United States District Court, D. Oregon, Portland Division
Thomas J. Hester, Assistant Federal Defender, Portland, OR, Attorney for Petitioner.
Mary H. Williams, Deputy Attorney General, Nick M. Kallstrom, Assistant Attorney General Department of Justice, Salem, OR, Attorneys for Respondent.
OPINION AND ORDER
GARR M. KING, District Judge.
Petitioner Willie Charles Sanders, Jr., an inmate incarcerated at Two Rivers Correctional Institution, brings this action, pursuant to 28 U.S.C. § 2254, seeking a writ of habeas corpus. For the reasons set forth below, I deny the petition.
A jury convicted Sanders of one count of Attempted Murder, one count of Assault in the First Degree and two counts of Burglary in the First Degree in July 2001. The charges arose as a result of an altercation between Sanders and his ex-girlfriend, Yvonne Jenkins. Jenkins testified at the trial that her relationship with Sanders had ended the previous year and she had obtained a restraining order against him. On January 7, 2001, Jenkins had accidentally allowed Sanders into her apartment, believing him to be her neighbor. When Jenkins told Sanders to leave, Sanders grabbed a paring knife from the drain board in her kitchen and stabbed her in the throat. Sanders told her, "I just killed your friend, and I'm going to kill you, and then I'm going to kill your family[.]" Tr. 144. Jenkins felt blood squirting from her throat and she sought refuge behind a bed in the apartment. Sanders then reached across the bed with the knife and sliced the side of Jenkins' face, from forehead to chin. Sanders pulled the phone from the wall and directed Jenkins to stay in the apartment.
After Sanders left, Jenkins fled to a neighbor's apartment and the neighbor called the police. Jenkins told police that Sanders had stabbed her. Jenkins was taken to the trauma center at Oregon Health & Science University Hospital, and Sanders was arrested later that day.
The trauma surgeon who treated Jenkins testified at the trial that the puncture wound to Jenkins' neck had missed her carotid artery and trachea, that if either had been hit Jenkins could have died, and that she lost a "significant amount of blood" by the time she had arrived at OHSU. Tr. 98. While the knife slash across Jenkins' face was "superficial, " since there was no nerve damage, she would always have a scar. The jury convicted Sanders of all four counts.
The judge sentenced Sanders on September 5, 2001. At the hearing, Jenkins testified that Sanders had called her home twice since he had been convicted; he had also written her a letter in which he expressed anger about her testifying at his trial. The judge departed upward and imposed a sentence of 130 months for the attempted murder conviction (from a 90-month mandatory minimum), which he made consecutive to 120 months for the assault conviction (also up from the 90-month mandatory minimum). The judge explained his decision to depart upward as follows:
Departure for any one or all of the following reasons; [petitioner] in direct violation of restraining order signed by Judge Wyatt - continuing contact with victim since the trial - serious risk to victim. [Petitioner] was on supervision at the time of the current offense.
Ex. 101. In addition, the judge imposed 65-month presumptive sentences for the burglary convictions, to be served concurrently with each other but consecutively to the other sentences. In total, Sanders was ordered to 315 months' incarceration.
Sanders appealed. In his counseled brief to the Oregon Court of Appeals, Sanders argued the trial court violated state sentencing laws, specifically the "400-percent rule" which I describe below. In his pro se brief, Sanders identified two additional assignments of error having to do with the state sentencing laws.
While Sanders' appeal was pending, the U.S. Supreme Court issued its decision in Blakely v. Washington , 542 U.S. 296 (2004). Sanders then filed a supplemental brief in the Oregon Court of Appeals raising Blakely as an issue, arguing the trial court erred in departing upward on the attempted murder and assault charges, and in imposing consecutive sentences, based on judicial factfinding. The Oregon Court of Appeals affirmed Sanders' convictions, but vacated the sentences and remanded for resentencing on the basis of Blakely.
Both Sanders and the State petitioned for review to the Oregon Supreme Court. The Court denied Sanders' petition but accepted the State's petition; it vacated the Oregon Court of Appeals' decision and remanded for reconsideration in light of State v. Ramirez , 343 Or. 505, 173 P.3d 817 (2007), adh'd to as modified on recons., 344 Or. 195, 179 P.3d 673 (2008). State v. Sanders , 345 Or. 316, 195 P.3d 63 (2008). In Ramirez, the Oregon Court of Appeals erred in considering an unpreserved Blakely error when "the evidence on a sentencing factor is overwhelming." 343 Or. at 514.
Upon remand, the Oregon Court of Appeals explained the quandary with respect to Sanders' appeal as follows:
The question on remand is whether we should exercise our Ailes [v. Portland Meadows, Inc. , 312 Or. 376, 381-82, 823 P.2d 956 (1991)] discretion to correct the plain error committed with respect to the imposition of the departure sentences. For the reasons that follow, we determine that we should not exercise our Ailes discretion.
One factor to be considered under Ailes is the competing interests of the parties. In Ramirez, the court, weighing the competing interests of the parties, concluded that it would be an improper exercise of discretion to order resentencing based on judicial factfinding that the victim suffered a permanent injury, given "undisputed evidence in the record... that the victim lost her right eye as a result of being shot in the head." The court emphasized that, if there is "no legitimate debate" concerning the factual predicate for a sentence, the state's interest in avoiding unnecessary proceedings outweighs a defendant's interest in correcting the sentencing error.
In this case, the fact that the crimes occurred when the victim had a restraining order against defendant is beyond legitimate debate, as evidenced by statements made by the victim at trial and by defendant at sentencing. Because the trial court specifically found that that factor alone would support the imposition of the departure sentences, we conclude that the "interests of the parties" factor weighs so heavily against a remand for resentencing in this case that it is dispositive.
State v. Sanders , 226 Or.App. 131, 134, 203 P.3d 252 (2009) (internal citations omitted). Accordingly, the court affirmed Sanders' convictions and sentence and declined to exercise its discretion to correct any unpreserved sentencing error under Blakely. The Oregon Supreme Court denied Sanders' petition for review.
In his pro se petition for post-conviction relief (PCR), Sanders alleged four ways in which his trial counsel was ineffective: (1) he failed to request the jury be instructed on the lesser included offenses of Assault II and III; (2) he undertook an inadequate investigation; (3) he failed to object to the indictment; and (4) he failed to provide Sanders with the victim's medical records for six months. Sanders also alleged his appellate counsel was inadequate for not raising the issues Sanders had set forth in his pro se supplemental brief. Sanders finally alleged "Unconstitutionality of Sentence" and that the sentence was "in excess, or otherwise not in accordance with STATUTE by law[.]" Ex. 138, at 5. The PCR court denied Sanders' petition.
In Sanders' counseled appeal to the Oregon Court of Appeals, he pursued only one claim - that his attorney had provided inadequate assistance of counsel in failing to request that the jury be instructed on the lesser-included offenses of Assault II and III. The State argued that trial counsel's choice not to ask for an instruction on lesser-included offenses was a reasonable one.
Sanders also filed a pro se brief identifying two additional assignments of error; the first was that his trial counsel was inadequate in failing to request that the jury be instructed that Assault is a lesser-included offense of Attempted Murder, and the second was that his sentence was in excess or not in accordance with the law. With respect to the first assignment of error, the State pointed out Sanders failed to include the claim in his PCR petition. As for the second assignment of error, to the extent Sanders' contention was that his sentence was illegal, the State argued his claim was not cognizable under Palmer v. State of Oregon , 318 Or. 352, 867 P.2d 1368 (1994) because Sanders could have and did raise the issue on direct appeal. To the extent Sanders' claim was that his counsel was ...