United States District Court, D. Oregon
TONIA MORO, Medford, OR, Attorney for Petitioner.
ELLEN F. ROSENBLUM, Attorney General, FREDERICK M. BOSS, Deputy Attorney General, KRISTEN E. BOYD, Assistant Attorney General, Department of Justice, Salem, OR, Attorneys for Respondent.
OPINION AND ORDER
ANNA J. BROWN, District Judge.
Petitioner, an inmate at the Eastern Oregon Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. Currently before the Court are the Petition for Writ of Habeas Corpus (#1), Petitioner's Motion for Leave to File Amended Petition (#71), and Petitioner's Motion for Authorization to Issue Subpoena Duces Tecum (#89).
On October 3, 1986, a Deschutes County grand jury indicted Petitioner on five counts of Sodomy in the First Degree, five counts of Sexual Abuse in the First Degree, and one count of Attempted Rape in the First Degree. Resp. Exh. 102. The victim was Petitioner's daughter, and the charges arose from a series of incidents which occurred from October 1986 to April 1992. Resp. Exh. 102,
A jury convicted Petitioner on all eleven counts. Resp. Exh. 101. The trial judge sentenced Petitioner on counts one through five (Sodomy in the First Degree) to a term of 240 months of imprisonment, with a 120-month minimum. Id. On counts six through ten (Sexual Abuse in the First Degree), the court sentenced Petitioner to a term of 60 months of imprisonment, with a 30-month minimum, consecutive to the sentence for counts one through five. Id. On count eleven (Attempted Rape in the First Degree), Petitioner was sentenced pursuant to sentencing guidelines to an upward departure term of 90 months of imprisonment. Id. Petitioner's current projected release is 2033. Id.
Petitioner filed a direct appeal, asserting two claims of error: (1) the trial court erred when it ordered a departure sentence on count eleven; and (2) the trial court erred when it ordered consecutive sentences on counts two, three, four, five, six, seven, eight, nine, and ten. Resp. Exh. 106, p. I). The Oregon Court of Appeals found the sentence plainly erroneous and vacated and remanded for re-sentencing. State v. Erickson, 205 Or.App. 555, 134 P.3d 1114 (2006).
The state petitioned the Oregon Supreme Court for review, arguing the Court of Appeals erred in exercising plain error review. Resp. Exh. 109. The Oregon Supreme Court granted review, vacated the decision of the Court of Appeals, and remanded the case to the Court of Appeals for reconsideration in light of State v. Ramirez, 343 Or. 505, 173 P.3d 817 (2007), adh'd to on recons., 344 Or. 195, 179 P.3d 673 (2008), and State v. Fults, 343 Or. 515, 173 P.3d 822 (2007). State v. Erickson, 345 Or. 315, 195 P.3d 62 (2008). On remand, the Oregon Court of Appeals determined that the decision in Ramirez directed that they must consider whether there was "legitimate debate" that the jury would have found the departure factors found by the trial court to justify the upward departure guidelines sentence on count eleven. State v. Erickson, 227 Or.App. 299, 301, 206 P.3d 221 (2009). On the record before it, the Court of Appeals determined that there was no legitimate debate that the jury would have found the upward departure factors, and affirmed the conviction and sentence. Id. at 303. The Oregon Supreme Court denied further review. State v. Erickson, 346 Or. 361, 211 P.3d 930 (2009).
On August 3, 2010, Petitioner filed a pro se petition for state post-conviction relief ("PCR"). Resp. Exh. 118. On August 9, 2010, the PCR trial court appointed counsel to represent Petitioner. Resp. Exh. 119. On November 4, 2010, Petitioner filed a pro se Notice with the PCR court indicating a disagreement with counsel. Resp. Exh. 120. On November 24, 2010, the PCR judge conducted a hearing, at the conclusion of which he denied Petitioner's request to relieve counsel. Resp. Exh. 127.
On January 26, 2011, Petitioner's PCR counsel filed a notice with the PCR trial court electing to proceed on the pro se petition. Resp. Exh. 122. On February 9, 2011, Petitioner submitted a pro se Motion to Dismiss Attorney, by which he sought to remove appointed counsel. Resp. Exh. 123. On February 15, 2011, the court rejected Petitioner's motion by letter on the basis that the court did not accept pro se filings from a represented party. Resp. Exh. 124.
On February 1, 2011, the state moved for summary judgment for failure to comply with the statutory pleading requirements of Or. Rev. Stat. § 138.580 on the basis that petitioner failed to attach any documents in support of the claims alleged in his petition. Resp. Exh. 125. Counsel for Petitioner did not file a response to the state's motion. On March 9, 2011, the PCR trial judge granted summary judgment and dismissed Petitioner's PCR petition with prejudice. Resp. Exhs. 128, 129.
Petitioner appealed the PCR trial court's decision. Petitioner's appellate attorney, after reviewing the record and consul ting with post-conviction trial counsel and with petitioner, did not identify "any nonfrivolous issues for appeal." Resp. Exh. 130, pp. 2-3. As such, he filed a Section A Balfour brief on Petitioner's behalf. Id. Petitioner was provided the opportunity to submit a Section B argument outlining and identifying any claim of error for inclusion in his brief, but he did not do so. Id. Respondent waived appearance on the appeal, and the Oregon Court of Appeals affirmed the PCR trial court's decision without opinion. Erickson v. Coursey, 246 Or.App. 576, 266 P.3d 669 (2011).
Petitioner's PCR appellate attorney thereafter wrote to Petitioner notifying him of the Court of Appeals' decision and informing Petitioner he would not be filing a petition for review with the Oregon Supreme Court. Resp. Exh. 132, p. 4. The appellate judgment issued, and thereafter Petitioner filed a pro se motion to recall the appellate judgment alleging that PCR appellate counsel was ineffective in failing to file a petition for review. Resp. Exh. 132, pp. 203. The Oregon Supreme Court issued a deficiency notice regarding Petitioner's pro se motion. Resp. Exh. 133. Petitioner's PCR appellate counsel then filed a counseled motion to recall the appellate judgment on Petitioner's behalf and submit Petitioner's pro se Petition for Review for consideration. Resp. Exh. 133. The Oregon Supreme Court granted the motion to recall the appellate judgment, but denied the petition for review. Erickson v. Coursey, 352 Or. 25, 281 P.3d 261 (2012).
On August 12, 2013, Petitioner filed a pro se Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 in this Court. Petitioner alleges five claims for relief, which are set forth verbatim:
Ground One: Conviction obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant.
Supporting Facts: Statues of limitations, I told Mr. Yarmo my attorney all of this alleged crimes were discussed in 1990-91 at Brian and Terri Hodel's trial I said" C. S. D. called Christine Jensen, [the victim's] mother at that time and was told then of these alleged crimes. This is why D. D. A Brandi E. K Shroyers reasons for leaving the case.
Ground Two: Conviction obtained by a violation of the protection against double jeopardy.
Supporting Facts: Statues of limitation. A.D.D.A. Victoria Roe prosecuted insight of this fact and preknowledge of C. S. D. former 1990-91 investigation. To wit all these charges were investigated. The original closing statements, not the ones given to the Appeals Court.
Ground Three: Conviction obtained by action of a grand or petit jury which was unconstitutionally selected and impaneled.
Supporting Facts: The Sheriff Les Stiles was the Forman of my trial, also my witnesses waiting to testify latter told me that the jury would pass them chatting about where they would meet to discuss that day's trial hearing. Shirley Erickson (Ph. # [deleted]) when she went to tell the authorities ...