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Fausto v. Premo

United States District Court, D. Oregon

June 1, 2015

JOSE MARISCAL FAUSTO, Petitioner,
v.
JEFF PREMO, Respondent.

Jose Mariscal Fausto, Guadalajara Jalisco, Mexico, Petitioner, Pro Se.

Ellen F. Rosenblum, Attorney General, Kristen E. Boyd, Assistant Attorney General, Department of Justice, Salem, Oregon, Attorneys for Respondent.

FINDINGS AND RECOMMENDATION

JOHN JELDERKS, Magistrate Judge.

Petitioner brings this habeas corpus case pursuant to 28 U.S.C. ยง 2254 challenging the legality of his state-court convictions for Sexual Abuse. For the reasons that follow, the Petition for Writ of Habeas Corpus (#1) should be denied.

BACKGROUND

Following a bench trial, petitioner was convicted in Marion County of two counts of Sexual Abuse in the First Degree for crimes he committed against a five-year-old victim. Respondent's Exhibit 102. As a result, the trial court sentenced petitioner to 75 months in prison. Respondent's Exhibit 101.

Petitioner took a direct appeal, but his attorney filed a Balfour brief when he was unable to find any meritorious issues to present.[1] The Oregon Court of Appeals affirmed the trial court's decision without opinion, and the Oregon Supreme Court denied review. State v. Mariscal-Fausto, 237 Or.App. 211, 238 P.3d 1034 (2010), rev. denied, 349 Or. 603, 249 P.3d 124 (2011).

Petitioner next filed for post-conviction relief ("PCR") in Malheur County where the PCR trial court denied relief on his claims. Respondent's Exhibit 136. The Oregon Court of Appeals affirmed the lower court without opinion, and the Oregon Supreme Court denied review. Fausto v. Nooth, 258 Or.App. 682, 311 P.3d 1252, rev. denied, 354 Or. 597, 318 P.3d 749 (2013).

Petitioner filed this federal habeas corpus case on June 16, 2014 raising the following claims:

1. Trial counsel was ineffective when he pressured petitioner to sign a jury waiver he did not fully understand;
2. Trial counsel was ineffective when he failed to conduct an adequate investigation of the case insofar as he did not contact and interview relevant witnesses;
3. Trial counsel was ineffective when he failed to present an actual innocence defense during trial; and
4. Trial counsel was ineffective when he failed to move for a judgment of acquittal based upon the destruction of evidence.

Respondent asks the court to deny relief on the Petition because: (1) petitioner failed to fairly present Ground Four to the Oregon state courts, and the claim is now procedurally defaulted; and (2) the PCR trial court's decision denying relief on Grounds One, Two, and Three was neither contrary to, nor an unreasonable application of, U.S. Supreme Court precedent. Although petitioner's supporting memorandum was due on March 17, 2015, he has not filed any such brief with the court.[2]

DISCUSSION

I. Exhaustion and Procedural Default

A. Standards

A habeas petitioner must exhaust his claims by fairly presenting them to the state's highest court, either through a direct appeal or collateral proceedings, before a federal court will consider the merits of those claims. Rose v. Lundy, 455 U.S. 509, 519 (1982). "As a general rule, a petitioner satisfies the exhaustion requirement by fairly presenting the federal claim to the appropriate state courts... in the manner required by the state courts, thereby affording the state courts a meaningful opportunity to consider allegations of legal error.'" Casey v. Moore, 386 F.3d 896, 915-916 (9th Cir. 2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 257, (1986)). If a habeas litigant failed to present his claims to the state courts in a procedural context in which the merits of the claims were actually considered, the claims have not been fairly presented to the state courts and are therefore not eligible for federal habeas corpus review. Edwards v. Carpenter, 529 U.S. 446, 453 (2000); Castille v. Peoples, 489 U.S. 346, 351 (1989).

A petitioner is deemed to have "procedurally defaulted" his claim if he failed to comply with a state procedural rule, or failed to raise the claim at the state level at all. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). If a petitioner has procedurally defaulted a claim in state court, a federal court will not review the claim unless the petitioner shows "cause and prejudice" for the failure to present the constitutional issue to the state court, or makes a colorable showing of actual innocence. Gray v. Netherland, 518 U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992); Murray v. Carrier, 477 U.S. 478, 485 (1986).

B. Analysis

As Ground Four, petitioner alleges that his trial attorney was deficient when he did not move for a judgment of acquittal predicated upon the alleged destruction of evidence by an investigating police officer. Petitioner raised this same claim in his PCR Petition. Respondent's Exhibit 112, p. 4. He did not, however, pursue the claim in his Appellant's Brief. Respondent's Exhibit 137. Because petitioner can no longer present his Ground Four claim to the ...


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