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Pritchett v. Franke

United States District Court, D. Oregon

May 27, 2014

COREY JERRY PRITCHETT, Petitioner,
v.
STEVE FRANKE, Respondent.

Corey Jerry Pritchett, 16888342, Two Rivers Correctional Institution, Umatilla, OR, Attorney for Petitioner.

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

OPINION AND ORDER

MICHAEL H. SIMON, District Judge.

Petitioner brings this habeas corpus case pursuant to 28 U.S.C. ยง 2254 challenging the legality of his 2008 state-court convictions. For the reasons that follow, the Amended Petition for Writ of Habeas Corpus (#12) is denied.

BACKGROUND

On May 14, 2007, the Multnomah County Grand Jury indicted petitioner on thirty-four counts arising from his scheme to defraud individuals through 19 real estate transactions. On June 26, 2007, petitioner advised the court that he wished to proceed pro se but subsequently agreed to attempt to work things out with his appointed attorney. Trial Transcript, pp. 77-78, 88.

On August 1, 2007, the trial court held a substitution of counsel hearing where petitioner complained that his appointed attorney could not devote the time required to his case, and that a personal conflict had developed between the two because counsel did not meet him frequently enough, was not responsive to messages, and had secured a 60-day extension of the trial date without petitioner's permission. He therefore asked for substitute counsel or, in the alternative, to proceed pro se with a legal advisor. Trial Transcript, pp. 53-55, 62. The trial court denied petitioner's motion for new counsel, advising petitioner that his appointed attorney had acted in his best interests in seeking an extension of time in such a complex case. Id at 65-69.

On the day his trial was scheduled to begin, October 23, 2007, petitioner advised the court that he had filed a federal lawsuit against his attorney and had also made a formal complaint to the Oregon State Bar. Id at 75-76. He informed the court that he wished to proceed pro se, and the court ultimately allowed him to do so but flatly refused to grant any continuance. Id at 78, 88, 123. The court did, however, retain defense counsel to act as an advisor to petitioner throughout the trial. Id at 124.

The State dismissed two of the charges, and a jury convicted petitioner of the remaining charges: ten counts of Theft in the First Degree, eight counts of Securities Fraud, four counts of Selling an Unregistered Security, four counts of Sale of Securities by an Unlicensed Person, four counts of Theft in the Second Degree, and two counts of Aggravated Theft in the First Degree. Respondent's Exhibit 101. As a result, the court sentenced petitioner to a total of 97 months in prison. Id.

Petitioner took a direct appeal, but the Oregon Court of Appeals affirmed the trial court's decision without opinion and the Oregon Supreme Court denied review. State v. Pritchett, 231 Or.App. 380, 218 F.3d 579 (2009), rev. denied, 347 Or. 608, 226 F.3d 43 (2010).

Petitioner next filed for post-conviction relief ("PCR") in Umatilla County where the PCR trial court denied relief on his claims. Respondent's Exhibits 107-108. Petitioner's appeal of that decision was pending at the time respondent filed his Answer and Exhibits.

Petitioner filed this federal habeas corpus action on October 15, 2012, and he filed an Amended Petition for Writ of Habeas Corpus on December 28, 2012 in which he raises the following claims:

1. The trial court's denial of petitioner's motion for a continuance was a denial of his right to counsel and denied him his ability to effectively represent himself because: (a)petitioner was unable to present his defense of due process and lack of notice which can only be presented in a pretrial demurrer; and (b) it prevented petitioner from calling an independent expert witness on securities to corroborate his testimony and defense;
2. The trial court's denial of petitioner's motion for a continuance constituted a due process violation because he did not have adequate time to prepare for trial, it prevent him from meeting and investigating witnesses before trial, and it prevented him from reviewing exculpatory evidence such as business records and witness statements before trial;
3. Petitioner's conviction was obtained by the unconstitutional failure of the prosecution and the court to disclose ...

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