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Schifferer v. Taylor

United States District Court, D. Oregon

October 10, 2018

JIMMIE CARL SCHIFFERER, Petitioner,
v.
JERI TAYLOR, Respondent.

          Anthony D. Bornstein 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

          ROBERT E. JONES, UNITED STATES DISTRICT JUDGE

         Petitioner 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.

         BACKGROUND

         Petitioner 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.

         At 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.

         Petitioner 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).

         Petitioner 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.

         Respondent 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).

         DISCUSSION

         I. Stand ...


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