Whitaker v. Premo

Filing 51

OPINION AND ORDER: The Amended Petition for Writ of Habeas Corpus 24 is denied. 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). (See 9-page opinion for more information.) Signed on 1/14/19 by Judge Marco A. Hernandez. (dsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
STEPHEN JASON WHITAKER,
Case No. 6:16-cv-00479-HZ
Petitioner,
OPINION AND ORDER

v.
JEFF PREMO,
Respondent.
Oliver W. Loewy
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
Ellen F. Rosenblum, Attorney General
Kristen E. Boyd, 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.

2254

§

this

habeas

challenging

the

corpus

legality

case pursuant
of

his

to

28

state-court

convictions for Manslaughter, Reckless Driving, and Driving Under
the Influence of Intoxicants.

For the reasons that follow,

the

Amended Petition for Writ of Habeas Corpus (#24) is denied.
BACKGROUND

After spending the day drinking alcohol,

Petitioner drove

his 1972 Winnebago RV at excessive speeds northbound on I-5 near
the

Creswell

side

at

area.

speeds

of

Petitioner veered erratically
80

miles

per

hour

despite

from side to

heavy

traffic,

changing lanes abruptly. He ultimately struck the freeway median
with such force
chassis,

that body of the RV became unmoored from its

flew through the air, and crushed the back seat area of

another vehicle traveling in the

southbound lanes of I-5.

impact "shredded" the rear left side of the vehicle,
six-year-old

girl.

John

Ratliff,

Petitioner's

The

killing a

friend

who

was

riding with him in the RV, was also killed in the crash.
Petitioner had been operating the RV without a license, and
he admitted to consuming a great deal of alcohol and ingesting
prescription medications
blood

draw

at

the

prior

hospital

to

getting behind the wheel.

following

the

Petitioner's blood-alcohol content to be . 24.
these facts,

accident

A

showed

Based upon all of

the Lane County Grand Jury indicted Petitioner on

two counts of Manslaughter in the First Degree,

two counts of

Assault in the Third Degree, and one count each of Driving Under

2 - OPINION AND ORDER

the Influence of Intoxicants and Reckless Driving.

Respondent's

Exhibit 102.
Petitioner

elected

Manslaughter counts,

to

enter

a

Driving Under the

guilty

plea

Influence,

to

both

and Reckless

Driving.

In exchange, the State agreed to drop the two counts of

Assault.

It also agreed that Petitioner could argue for a total

Manslaughter sentence of 10 years, and that any sentence from the
DUI and Reckless Driving convictions would run concurrently with
the

sentence

subsequently

imposed
imposed

for

Manslaughter.

partially

concurrent

The

trial

sentences

court
on

the

Manslaughter convictions resulting in a total prison sentence of
200 months. Respondent's Exhibit 103, pp. 33-34.
Petitioner did not take a direct appeal, but filed for postconviction relief

("PCR")

in Marion County where the PCR court

denied relief on his claims. Respondent's Exhibit 134. The Oregon
Court

of

Appeals

affirmed

the

PCR

court's

decision

without

opinion, and the Oregon Supreme Court denied review. Whitaker v.
Premo, 268 Or. App. 854, 344 P.3d 1149, rev. denied, 357 Or. 415,

356 P.3d 638 (2015).
Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on
March 21,

2016,

and amended his Petition on January 20,

2017 to

raise various due process and ineffective assistance of counsel
claims.
Petition

Respondent asks the Court to deny relief on the Amended
because

Petitioner

procedurally defaulted

claims, and the default is not excused.

Ill
Ill
3 - OPINION AND ORDER

all

of

his

DISCUSSION

A petitioner seeking habeas relief must exhaust his claims
by fairly presenting them to the state's highest court,
through

a

direct

appeal

or

collateral

proceedings,

either

before

a

federal court will consider the merits of habeas corpus claims
pursuant to 28 U.S.C.
(1982).

The

§ 2254.

exhaustion

doctrine

designed

is

509,

519

avoid

the

455 U.S.

Lundy,

Rose v.

"to

unnecessary friction between the federal and state court systems
that would result if a lower federal court upset a state court
conviction

without

first

giving

the

state

court

system

an

opportunity to correct its own constitutional errors." Freiser v.
Rodriguez, 411 U.S. 475, 490 (1973).

In this case, Petitioner did not take a direct appeal, thus
he did not fairly present any of his claims to Oregon's courts in
that fashion. During his PCR proceedings, he presented the Oregon
Supreme Court with state-law issues, state procedural issues, and
issues that were not properly in his Petition for Review because
he

had

not

presented

them

the

Oregon

140,

141.

Petitioner did not fairly

to

the

Oregon

Supreme

Court

therefore procedurally defaulted all of his

claims.

Petitioner

Respondent's Exhibits 138,
present

any

federal

to

claims

Court

of

Appeals.

and

does not argue otherwise, and instead contends that he has cause
to

excuse

attorney

his
was

default.

Specifically,

ineffective

for

failing

he
to

argues
raise

that
a

his

variety

PCR
of

ineffective assistance of trial counsel claims.
Traditionally,
used

to

establish

the performance of PCR counsel could not be
cause

and prejudice

4 - OPINION AND ORDER

to

excuse

a

procedural

Coleman v.

default.

constitutes
( 1987)

cause);

(there

is

Pennsylvania

no

proceeding). However,
the

Supreme

Court

v.

constitutional

(1991)

(only

counsel

assistance

ineffective

constitutionally

the

501 U.S. 722, 753-54

Thompson,

of

481

U.S.

551,

556

counsel

in a

PCR

Finley,

right

to

in Martinez v. Ryan, 566 U.S. 1, 4 (2012),

found

"it

necessary

to

modify

the

unqualified statement in Coleman that an attorney's ignorance or
inadvertence in a postconviction proceeding does not qualify as
cause to excuse a procedural default."
"Inadequate assistance of
proceedings

may

counsel

at

cause

for

establish

Id at

8.

It concluded,

initial-review collateral
a

prisoner's

procedural

default of a claim of ineffective assistance at trial." Id.
In order to establish cause to excuse his default pursuant
to Martinez, Petitioner must show first that his underlying claim
of ineffective assistance of trial counsel is substantial insofar
as it has "some merit." Next,
attorney was

ineffective
466 U.S.

Washington,

"[T]o fulfill this
that

PCR

under the
(1984)

standards

of

Strickland v.

for failing to raise the claim.

requirement, a petitioner must not only show

counsel

prejudiced

668

he must demonstrate that his PCR

performed

petitioner,

deficiently,

i.e.,

that

but

there

also

was

a

that

this

reasonable

probability that, absent the deficient performance, the result of
the

post-conviction

Runningeagle

v.

proceedings

Ryan,

825

F.3d

would
970,

have

been

982

different."

(9 th

Cir.

2017)

(quotation omitted). Such a finding, of course, would necessarily
require

the

Court

to

conclude

5 - OPINION AND ORDER

that

there

is

a

reasonable

probability

that

the

trial-level

ineffective

assistance

claim

would have succeeded had it been raised. Id.
Petitioner argues that the element of Manslaughter in the
First

Degree

requiring

"extreme

indifference

to

the

value

human life" in Oregon is so vague as to violate due process.

of
He

believes that PCR counsel should have faulted trial counsel for
not

raising the

issue.

However,

the record reveals that trial

counsel was prepared to make this argument had the case proceeded
to trial.

Respondent's Exhibit 132,

p.

26.

As such,

the Court

cannot conclude that PCR counsel omitted a substantial claim of
ineffective assistance of trial counsel.
Petitioner next
right

to

due

claims

process,

that

and

the

trial

trial
counsel

violations, when the trial court failed to:
support consecutive sentences;

(2)

crimes;

Petitioner

and

(3)

ensure

that

court

violated his

overlooked

these

(1) make findings to

find a factual basis for his
was

afforded

a

plea

agreement on par with other cases in the State. Petitioner killed
two

victims,

which

obviously

supported

consecutive

sentences

under Oregon law. See ORS 137.123(5) (b). The prosecutor provided
a detailed factual basis to support the plea in this case, thus
any objection would not have benefitted the defense. Respondent's
Exhibit 103,
process

pp.

7-12.

While Petitioner believes he has a due

right to be afforded a plea offer equal to defendants

convicted of Manslaughter in other Oregon cases, that position is
not

tenable

bargain."

where

"there

Weatherford

Accordingly,

PCR

v.

counsel's

6 - OPINION AND ORDER

is

no

Bursey,

constitutional
429

performance

U.S.
did

right

545,
not

561
fall

to

plea

(1977).
below

an

objective standard of reasonableness when he declined to include
these claims.
Although Petitioner claims that his PCR attorney omitted a
claim that Petitioner did not enter a knowing or voluntary plea
based upon trial counsel's shortcomings, Petitioner concedes that
"each claim or some,

broader,

related claim does appear in the

state post-conviction petition." Sur-reply (#50), p. 6. Although
he faults

PCR counsel for not providing sufficient argument to

support the claims, Martinez does not instruct district courts to
engage

in

a

separate

analysis

of

whether

counsel argued a particular claim.

or

Instead,

how

strenuously

it speaks only to

whether a PCR attorney failed to present a substantial claim of
ineffective assistance of trial counsel.
at

5,

12

(the

proper

formulation

of

See Martinez,

the

issue

is

566 U.S.

"whether

federal habeas court may excuse a procedural default

a

. when

the claim was not properly presented in state court due to an
attorney's

( "To

errors 11 ) ;

a

present

claim

of

ineffective

assistance at trial in accordance with the State's procedures,
then,

a

prisoner

prisoner's
particular

likely

an

effective

inability to present a
concern

when

assistance of counsel.")
In

needs

this

case,

the

attorney.");

claim of trial

claim

is

one

error

of

("A

is

ineffective

(bold added) .

PCR

counsel

presented

Petitioner's

claims

regarding the voluntariness of his plea to the PCR court,
trial

attorney

developed
provided

for

spoke

these

to

purposes

Petitioner

of

with

of
a

7 - OPINION AND ORDER

the

issues
PCR

hearing,

during

proceeding,
and the

a
the

his

deposition
PCR

PCR court

court
issued

Findings

of

Fact

and

Conclusions

of

Law

that

specifically

addressed the voluntariness issue. Respondent's Exhibits 132-133,
135

pp.

43-54.

Where

PCR

counsel

presented

the

issue

of

the

knowing and voluntary nature of the plea in the context of an
ineffective assistance of counsel claim, Martinez does not excuse
Petitioner's default.
generally,

More

it

is

Petitioner

for

difficult

to

demonstrate prejudice as to any of his ineffective assistance of
counsel claims in light of the uncontroverted facts of this case
as

well

as

his

sentencing

exposure

at

trial. 1

Had

Petitioner

proceeded to trial, the State would have presented evidence that
a motorist passing the scene and who happened to be an emergency
medical

technician

something

he

told

"heard
the

a

grand

Respondent's Exhibit 103, pp.

bloodcurdling
jury

"will

scream"

forever

and

haunt

saw
him."

9-10. The mother of the dead six-

year-old girl was "wailing at the left-rear side of her vehicle"
. preventing her

while her husband "was lying on top of her

from going to the left-rear passenger side of the car where their
daughter had obviously been sitting." Id at 10,
court correctly advised him,
trial.

No attorney

I

can

"This was

imagine

wanted to take this case to trial .

who

not a
is

21. As the PCR
case to take to

competent would have

this was a loser at trial

and you were going to be found responsible and the consequences
then were going to be bad." Respondent's Exhibit 133, pp. 31-32.

1 Petitioner estimates his exposure at trial would have been 260 months. Surreply (#50), p. 9.

8 - OPINION AND ORDER

Petitioner's remaining claims include his assertion that he
was denied the ability to be present during a specific hearing in
his PCR action,

but alleged errors in the state PCR process are

not addressable as independent grounds for relief through habeas
corpus petitions.

Ortiz v.

cert. denied 526 U.S.

1123

Stewart,

149

F.3d 923,

939

(1999); Franzen v. Brinkman,

(1998),
877 F.2d

26 (9th Cir. 1989), cert. denied, 493 U.S. 1012 (1989). The Court
finds Petitioner's cumulative error claim does not entitle him to
relief,

and that he has not sustained his burden of proof as to

the claims he has not argued.

For all of these reasons,

habeas

corpus relief is not appropriate.
CONCLUSION

For the reasons identified above,
Writ

of

Habeas

Corpus

( #24)

is

the Amended Petition for

denied.

The

Court

declines

to

issue a Certificate of Appealability on the basis that petitioner
has

not

made

a

substantial

showing

of

constitutional right pursuant to 28 U.S.C.

§

the

denial

of

2253(c)(2).

IT IS SO ORDERED.
DATED this

_J:{_

day of January, 2019.

A~jf1~ff:kandez

United States District Judge

9 - OPINION AND ORDER

a