Forbes v. Coursey

Filing 16

Order. Petitioner's Petition 2 is denied by the Court. This proceeding is dismissed. Should Petitioner appeal, a certificate of appealability should be denied as petitioner has not made a substantial showing of the denial of a constitutional right. See, 28 U.S.C. § 2253 (c) (2). Signed on 11/9/2011 by Chief Judge Ann L. Aiken. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
CLAUDE MICHAEL FORBES,
Petitioner,

v.

Civil No. 10-1400-AA
ORDER

RICK COURSEY,
Respondent.
AIKEN, District Judge.
Petitioner is in the custody of the Oregon Department of
Corrections (ODOC) pursuant to a Judgment, dated April 12, 2006,
from the Marion County Circuit Court, after convictions for two
counts for Assault in the Second Degree, one count of Unlawful use
of a Weapon, one count of Felon in Possession of a Firearm, and one
count of Felon in possession of a Restricted Weapon.

Exhibit 101.

After petitioner was convicted of the above listed crimes by a
combination of jury trial, bench trial and a plea petition, and the
1 - ORDER

merging of the Unlawful use of a Weapon count, the court imposed a
sentence of 70 months for one count of Assault, a consecutive 70
months for the second count of Assault and a concurrent 24 months
for the Count of Felon in Possession, for a total sentence of 140
months imprisonment.

Id.

Petitioner directly appealed his convictions, but then moved
to dismiss. Exhibits 105 - 107.

Petitioner did not seek review

from the Oregon Supreme Court.
Petitioner filed a Formal Petition for Post-Conviction Relief,
Exhibit 109, but the Malheur County Circuit Court denied relief.
Exhibit 118.

The Oregon Court of Appeals summarily affirmed and

the Oregon Supreme Court denied review. Exhibits 119 - 124.
Petitioner filed a Petition for habeas corpus relief under 28
U.S.C.

§

2254 alleging three grounds for relief. Petition (#2) p.

5-9.
Respondent moves to deny relief and dismiss this proceeding on
the grounds that "grounds two and three are procedurally defaulted"
and "the ineffective-counsel claim in ground one was denied in a
decision that is entitled to deference." Response (#8) p. 1.
Under 28 U.S.C.

§

2254(b) (1), an application for a writ of

habeas corpus "shall not be granted" unless "the applicant has
exhausted the remedies available in the courts of the State[.]"
Exhaustion occurs when a petitioner has given the state courts a
"full and fair" opportunity to consider and resolve all federal
claims.

Keeney v. Tomayo-Reyes, 504 U.S. 1, 10 (1992).

If a

petitioner can present a claim to the state's Supreme Court, he
2 - ORDER

must do so to properly exhaust that claim.

O'Sullivan v. Boerckel,

526 U.S. 838, 844-45 (1999).
To "fairly present" a federal claim in state court, habeas
petitioners

must

"include

reference

to

a

specific

federal

constitutional guarantee, as well as a statement of facts that
entitle the petitioner to relief." Gray v. Netherland, 518 U. S.
152, 162-63 (1996); see also, Castillo v. McFadden, 399 F.3d 993,
1000 (9 U Cir. 2005).
Furthermore, to properly exhaust a claim the petitioner must
present the federal claim to the state courts in a procedural
context in which the claims' merits will be considered.

Castille

y. Peoples, 489 U.S. 346, 351-52 (1989); Roettgen v. Copeland, 33
F.3d 36, 38 (9 th Cir. 1984; Turner v. Compoy, 827 F.2d 526, 529 (9 th
Cir. 1987), cert. denied, 489 U.S. 1059 (1989).
Stated otherwise, each claim raised in a habeas petition must
have been given one complete round of the state's appellate review
process. O'Sullivan y. Boerckel, supra at 844-845, and the state
courts must have had a full and fair opportunity to respond to any
federal claim asserted by the petitioner. Keeney v. Tamayo-Reyes,
supra at 10.
If a petitioner has failed to present a federal constitutional
claim to the state's highest court (i.e., has failed to exhaust
state remedies) and can no longer do so because of a procedural
bar, that claim is procedurally defaulted.

Boerckel, 526 U.S. at

848, citing Coleman y. Thompson, 501 U.S. 722, 731-32 (1991).

Once

a petitioner has procedurally defaulted a claim, federal habeas
3 - ORDER

corpus review is barred unless the petitioner can demonstrate: (1)
cause for the procedural default, and (2) actual prejudice from the
failure. Edwards y. CatPenter, 529 U.S. 446, 451 (2000), Coleman,
501 U.S. at 750; see also,
(1977); Murray
of Corr"

y,

Wainwright v. Sykes, 433 U.S.

72

Carrier, 477 U.S, 748 (1986); Hughes v, Idaho Bd,
(9~

800 F,2d 905

Cir. 1986),

Cause for a procedural default exists only if petitioners
"show that some objective factor external to the defense impeded
counsel's efforts to comply with the State's procedural rule."
Murray, 477 U.S. at 488.

Prejudice exists only i f petitioners show

that the procedural default "worked to [petitioner's) actual and
substantial disadvantage."
170

(1982).

United States v. Frady, 456 U.S. 152,

Demonstrating a mere possibility of prejudice is

insufficient.

Id,

Procedural defaults may also be excused

by demonstrating a

"fundamental miscarriage of justice," Edwards v. CatPenter, 529
U,S. 446, 451 (2000).

To establish the fundamental miscarriage of

justice exception to the exhaustion requirement requires a showing
of actual innocence. Schlup v. Delo, 513 U.S. 298, 329 (1995);
Calderon

y,

Thompson, 523 U.S.538, 559 (1998),

In Ground Two, petitioner alleges that his trial counsel was
ineffective for advising him not to testify.

Petitioner raised

this claim in his PCR petition, Exhibit 103 at p. 3.

However, it

was not alleged in petitioner's PCR brief to the Oregon Court of
Appeals, Exhibit 118, or petition for review to the Oregon Supreme
Court. Exhibit 112.
4 - ORDER

Thus, this ineffective assistance of counsel

claim was not fairly presented to Oregon's highest court. See,
Carriger v. Lewis, 971 F,2d 329, 333-34 (9 th Cir. 1992)

(en bane)

(noting that ineffective-counsel claims are discreet and that each
claim of ineffective assistance must be specifically raised and
properly exhausted) .
In Ground Three, petitioner alleges that his trial counsel was
ineffective for failing to move for a mistrial due to alleged juror
misconduct.

This claim was not alleged in petitioner's PCR

petition, Exhibit lOS, PCR brief to the Court of Appeals (Exhibit
118), or petition for review to the Oregon Supreme Court. Exhibit
121.
Petitioner is now barred under Oregon law from filing any
additional appeals or PCR proceedings, and therefore cannot "fairly
present" any additional claims to the Oregon state courts.' Thus he
has procedurally defaulted the claims raised in Grounds Two and
Three.

Petitioner has not alleged any cause and prejudice for his

procedural default or established that he is entitled to the
fundamental miscarriage of justice exception to the exhaustion
requirement.
Under the Antiterrorism and Effective Death penalty Act

'ORS 138 requires that direct appeals be filed not later than
30 days after the judgment or order appealed from was entered in
the register. ORS 13S.650 requires PCR appeals to be filed within
30 days after the entry of final judgment.
ORS 2.520 requires
petitions for review to the oregon Supreme Court to be filed within
35 days from the date of the Court of Appeals's decision.
See
also, ORAP 9.05(2} (same). Finally, ORS 138.550(3} provides that
all PCR claims must be asserted in the original or amended petition
unless they could not reasonably have been asserted therein, and
any claims not so asserted are deemed waived.
5 - ORDER

("AEDPA"), 28 U. S. C.
a

state

court's

§

2254, habeas relief may be granted only when

decision

was

"contrary

to,

or

involved

an

unreasonable application of, clearly established Federal law, as
determined by the Supreme court of the Unit;ed States" or "was based
on an unreasonable determination of the facts in light of the
evidence presented at the state court proceedings."

28 U.S.C.

§

2254 (d) ; Wiggins v. Smith, 539 U.S. 510, 520 (2003).
A state court's decision is "'contrary to' federal law if it
fails to apply the correct controlling Supreme Court authority or
comes

to a

different

conclusion

[from]

a

case

involving

materially indistinguishable facts." Pirtle v. Morgan, 313 F. 3d
1160, 1167 (9 th Cir. 2002) (citing Bell y. Cone, 535 U.S. 685, 694).
The Supreme Court has held that "a federal habeas court making the
'unreasonable application' inquiry should ask whether the state
court's

application

of

objectively unreasonable."

clearly

established

federal

law

was

Williams y. Taylor, 529 U.S. 362, 409

(2000) .
In addition, under 28 U.S.C.

§

2254 (d) (2), "a determination of

a factual issue made by a state court shall be presumed to be
correct ..

The applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing evidence."
Miller-El v. Cockrell, 537 U.S. 322, 351 (2003).
"[I]t is past question that the rule set forth in Strickland,
qualifies as 'clearly established Federal law, as determined by the
Supreme Court of the united States. '"
391.

Williams v Taylor, supra at

Under Williams, a petitioner may therefore be granted habeas
6 -

ORDER

corpus relief on a claim of ineffective assistance of counsel only
if

the

decision of

the

state

court was

contrary to,

or an

unreasonable application of Strickland v. Washington, 466 U.S. 668
(1984) .
Under Strickland, a claim that counsel's assistance was so
ineffective

as

components.

to

require

First,

the

reversal

of

petitioner must

a

conviction has
show

that

two

counsel's

performance was deficient; second, the petitioner must show that
the deficient performance prejudiced the defense.

Id. at 687.

The first prong of the Strickland test required the petitioner
to

demonstrate

that

"counsel's

representation

objective standard of reasonableness.
The second component of

the

test

fell

below

an

Strickland, sypra at 688.
requires

the petitioner to

demonstrate that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would
have been different."

Id., at 694.

A "reasonable probability" is

one that is sufficient to undermine confidence in the outcome."

In Bell v. Cone, 535 u.S. 685 (2002), the Court reiterated
that when considering ineffective assistance of counsel claims:
[J]udicial scrutiny of a counsel's performance must be
highly deferential and that every effort [must] be made
to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's
perspective at the time.
Thus, even when a court is
presented with an ineffective-assistance claim not
subject to § 2254 (d) (1) deference, a defendant must
overcome the presumption that, under the circumstances,
the challenged action might be considered sound trial
strategy.
7 - ORDER

Bell, 535 U.S. at 695 (citations and quotations marks omitted) .
When considering ineffective assistance of counsel claims
under 28 U.S.C.

§

2254(d) , "it is the habeas applicant's burden to

show that the state court applied Strickland to the facts of his
case in an objectively unreasonable manner." Woodford v. Visciotti,
537 U.S. 19, 25 (2002) (per curiam) .
The general nature of the Strickland test combined with the
deference prescribed by

§

2254(d) combines to require the federal

court not to evaluate the state court's determination itself, but
whether the state court's determination was unreasonable.
y.

Mirzayance,

129 S.Ct.

1411, 1420

(2009)

Knowles

(citing Schriro v.

Landrigan, 550 U.S. 465, 473 (2007).
Petitioner's alleges in Ground One that

"[tl rial counsel

failed to subpoena Cpl Burke a key witness who would have provided
testimony indicating the actions of petitioner were self-defense
and not an outright assault as alleged."

Petition (#2) p. 5-6.This

claim is similar to the ineffective assistance of counsel claim
petitioner presented in his peR petition, Exhibit 108 at p. 4, and
on his PCR appeal. Exhibit 118, p. 4.
Petitioner has not filed a brief in support of his petition in
this proceeding.

In petitioner's PCR proceedings he argued that

trial counsel should have obtained Corporal Burke's testimony that
the victim told him that right before he was shot by petitioner, he
heard petitioner say "Drop it" or "Drop."

Petitioner argued that

such testimony would have supported petitioner's theory of self
defense. Id.
8 -

ORDER

The PCR court rejected petitioner's ineffective assistance of
counsel claims as follows:
The issue with the trial wasn't who shot first.
It
wasn't that kind of self-defense. The issue really was
whether the complaining witness had a gun at all. Under
the circumstances of this particular case as the
testimony came out, not calling the corporal did not keep
the attorney from validly arguing self-defense.
The
statement drop it or drop or whichever it was, doesn't
matter much, it came in anyway.
And the attorney, he
argued (INAUDIBLE) self defense. And it really got down
to the jury had to decide whether they believed that this
other man had a gun at all. It allowed the attorney to
argue why else would Mr. Forbes be saying drop it, if
there was not gun. So it wasn't one of those cases that
I frequently had (sic) which was who shot first. In this
case, the jury didn't believe that the other man had a
gun period. Otherwise, they would have bought the selfdefense defense. So, in this set of facts, I do not find
that it was inappropriate for the attorney to go ahead
with this case without the corporal. I do not find that
it prejudiced the outcome of the case.
I do not find
that it kept the attorney from arguing self-defense as
much as he would have argued with the other statement.
That it wouldn't have mattered. If Forbes [INAUDIBLE]
would have just been a question of whether he whether the
timing of the shooting.
But it wouldn't have had
anything to do with whether or not the man had a gun at
all. (Sic)
Exhibit 116, p. 22-23 (findings on the record)
In the court's written findings the PCR judge stated: "Issue
at trial wasn't who fired first, but whether V had a gun at all.
Under the facts, not calling Corporal did not keep the attorney
from presenting self-defense to jury. 'Drop it' came in through V."
Exhibi t 11 7 .
Petitioner has not presented any clear and convincing evidence
to controvert the PCR court

findings

presumed to be correct. 28 U.S.C.

§

and they are

therefore

2254(e) (1).

In addition, for the reasons set forth below, I find that the
9 - ORDER

PCR court's conclusion that petitioner's trial counsel was not
constitutionally defective, is not contrary to, nor an unreasonable
application of Strickland.
The PCR court correctly concluded that there was no need for
Corporal Burke to testify.

When Mr. Welch testified at trial, he

told the jury that petitioner told him to "drop it, drop it."
Exhibit 104 at 78, 81-82.
to that testimony.

Corporal Burke would have added nothing

Moreover, it is unlikely that Corporal Burke

would have been allowed to tell the jury what Mr. Welch told him
because of hearsay rules.
The jury heard the most credible evidence of the statement
through the testimony of Mr. Welch.

There was no need to have

Corporal Burke testify and counsel was not ineffective for not
calling him as a witness at trial. In addition, the self-defense
argument was made based on the statement.

Therefore, petitioner

was not prejudice by the lack of Corporal Burke's testimony.
Based on all of the foregoing, petitioner's Petition (#2) is
denied.

This proceeding is dismissed.

Certificate of Appealability
Should petitioner

appeal,

a

certificate

of appealability

should be denied as petitioner has not made a substantial showing

of

the

denial

of a

constitutional

right.

See,

28

2253 (c) (2).

DATED this

day of Nove~, 2~

l.JJ£u

Ann Aiken

l/

United States District Judge
10

ORDER

U.S.C.

§