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White v. Nooth

United States District Court, D. Oregon

January 25, 2018

JOSHUA JAKE WHITE, Petitioner,
v.
MARK NOOTH, Respondent.

          FINDINGS AND RECOMMENDATION

          STACIE BECKERMAN UNITED STATES MAGISTRATE JUDGE.

         Petitioner is 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, the district judge should deny Petitioner's Amended Petition for Writ of Habeas Corpus (ECF No. 45), and dismiss this proceeding with prejudice.

         BACKGROUND

         On October 19, 2006, a grand jury indicted Petitioner on two counts each of Rape in the First Degree and Sodomy in the First Degree, stemming from allegations by his ten-year-old cousin (“C.Y.”) that he penetrated her vagina with his penis and tongue on two separate occasions. Resp't Exs. (ECF No. 18), Ex.102.

         Petitioner waived his right to a jury trial and on March 18, 2008, the court found him guilty of all charges and sentenced him to a total of 200 months in prison. Resp't Exs. 101, 111. Petitioner timely appealed his convictions, but his appellate attorney could not identify “any arguably meritorious issue on appeal” and therefore filed a Balfour brief.[1] Petitioner submitted a pro se portion of the appellate briefing, alleging that the trial court violated his due process rights by denying his Motion for Judgment of Acquittal. Resp't Ex. 103. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. White, 240 Or.App. 563, rev. denied, 350 Or. 230 (2011).

         Petitioner next sought state post-conviction relief (“PCR”), alleging trial counsel was ineffective by failing adequately to investigate his case, failing to cross-examine C.Y. regarding prior inconsistent statements, failing to call witnesses on Petitioner's behalf (especially Petitioner's grandmother, Juanita White), failing to object to the hearsay notice, and failing to move to make the alleged incident date more definite and certain. Resp't Ex. 151. Following a hearing, the PCR court denied relief. Resp't Ex. 167. Petitioner appealed, alleging the PCR court erred when it determined that trial counsel was not ineffective. Resp't Ex. 168 at 8-9. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. White v. Nooth, 272 Or.App. 331, rev. denied, 358 Or. 249 (2015).

         On February 22, 2016, Petitioner filed a Petition for Writ of Habeas Corpus, alleging seven grounds for relief. Pet. (ECF No. 2). On September 8, 2017, after the one-year limitations period expired, Petitioner filed an Amended Petition, re-alleging all seven of his original grounds for relief, and adding an eighth ground. Am. Pet. (ECF No. 45). Respondent urges this Court to deny habeas relief because ground eight is untimely and futile, grounds two, three, four, five, and seven are procedurally defaulted, and grounds one and six fail on their merits. Resp't Resp. (ECF No. 16) at 6; Resp't Reply (ECF No. 39) at 4-9.

         DISCUSSION

         I. UNTIMELINESS

         In ground eight, Petitioner alleges trial counsel was ineffective for failing to object to the testimony of Nurse Gibson “who had examined the alleged victim in connection with the allegation of abuse, ” found no physical evidence of sexual abuse, yet recommended sexual abuse counseling, thereby “improperly vouch[ing] for the credibility of the alleged victim.” Am. Pet. at 7-8. According to Petitioner, this ground relates back to ground seven in Petitioner's original petition, alleging appellate counsel was ineffective for failing “to act upon inadmissible comments and vouching testimony found throughout [the] trial transcript, ” citing testimony from Nurse Gibson as an example. Id. at 6-7. Respondent argues that ground eight is untimely because Petitioner filed it more than one year after the limitations period expired and it does not relate back to any of the claims in the original Petition. Resp't Reply at 4-5. Respondent also contends the amendment is futile because it lacks merit. Id. at 6.

         A one-year limitation period applies to a state prisoner's federal habeas petition. 28 U.S.C. § 2244(d)(1). In Mayle v. Felix, 545 U.S. 644, 657 (2005), the Supreme Court held that a late-filed claim in an amended petition relates back under Fed.R.Civ.P. 15(c) “if the timely claim and the late-filed claim ‘are tied to a common core of operative facts.'” Nguyen v. Curry, 736 F.3d 1287, 1297 (9th Cir. 2013) (citing Mayle, 545 U.S. at 664). “An amended habeas petition . . . does not relate back . . . when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.” Mayle, 545 U.S. at 650. The Ninth Circuit has clarified that the “time and type” language of Mayle does not refer to when the ground for relief arose, but rather “the facts that support those grounds.” Id. at 1297.

         Here, Petitioner's ineffective assistance of trial and appellate counsel claims arise out of a common core of operative facts: the testimony of Nurse Gibson and whether her testimony was objectionable as improper vouching. The fact that the grounds are directed at different attorneys and different proceedings relates to when the grounds for relief arose, rather than the facts that support those grounds. Accordingly, consistent with Nguyen, this Court concludes that Petitioner's eighth ground for relief relates back to ground seven, and is therefore not untimely. See Nguyen, 736 F.3d at 1297 (holding that petitioner's appellate counsel ineffective assistance claim relates back to his related trial counsel ineffective assistance claim); see also Crisp v. Davey, No. 2:15-cv-0938-KJN P, 2017 WL 3433204, at *7 (E.D. Cal. Aug. 10, 2017) (“Based on the Ninth Circuit's reasoning in Nguyen, the undersigned finds that petitioner's ineffective assistance of appellate counsel claim relates back to the related ineffective assistance of trial counsel claim. Accordingly, petitioner's ineffective assistance of appellate counsel claim is timely.”), adopted, 2017 WL 4181076 (Sept. 20, 2017); but see Easter v. Franke, No. 2:11-cv-00906-JE, 2016 WL 1276295, at *4 (D. Or. Jan. 20, 2016) (finding that ineffective assistance of appellate counsel claim did not relate back to ineffective assistance of trial counsel claim because they involved different attorneys from different proceedings), aff'd on other grounds, 694 Fed.Appx. 540 (9th Cir. 2017).

         II. PROCEDURAL DEFAULT (GROUNDS TWO, THREE, FOUR, FIVE, SEVEN, AND EIGHT)

         Respondent argues that grounds two, three, four, five, and seven are procedurally defaulted because Petitioner failed to present them to the Oregon Court of Appeals and the Oregon Supreme Court and he can no longer do so. Resp't Resp. at 6-8. Additionally, Petitioner concedes he procedurally defaulted his state court remedies as to ground eight.

         Generally, a state prisoner must exhaust all available state court remedies either on direct appeal or through collateral proceedings before a federal court may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1). A state prisoner satisfies the exhaustion requirement by “fairly presenting” his claim to the appropriate state courts at all appropriate stages afforded under state law. Castille v. Peoples, 489 U.S. 346, 351 (1989); Baldwin v. Reese, 541 U.S. 27, 29 (2004); Carrillo-Carrillo v. Coursey, 823 F.3d 1217, 1220 (9th Cir. 2016); Casey v. Moore, 386 F.3d 896, 915-16 (9th Cir. 2004). If the petitioner procedurally defaults his available state remedies, habeas relief is precluded absent a showing of cause and prejudice, or if the failure to consider the defaulted claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).

         A. Grounds Two, ...


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