Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wenger v. Coursey

United States District Court, Ninth Circuit

October 9, 2013

FREDRICK MICHAEL WENGER, JR., Plaintiff,
v.
RICK COURSEY, Defendant.

Thomas J. Hester, Assistant Federal Defender, Portland, Oregon, Attorney for Plaintiff.

Ellen F. Rosenblum, Attorney General, Samuel A. Kubernick, Assistant Attorney General, Department of Justice, Salem, Oregon, Attorneys for Defendant.

OPINION AND ORDER

GARR M. KING, District Judge.

Petitioner, currently an inmate at Two Rivers Correctional Institution, brings this habeas corpus proceeding pursuant to 28 U.S.C. ยง 2254. For the reasons below, I deny his petition [2] and dismiss this proceeding with prejudice.

BACKGROUND

Petitioner went to the victim's home early in the morning of August 28, 2006 after learning the victim recently came into some money. Petitioner attacked the victim, shot him, made him crawl to a different room, tied him up, and demanded money. The victim was able to escape and call 911 when petitioner went outside to look for the money.

A grand jury indicted petitioner for Attempted Murder, Robbery I, Assault I, Kidnapping I, and Felon in Possession of a Firearm. After a judicial settlement conference, petitioner pleaded guilty to the Robbery I, Assault I, and Kidnapping I charges and no contest to the Felon in Possession of a Firearm charge. In exchange for the plea, the State dismissed the Attempted Murder charge, and the parties entered into a plea contract limiting the sentence to 180 months; three of the charges each carried a 90-month mandatory minimum sentence. At the plea hearing, the judge cautioned petitioner at length about the risk of pleading no contest, rather than guilty, to the Felon in Possession of a Firearm charge. The judge stated, in part:

THE COURT: And so if in fact the judge, you know, at the time of sentencing hears from [the prosecutor] and hears all the information about the DNA and, you know, finding the gun and, you know, the testimony from the victim, and the-kind of the stocking cap, you know, mask thing with your DNA on it, if the judge hears all of that and believes that essentially you are by this plea simply equivocating and not really accepting full responsibility for what took place there, you recognize and you will not be surprised then and will not feel somehow that you have been misled if in fact the judge sentences you to 180 months in the custody of the Department of Corrections; is that right?

Exs. to Answer, Ex. 103, at 6-7, ECF No. 21. Petitioner agreed.

At the sentencing hearing, the victim testified about the incident and his ongoing pain and suffering. Petitioner, his mother, and a family friend testified on behalf of petitioner. The state asked for a 180-month sentence; trial counsel asked for a 90-month sentence. The sentencing judge commented:

You've got an extensive criminal record, including a prior assault, and, you know, and I guess this no contest plea just looks to me to be sort of wrong-headed, but maybe that's in keeping with your view of this, that you were an aider and abettor here. It just doesn't look to me that you really were accepting full responsibility for it. I can't impose a 25-year sentence in this case because the plea agreement capped it at 180 months, but that's the sentence that's appropriate here in this case.

Ex. 105, at 25.

The judge sentenced petitioner to consecutive and concurrent sentences, which totaled 180 months of incarceration.

Petitioner did not file a direct appeal, but did file a petition for post-conviction relief ("PCR"). The PCR judge denied relief, the Oregon Court of Appeals affirmed without ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.