United States District Court, D. Oregon
OPINION AND ORDER
Aiken United States District Judge.
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.
challenges his convictions in two separate cases, Marion
County Circuit Court Nos. 09C49406 and 11C40804.
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.
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.
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).
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.
January 26, 2016, petitioner filed this federal habeas
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.
Grounds One and Two
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.
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