Barteaux v. Premo
Filing
60
OPINION AND ORDER: For these reasons, the Court DENIES the Amended Petition for Writ of Habeas Corpus (ECF No. 25) and DISMISSES this action. The Court DENIES a certificate of appealability 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 12/11/2018 by Judge Anna J. Brown. (kms)
I
i
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MERVIN R. BARTEAUX,
Civil No.
6:16-cv-00787-BR
Petitioner,
OPINION AND ORDER
V.
JEFF PREMO, Superintendent,
Oregon State Penitentiary,
Respondent.
OLIVER W. LOEWY
Assistant Federal Public Defender
101 SW Main Street
Suite 1700
Portland, OR 97204
Attorney for Petitioner
ELLEN F. ROSENBLUM
Attorney General
KRISTEN E. BOYD
Senior Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301
Attorneys for Respondent
1 - OPINION AND ORDER -
BROWN, Senior Judge.
Petitioner, an inmate at the Oregon State Penitentiary, brings
this habeas corpus action pursuant to 28 U.S.C. § 2254.
reasons that follow,
For the
the Court DENIES the First Amended Petition
for Writ of Habeas Corpus
(ECF No. 25)
BACKGROUND
On
May
28,
2002,
a
Multnomah
County
grand
jury
indicted
Petitioner on two counts each of Sodomy in the First Degree and
Sexual Abuse in the First Degree, and six counts of Unlawful Sexual
Penetration
in
Petitioner's
the
sexual
First
acts
Degree.
against
The
his
charges
arose
developmentally
from
disabled
cousin over the course of a year.
In particular, Petitioner, then
married and nearly 61 years old,
would take his developmentally
disabled 46-year-old cousin out to fast food restaurants for lunch
and then engage in sexual acts with her in his van.
The victim
ultimately disclosed the sexual acts to her mother, and Petitioner
confessed.
outlined
Petitioner provided an apology letter to the victim and
the
nature
of
the
sexual
abuse
to
the
investigating
officer.
Counsel was appointed to
represent
Petitioner.
After two
judicial settlement conferences, and after Petitioner rejected the
prosecution's
offer
of
a
plea
agreement
for
eight
imprisonment, the case proceeded to a jury trial.
2002,
the
case
was
called
2 - OPINION AND ORDER -
for
trial.
At
the
years
of
On December 2,
start
of
the
proceeding,
court-appointed counsel alerted the trial judge that
Petitioner wanted to retain a different attorney to represent him.
Petitioner explained to the trial judge that he had been in touch
with the proposed retained counsel "a few mo_nths" earlier, but at
that time was financially unable to hire him.
financial
private
position,
attorney
however,
in
place
Petitioner
of
his
Now in a different
wished
to
retain
court-appointed
the
attorney.
Following a lengthy colloquy and an in-chambers meeting among the
trial
judge,
counsel,
and
Petitioner,
the
trial
nevertheless
proceeded with court-appointed counsel remaining on the case.
The sole issue at trial was whether the victim was capable of
consent under Oregon law.
The jury ultimately found Petitioner
guilty on all counts by a
10-2 vote.
consecutive
and
concurrent
sentences
The trial
totaling
judge imposed
180
months
of
imprisonment.
Petitioner filed a direct appeal, asserting as error the trial
judge's denial of Petitioner's motion for judgment of acquitt~l on
all counts based upon an argument that the victim was capable of
consent.
The Oregon Court of Appeals issued a written opinion
affirming the conviction and sentence.
App. 118, 157 P. 3d 225 (2007)
petition for review.
State v. Barteaux, 212 Or.
The Oregon Supreme Court denied a
State v. Barteaux, 343 Or. 160, 164 P.3d 1161
(2007) .
3 - OPINION AND ORDER -
I
,
Petitioner then filed a petition for
relief
("PCR").
Following an evidentiary hearing, the state PCR
trial judge denied relief.
reversed
and
state post-conviction
remanded
On appeal, the Oregon Court of Appeals
the
case
in
light
of
the
United
Supreme Court's then-recent decisions Lafler v. Cooper,
156 (2012) and Missouri v. Frye, 566 U.S. 134 (2012).
Mills,
250 Or. App.
767,
281 P. 3d 661
(2012).
States
566 U.S.
Barteaux v.
The state sought
reconsideration, which the Court of Appeals allowed, and the court
then adhered to its original opinion.
App.
313,
286 P.3d 1243
(2012).
Barteaux v. Mills,
On remand,
the PCR trial court
held another evidentiary hearing and again denied relief.
Exh. 146.
Resp.
On appeal, the Oregon Court of Appeals affirmed without
opinion and the Oregon Supreme Court denied review.
Taylor,
252 Or.
273 Or. App. 820,
362 P.3d 1215
(2015),
Barteaux v.
rev. denied,
358
Or. 550, 368 P.3d 25 (2016).
On May 5, 2016, Petitioner filed a prose Petition for Writ of
Habeas Corpus with this Court.
The Court appointed counsel, who
filed a First Amended Petition for Writ of Habeas Corpus alleging
the following claims for relief:
CLAIM I: Petitioner was denied his choice of counsel, in
violation of his right to counsel, as guaranteed by the
Sixth and Fourteenth Amendments.
CLAIM II:
The trial evidence was insufficient to prove
guilty beyond a reasonable doubt,
in violation of
Petitioner's Fourteenth Amendment right to due process.
CLAIM III: The "incapable of consent by reason of mental
defect" element of the offenses of conviction is vague in
4 - OPINION AND ORDER -
violation of Petitioner's Fourteenth Amendment right to
due process.
CLAIM
IV:
Petitioner's
convictions
violate
his
Fourteenth Amendment right to due process because he is
actually innocent of the offenses of the conviction.
CLAIM V:
Trial counsel rendered ineffective assistance
of counsel, in violation of Petitioner's Sixth and
Fourteenth Amendment right to effective assistance of
counsel.
A.
Trial counsel failed to adequately
Petitioner's right to counsel of choice.
assert
B. Direct appeal counsel failed to raise the claim
that the trial court had violated Petitioner's
Sixth
and
Fourteenth Amendment
right
to
be
represented by counsel of his choice.
C.
Trial counsel failed to adequately advise
Petitioner regarding the advantages, disadvantages,
and risks in rejecting or accepting the State's
plea offer.
D.
Trial and direct appeal counsel failed to
adequately assert and argue that the "incapable of
consent by reason of mental defect" element of the
offenses of conviction is unconstitutionally vague.
E.
Trial and direct appeal counsel failed to
adequately assert and argue that the trial evidence
was insufficient to prove guilt beyond a reasonable
doubt.
F.
Trial and direct appeal counsel failed to
adequately assert and argue that Petitioner's
conviction violated his Fourteenth Amendment right
to due process because he is actually innocent of
the offenses of conviction.
CLAIM VI:
Based exclusively on the written record, not
on hearing from witnesses at an evidentiary hearing, the
state circuit court judge in post-conviction proceedings
made credibility determinations adverse to Petitioner
(which were affirmed on appeal) in violation of his right
to due process guaranteed by the Fourteenth Amendment.
5 - OPINION AND ORDER -
I
'
CLAIM VII:
The cumulative effect of the prejudicial
errors made in Petitioner's case mandate that his
convictions and sentences be vacated.
Respondent argues that Petitioner procedurally defaulted the
grounds alleged in Claim I; Claim III; sub-parts A, B, D, and F, of
Claim V; Claim VI; and Claim VII.
of Claim V,
As to Claims II and sub-claim D
Respondent argues the state court decisions denying
relief on the merits are entitled to deference.
Petitioner
concedes
he
procedurally
defaulted
the
grounds
alleged in Claims I, III, and sub-parts A, D, and E of Claim V, but
argues the procedural default should be excused.
Petitioner also
argues that the state court decisions denying relief on Claim II
and
sub-part
D
of
Claim
V
are
not
entitled
to
deference.
Petitioner does not address the remaining claims for relief.
DISCUSSION
I.
Deference to State Court Decisions
A.
Legal Standards
An application for writ of habeas corpus shall not be granted
unless
adjudication of the
decision that was:
(1)
claim in state court resulted in
a
"contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the
Supreme
Court
of the
United States, "
or
( 2)
"based on
an
unreasonable determination of the facts in light of the evidence
presented in the State Court proceeding."
28 U.S.C. § 2254(d).
A
state court's findings of fact are .presumed correct and a habeas
6 - OPINION AND ORDER -
petition
bears
the
burden
of
rebutting
the
correctness by clear and convincing evidence.
§
presumption
of
See 28 U.S.C.
2254 (e) (1).
A
state
established
court
decision
precedent
if
the
is
"contrary
state
court
to
clearly
applies
a
rule
that
contradicts the governing law set forth in [the Supreme Court's]
cases" or "if the state court confronts a set of facts that are
materially distinguishable from a decision of [the Supreme] Court
and
nevertheless
precedent."
arrives
Williams
v.
at
a
result
Taylor,
different
529 U.S.
362,
from
[that]
405-06
(2000).
Under the "unreasonable application" clause, a federal habeas court
may grant relief only "if the state court identifies the correct
legal
principle
from
[the
Supreme
Court's]
decisions,
but
unreasonably applies that principle to the facts of the prisoner's
case."
Id. at 413.
The "unreasonable application" clause requires
the state court decision to be more than incorrect or erroneous.
Id.
at 410.
The state court's application of clearly established
law must be objectively unreasonable.
Id.
at 409.
"Determining whether a state court's decision resulted from an
unreasonable
there
be
legal
an opinion
court's reasoning."
Where
a
or
state
factual
from the
conclusion does
state court
not
require
explaining the
that
state
Harrington v. Richter, 562 U.S. 86, 98 (2011).
court's
decision
is
not
accompanied
by
an
explanation, "the habeas petitioner's burden still must be met by
7 - OPINION AND ORDER -
showing there was no reasonable basis for the state court to deny
relief."
Where, however, the highest state court decision on
Id.
the merits is not accompanied by reasons for its decision but a
lower state court's decision is so accompanied,
a federal habeas
court should "look through" the unexplained decision to the last
related state-court decision that provides a relevant rationale,
and presume the unexplained decision adopted the same reasoning.
Sellers, 138 S. Ct. 1188, 1192
Wilson v.
B.
(2018)
Claim I I - Insufficient Evidence
In
Claim
II,
to
prove
evidence
Specifically,
Petitioner
his
alleges
guilt
there
beyond
Petitioner alleges
the
insufficient
reasonable
a
state
was
failed to
doubt.
introduce
sufficient evidence to convince a rational juror that the victim
was incapable of consent by reason of mental defect.
Petitioner
argues that the prosecution's expert witness, Dr. Genevieve Arnaut,
provided insufficient testimony to support such a finding.
"[E]vidence is sufficient to support a conviction whenever,
'after
viewing
prosecution,
the
evidence
any rational
essential
elements
Parker
Matthewes,
v.
of
trier
the
567
in
of
crime
U.S.
(quoting Jackson v. Virginia,
v. Smith, 565 U.S. 1, 6 (2011)
light
fact
beyond
37,
most
43
favorable
could
a
have
to
the
found
the
reasonable
(2012)
doubt. '"
( emphasis
443 U.S. 307, 319 (1979));
added)
Cavazos
This standard "gives full play to
the responsibility of the trier of fact fairly to resolve conflicts
8 - OPINION AND ORDER -
I
I
in the testimony,
to weigh the evidence,
and to draw reasonable
inferences from basic facts to ultimate facts."
Jackson, 443 U.S.
at 319; see also Cavazos, 565 U.S. at 4 (holding that "[i]t is the
responsibility of the jury-not the court-to decide what conclusions
should be drawn from evidence admitted at trial") ; Long v. Johnson,
736 F.3d 891,
respect
the
896
(9th Cir.
exclusive
2013)
province
(holding that the court must
of
the
jury
to
determine
the
credibility of witnesses, resolve evidentiary conflicts, and draw
reasonable inferences from proven facts), cert. denied, 134 S. Ct.
2843
(2014).
"[A]
may
not
state-court decision rejecting a sufficiency challenge
be
overturned
on
federal
habeas
'decision was objectively unreasonable.'''
(quoting Cavazos, 565 U.S. at 4)
[review]
unless
the
Parker, 567 U.S~ at 43
This Court must resolve doubts
about the evidence in favor of the prosecution and examine the
state court decisions through the deferential lens of 28 U.S.C.
§
2254 (d).
See Long,
court owes a
736 F.3d at 896
"double dose"
(explaining that a habeas
of deference when reviewing a
state
court ruling on sufficiency of the evidence); Gonzales v. Gipson,
701 F.Appx.
558,
559
(9th Cir.
2017)
(same).
Under this doubly
deferential standard, to grant relief a court "must conclude that
the state court's determination that a rational jury could have
found that there was sufficient evidence of guilt, i.e., that each
required
element
was
proven
9 - OPINION AND ORDER -
beyond
a
reasonable
doubt,
was
objectively unreasonable."
Boyer v.
Belleque,
659 F.3d 957
(9th
Cir. 2011).
Each of the ten counts upon which Petitioner was convicted
included as an element of the crime that the victim was incapable
of consent by reason of mental defect.
Under Or.
Rev.
Stat.
§
163. 315 ( 1) (b) , " [a] person is considered incapable of consenting to
a
sexual
act
if
the
person
[m] en tally
is
defective."
"Mentally defective" is defined in Or. Rev. Stat. § 163.305(3) as
meaning "that a person suffers from a mental disease or defect that
renders
the
person
incapable
conduct of the person."
of
appraising
the
nature
of
the
As described by the Oregon Supreme Court:
[T]he question whether a person lacks the capacity to
consent by reason of mental defect turns on whether the
person is capable of j udg.ing or analyzing the worth,
significance, or socially accepted status of engaging in
particular sexual activity.
Put another way, the
question is whether the person is capable of assessing
the personal and social consequences of his or her
decision to engag~ in that activity.
State v. Reed, 339 Or. 239, 249, 118 P.3d 791
At trial,
(2005) . 1
the state offered the testimony of medical expert
Dr. Genevieve Arnaut to support allegations that the victim was not
capable
of
consent
by
reason
1
of
mental
defect.
Dr.
Arnaut
The interpretation and application of Oregon's law regarding
what it means to be "incapable of consent by reason of mental
defect" is a state-law question not subject to review by this
Court. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[i]t is
not the province of a federal habeas court to reexamine state-court
determinations on state-law questions); Mendez v. Small, 298 F.3d
1154, 1158 (9th Cir. 2002) (state courts have "the last word on the
interpretation of state law").
10 - OPINION AND ORDER -
testified that the victim had an IQ of 53,
bottom 0.1 percent of the population.
placing her in the
Dr. Arnaut found the victim
had limited vocabulary, difficulty understanding abstract concepts,
and limited problem-solving skills.
Overall,
Dr. Arnaut opined,
the victim's communication, daily living, and socialization skills
placed her in the bottom 0.3 percent of the population, and that
the victim's overall mental age was the equivalent of a six-yearold child.
Dr. Arnaut expressed her view on the victim's ability
to consent to sexual acts as follows:
My concern based upon the level of functioning that
I saw and something that I noted in my report is that I
was - it felt to me that she would be unable to come up
with complex or novel solutions to a problem.
So, for
example, she couldn't even rephrase something when I
wasn't understanding what she was telling me. Put her in
a more complex situation, [I have] concerns she would be
able to problem solve very well or even know there were
certain avenues open to her.
For example, if she felt
that someone was approaching her inappropriately, that
there might be protective services who would be available
to help her, I would not expect that she might know that.
So I would think her problem-solving skills were
relatively limited, as would be her verbal skills, in
dealing with the situation.
Another concern that I would have is based on my
reading of the literature in this area, which indicates
that indi victuals diagnosed with mental retardation or
disabling conditions are often particularly vulnerable to
individuals in the family, because they are trained over
a number of years to become dependent upon family members
and not to question what family members ask them to do
and have difficulty problem solving around those issues.
So I think she was doubly vulnerable
. because of
this being an alleged family situation as well as because
of her - the disabilities that were evidenced to me in
the evaluation.
11 - OPINION AND ORDER -
The Oregon Court of Appeals found Dr. Arnaut's testimony alone
was sufficient to support the jury's verdict.
As the Court of
Appeals explained:
Arnaut's testimony that the victim may not "even know
that there were certain avenues open to her" and that sh.e
was unlikely to "question what family members ask [her]
to do" supports the reasonable inference that the
victim's mental defect prevented her from understanding
that she could decline defendant's sexual advances.
Without such understanding, the victim was unable to
"exercise.
. judgment and.
. mak[e] choices based
on an understanding of the nature of [her] own conduct."
Barteaux,
212
Or.
App.
at
(alterations in original).
122
(quoting
Reed,
339 Or.
at
244)
The Court of Appeals concluded that "a
rational juror could have inferred that
[the victim]
lacked the
capacity to consent from Arnaut's testimony that
[the victim's]
mental defect prevented her from 'understand[ing]
. . how to say
no.'"
Id.
The Court of Appeals went on to note that, although Arnaut's
expert
testimony
verdict,
was
alone
sufficient
to
support
the
jury's
the state also introduced evidence of Petitioner's own
acknowledgment that he believed the victim lacked the capacity to
consent.
"Defendant's acknowledgment,
based on his interaction
with the victim, that she was not capable of consent lends further
support to the inference that the victim did not understand that
she
could
defendant."
choose
whether
to
engage
in
sexual
relations
with
Barteaux, 212 Or. App. at 123 (footnote omitted).
12 - OPINION AND ORDER -
Finally, the Oregon Court of Appeals addressed Petitioner's
contention that there was evidence from which the jury could have
reasonably inferred that the victim was capable of consenting to
sexual relations:
The existence of that evidence, however, does not affect
our analysis.
For instance, a reasonable juror could
infer from the victim's own testimony that she understood
the. moral implications of having sexual contact with
defendant.
See 339 Or. at 245, 118 P.3d 791.
As the
Supreme Court explained in Reed, "[t]he jury, however,
was free to reject her testimony and to rely on other
testimony and evidence relevant to its determination
whether the victim's mental defect had rendered her
incapable of consenting to sexual contact." Id. at 245,
118 P.3d 791.
Thus, here, we are concerned only with
whether there was evidence that supported the jury's
finding that the victim lacked the capacity to consent by
reason of her mental defect; we do not sit as factfinder
and choose between competing inferences.
Barteaux,
212 Or. App. at 124.
Having
carefully
reviewed
the
entire
record,
this
Court
concludes the Oregon Court of Appeals' decision was not objectively
unreasonable.
The Court
evidence
easily
could
notes
choose
a
rational
amongst
juror reviewing
competing
inferences
the
and
determine that the victim's mental defect rendered her incapable of
consenting to sexual contact.
That evidence addressed, among other
things, the victim's limited vocabulary, difficulty understanding
abstract concepts, and limited problem- solving skills placing her
in the bottom O.1 percent of the population with a mental ageequivalency of a six-year-old.
The jury was also able to assess
the victim's trial testimony rationally and to conclude from their
13 - OPINION AND ORDER -
observations of the victim that her limited level of executive
functioning and ability to express herself verbally.
They heard
the victim identify herself as "23" years of age, when in reality
she was 46; they heard that she can write her first and last name
and a few of her cats' names, but nothing else, and that she does
not know how to read; she lives at home with her mother, requires
care
in
her
daily
living
activities,
and
is
subject
to
a
guardianship.
Moreover, the jury heard that Petitioner told a police officer
that the victim was mentally challenged and that she could not
consent or could consent only "to a degree."
On cross-examination,
Petitioner agreed that he was the "adult" in the situation, and the
victim was the "child."
Finally, as the Oregon Court of Appeals found,
Dr. Arnaut's
testimony provided a clear nexus between the victim's disability
and her incapacity to appraise the nature of the sexual contact.
Because of the victim's disability and her familial status with
Petit~oner, the victim would be unable to consider her options.
Based on the record and viewing the evidence in the light most
favorable to the prosecution, the Court finds there was sufficient
evidence that
any rational trier
of
fact
cou.ld have
found the
essential elements of the crimes charged against Petitioner.
v. Borg, 982 F.2d 335, 338 (9th Cir. 1992).
Payne
Accordingly, the state
court decision denying relief on this claim was not an unreasonable
14 - OPINION AND ORDER -
application of clearly established federal law, and Petitioner is
not entitled to habeas relief.
D.
Ground V (C) - Ineffective
Advise on Plea Offer
In sub-part C of Ground V,
was
Assistance
for
Failure
Petitioner alleges trial counsel
ineffective when he failed to adequately advise
regarding the risks
offer.
to
Petitioner
and benefits of rejecting the state's plea
Petitioner presented this claim to the state PCR court,
which denied relief.
Under well-established Supreme Court precedent, the right to
the effective assistance of counsel extends to "the plea-bargaining
process," including the decision whether to accept or reject a plea
offer.
Lafler,
Lockhart,
566 U.S.
474 U.S.
52,
at 162; Frye,
58-59
566 U.S.
(1985).
at 145; Hill v.
To establish ineffective
assistance, a petitioner must show that "counsel's performance was
deficient," and that counsel's "deficient performance prejudiced
the defense."
Stricklandv.
Washington,
466U.S. 668,687 (1994).
To show deficient performance, a petitioner "must show that
counsel's
representations
reasonableness."
Id.
at
fell
688.
below
The
an
objective
question
is
standard
not
of
whether
counsel's advice was correct, but "whether that advice was within
the range of competence demanded of attorneys in criminal cases."
McMann
v.
Richardson,
397
U.S.
759,
771
(1970)
To establish
prejudice in the context of a plea claim, a petitioner "must show
the outcome of the plea process would have been different with
15 - OPINION AND ORDER -
competent advice."
Lafler,
566 U.S. at 163.
rejects the state's plea offer,
Where a petitioner
"he must show that,
but for the
ineffective advice of counsel, there is a reasonable probability he
would have accepted the plea offer and received a sentence less
severe
than
the
F.Supp.3d 1186,
sentence
1191
(D.
imposed."
Or.
2018)
Crawford
v.
(citing Lafler,
Fleming,
323
566 U.S.
at
PCR proceeding on remand from the Oregon Court
of
164)
In the
Appeals,
Petitioner presented an affidavit stating as follows:
I
believe
that
I
attended
two
settlement
conferences.
One was before Judge Frantz, I do not
remember the name of the other judge.
The Judges told
me, about a trial, that it would more than likely make
the length of time that I might serve longer, I recall a
proposed sentence of 8 years for a negotiated settlement.
At the time of the 8-year offer, [trial counsel] had
given me absolutely no indication as to what my prospects
were should I go to trial.
He neither encouraged nor
discouraged me to participate in negotiations.
He said
nothing one way or the other.
I had no basis for
evaluating whether the offer was good or bad. He told me
that it was up to me.
He did not ask whether I had
questions. He did not ask if he I [sic] would accept the
offer.
Resp. Exh. 133, p. 6.
The state countered with an affidavit from Petitioner's trial
counsel, who stated:
I certainly advised [Petitioner] that for each
separate sexual act consecutive sentences could be
imposed. I told him that I agreed with Judge Frantz that
he would get more time than the pretrial offer due to
repeated contact and that he was a middle-aged man having
sexual contact with his developmentally delayed relative.
In fact, the judge only had to run one count of sodomy
16 - OPINION AND ORDER -
partially consecutive to reach the total of 180 months.
His assertion that he did not know about the possibility
of consecutive sentences is simply not true.
Judge
Frantz was very careful to explain this concept to him
and so did I.
I did not tell him that convictions were
certain.
Al though petitioner admitted to much of the
sexual contact I felt that there was a legitimate issue
as to whether the victim has the mental capacity to
consent.
Although it is often possible to predict the
outcome of a trial for a client, petitioner's case could
have gone either way. However, he was told it was a oneissue case and if the jury believed the victim could not
legally consent he would be convicted of all, or at least
most, of the charges. I did not urge him to go to trial.
Judge Frantz and I both urged caution. Petitioner often
referred to his health issues and felt he would not
survive the offered prison term.
I believe this
consideration and not wanting to go to prison as a sex
offender caused him to choose trial.
Resp.
from
Exh.
the
143, pp.
prosecutor,
1-2.
who
The state also submitted an affidavit
described
the
settlement
conferences
before the criminal trial:
Petitioner was advised of his chances at trial,
including the probable outcome of. trial, by three
different judges:
presiding criminal judge Julie E.
Frantz on November 19, 2002, Judge Jean Maurer on
November 26, 2002, and Judge Janice Wilson on November
29, 2002. On November 19, 2002, I extended a plea offer
of 100 months at a judicial settlement conference with
Judge Frantz. On November 26, 2002, we attempted a lastminute settlement with Judge Maurer. I told [Petitioner]
that the 100-month plea offer would expire at noon that
day.
[Petitioner] started crying and said that he would
die in prison if he took the plea offer. He said he has
to go to trial.
On November 27, 2002, my notes reflect
[ Petitioner's] ongoing refusal to commit to the plea
offer. On November 29, 2002, this case was sent to Judge
Wilson
for
trial.
Judge Wilson tried to
talk
[ Petitioner] into accepting the plea, but [ Petitioner]
wanted a postponement to hire his own attorney.
Judge
Wilson denied that request.
On November 29, I told
[Petitioner] to cut his losses now or he would face
serious time if convicted.
He opted for trial.
17 - OPINION AND ORDER -
In other words, [ Petitioner] was given ample warning
about what he was facing by three different judges. He
knew the risks of proceeding to trial, but consistently
refused to take the plea offer and exercised his right to
trial.
Resp. Exh. 116, pp. 1-2.
The
PCR
trial
judge
considered
and
ineffective assistance of counsel claim.
rejected
Petitioner's
At the PCR hearing, the
trial judge addressed the claim:
[HJ aving conducted hundreds, for sure, of these
settlement conferences as a judge and knowing as I do the
experience and demeanor of [the] three judges with whom
[Petitioner] discussed his case, I feel confident that
these judges did not attempt to assert the role of a·
defense attorney, but rather that they would have
explained to him what the - the issues before him were.
And based upon, again, my assessment of the evidence
that's been produced by both parties, this was a oneissue case; and that is, whether or not there was a
prospect that this girl, victim - well, maybe she was a
young woman.
I can't even remember her age, but I said
- I saw part of the transcript of her - of the direct
examination with her.
And as best I could tell from that degree of
transcript, she's pretty seriously limited.
And if
anybody in the world knew the extent of that limitation,
it was [Petitioner].
He was a family member.
He was familiar with her.
He was the one quite clearly taking advantage of her.
And so I - I do not believe - and I believe petitioner
has not proven - that these judges set about to try to
explain the facts of the case and what the most likely
outcome of those facts might be, but rather explained to
him the risk that if, in fact, the jurors determine that
this young girl was sufficiently disabled as to be
incapacitated and incapable of giving consent, that he
was in a very bad situation because there were multiple
acts over a period of time.
18 - OPINION AND ORDER -
He would've been in a position of trust with this
girl.
And - as a member of the family.
And that the
risk of consecutive sentences was almost inevitable, if
not multiple consecutive sentences.
And so in my opinion these judges provided ample
opportunity, which [trial counsel] took advantage of to
explain to
[Petitioner]
that you' re
rolling
some
prettying [sic] big dice here and it's probably not a
good idea.
That's what I believe [trial counsel] said to him,
more or less.
And my opinion that [Petitioner] at the
age he was - he's about five years older than I am - and
I can appreciate that if I was his age at the time this
case was headed and I was having to make a decision and
the - and the prosecutor was saying, "Well, I' 11 agree to
eight years," that he might very well think, we1'1, gosh,
you know, I might not survive eight years, so I might as
well see what happens with trial, and really probably
didn't want to believe that having lived probably a
pretty good life otherwise that he was going to end his
life in such a horrible fashion and decided to take a
direct chance at trial.
* * *
So I find that - that the advice was appropriately
given.
It was within ABA standards.
[Petitioner] simply chose to take his chances and
hope for the best and it did not turn out well for him.
And as a result I find he has not proven his case.
I find no error was committed and I find that any
error that might have been committed was ameliorated by
the information provided by not one, but apparently three
different judges who gave [Petitioner] an opportunity to
change his mind.
Resp.
Exh.
145,
pp.
25-27.
The PCR judge subsequently entered
judgment against Petitioner, explaining his decision as follows:
The court finds that Petitioner has not proven that
any errors were committed by trial counsel.
Nor has
Petitioner proven that there is a reasonable probability
19 - OPINION AND ORDER -
that even if any error alleged was
result would have been different.
proven,
that
the
* * *
The chief issue before this court is whether trial
counsel failed to advise Petitioner to take an offer from
the DA of an 8-year sentence.
Petitioner acknowledges
that he participated in settlement discussions with two,
seasoned trial judges.
Since he admits that evidence
against him was extremely strong, the only point of such
discussions was to help Petitioner understand the risk of
a sentence longer than 8 years.
The court finds
Petitioner's affidavit, exhibit 4, is not believable. On
the other hand, the court finds credible the affidavit of
trial counsel, exhibit 115.
The court finds that
Petitioner knew he was exposed to Measure 11 &
consecutive sentences.
Petitioner's assertions to the
contrary are not credible.
Counsel for Petitioner
alleges that he has already proven that trial counsel's
performance was deficient.
Trial Memo, p. 8.
This is
not correct. No error has been proven.
Resp. Exh. 146, pp. 2-3.
In light of the evidence before the PCR trial court,
this
Court concludes the decision to deny relief on Petitioner's claim
of ineffective assistance of counsel was not contrary to nor an
unreasonable
application
of
Strickland.
The
PCR
trial
court
reasonably concluded that trial counsel did not commit any errors
and that,
in any event,
there was no reasonable probability that
the result would have been different.
Accordingly, the PCR court's
decision is entitled to deference, and Petitioner is not entitled
to habeas relief.
20 - OPINION AND ORDER -
II.
Cause and Prejudice to Excuse Procedurally Defaulted Claims
Under Martinez v. Ryan
As noted,
Petitioner concedes he procedurally defaulted the
grounds alleged in Claim I, Claim III, and sub-parts A, D, and E of
Claim V, but he contends his procedural default should be excused
under Martinez v.
Ryan,
566 U.S.
1, 132 S.
Ct.
1309
(2012).
In
Martinez, the Supreme Court held that "[i]nadequate assistance of
counsel
at
initial
review collateral proceedings may establish
cause for a prisoner's procedural default of a claim of ineffective
assistance of counsel at trial."
Id. at 1351.
To satisfy Martinez
a habeas petitioner must show the following:
(1)
the underlying
ineffective assistance of counsel claim is substantial;
petitioner had ineffective
proceedings;
(3)
counsel during the
state
( 2)
the
collateral
the state collateral proceeding was the initial
review proceeding for the claim;
and
(4)
state law required the
petitioner to bring the claim in the initial review proceeding.
Trevino v. Thaler,
569 us 413, 133 S. Ct. 1911, 1919 (2013).
In Oregon, the state post-conviction procedure is the initial
review proceeding for claims of ineffective assistance of trial
counsel, and Oregon law requires that ineffective assistance claims
be raised at post-conviction.
550 P.2d 758, 758
of
counsel
claims
State v. Robinson, 25 Or. App. 675,
(Or. App. 1976)
may
only
be
(holding ineffective assistance
resolved
in
a
post-conviction
proceeding); Sexton v. Cozner, 679 F.3d 1150, 1159 (9th Cir. 2012)
21 - OPINION AND ORDER -
(noting Oregon requires ineffective assistance claims to be raised
in a collateral proceeding), cert. denied, 133 S. Ct. 863
(2013).
The analysis, therefore, centers on prongs one and two.
Under the first Martinez requirement, a petitioner must come
forward with facts to demonstrate that his underlying ineffective
assistance claim is "substantial," or has "some merit."
132
S.
Ct.
To establish a
at 1318.
petitioner
must
generally
show
claim is
that
trial
Martinez,
"substantial 1
counsel
n
a
rendered
deficient performance and that petitioner suffered prejudice as a
Finnel v.
result of counsel's errors.
Belleque,
Civ. No.
cv-00828-BR, 2015 WL 225817, at *3 (D. Or. Jan. 15, 2015)
the
"substantiali ty"
review,
analysis
under
Martinez
is
not
3:06-
Because
a
merits
but more akin to whether a certificate of appealability
should issue, a habeas petitioner has satisfied the first prong of
Martinez
if
he
has
shown
that
the
merits
of
an
ineffective
assistance claim would be "debatable among jurists of reason" or
the issues are deserving of further pursuit.
Detrich v. Ryan, 740
F.3d 1237,
(citing Miller-El
Cockrell,
(2014) .
1245
537
(9th Cir.
U.S.
322
2013)
(2003))
1
(en bane)
cert.
denied,
134
S.
Ct.
v.
2662
Stated inversely, a claim is "insubstantial" if "it does
not have any merit .
or is wholly without factual support."
Martinez, 132 S. Ct. at 1319.
Under the second Martinez prong, a petitioner must show that
he either had no counsel on the initial post-conviction review, or
22 - OPINION AND ORDER -
that
PCR
counsel
Strickland."
Id.
"ineffective
was
at 1318.
under
the
standards
of
Thus, a petitioner must show that PCR
counsel's performance in the initial-review collateral proceeding
fell below constitutional standards.
Id. at 1319.
Not every error
by PCR counsel will constitute "cause;" indeed, PCR counsel "is not
necessarily ineffective for failing to raise even a nonfrivolous
claim."
Sexton,. 67 9 F. 3d at 115 7.
To show prejudice, a petitioner
must show that if PCR counsel had not performed deficiently,
result of the PCR proceeding would have been different.
v. Ryan, 745 F.3d 362, 376-77
grounds by McKinney v. Ryan,
(9th Cir. 2014),
813 F.3d 798
Clabourne
overruled on other
(9th Cir.
determination "is necessarily connected to
the
This
2015)
strength of the
argument that trial counsel's assistance was ineffective."
377-78.
the
Id. at
The court may address either inquiry first, as resolution
of one prong may obviate the need to address the other.
Martinez,
'
132 S. Ct. at 1319.
A.
Claims I and III - Denial
Impermissibly Vague Statute
In Claim I,
of
Choice
of
Counsel
and
Petitioner alleges the trial court violated his
Sixth Amendment right to choice of counsel by denying Petitioner a
continuance
to
retain
a
different
attorney.
In
Claim
III,
Petitioner alleged the trial judge violated his due process rights
because an element of his charged offenses,
that the victim was
"incapable of consent by reason of mental defect," is impermissibly
23 - OPINION AND ORDER -
vague. Petitioner did not assign either of these claims as error on
direct appeal as required under Oregon law. 2
excuse
these
assistance
of
trial
PCR
error
claims
counsel.
To
on
the
the
Petitioner cannot
basis
extent
the
of
ineffective
Supreme
Court
recognized in Martinez that ineffective assistance of PCR counsel
may be cause to excuse a procedural default, "it can only excuse a
claim of ineffective assistance of trial counsel, not a claim of
trial court error."
Nash v. Nooth, Civ. No. 2:14-cv-02002-MA, 2017
WL 3083414, at *4 (D. Or. July 18, 2017)
at 9)
(citing Martinez, 566 U.S.
(emphasis added); see also Davila v. Davis, 137 S. Ct. 2058,
2067 (2017)
(declining to extend Martinez beyond its narrow scope).
Accordingly,
Petitioner
cannot
obtain
habeas
corpus
relief
on
Claims I and III.
B.
Claim V(A) - Ineffective Assistance of Trial Counsel for
Failure to Assert Petitioner's Right to Counsel
In sub-part A of Ground V,
failed
to
choice.
adequately
In
his
assert
state
PCR
Petitioner alleges trial counsel
Petitioner's
petition,
right
to
Petitioner
counsel
alleged
of
the
following claims:
C.
Petitioner's trial attorney failed to make [an]
a de qua te record to preserve petitioner's rights
under the Constitutions of Oregon and of the United
States, including his right to be represented by
retained counsel of [his] choice.
2
In Oregon, most trial errors must be raised by direct appeal
to the Oregon Court of Appeals.
Kellotat v. Cupp, 719 F.2d 1027,
1030 (9th Cir. 1983).
24 - OPINION AND ORDER -
D.
Petitioner's trial attorney failed to represent
petitioner relative to the issue of whether his
trial should be delayed so that petitioner could be
represented by retained counsel of his own choice.
E.
Petitioner's trial attorney failed to disclose to
the trial
judge information that would have
necessarily revealed that he was not prepared for
trial,
and that petitioner's trial should be
continued so that petitioner could be represented
by retained counsel of his own choice.
At that
time, petitioner's trial attorney was subject to a
conflict of interest with petitioner, such that
disclosure of information by petitioner's trial
attorney would undermine his own legal interests.
Resp. Exh. 113, p. 15.
In his PCR appeal, however, Petitioner did
not raise these claims.
Consequently, Petitioner's default of the
claim alleged in sub-part A of Claim V did not occur at the PCR
trial stage, and Martinez is not available to excuse the default.
See Martinez,
extend
to
occasion
132 S. Ct.
attorney
the
at 1315
errors
state
allows
in
a
(holding the exception does not
any
proceeding
prisoner
ineffective assistance of trial counsel);
2 0 6 6-67
to
beyond
raise
Davila,
a
the
first
claim
137 S.
Ct.
of
at
( explaining Martinez applies only to initial-review PCR
proceedings, and not appeals from such proceedings).
Accordingly,
Petitioner is not entitled to habeas relief on the claim alleged in
sub-part A of Claim V.
C.
Claim V(D)
Ineffective Assistance of Trial and
Appellate Counsel for Failure to Challenge Statute as
Impermissibly Vague
Petitioner alleges trial counsel was ineffective in failing to
challenge the statutes under which Petitioner was convicted as
25 - OPINION AND ORDER -
impermissibly vague.
Petitioner argues that "[t]he Oregon Supreme
Court's clarification respecting the meaning of
'mental defect'
leaves that meaning unconstitutionally vague.
in
an
effort
to
clarify
what
the
Specifically,
relevant
statute's
'appraisal'
[State v. J Reed holds that
'appraising' means,
term
must
constitute an exercise of judgment and the making of choices based
on
an
understanding
of
the
nature
of
one's
own
conduct."
Petitioner's Brief in Support~ p. 13 (internal citation omitted).
Assuming that the Oregon Supreme Court's
rendered
the
statute
impermissibly
vague,
decision in Reed
Petitioner
cannot
establish that post-conviction counsel was ineffective in failing
to assert a claim that trial counsel should have challenged the
statute on this basis because Reed was not decided until two years
after Petitioner's trial.
Post-conviction counsel could reasonably
have determined at the time that assigning error to the actions of
trial counsel based upon a decision that was not announced until
after
trial
counsel's
representation would be meri tless.
606 Fed. Appx. 380 (9th Cir. 2015)
Williams v. Nooth,
See
(reasonable
PCR counsel would know that the court "does not mandate prescience,
only objectively reasonable advice under prevailing professional
norms")
(citing Sophanthavong v. Palmateer, 378 F.3d 859, 870 (9th
Cir. 2004),
Martinez
cert.
denied,
exception
doe
136 S. Ct. 1528
not
apply
assistance of appellate counsel.
26 - OPINION AND ORDER -
to
Davila,
(2016)
claims
Moreover, the
of
ineffective
137 S. Ct. at 2062-63.
Accordingly,
Petitioner's
procedural
default
cannot
be
excused
under Martinez because he cannot establish that PCR counsel was
ineffective,
and Petitioner is not entitled to habeas relief on
sub-part D of Claim V.
D.
In
Claim V (E) - Ineffective Assistance of Trial and
Appellate Counsel for Failure to Adequately Assert
Insufficiency of the Evidence
sub-part
E of
Ground
V,
Petitioner
asserts
trial
and
appellate counsel failed to adequately assert and argue that the
trial evidence was insufficient to prove guilt beyond a reasonable
doubt.
3
As
discussed
above,
however,
Petitioner
has
not
established that there was insufficient evidence to support his
conviction.
his
claim
Accordingly, Petitioner cannot excuse the default of
that
trial
through Martinez,
counsel
provided
ineffective
assistance
as it is not a substantial claim and,
in aI}y
event, PCR trial counsel would have recognized that trial counsel
did
adequately
assert
and
argue
that
the
trial
evidence
insufficient to prove guilty beyond a reasonable doubt.
above,
Petitioner
counsel,
as
cannot
Martinez does
excuse
not
assistance of appellate counsel.
the
default
extend to
Id.
of
claims
his
of
was
As noted
appellate
ineffective
As such, Petitioner is not
entitled to relief on sub-part E of Claim V.
3
In fact, as discussed above, trial counsel made this very
objection, appellate counsel raised the claim as a preserved
assignment of error on direct appeal, and the Oregon Court of
Appeals issued a written decision on the claim.
27 - OPINION AND ORDER -
III.
Claims Not Addressed by Petitioner
As noted above,
Petitioner does not
address the
claims in his Brief in Support of Amended Petition.
remaining
Additionally,
Petitioner does not attempt to refute Respondent's argument that
these
claims
Accordingly,
do
not
entitle
Petitioner
has
him
not
to
habeas
sustained
corpus
his
relief.
burden
of
demonstrating why he is entitled to relief on his unargued claims.
See Lampert v. Blodgett,
393 F.3d 943,
970 n.
16 (9th Cir. 2004)
(petitioner bears burden of proving his case); Davis v. Woodford,
384 F.3d 628, 638
(9th Cir. 2003)
(same). Nevertheless, the Court
has reviewed Petitioner 1 s unargued claims and is satisfied that
Petitioner
is
not
entitled
to
relief
on
the
remaining
claims
alleged in his Petition for Writ of Habeas Corpus.
CONCLUSION
For these reasons, the Court DENIES the Amended Petition for
Writ of Habeas Corpus (ECF No. 25) and DISMISSES this action.
The
Court DENIES a certificate of appealability as Petitioner has not
made a substantial showing of the denial of a constitutional right.
See 28 U.S.C.
§
2253 (c) (2).
IT IS SO ORDERED.
DATED this_\ _ day o f ~ , 2018.
_
United States
28 - OPINION AND ORDER -
District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?