United States District Court, D. Oregon
STEVEN J. FREEMAN, Petitioner,
STEVEN FRANKE, Respondent.
ANTHONY D. BORNSTEIN, Assistant Federal Public Defender, Portland, 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 Amended Petition for Writ of Habeas Corpus.
On May 16, 2002, a Lane County grand jury issued a superseding indictment charging petitioner with twelve counts each of Sodomy in the First Degree and Sexual Abuse in the First Degree, six counts of Using a Child in Display of Sexually Explicit Conduct, five counts of Encouraging Child Sexual Abuse in the First Degree, and one count of Sodomy in the First Degree for a total of 36 charges. Resp. Exh. 103. After plea negotiations, on June 4, 2003, petitioner signed a Petition to Consent to be Found Guilty by Stipulated Facts Trial as to 17 of the charges against him. Resp. Exh. 104. The trial judge accepted the Petition, and found petitioner guilty of the agreed charges. Resp. Exh. 106. The trial judge sentenced petitioner to a consecutive sentences totaling 1, 240 months (103 years) of imprisonment. Resp. Exhs. 101, 107 p. 3.
Petitioner filed a direct appeal in which he asserted two assignments of error: (1)-was petitioner's 103 year sentence unconstitutionally cruel, unusual and/or disproportionate; and (2) did the trial court err in imposing sentence pursuant to Or. Rev. Stat. § 137.124 (Ballot Measure 11). Resp. Exh. 104, p. 4. The Oregon Court of Appeals affirmed without opinion, and the Oregon Court of Appeals denied review. State v. Freeman, 203 Or.App. 808, 129 P.3d 803, rev. denied, 340 Or. 483 , 135 P.3d 318 (2006).
Petitioner then filed a petition for state post-conviction relief ("PCR") alleging trial counsel provided ineffective assistance of counsel in several respects. Resp. Exh. 112. Following an evidentiary hearing, the PCR trial judge denied relief. Resp. Exh. 129. On appeal, petitioner's appellate counsel filed a brief in accordance with State v. Balfour, 311 Or. 434 (1991). Resp. Exh. 130. Petitioner did not avail himself of the opportunity to submit a section B argument. The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Freeman v. Nooth, 239 Or.App. 187, 245 P.3d 710 (2010), rev. denied, 349 Or. 601 , 248 P.3d 419 (2011).
On April 4, 2011, petitioner filed a pro se Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 in this court. The court appointed counsel to represent petitioner, and currently before the court is petitioner's Amended Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254. In it, petitioner alleges three claims for relief:
Ground One: Violation of the Sixth Amendment to the United States Constitution Ineffective Assistance of Trial Counsel.
Supporting Facts:' Trial counsel failed to have petitioner evaluated by a psychologist to determine whether petitioner met the standards for a defense of guilty except for insanity under Oregon law.
Ground Two: Violation of the Sixth Amendment to the United States Constitution Ineffective Assistance of Trial Counsel.
Supporting Facts: Trial counsel advised, permitted, and encouraged a stipulated facts trial, and corresponding waiver of trial rights, when, due to his limited mental functioning, petitioner was not able to make a knowing, voluntary, and intelligent waiver of the trial rights inherent in a stipulated facts trial, as required by the Fourteenth Amendment to the United States Constitution.
Ground Three: Violation of the Fourteenth Amendment to the United States Constitution Competency.
Supporting Facts: Petitioner's stipulated-facts trial occurred in violation of the Fourteenth Amendment to the United States Constitution, as applied in Drope v. Missouri, 420 U.S. 162 (1965) and Pate v. Robinson, 383 U.S. 375 (1966), because petitioner was not competent to stand trial.
Respondent contends habeas relief should be denied on all three claims because all are procedurally defaulted. Petitioner concedes procedural default, but in the counseled Brief in Support of Amended Petition for Habeas Corpus, petitioner argues the procedural default of the ineffective assistance of counsel claim alleged in Ground Two should be excused under Martinez ...