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Jones v. Franke

United States District Court, Ninth Circuit

December 19, 2013

SCOTT DOUGLAS JONES, Petitioner,
v.
STEVE FRANKE, Respondent.

Ellen C. Pitcher, Office of the Federal Public Defender, Portland, Oregon, Attorney for Petitioner.

Ellen F. Rosenblum, Attorney General, Andrew Hallman, Assistant Attorney General, Department of Justice, Salem, Oregon, Attorneys for Respondent.

OPINION AND ORDER

ROBERT E. JONES, District Judge.

Petitioner brings this habeas corpus action pursuant to 28 U.S.C. ยง 2254 in which he challenges his convictions and sentence for two counts of Unlawful Sexual Penetration in the First Degree. For the reasons set forth below, the Amended Petition for Writ of Habeas Corpus [42] is granted.

BACKGROUND

On December 5, 2002, the Lincoln County Grand Jury returned a secret indictment charging petitioner with one count of Rape in the First Degree, three counts of Unlawful Sexual Penetration in the First Degree, and one count of Sexual Abuse in the First Degree. Respondent's Exhibit 102. Following a jury trial, petitioner was acquitted on the rape charge and convicted on the remaining counts. The sentencing court imposed three concurrent 100-month sentences for the counts of unlawful sexual penetration to run consecutively with a 75-month sentence for the count of sexual abuse. Respondent's Exhibit 101. The penetration convictions pertain to petitioner's abuse of his minor sister, Stephanie Jones, and the sexual abuse conviction pertains to his abuse of another minor female.

Petitioner directly appealed his convictions, but the Oregon Court of Appeals affirmed the trial court without written opinion, and the Oregon Supreme Court denied review. State v. Jones, 197 Or.App. 202 (2005) rev. denied, 338 Or. 363 (2005); Respondent's Exhibits 103-107. Petitioner then appealed the entry of an amended judgment, but the Court of Appeals again affirmed without opinion, and the Oregon Supreme Court denied review. State v. Jones, 207 Or.App. 436 (2006) rev. denied, 341 Or. 548 (2006); Respondent's Exhibits 108-112.

Eventually, petitioner filed a Second Amended Petition for post-conviction relief ("PCR") in state court. The PCR trial court denied relief. Jones v. Hall , Umatilla County Circuit Court Case No. CV070482. On appeal, the Oregon Court of Appeals affirmed the PCR court without written opinion, and the Oregon Supreme Court denied review. Jones v. Hall, 236 Or.App. 268 (2010), rev. denied, 349 Or. 56 (2010); Respondent's Exhibits 136-140.

On December 2, 2010, petitioner filed this action. In his Amended Petition for Writ of Habeas Corpus, he raises the following grounds for relief:

Ground One: Violation of the Fourteenth Amendment to the United States Constitution - Violation of Due Process.
Supporting Facts: Mr. Jones pleads on information, belief, and/or personal knowledge that his convictions were obtained in violation of the Fourteenth Amendment to the United States Constitution because his conviction was based in part on false testimony obtained by the prosecutor. Specifically, the prosecutor had Jennifer Pond, Stephanie Jones' older sister, coach Ms. Jones, the alleged victim in Counts I through IV, on her testimony regarding the charges of Unlawful Sexual Penetration set forth in Counts II, III and IV of the Indictment. Furthermore, she told Ms. Pond not to reveal that she had done so.
Ground Two: Violation of the Fourteenth Amendment to the United States Constitution - Violation of Due Process.
Supporting Facts: Mr. Jones pleads on information, belief, and/or personal knowledge that his convictions were obtained in violation of the Fourteenth Amendment to the United States Constitution when the prosecutor failed to disclose exculpatory evidence regarding the alleged victim, Stephanie Jones. Specifically, the prosecutor knew, close to trial in this case, that Ms. Jones did not understand the parts of her body and had not in fact accused Mr. Jones of sexual penetration, yet the prosecutor failed to disclose this information to the defense.
Ground Three: Violation of the Sixth and Fourteenth Amendments to the Unites States Constitution - Violation of Due Process, and the Right to Present a Defense, and the Right to a Fair Trial.
Supporting Facts: Mr. Jones pleads on information, belief, and/or personal knowledge that his convictions were obtained in violation of the Fourteenth Amendment to the United States Constitution when the prosecutor instructed witnesses not to talk to the defense attorney, thereby depriving Mr. Jones of exculpatory evidence, evidence necessary to his defense, and a fair trial.
Ground Four: Violation of the Eighth Amendment to the United States Constitution - Actual Innocence.
Supporting Facts: Mr. Jones pleads on information, belief, and/or personal knowledge that his convictions were obtained in violation of the Eighth Amendment to the United States Constitution because he is factually innocent of the crime of Unlawful Sexual Penetration in the First Degree.
Ground Five: Violation of the Sixth Amendment to the United States Constitution - Ineffective Assistance of Counsel.
Supporting Facts: Mr. Jones pleads on information, belief, and/or personal knowledge that his convictions were obtained in violation of the Sixth Amendment to the United States Constitution when his attorney failed to advise Mr. Jones that it was his decision and his alone to decide whether he should testify at trial, thereby depriving him of his Fifth Amendment right.

Respondent asks the Court to deny relief on the Amended Petition on the basis that: (1) Grounds One, Two and Three are procedurally defaulted and the default is not excused; (2) Grounds One, Two and Three are untimely and not subject to either statutory or equitable tolling; (3) Grounds One, Two and Three are without merit; (4) Ground Four is not cognizable in this habeas proceeding and is otherwise without merit; and (5) Ground Five was denied on the merits in a state court decision entitled to deference.

DISCUSSION

I. Exhaustion and Procedural Default

A. Standards

A habeas petitioner must exhaust his claims by fairly presenting them to the state's highest court, either through a direct appeal or collateral proceedings, before a federal court will consider the merits of those claims. Rose v. Lundy, 455 U.S. 509, 519 (1982). "As a general rule, a petitioner satisfies the exhaustion requirement by fairly presenting the federal claim to the appropriate state courts.. in the manner required by the state courts, thereby affording the state courts a meaningful opportunity to consider allegations of legal error.'" Casey v. Moore, 386 F.3d 896, 915-916 (9th Cir. 2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 257, (1986)). If a habeas litigant failed to present his claims to the state courts in a procedural context in which the merits of the claims were considered, the claims have not been fairly presented to the state courts and are therefore not eligible for federal habeas corpus review. Castille v. Peoples, 489 U.S. 346, 351 (1989).

A petitioner is deemed to have "procedurally defaulted" his claim if he failed to comply with a state procedural rule, or failed to raise the claim at the state level at all. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). If a petitioner has procedurally defaulted a claim in state court, a federal court will not review the claim unless the petitioner shows "cause and prejudice" for the failure to present the constitutional issue to the state court, or makes a colorable showing of actual innocence. ...


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