United States District Court, D. Oregon
Andre Thomas 12260434 Warner Creek Correctional Facility
Petitioner, Pro Se
F. Rosenblum, Attorney General Samuel A. Kubernick, Assistant
Attorney General Attorneys for Respondent
OPINION AND ORDER
A. Hernandez, United States District Judge
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.
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.
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.
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).
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.
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,
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).