Opinion
No. CV 03-55-JO.
June 7, 2004
Anthony D. Bornstein, Assistant Federal Public Defender, Portland, Oregon, Attorney for Petitioner.
Hardy Myers, Attorney General, Lynn David Larsen, Assistant Attorney General, Salem, Oregon, Attorneys for Respondent.
OPINION AND ORDER
Petitioner Stuart Lee Boyd, an inmate at the Oregon State Penitentiary, brings this habeas corpus petition (#2) pursuant to 28 U.S.C. § 2254.
BACKGROUND
On January 30, 1997, petitioner was indicted for one count of Attempted Murder, one count of Assault in the First Degree, and one count of Robbery in the First Degree.
Petitioner was indicted for one count of Sodomy which was dismissed prior to trial.
On January 22, 1997, petitioner and Jerry Smith, his co-defendant and cousin, were staying at the apartment of Alexia Boyd, petitioner's sister. TR 149. Josie Gomez lived in the apartment next door to petitioner's apartment. TR 225. Wendy Streit, a friend of Gomez, was staying with Gomez that night. Id. Doug Dumond and Jody Bogosian were standing outside in the parking lot of the apartment complex that night working on a pickup truck. TR 174-75.
Petitioner and Smith had been drinking heavily during the afternoon hours. TR 151. Sometime that evening, Tom Delong, the victim, started walking from a store across the street from the apartment complex to the front of the apartment complex where Dumond and Bogosian were standing. TR 175. Delong was intoxicated. TR 198. Petitioner was standing in front of the apartment near Dumond and Bogosian when Delong walked up to them. TR 175. Petitioner asked Dumond and Bogosian if they knew Delong. TR 179. They replied that they did not know Delong. Dumond testified that petitioner stated, "Maybe I should go kick his ass or something." TR 180. Dumond testified that petitioner walked up to Delong and invited him to the apartment for a drink. TR 181. Petitioner did not know Delong before that evening. TR 200.
Co-defendant Jerry Smith testified at trial against petitioner pursuant to a plea agreement. TR 162. Smith testified that he had fallen asleep on the couch in the apartment, and that he remembered being "woke up from the sounds of some ruckus going on. I got up. I got my shoes on. And to the left, over toward the kitchen, there was some kicking going on, and there was blood all over, and I had asked my cousin to stop what he was doing. . . . My cousin was kicking a man [Delong] that was on the ground, on the side." TR 156-57. Smith testified that he told petitioner to stop kicking Delong, and they "picked him up to try to help him, get some help." TR 158. Smith testified that he cut his finger on glass lying on the kitchen floor when bending down to pick up Delong. TR 159. Smith testified that he did not cause any injury to Delong at any time that evening. TR 160.
Wendy Streit testified at trial that petitioner and Delong were in the back bedroom in the apartment when she came to Boyd's apartment. TR 228. Streit testified that Smith was sleeping on the couch. TR 227. Inside the bedroom, petitioner told Streit that he was "going to roll [Delong]." TR 234. Streit testified that petitioner jumped on Delong's back and punched Delong in the back of the head; that she left the apartment; and that she returned later after hearing more fighting. TR 235-39. Streit testified that she looked through a sliding glass door and saw petitioner standing over Delong with a broken bottle. TR 240. She testified that Delong was sitting in a kitchen chair covered in blood. TR 239.
During the cross-examination, defense counsel asked Streit: "Now, isn't it true that Stuart said, you said, `Jerry is beating up this guy. Call an ambulance'?" Streit replied, "Yeah. That was after we had called the police, and Stuart walked out of the apartment and said that Jerry had just — Jerry had just beat him up. I don't remember his exact words, but `Call an ambulance. He's dying.'" TR 253-54.
After Streit's testimony regarding this statement, the State moved to introduce four of petitioner's prior convictions pursuant to Rule 806 of the Oregon Evidence Code and State v. Dishman, 148 Or. App. 404, 939 P.2d 1172 (1997). TR 255-57. The State argued that defense "counsel has elicited hearsay as to what her client has said, I'm entitled to impeach those statements, just as if he had taken the stand, under Rule 806." TR 256. Defense counsel objected to the introduction of petitioner's prior convictions on the grounds that the prejudicial effect of the convictions far outweigh their probative value, and that admission of this evidence would force petitioner to testify when he had a right not to testify. TR 258-59. The trial court overruled the objection of defense counsel and allowed the convictions to be received into evidence. The court stated:
Well, it's clear to me . . . that 806 allows the prior convictions to come in, assuming that they meet all the criteria of 609. And I believe that that testimony was [elicited], the self-serving testimony, denial of any wrongdoing, was elicited by the defendant. And so, as a result, I think this falls squarely within the Dishman case and will allow the prior convictions to come in.
TR 260. The court admitted certified copies of petitioner's prior convictions for Burglary in the First Degree, Felon in Possession of a Firearm, Felony Driving while Revoked, and Failure to Appear in the First Degree. TR 264-65.
After the police arrived, they searched for petitioner and found him approximately ten houses down from the apartment complex, lying under a bush. TR 47-48. A police officer testified that petitioner's clothes appeared to have blood on them. TR 48.
Prior to trial, petitioner was held in the Washington County Jail. Daniel Scoggins, a jail inmate, testified at trial that petitioner "told me that him and his cousin had been drinking all day and they had met this guy and was drinking with him and they took him to his sister-in-law's house, and his cousin and him was deciding whether to roll this guy." TR 97. Petitioner told Scoggins that he did not remember what had happened that evening and can only remember waking up in the bushes three blocks from the scene. TR 98.
The jury found petitioner not guilty of Attempted Murder and guilty of Assault in the First Degree and Robbery in the First Degree. Respondent's Exhibit 101, p. 3. The verdict was split 10-2 on the assault conviction and was unanimous on the robbery conviction. The court sentenced petitioner under Or. Rev. Stat. § 137.700 (Measure 11) to 90 months of imprisonment on each count, to be served consecutively, and three years of post-prison supervision. Id. at 3-4.
Petitioner filed a direct appeal challenging only his sentence. Petitioner claimed that Measure 11 was not constitutional because it violated the republican form of government and equal protection. Respondent's Exhibit 103. The Oregon Court of Appeals affirmed from the bench. Respondent's Exhibit 107. The Oregon Supreme Court denied review. Respondent's Exhibit 106.
Petitioner filed a pro se petition for post-conviction relief. Respondent's Exhibit 108. Petitioner alleged that his trial counsel and his appellate counsel were ineffective in a number of respects, which are similar to the claims alleged in grounds two through fourteen of this federal habeas petition. The post-conviction relief court denied all of petitioner's claims. The postconviction relief court found that petitioner was not denied effective assistance of counsel, and that petitioner had not met his burden of proof for post-conviction relief. Respondent's Exhibit 115. The post-conviction relief court adopted the Findings of Fact, Conclusions of Law submitted by respondent, including the following:
Trial counsel was not ineffective when she elicited hearsay statements from the state's witnesses. Petitioner voluntarily chose not to testify in light of his criminal history and his complete lack of memory regarding the crime. The hearsay statements that counsel elicited from the state's witnesses allowed counsel the opportunity to submit exculpatory evidence on behalf of petitioner. This was not error on behalf of counsel.
Respondent's Exhibit 115, p. 4. The post-conviction relief court entered judgment against petitioner on November 16, 2001. Respondent's Exhibit 116.
On January 8, 2002, petitioner filed a notice of appeal from the denial of post-conviction relief and a motion for appointment of counsel. On the same date, the court issued an order appointing counsel. Petitioner's Exhibit A to Memorandum in Support of Petition for Writ of Habeas Corpus, p. 4.
On March 8, 2002, the Oregon Court of Appeals entered an order of dismissal, which stated: "On February 7, 2002, this Court issued an order to show cause why the appeal should not be dismissed as untimely filed, and to explain under what authority an appeal sought. As of this date, no response has been filed. Therefore, the appeal is dismissed." Respondent's Exhibit 117. No petition for review was filed in the Oregon Supreme Court.
On January 14, 2003, petitioner filed this federal habeas action alleging fourteen grounds for relief. In Ground one, petitioner asserts that he was denied his right to due process of law and his right to be free from cruel and unusual punishment when he was sentenced to mandatory minimum sentences pursuant to Oregon's Ballot Measure 11. In Grounds two through eleven, petitioner asserts that he was denied his right to effective assistance of trial counsel for a number of different reasons. In Grounds twelve through fourteen, petitioner asserts that he was denied his right to effective assistance of appellate counsel for a number of different reasons. Petitioner requested appointment of counsel.
On January 24, 2003, the court appointed the Federal Public Defender to represent petitioner.
On August 29, 2003, respondent filed an answer asserting that petitioner has no remaining state remedies on the issues raised in this habeas corpus proceeding, and that he has procedurally defaulted on Grounds two through fourteen by failing to pursue to completion all available state court remedies. Respondent's Answer, pp. 1-2. In addition, respondent filed a Response to Habeas Corpus Petition asserting that Grounds two through fourteen are procedurally defaulted, and that Ground one should be rejected on the merits.
Counsel for petitioner filed a Memorandum in Support of Petition for Writ of Habeas Corpus advancing only Ground five that trial counsel provided ineffective assistance of counsel when she elicited hearsay evidence that enabled the prosecution to introduce prejudicial evidence of four prior convictions. Petitioner contends that there is cause and prejudice to excuse the procedural default on Ground five, and that this violation of his Sixth Amendment right to counsel meets the standard for relief under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
Respondent filed a Reply Memorandum noting that Grounds one through four and six through fourteen should be dismissed because petitioner does not address these grounds, and that Ground five is procedurally defaulted.
PROCEDURAL DEFAULT
Grounds Two Through Fourteen
Petitioner raised Grounds two through fourteen in his post-conviction petition before the state court, and the post-conviction court ruled against him on all grounds. Respondent's Exhibit 115. Petitioner filed a pro se petition appeal from the post-conviction judgment, and the Oregon Court of Appeals dismissed the appeal after petitioner failed to respond to an order to show cause why the appeal should not be dismissed as untimely filed. Respondent's Exhibits 117 and 118.
Respondent contends that Grounds two through fourteen were not fairly presented to Oregon's highest court because petitioner failed to pursue his appeal. Respondent contends that Grounds two through fourteen are therefore procedurally defaulted. Respondent contends that there is no constitutional right to post-conviction counsel, and that petitioner bears the risk of any attorney error which resulted in a procedural default.
Generally, a state prisoner must fully exhaust his claims in state court before filing a federal habeas corpus petition. 28 U.S.C. § 2254(b)(1). To satisfy the exhaustion requirement, the state prisoner must give the state court a fair opportunity to act on his claims before he presents those claims to a federal court in a habeas petition. Id.; Castille v. Peoples, 489 U.S. 346, 349-50 (1989).
State courts, like federal courts, are obliged to enforce federal law. Comity dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide the necessary relief. Rose v. Lundy, 455 U.S. 509, 515-26 (1982). When a state prisoner fails to exhaust his federal claims in state court, and those claims are now procedurally barred under applicable state rules, federal habeas review is barred unless the prisoner can demonstrate cause for the procedural default and actual prejudice or demonstrate that the failure to consider the claim will result in a miscarriage of justice. Gray v. Netherland, 518 U.S. 152, 162 (1996); Schlup v. Delo, 513 U.S. 298 (1995).
Cause for a procedural default generally involves "some objective factor external to the defense [that] impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Cause may be established by showing that the "factual or legal basis for a claim was not reasonably available to counsel," or that there was "`some interference by officials' [that] made compliance impracticable. . . ." Id. (quoting Brown v. Allen, 344 U.S. 443, 486 (1953)). Attorney error is cause only where the error constitutes ineffective assistance of counsel in violation of petitioner's right to counsel. Coleman v. Thompson, 501 U.S. 722, 753-54 (1991).
If cause is established, then petitioner must show that he suffered actual prejudice as a result of the alleged violation of federal law. United States v. Frady, 456 U.S. 152, 170 (1982). To fulfill this burden, petitioner must establish "not merely that the errors at his trial constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Correll v. Stewart, 137 F.3d 1404, 1415, (9th Cir. 1997) (quoting Frady, 456 U.S. at 170).
Petitioner concedes that Grounds two through fourteen were not pursued on appeal to the state court but contends that the failure to perfect his appeal was the fault of his appointed counsel. Under these circumstances, petitioner contends that there is cause to excuse his default. Petitioner contends that he cannot be required to bear the risk of his attorney error because his counsel was not acting as his agent with regard to the default.
In Coleman v. Thompson, 501 U.S. 722 (1991), petitioner's post-conviction counsel inadvertently filed petitioner's notice of appeal three days late, and the appeal was dismissed as untimely. Id. at 727-28. Petitioner argued that this attorney error constituted cause sufficient to excuse this default. The Court rejected this argument and explained:
There is no constitutional right to an attorney in state post-conviction proceedings. Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings. Coleman contends that it was his attorney's error that led to the late filing of his state habeas appeal. This error cannot be constitutionally ineffective; therefore Coleman must "bear the risk of attorney error that results in a procedural default."Id. at 752-53 (citations omitted) (quoting Murray v. Carrier, 477 U.S. at 488). The Court concluded that "[b]ecause Coleman had no right to counsel to pursue his appeal in state habeas, any attorney error that led to the default of Coleman's claims in state court cannot constitute cause to excuse the default in federal habeas." Id. at 757.
Petitioner concedes that the post-conviction appeal was dismissed because counsel failed to file the required brief but contends that this court should not follow the United States Supreme Court in Coleman. Petitioner contends that he should not be held accountable for attorney errors committed when the attorney was functioning outside the course of representation. Petitioner contends that his counsel was not acting as his legitimate agent when counsel failed to file an appellate brief.
Petitioner has not shown cause to excuse his procedural default. The United States Supreme Court in Coleman explicitly stated that there is no constitutional right to counsel in post-conviction proceedings and concluded that petitioner must, therefore, bear the risk of his attorney's inadvertent late filing of his notice of appeal from the post-conviction proceeding. Id. at 752-53. The United States Court of Appeals for the Ninth Circuit has followed Coleman in a number of cases. See Ellis v. Armenakis, 222 F.3d 627, 632-33 (9th Cir. 2000) (no cause and prejudice for attorney's failure to seek review in the Oregon Supreme Court of the dismissal by the Oregon Court of Appeals because there is no constitutional right to counsel on post-conviction relief); Bonin v. Calderon, 77 F.3d 1155, 1159-60 (9th Cir. 1996) (no cause and prejudice for attorney's failure to allege ineffective assistance of appellate counsel in post-conviction proceedings because there is no constitutional right to counsel on post-conviction relief); and Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993) (no cause and prejudice for alleged attorney incompetence in post-conviction proceedings because there is no constitutional right to counsel on post-conviction relief). Petitioner failed to appeal his post-conviction relief claims to the state's highest court, and the error of counsel is not cause to relieve his procedural default. Petitioner does not argue that federal review of his claims is necessary to prevent a fundamental miscarriage of justice. Petitioner cannot properly exhaust Grounds two through fourteen at this stage in the proceedings, and therefore Grounds two through fourteen are procedurally defaulted.
See Or. Rev. Stat. § 138.550(3) (All post conviction relief claims must be asserted in the original or amended petition unless they could not reasonably have been asserted therein, and any claims not so asserted are deemed waived.)
SUBSTANTIVE CLAIM
Ground One
In Ground one, petitioner challenges the constitutionality of his Measure 11 sentence as a violation of the republican form of government and equal protection. This was the only ground raised on direct appeal. Petitioner's sentence was affirmed from the bench by the Oregon Court of Appeals, and review was denied by the Oregon Supreme Court. Respondent's Exhibits 106 and 107.
Under the AEDPA, habeas corpus relief may not be granted on any claim that was adjudicated on the merits in state court, unless the adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was 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).
In his Appellant's Brief on direct appeal, petitioner conceded that his challenges to Measure 11 had been rejected by the Oregon Supreme Court in State ex rel. Huddleston v. Sawyer, 324 Or. 597, 932 P.2d 1145 (1997). Respondent's Exhibit 103. The United States Court of Appeals for the Ninth Circuit later rejected constitutional challenges to Measure 11 sentences in Alvarado v. Hill, 252 F.3d 1066 (9th Cir. 2001). The decision by the Oregon Court of Appeals on direct appeal to affirm petitioner's sentence from the bench was not contrary to, or an unreasonable application of, any clearly established federal case law, as determined by the United States Supreme Court. Petitioner is not entitled to relief on Ground one of the petition.
CONCLUSION
Based on the foregoing, petitioner's habeas corpus petition (#2) is DENIED, and this action is DISMISSED.
IT IS SO ORDERED.