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Fallis v. Nooth

United States District Court, D. Oregon

February 20, 2015

BRYAN ERWIN FALLIS, Petitioner,
v.
MARK NOOTH, Respondent.

BRYAN ERWIN FALLIS, Snake River Correctional Institution, Ontario, OR, Petitioner Pro Se.

ELLEN F. ROSENBLUM, Attorney General, FREDERICK M. BOSS, Deputy Attorney General, SAMUEL A. KUBERNICK, Assistant Attorney General, Department of Justice, Salem, OR, Attorneys for Petitioner.

OPINION AND ORDER

OWEN M. PANNER, District Judge.

Petitioner, an inmate at the Snake River Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the court DENIES the Petition for Writ of Habeas Corpus.

BACKGROUND

On October 21, 2008, a Lane County grand jury indicted Petitioner on three counts of Rape in the First Degree, six counts of Sodomy in the First Degree, three counts of Sexual Abuse in the First Degree, two counts of Using a Child in Display of Sexually Explicit Conduct, one count of Failure to Register as a Sex Offender (Felony) one count of Failure to Register as a Sex Offender (Misdemeanor), and one count of Unlawful Possession of Methamphetamine. The charges stemmed from petitioner's repeated abuse of his nine-year-old daughter.

On the state's motion, the trial court dismissed three charges: one count each of Sodomy in the First Degree, Sexual Abuse in the First Degree, and Using a Child in Display of Sexually Explicit Conduct. Petitioner pleaded guilty to Failure to Register as a Sex Offender (Felony), Failure to Register as a Sex Offender (Misdemeanor), and Unlawful Possession of Methamphetamine. A jury found Petitioner guilty of the remaining counts. The trial judge sentenced Petitioner to a total of 970 months of imprisonment, followed by a period of post-prison supervision.

Petitioner filed a direct appeal, assigning error to the trial court's denial of a motion to suppress evidence. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. Fallis, 243 Or.App. 643, 257 P.3d 432, rev. denied, 350 Or. 574, 258 P.3d 1240 (2011).

Petitioner then sought state post-conviction relief ("PCR"). The PCR trial court dismissed the PCR petition on the state's motion for summary judgment. Petitioner appealed, and the Oregon Court of Appeals ultimately dismissed the appeal because Petitioner failed to properly serve the Notice of Appeal on the Oregon Attorney General as required by O.R.S. §§ 138.071(1) and 138. 081 (1) (a) (A). The Oregon Supreme Court denied review. Resp. Exh. 140.

On January 23, 2014, petitioner filed his Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 in this court. Petitioner alleges the following grounds for relief:

Ground One: Conviction was obtained by use of a fatally defective charging instrument that failed to confer subject matter jurisdiction to the trial court. Supporting Facts:
1. The "statutes" cited failed to rise to the state constitutional standard of "law" in that:
(a) the statutes used did not contain any ...

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