United States District Court, D. Oregon
Anthony D. Bornstein Assistant Federal Public Defender
Attorney for Petitioner
F. Rosenblum, Attorney General Samuel A. Kubernick, Assistant
Attorney General Department of Justice Attorneys for
OPINION AND ORDER
E. JONES, UNITED STATES DISTRICT JUDGE
brings this habeas corpus case pursuant to 28 U.S.C. §
2254 challenging a variety of Marion County convictions dated
August 22, 2012. For the reasons that follow, the Petition
for Writ of Habeas Corpus (#1) is denied.
sexually abused his two minor daughters for a period of
years, leading the Marion County Grand Jury to indict him on
one count of Rape in the First Degree, four counts of Sodomy
in the First Degree, two counts of Sexual Abuse in the First
Degree, and two counts of Using a Child in a Display of
Sexually Explicit Conduct. Respondent's Exhibit 102. Upon
the advice of counsel, Petitioner entered a no-contest plea
as to the Rape charge and pled guilty to the remaining
charges. Respondent's Exhibit 103. The Plea Petition did
not contain an agreed-upon sentence, thus that issue was left
open for argument.
sentencing, the State asked the court to impose a 600-month
sentence, while Petitioner's attorney advocated for a
130-month sentence. The sentencing judge adopted the
State's position and imposed a 600-month sentence.
Respondent's Exhibit 107, p. 20. Petitioner took a direct
appeal, but subsequently dismissed the action voluntarily.
Respondent's Exhibit 105.
next sought post-conviction relief ("PCR") in
Umatilla County, but the PCR Court denied relief.
Respondent's Exhibit 135. The Oregon Court of Appeals
affirmed that decision without issuing a written opinion, and
the Oregon Supreme Court denied review. Schifferer v.
Taylor, 283 Or.App. 493, 389 P.3d 1186, rev. denied, 361
Or. 486, 395 P.3d 871 (2017).
filed this 28 U.S.C. § 2254 habeas corpus case on June
14, 2017 and raises two grounds for relief:
(1) Trial counsel rendered ineffective assistance when he
failed to: (a) negotiate a plea agreement; (b) request a
settlement conference; and (c) bring favorable character
witnesses to the sentencing hearing; and
(2) The PCR judge was biased against Petitioner in violation
of his right to due process.
asks the Court to deny relief on the Petition because the PCR
Court reasonably determined that Petitioner was not entitled
to relief on his Ground One claims, and because Ground Two is
not cognizable in a habeas corpus proceeding and, even if
that were not the case, is procedurally defaulted. Where
Petitioner has not responded to Respondent's arguments in
opposition to Ground Two or otherwise supported the claim
with argument, the Court finds that Ground Two does not
entitle him to habeas corpus relief. See Silva v.
Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (Petitioner
bears the burden of proving his claims).