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Buss v. Premo

United States District Court, D. Oregon

July 31, 2014

PATRICK NICHOLAS BUSS, Petitioner,
v.
JEFF PREMO, Superintendent, Oregon State Penitentiary, Respondent.

THOMAS J. HESTER, Assistant Federal Public Defender, Portland, OR, Attorney for Petitioner.

ELLEN F. ROSENBLUM, Attorney General, SAMUEL A. KUBERNICK, Assistant Attorney General, Department of Justice, Salem, OR, Attorneys for Respondent.

OPINION AND ORDER

ANNA J. BROWN, District Judge.

Petitioner, an inmate at the Oregon State Penitentiary, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Court DENIES the Petition for Writ of Habeas Corpus.

BACKGROUND

On May 26, 2006, a Tillamook County grand jury indicted Petitioner on eight counts of using a child in a display of sexually explicit conduct, seven counts of third degree rape, three counts of third degree sodomy, and one count of furnishing alcohol to a minor. The charges arose from two encounters between Petitioner and his victim, a minor girl whom he met on the Internet in March 2006.

On March 26 and 27, 2006, Petitioner and the victim stayed at a motel in Tillamook County. Over the course of the weekend, Petitioner and the victim engaged in sexual intercourse several times and performed oral sex on each other. Petitioner also photographed the victim in different outfits, including a cheerleading uniform and some lingerie he had purchased for her.

On April 21, 22, and 23, 2006, Petitioner stayed with the victim at her home while her parents were away. During that visit, Petitioner and the victim again engaged in sexual intercourse and performed oral sex on each other. This time, Petitioner took explicit nude pictures of the victim on each of the three days.

On November 21, 2006, the prosecutor tendered a plea offer that would have required Petitioner to plead guilty to three counts of using a minor in a display of sexually explicit conduct and agree to three consecutive 70-month Ballot Measure 11 sentences, for a total of 210 months of imprisonment. Petitioner rejected the plea offer.

On January 18, 2007, Petitioner entered guilty pleas to all but five counts of the indictment.[1] The plea petition signed by Petitioner indicated that sentencing would be "open." The plea petition stated the presumptive sentence, minimum sentence, and maximum sentence for each count, and stated that the trial court could order the sentences to be served concurrently or consecutively, unless prohibited by Oregon law.

At the plea hearing, the trial judge engaged in a colloquy with Petitioner. The judge established that counsel had reviewed the petition with Petitioner and had answered all of his questions, and also that Petitioner understood the maximum penalties for each conviction. The judge accepted the plea "as having been knowingly and voluntarily made with a factual basis for each, " and scheduled a sentencing hearing for April 13, 2007. Resp. Exh. 104, p. 8.

At the scheduled sentencing hearing, a question arose about whether the dates and times provided in reports submitted by the prosecutor were accurate as to when certain photographs were taken. The court and counsel determined that the prosecution would be required to provide defense counsel additional information in the form of "spec sheets, " which would include the exact date and time of each digital image. The sentencing was reset to May 25, 2007. When the case was called on May 25, 2007, the state still had not produced the requested data and the case was again continued.

At the sentencing hearing on June 29, 2007, the state recommended a sentence totaling 360 months of imprisonment. The state called Sergeant Tom Nelson from the Deschutes County Sheriff's Office as its first witness. Sergeant Nelson testified about the date and times of the various photographs from March 26-27, 2006, and April 21-23, 2006, based on "EXIF" data embedded in the digital images. He testified that the March images were taken on the night of the 26th, and on both the morning and evening of the 27th. As to the April images, Nelson testified that the EXIF data showed the first image was taken at 10:14 p.m. on April 20, 2006. Then there was an image taken 121 minutes later, at 12:15 a.m. on April 22, 2006. At 2:43 p.m. on the afternoon April 22, 2006, there were several images taken just seconds apart. Finally, Nelson testified that three additional images were taken at 8:58 and 8:59 a.m. on April 23, 2006.

The state also called the lead investigating officer from Tillamook County, Jana McCandless. She testified that in the photos from March 26-27, 2006, the victim was wearing underwear and a t-shirt. McCandless described the April images as coming in three groups, and testified that they were taken in the victim's home. Unlike the March pictures, these images involved "full nudity."

Petitioner's attorney argued Petitioner should receive the mandatory minimum sentence of 70 months of imprisonment on the first count of using a child in a display of sexually explicit conduct, and asked the court to order the rest of the sentences to run concurrently. Trial counsel presented the testimony of Dr. Richard King, a psychologist who performed a psychosexual evaluation of Petitioner. King testified that Petitioner was amenable to treatment and that a lengthy prison sentence would make him more likely to re-offend. Petitioner's mother also testified that the conduct that led to the charges was "shocking" to her, and "out of character" for Petitioner.

The trial judge found Petitioner took photographs of the victim on three separate days in April, and "that there [were] therefore three discrete actions." Resp. Exh. 104, pp. 121-22.

Thus, Petitioner's actions were "not a continuous and uninterrupted course of conduct; that instead there [were] significant breaks of time during... which [Petitioner] had a chance to reconsider to not take the next series of photographs." Resp. Exh. 104, p. 121. The judge sentenced Petitioner to consecutive terms of 70 months of imprisonment on each of three counts of using a child in a display of sexually explicit conduct, and a consecutive 30-month term on one count of third-degree rape, for a total of 240 months of incarceration. As to the remaining counts, the trial judge imposed concurrent sentences.

Petitioner filed a direct appeal, raising as his single claim of error that the trial court erred in imposing consecutive sentences. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. Buss, 228 Or.App. 756, 210 P.3d 945, rev. denied, 346 Or. 589 , 214 P.3d 821 (2009).

Petitioner then filed a petition for state post-conviction relief ("PCR"). Following an evidentiary hearing, the PCR trial judge denied relief. On appeal, the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Buss v. Premo, 246 Or.App. 82, 262 P.3d 405, rev. denied, 351 Or. 507 , 272 P.3d 742 (2011).

On August 24, 2012, Petitioner filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court. Petitioner alleges one ground for relief: "Ineffective Assistance of Trial Counsel (Sixth and Fourteenth Amendments) where trial counsel failed to provide suitable counsel." The Court appointed counsel to represent Petitioner, and in the counseled Brief in Support of Petition for Writ of Habeas Corpus, Petitioner argues trial counsel was ineffective in two respects: (1) advising Petitioner to reject the State's plea offer of 210 months of imprisonment; and (2) failing, until after the plea had already been entered, to obtain data from digital photographs demonstrating when the images were taken. Petitioner argues that had he been properly advised, he would have accepted the ...


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