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Pittman v. Franke

United States District Court, Ninth Circuit

December 5, 2013

STEVE FRANKE, Respondent.

Kristina S. Hellman, Assistant Federal Public Defender, Portland, Oregon, Attorney for Petitioner.

Ellen F. Rosenblum, Attorney General, Kristen E. Boyd, Assistant Attorney General Department of Justice. Salem, Oregon, Attorneys for Respondent.


MICHAEL H. SIMON, District Judge.

Petitioner brings this habeas corpus case pursuant to 28 2254 challenging the legality of his underlying statecourt convictions for Aggravated Murder and First Degree Burglary. For the reasons that follow, the Amended Petition for Writ of Habeas Corpus (010) is denied.


On November 28, 2006, petitioner burgled the home of 76-year-old Florence Boatright, [1] severely beating and strangling her to death in the process. Petitioner initially denied having anything to do with the crime. When his fingerprint was found in the victim's home, petitioner admitted being part of the burglary, but only as the driver. Respondent's Exhibit 132. It was later determined that the victim had petitioner's DNA beneath her fingernails, [2] thereby identifying petitioner as the key suspect in the murder. Respondent's Exhibit 124, p. 4. Petitioner moved to suppress that evidence, but was unsuccessful.

Against this. difficult backdrop, petitioner's two trial attorneys were left to advise him as to how to proceed. The State elected not to move ahead with a capital prosecution, thus petitioner faced a sentence of life imprisonment either with or without the possibility of parole if convicted. ORS 163.150. During plea negotiations, petitioner's attorneys conferred with the prosecuting attorney who confirmed their impression that the trial judge would be inclined to give less than the maximum available sentence if petitioner elected to plead guilty. Respondent's Exhibit 129, p. 3. They also conferred with another defense attorney who was representing petitioner on unrelated charges in Linn County, and all three attorneys agreed that the particular sentencing judge assigned to petitioner's case would be favorably disposed to imposing less than a true life sentence if he pled guilty and accepted responsibility. Respondent's Exhibit 133, pp. 2-3. They settled on a strategy whereby petitioner would plead guilty and, at sentencing, petitioner would take full responsibility for his actions, ask for a second chance, demonstrate remorse, and be completely honest. Id at 3.

Pursuant to this strategy, petitioner entered a guilty plea and his attorneys were able to produce 37 supportive letters from petitioner's family, friends, and former employers showing petitioner to be a good person who had become a victim of his own drug use. Respondent's Exhibit 125. At his sentencing hearing, petitioner apologized to the victim's family, and petitioner's own family testified on his behalf. The trial judge, however, determined that a true life sentence was appropriate:

The Court understands that the appropriate sentence is Life withcut parole, and the burden is on the defense to show pitication that the defendant deserves a 30 plus year sentence as opposed to life, and that burden that - the duty is to show mitigation. I think the first thing the Court would like to mention is the comments by all the families, both the victim's and the defendant's. There is no doubt that Mr. Pittman did a significant job of destroying both families. And it needs to be said, it includes his family, and, frankly, that's true in all murder cases. In regards to the pleas, I agree with Mr. Lipton that he had a right and that the attorneys had a duty to try the motion to suppress. That's what they should do, and I don't think that should affect the court's sentence. But then again, to the Court, to the authorities, Mr. Pittman denied everything up and until the (DNA) evidence of Ms. Boatwright's skin under his fingernails came, and in essence he didn't admit until that happened and the case became bnletproof. I've looked at the letters and I don't doubt the majority of them. The thing the Court finds interesting abcet them is that the overwhelming majority of them came from Hawaii and prior to his arrival in Oregon and reflec: a pretty good kid. Drucs seem to be pervasive in our society and certainly they had an affect on Mr. Pittman, but the fact remains the overwhelming number of drug users, by a substantial, substantial percent, do not commit murder. That was his choice. Although certainly I don't doubt he wasn't affected by drugs, but it in fact - and his grabbing of the gun in Linn County and the threats on his girlfriend lead me to the conclusion that Mr. Pittman is a dangerous person and continues to be a dangerous person. In all cases, the Court looks for something redeemable in a defendant and looks for a learning curve. Assuming that Mr. Pittman did the DUI in Hawaii and the drugs and a Forgery, basically since August of 2005, we've had a mini crime wave. I count, including Hawaii, Linn County, the two Boatwright incidents, the two assaults, incidents on the girlfriend, the two snowboard thefts and theft of the lady's purse - and I might add she was dang lucky she didn't catch him or she could have been seriously injured - we have 10 criminal episodes involving 17 crimes. From the vicious assault on Florence Boatwright or breaking into her house before, Mr. Pittman has shown he's learned nothing. The crime continues, Mr. Pittman made absolutely no attempt to rehabilitate himself. Up until this morning, Mr. Pittman has not shown the community or this Court any reason for redemption. Therefore, the Court is sentencing him to life without parole.
* * *
Mr. Pittman, you had 10 criminal episodes which meant you had nine chances to turn yourself around. You didn't do a thing. You deserve life without parole.

Ex. 105, Sent. Tr., pp. 59-61.

Petitioner did not take a direct appeal and instead filed for post-conviction relief ("PCR") in Umatilla County alleging that his trial attorneys were ineffective when they failed to: (1) adequately investigate his psychological and social histories; and (2) present mitigation evidence at sentencing. Respondent's Exhibit 106. The PCR trial court denied relief on both of these claims. Respondent's Exhibit 143. The Oregon Court of Appeals affirmed this decision without opinion, and the Oregon Supreme Court denied review. Respondent's Exhibits 147-L46.

With the assistance of appointed counsel, petitioner filed his Amended Petition. for Writ cf habeas Corpus on August 14, 2C12 wherein he raises seven grounds for relief containing a total of approximately 30 claims. Respondent asks the court to deny relief on the Amended Petition because: (1) most of petitioner's claims were not fairly presented to Oregon's state courts and are now procedurally ...

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