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Leontiy v. Nooth

United States District Court, D. Oregon

June 21, 2018

MIKHAIL LEONTIY, Petitioner,
v.
MARK NOOTH, Superintendent, Snake River Correctional Institution, Respondent.

          OPINION AND ORDER

          MICHAEL J. MCSHANE UNITED STATES DISTRICT JUDGE

         Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging the deprivation of his constitutional right to counsel during trial. Respondent argues that petitioner's claim is procedurally defaulted and otherwise lacks merits. For the reasons explained below, the petition is denied.

         BACKGROUND

         On the evening of November 8, 2009, as petitioner was driving approximately forty miles per hour, he crashed into a vehicle stopped at a red light. Resp't Ex. 111 at 11-12. Petitioner then backed up, pulled away, and drove away from the scene. Id. at 12. The driver of the struck vehicle and a motorist who witnessed the accident followed petitioner to a nearby parking lot, and the witness stopped petitioner as he exited his vehicle and attempted to walk away. Id. Petitioner had difficulty walking and appeared intoxicated, with bloodshot, watery, and glassy eyes, slurred speech, and a strong odor of alcohol on his breath. Id. Sheriff's deputies arrived shortly after the collision and placed petitioner under arrest. Id. at 13.

         Petitioner was indicted on felony charges of Driving Under the Influence of Intoxicants (DUII) and two counts of Assault in the Third Degree, along with several other charges. Resp't Ex. 103. Petitioner was appointed counsel and detained pending trial.

         Several times prior to trial, petitioner's trial counsel moved to withdraw from the case. Initially, on January 25, 2010, trial counsel did so at petitioner's request, because petitioner believed that counsel was not sharing discovery information with him. Resp't Ex. 105 at 7-8. Trial counsel disputed petitioner's allegations and explained that he had provided discovery and hired two different interpreters to read the discovery information to petitioner. Id. at 8, 14-15. The trial court noted that petitioner's dissatisfaction with counsel was not based on any deficiency of counsel but rather on an unrealistic view of the case and inaccurate “advice” from a layperson who was assisting petitioner with pro se motions. Id. at 8-17. The trial court denied the motion and told petitioner, “You haven't said a single thing that would justify my giving you a new lawyer. So I'm not going to give you a new lawyer. So here is what you have to understand: You are not getting a new lawyer.” Id. at 15.

         On February 19, 2010, counsel again informed the trial court that petitioner refused to speak with his or provide information necessary to prepare a defense. Resp't Ex. 106 at 10-11. Petitioner admitted that he had refused to work with counsel, and the court again admonished petitioner that he must work with his current attorney to resolve his case - either through a plea or trial - because he would not be getting a new attorney. Id. at 11, 19-24.

         On May 5, 2010, the court held another hearing on the subject of petitioner's representation. Petitioner admitted that he could not identify any deficiency by counsel but instead complained that “he hasn't done anything for me at this time that has helped.” Resp't Ex. 108 at 23. Trial counsel informed the court that petitioner had been making somewhat veiled threats against him, with the threats becoming more explicit. Id. 26. In response, the trial court engaged in a lengthy colloquy with petitioner and informed petitioner that if he refused to cooperate with counsel and continued to make threats against counsel, the court would interpret such conduct “as an indication that you do not want a court-appointed attorney.” Id. at 29.

         On May 18, 2010, counsel again moved to withdraw, explaining that petitioner “now makes more pointed threats and indicates that he has associates who will do the harm even if he is incarcerated.” Resp't Ex. 125 at 4. After a lengthy colloquy with petitioner, the trial court granted counsel's motion to withdraw and told petitioner that he would not appoint another attorney because petitioner “threatened the lawyer that the Court has provided.” Resp't Ex. 109 at 19. The court also told petitioner, “I have given you fair warning that that is exactly how I would interpret the conduct; that is, that you wanted to represent yourself.” Id.

         Petitioner represented himself at trial. The State called as witnesses the responding deputies, the driver and passenger of the other vehicle, and the motorist who followed petitioner after the collision. Resp't Ex. 110 at 30-93. The jury convicted petitioner on all charges. Id. at 149-53. The trial court imposed a sentence of 30 months for the DUII conviction, consecutive 45-month sentences for each assault conviction, and concurrent sentences for the remaining convictions, for a total of 120 months of incarceration. Id. at 160-62.

         Petitioner filed a direct appeal on grounds he did not knowingly waive his right to counsel and was forced to represent himself, among other arguments. Resp't Exs. 111-12. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Resp't Exs. 117-18. Petitioner subsequently filed a petition for post-conviction relief (PCR), alleging ineffective assistance of both trial and appellate counsel. Resp't Ex. 120.

         The PCR rejected petitioner's claim against trial counsel and granted relief on his claim against appellate counsel; petitioner was resentenced accordingly. Resp't Exs. 133-34. Petitioner appealed the PCR court's rejection of his trial counsel claim, and the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Resp't Exs. 137-38.

         On July 8, 2016, petitioner filed this habeas petition under ...


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