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Nickelson v. Mills

United States District Court, D. Oregon

April 13, 2015

DON MILLS, Respondent.


MARK D. CLARKE, Magistrate Judge.

Petitioner is in the custody of the Oregon Department of Corrections pursuant to a judgment from the Marion County Circuit Court after convictions for two counts of Sodomy in the First Degree and two counts of Sexual Abuse in the First Degree. Exhibit '101. Following a bench trial petitioner was sentenced to a total of 400 months imprisonment.

Petitioner appealed his convictions but subsequently moved to dismiss the appeal. Exhibit 105.

Petitioner filed a petition for post-conviction relief but the Umatilla County Circuit Court denied relief, Exhibit 118. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Exhibit 119-123.

Petitioner filed a petition for habeas corpus relief under 28 U.S.C. § 2254, alleging fourteen claims for relief. Petition (#2).

Respondent argues that relief should be denied on Claims 1(B), 2(A)-(B), 3, 5, 6(A_)-(B), 7, 8(B)-(E), and 9-14 because these claims were not fairly presented to Oregon's appellate courts and are now procedurally defaulted. Respondent contends that petitioner's claims alleged in Claims 1(A), 2(C), 4, 6(A) and 8(A) were denied in state court decisions that were neither "contrary to, " nor "unreasonable applications of, " United States Supreme Court precedent and are entitled to deference by this court and correct on the merits. Response (#16) p. 1-2.

The sordid facts giving rise to petitioner's convictions are set forth in the record, are not controverted by petitioner[1] and need not be repeated in detail. In short, petitioner's charges arose from sexually abusing his daughter when she was five and six-years old.

Under 28 U.S.C. § 2254 (b) (1), an application for a writ of habeas corpus "shall not be granted" unless "the applicant has exhausted the remedies available in the courts of the State[.]" Exhaustion occurs when a petitioner has given the state courts a "full and fair" opportunity to consider and resolve all federal claims. Keeney v. Tomayo-Reyes, 504 U.S. 1, 10 (1992); Picard v. Connor, 404 U.S. 270, 275-76 (1971) If a petitioner can present a claim to the state's Supreme Court, he must do so to properly exhaust that claim. O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999).

To "fairly present" a federal claim in state court, a habeas petitioner must "include reference to a specific federal constitutional guarantee, as well as a statement of facts that entitle the petitioner to relief." Gray v. Netherland, 518 U.S. 152, 162-63 (1966); see also, Baldwin v. Reese, 541 U.S. 27, 32 (2004) and Castillo v. McFadden, 399 F.3d 993, 1000 (9th Cir. 2005).

Furthermore, the petitioner must have presented their federal claim to the state courts in a procedural context in which the claims merits will be considered. Castille v. Peoples, 489 U.S. 346, 351-52 (1989) (claim not fairly presented when raised for the first time on petition for review to the state Supreme Court); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994); Turner v. Compoy, 827 F.2d 526, 529 (9th Cir. 1987).

Accordingly, a claim is "fairly presented" to the state courts only if it was properly presented to (1) the state's Supreme Court, (2) as a federal question, (3) in the correct petition or brief, and (4) in a proper procedural context so that its merits will be considered..

If a petitioner has failed to present a federal constitutional claim to the state's highest court (i.e., has failed to exhaust state remedies) and can no longer do so because of a procedural bar, that claim is procedurally defaulted. Boerckel, 526 U.S. at 848, citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). Once a petitioner has procedurally defaulted a claim, federal habeas corpus review is barred unless the petitioner can demonstrate: (1)cause for the procedural default, and (2) actual prejudice from the failure. Edwards v. Carpenter, 529 U.S. 446, 451 (2000), Coleman, 501 U.S. at 750; see also Wainwright v. Sykes, 433 U.S. 72 (1977); Murray v. Carrier, 477 U.S. 748 (1986); Hughes v. Idaho Bd. of Corr., 800 F.2d 905 (9th Cir. 1986).

Cause for a procedural default exists only if a petitioner can "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray, 477 U.S. at 488. Prejudice exists only if a petitioner shows that the procedural default "worked to [petitioner's] actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170 (1982). Demonstrating a mere possibility of prejudice is insufficient. Id.

Procedural defaults may also be excused by demonstrating a "fundamental miscarriage of justice." Edwards v. Carpenter, 529 U.S. 446, 451 (2000). To establish the fundamental miscarriage of justice exception to the exhaustion requirement requires a showing of actual innocence. Schlup v. ...

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