United States District Court, D. Oregon
KRISTINA HELLMAN ASSISTANT FEDERAL PUBLIC DEFENDER ATTORNEY
F. ROSENBLUM ATTORNEY GENERAL NICHOLAS M. KALLSTROM ASSISTANT
ATTORNEY GENERAL ATTORNEYS FOR RESPONDENT
OPINION AND ORDER
J. BROWN UNITED STATES SENIOR DISTRICT JUDGE
an inmate at the Snake River Correctional Institution, brings
this habeas corpus action pursuant to 28 U.S.C. § 2254
challenging a Lane County conviction and sentence. For the
reasons that follow, the Court DENIES the Second Amended
Petition for Writ of Habeas Corpus (ECF No. 37).
September 13, 2002, a Lane County grand jury indicted
Petitioner on two counts of Unlawful Sexual Penetration in
the First Degree and two counts of Sexual Abuse in the First
Degree. Resp. Exh. 102; State v. Pitt, 209 Or.App.
270, 273, 147 P.3d 940 (2006). Previously, in December 2001,
a Clatsop County grand jury indicted Petitioner on two counts
of Unlawful Sexual Penetration in the First Degree and two
counts of Sexual Abuse in the First Degree. Resp. Exh. 125;
see also Pitt, 209 Or.App. at 272. The Clatsop
County charges involved a single minor female victim, while
the Lane County charges involved her along with another minor
Clatsop County case was tried first. In January of 2003, a
Clatsop County jury found Petitioner guilty of all charges.
The Clatsop County trial judge sentenced Petitioner to
consecutive 100-month terms of imprisonment on the two
Unlawful Sexual Penetration convictions, and two concurrent
75-month terms of imprisonment on the Sexual Abuse
convictions. Resp. Exh. 101. Thus, in total, the Clatsop
County trial court imposed 200 months of imprisonment.
2003, a Lane County jury found Petitioner guilty of all
charges. The Lane County trial judge sentenced Petitioner as
follows: (1) 75 months of imprisonment on Count 1 (Sexual
Abuse), concurrent with the Clatsop County sentences; (2) 130
months of imprisonment on Count 2 (Unlawful Sexual
Penetration), also concurrent with the Clatsop County
sentences; (3) 75 months of imprisonment on Count 3 (Sexual
Abuse), also concurrent with the Clatsop County Convictions;
and (4) 130 months of imprisonment on Count 4 (Unlawful
Sexual Penetration), consecutive to Counts 1, 2, and 3, and
consecutive to the Clatsop County sentences. Resp. Exh. 101.
Thus, the Lane County trial judge imposed a total of 260
months of incarceration, with 130 months to be served
consecutive to the 200-month sentenced imposed in Clatsop
November 2006, the Oregon Court of Appeals reversed
Petitioner's convictions from both counties. See Pitt
v. State, 209 Or.App. 270, 147 P.3d 940 (2006),
adhered to upon reconsideration by 212 Or.App. 523
(2007) (Clatsop County convictions), and Pitt v.
State, 209 Or.App. 349, 150 P.3d 1 (2006), adhered
to upon reconsideration by 212 Or.App. 549 (2007) (Lane
took place in Clatsop County in October 2007. The Clatsop
County jury again found Petitioner guilty on all charges, and
the trial judge imposed the same sentences totaling 200
months of imprisonment.
in Lane County took place in November 2007. This time, the
Lane County jury convicted Petitioner on the two charges of
Sexual Abuse (Counts 1 and 3) and one count of Unlawful
Sexual Penetration (Count 2), but acquitted Petitioner on the
Unlawful Sexual Penetration charged in Count 4. The trial judge
imposed a 130-month term of imprisonment on the Unlawful
Sexual Penetration conviction on Count 2, consecutive to the
Clatsop County sentence. Id. On Count 1, the trial
judge sentenced Petitioner to 75 months of imprisonment,
concurrent with the 130-month term imposed on Count 2.
Id. On Count 3, the trial judge imposed a 75-month
term of imprisonment, concurrent with the Clatsop County
sentence and consecutive to the 130-month sentence imposed on
Count 2. Thus the trial court imposed a total of 205 months
of imprisonment, again with 130 months to be served
consecutively to the 200-month Clatsop County sentence.
appealed his Lane County convictions. He asserted one
assignment of error, that the trial judge erred in
instructing the jury that it could convict Petitioner on the
basis of a non-unanimous verdict. Resp. Exh. 109. The Oregon
Court of Appeals affirmed without opinion, and the Oregon
Supreme Court denied review. State v. Pitt, 229
Or.App. 742, 213 P.3d 876 (2009), rev. denied, 347
Or. 608, 226 P.3d 43 (2010).
also appealed his Clatsop County convictions. In October
2012, the Oregon Supreme Court reversed those convictions.
State v. Pitt, 352 Or. 566 (2012). On remand,
Petitioner pleaded guilty to one count of Sexual Abuse in the
First Degree. Resp. Exh. 101. The Clatsop County trial court
sentenced Petitioner to 75 months of imprisonment, concurrent
with the Lane County sentences. Thus, Petitioner's final
total term of imprisonment for both cases is 205 months.
challenged his Lane County convictions in a state
post-conviction relief ("PRC") proceeding. Resp.
Exh. 115. Following an evidentiary hearing, the PCR trial
judge denied relief. Resp. Exh. 129. Petitioner appealed, but
the Oregon Court of Appeals affirmed without opinion and the
Oregon Supreme Court denied review. Pitt v. Nooth,
254 Or.App. 418, 295 P.3d 695, rev. denied, 353 Or.
533, 300 P.3d 1222 (2013).
2016, Petitioner filed a motion in Lane County to modify his
sentence. Petitioner argued that because his convictions in
Clatsop County had been reversed and he had subsequently
pleaded guilty to only one count of Sexual Abuse, he was
entitled to have his criminal history recalculated and to
have his Lane County sentence modified accordingly. Pet.
Exhs. pp. 2-3. The trial court denied Petitioner's
motion. Resp. Exh. 135.
October 20, 2013, Petitioner filed his habeas petition in
this Court challenging his Lane County convictions.
Petitioner alleges four claims for relief in his Second
Amended Petition for Writ of Habeas Corpus:
Ground One: Petitioner's right to trial
by jury, as guaranteed by the Sixth and Fourteenth Amendments
to the United States Constitution, was violated when he was
convicted by non-unanimous jury verdicts.
Ground Two: Petitioner's rights under
the Due Process Clause of the Fourteenth Amendment to the
United States Constitution were violated when the trial court
imposed consecutive sentences as punishment for
Petitioner's refusal to plead guilty and for exercising
his constitutional rights to a trial by jury and appeal.
Ground Three: Petitioner did not receive
effective assistance of trial counsel, as guaranteed by the
Sixth Amendment to the United States Constitution, when
counsel failed to object to the sentence under the Due
Process Clause of the Fourteenth Amendment to the United
States Constitution because it was vindictive; that is, it
punished Petitioner for exercising his rights to trial and
Ground Four: Petitioner's sentence
violates the Eighth Amendment and the Due Process Clause of
the Fourteenth Amendment to the United States Constitution
because as currently imposed, it is enhanced using
non-existent criminal history.
original Brief in Support of the Second Amended Petition,
Petitioner addressed the claims alleged in Grounds One, Two,
and Four. As to the claims alleged in Grounds One and Four,
Respondent argues the state court decisions did not violate
clearly established law and are, therefore, entitled to
the claim alleged in Ground Two, a due process trial court
error based upon the trial court's alleged vindictive
sentencing, Petitioner acknowledged it as procedurally
defaulted because appellate counsel failed to assert the
claim on direct appeal. Petitioner argued, however, that the
procedural default should be excused under Martinez v.
Ryan, 566 U.S. 1, 132 S.Ct. 1309 (2012), which the Ninth
Circuit had extended to claims of ineffective assistance of
appellate counsel. See Nguyen v. Curry, 736 F.3d
1287 (9th Cir. 2013). After Petitioner filed his Brief,
however, the Supreme Court decided Davila v. Davis,
137 S.Ct. 2058 (2017), which held that Martinez does
not apply to ...