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Bowers v. Premo

United States District Court, D. Oregon

January 10, 2018

LOREN A. BOWERS, Petitioner,
v.
JEFF PREMO, Respondent.

          Kristina Hellman Assistant Federal Public Defender Attorney for Petitioner

          Ellen F. Rosenblum Deputy Attorney General Kristen E. Boyd Assistant Attorney General Attorneys for Respondent

          FINDINGS AND RECOMMENDATION

          PAUL PAPAK, UNITED STATES MAGISTRATE JUDGE.

         Petitioner is currently in the custody of the Oregon Department of Corrections, He brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons set forth below, Petitioner's Petition for Writ of Habeas Corpus (ECF No. 2) should be DENIED, and Judgment should be entered dismissing this action.

         BACKGROUND

         On December 4, 2007, Petitioner pleaded guilty to two counts of Aggravated Murder, for the killing of Nicole Hutchings. Resp't Exs. (ECF No. 18), Ex. 104. On December 6, 2007, the Deschutes County Circuit Court sentenced Petitioner to life without the possibility of parole. Resp't Ex. 105. Petitioner did not directly appeal his convictions. Petitioner did file a petition for state post-conviction relief ("PCR"). Resp't Ex. 106. Following an evidentiary hearing, the PCR trial court denied relief, based on the following findings and conclusions:

A. Petitioner has failed to establish any errors on the part of his attorneys. Because no error has been shown, there is no showing that his defense was compromised.
B. The court finds credible the sworn statements of petitioner's attorneys that he was shown all the discovery. That discovery included statements from witnesses who saw petitioner and his co-defendant with the victim the night she disappeared. They saw her leave with them. They saw petitioner and co-defendant return without her and burn clothing, and/or a back pack in a wood stove. Petitioner has made statements to witnesses that "it's done" when he returned without the victim, C. The state obtained a warrant to place a "wire" on the witness Shannon, which warrant was submitted to Judge Sullivan and was supported by ample evidence. During this recorded conversation, Petitioner made many incriminating statements.
D. The police then took the Petitioner into custody and he made more incriminating statements. The court concludes that all of this overwhelming evidence was presented to petitioner by his attorneys. There was no defense strategy because there was no defense.
E. All of petitioner's statements and claims about the lack of cooperation by his lawyers are not credible. A motion for change of venue almost certainly would have been denied. And, in any event, would not have changed the strength of the state's case.
F, The court does not believe that Petitioner was berated by either of his attorneys or the judge during the settlement conference. The petitioner acknowledged during his plea hearing that he knew what he was doing and doing so voluntarily. Any statements or exhibits [to] the effect that he was unduly pressured are not believable.
G. The court finds that an adequate investigation was conducted on Petitioner's behalf. The idea that some letter of apology from some police authority at some earlier time, even if true, would have made any difference is laughable. So, any delay in looking for a "box" which may have contained such a letter was not error.
H. There were no motions that should have been filed because the petitioner made a rational and voluntary decision to accept a "true life" sentence so as to avoid a very likely death sentence.
I. With regard to any issues not specifically addressed above, the court relies upon and adopts the facts and law in defendant's trial memorandum as those of the court, Petitioner has failed to meet his burden of proof. This judgment determines all issues presented, If either party contends that it is entitled to costs, application may be made pursuant to statute.

Bowers v. Belleque, Marion County Circuit Court No. 08C21838; Resp't Ex. 147 at 2-3. On appeal, the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Bowers v. Belleque, 267 Or.App. 424, 341 P.3d 252 (2014); 357 Or. 324, 354 P.3d 696 (2015).

         In his Petition for Writ of Habeas Corpus Petitioner raises two grounds for relief, each containing multiple sub-parts. In Ground One, Petitioner alleges the following trial counsel errors:

First Claim for Relief [Ground One]
Petitioner's conviction was wrongfully obtained and is void in violation of ORS 138.530. Specifically, petitioner was denied effective assistance of trial counsel in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and in violation of Article I, §§ 11 and 16 of the Oregon Constitution in one or more of the following particulars.
1. Counsel failed to provide Petitioner with the information necessary to ensure that Petitioner's decision to forego trial and enter into a plea agreement was knowingly and voluntarily made.
2. Counsel failed to conduct a reasonable and adequate investigation into the law and facts of the case, including, but not limited to, failing to interview key witnesses and failing to secure a box of items from Petitioner's residence, which included possible [exculpatory evidence].
3. Counsel failed to ensure the Petitioner's plea was knowing and voluntarily made; Petitioner asserts that he was pressured to take a plea by his counsel, as well as the Court, during a settlement conference, which Petitioner did not want, but was forced to attend without any prior preparation from counsel. Petitioner was berated by the Court and terrified with threats of being sentenced to death row, without interjection of the protection of counsel, Letters asking Petitioner to plea and promises to see his children were use[d] to pressure Petitioner to plea.
4. Trial counsel failed to file appropriate motions, including but not limited to:
a. Motion to Suppress statements given to police agents, including officers and detectives;
b. Motions to Suppress telephoned recordings made without court order;
c. Motion to controvert the order allowing interception of telephone ...

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