United States District Court, D. Oregon
Israel Fonseca, #17312862, Snake River Correctional Institution, Ontario, OR, Pro se Petitioner.
Kristen E. Boyd, State of Oregon, Department of Justice, Salem, OR, Attorney for Respondent.
MARCO A. HERNNDEZ, District Judge.
As a preliminary matter, Petitioner's second Motion for Appointment of Counsel is denied for the reasons previously set forth in the record. See April 12, 2013 Order .
Petitioner is an inmate in the custody of the Oregon Department of Corrections after convictions for Attempted Murder, Unlawful Use of a Weapon and Felon in Possession of a Weapon. Resp't Ex. 101. After a jury convicted Petitioner, the trial court imposed various sentences totaling 90 months of imprisonment. Id.
Petitioner directly appealed his convictions, but the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Resp't Exs. 105-09.
Petitioner filed a Formal Petition for Post-Conviction Relief, Resp't Ex. 110, but the Umatilla County Circuit Court denied relief, the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Resp't Exs. 131-35.
Petitioner filed a Petition for a Writ of Habeas Corpus  pursuant to 28 U.S.C. § 2254 alleging five claims of ineffective assistance of counsel. By an Order  entered November 5, 2013, Petitioner's Motion for Leave to File an Amended Petition  was allowed. Petitioner's Amended Petition  re-alleged the five claims of ineffective assistance of counsel as Ground One and alleged an additional claim of trial court error as Ground Two.
Respondent now moves to deny relief on the grounds that the ineffective assistance of counsel claims alleged in Ground One were not "fairly presented" to Oregon's highest court and are procedurally defaulted. Resp. to Pet. 2. Respondent moves to deny relief on the trial court error claim alleged in Ground Two on the ground that it was correctly decided in a state court decision which is entitled to deference by this Court pursuant to 28 U.S.C. § 2254(d).
Petitioner's Opening Brief  presents argument only as to the trial court error claim (Ground Two). Arguably, the claims in the ineffective assistance of counsel claims alleged in Ground One are properly deemed waived and/or abandoned. See Renderos v. Ryan , 469 F.3d 788, 800 (9th Cir. 2006), cert. denied 551 U.S. 1159 (2007) (claims waived where there is no attempt to prove them); see also Acosta-Huerta v. Estelle , 7 F.3d 139, 144 (9th Cir. 1993) (claims deemed abandoned where petitioner made no argument regarding them in his brief). However, I find that it is appropriate to address those claims.
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 a petitioner can "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 a petitioner shows 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 , 529 U.S. at 451. 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).
Ground One: Petitioner was denied adequate/effective assistance of trial counsel in violation of Petitioner's rights under the Sixth and Fourteenth Amendments of the U.S. Constitution.
Supporting Facts: (1) Trial counsel failed to hire an investigator to interview trial witnesses prior to trial. (2) Counsel failed to personally interview trial witnesses prior to trial. (3) Counsel failed to adequately question potential jurors during voir dire about their biases regarding Petitioner's immigration status. (4) Counsel failed to emphasize a defense based on reasonable doubt in counsel's arguments at trial. (5) Counsel failed to raise arguments to jury about the lack of ...