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Erickson v. Taylor

United States District Court, D. Oregon

June 1, 2018

THOMAS GERALD ERICKSON, Petitioner,
v.
JERI TAYLOR, Respondent.

          TONIA L. MORO Attorney for Petitioner.

          ELLEN 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

          ANNA J. BROWN UNITED STATES SENIOR DISTRICT JUDGE.

         Petitioner, 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 Motion.

         PROCEDURAL HISTORY

         On July 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 motion.

         The 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.

         At the 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.

         Petitioner's 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 years.

         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.

         Petitioner 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 (2006).

         The 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).

         On 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. Exh. 127.

         On 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.[1] Resp. Exh. 124.

         On 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.[2] Resp. Exhs. 128, 129.

         Petitioner 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.[3] 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 (2011).

         Petitioner's 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 (2012).

         On 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 of counsel.
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 Strick ...

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