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Thomas v. Nooth

United States District Court, D. Oregon

December 15, 2017

RICKY ANDRE THOMAS, Petitioner,
v.
MARK NOOTH, Respondent.

          Ricky Andre Thomas 12260434 Warner Creek Correctional Facility Petitioner, Pro Se

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

          OPINION AND ORDER

          Marco A. Hernandez, United States District Judge

         Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of several state-court convictions. For the reasons that follow, the Petition for Writ of Habeas Corpus (#2) is denied.

         BACKGROUND

         In 2011, the Multnomah Grand Jury indicted petitioner on one count of Compelling Prostitution, two counts of Promoting Prostitution, one count of Using a Child in a Display of Sexually Explicit Conduct, one count of Failure to Report as a Sex Offender, and eight counts of Tampering with a Witness. Respondent's Exhibits 102 & 103. Petitioner ultimately pleaded guilty to one count of Compelling Prostitution, one count of Promoting Prostitution, one count of Failure to Report as a Sex Offender, and two counts of Tampering with a Witness. Respondent's Exhibits 104 & 105. The State dropped the remaining charges and, consistent with the parties' joint sentencing recommendation, the trial court sentenced Petitioner to 120 months in prison. Respondent's Exhibit 106.

         Petitioner did not take a direct appeal, and instead proceeded to file for post-conviction relief ("PCR") in Malheur County raising several claims of ineffective assistance of counsel. The PCR court denied relief on all of his claims. Respondent's Exhibit 123.

         Petitioner appealed the PCR court's decision, arguing only an issue of state law. Specifically, he asserted that the PCR court's Judgment did not comply with ORS 138.460 and Datt v. Hill, 347 Or. 672, 227 P.3d 714 (2010), because the PCR court's Judgment did not: (1) make separate rulings on each claim; (2) declare whether the denial was based upon the failure to establish the merits of the claim; and (3) make the legal bases for the denial of relief apparent. Respondent's Exhibit 124. The Oregon Court of Appeals affirmed the PCR court's decision without issuing a written opinion, and the Oregon Supreme Court denied review. Thomas v. Nooth, 281 Or.App. 780, 334 P.3d 565 (2016), rev. denied, 360 Or. 852. 390 P.3d 716 (2017).

         Petitioner filed this federal habeas corpus action on March 24, 2017. He alleges that his trial attorney improperly placed undue pressure on him to accept the State's plea offer while misadvising Petitioner that he could be sentenced as a Dangerous Offender under Oregon law if he declined the offer. Respondent asks the court to deny relief on the Petition because Petitioner failed to fairly present his ineffective assistance of counsel claim to Oregon's state courts, leaving it unpreserved for federal habeas corpus review. Although Petitioner's supporting memorandum was due on November 13, 2017, he has not filed any brief with the court or otherwise responded to Respondent's arguments.

         DISCUSSION

         A. Standards

         A habeas petitioner must exhaust his claims by fairly presenting them to the state's highest court, either through a direct appeal or collateral proceedings, before a federal court will consider the merits of those claims. Rose v. Lundy, 455 U.S. 509, 519 (1982) . "As a general rule, a petitioner satisfies the exhaustion requirement by fairly presenting the federal claim to the appropriate state courts ... in the manner required by the state courts, thereby 'affording the state courts a meaningful opportunity to consider allegations of legal error.'" Casey v. Moore, 386 F.3d 896, 915-916 (9th Cir. 2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 257, (1986)). If a habeas litigant failed to present his claims to the state courts in a procedural context in which the merits of the claims were actually considered, the claims have not been fairly presented to the state courts and are therefore not eligible for federal habeas corpus review. Edwards v. Carpenter, 529 U.S. 446, 453 (2000); Castille v. Peoples, 489 U.S. 346, 351 (1989).

         A petitioner is deemed to have "procedurally defaulted" his claim if he failed to comply with a state procedural rule, or failed to raise the claim at the state level at all. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). If a petitioner has procedurally defaulted a claim in state court, a federal court will not review the claim unless the petitioner shows "cause and prejudice" for the failure to present the constitutional issue to the state court, or makes a colorable showing of actual innocence. Gray v. Netherland, 518 U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992); Murray v. Carrier, 477 U.S. 478, 485 (1986).

         B. ...


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