United States District Court, D. Oregon
Anthony D. Bornstein, Assistant Federal Public Defender, Portland, Oregon, Attorney for Petitioner.
Ellen F. Rosenblum, Attorney General, Kristen E. Boyd, Assistant Attorney General, Department of Justice, Salem, Oregon, Attorneys for Respondent.
OPINION AND ORDER
MICHAEL H. SIMON, District Judge.
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his state-court Racketeering conviction. For the reasons that follow, the Petition for Writ of Habeas Corpus (#2) is denied.
On May 7, 2009, the Clackamas County Grand Jury indicted petitioner on charges of Racketeering and Conspiracy to Commit Racketeering. Respondent's Exhibit 102. On the morning his trial was scheduled to commence, he appeared before the Clackamas County Circuit Court and asked the trial judge for a continuance and to substitute counsel. Respondent's Exhibit 104. The trial court refused to set the trial over or appoint new counsel, noting that petitioner had "already had one or possibly two other attorneys representing [him] in this matter." Id at 4.
Also on the morning of trial, the State was contemplating bringing new criminal charges against petitioner in Clackamas County. This prompted the court to advise petitioner that if it arraigned him on new charges, not only would he lose seven months of credit for time served, but he would face a possible 30-year sentence instead of the 15-year sentence offered by the State. Id at 6. The court informed him that if he accepted the State's plea offer, it would be inclined to impose a 15-year sentence and allow him credit for the seven months he had spent in custody up to that point. The court also advised petitioner that he could also benefit from a good-time sentence reduction of 20%. Id at 8.
Petitioner ultimately accepted the State's plea offer, entered a no-contest plea to Racketeering, received a 15-year sentence, and was credited with seven months time served. In exchange, the State agreed to: (1) dismiss the Conspiracy charge; (2) refrain from filing a new indictment with additional charges; (3) waive prosecution for additional charges in any other county; and (4) not recommend petitioner's case for prosecution to the United States Attorney's Office. Respondent's Exhibit 103, p. 1; Respondent's Exhibit 105, p. 4.
Petitioner filed for post-conviction relief ("PCR") alleging that he was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments:
Petitioner claims he was unduly pressured by defense counsel to accept his no-contest plea agreement on the scheduled trial date. Petitioner claims defense counsel advised him, if he did not accept the plea agreement, he would be: convicted at trial and receive a twenty year prison sentence; be charged in a second Indictment; lose seven months credit for time served - if convicted of new charges in the second Indictment; and likely receive a thirty year prison sentence if convicted of charges in the second Indictment.
Petitioner claims his decision to waive his right to a jury trial and enter a no-contest plea was not knowing, voluntary and intelligently made under the circumstances.
Respondent's Exhibit 106, pp. 2-3 (emphasis in original)
The PCR trial court denied relief on these claims, finding the plea bargain to be favorable to petitioner. It determined that while petitioner may have felt some pressure given the limited choices he had, he knowingly and voluntarily entered his no-contest plea "based on the realities of the situation." Respondent's Exhibit 112, p. 14.
Petitioner appealed the PCR trial court's decision, but his attorney filed a Balfour brief when he could not identify any non-frivolous issues to present. Petitioner filed a pro se Section B wherein he did not pursue the claims at issue in the PCR trial court, but instead faulted counsel for failing to: (1) adequately investigate the case; (2) prepare petitioner's testimony; and (3) "know the law." Respondent's Exhibit 114. As it does in most cases, the Oregon Court of Appeals affirmed the PCR trial court's decision without issuing a written opinion. Carrillo-Carrillo v. Coursey, 254 Or.App. 418, 295 P.3d 695 (2012). Petitioner filed a Petition for Review with the Oregon Supreme Court in ...