Carter v. Premo et al
Filing
56
OPINION AND ORDER: The Amended Petition 11 is DENIED, with prejudice as to the claims challenging Petitioner's 1984 conviction and life sentence, but without prejudice as to Petitioner's right to raise claims challenging Parole Board actions in a future habeas action. See 8-page opinion and order attached. Signed on 7/22/2013 by Judge Marco A. Hernandez. (mr)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
Case No.
DAVID 0. CARTER,
6:11-cv-01299-HZ
OPINION AND ORDER
Petitioner,
v.
JEFF PREMO,
Respondent.
HERNANDEZ, District Judge.
Petitioner, an inmate in custody of the Oregon Department of
Corrections, brings this habeas corpus action pursuant to 28 U.S.C.
§
2254.
For the reasons that follow,
Habeas Corpus (#2)
the Petition for Writ of
is DENIED, and this action is DISMISSED.
Background
In
July 1984
Petitioner pled of guilty to Murder and was
sentenced to life imprisonment with the possibility of parole.
On
October 27, 2011, Petitioner filed this habeas action challenging
his
continued
detention.
However,
the
petition
included
constitutional challenges to Petitioner's conditions of confinement
1 - OPINION AND ORDER
and alleged violation of his civil rights.
order advising Petitioner that,
The Court issued an
should he wish to pursue civil
rights claims, he would need to do so in a separate action under 42
u.s.c.
§
1983.
The
Court
further
advised
Petitioner
that
to
proceed with his habeas actions he would need to file an amended
petition and include information regarding any direct appeals and
post-conviction proceedings in state court challenging his state
conviction and sentence.
The Court deferred action on Petitioner's
Motion for Appointment of Counsel (#3).
On December 28,
(#11)
which
was
2011,
difficult
Petitioner filed an amended petition
to
decipher.
The
Court
liberally
construed the Amended Petition to be challenging Petitioner's 1984
conviction and life sentence.
As best the Court could discern,
Petitioner alleged his conviction was unconstitutional because the
address specified as the location where he committed a burglary was
incorrect in a 1984 pre-sentence report (ref. no. 10162), and that
he was being held beyond the imposed sentence.
(#11, at 6-7.)
In
the amended petition, Petitioner specified that he did not directly
appeal from the judgment of conviction and that he did not file a
petition
for
state
post-conviction
relief.
However,
he stated he had matters related to his conviction and
(Id.,
at
2,
4.)
sentence pending in Marion County Circuit Court and in the Oregon
Court of Appeals.
(Id.,
at 8.)
Petitioner did not give the nature
or filing dates of the state court proceedings, but attached a copy
2 - OPINION AND ORDER
of a motion sent to Mul tnomah Circuit Court to
Vacate Judgment," dated August 24, 2011.
"Set Aside and
(#11, at 10, and Ex. 1.)
Petitioner was ordered to show cause why the amended petition
should not be dismissed as untimely, and he was advised that if he
wanted to challenge Parole Board decisions he must file a separate
habeas action,
identifying the specific Parole Board decision he
wished to challenge and the supporting facts.
( #14.)
Petitioner
filed additional documents and the Court concluded the assistance
of counsel would be necessary to obtain an answerable pleading.
The Court appointed the Federal Public Defender, and counsel filed
a Second Amended Petition (#31) .
Respondent filed an Answer and
Response to the Second Amended Petition.
(#41, #42.)
Despite being represented by counsel, Petitioner continued to
file pro se motions, one of which asked that a criminal attorney be
appointed for state court proceedings and that the Federal Public
Defender be removed.
denied.
(#39.)
( #34.)
Petitioner's pro se motions were
At Petitioner's insistence, however, counsel moved
to withdraw and moved to strike the Second Amended Petition. 1
(#44.)
On November 9,
motion
to
2012,
withdraw.
1
the Court held a hearing on counsel's
Petitioner
was
advised
of
the
negative
In a declaration in support of the motion to withdraw,
counsel interpreted and conveyed what Petitioner was seeking, and
expressed counsel's belief that Petitioner's sentence has not
been executed as the sentencing judge had intended.
(#45, at
2.)
3 - OPINION AND ORDER
consequences that would result from proceeding pro se;
striking
the
meritorious
Second
claims
Amended
were
Petition,
presented
in
with
which
a
and from
potentially
request
that
the
proceedings be stayed to allow for exhaustion of state remedies.
Petitioner insisted that counsel be removed and that the Second
Amended Petition be stricken.
The Court granted the motion and
identified the amended petition filed on December 28, 2012, as the
operative pleading.
(#4 7.)
Respondent filed a Response to the operative pleading (#11),
identifying claims for relief pertaining to Parole Board action.
(#49,
at 3.)
Respondent argued Petitioner's state remedies were
unexhausted, and that the Court should dismiss the petition without
prejudice to Petitioner's right tore-file after his state judicial
review proceedings were exhausted.
On February 14,
2013,
(Id.
at 2-3.)
Petitioner filed a motion citing to
"F.R.C.P. Rule 48a)1)
"
(#53.)
Master on the basis
that his
He requested the appointment of a
petition was
originally filed
on
October 25, 2011, and that the Multnomah County Circuit Court had
not responded to two motions filed on August 2,
2011, and August
24, 2011, to set aside and vacate his conviction. 2
In the motion,
Petitioner
the
specifies:
"As
the
issue
is
not
of
following the Rules it is of the Judgment it self [sic]."
2
Board
not
(Id., at
Peti tioner' s citation to FRCP 4 8 (a) ( 1) is confusing.
Rule
48(a)
governs the number of jurors, does not have a subsection
(1), and does not pertain to the appointment of a Master.
4 - OPINION AND ORDER
2.)
He
later
Immediately
specifies,
Released
do
"This
[sic]
Petitioner
to
stated
is
fact
seeking
that
to
the
be
state
sentencing Guidelines under Matrix System were and are mandatory:
Due to Judgment becoming Illegal."
(Id.)
Based on the record to date,
Petitioner's motion
(#53)
is
understood to allege that a plea agreement prior to sentencing
specified that he would not be incarcerated for more than 24 years,
and that a
clerical error in the
judgment has
continued, and unlawful incarceration.
understood
to
allege
that
he
(Id.
has
filed
resulted in his
at 6.)
He is further
multiple
motions
in
Multnomah County Circuit Court seeking to have clerical errors in
his criminal judgment in "Case No. 84/02/30793" corrected, in order
that he be immediately released since he has been incarcerated past
the "set parole release date of May 29, 2003," but that his motions
have gone unanswered.
Discussion
The
( "AEDPA")
Anti-Terrorism
imposes
a
and
one-year
Effect
Death
statute
of
Penalty
Act
limitations
of
on
1996
habeas
corpus petitions filed by state prisoners in federal court.
u.s.c.
§
2244 (d) (1).
State
prisoners,
like
Petitioner,
28
whose
convictions became final prior to AEDPA's enactment, had a one-year
grace period in which to file their petitions.
States Dist.
Ct.
(Beeler),
128 F. 3d 1283,
Calderon v. United
1286
(9th Cir.
overruled in part on other grounds by Calderon v.
Dist.
Ct.
(Kelly),
163 F.3d 530,
5 - OPINION AND ORDER
540
(9th Cir.
1997),
United States
1998)
(en bane).
Thus,
where
the
conviction
was
final
before
the
April
1996
effective date of the Act, the petition or motion was to be filed
by April
2 4,
Patterson
v.
19 97,
in the
absence
251
Stewart,
of statutory tolling.
F.3d 1243,
1245-46
(9th Cir.
See
2001).
Under the AEDPA, the statute of limitations is tolled during the
pendency
of
any
"properly
filed
application
conviction or other collateral review."
The
statute
record
of
reveals
that
limitations
no
28
state
applicable
to
for
state
u.s.c.
§
proceedings
Petitioner,
post-
2244(d) (2).
tolled
and
the
that
a
petition challenging his 1984 conviction and sentence had to be
filed by April 24, 1997.
This
action
was
filed
expiration of
the AEDPA
circumstances,
equitable
( 14)
fourteen
limitation period.
tolling
may
apply
years
beyond
Under
exceptional
when
a
the
petitioner
establishes "(1) that he has been pursing his rights diligently,
and (2) that some extraordinary circumstances stood in his way[,]"
and prevented timely filing.
418
(2005);
( 2 010)
see also Holland v.
Florida,
408,
130 S.Ct. 2549, 2560-65
("extraordinary circumstances" requires more than "garden
variety"
neglect) .
Equitable
tolling
credible showing of actual innocence.
929,
544 U.S.
Pace v. DiGuglielmo,
934
(9th Cir. 2011).
may
Lee v.
also
apply
Lampert,
upon
a
653 F.3d
The Court finds nothing in the record
that suggests equitable tolling applies in this case.
An inmate's
ignorance of the law and lack of legal sophistication does not
warrant equitable tolling.
6 - OPINION AND ORDER
Rasberry v. Garcia, 448 F.3d 1150 (9th
Cir. 2006).
Therefore, to the extent Petitioner seeks to challenge
his 1984 conviction and sentence, the petition must dismissed as
untimely.
Parole Board Action
Petitioner asserts that he is not challenging Parole Board
action.
The Court attributes Petitioner's assertion to his lack of
familiarity with the separate functions of the State and Federal
court systems; with federal habeas proceedings; and to the legal
complexity of challenging the execution of a
federal court.
State sentence in
Former counsel's assessment that claims challenging
Parole Board action were the only potentially meritorious claims
was correct. 3
(#32, at 2.)
Respondent very liberally construed the operative pleading and
identified claims for relief that challenge Board action resulting
in Petitioner's continued incarceration.
Respondent argues that
these claims are unexhausted since judicial review of the Parole
Board action is pending in state court.
Respondent further argues
the petition should be dismissed without prejudice to Petitioner
raising these claims in a new habeas action after the
3
judicial
Unless an evidentiary hearing is required, the appointment
of counsel in federal habeas proceedings is discretionary.
See
Terrovona v. Kincheloe, 852 F.2d 424, 429 (9th Cir. 1988).
Petitioner's insistence on having appointed counsel withdraw was
counterproductive.
7 - OPINION AND ORDER
review proceedings
agrees.
are
final.
Based on the
record,
t he Court
4
Conclusion
Based on the foregoing,
with
prejudice
convict ion
and
as
to
life
the
the Amended Petition [11] is DENIED,
claims
sentence,
challenging
but
wi th out
Petitioner's
prejudice
1984
as
to
Petitioner's r igh t to raise claims cha llenging Parole Board actions
in a future habeas action.
IT IS SO ORDERED.
DATED this
~ day of July, 2013.
arco A.
ernandez
United States District Judge
4
Petitioner is reminded that State remedies must be
exhausted prior to seeking federa l habeas relief.
See 28 U.S.C.
§ 2254(b) (1) (A) and§ 2254(c).
8 - OPINION AND ORDER
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