United States District Court, D. Oregon
EARL WILSON Petitioner Pro Se.
F. ROSENBLUM Attorney General NICHOLAS M. KALLSTROM Assistant
Attorney General Attorneys for Respondent
OPINION AND ORDER
J. BROWN, UNITED STATES DISTRICT JUDGE
a former inmate of the Oregon Department of Corrections who
is currently serving a term of post-prison supervision,
brings this habeas corpus action pursuant to 28 U.S.C. §
2254. For the reasons that follow, the Petition for Writ of
Habeas Corpus (ECF No. 2) is DENIED.
November 15, 2002, a Multnomah County jury convicted
Petitioner on charges of Attempted Aggravated Murder with a
Firearm, Burglary in the First Degree, Assault in the First
Degree, Unlawful Use of a Weapon, and being a Felon in
Possession of a Firearm. The jury acquitted Petitioner of a
second Attempted Aggravated Murder charge and two counts of
Robbery. The trial judge granted a motion for acquittal on a
charge of Tampering With a Witness.
Attempted Aggravated Murder with a Firearm conviction, the
trial court imposed the mandatory minimum sentence of 120
months and an upward durational departure sentence that
doubled the 80 months presumptive guidelines sentence, for a
total sentence of 160 months of imprisonment. Resp. Exh. 104,
pp. 1-2. On the Assault in the Third Degree conviction, the
trial court imposed a dispositional departure from a
presumptive probation gridblock, to eighteen months of
imprisonment, to run concurrently with the 160-month term.
The court imposed the same concurrent departure sentences on
the Unlawful Use of a Weapon and Felon in Possession
trial judge found the upward departures were predicated on
three factors: (1) actual violence to the victim; (2) the
fact that Petitioner's previous terms of incarceration
failed to deter new crimes; and (3) his drug history in
conjunction with the fact the crimes for which he was
convicted arose from a "drug situation." The court
noted that any one of those factors would individually be
sufficient to justify the upward durational departure.
direct appeal, Petitioner challenged the imposition of the
upward departures as unconstitutional under the Sixth
Amendment. He relied upon the principles enunciated in
Apprendi v. New Jersey, 530 U.S. 466 (2000) and
Ring v. Arizona, 536 U.S. 584 (2002) to argue that
it was unconstitutional to impose such enhanced sentences
based on aggravating factors that were neither pled nor
proven to the jury. The Oregon Court of Appeals affirmed
without opinion. State v. Wilson, 211 Or.App. 148,
153 P.3d 713 (2007). Petitioner moved for reconsideration in
light of the intervening Supreme Court decision in
Blakely v. Washington, 542 U.S. 296 (2004), which
the Oregon Court of Appeals denied. Resp. Exh. 109.
Petitioner sought review in the Oregon Supreme Court, which
was also denied. State v. Wilson, 344 Or. 391, 181
P.3d 770 (2008).
then filed a petition for state post-conviction relief
("PCR"). Resp. Exh. 113. In a pro se
amended petition, he alleged dozens of claims of trial court
error, ineffective assistance of trial and appellate counsel,
and prosecutorial misconduct. Resp. Exh. 121. The PCR trial
judge found that Petitioner had presented only five
actionable claims; his remaining claims were either
procedurally barred or failed to state a claim upon which PCR
relief could be granted. Resp. Exh. 129. On the five
actionable claims, which all concerned ineffective assistance
of counsel, the PCR court found that Petitioner had failed to
present any evidence to prove his claims and, therefore, had
failed to meet his burden of proof. Id.
appealed the denial of PCR relief, but the Oregon Court of
Appeals affirmed without opinion. Wilson v. Mills,
254 Or.App. 344, 295 P.3d 180 (2012). He then petitioned for
reconsideration, which the Oregon Court of Appeals denied.
Resp. Exhs. 132, 133. Petitioner sought review from the
Oregon Supreme Court, which was also denied. Wilson v.
Mills, 354 Or. 390, 315 P.3d 421 (2013) .
December 31, 2013, Petitioner filed a pro se Petition for
Writ of Habeas Corpus in this Court, alleging thirteen
separate grounds for relief, many with several sub-parts.
This Court appointed counsel to represent Petitioner. In his
counseled Brief in Support of Petition, Petitioner argues two
claims: (1) that the trial court violated Petitioner's
Sixth Amendment right to a speedy trial; and (2) that the
trial court unconstitutionally increased portions of his
sentence in violation of Blakely.
then sought to withdraw the counseled brief and submit a pro
se brief in support, which the Court allowed.
Petitioner re-submitted the prior Brief in Support over his
own signature, and also submitted a supplemental pro
se Brief in Support. There, he reiterates his
Blakely and speedy trial claims, and states briefly
that his due process rights and rights to effective
assistance of trial and appellate counsel were violated;
Petitioner does not, however, address any specific claims.
contends that Petitioner is not entitled to relief on the
claims not addressed in his Brief (s) in Support, that
Petitioner procedurally defaulted his Blakely claim,
and, that in any event, he is not entitled to relief ...