develop, and present any
6 - OPINION AND ORDER
mitigation evidence. Notice Regarding Claims
Addressed in the Brief (#76) . 1
DISCUSSION
I. 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
to,
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."
§
A state
2254 (d) .
correct,
and
court's
petitioner
findings
bears
the
of
fact
burden
of
28 U.S.C.
are
presumed
rebutting
presumption of correctness by clear and convincing evidence.
u.s.c.
§
A
the
28
2254 (e) (1).
state
court
decision
established precedent
if
the
is
"contrary
state
court
to
clearly
applies
a
rule
that
contradicts the governing law set 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 from [that]
precedent."
Under
the
Williams v.
"unreasonable
Taylor,
529
application"
1
U.S.
362,
clause,
a
405-06
(2000).
federal
habeas
These claims reflect petitioner's argued claims, not the totality of the
claims he raises in his Amended Petition.
Petitioner's unargued claims are
denied on the basis that he has not argued them and, therefore, has not
sustained his burden of proof.
See Silva v. Woodford, 279 F.3d 825, 835 (9th
Cir. 2002) (petitioner bears the burden of proving his claims).
Even if
petitioner had briefed the merits of these claims, the court has examined them
based upon the existing record and determined that they do not entitle him to
relief.
7 - OPINION AND ORDER
court may grant relief "if the state court identifies the correct
governing legal principle from
[the Supreme Court's]
but
principle
unreasonably
applies
that
Id at
413.
prisoner's case."
clause
requires
incorrect
or
application
of
When a
clearly
court
Id
the
facts
of
the
"unreasonable application"
decision
at
410.
established
to
be
The
law
must
more
state
be
than
court's
objectively
Id at 409.
state
no
state
erroneous.
unreasonable.
provides
the
The
to
decisions
court
reasoning
reaches a
to
support
decision on the merits but
its
conclusion,
the
federal
habeas court must conduct an independent review of the record to
determine
whether
the
state
court
application of Supreme Court law.
976,
982
(9th Cir.
2000).
clearly
Delgado
v.
erred
in
223 F. 3d
Lewis,
In such an instance,
its
although the
court independently reviews the record, it still lends deference
to the state court's ultimate decision.
131 S.Ct.
770,
784-85
(2011);
Harrington v.
Pirtle v.
Morgan,
Richter,
313 F.3d 1160,
1167 (9th Cir. 2002).
II.
Ground One: Claims of Trial Court Error
According
to
petitioner,
the
sentencing court
should not
have allowed Cross to withdraw on the day set for sentencing and,
where it did,
it
should have granted a
continuance.
He also
maintains that the court should have required Cross to turn over
tape
recordings
of
conversations
between
counsel
and
client
because they might have shown that petitioner was not necessarily
responsible
relationship.
for
The
the
breakdown
record
8 - OPINION AND ORDER
is
quite
in
the
clear
in
attorney-client
this
case
that
petitioner
had
been
particularly
problematic
for
several
different attorneys and for an extended period of time.
described,
"Mr.
As Cross
Lane was incapable of establishing any sort of
relationship with some of the finest attorneys currently involved
See Respondent's
in death penalty litigation in this state."
Exhibit
14 6,
petitioner's
p.
3.
prior
Even before
attorneys
Cross
was
"predicted
appointed,
to
the
one of
court
that
[petitioner] would most likely not be able to [establish any sort
of
relationship]
with
any
attorney."
Based
Id.
upon
the
totality of the record, the sentencing court's determination that
petitioner had refused to cooperate with appointed counsel was
not an unreasonable factual ruling.
There is no clearly established federal law which required
the
sentencing
attorney
after
court
to
Cross
provide
withdrew,
petitioner
especially
with
yet
where
another
the
record
supports the conclusion that petitioner was a constant problem
for
the
attorneys
appointed
to
represent
him.
Although
petitioner believes he had a conflict of interest where Cross was
not supportive of his motion for a new trial,
opinion over
the
viability of a
motion
does
a difference of
not
constitutionally-significant conflict of interest.
Sullivan,
446
U.S.
335,
348
(1980)
(an
actual
amount
to
a
See Cuyler v.
conflict
of
interest must adversely affect the performance of counsel).
Given this history, and the excessive delay in petitioner's
re-sentencing proceedings, the court reasonably declined to grant
9 - OPINION AND ORDER
another continuance. 2
life
sentence
was
This is especially true where petitioner's
statutorily
mandated
with
no
room
for
a
downward departure at the discretion of the sentencing court, and
where the trial judge was unwilling to tolerate any more delay
where he believed petitioner had repeatedly sabotaged his case by
refusing to cooperate with his attorneys.
104 (10/9/2000)
I
Petitioner
refusal
to
Respondent's Exhibit
P• 6.
also
order
takes
defense
issue
with
counsel
the
to
recordings of their conversations.
sentencing
turn
over
court's
audio
tape
Petitioner reasons that had
the court required Cross to turn over the tapes as part of his
client file, he could have shown that he was not the cause of the
ultimate breakdown of the attorney-client relationship such that
he was entitled to another attorney.
Although petitioner asserts
that the Oregon State Bar ethical rules required Cross to turn
the tapes over to his client, there is no record that the Oregon
State Bar took any action against Cross when petitioner presented
it
with this
issue.
petitioner cites
recordings
Respondent's
to no evidence
contained
Exhibit
in the
information
In addition,
145.
record that
that might
have
the taped
affected
the
sentencing court's decision regarding the appointment of another
attorney
for
sentencing.
As
such,
petitioner
is
unable
to
prevail on this claim.
2 The court notes respondent's assertion that this claim is unpreserved for
federal habeas corpus review, but elects to proceed to the merits of the claim
because petitioner is not entitled to relief.
See
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.
11
).
10 - OPINION AND ORDER
III. Ground Two: Ineffective Assistance of Appellate Counsel
Petitioner filed his direct appeal
assistance of appointed counsel.
in this case with the
Appellate counsel elected to
raise three claims as outlined in the Background of this Opinion.
Petitioner, however, faults counsel for not raising several other
challenges instead.
Because no Supreme Court precedent is directly on point that
corresponds to the facts of this case, the court uses the general
two-part
test
established
whether petitioner
Knowles
v.
by
the
Supreme
Court
to
determine
received ineffective assistance of
Mirzayance,
556
U.S.
111,
122-23
counsel.
(2009).
First,
petitioner must show that his counsel's performance fell below an
Strickland v. Washington,
objective standard of reasonableness.
466
U.S.
668,
686-87
(1984).
Due
evaluating counsel's performance,
presumption
that
the
conduct
to
the
courts must
falls
reasonable professional assistance.''
within
difficulties
indulge a
the
"wide
in
strong
range
of
Id at 689.
Second, petitioner must show that his counsel's performance
prejudiced the defense.
whether
the
petitioner
probability that,
The appropriate test for prejudice is
can
show
"that
there
is
a
reasonable
but for counsel's unprofessional errors,
result of the proceeding would have been different."
the
Id at 694.
In proving prejudice with respect to the performance of appellate
counsel,
that
a petitioner must demonstrate a reasonable probability
but
for
appellate
counsel's
prevailed on his appeal."
286 (2000).
failure,
Smith v. Robbins,
''he
would
528 U.S.
259,
have
285-
When Strickland's general standard is combined with
11 - OPINION AND ORDER
the standard of review governing 28 U.S.C.
cases,
the
result
is
a
"doubly deferential
judicial
review."
556 U.S. at 122.
Mirzayance,
Petitioner
challenged the
asserts
that
allegedly
appellate
unlawful
authority
in
Oregon
counsel
unmerging
merged convictions and sentences.
statutory
2254 habeas corpus
§
of
should
have
his previously
He claims that there is no
allowing
for
the
unmerging
of
sentences, thus the sentencing court had no authority to unmerge
his
earlier
convictions
sentences
and
impose
stemming
new
from
sentences.
his
Murder
The
PCR
and
Robbery
trial
court
specifically addressed this issue and recognized that there was
not a specific statute prescribing the practice petitioner sought
to challenge.
Instead,
the PCR trial court concluded that the
sentencing court properly exercised its power under "the general
court's ability to sentence and obligation to sentence and the
fact that you had still two convictions that were convictions.•
Respondent's
Exhibit
146,
pp.
84-85.
The
court
specifically
explained as follows:
Your issue concerning whether the court had
authority to resentence is a legal issue.
You weren't represented by a lawyer to make
that argument.
I --- I'm prepared to make a
finding on that, which is it's a legal issue.
The court can easily review and tell me if
I'm wrong.
I think the court had authority
to resentence, despite the fact that one of
these convictions had been vacated.
* * * * *
Okay,
this.
there's no point in our arguing about
I'm telling you legally that's what I
12 - OPINION AND ORDER
believe to be a correct interpretation of the
law.
* * * * *
But at this point, I am telling you that I am
prepared to make a ruling, and am making a
ruling that you were convicted of all of the
charges.
And then some of them were merged.
The convictions, however, were never vacated
for the remaining charges. The court had the
authority to sentence on them.
That's as
clear as I can be and the issue is set up for
appeal.
Id at 83-84.
It
is
concluded
clear
that
from
the
the
record
sentencing
that
court
the
had
PCR
Oregon law to sentence petitioner as it did,
judge
authority
the
trial
under
and that the issue
was squarely framed for the Oregon Court of Appeals.
Court of Appeals affirmed that decision.
The Oregon
It is therefore evident
that petitioner's sentence was valid as a matter of Oregon law,
and
is
court.3
not
subject
to
reinterpretation
by
a
federal
See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)
habeas
("[W]e
reemphasize that it is not the province of a federal habeas court
to
reexamine
state-court
questions."); Bains v.
Cambra,
determinations
204 F.3d 964,
972
on
state-law
(9th Cir.)
("a
federal court is bound by the state court's interpretations of
state
law."),
cert.
Wainwright v. Goode,
denied,
531
464 U.S. 78,
84
U.S.
1037
(1983);
(2000)'
citing
see also Mendez v.
3 It is also noteworthy that the Oregon Court of Appeals had separately
concluded that where a defendant was convicted of multiple crimes including
Aggravated Murder, and the court merged several of the convictions into the
Aggravated Murder conviction which was later invalidated, the sentencing court
on remand was properly within its authority to sentence on the convictions
that had been previously merged.
State v. Wilson, 161 Or. App. 314, 985 P.2d
840 (1999).
13 - OPINION AND ORDER
Small,
the
298 F. 3d 1154,
last
word
Mcsherry v.
denied,
on
the
Block,
1994)
(9th Cir.
2002)
interpretation
880 F. 2d 1049,
499 U.S. 943
(9th Cir.
1158
(1991);
of
1052
("A state court has
state
(9th Cir.
Peltier v. Wright,
("state courts are
law."),
citing
1989),
cert.
15 F.3d 860, 862
the ultimate expositors
of
state law.") .
Pe ti ti oner also claims his appellate attorney should have
challenged the validity of the indictment insofar as it did not
specifically allege "Felony Murder"
such that
convicted and sentenced on that charge.
he could not
be
At the conclusion of
petitioner's first PCR action, the PCR trial court addressed this
issue in its factual
assistance
of
findings in the context of an ineffective
trial
counsel
specifically concluded
that
claim.
The
PCR
"petitioner
had
been
trial
court
charged with
murder committed 'in the course of and in the furtherance of' the
crime
of
Robbery
in
the
First
Degree;
Respondent's Exhibit 128, p. 110.
factual
finding
and
i, e.,
felony
murder."
It is evident from this mixed
construction of
state
was, in fact, charged with Felony Murder.
law that
petitioner
Accordingly, appellate
counsel was under no obligation to challenge the indictment on
this basis.
Although petitioner also faults
raising
court
the
has
claims he argues
already
determined
appellate counsel for
in Ground One,
that
these
supra,
claims
where
lack
appellate counsel was under no obligation to raise them.
IV.
Ground Three: Right to Conflict-Free Counsel
14 - OPINION AND ORDER
not
the
merit,
As Ground Three, petitioner alleges that attorney Cross was
unable
to
provide
conflict-free
representation
and
provide him with the audio tapes of their meetings.
failed
to
The court
has already resolved these issues in respondent's favor in Ground
One,
thus petitioner is not entitled to relief on these claims
here.
V.
Ground Four: Ineffective Assistance of Sentencing Counsel
As Ground Four, petitioner casts some of his previous claims
as claims of ineffective assistance of sentencing counsel.
the
reasons
merit
such
previously
that
identified,
sentencing
counsel
the
underlying
cannot
be
claims
For
lack
constitutionally
faulted.
Petitioner also asserts that Cross failed to inform him of
the U.S. Supreme Court's decision in Apprendi v. New Jersey,
U.S.
466
(2000)
Art.
1
16.
§
530
and the proportionality component of Or. Const.
Not only does petitioner not mention Apprendi in
his briefing, but he also fails to establish that counsel could
have made a meaningful argument that a life sentence for Murder
is
so
disproportionate
proceeding
issue.
would
have
that
been
See ORS 163.115 (3)
Lockyer v.
Andrade,
the
different
(1981)
538 U.S.
result
63,
had
of
his
counsel
sentencing
raised
the
(requiring life sentence); Cf.
75-76
(2003)
(25-year sentence
for theft of three videotapes does not offend the Constitution) .
Petitioner also asserts that Cross failed to challenge the
remand order "on all available bases" but does not set out with
specifics
and argument
what
other available bases
there might
have been other than those already discussed in this Opinion.
15 - OPINION AND ORDER
Accordingly,
the court finds this claim to be too generic upon
which to provide a specific ruling.
Finally,
investigate,
petitioner
develop,
sentencing.
that
contends
and
present
any
Cross
mitigation
failed
to
evidence
at
Where counsel withdrew due to a breakdown of the
attorney-client relationship and did not represent petitioner at
sentencing,
he was under no obligation to present evidence at
sentencing.
This fact aside, the absence of mitigation evidence
where petitioner received the sentence required by law was not
prejudicial. 4
For all of these reasons, and upon an independent
review of the record,
petitioner has not shown any state-court
decision to be contrary to,
or an unreasonable application of,
clearly established federal law.
CONCLUSION
For
the
reasons
identified
Petition for Writ of Habeas Corpus
above,
(#32)
the
Second
is denied.
Amended
The court
declines to issue a Certificate of Appealabili ty on the basis
that petitioner has not made a substantial showing of the denial
of a constitutional right pursuant to 28 U.S.C.
§
2253(c) (2).
IT IS SO ORDERED.
DATED this
;2..o-1;,- day of June, 2016.
Judge
4 To the extent petitioner believes mitigation evidence would be beneficial
for purposes of parole, such evidence would be more appropriately presented to
the parole board, not during his pro se sentencing. Although he would have
liked the assistance of an attorney to develop such evidence, he was without
counsel due to his own reluctance to cooperate with his many appointed
attorneys.
16 - OPINION AND ORDER
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