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Pitt v. Nooth

United States District Court, D. Oregon

September 16, 2017

DOUGLAS LEROY PITT, Petitioner,
v.
MARK NOOTH, Respondent.

          KRISTINA HELLMAN ASSISTANT FEDERAL PUBLIC DEFENDER ATTORNEY FOR PETITIONER

          ELLEN F. ROSENBLUM ATTORNEY GENERAL NICHOLAS M. KALLSTROM ASSISTANT ATTORNEY GENERAL ATTORNEYS FOR RESPONDENT

          OPINION AND ORDER

          ANNA J. BROWN UNITED STATES SENIOR DISTRICT JUDGE

         Petitioner, 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).

         BACKGROUND

         On 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 female victim.

         The 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.

         In May 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 County. Id.

         In 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 County convictions).

         Retrial 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.

         Retrial 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.[1] 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.

         Petitioner 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).

         Petitioner 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.

         Petitioner 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).

         In June 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.[2]

         On 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 appeal.
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.

         In his 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 deference.

         As 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 ...


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