DONALD W. KNOKE, JR., Petitioner,
STATE OF OREGON, Defendant.
ANN AIKEN, District Judge.
Petitioner, an inmate in the custody of the Oregon Department of Corrections, filed a petition under 28 U.S.C. § 2254 challenging his conviction for Assault in the Second Degree. Following a jury trial, petitioner was sentenced to 120 months of imprisonment. Exhibit 101.
Petitioner appealed his convictions and the Oregon Court of Appeals vacated petitioner's sentence and remanded for resentencing but otherwise affirmed. The state sought review by the Oregon Supreme Court, which was allowed. The Oregon Supreme Court vacated the decision of the Court of Appeals and remanded to the Court of Appeals for reconsideration. On remand, the Court of Appeals issued a written opinion affirming the trial court judgment in its entirety. The Oregon Supreme Court denied petitioner's petition for review. Exhibits 104-117.
Petitioner filed a petition for post conviction relief, but the Malheur County Circuit Court denied relief, the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Exhibits 135-139.
Petitioner's petition in this proceeding alleges seven grounds for relief, many of which have multiple sub-parts. Respondent now moves to deny relief. Response (#17). Of those claims, only one was properly raised in state court - a claim that the trial court committed an "error on the face of the record" by imposing a sentence "based on facts that were not admitted by [petitioner] or found by a jury." Petition (#1) Claim #3 [petitioner's Blakely claim].
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).
Petitioner did not present Claims #1, #2 or Claims #4 - #7 to the Oregon courts, and may no longer do so. Therefore, they are procedurally defaulted.
Petitioner has not established any cause and prejudice for his procedural default or established that he is entitled to the fundamental miscarriage of justice exception to the exhaustion requirement. Therefore, Claims #1, #2 and #4-#7 are not properly before the court and are denied.
Petitioner alleges in Claim #3 that the trial court committed an "error that is apparent on the fact of the record because the sentence was based on facts that were not admitted by defendant or found by a jury."
The court sentenced petitioner to a departure sentence of 120 months incarceration. Exhibit 101. In making the departure, the court relied on several factors, stating in the judgment that "any one of which would have justified the departure." These factors included: "[p]ermanent injury to the victim; [h]arm and loss significantly greater than typical; [r]epetitive assaults unrelated to current crime; [l]ack of remorse; [a]ssaults escalating in seriousness." Id.
Petitioner filed a notice of appeal to the Oregon Court of Appeals in May, 2003 and filed his opening brief in September, 2004, after Blakely issued. In his opening brief, ...