Baker v. Oregon Department of Corrections

Filing 36

OPINION AND ORDER: Petitioner's Second Amended Petition for Writ of Habeas Corpus 26 is DENIED as untimely, and this proceeding is DISMISSED with prejudice.Because Petitioner has not made a substantial showing of the denial of constitutional right, a certificate of appealability is DENIED. Signed on 12/22/10 by Judge Garr M. King. (mkk)

Baker v. Oregon Department of Corrections

Doc. 36

FILfD'"10 DEC 22 l468USDf{lRP

I N THE UNITED STATES D I S T R I C T COURT FOR THE D I S T R I C T OF OREGON PORTLAND D I V I S I O N LAVONT E . BAKER, Petitioner, CV. 0 9 - 4 9 0 - K I O P I N I O N AND ORDER

v.
RICK COURSEY, Respondent. K R I S T I N A HELLMAN Assistant Federal Public Defender 101 S.W. Main S t r e e t , S u i t e 1700 P o r t l a n d , OR 9 7 2 0 4 Attorney for Petitioner JOHN R. KROGER Attorney General LYNN DAVID LARSEN Attorney-In-Charge Department of Justice 1 1 6 2 C o u r t S t r e e t NE S a l e m , OR 9 7 3 0 1 - 4 0 9 6 Attorneys for Respondent KING, J u d g e P e t i t i o n e r Lavont E. Baker, an inmate i n the custody of the Oregon Department of Corrections, brings this habeas corpus

1 - OPINION AND ORDER

Dockets.Justia.com

proceeding p u r s u a n t t o 2 8 U . S . C . § 2 2 5 4 .

For the reasons set forth

below, the petition i s denied, and this proceeding i s dismissed.
BACKGROUND

P e t i t i o n e r was convicted i n Multnomah County C i r c u i t Court of Rape i n the F i r s t Degree, Sodomy i n t h e F i r s t Degree, and Kidnaping in the F i r s t Degree on July 22, 1987. On J u l y 2 3 , 1 9 8 7 , t h e c o u r t The sentences on the run concurrently, of but

imposed a 20 year sentence on each charge. kidnaping and sodomy to the charges rape were to

consecuti vely

charge.

Execution

petitioner's

sentence was suspended and p e t i t i o n e r was placed on five years' probation. Petitioner did not file a direct appeal of his conviction or sentence, nor did he petition for post-conviction r e l i e f . P e t i t i o n e r ' s probation was revoked on October 6, June 23, 1988, the Oregon Board of Parole and 1987. On

Post-Prison

Supervision

(the Board)

held a hearing and set a parole release

date of March 5, 1992. Petitioner completed the rape sentence on August 21, 2001, and was most recently released onto parole on

August 30, 2004. On A u g u s t 3 1 , 2005, the Board issued a warrant suspending Following petitioner's the Board held a

petitioner's parole and ordered detention.

eventual arrest and extradition from Arizona, future disposition hearing on March 12, 2008.

At that hearing, the

Board concluded that petitioner could not be adequately controlled 2 - OPINION AND ORDER

in t h e c o m m u n i t y , d e n i e d p e t i t i o n e r ' s i m m e d i a t e r e - r e l e a s e , a n d s e t a r e l e a s e d a t e o f May 3 1 , 2 0 1 7 , m e m o r i a l i z e d i n B o a r d A c t i o n F o r m 35. ( R e s p . E x . 1 0 3 (CR # 2 0 ) , B o a r d A c t i o n F o r m ( B A F ) , p . 3 . ) Petitioner filed an administrative review request on April 30, 2008. 2009. T h e B o a r d d e n i e d p e t i t i o n e r ' s r e q u e s t e d r e l i e f o n May 8 , (Resp. Ex. 103, Admin. Review Response, p. 1.) that petitioner's appeal of the Board's The p a r t i e s decision is

represent

pending before the Oregon Court of Appeals.

(Resp. Ex. 104.)

Petitioner f i l e d the instant habeas corpus proceeding on April 30, 2009, alleging three grounds for r e l i e f : of Parole and Post-Prison Supervision (the (1) the Oregon Board Board) wrongfully

revoked his parole in 2008 and denied him release; court wrongfully imposed consecutive sentences,

(2) the t r i a l violating Due

Process under the Fourteenth Amendment; and (3) the Board's 2008 decision was unlawful because only two of three Board members voted to deny him release. In response, r e s p o n d e n t a s s e r t e d t h a t G r o u n d s One a n d T h r e e

should be dismissed without prejudice because petitioner had not yet exhausted those claims, as his appeal from the Board's decision was still pending in the Oregon appellate courts. Following

discussions between the p a r t i e s , p e t i t i o n e r f i l e d a Second Amended Petition, asserts in which he has omitted Grounds Therefore, One and Three, and

o n l y Ground Two.

the only remaining claim

3 - OPINION AND ORDER

pending i n t h i s a c t i o n i s G r o u n d T w o , c o n c e r n i n g t h e t r i a l c o u r t ' s imposition of consecutive sentences.

DISCUSSION
In this proceeding, petitioner alleges that the t r i a l court v i o l a t e d Due P r o c e s s when i t i m p o s e d c o n s e c u t i v e s e n t e n c e s w i t h o u t a proper factual basis. must be dismissed as Respondent asserts that petitioner's claim untimely under 28 U.S.C.
§

2244(d).

Respondent i s correct.

I.

AEDPA S t a t u t e o f

L~itation.

The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) a m e n d e d 2 8 U . S . C § 2 2 4 4 t o p r o v i d e f o r a l i m i t a t i o n p e r i o d for filing federal habeas corpus petitions.
§

Under amended

2244(d), a petitioner has one year from the l a t e s t of: (A) t h e d a t e o n w h i c h t h e j u d g m e n t b e c a m e f i n a l b y t h e conclusion of direct review or the expiration of the time for seeking such review; (B) t h e d a t e o n w h i c h t h e i m p e d i m e n t t o f i l i n g a n application created by State action in violation of the Constitution or laws of the United States i s removed, i f the applicant was prevented from f i l i n g by such State action; (C) t h e d a t e o n w h i c h t h e c o n s t i t u t i o n a l r i g h t a s s e r t e d was i n i t i a l l y recognized by the Supreme Court, i f the right has been newly recognized by the Supreme Court and made r e t r o a c t i v e l y applicable t o case on c o l l a t e r a l review; or (D) t h e d a t e o n w h i c h t h e f a c t u a l p r e d i c a t e o f t h e c l a i m or claims presented could have been discovered through the exercise of due diligence.

4 - OPINION AND ORDER

Shannon v .

Newland,

410 F.3d 1083,

1086

(9th Cir.

2005),

cert.

denied, 546 U.S. 1171 (2006). T h e AEDPA b e c a m e e f f e c t i v e o n A p r i l 2 4 , habeas p e t i t i o n e r whose direct appeal became 1996. final Any f e d e r a l before the

e f f e c t i v e d a t e o f t h e AEDPA a m e n d m e n t t o § 2 2 4 4 h a d u n t i l A p r i l 2 3 , 1997, to f i l e a federal habeas petition, excluding any time during which a s t a t e post-conviction case was pending. Calderon v. United

States Dist. Court(Beeler), 128 F.3d 1283,1287-88 (9th Cir. 1997), cert. denied, 523 U.S. 1061 (1998), and overruled i n g a r t on other

grounds, Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 540 (9th Cir. 1998). Under
§

2244(d) (1) (D), time begins when

a p e t i t i o n e r knows, or through due diligence could discover, the important f a c t s , not when he understands t h e i r l e g a l s i g n i f i c a n c e . Hasan v. Glaza, 254 F. 3d 1150, 1154 n. 3 (9th Cir. 2001) ( c i t i n g

Owens v . Boyd, 235 F . 3 d 356, 359 ( 7 t h C i r . 2 0 0 0 ) ) .

II.

Ana1ysis.
Petitioner argues that a one-year statute of limitation under

28 U.S.C. Board

§

2 2 4 4 ( d ) ( 1 ) (D) w a s an

trigger~d

o n May 8 , 2 0 0 9 , w h e n t h e Response, denying

issued

Administrative

Review

p e t i t i o n e r ' s re-release on parole and indicating i t s continued jurisdiction over him because his sentences were consecutive. According to petitioner, because he did not discover the factual p r e d i c a t e o f t h i s c l a i m u n t i l May 8 , 2009, and has since been

5 - OPINION AND ORDER

diligently pursuing 2244 (d) (1) (D). Peti tioner

it,

his

petition

is

timely.

28

U.S.C.

§

asserts

that

he

did

not

learn

of the

factual (1) he

p r e d i c a t e o f h i s c l a i m u n t i l May 8 , 2 0 0 9 f o r t w o r e a s o n s :

was 17 years old a t the time of sentencing; and (2) actions by the Board obfuscated his a b i l i t y to learn of the nature of his claim. Alternatively, petitioner asserts that the earliest date the

factual predicate of his claim could have been discovered was March 12, 2008, when the Board revoked h i s parole and s e t a r e l e a s e date o f May 3 1 , 2 0 1 7 . Petitioner's prevented him ( R e s p . E x . 1 0 3 , BAF, p . 3 . ) contention that his the juvenile nature status the somehow original

from

understanding

of

sentencing order is unavailing.

First, petitioner's inability to

understand the legal significance of being sentenced to consecutive terms does not t o l l the statute. See Hasan, 254 F.3d a t 1154 n.3

( n o t i n g t h a t u n d e r t h e AEDPA t h e c l o c k b e g i n s w h e n t h e p r i s o n e r knows the important facts, not when he recogni zes their legal

significance).

Second, even i f p e t i t i o n e r ' s youth prevented him

from appreciating the severity and consequences of the imposition of consecutive sentences at that time, static. AEDPA Indeed, clock p e t i t i o n e r ' s age was not

p e t i t i o n e r would have been 26 a t the time the ticking on April cannot 24, 1996. Clearly, continued

started youth at

petitioner's

sentencing

justify his

failure to timely pursue his federal claim. 6 - OPINION AND ORDER

Peti t i o n e r ' s s u g g e s t i o n t h a t t h e B o a r d ' s a c t i o n s p r e v e n t e d h i m from understanding the true nature of his challenge to the original t r i a l court sentencing order is equally unconvincing. petitioner, According to

the Board determined t h a t an "unsummed" range of 66 and thus set his Peti·tioner argues

months imprisonment was an adequate sanction, release date a t March 5, 1992. (Pet. Ex.
1.)

that because he believed the Board had the authority to treat his consecutive sentences as concurrent, he did not truly understand t h a t h i s s e n t e n c e s w e r e c o n s e c u t i v e u n t i l t h e May 8 , 2 0 0 9 B o a r d decision. However, p e t i t i o n e r ' s understanding of the Board's authority has no bearing on p e t i t i o n e r ' s current claim attacking the original

trial court sentence.
petitioner asserts that:

Indeed,

in his second amended complaint,

Multnomah County Circuit Court exceeded i t s authority under s t a t e law when i t imposed consecutive sentences without a proper factual basis in the record to satisfy the statutory requirements for consecutive sentencing. Due t o t h e s t a t e c o u r t ' s a c t i o n s , [ p e t i t i o n e r ] was ordered t o serve an a d d i t i o n a l 20 y e a r s ' imprisonment. ( S e c o n d A m e n d e d C o m p l a i n t , (CR # 2 6 ) p . 2 . ) In t h i s claim, p e t i t i o n e r a l l e g e s h i s Due Process r i g h t s were violated because the t r i a l court failed to ensure a factual basis in the record to satisfy the statutory requirements. To be s u r e ,

petitioner does not submit that there were additional facts which were withheld or unknown to him. At bottom, petitioner asserts

t h a t i t was the Board's l a t e r actions t h a t masked the f a c t t h a t the 7 - O P I N I O N AND ORDER

sentences w e r e c o n s e c u t i v e .

While the Board's actions may be

pertinent to petitioner's claims against the Board, they are not relevant to his instant claim of trial court error. AEDPA limitation period begins when the petitioner Indeed, the knows the

important obj e c t i ve facts, significance. Hasan, 254

not when he understands t h e i r legal F. 3d a t knew, or 1154 n. 3. due Accordingly, diligence I

conclude that petitioner discover,

through

could

the factual predicate supporting his claim of alleged

trial court sentencing error at the time the consecutive sentences
were imposed on September 23, 1987. I n s u m , b e c a u s e p e t i t i o n e r knew o r c o u l d h a v e d i s c o v e r e d t h e factual predicate of his Due Process claim at the time his

consecuti ve sentences were imposed, f i l e d on April 30, 2009, i s untimely.

his habeas corpus petition There i s no evidence in the

record that petitioner pursued a direct appeal or post-conviction r e l i e f from h i s t r i a l c o u r t judgment which may have t o l l e d t h e statute of limitations. Accordingly, the one year statute of 28

limitations on p e t i t i o n e r ' s claim expired on April 23, 1997.

u. s . c .

§

2244 (d) (1) (D); s e e Hasan, 254 F. 3d a t 1153 ( p r i s o n e r whose

s t a t e c o n v i c t i o n b e c a m e f i n a l p r i o r t o t h e AEDPA e f f e c t i v e d a t e h a d u n t i l April 23, 1997 to f i l e a federal habeas p e t i t i o n ) . Because

p e t i t i o n e r f i l e d his current habeas corpus p e t i t i o n on April 30,

8 - OPINION AND ORDER

2009, l o n g a f t e r t h e s t a t u t e o f l i m i t a t i o n s h a d r u n , i t i s t i m e barred. See 28 U.S.C. § 2244 (d) (1) (D).l

CONCLUSION
Based on the foregoing, p e t i t i o n e r ' s second amended p e t i t i o n for writ of habeas corpus (#26) i s DENIED a s u n t i m e l y , and this

p r o c e e d i n g i s DISMISSED, w i t h p r e j u d i c e . Because p e t i t i o n e r has not made a s u b s t a n t i a l showing of the denial of a constitutional right, a certificate of appealability is DENIED. See 28 U.S.C. § 2253(c) (2).

I T I S SO ORDERED. DATED t h i s

~day

o f DECEMBER, 2 0 1 0 .

IBecause I have concluded that the one year limitation period expired on April 23, 1997, I do not address p e t i t i o n e r ' s alternative argument that he did not discover the factual predicate of his claim u n t i l March 12, 2008. Additionally, petitioner does not allege that he is entitled to equitable tolling. See Holland v. Florida, 130 S. Ct. 2548, 2560 (2010); Pace v. DiGuglielmo, 544 u.S. 408, 418 (2005).

9 - OPINION AND ORDER