Jacob v. Persson

Filing 73

ORDER & OPINION Petitioner's third amended habeas petition 68 is DENIED, and this proceeding is DISMISSED, with prejudice. Petitioner's request for an evidentiary hearing is DENIED. Because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability is DENIED. See 28 U.S.C. § 2253(c) (2). (See 10 page opinion for more information) (Mailed copy to petitioner) Signed on 1/20/15 by Judge Malcolm F. Marsh. (dsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ANDRE RAMON JACOB,
Petitioner,

v.
ROB PERSSON, Superintendent,
Oregon State Correctional
Institution,
Respondent.
ANDRE RAMON JACOB
SID #6135746
Oregon State Correctional Institution
3405 Deer Park Drive S.E.
Salem, Oregon 97310-9385
Petitioner, Pro Se
ELLEN F. ROSENBLUM
Attorney General
SAMUEL A. KUBERNICK
Assistant Attorney General
Department of Justice
1162 Court Street N.E.
Salem, Oregon 97301-4096
Attorneys for Respondent

MARSH, Judge

1 -- OPINION AND ORDER

6:12-cv-01680-MA
OPINION AND ORDER

Petitioner,

an

inmate

at

the

Oregon

State

Correctional

Institution, brings this habeas corpus proceeding pursuant to 28

u.s.c.

§

In two grounds for relief, petitioner challenges

2254.

the constitutionality of a 30-year gun minimum sentence imposed
pursuant to a 2002 state robbery conviction, on the basis that it
is premised upon prior state

convictions which are

illegal or

unconstitutional for a variety of reasons.
Respondent moves the court to deny habeas relief on the basis
that the Supreme Court's holding in Lackawanna Cnty. Dist. Attorney

v.

Coss,

532

collaterally

U.S.

394

attacking

precludes

(2001)'

his

prior

state

petitioner

convictions

proceeding and, therefore, habeas relief is not warranted.

in

from
this

For the

reasons set forth below, petitioner's third amended habeas petition
(#68) is DENIED, and this proceeding is DISMISSED, with prejudice.
BACKGROUND

Petitioner

has

been

convicted

three

times

involving the use or threatened use of firearms.

of

felonies

On December 2,

1982, petitioner was convicted after a jury trial of Robbery in the
First Degree with a Firearm (two counts),

Burglary in the First

Degree, and Kidnapping in the Second Degree (two counts) .
Petition (#1), 12/2/82 Transcript (TR) at 161-62.

Habeas

At a subsequent

sentencing hearing held on January 21, 1983, the Honorable John J.
Murchison orally imposed a five-year gun minimum sentence.
Petition

(#1),

1/21/83 Transcript at 168

2 -- OPINION AND ORDER

&

170-72.

Habeas

The· written

judgment signed by Judge Murchison on January 25 1 1983, provides as
follows:

"[T]he

[petitioner)

court

FINDS

beyond

a

reasonable

doubt

that

used a firearm during the commission of Count II."

Resp. Exh. 101 at 33-34; Pet.'s Memo. in Support (#71), Exh. D-1.
During the time between the 1982 guilty verdict and the 1983
sentencing, the Oregon Supreme Court held that the subsections of
ORS 161.610 (1981)

(permitting the court, as opposed to a jury, to

make the necessary factual finding for the imposition of a gun
minimum), violated a defendant's right to a jury under the Oregon
Constitution.
773 (1982).

See State v. Wedge,

293 Or. 598,

607-08,

652 P.2d

Despite this ruling, petitioner did not subsequently

challenge the constitutionality of his sentence under Wedge
otherwise)
proceeding.

on

direct

State v.

appeal
Jacob,

or

in

344 Or.

a

state

181, 184

&

(or

post-conviction
192, 180 P.3d 6

(2008).
In 1991, petitioner pled guilty to Robbery in the First Degree
with a Firearm, and Attempted Assault in the First Degree.
Exh,

101.

Resp.

The trial court imposed a 10-year gun minimum on the

robbery conviction.

Id.; Jacob, 344 Or. at 184 & 187 n.7.

the 1991 criminal proceeding,

During

petitioner did not challenge the

lawfulness of his 1982 conviction or sentence during trial,
direct appeal, or in a state post-conviction proceeding.
344 Or. at 184.

3 -- OPINION AND ORDER

on

Jacob,

In 2002, petitioner was convicted of two counts of Robbery in
the First Degree with a Firearm following a stipulated facts trial.
Resp. Exh. 101.
a

30-year

(2001) . 1

gun

The prosecution requested that defendant receive
minimum

sentence

pursuant

to

ORS

161.610(4) (c)

Instead, the trial court imposed a 10-year gun minimum,

opining that petitioner's 1983. gun-minimum sentence should not be
taken into account because the factual finding necessary for the
minimum sentence
Jacob,

was

made by the

trial

judge and not

a

jury.

344 Or. at 184; Resp. Exh. 106 at 22;

On appeal,

however,

the Oregon Supreme Court

reversed the

trial court and remanded for resentencing, opining that state law
precluded petitioner from collaterally attacking the legality of
his 1983 sentence.
Oregon

Supreme

Jacob,

Court

344 Or. at 188-92.

held

that,

even

if

Additionally, the
petitioner

could

collaterally attack his 1983 sentence, the alleged invalidity of
1

ORS 161. 610 (4) (c) (2001) provides that the "minimum terms
of imprisonment for felonies having as an element the defendant's
use or threatened use of a firearm in the commission of the crime
shall be as follows:
(a) Except as provided in subsection (5) of this section,
upon the first conviction for such felony, five years * *

*

(b) Upon conviction for such felony committed after
punishment pursuant to paragraph (a) of this subsection, 10
years * * *.
(c) Upon conviction for such felony committed after
imprisonment pursuant to paragraph (b) of this subsection,
30 years."
4 -- OPINION AND ORDER

his 1983 sentence would be of no assistance to him because "the
terms of ORS 161. 610 (4) (c) required the imposition of a 30-year gun
minimum sentence because defendant was convicted of a gun crime
after

he

had

been

imprisoned pursuant

to

ORS

161. 610 ( 4) (b) . "

Jacob, 344 Or. at 193 (emphasis added).
On remand,
sentence

the trial court imposed the 30-year gun minimum

pursuant

to

ORS

161. 610 ( 4) ( c) .

Resp.

Exh.

101.

Petitioner's appeal from resentencing was summarily dismissed, and
Resp. Exhs. 116, 119 & 125

the Oregon Supreme Court denied review.

& 128.

Petitioner did not seek state post-conviction relief.
DISCUSSION

In Lackawanna Cnty. Dist. Attorney v. Coss, the United States
Supreme Court held that "once a state conviction is no longer open
to

direct or collateral

attack in

its

own

right,

because

the

defendant failed to pursue those remedies while they were available
(or because the defendant did so unsuccessfully),
may be regarded as conclusively valid.''

the conviction

532 U.S. at 403.

Hence,

" [ i] f that conviction is later used to enhance a criminal sentence,
the defendant generally may not challenge the enhanced sentence
through a

petition under

§

2254

on the

ground that

conviction was unconstitutionally obtained."

Id.

the prior

at 403-04.

In so holding, the Supreme Court recognized an exception to
the rule when there is a complete failure to appoint counsel in
violation

of

the

Sixth

5 -- OPINION AND ORDER

Amendment.

Id.

at

404.

The

Court

recognized that

other exceptions may exist when the

defendant

cannot be faulted for failing to obtain timely review of the prior
conviction.
a

state

Id. at 405.

court,

without

Examples suggested by the Court are (1)
justification,

refuses

to

rule

constitutional claim that was properly presented to it;
after the expiration of the time to seek review,

on
or

a
(2)

the defendant

obtains compelling evidence that he is actually innocent of the
crime for which he was convicted,
uncovere·d in a timely manner.
In Durbin v.

and which he could not have

Id. at 405-06.

People of the State of Calif.,

720 F.3d 1095,

1098-99 (9th Cir. 2013), the Ninth Circuit expressly adopted the
two exceptions suggested by the Supreme Court in Lackawanna Cnty.
The

Ninth Circuit

explained that,

in those

circumstances,

the

federal habeas proceeding is effectively the first and only forum
for review of the prior conviction.
(quoting Lackawanna Cnty.,
petitioner'~.habeas

720 F. 3d at 1099

Durbin,

532 U.S. at 406).

As discussed below,

claims and arguments do not satisfy any of the

exceptions recognized by the Supreme Court and Ninth Circuit.
• Exception One: Failure to Appoint Counsel

Petitioner has failed to demonstrate that there was a complete
failure

to

proceedings.

appoint

counsel

Although

in

his

petitioner

1982

or

suggests

evidentiary hearing," was held on January 24,

1991
that

1983,

criminal
a

"ghost

outside the

presence of petitioner, defense counsel, and the prosecutor, there
6 -- OPINION AND ORDER

is nothing in the record to support th.e conclusion that such a
hearing actually occurred.

The state record demonstrates that

defense counsel was present at the December, 1982 jury trial, and
the subsequent sentencing hearing.

See Resp. 101 at 33-34 (Mult.

Cty. Case No. 82-10-37684 Judgment); Habeas Petition (#1), 12/2/82
TR at 162-64; 1/21/83 TR at 170-71.
I also reject petitioner's contention that the appointment of
former Judge Ellen Rosenblum as a judge pro tempore in his 1991
criminal case, without the requisite circuit court oath of office,
produced a

"jurisdictional defect of such magnitude that it is

greater than mere denial of counsel."

At the time of trial, Ellen

Rosenblum was a district court judge.

Oregon Blue Book 1989-90 at

165.

At that time, Oregon law required district judges to take the

same oath of office as circuit court judges.
(1989).

Former ORS 1. 615 (2)

(1989),

district

judge appointed to

serve as

See Former ORS 46.620

in turn,

did not require a

judge pro

tempo re of the

circuit court to take an additional oath of office.
In sum, under then-existing Oregon law, former District Court
Judge Rosenblum took the same oath of office as a circuit judge.
Accordingly, her alleged failure to file an additional oath upon
her appointment as judge pro tempore of the circuit court was of no
import under state law.

Further, petitioner has made no showing

that Judge Rosenblum's failure to take a

circuit court oath of

office at the time she was appointed as judge pro tempore of the
7 -- OPINION AND ORDER

circuit court resulted in the violation of his rights under the
federal constitution.

(D.Or.

29,

Nov.

Cf. Harrington v. Hill, 2005 WL 3244325, *2

2005)

(oath of

office

taken by Oregon

judges

omitting phrase prescribed by state constitution does not violate
U.S. Constitution); Brazille v. Hill,
(explaining that the U.S.
judges

be

bound

by

Cons ti tut ion requires only that state

an

Finally,

Constitution).

02-1696-MA Order (#11) at 3

oath

or

affirmation

to

support

the

even if it is assumed that Rosenblum's

oath was absent or otherwise constitutionally deficient, I reject
petitioner's assertion that such a defect is commensurate with, or
of a "greater magnitude" than, the denial of counsel.
• Exception Two: State Court Refuses
Presented Constitutional Claim

to Rule

on

Properly

Petitioner has made no showing that an Oregon court, without
justification, refused to rule on a constitutional claim properly
before it.

In this regard, petitioner's assertion that the state

court decision in State v.
(2006),

aff'd.,

344 Or.

petitioner's

30-year

unreasonable"

and

181

gun

Jacob,

(2008)

208 Or. App.

145 P.3d 212

(reviewing the imposition of

minimum

premised

62,

upon

sentence),

is

"fraudulent

"objectively
facts

and

misinformation," does not satisfy this exception because petitioner

8 -- OPINION AND ORDER

is attacking the correctness of the state appellate decision, not
the state courts' refusal to render a decision.

2

• Exception Three: Discovery of Compelling Evidence of Actual
Innocence That Could Not Have Been Uncovered· in a Timely
Manner
Petitioner has made no showing that there is compelling new
evidence demonstrating that he is actually innocent of his 1982 or
1991 convictions, which could not have been uncovered earlier.
this

regard,

the

court

notes

that

on

direct

appeal

In
from

resentencing, petitioner argued that the affidavit of Inmate Earl
Douglas Wilkins

(attesting that petitioner did not have

a

gun

during the 1982 robbery) proves that he is actually innocent of the
1983 gun minimum.

Resp. Exh. 118, Exh. A.

is neither new nor compelling.

This evidence, however,

Petitioner previously conceded that

this evidence could have. been presented at trial.
at 40-41.
it

is

Resp. Exh. 116

Moreover, it is not compelling in light of the fact that

offered 16 years

after

the

offense by an

inmate who

serving a life sentence without the possibility of parole.

is
See

Wilkins v. Premo, 6:11-cv-889-KI, Petition (#2) & Amended Petition

(#30).
Petitioner offers no other basis to support a conclusion that
he cannot be faulted for failing to obtain timely review of his
2

It is worthy of note that it is not the province of a
federal habeas court to reexamine the ruling of a state court on
a state law issue.
Wilson v. Corcoran, 131 S.Ct. 13, 16 (2010).

9 -- OPINION AND ORDER

prior

1982

and

1991

convictions

and

gun-minimum

sentences.

Accordingly, habeas relief is not warranted.
CONCLUSION

Based on the

foregoing,

petitioner's third amended habeas

petition (#68) is DENIED, and this proceeding is DISMISSED, with
prejudice.
DENIED.
the

Pe ti ti oner's request

for an evidentiary hearing is

Because petitioner has not made a substantial showing of

denial

of

a

constitutional

appealability is DENIED.

right,

See 28 U.S.C.

§

a

certificate

2253(c) (2).

IT IS SO ORDERED.
DATED this

;:(O

day of January, 2015.

Malcolm F. Marsh
United States District Judge

10 -- OPINION AND ORDER

of