Young v. Premo

Filing 57

OPINION AND ORDER. Petitioner's request for an evidentiary hearing is denied, and the Petition for Writ of Habeas Corpus 2 is dismissed because it is untimely. The court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253 (c) (2). Signed on 6/23/2014 by Judge Marco A. Hernandez. (gw)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON
MATTHEW ROBERT YOUNG,
Case No . 6:13-cv-00525-HZ
Petitioner,
v.

JEFF PREMO,
OPINION AND ORDER
Respondent.
Thomas J. Hester,
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
Ellen F. Rosenblum, Attorney General
Nick M. Kallstrom, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent

1 - OPINION AND ORDER

HERNANDEZ, District Judge.
Petitioner brings
U.S.C.

§

this

habeas

corpus

case

pursuant

to

28

2254 challenging the legality of his state-court robbery

and burglary convictions.

Because petitioner failed to timely file

this action, and as he is not entitled to equitable tolling, the
Petition for Writ of Habeas Corpus (#2) is dismissed.
BACKGROUND

In May 1999, petitioner pleaded guilty in the Multnomah County
Circuit Court to two counts of Robbery in the First Degree and one
count of Burglary in the First Degree.

Respondent's Exhibit 101.

Petitioner did not take a direct appeal,
conviction relief ("PCR").
the

Mul tnomah

1

nor did he file for post-

Instead, in 2004 he filed a motion in

County Circuit

Court

asking

the

trial

court

to

correct his sentence in light of the Supreme Court's decision in
Blakely v. Washington,

127.

542 U.S. 296 (2004) .

Respondent's Exhibit

He also asked the court to appoint counsel to assist him with

that motion.

Respondent's Exhibit 126.

However, he subsequently

moved to voluntarily dismiss his sentencing challenge in March
Respondent's Exhibits 128 & 129.

2005.

In April 2005, petitioner wrote his trial attorney asking for
a copy of his sentencing transcripts.
The following month,

Respondent's Exhibit 131.

petitioner filed a motion asking the trial

1

It is not unusual for a defendant who pleads guilty in
Oregon not to take a direct appeal because ORS 138.050 limits
direct appeals arising out of guilty pleas only to claims that
the sentence imposed was excessive or cruel and unusual.
2 - OPINION AND ORDER

court

compel

to

his

trial

provide

Exhibit

Respondent's

transcripts.

sentencing

to

attorney

him

130.

with
In

his

June,

counsel informed petitioner that he did not have his sentencing
transcripts,

but

offered

assistance

in

obtaining

them.

Respondent's Exhibit 131, pp. 2-6.
In

April

2006,

petitioner

filed

another

motion

in

the

Multnomah County Circuit Court seeking to amend his sentence based
upon the Supreme Court's Blakely decision.
132.

The trial court denied the motion.

Respondent's Exhibit

Respondent's Exhibit 133.

In May 2006, petitioner wrote a letter to the Oregon Court of
Appeals prompting that court to inform him that no appeal had been
filed on his behalf.

Petitioner's Exhibit C.

Almost two years later,
corpus relief.
to believe

He alleged, in part, that his attorney had led him

that

he would file

Exhibit 134, p. 3.
voluntarily

petitioner filed for state habeas

a

direct

appeal.

Respondent's

The trial court denied relief, and petitioner

dismissed

his

subsequent

appeal

because

he

was

"informed that it may in fact be possible for appellant to file a
petition for post-conviction relief even though appellant is past
the 2 year time limit.

II

Respondent's Exhibit 137.

In March 2009, petitioner filed a PCR action.
Exhibit 102.
untimely

and

Respondent's

The PCR trial court found the PCR Petition to be
granted

Respondent's Exhibit 117.

the

State's

summary

judgment

motion.

The Oregon Court of Appeals affirmed the

lower court's decision without opinion,
3 - OPINION AND ORDER

and the Oregon Supreme

Young v. Nooth,

Court denied review.

250 Or. App. 396, 282 P.3d

30, rev. denied, 353 Or. 104, 295 P.3d 51 (2012).
On March 27, 2013, petitioner filed his federal Petition for
Writ of Habeas Corpus.

The parties agree that petitioner breached

the applicable one-year statute of limitations by approximately 13
years, but petitioner argues he is entitled to equitable tolling
because:
after

(1)

he

his trial attorney failed to file a direct appeal

allegedly

told

petitioner

he

would

do

so;

and

(2) petitioner has a long history of mental illness that made it
impossible

for

him

to

comply

with

the

one-year

statute

of

limitations.
DISCUSSION

The Antiterrorism and Effective Death Penalty Act

( "AEDPA")

provides that a one-year statute of limitations applies to federal
habeas

corpus

2244 (d) (1).
statute

of

actions

filed

by

state

prisoners.

28

u.s.c.

Equitable tolling is available to toll the one-year
limitations

in

limited

Fl o rida, 130 S.Ct. 2549, 2560 (2010).

circumstances.

Holland

v.

A litigant seeking to invoke

equitable tolling must establish: (1) that he has been pursuing his
rights diligently;
prevented

him

and

from

(2)

that some extraordinary circumstance

timely

DiGuglielmo, 544 U.S. 408, 418

filing
(2005)

his

petition.

Pace

v.

A petitioner who fails to

file a timely petition due to his own lack of diligence is not
entitled to equitable tolling.

4 - OPINION AND ORDER

Tillema v. Long, 253 F.3d 494, 504

(9th Cir. 2001).

Petitioner bears the burden of showing that this

"extraordinary exclusion" should apply to him. Miranda v . Castro ,
292 F.3d 1063, 1065 (9th Cir. 2002)

I.

Failure to File Direct Appeal

Petitioner first contends that the limitations period should
be equitably tolled because he believed his lawyer had initiated an
appeal on his behalf.

Neglect by an attorney does not necessarily

justify equitable tolling.
651-52

(2010)

c i rcumstance)

(excusable

See Holland v. Fl o rida,

560 U.S. 631,

is

extraordinary

neglect

not

an

Assuming the misconduct petitioner alleges might

arise to the level of an extraordinary circumstance,

the record

belies his assertion that he expected counsel to file an appeal on
his behalf .
None of petitioner's correspondence with counsel shows that he
believed he had an appeal pending. 2

See Respondent's Exhibit 131.

In fact, when petitioner wrote to his trial attorney asking for a
copy of his sentencing transcript, counsel not only informed him
that he did not have that portion of the file, but made it clear
that he was unaware of petitioner's appellate status, if any: "If
y ou filed an appeal,

your lawyer for the appeal may have it."

2

Petitioner asserts that the State conceded during his
state habeas action that he instructed his attorney to f i le a
notice of an appeal, but he takes this statement out of context.
The State was not conceding this point, but was rather
summarizing the facts as alleged by petitioner.
Petitioner's
Exhibit D, p. 2.
5 - OPINION AND ORDER

I d at 2.

In response to that correspondence, petitioner wrote two

more letters to counsel wherein he never suggested in any way that
he had expected counsel to file an appeal on his behalf.
5.

Instead,

transcript.

Id at 4-

he continued only to seek a copy of his sentencing
It is apparent from this record that petitioner did

not believe his trial attorney was representing him in a pending
appeal.
Moreover, when petitioner sought to alter his sentence based
upon Blakely, he asked the court to appoint an attorney to assist
him.
trial

He cannot credibly assert in this proceeding that he believed
counsel

continued to actively represent him in a

direct

appeal when he obviously felt he was unrepresented during the time
period in question.

Where petitioner did not believe he was being

represented by counsel,

it

logically

follows

that

he

did not

believe he had a pending appeal filed by that same attorney.
But

even

assuming

petitioner

had

been misled

by

counsel

regarding the status of his appeal, he did not act diligently in
pursuing his rights.

Not only did petitioner fail to contact his

attorney for more than five years after his sentencing, but even
after the Oregon Court of Appeals informed him that it had no
record of his appeal, petitioner waited almost two years before he
took· any action to

challenge his

convictions.

This

does

constitute sufficient diligence to justify equitable tolling.

Ill
Ill
6 - OPINION AND ORDER

not

II.

Mental Illness

Petitioner also maintains that he has a longstanding diagnosis
of schizophrenia which required him to take heavy doses of various
medications.

He claims that his mental illness, combined with the

heavy doses of medication the illness required, made it impossible
for

him to

file

this

case

in a

timely manner.

In order for

equitable tolling to apply, petitioner must show that his mental
impairment was an extraordinary circumstance beyond his control
which rendered him unable to file a habeas corpus petition,
that he was diligent in pursuing his claims.
F . 3d 1 0 9 2 ,

1 0 9 9 - 11 0 0

and

Bills v . Clark , 628

( 9 th C i r . 2 0 1 0 ) .

As documented in the Background of this Opinion, petitioner
was able to file numerous documents in the state courts wherein he
attempted to alter his sentence,

seek state habeas review,

and

apply for PCR. 3

Where petitioner was able to repeatedly apply to

the

relief

courts

for

as

well

as

communicate

with

his

trial

attorney while under the influence of his schizophrenia and the
medications it required, it is not credible for him to assert that
he was completely unable to file a federal habeas corpus petition.
Moreover, as discussed above, the procedural history of this case
reveals

that

petitioner

did

not

diligently

pursue

his

rights

despite his demonstrated ability to articulate his claims.
3

For

Despite the assistance of appointed counsel, petitioner
has been active in this federal habeas action as well, filing his
own pro se supplemental supporting memorandum as an attachment to
counsel's brief.
7 - OPINION AND ORDER

these

reasons,

equitable

tolling

is

not

appropriate,

and

the

Petition is dismissed on the basis that it is untimely.
III. Evidentiary Hearing

Petitioner asks the court to conduct an evidentiary hearing if
it

feels

that

additional

facts

determination on the issue of
record

is

clear

regarding

are

necessary

equitable tolling.

petitioner's

ability

to

make

a

Because the
to

formulate

arguments as well as his lack of diligence, an evidentiary hearing
is neither necessary nor in the interests of judicial economy.
Schriro v. Landrigan, 127 S.Ct. 1933, 1940 (2007)

in the

case precludes habeas

relief,

a

See

(where the record

district

court

is not

required to hold an evidentiary hearing)
CONCLUSION

Petitioner's request for an evidentiary hearing is denied, and
the Petition for Writ of Habeas Corpus (#2) is dismissed because it
is

untimely.

The

Appealability
substantial

on

court

the

showing

basis

of

pursuant to 28 U.S.C.

declines

§

the

that
denial

to

petitioner
of

2253 (c) (2).

IT IS SO ORDERED.
DATED this

2.1

day of June, 2014.

8 - OPINION AND ORDER

issue

a

a

Certificate
has

not

constitutional

made

of
a

right