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Austin v. Amsberry

United States District Court, D. Oregon

August 14, 2018

LLOYD E. AUSTIN, IV, Petitioner,
v.
MS. BRIDGET AMSBERRY, Respondent.

          C. Renee Manes Assistant Federal Public Defender Attorney for Petitioner

          Ellen F. Rosenblum, Attorney General Samuel A. Kubernick, Assistant Attorney General Department of Justice Attorneys for Respondent

          OPINION AND ORDER

          MARCO A. HERNANDEZ UNITED STATES DISTRICT JUDGE

         Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his state-court conviction for Murder. For the reasons that follow, the Amended Petition for Writ of Habeas Corpus (#11) is denied.

         BACKGROUND

         In September 2009, the Lane County Grand Jury accused Petitioner of Murder, Attempted Unlawful Entry into Motor Vehicle, Carrying a Concealed Weapon, Escape in the Third Degree, and Resisting Arrest. Respondent's Exhibit 102. Petitioner was represented by two attorneys, Elizabeth Baker and Brad Cascagnette. On March 5, 2010, Baker moved the trial court to determine Petitioner's fitness to proceed, requesting that he be transported to the Oregon State Hospital for an evaluation pursuant to ORS 161.370. Respondent's Exhibit 119. In her supporting Declaration, she stated as follows:

3. My investigator and I have seen him three times since I was appointed - the first week of February, and I have tried to see him two additional times and he has refused to see me or my investigator and today, I had to speak to him through glass doors while he was in a jail cell. Twice he has been so difficult and dangerous that jail staff would not transport him to court - one of those times was at the jail court room. In our last conversation, Defendant made statements to myself and my investigator as if we had had several conversations we had never had with him. Defendant could not follow any of our conversations [or] stay focused. I consulted with Dr. Eric Johnson, whom I will be retaining for this case and he suggested to me that any plea or quick deal, given Defendant's behavior was ill-advised and that he should be evaluated - his choices, if intentional - are approaching the point [of] being without any reason and I do not believe he is able to aid and assist in making choices in his cases.

Id. at 3.

         Also on March 5, 2010, the Honorable Gregory Foote was due to conduct a settlement conference in Petitioner's case. Petitioner was “so uncooperative and violent, ” that he was not transported for the conference. Petitioner's Exhibit 1, p. 3. Judge Foote took the opportunity to have Sergeant Steve Davis of the Lane County Jail testify as to Petitioner's behavior. According to Davis, Petitioner had demonstrated a general lack of cooperation and “affinity to collect and create dangerous weapons within the jail.” Id. at 4. Petitioner was indecisive about whether he would attend the settlement conference, and ultimately refused on the basis that the Honorable Karsten Rasmussen, not Judge Foote, was his trial judge.

         Davis testified that Petitioner did not appear to understand what Davis explained to him about the purpose of the settlement conference. Id. at 5. Baker took the opportunity to state her concerns on the record and, as in her Declaration supporting her Motion for a competency determination, she noted that Petitioner had spoken “about conversations we never had and serious conversations of serious subject matter and conversations which, to my investigator's knowledge, he had never had with previous counsel.” Id. at 8. She stated that “his behavior since that time has sort of deescalated, or he appears to be disassembling in his ability to really gain insight or information.” Id. Judge Foote explained that he would defer the matter to Judge Rasmussen, but explained that he had “wanted to get Sergeant Davis on the record so that Judge Rasmussen can consider that evidence without having to call the Sergeant to court.” Id. at 7.

         For reasons that are not clear, Judge Rasmussen elected not hold a hearing to address the competency issue. Instead, on March 15, 2010, he issued a brief Order denying Petitioner's competency Motion. Respondent's Exhibit 121.

         Five months later, on August 17, 2010, Petitioner filed his Petition to Consent to be Found Guilty by Stipulated Facts Trial. Respondent's Exhibit 104. In that Petition, he agreed there was sufficient evidence to find him guilty of Murder, and that the presumptive sentence for that charge was life in prison with a 25-year minimum. Id. at 4. In exchange, the State dismissed the four remaining charges in the Indictment. Id. at 3.

         At the stipulated facts trial conducted the same day, Judge Rasmussen found Petitioner guilty of Murder. Respondent's Exhibit 106. The following day, Judge Rasmussen sentenced Petitioner to the agreed-upon sentence of life with a 25-year minimum term. Respondent's Exhibit 107.

         Petitioner took a direct appeal, but voluntarily dismissed the action. Respondent's Exhibits 108-110. He then proceeded to file for post-conviction relief (“PCR”) in Marion County where the PCR Court denied relief. Respondent's Exhibit 155. The Oregon Court of Appeals summarily affirmed the PCR Court's decision, and the Oregon Supreme Court denied review. Austin v. Premo, 280 Or.App. 481, 380 P.3d 1253, rev. denied, 360 Or. 697, 388 P.3d 708 (2016).

         Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on January 9, 2017 and, with the assistance of appointed counsel, filed an Amended Petition three months later. Respondent asks the Court to deny relief on the Amended Petition because most of Petitioner's claims are procedurally defaulted, and the claims that are not defaulted do not have sufficient merit to entitle him to habeas corpus relief.

         I. Unargued Claims

         In his Amended Petition, Petitioner raises six grounds containing numerous sub-claims. In his supporting memorandum, however, Petitioner chooses to brief two claims of ineffective assistance of counsel: (1) whether counsel failed to ensure Petitioner was competent to proceed to a stipulated facts trial and sentencing (Ground 3(D)(iv)); and (2) whether counsel failed to ensure that Petitioner's plea was knowing, voluntary, and intelligent (Ground 3(D)(v)).

         Petitioner does not argue the merits of his remaining claims, nor does he address any of Respondent's arguments as to why relief on these claims should be denied. As such, Petitioner has not carried his burden of proof with respect to these unargued claims. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (Petitioner bears the burden of proving his claims). Even if Petitioner had briefed the merits of these claims, the court has examined them based upon the existing record and determined that they do not entitle him to relief.

         II. Exhaustion, Procedural ...


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