AARON T. GEE, Petitioner,
MARK NOOTH, Respondent.
ANN AIKEN, District Judge.
Petitioner is an inmate in the custody of the Oregon Department of Corrections, pursuant to two judgments. Only the convictions related to Multnomah County Case No. XXXXXXXXX are challenged in this proceeding. In that case, petitioner was convicted by a jury for four counts of Robbery in the First Degree, four counts of Robbery in the Second Degree, one count of Burglary in the First Degree, and two counts of Assault in the Second Degree, and sentenced to a total of 270 months imprisonment.
Petitioner directly appealed his convictions, but the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Exhibits 107, 113. Petitioner filed a petition for post-conviction relief, but the Marion County Circuit Court denied relief, the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Exhibits 133-137.
Petitioner filed a petition under 28 U.S.C. § 2254, alleging eight grounds for relief (with sub-parts). Petition (#2) p. 7-14.
Respondent moves to deny relief on the grounds that petitioner procedurally defaulted some of his claims and that the other claims were denied in state court decisions that are entitled to deference by this court and are correct on the merits. Response (#24) p. 2.
Under 28 U.S.C. § 2254(b) (1), an application for a writ of habeas corpus "shall not be granted" unless "the applicant has exhausted the remedies available in the courts of the State[.]" Exhaustion occurs when a petitioner has given the state courts a "full and fair" opportunity to consider and resolve all federal claims. Keeney v. Tomayo-Reyes , 504 U.S. 1, 10 (1992). If a petitioner can present a claim to the state's Supreme Court, he must do so to properly exhaust that claim. O'Sullivan v. Boerckel , 526 U.S. 838, 844-45 (1999).
To "fairly present" a federal claim in state court, habeas petitioners must "include reference to a specific federal constitutional guarantee, as well as a statement of facts that entitle the petitioner to relief." Gray v. Netherland , 518 U.S. 152, 162-63 (1996).; see also, Castillo v. McFadden , 399 F.3d 993, 1000 (9th Cir. 2005); see also, Insyxiengmay v. Morgan , 403 F.3d 657, 668 (9th Cir. 2005) ("In [the Ninth Circuit], a petitioner must make the federal basis of the claim explicit either by specifying particular provisions of the federal Constitution or statutes, or by citing to federal case law."); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (per curiam) (holding that, when a petitioner failed to cite federal case law or mention the federal constitution in his state court briefing, he did not alert the state court to the federal nature of his claims).
Furthermore, to properly exhaust a claim the petitioner must present the federal claim to the state courts in a procedural context in which the claims' merits will be considered. Castille v. Peoples , 489 U.S. 346, 351-52 (1989); Roettgen v. Copeland , 33 F.3d 36, 38 (9th Cir. 1984; Turner v. Compoy , 827 F.2d 526, 529 (9th Cir. 1987), cert. denied, 489 u.s. 1059 (1989).
If a petitioner has failed to present a federal constitutional claim to the state's highest court (i.e., has failed to exhaust state remedies) and can no longer do so because of a procedural bar, that claim is procedurally defaulted. Boerckel , 526 U.S. at 848, citing Coleman v. Thompson , 501 U.S. 722, 731-32 (1991). Once a petitioner has procedurally defaulted a claim, federal habeas corpus review is barred unless the petitioner can demonstrate: (1) cause for the procedural default, and (2) actual prejudice from the failure. Edwards v. Carpenter , 529 U.S. 446, 451 (2000), Coleman , 501 U.S. at 750; see also, Wainwright v. Sykes , 433 U.S. 72 (1977); Murray v. Carrier , 477 U.S. 748 (1986); Hughes v. Idaho Bd. of Corr. , 800 F.2d 905 (9th Cir. 1986).
Cause for a procedural default exists only if petitioners "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray, 477 U.S. at 488. Prejudice exists only if petitioners show that the procedural default "worked to [petitioner's] actual and substantial disadvantage." United States v. Frady , 456 U.S. 152, 170 (1982). Demonstrating a mere possibility of prejudice is insufficient. Id.
Procedural defaults may also be excused by demonstrating a "fundamental miscarriage of justice." Edwards v. Carpenter , 529 U.S. 446, 451 (2000). To establish the fundamental miscarriage of justice exception to the exhaustion requirement requires a showing of actual innocence. Schlup v. Delo , 513 U.S. 298, 329 (1995); Calderon v. Thompson , 523 U.S.538, 559 (1998).
In Ground Seven (1), petitioner alleges that his trial counsel failed to adequately investigate the facts and circumstances underlying counts 3 and 5 of the re-indictment. Specifically, petitioner alleges that counsel should have established that Ramon Sims and Ramar were the same person.
Petitioner alleged this claim in his Amended Petition for Post-conviction Relief. Exhibit 115, p. 5. However, he did not pursue this claim in his post conviction appeal to the Oregon Court of Appeals or the Oregon Supreme Court.
Petitioner is now barred under Oregon law from filing any additional appeals or PCR proceedings,  and thus cannot "fairly present" Ground Seven (1) to Oregon's highest court. Therefore, the claim is procedurally defaulted. Petitioner has not established any cause or prejudice for his procedural default or that he is entitled to the fundamental miscarriage of justice exception to the exhaustion requirement. Therefore, petitioner claim in Ground Seven (1) is denied.
Petitioner alleges in Grounds One through Six that the trial court erred when it denied his motion for judgment of acquittal on counts 3, 5, 8, 10 and 15.
Petitioner moved for judgment of acquittal on counts 3, 5, 8, 10 and 15 arguing that there was insufficient evidence presented to establish that the victims "Ramar" and Ramon Sims were separate victims. Petitioner also argued that there was insufficient evidence to establish that either Ramar or Ramon Sims were actually robbed. Exhibit 106, p. 186-195. The motion made to the trial court did not reference any federal law. The trial court denied the motions. Id.
Petitioner alleged similar claims on appeal. Exhibit 107, p. 5-6, and for the first time, petitioner included a reference to Jackson v. Virginia , 442 U.S. 307 (1979) and In re Winship , 397 U.S. 358 (1970). Exhibit 107, p. 14, 20.
In Oregon, the requirement that a criminal conviction be based on sufficient evidence is provided by statute. See, ORS 136.445. However, in reviewing the sufficiency of the evidence pursuant to ORS 136. 445, "Oregon has adopted the identical standard as that set forth by the Supreme Court in Jackson v. Virginia ." Lacy v. Bellegue, 2010 WL3866719, *2-4 (D. Or. Sept. 21, 2010), affirmed, Lacy v. Nooth, 2011 WL 2601333 (9th Cir. July 1, 2011) (unpublished opinion).
In Sanders v. Ryder , 342 F.3d 991 (9th Cir. 2003), the Ninth Circuit concluded that a pro se petitioner exhausted state remedies by presenting a state-law claim that was "identical" to its federal counterpart.
However, neither the Ninth Circuit or the Supreme Court has resolved the question of whether a petitioner, who is represented by counsel, exhausts state court remedies by making a state-law claim that incorporates the same standard as an analogous federal-law claim. See, Baldwin v. Reese , 541 U.S. 27, 34 (2994) (declining to address the issue); Peterson v. Lampert , 319 F.3d 1153, 1160 (9th Cir. 2003) (same). District courts within the Ninth Circuit have reached different conclusions when addressing this issue. See, Wieland Thompson, 2013 WL 550504, *3 (D. Or., Feb. 12, 2013).
Assuming arguendo that petitioner's Grounds One through Six were fairly presented to the Oregon courts as federal issues, they were denied in decisions that are correct on the merits and entitled to deference by this court for the reasons set forth below.
Under the Antiterrorism and Effective Death Penalty Act of 1966 (AEDPA), habeas corpus relief may "not be granted with respect to any claim that was adjudicated on the merits in state court proceedings, " 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 evidence presented at the State ...