United States District Court, D. Oregon
NELL BROWN, Assistant Federal Public Defender, Portland, Oregon. Attorney for Petitioner
ELLEN F. ROSENBLUM, Attorney General, NICK M. KALLSTROM, Assistant Attorney General, Department of Justice Salem, Oregon. Attorneys for Respondent
OPINION AND ORDER
MALCOLM F. MARSH, District Judge.
Petitioner, an inmate at the Eastern Oregon Correctional Institution, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons set forth below, petitioner's habeas petition is denied.
On December 4, 2006, petitioner was convicted by a jury of one count of Sexual Abuse in the Second Degree (Marion County Case No. 06C41696). Resp. Exh. 136. His conviction arose out of a sexual relationship with his girlfriend "V.M., " who was seventeen years old at the time of the offense. Additionally, petitioner was convicted of one count of Tampering with a Witness as a result of telephone calls petitioner made to V.M. after petitioner was indicted (Marion County Case No. 06C49817). The trial court imposed an upward departure sentence of 60 months for the sexual abuse conviction, and a consecutive 60-month departure sentence for tampering with a witness. Resp. Exh. 101 at 4-7.
Petitioner filed a direct appeal assigning error to the trial court's refusal to give a proposed jury instruction and the imposition of upward departure sentences. Resp. Exhs. 106 & 108. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. Bravo, 225 Or. Ap. 219, 200 P.3d 641, rev, denied, 346 Or. 364 (2009).
Petitioner subsequently sought state post-conviction relief on the basis that he received ineffective assistance of counsel. Resp. Exh. 129 at 8-10. The post-conviction court denied relief, the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Bravo v. Coursey, 252 Or.App. 318, 290 P.3d 910 (2012), rev. denied, 353 Or. 203 (2013). In the instant proceeding, petitioner alleges that the trial court erred in instructing the jury and imposing departure sentences, and that defense counsel rendered ineffective assistance of counsel.
I. State Law Violations (Grounds One, Two and Three)
In Grounds for Relief One, Two, and Three, petitioner alleges that the trial court erred in refusing to give petitioner's requested instruction on the defense of renunciation, and by imposing upward departure sentences on each of his convictions.
It is well settled that federal habeas corpus relief is available to a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Swarthout v. Cooke, 131 S.Ct. 859, 861 (2011); Wilson v. Corcoran, 131 S.C.t. 13, 15 (2010) ( per curiam ). Because Grounds for Relief One, Two and Three are premised upon state law violations, habeas relief is not warranted.
II. Procedural Default (Ground Six)
Generally, a state prisoner must exhaust all available State law 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 federal claim is procedurally defaulted if the petitioner does not fairly present his federal claims to the appropriate state courts at all appellate stages afforded under state law, and state procedural rules would now bar consideration of the claims. O'Sullivan v. Boerckel, 526 U.S. 838, 845, 848 (1999); Cooper v. Neven, 641 F.3d 322, 327-28 (9" Cir. 2011). Habeas review of procedurally defaulted claims is precluded absent a showing of cause and prejudice, or that failure to consider the federal claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
In Ground for Relief Six, petitioner alleges trial counsel was ineffective for failing to object to the judgments of conviction that "impermissibly created indeterminate terms of post-prison supervision." Although petitioner raised ground six in his formal petition for post-conviction relief, he failed to raise this issue on appeal to the Oregon Court of Appeals, and in his petition for review to the Oregon Supreme Court. Compare Resp.'s Exh. 130 with Resp.'s Exhs. 142 & 145. Accordingly, ground six is procedurally defaulted. Because petitioner offers no basis to excuse his procedural default, habeas relief is precluded.
III. Ineffective Assistance of Counsel (Grounds Four and Five)
In Grounds for Relief Four and Five, petitioner alleges that trial counsel rendered ineffective assistance by failing to (1) ensure that petitioner's waiver of his right to testify was knowing, voluntary and intelligent; and (2) object to the trial court's use of the victim's age as an aggravating factor to impose an upward departure sentence for Sexual Abuse in the Second Degree. Respondent moves the court to deny habeas relief on ...