Davis v. Nooth
Filing
38
OPINION AND ORDER. Petitioners petition for writ of habeas corpus 1 is DENIED, and this proceeding is DISMISSED, without prejudice. In the event petitioner appeals from this decision, it is ordered that a certificate of appealability is DENIED due to petitioners failure to make a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). IT IS SO ORDERED. Signed on 05/17/2011 by Judge Garr M. King. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
JOHN L. DAVIS,
CV. 09-218-KI
Petitioner,
v.
MARK NOOTH,
Respondent.
Anthony D. Bornstein
Federal Public Defender's Office
101 SW Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
John R. Kroger
Attorney General
Jacqueline Kamins
Assistant Attorney General
Department of Justice
1162 Court Street N.E.
Salem, Oregon 97301-4096
Attorneys for Respondent
1 - OPINION AND ORDER
OPINION AND ORDER
KING, Judge
Petitioner, an inmate at Snake River Correctional Institution,
brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254.
For the reasons set forth below, the petition for writ of habeas
corpus is denied, and this proceeding is dismissed, with prejudice.
BACKGROUND
On March 12, 2003, petitioner pled guilty to two counts of
Robbery in the Second Degree, two counts of Kidnapping in the
Second Degree, and one count of Burglary in the First Degree.
All
of the charges arose out of an incident on November 13, 2002, when
petitioner, and co-defendant Joseph Derschon, robbed the home of
Trina Kanewa and Neva Smith.
During the course of the robbery,
Derschon bound the victims’ hands with duct tape, and moved the
victims from the kitchen to the bathroom.
Resp. Exh. 103 at 2-3
(plea petition); Resp. Exh. 129 at 39-40, 117-18 & 194 (transcript
excerpts).
Prior to sentencing, defense counsel submitted to the trial
court
a
petition
for
leniency,
together
with
letters
from
petitioner and friends, moving the court to impose a sentence not
to exceed 140 months.
Resp. Exh. 140.
In the petition for
leniency, counsel argued that petitioner’s involvement in the
kidnapping was “very minor”, and that petitioner was “in another
part of the house, the garage, unaware that Mr. Derschon duct-taped
the women and put them into the bathroom.”
2 - OPINION AND ORDER
Resp. Exh. 140 at 3.
The prosecution, in contrast, argued for consecutive sentences
as follows:
Given the fact that both Robberies in the Second
Degree convictions stem from different victims, I would
urge the Court to impose separate 70 month sentences
consecutive to each other. And given the fact that the
additional – although I dropped the terrorization
language, the fact that these victims were bound
apparently by design, and by the fact that the duct tape
had been brought to the scene by the defendants to
accomplish that, that demonstrates a separate intent on
the part of both defendants to engage in separate serious
conduct which, again, justifies consecutive sentences on
the Kidnapping charges.
Resp. Exh. 149 at 9 (emphasis added).
The
trial
judge
agreed
with
the
prosecution,
sentencing
petitioner to consecutive 70-month sentences on each count of
robbery
and
kidnapping,
and
a
current
36-month
burglary, for a total of 280 months imprisonment.
sentence
for
In support of
the consecutive sentences, the court opined that the robbery and
kidnapping convictions were not merely incidental violations of
separate statutory provisions, but instead indicated petitioner's
willingness to commit more than one criminal offense.
Resp. Exh.
101 at 5.
Petitioner filed a direct appeal, alleging that (1) it was
plain error for the trial court to impose consecutive sentences
based upon facts not found by a jury; and (2) the trial court erred
in imposing consecutive sentences without making specific factual
findings.
The Oregon Court of Appeals affirmed without opinion,
3 - OPINION AND ORDER
and the Oregon Supreme Court denied review.
State v. Davis, 201
Or. App. 732, 122 P.3d 143, rev. denied, 339 Or. 609 (2005).
Petitioner subsequently filed a petition for state postconviction relief raising nine claims for relief, including seven
claims
of
ineffective
assistance
of
counsel.
conviction
proceeding,
petitioner
testified
At
that
the
he
post-
was
not
involved in the kidnapping because he was in the garage when it
occurred.
Resp. Exh. 138 at 10-12, 20 & 23; Resp. Exh. 142 at 18-
20, 24, 30-31; see also Resp. Exh. 149 at 3-4.
However, Trial
Counsel Robert Manders attested that the duct tape used to bind the
victims was provided by petitioner.
Resp. Exh. 139 at 3.
The post-conviction court denied relief as follows:
Alright I’m denying your petition Mr. Davis. I just
don’t think that I’ve got any legal authority to change
a sentence by the trial court. There was a good leniency
memo, I think the memo was well done. * * * Clearly the
sentence was more then you had hoped it would be and I
think more then your lawyer hoped it would be, but you
were told that the possible rang[e] of sentence was [and]
you decided to take the plea because trial was a greater
risk.
The co-defendant got longer and obviously your
sentence is more then you hoped, but legally I don’t have
any authority to enter post conviction relief. So this
petition is denied, I’ll sign the order today.
Resp. Exh. 142 at 33.
Petitioner
appealed,
raising
a
single
assignment
of
ineffective assistance of counsel (failure to object to consecutive
sentences which lacked sufficient factual basis and/or was imposed
without a jury finding).
4 - OPINION AND ORDER
The Oregon Court of Appeals affirmed
without opinion, and the Oregon Supreme Court denied review. Davis
v. Hill, 221 Or. App. 383, 190 P.3d 495, rev. denied, 345 Or. 317
(2008).
In the instant proceeding, petitioner raises eleven grounds
for relief, but addresses only ground for relief five in his
supporting memorandum.
relief,
except
Respondent argues that all grounds for
ground
five,
are
procedurally
defaulted.
Additionally, respondent argues that the state courts’ rejection of
ground for relief five is entitled to deference.
DISCUSSION
I.
Procedurally Defaulted Grounds for 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); Carter v. Giurbino, 385 F.3d 1194,
1196 (9th Cir. 2004).
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).
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
5 - OPINION AND ORDER
result
in
a
fundamental
miscarriage
of
justice.
Coleman
v.
Thompson, 501 U.S. 722, 750 (1991); Smith, 510 F.3d at 1139.
It is undisputed that petitioner procedurally defaulted ground
eight
because
it
was
not
preserved
at
the
trial
level
and,
therefore, not fairly presented on appeal; grounds ten and eleven
because they were not raised on direct appeal; and grounds for
relief one through four, six, seven and nine because petitioner
failed to raise them on appeal from the denial of post-conviction
relief.
Petitioner has not demonstrated cause and prejudice to
excuse his procedural default, nor has he demonstrated that failure
to consider the grounds will result in a fundamental miscarriage of
justice.
Accordingly, habeas relief is precluded as to these
grounds.
II.
Ground for Relief Five.
Petitioner alleges that trial counsel was ineffective for
failing to object to the imposition of consecutive sentences on the
kidnapping counts under O.R.S. 137.123.
That statute provides in
relevant part:
(5) The court has discretion to impose consecutive terms
of imprisonment for separate convictions arising out of
a continuous and uninterrupted course of conduct only if
the court finds:
(a) That the criminal offense for which a
consecutive sentence is contemplated was not merely
an incidental violation of a separate statutory
provision in the course of the commission of a more
serious crime but rather was an indication of
6 - OPINION AND ORDER
defendant’s willingness to commit more than one
criminal offense; or
(b) The criminal offense for which a consecutive
sentence is contemplated caused or created a risk
of causing greater or qualitatively different loss,
injury or harm to the victim or caused or created a
risk of causing loss, injury or harm to a different
victim . . . .
A
claim
of
ineffective
assistance
of
counsel
requires
petitioner to prove that counsel's performance fell below an
objective standard of reasonableness and that there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.
Premo v.
Moore, 131 S.Ct. 733, 739 (2011); Strickland v. Washington, 466
U.S. 668, 687-88 (1987); see also Cullen v. Pinholster, 131 S.Ct.
1388,
1403
(2011)
(noting
that
habeas
review
of
ineffective
assistance claim is “doubly deferential” taking into account the
strong
presumption
of
competence
under
Strickland,
and
the
deferential standard of review under 28 U.S.C. § 2254(d)).
The
Supreme Court has applied this two-part analysis to ineffectiveassistance claims arising out of the plea process.
See Hill v.
Lockhart, 474 U.S. 52, 59 (1985); Premo, 131 S.Ct. at 742.
In
the
instant
proceeding,
petitioner
relies
upon
the
following argument he raised on appeal from the denial of state
post-conviction relief:
///
///
7 - OPINION AND ORDER
The court’s stated justification for running the two
pair of convictions consecutive to each other was that
“there was not merely an incidental violation of the
separate statutory provisions in the course of commission
of a more serious offense, but rather was an indication
of defendant’s willingness to commit more than one
criminal offense.”
ORS 137.123(5)(a).
There was no
factual basis for the sentencing court to have made that
finding. The two victims were bound and moved to another
room in their residence during the course of and in
furtherance of the robbery. The acts of “kidnapping” and
“robbery” were totally intertwined with one another. In
fact, petitioner has consistently denied having knowledge
of the victims being bound and moved by his co-defendant,
as he was searching for valuables in another part of the
house while the “kidnapping” took place. Trial counsel
never challenged the court’s findings in this regard.
Had he done so, it is likely that the court would have
not sentencing petitioner to more than 140 months. At
the very least, trial counsel would have preserved the
issue for appeal.
The consecutive sentences were
challenged on this ground upon direct appeal, but the
convictions were affirmed without opinion. As likely as
not, the failure to petitioner’s appeal was due to the
fact error was not preserved below by trial counsel.
Trial counsel also failed to argue that the
imposition of consecutive sentences under ORS 137.123(4)
and (5) was per se unconstitutional. Pursuant to the
United States Supreme Court decisions in Apprendi v. New
Jersey and Blakely v. Washington, it is clear that a
sentencing court may not impose an “enhanced sentence”
predicated on a finding of fact (other than prior
convictions) unless that fact is pled in the charging
instrument and found beyond a reasonable doubt by the
jury or admitted by the defendant. And with its decision
in State v. Dilts, 337 Or 645, 603 P3d 95 (2004), the
Oregon Supreme Court has recognized that the abovementioned constitutional rule of law laid down in
Apprendi and Blakely is specifically applicable to Oregon
sentences.
Resp. Exh. 144 at 10-11.
Respondent argues that habeas relief is not warranted because
(1) the Supreme Court has not decided what standard, if any,
8 - OPINION AND ORDER
applies to a claim of ineffective assistance of counsel in noncapital sentencing proceedings; (2) counsel was not deficient
because
he
argued
against
consecutive
sentencing;
and
(3)
petitioner was not prejudiced because his sentence complied with
Oregon law.
Assuming that Strickland applies in the sentencing context,1
petitioner has failed to prove that counsel performed deficiently
in failing to object to the imposition of consecutive sentences for
kidnapping.
First, as noted above, defense counsel did submit a
petition for leniency seeking concurrent sentencing.
Counsel
characterized petitioner involvement in the kidnapping as minor,
explaining that petitioner was in another part of the house when
Derschon bound and moved the victims.
Second,
petitioner
offers
no
authority
to
support
his
contention that an objection to the lack of specific factual
findings to support consecutive sentences under O.R.S. 137.123(5),
would have been successful.
See State v. Racicot, 106 Or. App.
557, 560-61, 809 P.2d 726 (1991) (holding that O.R.S. 137.123 does
not require court to make special findings of fact when imposing
consecutive
sentences).
Petitioner
similarly
has
failed
to
demonstrate that an objection to his consecutive sentences would
1
But see Davis v. Grigas, 443 F.3d 1155, 1158 (9th Cir.
2006), and Cooper-Smith v. Palmateer, 397 F.3d 1236, 1244 (9th
Cir. 2005), noting that Strickland is not well established
federal law in the non-capital sentencing context.
9 - OPINION AND ORDER
have been successful given the fact that (1) he pled guilty to
aiding and abetting his co-defendant who bound the victims’ wrists
with duct tape and moved them to the bathroom; and (2) evidence
existed to support the conclusion that petitioner provided the duct
tape used to bind the victims.
Resp. Exh. 103 at 3; Resp. Exh. 139
at 3; see also Resp. Exh. 129 at 39, 193-94 & 203.
In short, the state court record supports the trial judge’s
conclusion that the robbery and kidnapping convictions were not
merely incidental violations of separate statutory provisions, but
rather indicated petitioner’s willingness to commit more than one
criminal offense.
Consequently, trial counsel’s performance was
not deficient, and the state courts’ rejection of petitioner’s
ineffective assistance of counsel claim is neither contrary to, nor
an unreasonable application of, clearly established federal law.
28 U.S.C. § 2254(d).
CONCLUSION
Based on the foregoing, petitioner’s petition for writ of
habeas corpus (#1) is DENIED, and this proceeding is DISMISSED,
without prejudice.
///
///
///
///
///
10 - OPINION AND ORDER
In the event petitioner appeals from this decision, it is
ordered that a certificate of appealability is DENIED due to
petitioner’s failure to make a substantial showing of the denial of
a constitutional right.
See 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
DATED this
17th
day of May, 2011.
/s/ Garr M. King
Garr M. King
United States District Judge
11 - OPINION AND ORDER
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