United States District Court, D. Oregon
CURTIS A. WIESE, III, Petitioner,
MARK NOOTH, Superintendent, Snake River Correctional Inst. Respondent.
Michael H. Simon United States District Judge.
States Magistrate Judge Mark D. Clarke issued Findings and
Recommendation in this case on August 31, 2017. ECF 78. Judge
Clarke recommended that Petitioner's amended petition for
writ of habeas corpus (ECF 55) be denied and this case
dismissed with prejudice. Judge Clarke further recommended
that a Certificate of Appealability (“COA”) not
be issued, on the basis that Petitioner has not made a
substantial showing of the denial of a constitutional right
pursuant to 28 U.S.C. § 2253(c)(2).
the Federal Magistrates Act (“Act”), the Court
may “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the
magistrate.” 28 U.S.C. § 636(b)(1). If a party
files objections to a magistrate's findings and
recommendations, “the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.” Id.; Fed.R.Civ.P. 72(b)(3).
timely filed an objection. ECF 80. Petitioner argues that
Judge Clarke erred in finding that Petitioner's
ineffective assistance of trial counsel claim (“IATC
claim”) was not substantial, and the procedural default
of his IATC claim was therefore not excused under the
exception established in Martinez v. Ryan, 566 U.S.
1 (2012). Specifically, Petitioner argues that Judge Clarke
improperly weighed the evidence in this case and determined
that Petitioner did not provide factual support for his
claim. Petitioner asserts that “there is no question
that [Petitioner] has presented factual support for his claim
in the form of his sworn testimony.” ECF 80 at 7.
Petitioner characterizes his sworn testimony as providing his
“clear recollection that he did not receive a ten (10)
year plea offer, and understood that the only offer he
received was quite different.” ECF 80 at 6. This
factual support, Petitioner contends, is sufficient to
establish that his IATC claim has “some merit” as
required for his claim to proceed under Martinez.
566 U.S. at 14. Petitioner also objects that a COA should
have been issued.
Court has reviewed de novo those portions of Judge
Clarke's Findings and Recommendation to which Petitioner
has objected, as well as Petitioner's objections,
Respondent's response, and relevant portions of the
underlying record. The Deputy District Attorney
(“DDA”) who prosecuted Petitioner provided sworn
testimony, which states that the DDA made one plea offer of a
sentence of ten years, and one substantially less generous
offer before trial was set. Petitioner's trial
counsel's sworn testimony is that it would have been his
practice to convey any plea offer to his client, though he
has no present recollection of specifically communicating
this plea offer.
characterization of his sworn testimony as establishing his
“clear recollection that he did not receive [the] ten
year plea offer” described by the DDA is not supported
by Petitioner's affidavit. Nor is his characterization of
the plea offer that he did receive (and reject) as being
“quite different” from the plea offer described
by the DDA. The Court agrees with Judge Clarke's
interpretation of Petitioner's affidavit as establishing
that he does “not remember” whether the plea deal
that he rejected was a ten-year or a twenty-year plea deal,
because he does not remember whether the ten years for each
of the two felony counts for which the DDA was requesting
Petitioner plead guilty were to run concurrently or
consecutively. Petitioner's affidavit therefore does not
provide factual support for his claim that his trial counsel
failed to communicate the DDA's ten year plea offer. The
DDA and trial counsel's affidavits do, however, provide
factual support for the inference that the offer that
Petitioner admits to having rejected was the same ten year
offer made by the DDA. Accordingly, Petitioner has failed to
establish that his IATC claim is substantial.
Petitioner has failed to establish that his IATC claim is
substantial, Petitioner's post-conviction review
counsel's failure to raise Petitioner's IATC claim
was not “an error so serious that counsel was not
functioning as the ‘counsel' guaranteed the
defendant by the Sixth amendment.” Sexton v.
Cozer, 679, F.3d 1150, 1157 (9th Cir. 2012). Accordingly, the
Martinez exception does not excuse the procedural
default of this claim. The Court agrees with Judge
Clarke's reasoning regarding the procedural default of
Petitioner's IATC claim and ADOPTS those portions of the
Findings and Recommendation.
the issuance of a COA, although the Court has found that
Petitioner's recollection of the plea offer made to him
is not clear enough to demonstrate that he was not offered
the ten-year plea deal, the Court will issue a COA. It is
appropriate for the district court to issue a COA when the
petitioner has made a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). “[T]he ‘substantial showing'
standard for a COA is relatively low . . . .”
Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir.
2002). It is whether “reasonable jurists would find the
district court's assessment of the constitutional claims
debatable or wrong.” Miller-El v. Cockrell,
537 U.S. 322, 338 (2003); see also Jennings, 290
F.3d at 1010 (noting that the standard “permits appeal
where petitioner can ‘demonstrate that the issues are
debatable among jurists of reason; that a court could resolve
the issues [differently]; or that the questions are adequate
to deserve encouragement to proceed further'”
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4
Court finds that reasonable jurists could debate whether
Petitioner was offered the ten-year plea bargain.
Petitioner's trial counsel does not specifically recall
telling Petitioner about the deal, and although trial counsel
opines that he has notes from his visits with Petitioner, no
contemporaneous notes were provided to the Court evidencing
that any such conversation took place. Additionally, no
contemporaneous written correspondence between Petitioner and
his attorney, or between Petitioner's attorney and the
DDA were submitted reflecting that the deal was discussed and
rejected. Finally, Petitioner states in his affidavit that he
would have accepted a ten-year deal because the evidence
against him was “very strong” and he was facing
twelve hundred months of incarceration.
those portions of a magistrate's findings and
recommendations to which neither party has objected, the Act
does not prescribe any standard of review. See Thomas v.
Arn, 474 U.S. 140, 152 (1985) (“There is no
indication that Congress, in enacting [the Act], intended to
require a district judge to review a magistrate's report
to which no objections are filed.”); United States.
v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc) (holding that the court must review de novo
magistrate's findings and recommendations if objection is
made, “but not otherwise”). Although in the
absence of objections no review is required, the Magistrates
Act “does not preclude further review by the district
judge sua sponte . . . under a de novo or
any other standard.” Thomas, 474 U.S. at 154.
Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b)
recommend that “[w]hen no timely objection is filed,
” the Court review the magistrate's recommendations
for “clear error on the face of the record.”
those portions of Judge Clarke's Findings and
Recommendation to which neither party has objected, this
Court follows the recommendation of the Advisory Committee
and reviews those matters for clear error on the face of the
record. No such error is apparent.
Court ADOPTS IN PART Judge Clarke's Findings and
Recommendation, ECF 78. Petitioner's Amended Petition for
Writ of Habeas Corpus (ECF 55) is DENIED and his case
DISMISSED with prejudice. The Court issues a Certificate of
Appealability on the issue of whether Petitioner's
procedural default is excused under Martinez v.