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Wilson v. Mills

United States District Court, D. Oregon

March 10, 2017

SAMUEL EARL WILSON, Petitioner,
v.
DON MILLS, Respondent.

          SAMUEL EARL WILSON Petitioner Pro Se.

          ELLEN F. ROSENBLUM Attorney General NICHOLAS M. KALLSTROM Assistant Attorney General Attorneys for Respondent

          OPINION AND ORDER

          ANNA J. BROWN, UNITED STATES DISTRICT JUDGE

         Petitioner, 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.

         BACKGROUND

         On 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.

         On the 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 convictions.

         The 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.

         On 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).

         Petitioner 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.

         Petitioner 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) .

         On 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.

         Petitioner 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.

         Respondent 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 ...


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