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West v. Nooth

United States District Court, D. Oregon

March 28, 2018

BOB EUGENE WEST, JR., Petitioner,
v.
MARK NOOTH, Superintendent Snake River Correctional Inst. Respondent.

          OPINION AND ORDER

          Ann Aiken United States District Judge

         Petitioner filed an Amended Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, challenging his sexual abuse convictions on grounds that his counsel rendered ineffective assistance at trial. For the reasons discussed below, the petition is denied.

         BACKGROUND

         In November 2005, after trial by jury, petitioner was convicted of six counts of Sexual Abuse in the First Degree, four counts of Sodomy in the First Degree, and one count of Attempted Sodomy in the First Degree. Resp't Ex. 101. The charges arose from petitioner's abuse of his twin sons when they were approximately ten years old. Resp't Ex. 102; Transcript of Proceedings (Tr.) 41.

         After the State presented last its witness at trial, the trial court asked petitioner's counsel whether petitioner would be testifying. Trial counsel answered that petitioner would not be testifying. Tr. 733. Following closing statements, the jury returned guilty verdicts on all counts. Tr. 848-51; Resp't Ex. 101.

         At sentencing, petitioner maintained that the accusations were false and the witness testimony was contradictory. He continued, "And the only way that I could - I could even possibly defend myself is by being on that stand, which we all know I never got there." Tr. 869. When the trial court responded, "And I presume that's because of your six prior felony convictions and your four misdemeanors, " petitioner replied, "No. Actually, I was willing to get on the stand." Tr. 869. Ultimately, the trial court imposed 100-month consecutive sentences on each conviction for Sodomy; a 45-month consecutive sentence on the conviction for Attempted Sodomy; and 75-month sentences on each conviction for Sexual Abuse, with two of the sentences to be served consecutively. Tr. 870-71. In all, the trial court imposed a total of 595 months' imprisonment. Tr. 871; Resp't Ex. 101.

         On direct appeal, petitioner asserted that the trial court committed error by "failing to obtain a personal, unequivocal waiver of defendant's right to testify" and by "imposing consecutive sentences." Resp't Ex. 103 at 10, 14. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Resp't Exs. 106-07.

         Petitioner filed a petition for post-conviction relief (PCR) alleging seventy-two claims for relief. Resp't Ex. 108. The PCR court issued findings of fact and denied relief. Resp't Ex. 175. Petitioner appealed the PCR court's ruling and asserted forty-nine assignments of error. Resp't Ex. 177. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Resp't Exs. 180-81.

         On January 26, 2015, petitioner filed a federal petition seeking habeas relief. Subsequently, petitioner was appointed counsel, and on January 30, 2016, he filed an amended habeas petition.

         DISCUSSION

         In his amended petition, petitioner asserts thirty-eight grounds for relief. (ECF No. 29) However, petitioner's counseled brief addresses only Ground 20, and his pro se brief appears to argue only Grounds 2, 5, 6, 7, 8, 9, and 23-27. (ECF Nos. 46, 62) With respect to his remaining grounds, petitioner submits no argument and fails to meet his burden of showing that he is entitled to habeas relief. See Mayes v. Premo, 766 F.3d 949, 957 (9th Cir. 2014) (a habeas petitioner bears the burden of proving his claims).

         With respect to the claims that were briefed, respondent argues that petitioner failed to fairly present the federal nature of his claims to the Oregon courts, and they are unexhausted and procedurally barred as a result. Alternatively, respondent argues that the PCR court's decision rejecting these claims was reasonable and entitled to deference. Regardless of exhaustion, I find that petitioner is not entitled to habeas relief. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").

         The PCR court rejected petitioner's claims of ineffective assistance of trial counsel on their merits, and that decision was affirmed. Resp't Ex. 175. A federal court may not grant a habeas petition regarding any claim "adjudicated on the merits" in state court, unless the state court ruling "was contrary to, or involved an unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254(d)(1). A state court decision is "contrary to" established federal law if it fails to apply the correct Supreme Court authority, or if it reaches a different result in a case with facts "materially indistinguishable" from relevant Supreme Court precedent. Brown v. Pqyton, 544 U.S. 133, 141 (2005); Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision is an "unreasonable application" of clearly established federal law if the state court identifies the correct legal principle but applies it in an "objectively unreasonable" manner. Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam); Williams, 529 U.S. at 407-08, 413; see also Early v. Packer, 537 U.S. 3, 11 (2002) (per curiam) (state court decisions that are not "contrary to" Supreme Court precedent may be set aside only "if they are not merely erroneous, but 'an unreasonable application' of clearly established federal law, or are based on 'an unreasonable determination of the facts.'").

         Under well-established Supreme Court precedent, a prisoner alleging ineffective assistance of counsel must show that 1) "counsel's performance was deficient, " and 2) counsel's "deficient performance prejudiced the defense." Strickland, 466 U.S. at 687. "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id. at 688. With respect to prejudice, the "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. "Unless a defendant makes both ...


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