United States District Court, D. Oregon
Michelle Sweet, Assistant Federal Public Defender, Portland, Oregon, Attorney for Petitioner.
Ellen F. Rosenblum, Attorney General, Samuel A. Kubernick, Assistant Attorney General Department of Justice, Salem, Oregon, Attorneys for Respondent.
OPINION AND ORDER
MARCO A. HERNANDEZ, District Judge.
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his state-court convictions for Robbery. For the reasons that follow, the Amended Petition for Writ of Habeas Corpus (#22) should be denied.
In August 2009, petitioner attempted to steal a bottle of lice shampoo from Hirons, a drug store in Eugene. When he was spotted by two store employees, he threatened them with a knife and ultimately escaped. The Lane County Grand Jury indicted petitioner on two counts of Robbery in the First Degree, two counts of Menacing, and one count of Interfering with a Peace Officer. Respondent's Exhibit 102.
Petitioner had also been charged in five other criminal cases where he faced an aggregate sentencing exposure of 108 months in prison. He ultimately executed a plea deal in the August 2009 Lane County robbery case wherein he resolved all outstanding charges against him. Petitioner pleaded guilty to two counts of Robbery in the First Degree and received a sentence totaling 120 months in prison. In exchange, the State dropped all other pending charges against him in all six cases.
Petitioner took a direct appeal, but that case was ultimately dismissed on jurisdictional grounds when petitioner failed to respond to an order of the Appellate Commissioner requiring him to present a colorable claim of error. Respondent's Exhibit 107. Petitioner did not seek review in the Oregon Supreme Court.
Petitioner next filed for post-conviction relief ("PCR") in Malheur County where the PCR trial court denied relief. Respondent's Exhibit 140. During the subsequent appeal, petitioner's attorney presented the Oregon Court of Appeals with a Balfour Brief, and petitioner provided claims in a Section B portion of the Brief. The Oregon Court of Appeals affirmed the lower court's decision without issuing a written opinion, and the Oregon Supreme Court denied review. Thompson v. Nooth, 256 Or.App. 760, 302 P.3d 1218, rev. denied 353 Or. 868, 306 P.3d 640 (2013).
Petitioner filed this federal habeas corpus action on November 7, 2013 and the court appointed counsel to assist him. With the assistance of counsel, he filed an Amended Petition on May 14, 2014 wherein he raises the following grounds for relief:
1. Petitioner's constitutional right to adequate and effective assistance of counsel was violated due to the numerous instances of profession negligence and malfeasance on the part of trial and appellate counsel, most notably in regard to trial counsel inadequately investigating the case and then incorrectly influencing petitioner, directly and indirectly, to enter into a plea agreement that he would not and should not have ordinarily entered into.
2. Petitioner was denied his right to the effective assistance of counsel when his trial attorney failed to:
(A) Investigate the witnesses and facts of the incident at the Hirons store;
(B) Accurately advise Petitioner regarding the factual and legal basis needed to support a Robbery in ...