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Nickelson v. Franke

United States District Court, D. Oregon

September 25, 2014

STEVE FRANKE, Respondent.

ADRIAN LYNN NICKELSON Umatilla, OR, Petitioner Pro Se.

ELLEN F. ROSENBLUM, Attorney General, NICHOLAS M. KALLSTROM, Assistant Attorney General, Oregon Department of Justice Salem, OR, Attorneys for Respondent.


ANNA J. BROWN, District Judge.

Petitioner, an inmate at the Two Rivers Correctional Institution, 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 (#3).


On August 28, 2003, Petitioner participated in a home invasion robbery during which Petitioner and one or more of his three co-defendants beat the victim to death. On September 8, 2003, a Clackamas County Grand Jury indicted Petitioner on six counts of Aggravated Murder and three counts each of Murder, Robbery in the First Degree, Kidnapping in the First Degree, and Burglary in the First Degree. Resp. Exh. 103. The prosecution sought the death penalty. Resp. Exh. 103.

The trial judge appointed two attorneys to represent Petitioner. The attorneys moved to suppress a confession Petitioner made to detectives upon his arrest on the grounds that the confession was involuntary and that Petitioner's waiver of his Miranda rights was not knowing and voluntary. Resp. Exh. 134. Following a three-day hearing, the trial judge denied the motion to suppress. The judge found Petitioner's Miranda waiver was valid and that his confession was voluntary. Resp. Exh. 171.

Petitioner subsequently became dissatisfied with counsel. The trial judge permitted both attorneys to withdraw and appointed two new attorneys to represent Petitioner. Resp. Exh. 171. Shortly before the case was scheduled for trial the parties participated in a settlement conference moderated by Clackamas County Judge Robert D. Herndon. Resp. Exh. 103, p. 4. As a result, Petitioner agreed to plead guilty to one count each of Robbery in the Second Degree, Burglary in the First Degree, and Aggravated Murder. Resp. Exh. 103, p. 18. Pursuant to the terms of the plea agreement, Judge Herndon sentenced Petition to life with the possibility of parole on the Aggravated Murder charge, 90 months of imprisonment on the Robbery charge, and 66 months of imprisonment on the Burglary charge. Resp. Exh. 101.

Petitioner did not file a direct appeal, but did seek state post-conviction relief ("PCR"). In the state PCR proceeding, Petitioner alleged claims of ineffective assistance of counsel, prosecutorial misconduct, and government misconduct. Resp. Exhs. 165, 166. Following an evidentiary hearing, the PCR trial court denied relief. Resp. Exh. 168. Petitioner appealed, but the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied relief. Nickelson v. Mills, 241 Or.App. 723, 250 P.3d 992, rev. denied, 350 Or. 573 , 285 P.3d 1239 (2011).

On September 23, 2011, Petitioner filed a pro se Petition for Writ of Habeas Corpus in this Court alleging 129 separate claims for relief. In response, Respondent argued Petitioner procedurally defaulted all but two claims for relief, and that those two grounds were correctly denied in the state court PCR proceedings.

This Court appointed Counsel to represent Petitioner. In the counseled Memorandum of Points and Authorities in support of the habeas petition, Petitioner argues habeas corpus relief should be granted on three grounds: (1) Petitioner's trial lawyers were ineffective in their investigation and presentation of a defense, and in counseling Petitioner to enter a guilty plea; (2) the trial court violated Petitioner's constitutional rights when it denied the motion to suppress Petitioner's post-arrest statements; and (3) the Oregon PCR trial and appellate courts failed to follow clearly established Federal law, as determined by the United States Supreme Court. Petitioner argues he exhausted all claims for relief, and seeks an evidentiary hearing.

Pursuant to this Court's March 27, 2014, Order, counsel for Petitioner was granted leave to withdraw, and the Court appointed substitute counsel. Pursuant to this Court's September 16, 2014, Order, substitute counsel was relieved and Petitioner ordered to proceed pro se.


I. Procedural Default

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). Furthermore, to properly exhaust a claim the petitioner must present the federal claim to the state courts in a procedural context in which the claim's 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).

"In Oregon, most trial errors must be raised by direct appeal to the Oregon Court of Appeals." Kellotat v. Cupp, 719 F.2d 1027, 1030 (9th Cir. 1983). However, violations of a defendant's rights which require a further evidentiary hearing for their determination, such as a claim of ineffective assistance of trial counsel, are appropriately determined upon post-conviction review. Id .; see also State v. McKarge, 78 Or.App. 667, 668, 717 P.2d 656 (1986) (claim of ineffective assistance of counsel may only be resolved in post-conviction proceeding).

If a petitioner has failed to fairly 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).

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).

Here, Petitioner did not file a direct appeal, and the time to do so has long since expired. See Or. Rev. St. § 138.071 (direct appeals must be filed not later than 30 days after the judgment order appealed from was entered). As such, to the extent Petitioner alleges or argues claims that the trial court erred, including specifically the argument in his Memorandum that the trial court violated Petitioner's rights by denying the motion to suppress his post-arrest statements, Petitioner's claims are procedurally defaulted.

In the state PCR proceeding, Petitioner presented numerous claims to the PCR trial court. On appeal to the Oregon Court of Appeals, Petitioner's counseled Appellant's Brief asserted two assignments of error: (1) "Petitioner is Entitled to Post-Conviction Relief Based on Trial Counsel's Advice that Pleading Guilty Would not Bar Appellate Review and Post-Conviction Relief with Regard to the Motion to Suppress;" and (2) "Petitioner is Entitled to Post-Conviction ...

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