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Lovelady v. Taylor

United States District Court, D. Oregon

June 1, 2018

JEREMY LOVELADY, Petitioner,
v.
JERI TAYLOR, Respondent.

          Jeremy Lovelady Eastern Oregon Correctional Institution Pro Se.

          ELLEN F. ROSENBLUM Attorney General, SAMUEL A. KUBERNICK Assistant Attorney General Department of Justice Attorneys for Respondent.

          OPINION AND ORDER

          Anna J. Brown United States Senior District 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) is DENIED.

         BACKGROUND

         On January 12, 2011, a Washington County jury convicted Petitioner of two counts of Robbery in the First Degree, two counts of Robbery in the Second Degree, and two counts of Unlawful Use of a Weapon. Resp't Exs. (ECF No. 21), Exs. 101, 104. The charges arose out of Petitioner's theft of several l bottles of Oxycontin from a Rite Aid pharmacy in Tigard, Oregon. [1]The trial court sentenced Petitioner to a total of 135 months of imprisonment. Resp't Exs. 101, 105. Petitioner directly appealed his convictions, but the Oregon Court of Appeals affirmed without opinion. State v. Lovelady, 255 Or.App. 826 (2013) . Petitioner did not timely file a Petition for Review with the Oregon Supreme Court, and the appellate judgment issued on June 6, 2013. Resp't Ex. 110. [2]

         Petitioner then sought state post-conviction relief ("PCR"). Lovelady v. Coursey, Umatilla County Circuit Court No. CV140343. Following an evidentiary hearing, the PCR trial court denied relief. Resp't Ex's 120-131. On appeal, the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Lovelady v. Taylor, 275 Or.App. 1031 (2015).

         On February 6, 2017, Petitioner filed a Petition for Writ of Habeas Corpus (ECF No. 2) in this Court, alleging two grounds for relief. In Ground One, Petitioner alleges his conviction was "obtained by a violation of the privilege against self-incrimination, " because the trial court permitted the state to introduce Petitioner's inculpatory statements at trial. Pet. at 4-5. In Ground Two, Petitioner alleges trial counsel was ineffective for "fail[ing] to object to police officers changing [their] testimony in front of the jury after police just testified they did not know how [Petitioner] understood his Miranda[3] rights." Id. at 5.

         Respondent urges this Court to deny all relief on the basis that both grounds are procedurally defaulted and lack merit. In his supporting brief Petitioner does not address procedural default. [4]

         DISCUSSION

         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. See 28 U.S.C. § 2254(b)(1)(A). A state prisoner satisfies the exhaustion requirement by "fairly presenting" his federal claim to the appropriate state courts at all stages afforded under state law, in the manner required by the state courts, thereby affording the state courts an opportunity to correct alleged violations of its prisoner's federal rights. Baldwin v. Reese, 541 U.S. 27, 29 (2004); Casey v. Moore, 386 F.3d 896, 915-16 (9th Cir. 2004); Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005). In Oregon, where review in the highest court is discretionary, a prisoner must still petition the highest court for review in order to exhaust his claim properly. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

         If a state prisoner's claim is procedurally defaulted, federal habeas corpus review is barred unless he can demonstrate: (1) cause for the procedural default, and (2) actual prejudice will result if the Court does not consider the claim. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). Procedural default of available state remedies may also be excused when the failure to consider the claims will result in a miscarriage of justice on a colorable showing of actual innocence. McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013); House v. Bell, 547 U.S. 518, 536-37 (2006); Schlup v. Delo, 513 U.S. 298, 314-15 (1995).

         I. Ground One

         In Ground One, Petitioner alleges the trial court erred by allowing the state to present Petitioner's inculpatory statements to the jury. According to Respondent, Petitioner's Ground One is procedurally defaulted because it was not raised at trial or on direct appeal. Resp't Resp. (ECF No. 41) at 10-11. Petitioner does ...


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