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Jacob v. Persson

United States District Court, D. Oregon

January 20, 2015

ANDRE RAMON JACOB, Petitioner,
v.
ROB PERSSON, Superintendent, Oregon State Correctional Institution, Respondent.

ANDRE RAMON JACOB Oregon State Correctional Institution Salem, Oregon, Petitioner, Pro Se.

ELLEN F. ROSENBLUM, Attorney General, SAMUEL A. KUBERNICK, Assistant Attorney General Department of Justice, Salem, Oregon, Attorneys for Respondent.

OPINION AND ORDER

MALCOLM F. MARSH, District Judge.

Petitioner, an inmate at the Oregon State Correctional Institution, brings this habeas corpus proceeding pursuant to 28 U.S.C. 2254. In two grounds for relief, petitioner challenges the constitutionality of a 30-year gun minimum sentence imposed pursuant to a 2002 state robbery conviction, on the basis that it is premised upon prior state convictions which are illegal or unconstitutional for a variety of reasons.

Respondent moves the court to deny habeas relief on the basis that the Supreme Court's holding in Lackawanna Cnty. Dist. Attorney v. Coss, 532 U.S. 394 (2001), precludes petitioner from collaterally attacking his prior state convictions in this proceeding and, therefore, habeas relief is not warranted. For the reasons set forth below, petitioner's third amended habeas petition (#68) is DENIED, and this proceeding is DISMISSED, with prejudice.

BACKGROUND

Petitioner has been convicted three times of felonies involving the use or threatened use of firearms. On December 2, 1982, petitioner was convicted after a jury trial of Robbery in the First Degree with a Firearm (two counts), Burglary in the First Degree, and Kidnapping in the Second Degree (two counts). Habeas Petition (#1), 12/2/82 Transcript (TR) at 161-62. At a subsequent sentencing hearing held on January 21, 1983, the Honorable John J. Murchison orally imposed a five-year gun minimum sentence. Habeas Petition (#1), 1/21/83 Transcript at 168 & 170-72. The written judgment signed by Judge Murchison on January 25, 1983, provides as follows: "[T]he court FINDS beyond a reasonable doubt that [petitioner] used a firearm during the commission of Count II." Resp. Exh. 101 at 33-34; Pet.'s Memo. in Support (#71), Exh. D-1.

During the time between the 1982 guilty verdict and the 1983 sentencing, the Oregon Supreme Court held that the subsections of ORS 161.610 (1981) (permitting the court, as opposed to a jury, to make the necessary factual finding for the imposition of a gun minimum), violated a defendant's right to a jury under the Oregon Constitution. See State v. Wedge, 293 Or. 598, 607-08, 652 P.2d 773 (1982). Despite this ruling, petitioner did not subsequently challenge the constitutionality of his sentence under Wedge (or otherwise) on direct appeal or in a state post-conviction proceeding. State v. Jacob, 344 Or. 181, 184 & 192, 180 P.3d 6 (2008).

In 1991, petitioner pled guilty to Robbery in the First Degree with a Firearm, and Attempted Assault in the First Degree. Resp. Exh, 101. The trial court imposed a 10-year gun minimum on the robbery conviction. Id .; Jacob, 344 Or. at 184 & 187 n.7. During the 1991 criminal proceeding, petitioner did not challenge the lawfulness of his 1982 conviction or sentence during trial, on direct appeal, or in a state post-conviction proceeding. Jacob,

In 2002, petitioner was convicted of two counts of Robbery in the First Degree with a Firearm following a stipulated facts trial. Resp. Exh. 101. The prosecution requested that defendant receive a 30-year gun minimum sentence pursuant to ORS 161.610(4)(c) (2001).[1] Instead, the trial court imposed a 10-year gun minimum, opining that petitioner's 1983. gun-minimum sentence should not be taken into account because the factual finding necessary for the minimum sentence was made by the trial judge and not a jury. Jacob, 344 Or. at 184; Resp. Exh. 106 at 22.

On appeal, however, the Oregon Supreme Court reversed the trial court and remanded for resentencing, opining that state law precluded petitioner from collaterally attacking the legality of his 1983 sentence. Jacob, 344 Or. at 188-92. Additionally, the Oregon Supreme Court held that, even if petitioner could collaterally attack his 1983 sentence, the alleged invalidity of his 1983 sentence would be of no assistance to him because "the terms of ORS 161.610(4)(c) required the imposition of a 30-year gun minimum sentence because defendant was convicted of a gun crime after he had been imprisoned pursuant to ORS 161.610(4) (b)." Jacob, 344 Or. at 193 (emphasis added).

On remand, the trial court imposed the 30-year gun minimum sentence pursuant to ORS 161.610(4)(c). Resp. Exh. 101. Petitioner's appeal from resentencing was summarily dismissed, and the Oregon Supreme Court denied review. Resp. Exhs. 116, 119 & 125 & 128. Petitioner did not seek state post-conviction relief.

DISCUSSION

In Lackawanna Cnty. Dist. Attorney v. Coss , the United States Supreme Court held that "once a state conviction is no longer open to direct or collateral attack in its own right, because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid." 532 U.S. at 403. Hence, "[i]f that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced ...


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