United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL J. MCSHANE UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
8, 2016, petitioner filed this habeas petition under ...