Barker v. Kroger et al
Filing
48
OPINION AND ORDER. The Court DENIES the Amended Petition for Writ of Habeas Corpus 30 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. See 28 U.S.C. § 2253 (c) (2). IT IS SO ORDERED. Signed on 8/9/2012 by Judge Anna J. Brown. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
KIRBY BARKER,
Case No. 3:09-cv-00618-BR
Petitioner,
OPINION AND ORDER
v.
JOHN KROGER, Oregon Attorney
General; and JEFF THOMAS, Warden,
Respondent.
AMY BAGGIO
Assistant Federal Public Defender
101 SW Main Street
Suite 1700
Portland, OR 97204
Attorney for Petitioner
ELLEN F. ROSENBLUM
Attorney General
KRISTEN E. BOYD
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem , OR 97301
Attorneys for Respondent Kroger
1 - OPINION AND ORDER -
S . AMANDA MARSHALL
Uni t ed States Attorney
Dist ri c t of Oregon
RONALD K. SILVER
Assistant United States Attorney
1000 SW Third Avenue
Suite 600
Portland , OR 97204
Attorneys for Respondent Thomas
BROWN, Judge.
Petitioner , an inmate currently confined at the Mill Creek
Correctional Facility , brings th i s habeas corpus action pursuant
to 28
U. S.C.
§
2254 .
For the reasons
that follow ,
the Court
DENIES Petitioner ' s Amended Petition for Writ of Habeas Corpus
[#30] .
BACKGROUND
In April 2002,
robbery .
Petitioner participated in a home invasion
On July 2 3 ,
2 0 02 ,
Petitioner was arrested on federal
drug and weapons charges unrelated to the home invasion robbery .
He was
released
from
federal
custody pursuant
to
a
pre - trial
security release agreement the following day .
On
April
9,
2003 ,
Jackson
County
authorities
arrested
Petitioner on state charges of Robbery in the First Degree with a
Firearm , Kidnapping in the First Degree , Kidnapping in the Second
Degree , and Theft in the Fi rst Degree , all of which arose from the
April 2002 home invasion robbery .
2 - OPINION AND ORDER -
On April 10 , 2003 , Petitioner
was released from state custody pursuant to a pre - trial security
release agreement .
On May 13 , 2003 , Petitioner was arrested again on the federal
charges because he violated the terms of his federal pre - trial
release agreement .
The pre - trial security release agreement was
revoked , and Petitioner was held in custody on the federal charges
in the Jackson County Jail .
On May 29 , 2003 , while incarcerated on his federal charges ,
Petitioner's pre-trial security release agreement was revoked in
the state case , and he was " arrested " again on the state charges
for violating the terms of his state release agreement.
So as of
May 29, 2003 , Petitioner was held in custody in the Jackson County
Jail on both the pending federal and the pending state charges.
On June 11 ,
2003 ,
Petitioner was bailed out on his state
charges and released from state custody pursuant to a new pre trial security release agreement.
Despite Petitioner's " release "
from state custody , he remained in custody on his pending federal
charges .
On June 12 ,
2 003 ,
Petitioner pleaded guilty in the United
States District Court to federal charges of Distribution of 50 or
more grams of Methamphetamine ,
Unlawful Possession of a short -
barreled rifle, and Unlawful Possession of a firearm.
On March 2 , 2004 , Petitioner ' s state bail was exonerated .
On
April 18 , 2004, Petitioner was convicted in state court after he
3 - OPINION AND ORDER -
pleaded
guilty
to
charges
of
Robbery
in
the
First
Degree ,
Kidnapping in the First Degree , Kidnapping in the Second Degree ,
and Theft.
On September 16 , 2004 ,
District Judge Michael Hogan
sentenced Petitioner on the federal charges to concurrent terms of
imprisonment
of
87
months
and
five
years
of
post - prison
supervision .
On April 18 ,
charges .
2005 ,
Petitioner was
sentenced on the state
The trial judge sentenced Petitioner to two 90 - month
sentences to run concurrently with each other and concurrently
with the 87 - month federal prison sentence previously imposed .
The
state judgment of conviction also provided that Petitioner "may
receive credit for time served ."
Resp . Exh . 101 .
On September 15 , 2005 , the Oregon Department of Corrections
( " ODOC " ) notified Petitioner of a change in the calculation of his
credit
for
time
served .
Petitioner
was
advised
that
he
had
previously been erroneously credited with 428 days of credit for
time served against his state sentence. 1
1
After contact from the
Under Or . Rev . Stat . § 137.370(2)(a) , prisoners are entitled
to credit for time served " after the arrest for the crime for which
sentence is imposed[.] "
Under Or . Rev . Stat. § 137.370(4) ,
however , a prisoner cannot receive pre-sentence incarceration
credit if the credit is to be applied toward ".
a sentence for
a crime or conduct that is not directly related to the crime for
which the sentence is imposed [ . ] "
Because Petitioner was in
federal custody during the entire period in question prior to his
state sentencing, and because he received credit for that time
against his federal sentence , state law prohibited him from
'' double-counting " and receiving credit against his state sentence
as well .
See Randolph v . Department of Corrections , 139 Or . App.
4 - OPINION AND ORDER -
federal
custodians
at
FCI
Sheridan ,
ODOC
altered
Petitioner ' s
sentence calculation to reflect 2 days of credit for time served ,
for the time Petitioner was solely in state custody following his
arrest on April 9 , 2003.
Petitioner did not appeal his federal or state convictions
and sentences .
( " PCR " ) .
Following an evidentiary hearing ,
denied relief .
Appeals
Petitioner did seek state post - conviction relief
Petitioner appealed ,
the PCR trial judge
but the Oregon Court of
affirmed without opinion and the Oregon Supreme Court
denied review .
Barker v. Daniels , 225 Or . App . 501 , 201 P . 3d 941 ,
rev. denied , 346 Or . 1 84 , 206 P . 3d 1058
(2009) .
On June 3, 2009 , Petitioner filed his habeas corpus action in
this Court .
The Court appointed counsel to represent Petitioner ,
and on June 9 ,
2010 ,
Petitioner's Amended Petition for Writ of
Habeas Corpus was filed .
In it , Petitioner alleges one ground for
relief :
Petitioner received ineffective assistance of counsel in
violation of the Sixth Amendment to the United States
Constitution and Strickland v . Washington , 466 U. S . 668 ,
688 (1984) , when trial counsel failed to ensure that the
petitioner was credited with time served in the county
jail . Specif i cally , trial counsel misadvised petitioner
that he would receive credit toward his state sentence
for the 426 extra days he spent in jail assisting the
state in its prosecution of his co - defendants .
In the
post - conviction proceedings , trial counsel admitted he
was unaware of Oregon ' s jail credit statute that
79 , 8 1 ,
( 1996) .
910 P . 2d 1171 ,
rev .
5 - OPINION AND ORDER -
denied ,
323 Or .
114,
913 P . 2d 13 8 4
precluded the award of credit for time served.
Had
petitioner known that he would not receive the credit ,
he would not have entered a plea and the outcome of the
proceedings would have been different.
Respondent contends Petitioner's claim is procedurally defaulted.
2
LEGAL STANDARDS
A
habeas
petitioner
must
exhaust
his
presenting them to the state's highest court ,
claims
by
fairly
either through a
direct appeal or collateral proceedings, before a federal court
will consider the merits of those claims.
§
2254 (b) (1) (A).
Rose v . Lundy,
See 28 U.S.C.
455 U.S. 509, 519 (1982) .
"As a
general rule, a petitioner satisfies the exhaustion requirement by
fairly
presentin,g
courts
the
federal
claim to
the
appropriate
state
. in the manner required by the state courts, thereby
'affording the state courts a meaningful opportunity to consider
allegations
of
legal
915-916 (9th Cir. 2004)
257 ,
error. '"
Casey
v.
Moore,
386
F.3d
896 ,
(quoting Vasquez v. Hillery, 474 U.S. 254 ,
(1986)) .
A petitioner is deemed to have "pr ocedurally defaulted " his
claim if he failed to comply with a state procedural rule,
failed to raise the claim at the state level at all.
Carpenter,
or
Edwards v.
529 U.S . 446 , 451 (2000) ; Coleman v . Thompson, 501 U.S.
2
Respondent argues in the alternative that Petitioner is not
entitled to relief on the merits. In light of the finding that the
claim is procedurally defaulted, the Court does not address this
argument.
6 - OPINION AND ORDER -
722 ,
750
(1991) .
If a petitioner has procedurally defaulted a
claim in state court , a federal court will not review the claim
unless the petitioner shows "cause and prejudice " for the failure
to present the constitutional issue to the state court , or makes
a colorable showing of actual innocence.
Gray v. Netherland , 518
U.S. 152, 162 (1996) ; Sawyer v . Whitley , 505 U.S. 333 , 337 (1992) ;
Murray v . Carrier , 477 U.S. 478 , 485
(1986).
Ineffective assistance of counsel claims are d i screte and
must be properly raised in order to avoid procedural default.
Carriger
v.
Stewart ,
971
F.2d
329 ,
333-34
(9th
Cir .
1992).
Petitioners "must plead their claims with considerable specificity
before
the
state
requirement ."
courts
in
order
to
satisfy
the
exhaustion
Rose v . Palmateer , 395 F.3d 1108 (9th Cir . ) , cert.
denied , 545 U. S. 1144
(2005)
(citations omitted).
In addition , a petitioner must " articulate the substance of
an alleged violation with
some
specificity ."
I d.
By way of
example , in Rose the Ninth Circuit referenced a prior case:
In Kelly v. Small , 315 F.3d 1063 (9th Cir. 2003) , we
held that although the petitioner had exhausted a claim
of ineffective assistance based on counsel ' s fai l ure to
object to several instances of alleged prosecutorial
misconduct , the petitioner had not exhausted a related
ineffective assistance claim that was premised on
counsel ' s failure to file a motion to recuse the
prosecutor based on that same misconduct . Id. at 1068 ,
n . 2 . We held that " it was incumbent upon Petitioner to
set forth the alleged failure to file a motion to recuse
as an independent constitutional claim in order to give
the
California
Supreme
Court
a
'full
and
fair
7 - OPINION AND ORDER -
opportunity ' to act upon it , rather than hope that the
court would infer this Sixth Amendment claim from the
re l ated failure to object. "
Id .
Rose , 395 F . 3d at 1111-1112 .
DISCUSSION
In
his
Amended
Petition
for
Post - Conviction
Relief ,
Petitioner alleged the following claims :
Petitioner believes his sentence
has been
illegally executed because he has received only two days
credit for time served in this case. This has resulted
in a substantial denial of petitioner ' s rights in
violation of ORS 138 . 530 , because he was denied adequate
assistance of trial counsel under the Sixth and
Fourteenth Amendments to the United States Constitution ,
and under Article
I,
Section 11 of the Oregon
Constitution .
Trial counsel failed to provide legal
advice and services which met the minimum standards of
a criminal defense attorney as follows :
With respect to attorney David M. Orf:
(a) He failed to file a motion in June of 2003 to
exonerate petitioner ' s bail in the above - mentioned
State case so petitioner could receive credit for
time served , after said attorney became aware that
petitioner would remain in custody because he would
not be released on his Federal charges .
With regard to attorney Eric Chase , and the Chase
Law Group:
(a) These attorneys failed to file a motion in July
of 2003 to exonerate petitioner ' s bail in the
above - mentioned State case so petitioner could
receive
credit
for
time
served ,
after
said
attorneys became aware that petitioner would remain
in custody because he would not be released on his
Federal Charges.
With regard to attorney Jay W. Frank:
8 - OPINION AND ORDER -
(a) He failed to file a motion immediately after
having been retained by petitioner, to exonerate
petitioner's bail in the above-mentioned State case
so petitioner could receive credit for time served
after becoming aware that petitioner would remain
in custody because he would not be released on his
Federal charges.
(b) He failed to ensure that petitioner was
credited in his State case with all of the time (a
minimum of 427 days) he served in custody prior to
petitioner's sentencing on September 16, 2006 in
the above-mentioned Federal case.
Resp. Exh. 108, pp. 3-4.
After the PCR trial judge denied relief, Petitioner appealed.
He asserted one assignment of error:
"[t]he post conviction court
erred in denying the petition for post conviction relief based on
the failure of his trial attorneys to provide effective assistance
by securing for him the credit for time he served in state custody
prior to and after the beginning of his federal sentence."
Exh.
131,
5.
In support of this
claim,
Resp.
Petitioner argued he
should be granted relief because the Oregon statute in question,
Or. Rev. Stat. § 137.370 should not apply to his case because he
was sentenced concurrently, not consecutively.
Petitioner also argued trial counsel was
ineffective
because
Petitioner's
bail,
he
failed
which
he
to
file
a
contended
constitutionally
motion
would
to
have
exonerate
allowed
Petitioner to receive credit for time served from the date of his
arrest.
As his appellate brief described it, the post-conviction
proceeding involved a two-step process:
9 - OPINION AND ORDER -
"first, he had to prove
that
he
was
entitled
to
credit
for
time
served
in
pretrial
custody, as alleged in his petition, and second, that the reason
he did not receive that credit was because of the ineffective
assistance of his trial attorneys."
Resp. Exh. 131, pp. 8 - 9 .
Petitioner then sought review from the Oregon Supreme Court
on the following legal question:
Should the post conviction trial court have granted
petitioner's petition for post conviction relief based
on the ineffective assistance of trial counsel for
failing to take the necessary measures to ensure
petitioner was given complete credit for time served?"
Resp. Exh . 133, p. 2 .
Petitioner again argued his trial attorneys
were ineffective because "his attorneys failed to file a motion to
exonerate
state
bail
after
he
pled
guilty
in
federal
court,
resulting in his not receiving credit for the time he was required
to be in federal custody, from June 11, 2003, until March 2 , 2004 ,
when his state security release was finally exonerated."
Id. at
pp. 3-4.
In
the
Amended
Petition
currently
before
this
Court ,
Petitioner does not allege counsel was ineffe ctive for failing to
exonerate his bail or otherwise ensure he received credit against
his state sentence for time served.
Instead, Petitioner focuses
on his trial counsel's alleged ignorance of the law and failure to
10 - OPINION AND ORDER -
properly advise
Petitioner by leading him to believe he would
receive credit for time served . 3
Petitioner did not allege any such claim in his state PCR
petition.
Because he did not do so, this issue was never properly
before the state PCR trial court .
See Bowen v. Johnson , 166 Or .
App. 89, 93 (re lief under the Post - Conviction Hearing Act is only
available as to claims that were actually raised in the petition
or amended petition and any claim not so raised is waived unless
the claim could not reasonably have been asserted at the time) ,
rev. denied , 330 Or. 553 , 10 P . 3d 943 (2000) .
Moreover , the fact
that evidence supporting such a claim may have first come to light
in the course of the state PCR trial proceedings does not alter
the
fact
that
this
discrete
ineffective assistance of counsel
claim was not raised on appeal or in the petition for review in
the PCR proceeding .
Petitioner is now barred under Oregon law from filing any
additional
appeals
or
PCR proceedings ,
and ,
therefore ,
cannot
fairly present the claim alleged in this action to the Oregon
Courts . 4 Accordingly, Petitioner procedurally defaulted the claim
3
A habeas petitioner may attack the voluntary and intelligent
character of his guilty plea by showing that he received
incompetent advice from counsel in connection with the entry of the
plea .
Tollett v . Henderson , 411 U. S . 258 , 267 (1973).
4
0r. Rev . Stat. § 138 . 071 requires that direct appeals be
filed not later than 30 days after the judgment or order appealed
from was entered in the register . Under Or . Rev. Stat. § 138.650,
11 - OPINION AND ORDER -
alleged
in
currently
the
Amended
before
this
Petition
Court .
for
Writ
Because
establish cause and prejudice or a
of
Habeas
Petitioner
Corpus
does
not
fundamental miscarriage
of
justice to excuse the procedural default , the Amended Petition for
Writ of Habeas Corpus must be dismissed .
CONCLUSION
For these reasons , the Court DENIES the Amended Petition for
Writ of Habeas Corpus [#30] and DISMISSES this action.
The Court DENIES a certificate of appealability as Petitioner
has
not
made
a
substantial
constitutional right .
showing
of
the
denial
of
See 28 U. S . C . § 2253 (c) (2) .
IT IS SO ORDERED .
DAT ED this £
day of August , 2012..
United States District Judge
PCR appeals must be filed within 3 0 days after the entry of
judgment . Petitions for review to the Oregon Supreme Court must be
filed within 35 days from the date of the Court of Appeals '
decision . Or . Rev . Stat . § 2 . 520 .
Finally , under Or . Rev . Stat.
§ 138 . 550 (3) , all PCR claims must be asserted in the original or
amended petition unless they could not reasonably have been
asserted therein , and any claims no so asserted are deemed waived.
12 - OPINION AND ORDER -
a
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