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Glover v. Cain

United States District Court, D. Oregon

November 1, 2017

LARRY RAY GLOVER, Petitioner,
v.
BRAD CAIN, Respondent.

          Larry Ray Glover Attorney for Petitioner

          Ellen F. Rosenblum, Attorney General Samuel A. Kubernick, Assistant Attorney General Department of Justice Attorneys for Respondent

          OPINION AND ORDER

          MICHAEL W. MOSMAN, UNITED STATES DISTRICT JUDGE.

         Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the execution of his 2010 state-court sentence. Because petitioner has not exhausted his state court remedies, the Petition for Writ of Habeas Corpus (#2) is dismissed.

         BACKGROUND

         On July 9, 2010, petitioner signed a plea petition in Benton County in which he pleaded guilty to Attempted Rape in the First Degree, Delivery of Methamphetamine to a Minor, and Rape in the Third Degree. Respondent's Exhibit 103. Consistent with the terms of the plea petition, the Benton County Circuit Court sentenced petitioner to 40 months on the Rape I charge, 52 consecutive months on the methamphetamine charge, and 24 concurrent months on the Rape III charge. The plea petition provided that petitioner was eligible for good-time credit as to the methamphetamine and Rape III convictions only, and specifically stated that he would be eligible for a good-time credit reduction on his methamphetamine (hereinafter "Count Three") sentence of up to 30%. Id. at 2.

         Petitioner did not file a direct appeal, nor did he file for post-conviction relief. However, in July 2015 and August 2016, petitioner filed two motions with the Benton County Circuit Court seeking to correct his sentence. He contended that prison authorities had capped the good-time credit sentencing reduction on his Count Three sentence at 20%, not 30% as contemplated by the plea petition. Respondent's Exhibits 104 &. 105. The Benton County Circuit Court ultimately denied petitioner's request to adjust his sentence, "noting that there is no basis for the Court to 'correct' this judgment." Respondent's Exhibit 106.

         Petitioner next pursued the issue in the context of a prison grievance. Respondent's Exhibit 108. Prison authorities denied the grievance, noting that the maximum allowable reduction was 20% "due to [petitioner's] age of being more than 3 years differen[t] that the minor listed in the charging documents." Respondent's Exhibit 110. Petitioner took two administrative appeals where prison officials acknowledged that the court had intended to provide for up to a 30% reduction as to Count Three. However, they concluded that a 30% reduction was inapplicable to him under the governing statutes and rules, reasoning that "plea agreements cannot override what the statutes allow." Respondent's Exhibit 117, p. 1; Respondent's Exhibit 113.

         On October 27, 2016, petitioner filed this habeas corpus action wherein he alleges that respondent failed to correctly compute his sentence in accordance with the plea petition that contemplates a 30% reduction for good-time credit as to Count Three. Respondent asserts that petitioner fails to allege any issues of federal law, and he did not present any federal issues to the state courts so as to preserve them for federal habeas corpus review.[1]

         DISCUSSION

         I. Pleading Sufficiency

         Petitioner's sole ground for relief provides as follows:

Ground One: Incorrect sentence computation resulting in over incarceration of 5.2 months.
Supporting Facts: Per plea agreement and sentencing order, supposed to receive 30% reduction of sentence of the 52 months incarceration, OISC is only ...

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