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Williams v. Premo

United States District Court, D. Oregon

May 22, 2018

JACK COMER WILLIAMS, II, Petitioner,
v.
JEFF PREMO, 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 sex abuse convictions in two different cases on grounds that he received ineffective assistance of counsel. For the reasons discussed below, the petition is denied.

         BACKGROUND

         Petitioner challenges his convictions in two separate cases, Marion County Circuit Court Nos. 09C49406 and 11C40804.

         In No. 09C49406, petitioner pled guilty to three counts of Sodomy in the First Degree, three counts of Rape in the First Degree, one count of Sexual Abuse in the First Degree, and one count of Unlawful Sexual Penetration in the Second Degree. Resp't Exs. 101 at 18-34; see also Resp't Ex. 104. The charges arose from the sexual abuse of petitioner's step-daughter over the course of several years. On May 11, 2010, the trial court sentenced petitioner to 400 months' imprisonment and entered final judgment. Resp't Ex. 101 at 18-34.

         After petitioner's conviction in No. 09C49406, another step-child disclosed that petitioner had sexually abused him for approximately five years. Resp't Ex. 103. In No. 11C40804, petitioner pled guilty to four counts of Sodomy in the First Degree and one count of Sexual Abuse in the First Degree. Resp't Ex. 101 at 5-17; see also Resp't Ex. 105. On May 16, 2011, the court sentenced petitioner to 400 months' imprisonment, consecutive to the sentence imposed in No. 09C49406. Resp't Ex. 101 at 5-17; see also Resp't Ex. 107 at 14-15.

         Petitioner did ont file a direct appeal in either case. Instead, on April 30, 2012, petitioner filed a state petition for post-conviction relief (PCR) and alleged ineffective assistance of counsel in both cases. Resp't Ex. 136; see also Resp't Ex. 108 (amended PCR petition).

         The PCR court denied relief, and petitioner appealed the PCR court's decision regarding claims related to No. 09C49406; petitioner did not appeal the PCR ruling regarding claims relating to No. 11C40804. Resp't Ex. 129; see also Resp't Ex. 130 at 14, n. 1 ("Petitioner apparently does not dispute that the post-conviction court correctly denied relief on his claims against counsel concerning Marion Count[y] No. 11C40804."). The Oregon Court of Appeal affirmed without opinion and the Oregon Supreme Court denied review. Resp't Exs. 133-34.

         On January 26, 2016, petitioner filed this federal habeas petition.

         DISCUSSION

         Petitioner asserts four claims of ineffective assistance of counsel: two claims regarding counsel's performance in No. 09C49406 and two claims regarding counsel's performance in No. 11C40804. Respondent maintains that all claims are barred from federal review. I agree.

         A. Grounds One and Two

         In Grounds One and Two, petitioner alleges that his trial counsel rendered ineffective assistance in No. 09C49406 by failing to file a motion to suppress and failing to advise petitioner of the possibility of filing a motion to suppress before petitioner entered into a plea agreement. Pet. at 4-5 (ECF No. 2). Respondent maintains that Grounds One and Two are barred by the applicable statute of limitations.

         A petitioner must file a federal habeas petition within one year after a petitioner's conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). The limitations period is tolled during the time in which a "properly filed" application for state post-conviction relief is "pending." Id. § 2244(d)(2). As noted above, final judgment in No. 09C49406 was entered on May 11, 2010. Resp't Ex. 101. Petitioner had 30 days to file a direct appeal of that judgment, and he did not do so. Or. Rev. Stat. § 138.071 (direct appeals must be filed no ...


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