United States District Court, D. Oregon
TONIA L. MORO, Medford, OR, Attorney for Petitioner.
ELLEN F. ROSENBLUM, Attorney General, KRISTEN E. BOYD, Assistant Attorney General, Department of Justice, Salem, OR, Attorneys for Respondent.
OPINION AND ORDER
OWEN M. PANNER, District Judge.
Petitioner, an inmate at the Two Rivers Correctional Institution, 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 (#2).
On March 27, 2002, a Multnomah County grand jury indicted petitioner on two counts of Aggravated Murder and one count each of Robbery in the First Degree with a Firearm and Felon in Possession of a Firearm. The charges arose from petitioner's actions on March 11, 2002, when he shot and killed the victim in the middle of the day on a downtown Portland street, in the presence of numerous witnesses.
At trial, petitioner presented a defense that he was impaired by mental disease or defect. He presented evidence that he believed the victim was a pedophile and rapist who had raped a friend of petitioner's. The jury convicted petitioner on ail charges and, following a penalty-phase trial, sentenced petitioner to life without the possibility of parole. Petitioner filed a direct appeal, but the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. Heinz, 212 Or.App. 218, 157 P.3d 796, rev. denied, 342 Or. 727 , 160 P.3d 992 (2007).
Petitioner then sought state post-conviction relief ("PCR"). Following an evidentiary hearing, the PCR trial judge denied relief. Petitioner appealed, but the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Heinz v. Hall, 241 Or.App. 572, 250 P.3d 464, rey. denied, 350 Or. 423, 256 P.3d 1097 (2011).
On August 8, 2011, petitioner filed his pro se Petition for Writ of Habeas Corpus in this court alleging numerous claims of ineffective assistance of trial and appellate counsel. The court appointed counsel to represent petitioner, and in the counseled Brief in Support of Petition for Writ of Habeas Corpus, petitioner argues two claims of ineffective assistance of trial counsel. In the first claim, Petitioner argues trial counsel failed to properly advise petitioner about the wisdom of accepting a plea offer because in three respects:: (1) counsel failed to inform petitioner that a certain witness would not testify; (2) counsel failed to advise petitioner the prosecution could prove venue on the robbery charge; and (3) counsel failed to determine before trial whether evidence of an incident in Klamath Falls would be admitted. In his second claim, petitioner argues counsel failed to properly object at trial to the testimony of the state's expert witness.
Respondent argues petitioner procedurally defaulted all the claims alleged in his petition except two: (1) his claim that counsel was ineffective for failing to inform Petitioner that witness Kimberly Anderson would not be available to testify at trial; and (2) that petitioner would have accepted the plea offer had he known Anderson would not testify. As to those two claims, Respondent argues the PCR trial court's decision denying relief was not contrary to or an unreasonable application of clearly established federal law and, as such, entitled to deference.
Petitioner does not concede he procedurally defaulted any claims. Petitioner does, however, request an evidentiary hearing so he may establish cause and prejudice under Martinez v. Ryan, 132 S.Ct. 1309 (2012) to excuse any failure to exhaust any claims which may have been defaulted.
I. Procedural Default
Generally, a state prisoner must exhaust all available state court remedies either on direct appeal or through collateral proceedings before a federal court may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1). A state prisoner satisfies the. exhaustion requirement by "fairly presenting" his claim to the appropriate state courts at all appellate stages afforded under state law, including a state supreme court with powers of ...