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Bumgarner v. Nooth

United States District Court, D. Oregon

June 15, 2015

KEVIN MITCHELL BUMGARNER, Petitioner,
v.
MARK NOOTH, Respondent.

Jay W. Frank, Moule & Frank, Eugene, Oregon, Attorney for Petitioner.

Ellen F. Rosenblum, Attorney General, Frederick M. Boss, Assistant Attorney General Department of Justice, Salem, Oregon, Attorneys for Respondent.

OPINION AND ORDER

MICHAEL W. MOSMAN, District Judge.

Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his state-court convictions for Sexual Abuse, Rape, Unlawful Sexual Penetration, Kidnapping, and Assault. Because the court finds petitioner's claims to be procedurally defaulted, the Petition for Writ of Habeas Corpus (#1) is denied.

BACKGROUND

On August 21, 2003, the Douglas County Grand Jury indicted petitioner on eleven sex crimes involving a four-year-old girl. A jury ultimately convicted petitioner of two counts each of Sexual Abuse in the First Degree, Rape in the First Degree, Unlawful Sexual Penetration with a Foreign Object in the First Degree, and Kidnapping in the First Degree. Trial Transcript, p. 1584. The jury also convicted petitioner of a single count of Assault in the Third Degree. Id. As a result, the trial court sentenced him to 730 months in prison. Trial Transcript, p. 1623.

Petitioner took a direct appeal, and the Oregon Court of Appeals initially remanded the case for resentencing on the basis that the trial court had erred by imposing consecutive sentences without the proper factual findings from the jury. Respondent's Exhibit 108. However, after the U.S. Supreme Court's decision in Oregon v. Ice, 129 S.Ct. 711 (2009) wherein it reaffirmed the authority of courts to impose consecutive sentences in the absence of specific findings by a jury, the Oregon Court of Appeals withdrew it's initial disposition and modified its decision to affirm petitioner's sentence. Respondent's Exhibit 114.

Petitioner next filed for post-conviction relief ("PCR") in Malheur County where the PCR trial court granted relief, finding that trial counsel should have argued for merger of petitioner's convictions. Respondent's Exhibit 141. The PCR trial court denied relief on the remainder of petitioner's convictions. Id. The Oregon Court of Appeals affirmed the PCR trial court's decision in a written opinion. Respondent's Exhibit 150. Neither party sought review by the Oregon Supreme Court.

It appears petitioner's case was then remanded for a resentencing proceeding that is not part of the record before this court. Respondent's Exhibit 141. Following that resentencing, on August 26, 2013, petitioner filed a Motion for New Trial on the basis that the leg brace he was required to wear during his 2003 trial prevented him from having a fair trial. Petition Exhibit 1-2, p. 24. The trial judge denied the motion, finding it to be untimely and not properly before the court. Id. at 1.

Petitioner filed this 28 U.S.C. § 2254 habeas corpus action on August 6, 2014. In his Petition, he presents the following grounds for relief:

1. Petitioner's physical restraint at his jury trial without prior evidence that would have permitted the trial court to find that petitioner posed an immediate or serious risk of committing dangerous or disruptive behavior, or that petitioner posed a serious risk of escape, and without any prior finding, violated petitioner's right to Due Process under the Fifth and Fourteenth Amendments to the Constitution of the United States.
2. Ineffective assistance of counsel by petitioner's attorneys at trial, on appeal, during post-conviction proceedings, and during proceedings on his motion for a new trial prevented petitioner from properly raising or exhausting the issue set out above as Ground One.

Petition (#1), pp. 8-11.

Respondent asks the court to deny relief on the Petition because: (1) petitioner failed to fairly present Grounds One and Two to the Oregon state courts, leaving them procedurally defaulted; (2) to the extent petitioner fairly presented his Ground One due process claim, the state court denied relief based upon an independent and adequate state procedural rule such that the claim is not eligible for federal review; and (3) Ground ...


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