Westcott v. DeCamp
Filing
33
OPINION AND ORDER. Respondent's Motion to Dismiss 23 is GRANTED. The Petition for Writ of Habeas Corpus 2 is DENIED and this case is DISMISSED without prejudice for failure to exhaust. In addition, the court finds that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c) (2). Accordingly, this case is not appropriate for appellate review. IT IS SO ORDERED. Signed on 10/24/2011 by Judge Robert E. Jones. (gw)
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FILEn25 O ~ 11 094~t!SIf-ORP
CT
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
SEAN WESTCOTT,
Civil No. 10-1291-JO
Petitioner,
v.
OPINION AND ORDER
JOE DeCAMP,
Respondent.
Thomas J. Hester
Assistant Federal Public Defender
101 SW Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
John R. Kroger
Attorney General
Andrew Hallman
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97301
Attorneys for Respondent
1 - OPINION AND ORDER
t
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J
I
JONES, District Judge.
Petitioner,
an
inmate
at
the
Deer
Ridge
Correctional
Institution, brings this habeas corpus action pursuant to 28 U. S. c.
§
2254.
Respondent moves to dismiss the petition on the basis that
Petitioner failed to exhaust his available state remedies.
For the
reasons set forth below, Respondent's Motion [23] is granted.
BACKGROUND
Pursuant
to
a
negotiated plea agreement,
Petitioner pled
guilty to two counts of coercion on November 26, 2008 (Lane County
Case No.
200823520).
probationary
On December 11,
sentence.
A few months
2008 the court imposed a
later
in
February 2009,
Petitioner admitted to violating the conditions of his parole.
parole was
revoked and the
court
His
imposed consecutive 19-month
sentences on each coercion count.
In addition,
Petitioner pled
guilty to felony stalking (Lane County Case No. 200908776), and,
pursuant to a negotiated plea agreement, the court imposed a 41
month sentence with 31 months to be served concurrently with the
sentence
in
consecutively
the
coercion
with
that
case
and
sentence.
10
months
According
to
to
be
served
Respondent,
Petitioner's proj ected release date is November 14, 2011.
However,
in a Supplemental Exhibit [31], Petitioner includes a memo dated
June 28, 2011 showing the Oregon Department of Corrections recently
recalculated his sentence and determined his new projected release
date is January 11, 2012.
2 - OPINION AND ORDER
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I
The direct appeals in both cases are pending in the Oregon
(Case Nos. A146894 & A147658) .
Court of Appeals
filed petitions for post-conviction relief
(PCR)
Petitioner also
in both cases
(Marion County Circuit Court Case Nos. 09C18975 & 09C19196), but
the PCR court denied relief on January 12, 2011 and February 11,
2011 respectively.
Appeals of the post-convictions court's denials
are' pending before the Oregon Court of Appeals (Case Nos. A147344
&
During
A147469).
the
pendency
of
his
post-conviction
proceedings, Petitioner filed pro se and counseled motions to amend
the judgment with the trial court.
These motions were denied for
lack of jurisdiction.
Petitioner also filed petitions for habeas relief in state
court
(Marion County Circuit Court Case No.
County Circuit Court Case No. 100186CV).
petitions.
No
judgment
issued in the
10C12613
and Lake
Relief was denied on both
Marion County case and
Petitioner did not take an appeal in the Lake County case.
On October 15, 2010, petitioner filed this action.
In his
Petition for Writ of Habeas Corpus, he raises the following grounds
for relief:
Ground One:
Conviction obtained by Peas of guilty which was
unlawfully induced or not made voluntarily with understanding
of the consequences of the plea.
I had a bound judgment of
conviction which provided for concurrent sentences even upon
probation revocation. However; I was ultimately revoked and
the probation revocations judge unconstitutionally resentenced
me without allowing me to withdraw my plea which is contrary
to my 6th and 14th Amendment rights.
Ground Two:
Conviction obtained by use of coerced confession.
3 - OPINION AND ORDER
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Ground Three:
Conviction obtained by use of evidence gained
pursuant to an unconstitutional search and seizure, which
caused my coerced guilty pleas.
DISCUSSION
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.
O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999);
Coleman v. Thompson,
501 U.S. 722, 731 (1991); Picard v. Connor,
404 U.S. 270, 275 (1971).
Although there is a strong presumption
in favor of requiring a prisoner to exhaust his state remedies,
failure to do so is not jurisdictional.
See Granberry v. Greer,
481 U.S. 129, 131 (1987); Simmons v. Blodgett, 110 F.3d 39, 41 (9th
Cir.), cert. denied, 522 U.S. 892 (1997); Hendricks v. Zenon, 993
F.2d 664, 672 (9th Cir. 1993).
Hence, the failure to exhaust may be excused if (1) "there is
an
absence
(2)
"circumstances exist that render such process ineffective to
of
available
State
protect the rights of the applicant."
& (ii).
corrective
28 U.S.C.
§
process";
or
2254 (b) (1) (B) (I)
State remedies may be found to be "ineffective" in rare
cases where exceptional circumstances of peculiar urgency are shown
to exist.
672 '.
See Granberry, 481 U.S. at 134; Hendricks, 993 F.2d at
Similarly, state remedies may be rendered "ineffective" by
extreme or unusual delay attributable to the state.
Edelbacher v.
Calderon, 160 f.3d 582, 586-87 & n. 5 (9th Cir. 1998); Phillips v.
4 - OPINION AND ORDER
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Vasquez, 56 F.3d 1030, 1036 (9th eir.), cert. denied, 516 U.S. 1032
(1995) .
In the instant proceeding, Petitioner argues the court should
deny Respondent's Motion to Dismiss and review the merits of his
claims because:
(1) he fairly presented his claims to the Oregon
courts through the filing of pro se and counseled motions to amend
the judgment with the trial court; and (2) any failure to exhaust
should be excused on the basis there is no adequate available state
corrective process through which he can meaningfully vindicate his
federal constitutional rights.
I.
Motions
§
to
Amend
the
Judgment
Pursuant
to
Or.Rev.Stat.
138.083
As noted above,
pen~ing,Petitioner
while his post-conviction proceedings were
filed various motions to amend the judgment
pursuant to Or.Rev.Stat.
§138.083 asserting that the revocation
trial court failed to adhere to the contract plea to which he, the
original
sentencing
court
and
the
prosecutor
were
bound.
Specifically, Petitioner argued the plea agreement provided that in
the event of a revocation, any subsequent sentences on the coercion
counts would run concurrently.
The trial judge denied the motions
on the basis the error did not involve an erroneous term in the
judgment,
and,
therefore,
the
court
lacked
jurisdiction.
Petitioner argues his sentencing claim was thereby exhausted.
Under State v. Harding, 222 Or.App. 415, 417-18, 193 P.3d 1055
(2008), a criminal defendant may move the trial court to correct
5 - OPINION AND ORDER
constitutional errors in his sentence.
The trial court's ability
to amend a judgment to correct such an error is, however, entirely
discretionary.
Id.
As the Harding court noted,
"[w]e emphasize
... that, consistently with the discretionary nature of the trial
court's error-modification authority under Or.Rev.Stat. §138.083,
the trial court was not required to correct the asserted error."
Id.
at
422.
Accordingly,
even assuming
the
trial
court
had
jurisdiction and reviewed Petitioner's motion to amend the judgment
on the merits, because review of a motion to correct a sentence
under Oregon law is
"fairly presented"
discretionary,
to
the
exhaustion requirement.
Oregon
Peti tioner' s
courts
for
claim was not
purposes
of
the
See Castille v. Peoples, 489 U. S. 346, 351
(1989) .
Moreover,
breach
of
Peti tioner concedes he failed to federalize his
plea
claim
by
referencing
a
specific
federal
constitutional guarantee in his pro se and counseled motions to
amend the judgment.
The court finds Respondent's argument that it
should not be judicially estopped from asserting Petitioner did not
properly exhaust his claims on this basis is well taken.
II.
Adequate Available State Corrective Process
Petitioner contends any failure to exhaust should be excused
because the "peculiar facts and tortured history of this case"
demonstrate there is no adequate available state corrective process
through
which
he
can
meaningfully
6 - OPINION AND ORDER
vindicate
his
federal
constitutional rights.
Petitioner states
In his response to the motion to dismiss,
that where he
"has diligently pursued every
possible state remedy and the prosecutor has conceded the plea
agreement
was
breached,
corrective process."
there
is
no
adequate
Response [27], p. 14.
available
state
The court disagrees.
Petitioner has appeals pending in the Oregon Court of Appeals
challenging the PCR court's denial of relief on his PCR petition
related
to
the
coercion
convictions.
Peti tioner
presents
no
reason, other than the fact he is due to be released in the coming
months, why the Oregon Court of Appeals cannot competently review
the PCR court's decision.
Notably,
the PCR made the following
relevant Findings of Fact related to Petitioner's arguments before
thi· court:
s
FINDINGS OF FACT
1.
Petitioner was placed on 42 months probation on December
11, 2008, in Lane County Case No. 200823520, after he
pled guilty to two counts of Coercion. On February 23,
2009, petitioner admitted to violating his probation in
the Coercion case, his probation was revoked, and
petitioner was sentenced to two consecutive 19-month
terms in the Department of Corrections.
Petitioner's
post-conviction challenges with regard to these events
were presented in Marion County Case No. 09C18975.
2.
After being sentenced to the aforementioned 38-month
prison term, petitioner engaged in behavior prohibited by
a Restraining Order his wife had obtained against him.
Consequently,
in Lane County Case No.
200908776,
petitioner was charged with 22 counts of Contempt of
Court.
3.
As the contested hearing on the Contempt charges
approached, petitioner was also charged with Telephonic
Harassment and Felony Stalking.
Then, prior to trial,
7 - OPINION AND ORDER
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petitioner, through his counsel,
plea agreement.
entered a negotiated
4.
Pursuant to the plea agreement, petitioner pled guilty to
Felony Stalking and two counts of Contempt and petitioner
received a 41-month sentence on the charge of Felony
Stalking, with 31 months to be served concurrently with
the 38-month sentence being served for the previous
convictions of Coercion.
Petitioner's pos~-conviction
challenges with regard to these events are found in
Marion County Case No. 09C19196.
5.
In Lane County Case No. 200823520, petitioner's pleas of
guilty were knowing, voluntary and intelligent.
6.
Petitioner alleges that his entry of guilty pleas on the
Coercion counts was pursuant to a negotiated plea
agreement
requiring
the
imposition of
concurrent
sentences upon revocation of his probation.
If he had
been advised that the trial
court could impose
consecutive sentences upon revocation of probation,
Petitioner states that he would have exercised his right
to trial by jury.
7.
In support of his contention, petitioner relies on
statements made at his plea hearing by deputy district
attorney Sarah Sabri. Ms. Sabri's statements are said to
have given petitioner the understanding that concurrent
sentences would be imposed if his probation were revoked.
8.
Petitioner also directs the Court to the Affidavit of Ms.
Sabri, who testifies that she believes the intent of the
negotiations regarding petitioner's plea agreement was
that the Coercion sentences be served concurrently.
9.
However, in Ms. Sabri's testimony, she states that she
does not have an independent memory of the negotiations
in the case, and bases her statement only on a review of
the available record. This record is facially silent on
the issue of imposition of concurrent or consecutive
sentences in the event of probation revocation.
10.
What Ms. Sabri said at petitioner's plea hearing,
however, does not necessarily inform this Court of
whether
petitioner's
counsel
provided
adequate
assistance. Gary Deal, petitioner's counsel in Case No.
200823520, claims to have a clear recollection of the
case, and gives testimony contrary to Ms. Sabri's.
In
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his affidavit, Mr. Deal states that there was no
agreement
that
required
imposition of
concurrent
sentences upon revocation of petitioner's probation.
11. Mr. Deal also testifies to advising petitioner of the
possibility that if his probation were revoked, he could
receive consecutive sentences on each count of Coercion.
This
testimony
directly
contradicts
petitioner's
allegation that Mr. Deal failed to properly advise
petitioner that his sentences could run consecutively.
12. Further,
at
the
probation violation hearing and
sentencing in Case No. 200823520, neither petitioner, Mr.
Deal, nor any other party involved in the negotiated plea
agreement, objected to the imposition of consecutive
sentences.
Had an agreement been made requiring
concurrent sentences, this Court finds it reasonable to
think that at least one party at petitioner's probation
violation hearing would have objected to the imposition
of consecutive sentences.
13. In light of this fact and the testimony of Mr. Deal, this
Court finds that petitioner was aware that his sentences
in Case No. 200823520 could be imposed consecutively.
Petitioner knowingly, freely and intelligently gave up
his rights and entered guilty pleas to two counts of
Coercion.
* * *
Reply [30], Attachment R, pp. 3-5.
The Court's purpose in including the above excerpt from the
PCR court's factual findings is twofold.
First, it demonstrates
how thoroughly the State courts are reviewing Petitioner's claims.
Second,
it makes clear the question as to whether there was an
agreement
providing
for
concurrent
sentences
on
revocation of
Petitioner's probation is not a straightforward one as he suggests
in his briefing to this Court.
9 - OPINION AND ORDER
While Petitioner suggests his state court proceedings have
been plagued with problems and that he continues to be treated
unfairly by the Oregon Department of Corrections, he has failed to
demonstrate
that
he
has
encountered
undue
appellate
delay
attributable to the state, or that he has suffered prejudice as a
result.
Moreover, Petitioner's relatively short sentence does not
constitute
an
intervention.
extraordinary
circumstance
justifying
federal
To hold otherwise would permit every state prisoner
with a short sentence to bypass state remedies,
a
result which
would be directly contrary to the strong presumption in favor of
exhaustion.
In sum, petitioner has failed to demonstrate the hurdles and
delay he has encountered in his state court proceedings are either
extreme,
unusual,
or attributable to the ineffectiveness of the
state review process.
Additionally,
in the light of the Court's
careful review of the record, Petitioner has not demonstrated that
there are exceptional circumstances of peculiar urgency in his case
to distinguish it from all other state convictions involving short
sentences.
Accordingly, the Court declines to waive the exhaustion
requirement.
CONCLUSION
For the foregoing reasons, Respondent's Motion to Dismiss [23]
is GRANTED.
The Petition for Writ of Habeas Corpus [2] is DENIED
10 - OPINION AND ORDER
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and
this
case
is
DISMISSED
without
prejudice
for
failure
to
exhaust.
In addition, the court finds that petitioner has not made a
substantial
showing
of
pursuant to 28 U.S.C.
§
the
denial
2253(c) (2).
of
a
IT IS SO ORDERED.
.2~ day of October, 2011.
11 - OPINION AND ORDER
right
Accordingly, this case is not
appropriate for appellate review.
DATED this
constitutional
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