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Merino-Apolinar v. Taylor

United States District Court, D. Oregon

April 30, 2015

JERI TAYLOR, Superintendent, Two Rivers Correctional Institution, Respondent.

LISA C. HAY, Federal Public Defender, Portland, Oregon, Attorney for Petitioner

ELLEN F. ROSENBLUM, Attorney General, KRISTEN E. BOYD, Assistant Attorney General, Department of Justice Salem, Oregon, Attorneys for Respondent


MALCOLM F. MARSH, District Judge.

Petitioner, an inmate at Two Rivers Correctional Institution, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons set forth below, petitioner's habeas petition is denied.


On August 26, 1991, petitioner killed Janet Unruh, a mentally disabled woman living in a group home. TR at 531-32 & 551-52. The victim's body was discovered by her caretaker the next morning. Id. at 101. The victim was in a fetal position, and had been severely beaten, raped, and sodomized. Id. at 111, 119, 153, & 378-83. The state medical examiner determined that the victim died from asphyxiation, and multiple blunt-force blows to her head. Id. at 388. Although police discovered a pubic hair on the victim's comforter, and obtained sperm cells from vaginal and rectal swabs taken from the victim, they were unable to identify the assailant. Id. at 164 & 270.

In 2000, using new DNA testing procedures and evidence obtained as a result of petitioner's 1995 conviction for Sexual Abuse, law enforcement determined that the identification evidence collected at the crime scene matched petitioner's DNA. Id. at 328, 352, & 533. Petitioner was taken into custody approximately five years later. Id. at 430-35. Petitioner eventually confessed to assaulting the victim, explaining that he broke into her home to steal her television. Id. at 430-35, 486, 531-32 & 551.

On September 12, 2007, a jury convicted petitioner of five counts of Aggravated Murder. Resp. Exhs. 101 & 109. In the penalty phase of the case, the jury decided that petitioner should be sentenced to life imprisonment, without the possibility of parole. Resp. Exh. 110.

Petitioner did not challenge his aggravated murder convictions on appeal, but sought state post-conviction relief (PCR) on the basis that he received ineffective assistance of counsel. Resp. Exh. 107 at 3-4. The PCR court denied relief, the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Merino-Apolinar v. Franke, 254 Or.App. 757, 297 P.3d 35, rev. denied, 300 P.3d 1222 (2013). In the instant proceeding, petitioner again alleges that defense counsel rendered ineffective assistance of counsel.


I. No Cognizable Federal Claim (Ground One)

In his first ground for relief, petitioner alleges no federal constitutional claim. Instead, petitioner simply states that "[d]ue to the loss of his direct appeal paperwork and his Trique language, [he] cannot present those claims at this time." Petition (ECF No. 2) at 6. Additionally, petitioner "asks leave to later amend his Writ of Habeas Corpus to include those issues presented on the direct appeal." Id. at 7.

In his supporting brief, counsel for petitioner does not move to amend the petition to add grounds for relief, nor does he provide argument in support of this ground for relief. Moreover, the only issue raised by petitioner on direct appeal challenged his conviction for failing to register as a sex offender (a conviction obtained in a separate case which was consolidated on appeal). That conviction was reversed by the Court of Appeals and remanded with instructions to enter a judgment of acquittal. Resp. Exh. 105. Hence, there is no basis for attacking that conviction in the instant proceeding.

In sum, because petitioner fails to raise any cognizable federal claim, habeas relief is not warranted. See 28 U.S.C. § 2254(a); see also Rule 2(c) of the Rules Governing Section 2254 Cases in the U.S. District Courts (requiring all grounds for relief to be set out in the petition).

II. Procedural Default (Ground Two)

It is well settled that before seeking federal habeas corpus relief, a state prisoner must exhaust his available state remedies by "fairly presenting" his federal claims to the appropriate state courts. 28 U.S.C. § 2254(b) (1); Baldwin v. Reese, 541 U.S. 27, 29 (2004). Exhaustion is satisfied if petitioner invokes "one complete round" of the State's established appellate review process. O'Sullivan v. Boerckel, 526 U.S. 838 (1999). "A federal claim is fairly presented' to the state courts if it was presented (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim." Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (internal citations omitted). "Ordinarily a state prisoner does not "fairly present" a federal constitutional claim to a state's highest court if that court must read beyond a petition or a brief... that does not alert it to the presence of a federal claim." Baldwin, 541 U.S. at 32.

When a state prisoner fails to fairly present his federal claims in state court, and the state court would now find the claims barred under applicable state rules, the federal claims are procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991); Casey v. Moore, 386 F.3d 896, 920 (9th Cir. 2004); Cook v. Schriro, 538 F.3d 1000, 1025 (9th Cir. 2008). Habeas review of procedurally defaulted claims is precluded absent a showing of cause and prejudice, or that failure to consider the federal claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.

In Ground for Relief Two, petitioner alleges that trial counsel was ineffective for failing to obtain a "low" Trique interpreter.[1] Respondent argues that this claim is procedurally defaulted because it was not fairly presented to Oregon's appellate courts, and cannot now be raised to Oregon's highest court. I agree.

Petitioner raised this ineffective assistance of counsel claim in his formal petition to the PCR trial court. Resp. Exh. 107 at 3. The PCR court denied relief, and petitioner appealed. Resp. Exhs. 118 & 119. Petitioner's appellate attorney filed a Balfour Brief, after concluding that there were no non-frivolous issues for appeal. Resp. Exh. 119 at 2.[2] Petitioner filed a Section B to the Balfour brief, assigning error to the trial court's failure to provide a Trique interpreter at both trial and sentencing (but not assigning error to the performance of defense counsel):

The defendant in a criminal proceeding has a right to have an interpreter at trial. The right to understand proceedings is a due process right, under the United States' Constitution The trial court did not provide the defendant any interpretation at sentencing, and throughout the trial the Trique interpreter ...

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