United States District Court, D. Oregon
JOHN ALLEN TUTOR, Iron River, WI Petitioner Pro Se.
ELLEN F. ROSENBLUM, Attorney General, KRISTEN E. BOYD, Assistant Attorney General Department of Justice, Salem, OR. Attorneys for Respondent.
OPINION AND ORDER
ANNA J. BROWN, District Judge.
Petitioner, a former inmate of the Oregon Department of Corrections, brings this habeas corpus action pursuant to 28 U.S.C. § 2254 pro se. For the reasons that follow, the Court DENIES the Petition for Writ of Habeas Corpus (#2).
On June 25, 2001, a Klamath County grand jury indicted Petitioner on three counts of Sexual Abuse in the First Degree involving Petitioner's three granddaughters, who were seven-, five-, and two-years of age at the time. The case was tried to a jury, who acquitted Petitioner of the charge pertaining to the two-year-old, and convicted Petitioner of the other two charges. The trial judge sentenced Petitioner to two consecutive mandatory-minimum sentences of 75 months of imprisonment.
Petitioner filed a direct appeal, but the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. Tutor, 194 Or.App. 328, 95 P.3d 756, rev. denied, 337 Or. 616, 103 F.3d 639 (2004), and rev. denied, 338 Or. 301 , 109 P.3d 375 (2005). Petitioner then filed a petition for state post-conviction relief ("PCR") Following an evidentiary hearing, the PCR trial judge denied relief. The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Tutor v. Hall, 233 Or.App. 644, 227 P.3d 1242, rev. denied, 348 Or. 461 , 234 P.3d 983 (2010).
On December 6, 2010, Petitioner filed his pro se Petition for Writ of Habeas Corpus in this Court. In it, Petitioner alleges the following grounds for relief:
Ground One: "Actual Innocence of Crime" A person is actually innocent unless and until the state proves beyond a reasonable doubt each and every element of the offense charged, including the basis act and intent.
1. The indictment charges only the act.
2. The state admits the only evidence they may have is of the act.
3. The prosecutor misled the court and jury by stating guilty can be found on the act element only.
4. The state offered no corroboration of the act, other than inconsistent hearsay, out-of-court statements, interviewer's assumptions, and expert testimony, all without physical evidence.
5. Oregon higher courts have ruled that corroboration of the act is necessary and an expert witness's testimony must be backed by physical evidence or the admittance of said testimony is reversible error.
6. The trial court erred in admitting the victims' out-of-court statements under Crawford v. Washington, 541 U.S. 36 (2004).
7. The trial judge never instructed the jury of the need to find mens rea.
Ground Two: "Actual Innocence of Sentence" Petitioner's sentence violates the Fifth, Sixth, Eighth, and Fourteenth Amendments of the U.S. Constitution, and "any number" of state constitutional provisions and laws.
1. The trial judge improperly applied Oregon law in sentencing Petitioner, resulting in a double jeopardy violation.
2. The trial judge improperly imposed upward departure sentences.
3. The trial judge improperly imposed a juvenile sentence on Petitioner, who is an adult.
Ground Three: Prosecution or Governmental Misconduct or Malicious Prosecution (at trial court level).
1. Petitioner was tried without probable cause.
2. The prosecution presented misleading, prejudicial, or both evidence.
3. The failure failed to investigate possible exculpatory evidence.
4. The trial judge failed to allow Petitioner allocution.
5. Improper jury instructions, no instruction on mens rea.
6. The state changed the evidence.
7. The state misrepresented laws or facts, or both.
8. The trial judge was biased.
Ground Four: Court's Misconduct at state Post Conviction Court, state Appellate Court, and State Supreme Court.
1. PCR court erred by not accepting any pro se material, violating Petitioner's right to access to the court and to represent one's self.
2. Due process requires the Oregon Court of Appeals to adjudicate all cases on the merits of each issue, not just issue a "rubber stamp" affirm without opinion.
3. The Oregon Supreme Court did not abide by its prior rulings.
Ground Five: Ineffective assistance of trial counsel; or functional denial of counsel at trial.
1. Failure to make proper motions or objections or both.
2. Failure to investigate "any thing."
3. Breach of attorney-client confidence.
4. The introduction of prior ...