United States District Court, D. Oregon
L. MORO Attorney for Petitioner.
F. ROSENBLUM Attorney General FREDERICK M. BOSS Deputy
Attorney General KRISTEN E. BOYD Assistant Attorney General
Department of Justice, Attorneys for Respondent.
OPINION AND ORDER
J. BROWN UNITED STATES SENIOR DISTRICT JUDGE.
an inmate in the custody of the Oregon Department of
Corrections, brings this habeas corpus action pursuant to 28
U.S.C. § 2254. Currently before the Court is
Petitioner's Supplemental Motion for Leave to Amend
Petition (ECF No. 112) . For the reasons that follow, the
Court GRANTS IN PART and DENIES IN PART Petitioner's
8, 2003, a Deschutes County grand jury indicted Petitioner on
five counts of Sodomy in the First Degree, five counts of
Sexual Abuse in the First Degree, and one count of Attempted
Rape in the First Degree. The victim was Petitioner's
daughter, A.I., who was under 12 years old at the time. Resp.
Exh. 102. The indictment alleged all of the incidents
occurred between April 23, 1985 and April 23, 1992.
Id. On the day of trial, July 10, 2003, the state
moved to amend the indictment by interlineation and over
Petitioner's objection, to allege that the conduct
occurred between October 3, 1986, and April 23, 1992. Tr.
225, Resp. Exh. 102. According to the prosecutor, this was to
ensure that only conduct within the statute of limitations
was alleged. Tr. 225. The trial judge granted the state's
case was tried to a jury. A.I., who was 21 at the time of
trial, testified that there were five incidents involving
four acts of sodomy and five acts of sexual abuse that
occurred when she visited Petitioner during Christmas of 1987
and through her stay into January 1988 at a Browning street
residence in Sunriver, Oregon. She returned for a visit to
the same residence around Easter in 1988, and she described
three incidents during that visit when Petitioner committed
two sodomy offenses and two sexual abuse offenses. In the
spring of 1989, A.I. visited Petitioner at a residence on
Solar Drive in Sunriver, and she testified that Petitioner
committed one act of sexual abuse and one act of sodomy. A.I.
testified that the last incident occurred in the Spring of
1991 when she visited Petitioner at the Browning residence
and Petitioner tried to rape her by attempting intercourse.
A.I. testified that in 1992 and 1993 she told a school
counselor in Utah about Petitioner's sexual abuse.
end of the state's case, Petitioner's trial counsel
moved for a judgment of acquittal on three bases: (1) that
the statute of limitations barred the prosecution; (2) that
given the victim's lack of specificity regarding three
incidents during the Christmas visit, the state failed to
prove more than three incidents of sodomy; and (3) that given
the confusing testimony as to dates and places the state
otherwise failed to provide sufficient proof of all of the
incidents. As to the statute of limitations, counsel argued
that Or. Rev. Stat. § 131.125(2) required the state to
commence the prosecution within 6 years of a report of the
offense to law enforcement or other government agency, and
that the victim's disclosure to the Utah school counselor
in 1992 and 1993 triggered the running of the statute.
Specifically, counsel argued that the Utah school counselor
qualified as an "other governmental agency." The
trial court rejected this argument. The trial judge noted
that the argument presented open questions of law, and found
that the Utah school counselor was not an "other
governmental agency" and that the limitations period was
not triggered until the State of Oregon received a report.
The trial judge also noted that the school counselor likely
had a duty not to disclose. The judge denied Petitioner's
other bases for acquittal as well.
substantive trial defenses were the statute of limitations
and an attack on his daughter's credibility. He called
several witnesses to support his argument that she was a
pathological liar and manipulator and that she learned those
traits to survive a difficult childhood. A.I. experienced
extreme poverty living with her drug-using and drug-dealing
mother, and she was sexually abused by her step-uncle in
1990. Petitioner argued that A.I. made up the allegations
against him because she was resentful that he did not protect
her from the neglect and abuse she experienced. He also
argued that the timing of A.I.'s allegations were related
to her desire to become closer with Petitioner's
stepdaughter, then 25-years-old, by supporting the
step-daughter's allegation that Petitioner touched her
inappropriately sometime before 1990. Several witnesses
testified that A.I. had a reputation for untruthfulness, and
that she had denied being abused by Petitioner over the
jury nevertheless convicted Petitioner on all eleven counts.
Resp. Exh. 101. The trial judge sentenced Petitioner on
counts one through five (Sodomy in the First Degree) to a
term of 240 months of imprisonment, with a 120-month minimum.
Id. On counts six through ten (Sexual Abuse in the
First Degree), the trial judge sentenced Petitioner to a term
of 60 months of imprisonment, with a 30-month minimum,
consecutive to the sentence for counts one through five.
Id. On count eleven (Attempted Rape in the First
Degree), the trial judge imposed sentence pursuant to
sentencing guidelines of an upward departure term of 90
months of imprisonment. Id. Petitioner's current
projected release is 2033. Id.
filed a direct appeal, asserting two claims of error: (1) the
trial court erred when it ordered a departure sentence on
count eleven; and (2) the trial court erred when it ordered
the consecutive sentences on several counts. Resp. Exh. 106,
p. i) . The Oregon Court of Appeals found the sentence
plainly erroneous and vacated and remanded for re-sentencing.
State v. Erickson, 205 Or.App. 555, 134 P.3d 1114
state petitioned the Oregon Supreme Court for review, arguing
the Court of Appeals erred in exercising plain error review.
Resp. Exh. 109. The Oregon Supreme Court granted review,
vacated the decision of the Court of Appeals, and remanded
the case to the Court of Appeals for reconsideration in light
of State v. Ramirez, 343 Or. 505, 173 P.3d 817
(2007), adh'd to on recons., 344 Or. 195, 179
P.3d 673 (2008), and State v. Fults, 343 Or. 515,
173 P.3d 822 (2007). State v. Erickson, 345 Or. 315,
195 P.3d 62 (2008). On remand, the Oregon Court of Appeals
determined that the decision in Ramirez directed
that they must consider whether there was "legitimate
debate" that the jury would have found the departure
factors found by the trial court to justify the upward
departure guideline sentence on count eleven. State v.
Erickson, 227 Or.App. 299, 301, 206 P.3d 221 (2009). On
the record before it, the Court of Appeals determined that
there was no legitimate debate that the jury would have found
the upward departure factors, and affirmed the conviction and
sentence. Id. at 303. The Oregon Supreme Court
denied further review. State v. Erickson, 346 Or.
361, 211 P.3d 930 (2009).
August 3, 2010, Petitioner filed a pro se petition
for state post-conviction relief ("PCR"). Resp.
Exh. 118. On August 9, 2010, the PCR trial court appointed
counsel to represent Petitioner. Resp. Exh. 119. On November
4, 2010, Petitioner filed a pro se Notice with the
PCR trial court indicating he had a disagreement with
counsel. Resp. Exh. 120. On November 24, 2010, the PCR trial
judge conducted a hearing, at the conclusion of which he
denied Petitioner's request to relieve counsel. Resp.
January 26, 2011, Petitioner's PCR counsel filed a notice
with the PCR trial court electing to proceed on the pro
se petition. Resp. Exh. 122. On February 9, 2011,
Petitioner submitted a pro se Motion to Dismiss
Attorney, by which he sought to remove appointed counsel.
Resp. Exh. 123. On February 15, 2011, the PCR trial judge
rejected Petitioner's motion by letter on the basis that
the court did not accept pro se filings from a
represented party. Resp. Exh. 124.
February 1, 2011, the state moved for summary judgment for
failure to comply with the statutory pleading requirements of
Or. Rev. Stat. § 138.580, on the basis that petitioner
failed to attach any documents in support of the claims
alleged in his petition. Resp. Exh. 125. Counsel for
Petitioner did not file a response to the state's motion.
On March 9, 2011, the PCR trial judge granted summary
judgment and dismissed Petitioner's PCR petition with
prejudice. Resp. Exhs. 128, 129.
appealed the PCR trial court's decision. Petitioner's
appellate attorney, after reviewing the record and consulting
with post-conviction trial counsel and with petitioner, did
not identify "any nonfrivolous issues for appeal."
Resp. Exh. 130, pp. 2-3. As such, he filed a "Section
A" Balfour brief on Petitioner's
behalf. Id. Petitioner was provided the
opportunity to submit a Section B argument outlining and
identifying any claim of error for inclusion in his brief,
but he did not do so. Id. Respondent waived
appearance on the appeal, and the Oregon Court of Appeals
affirmed the PCR trial court's decision without opinion.
Erickson v. Coursey, 246 Or.App. 576, 266 P.3d 669
PCR appellate attorney thereafter wrote to Petitioner
notifying him of the Court of Appeals' decision and
informing Petitioner he would not be filing a petition for
review with the Oregon Supreme Court. Resp. Exh. 132, p. 4.
The appellate judgment issued, and thereafter Petitioner
filed a pro se motion to recall the appellate
judgment alleging that PCR appellate counsel was ineffective
in failing to file a petition for review. Resp. Exh. 132, pp.
203. The Oregon Supreme Court issued a deficiency notice
regarding Petitioner's pro se motion. Resp. Exh.
133. Petitioner's PCR appellate counsel then filed a
counseled motion to recall the appellate judgment on
Petitioner's behalf and submit Petitioner's pro
se Petition for Review for consideration. Resp. Exh.
133. The Oregon Supreme Court granted the motion to recall
the appellate judgment, but denied the petition for review.
Erickson v. Coursey, 352 Or. 25, 281 P.3d 261
August 12, 2013, Petitioner filed a pro se Petition
for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254
in this Court. Petitioner alleged five claims for relief,
which are set forth verbatim:
Ground One: Conviction obtained by the
unconstitutional failure of the prosecution to disclose to
the defendant evidence favorable to the defendant.
Supporting Facts: Statues of limitations, I
told Mr. Yarmo my attorney all of this alleged crimes were
discussed in 1990-91 at Brian and Terri Hodel's trial I
said" C.S.D. called Christine Jensen, [the victim's]
mother at that time and was told then of these alleged
crimes. This is why D. D. A Brandi E. K Shroyers reasons for
leaving the case.
Ground Two: Conviction obtained by a
violation of the protection against double jeopardy.
Supporting Facts: Statues of limitation.
A.D.D.A. Victoria Roe prosecuted insight of this fact and
pre-knowledge of C.S.D. former 1990-91 investigation. To wit
all these charges were investigated. The original closing
statements, not the ones given to the Appeals Court.
Ground Three: Conviction obtained by action
of a grand or petit jury which was unconstitutionally
selected and impaneled.
Supporting Facts: The Sheriff Les Stiles was
the Forman of my trial, also my witnesses waiting to testify
latter told me that the jury would pass them chatting about
where they would meet to discuss that day's trial
hearing. Shirley Erickson (Ph. # [deleted]) when she went to
tell the authorities said she was pointed to one of the
jurors and told ask him he's the Sheriff.
Ground Four: Denial of effective assistance
Supporting Facts: Trial counsel was
ineffective in failing to meet with petitioner prior to the
hearing pretrial and trial to discuss case. Ineffective in
failing to investigate pre-trial testimony of [the victim]
(transcript page 144); failure to locate and secure witnesses
Christine Jensen, [the victim's] mother, Rhonda
Erickson/Hodel/Keeney, Velma Worthington ([the victim's]
other Grandmother), Brian Imel, Brian Hodel (who was in
Deschutes County jail at the time of my trial), Eric and
Donna Erickson, my brothers Rick, Luke, Rodney, Joshua
Erickson, their children Bobby, Tina, Lisa, Trish, Ricky,
Jimmy, Misty, April Erickson, my cousin Robert Tino Erickson,
Uncle David Erickson or long time friend Bill Mancuso.
Counsel ineffective in securing impartial Jury (Sheriff
''Les Stiles" was Forman) . Ineffective in
change of venue; Statute of limitations do to the case in
1990 with C.S.D. questioning [the victim]; dismissing
inadmissible evidence (I did not talk to O.S.P. about this
case); incompetent Judge; securing digital recording for
trial; A(10) Trial counsel was ineffective in securing Jury
during trial. A(ll) Trial counsel was ineffective in
cross-examination of Terri Hodel. A(12) Trial Counsel was
ineffective in securing public trial. A(13) Trial Counsel was
ineffective in involving petitioner in second non secret
indictment in front of Grand Jury- Petitioner further alleges
that he was denied effective assistance of Appellate Counsel
in violation of Article 1, Section 11 of Oregon Constitution
and the Six Amendment of the United States Constitution and