Haugen v. Beglau et al

Filing 26

ORDER: The Court grants respondents' Unopposed Motion for Judicial Notice 21 and Motion to Dismiss 22 . The Petition 1 is DENIED and this action is DISMISSED with prejudice. Signed on 10/20/2016 by Judge Michael J. McShane. (Copy mailed to petitioner) (cp)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
GARY HAUGEN,
Petitioner,
v.
STATE OF OREGON, Walter M.
Beglau, MARION CO.
PROSECUTOR, The Hon. Thomas
Hart, MARION CO. CIRCUIT
COURT,
Respondents.

)
)
)
)
)
)
)
)
)
)
)
)
)

3:

16-cv-00727-MC

ORDER TO DISMISS

McSHANE, District Judge.
Petitioner,

an

inmate

on

death

row,

filed

a

writ

of

prohibition pursuant to 28 U.S.C. § 1651(a) seeking an order from
this Court precluding the Marion County District Attorney's office
from ever seeking an execution warrant in petitioner's case and the
Marion

County

Circuit

Court

from

issuing

such

a

warrant.

Respondents move the Court to dismiss this action on the basis:
(1) that federal district courts cannot use a writ of prohibition
1 - ORDER TO DISMISS

to compel action by a state court or state officials; (2) that
issue and claim preclusion bar this action; and (3) that the
petition fails to state a claim for relief.

For the reasons set

forth below, the Court grants respondents' motion and dismisses
this action with prejudice.
I.

Background
Briefly, petitioner was sentenced to death in 2007 and the

Oregon Supreme Court affirmed his conviction and sentence in 2010.
See State v. Haugen, 349 Or. 174, 243 P.3d 31 (2010).
did

not

initially

seek

post-conviction

("PCR")

Petitioner
relief1

and

following two death warrant hearings, his execution was set for
December 6, 2011.

However, on November 23, 2011, then-Governor

Kitzhaber granted petitioner a temporary reprieve of his death
sentence for

as

long

as

Kitzhaber

was

governor.

Petitioner

attempted to reject the reprieve, but the Oregon Supreme Court
ultimately

determined

petitioner

did

not

need

to

accept

the

reprieve for it to be effective.
Governor Kitzhaber resigned from office on February 18, 2015.
According to petitioner, two days later, Governor Brown indicated

1

Petitioner did file a PCR petition in Marion County Circuit
Court on May 7, 2015.
That court dismissed the petition,
presumably as untimely, on September 2, 2015. Petitioner's PCR
case is currently under review by the Oregon Court of Appeals.
2 - ORDER TO DISMISS

that she would extend the moratorium on executions in Oregon.2
Petitioner also maintains that she did not issue a new reprieve or
extend Governor Kitzhaber's reprieve in his case.

Thereafter, in

July 2015, petitioner filed a motion in Marion County Circuit Court
asking that court to strike his death sentence on the basis that
the State forfeited its right to execute him when it failed to seek
a new death warrant after petitioner's initial execution date
passed.3

Circuit Court Judge Vance Day held a hearing on that

motion and denied it in a brief order.

The Oregon Supreme Court

denied petitioner's request for mandamus relief.

Also, although

not included in Judge Day's written order, petitioner states that
he orally set a new execution date for January 23, 2017.4

This,

notwithstanding the fact that at no time since Governor Kitzhaber
issued the initial reprieve on November 23, 2011 has the State of
Oregon moved for a stay or for a new execution date for petitioner.

2

The Court notes that Governor Brown's spokesman issued a
statement on October 17, 2016 indicating that if elected in
November, Governor Brown will continue the current moratorium on
executions in Oregon effective throughout her next term.
3

The Court grants respondents' unopposed Motion for Judicial
Notice [21] which includes as an exhibit petitioner's above
referenced motion to strike death sentence.
4

While not included in his written order denying the motion,
in Judge Day's notes of the hearing there is an entry that reads,
"COURT: DEF's motion DENIED; DEATH WARRANT JAN. 23 '17, REISSUE."
Motion [21], Exhibit C.
The Court also notes that petitioner
indicates that Circuit Court Judge Thomas Hart is now assigned to
his case.
3 - ORDER TO DISMISS

II.

Discussion
A.

Jurisdiction Under 28 U.S.C. § 1651(a)

"[A writ] of prohibition traditionally ha[s] been used by
appellate courts to exert their revisory powers over inferior
courts," but is not an appropriate remedy to control jurisdiction
of other, nonsubordinate courts. See Swift Transportation, Inc. v.
John, 546 F.Supp. 1185, 1194 (D.Ariz. 1982).

Here, neither the

Marion County Attorneys Office nor the Marion County Circuit Court
qualify as courts "inferior" to this federal district court.
result,

petitioner

is

not

entitled

to

relief

by

way

As a
of

prohibition.5
Even under the standard proposed by petitioner, the Court
would decline to intervene in this case.

Petitioner argues that

under the All Writs Act as constrained by the Anti-Injunction Act,
a federal court may issue orders necessary to enjoin state actors
from taking action which, if left unchecked, would as a practical
matter diminish the federal court's power to bring the federal
litigation to its natural conclusion.

Response [24], pp. 7-8

(citing Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1102 (11th

5

Nor can the Court construe petitioner's application as one
for mandamus.
A federal court cannot direct a state court or
judicial officer to perform an official act where mandamus is the
only relief sought. See Demos v. United States District Court, 925
F.2d 1160, 1161 (9th Cir.), cert. denied, 111 S.Ct. 1082
(1991)(federal court lacks jurisdiction to compel state courts to
act).
4 - ORDER TO DISMISS

Cir. 2004)). Petitioner suggests that this Court has the authority
to issue a writ prohibiting respondents from acting in order to
prevent "irreparable injury" stemming from:

(1)

the violation of

a liberty interest created by ORS 137.463; (2) potential action on
Judge Day's "blatantly illegal order" setting a January 2017
execution date; and (3) the constant threat of execution created by
the moratorium on executions in Oregon which is "subject only to
the whim of the Governor or possibly the electorate."

Id. at 10.

Petitioner further suggests a writ of prohibition is necessary to
preserve this Court's jurisdiction over a federal habeas petition
he may file in this Court upon completion of his state court PCR
proceedings.
The Court is not persuaded by the argument that petitioner
faces irreparable injury warranting intervention by the federal
court based on the State's failure to move for a new death warrant
within a certain time period, Judge Day's oral order setting a new
date for execution, or a looming threat of execution.

Nor is the

Court persuaded that its jurisdiction over a future 28 U.S.C.
§ 2254 petition will be compromised if it does not intervene at
this juncture.
B.

Issue and Claim Preclusion

Furthermore, and as mentioned above, respondents, relying on
the federal Full Faith and Credit Statute, 28 U.S.C. § 1738, insist
that petitioner's claims are barred by issue and claim preclusion.
5 - ORDER TO DISMISS

Petitioner does not address this assertion in his response nor does
he contend that the arguments presented in this case, i.e., that
the State of Oregon forfeited its right to seek a new execution
warrant when it failed to comply with the mandatory directive of
ORS 137.463 to issue or seek a new death warrant after petitioner
was not executed on December 6, 2011, are different from those
raised and resolved in his state court motion.
Under the Full Faith and Credit Act, federal courts must give
state judicial proceedings "the same full faith and credit ... as
they have by law or usage in the courts of [the] State ... from
which they are taken."

28 U.S.C. § 1738.

A federal court must

give a state court judgment the same preclusive effect as would be
given that judgment under the law of the state in which the
judgment was rendered.

Robi v. Five Platters, Inc., 838 F.2d 318,

322 (9th Cir. 1988).
Claim preclusion prohibits a party from relitigating a cause
of action against the same defendant involving the same factual
transaction as was litigated in the previous adjudication.

Shuler

v. Distribution Trucking Co., 164 Or.App. 615, 621 (1999), rev.
denied, 330 Or. 375 (2000).

Claim preclusion arises when the

parties have had the opportunity to litigate the issues.

Drews v.

EBI Cos., 310 Or. 134, 140 (1990).
Issue preclusion, on the other hand, prevents relitigation of
a legal or factual issue if the issues was "actually litigated and
6 - ORDER TO DISMISS

determined" in a setting where "its determination was essential to"
the final decision reached.

Id. at 139 (internal quotations

omitted).
The record in this case establishes that petitioner had the
opportunity to litigate and in fact did litigate in his state
court action

the

same

claims

essentially the same party.6

and

issues

raised

here

against

The state court action raised and

resolved the same issues raised in this federal action against the
State of Oregon.
on

December

14,

The state trial court denied petitioner's motion
2015

and

the

Oregon

Supreme

petitioner's writ of mandamus on March 24, 2016.

Court

denied

These are the

same issues that petitioner has raised in the action before this
Court.

Consequently, petitioner is precluded from relitigating

these claims in this federal court.
C.

Failure to State a Claim for Relief

Finally, even assuming that this action were properly before
the Court and not barred by claim or issue preclusion, respondent
argues that as a matter of law it is without merit.

The Court

agrees.
Oregon Revised Statutes section 137.463(7) provides:
If for any reason a sentence of death is not executed on
the date appointed in the death warrant, and the sentence
of death remains in force and is not stayed under ORS

6

In both actions, petitioner faults the State of Oregon with
failing to comply with ORS 137.463.
7 - ORDER TO DISMISS

138.686
or
otherwise
by
a
court
of
competent
jurisdiction, the court that issued the initial death
warrant, on motion of the state and without further
hearing, shall issue a new death warrant specifying a new
date on which the sentence is to be executed. The court
shall specify a date for execution of the sentence,
taking into consideration the needs of the Department of
Corrections. The court shall specify a date not more
than 20 days after the date on which the state's motion
was filed.
(emphasis added).

At core, petitioner maintains that he had (and

has) a constitutionally protected liberty interest in the State of
Oregon complying with what he characterizes as the mandatory
directive set out in ORS 137.463(7) that required the State to
issue a new death warrant after petitioner was not executed on
December 6, 2011.

He argues that due to the State failing to act

on this statutory directive, the execution warrant expired and the
State forfeited its right to ever seek a new execution warrant
through its inaction.
As

a

responsive

preliminary
brief

matter,

petitioner

the

Court

references

notes

that

"judicial"

in

his

action

and

"state" action interchangeably. See Response [24], pp. 1 & 10 ("no
judicial action was taken and no viable justification has ever been
advanced for the inaction"; "The State failed to comply with the
mandatory directives of ORS 137.463 to issue a new death warrant
after [petitioner] was not executed on December 6, 2011. The state
forfeited its right through inaction.").

Critically, however,

these actors are not interchangeable in ORS 137.463(7).

8 - ORDER TO DISMISS

Instead,

the statute clearly states that the court that issued the initial
death warrant (in petitioner's case the Marion County Circuit
Court) need only act, i.e., issue a new death warrant specifying a
new execution date, "on motion of the state".7

Significantly too,

while there are time deadlines for the court to act once its
obligation to do so is triggered by the State's motion, the statute
imposes no timeline on the State to makes its motion in the first
instance. Nor, as respondent correctly notes, does the statute set
out a consequence for the State's failure to move for a new death
warrant within a certain time period, let alone suggest that the
State would forever forfeit its right to seek a new warrant.
Moreover, petitioner contends that "no viable justification
has ever been advanced for the [judicial] inaction."
[24],

p.

1.

petitioner's

This
motion

too
to

is

incorrect.

strike

sentence

In
of

its

Response

response

death,

the

to

State

specifically noted that:
In December of 2011, after then-Governor Kitzhaber issued
an unsolicited reprieve to the defendant's execution, the
state recognized the obvious futility in filing a
subsequent motion for a new death warrant and a new
execution date. Therefore, it did not.
* * *

7

Petitioner appears to agree with this interpretation when
he notes that "without the prosecution moving for a new execution
warrant and completely without any statutory authority, [Judge Day]
has ordered [petitioner's] execution on January 23, 2017. Response
[24], p. 10.
9 - ORDER TO DISMISS

Further, and as noted above, any subsequent motion filed
by the state, given the governor's reprieve, would have
been without merit or justification.
It is not the
practice of the Marion County District Attorney's Office
to clog the court's docket with specious motions, in this
or any other case.
Unopposed Motion for Judicial Notice, Exhibit B, p. 2 (footnote
stating that Governor Brown continued the reprieve omitted). It is
apparent to the Court that the State, in accordance with the
statute,

has

declined

to

seek

a

new

execution

warrant

in

petitioner's case because it reasonably believed that given there
was

a

reprieve

in

petitioner's

case

and/or

a

moratorium

on

executions in Oregon, any motion seeking a new death warrant would
be futile.
In a similar vein, the Court is not persuaded by petitioner's
suggestion that there is an urgent need for this Court to intervene
because Judge Day orally set a new execution date for January 2017
and petitioner could be executed on that date or somehow this
Court's jurisdiction over a future federal habeas petition filed
pursuant to 28 U.S.C. § 2254 will be compromised.

First, to the

extent that Judge Day did sua sponte set a new execution date, it
does not appear to the Court that he acted in accord with ORS
137.463 for the reasons discussed above.

Second, as noted above,

petitioner continues to pursue PCR relief in state court and has an
appeal pending before the Oregon Court of Appeals.

And finally,

Governor Brown indicated in February 2015, and, again as recently

10 - ORDER TO DISMISS

as October 17, 2016, that she will continue the moratorium on
executions in Oregon during the pendency of her term as governor.
For these reasons, the Court does not find credible any argument or
suggestion that the State of Oregon will seek to execute petitioner
in January 2017 or that he will not have a fair opportunity to file
a federal habeas petition in this Court upon the completion of his
pending PCR proceedings in state court.
CONCLUSION
Based

on

the

foregoing,

the

Court

GRANTS

respondents'

Unopposed Motion for Judicial Notice [21] and Motion to Dismiss
[22]. The Petition [1] is DENIED and this action is DISMISSED with
prejudice.
IT IS SO ORDERED.
DATED this

20th

day of October, 2016.

Michael J. McShane
United States Magistrate Judge

11 - ORDER TO DISMISS