United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
MARK D. CLARKE,
Petitioner is in the custody of the Oregon Department of Correction pursuant to a judgment from the Marion County Circuit Court after convictions for three counts of Sexual Abuse in the First Degree and one count of Sodomy in the First Degree. Exhibit 101. Following a guilty plea, the court sentenced petitioner to 75 months of imprisonment on each of the Sexual Abuse convictions and to 240 months on the sodomy conviction, all to be served consecutively.
Petitioner directly appealed his convictions, but the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Exhibits 115-120.
Petitioner filed a petition for post-conviction relief, but the Malheur County Circuit Court denied relief. Exhibit 133. The Oregon Court of Appeals summarily affirmed and the Oregon Supreme Court denied review. Exhibits 134-140.
Petitioner then filed a Petition under 28 U.S.C. § 2254 (#2) in this court. Petitioner subsequently filed an Ammended (sic) Petition (#24) and a "supplemental" (Martineze v. Ryan) claim (#34). Finally, petitioner filed a "Formal Amended Petition" (#78) in which he seeks to present some new claims, re-allege some of his previous claims, and apply Martinez v. Ryan, to the a number of his Grounds for Relief.
Respondent now moves to deny relief on petitioner's claims and dismiss this proceeding. (#101).
Petitioner filed his original Petition (#2) in this case on June 20, 2011.  On March 28, 2012, petitioner filed an Ammended Petition (sic) (#31), and on April 8, 2012, petitioner moved to supplement his Ammended Petition to include a Martinez Claim (#34). Petitioner filed a Formal Amended Petition (#78) on October 25, 2013.
Under the AEDPA, the statute of limitations for habeas corpus is one year from the date on which the original judgment of conviction became final. 28 U.S.C. § 2244 (d) (2). The Formal Amended Petition (#78) in this case was filed over two years from the date he filed his original petition.
Under Fed.R.Civ.P. 15(c) (2), a new claim in an amended petition that is filed after the expiration of the statute of limitations will be timely only if the new claim relates back to the filing of a claim in a timely filed pleading. A claim "relates back" if the claim arises out of "the same conduct, transaction or occurrence" as a claim in the timely filed pleading. Moylo v. Felix, 545U.S. 644 (2005). Rule 15(c)(2) permits relation back of habeas claims asserted in an amended petition "only when the claims added by amendment arise from the same core facts as the timely filed claims, and not when the new claims depend on events separate in both time and type" from the originally raised episodes." Id at 657.
Petitioner's Formal Amended Petition alleges five claims that were not alleged in petitioner's previous petitions or amendments.
In Ground 4 the Formal Amended Petition, plaintiff alleges that his trial counsel was ineffective "for failing to object or argue to the sentencing courts using results of prior taken polygraph examinations taken by petitioner as substantial and compelling reasons in support of consecutive and upward departure sentences given to petitioner." Formal Amended Petition (#78) p. 10. In Ground Five, petitioner alleges that his trial counsel was ineffective when "he did not attend the pre sentence investigation interview taken of petitioner." Formal Amended Petition (#78) p. 11. Although petitioner previously alleged claims of ineffective assistance of counsel, these claims do not share a common core of operative facts with any of the claims in the original petition or amended petition. See Carriger v. Lewis, 971 329, 333-334 (9th Cir. 1992) (en banc) (ineffective assistance of counsel claims are discrete and each must be properly exhausted or it will be defaulted)., see also, Wieland v. Thompson, 2012 WL 5036820 at *3-4 (D. Or. 2012).
In Ground 11, petitioner appears to allege a due process violation because he made a Blakely waiver without receipt in writing of the state's intention to rely on enhancement facts. Formal Petition (#78) p. 15. This claim does not share a "common core of facts" with any of petitioner's previously alleged claims.
In Grounds 9 and 12 petitioner alleges claims related to his sentence and whether he had knowledge of his sentencing options when he entered his plea. Petitioner apparently argues that he was incorrectly advised regarding his "presumptive sentence" so that his plea was not knowing and voluntary. Formal Amended Petition (#78) p. 13, 16. Petitioner's timely filed petition does not include any claim that his plea was not knowing or voluntary.
The other grounds in petitioner's Formal Amended Petition were alleged in petitioner's previous petition as amended. Even though the Formal Amended Petition per se is time barred, the following claims are not. Therefore, for clarity, the court will respond to ...