Holterman v. Nooth
Filing
32
OPINION AND ORDER: The Petition for Writ of Habeas Corpus 20 is denied. The court declines to issue a Certificate ofAppealability on the basis that Petitioner has not made asubstantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). See 6-page opinion and order attached. Ordered by Judge Marco A. Hernandez. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DANIEL LEE HOLTERMAN,
CV. 10-508-HZ
Petitioner,
v.
OPINION AND ORDER
MARK NOOTH,
Respondent.
CRAIG WEINERMAN
Office of the Federal Public Defender
101 SW Main Street, Suite 1700
Portland, OR 97204
Attorney for Petitioner
JOHN KROGER
Attorney General
JACQUELINE KAMINS
Oregon Department of Justice
1162 Court Street, NE
Salem, OR 97301
Attorneys for Respondent
1 - OPINION AND ORDER
HERNANDEZ, Judge.
Petitioner, in custody of the Oregon Department of Corrections
following conviction on one count of Aggravated Murder, Felony
Murder, two counts of Robbery in the Second Degree, one count of
Attempted Aggravated Murder, and one count of Attempted Felony
Murder, 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 (#20).
BACKGROUND
In 1983, Petitioner was sentenced to life imprisonment with a
minimum of twenty years without possibility of parole on conviction
for Aggravated Murder against one victim, and to a consecutive
twenty-year sentence with a minimum of 10 years before being
eligible for parole on Attempted Aggravated Murder against a second
victim.1
(#30, Ex. 101 Sentence Order.)
In 2005, the Board of
Parole and Post-Prison Supervision ("the Board") found Petitioner
eligible for parole on his life sentence. (#30, Ex. 102, p.2.)
was
released
from
his
first
sentence
and
began
serving
He
the
consecutive sentence with a ten-year minimum. (Id.) The Board set
a projected parole release date of February 01, 2015, with a
hearing to be scheduled in August 2014.
1
(Id.)
In sentencing Petitioner, the court found one count of
Robbery I merged with Felony Murder, which in turn merged with
Aggravated Murder; and one count of Robbery I merged with
Attempted Felony Murder, which in turn merged with Attempted
Aggravated Murder.
2 - OPINION AND ORDER
Petitioner sought judicial review of the Board's decision but,
in February 2007, the Oregon Court of Appeals denied review. (#30,
Ex. 103.)
Petitioner then sought to re-open the Board decision
through the administrative review process.
Petitioner's request.
judicial review.
April 29, 2010.
(#30, Ex. 104.)
The Board denied
Petitioner again sought
The Oregon Court of Appeals denied review on
(#30, Ex. 105.)
In 2010, Petitioner also filed a state habeas corpus petition
challenging the Board's decision.
The state court denied relief
finding there was no issue of material fact as a matter of law and,
further, that the petition was frivolous and without merit.
Ex. 106.)
Petitioner's habeas appeal was dismissed as untimely,
and he did not seek review in the Oregon Supreme Court.
107.)
(#30,
(#30, Ex.
Appellate judgment issued May 20, 2010.
Petitioner filed the instant amended federal habeas petition
alleging one ground for relief:
Petitioner's sentences are illegal and contrary to the
Constitution of the United States, in that: Petitioner
was denied his right to due process under the Fourteenth
Amendment to the United States Constitution, in that the
State failed to adhere to its own sentencing rules,
misapplied Oregon law, and improperly denied Petitioner
of a liberty interest.
(#20, at 3.)
Respondent asserts habeas relief is unavailable
because Petitioner's claim is procedurally defaulted as he failed
to fairly present it to Oregon's highest court.
(#28, at 3.)
Petitioner acknowledges he has procedurally defaulted his claim
3 - OPINION AND ORDER
but, never-the-less, argues the state deprived him of his right to
Due Process and of his liberty interests.
(#31, at 4-6.)
DISCUSSION
Generally, before a federal court may consider a petition for
habeas relief pursuant to 28 U.S.C. § 2254, a state prisoner must
have exhausted all available state court remedies through a direct
appeal or through collateral proceedings.
See 28 U.S.C. § 2254
(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (state
courts must have an opportunity to act on claims before they are
presented in a habeas petition).
A federal claim is "fairly
presented" to the state courts if it was presented "(1) to the
proper forum, (2) through the proper vehicle, and (3) by providing
the proper factual and legal basis for the claim." Insyxiengmay v.
Morgan, 403 F.3d 657, 668 (9th Cir. 2005)(internal citations
omitted). In Oregon, the Oregon Supreme Court is the highest state
court
with
jurisdiction
to
hear
post-conviction
satisfaction of the exhaustion requirement.
§ 138.650 (2005).
claims
in
See Or. Rev. Stat.
Under limited circumstances, the Oregon Supreme
Court has considered federal claims fairly presented when the
petitioner specifically cross-referenced a brief filed with the
Court of Appeals arguing the federal claims.
Farmer v. Baldwin,
346 Or. 67, 79-81, 205 P.3d 871 (2009).
When a state prisoner fails to exhaust his federal claims in
state court and the state court would now find the claims barred
4 - OPINION AND ORDER
under applicable state rules, the federal claims are procedurally
defaulted.
Casey v. Moore, 386 F.3d 896, 920 (9th Cir. 2004);
Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).
Habeas review
of procedurally defaulted claims is barred unless the petitioner
demonstrates cause for the procedural default and actual prejudice,
or that the failure to consider the claims will result in a
miscarriage of justice.
Edwards v. Carpenter, 529 U.S. 446, 451
(2000); Coleman, 501 U.S. at 750.
exists
only
if
petitioner
"Cause" for procedural default
shows
"that
some
objective
factor
external to the defense impeded counsel's efforts to comply with
the state's procedural rule." Murray v. Carrier, 477 U.S. 784, 488
(1986).
"Actual
disadvantage.
prejudice"
must
be
actual
and
substantial
United States v. Frady, 456 U.S. 152, 170 (1982).
Demonstrating that failure to consider the claim will result in a
"fundamental miscarriage of justice" requires a showing of actual
innocence.
Schlup v. Delo, 513 U.S. 298, 329 (1995);
Calderon v.
Thomspon, 523 U.S. 538, 559 (1998).
Petitioner
concedes
his claim
is
procedurally defaulted.
Petitioner has not made a showing of cause and prejudice to excuse
the default, nor has he shown that failure to consider his claim
will result in a miscarriage of justice.
Moreover, Petitioner's
claim is premised on errors of state law and federal habeas relief
does not lie for errors of state law.
Swarthout v. Cooke, 131 S.
Ct. 859, 861-63 (2011) ("a 'mere error of state law' is not a
5 - OPINION AND ORDER
denial of due process[,]" quoting Engle v. Isaac, 456 U.S. 107,
121, n.21 (1982)). Therefore, federal habeas relief is precluded.
CONCLUSION
Based on the foregoing, the Petition for Writ of Habeas Corpus
(#20) is denied.
The court declines to issue a Certificate of
Appealability
the
substantial
on
showing
of
basis
that
the
denial
Petitioner
of
a
has
not
constitutional
pursuant to 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
DATED this 8th day of June, 2011.
/s/ Marco A. Hernandez
Marco A. Hernandez
United States District Judge
6 - OPINION AND ORDER
made
a
right
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