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Mileham v. Premo

United States District Court, D. Oregon

December 11, 2018

FORGE DENNIS MILEHAM, Petitioner,
v.
MR. PREMO, Respondent.

          OLIVER W. LOEWY Assistant Federal Public Defender Attorney for Petitioner.

          ELLEN F. ROSENBLUM Attorney -General SAMUEL A. KUBERNICK Senior Assistant Attorney General JAMES M. AARON Assistant Attorney General Department of Justice Attorneys for Respondent.

          OPINION AND ORDER

          ANNA J. BROWN UNITED STATES SENIOR DISTRICT JUDGE.

         Petitioner, an inmate in the custody of the Oregon Department of Corrections, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Court DENIES the First Amended Petition for Writ of Habeas Corpus (ECF No. 28).

         BACKGROUND

         On October 12, 2007, a Hood River County grand jury returned a thirteen-count indictment against Petitioner. Five counts pertained to an August 2007 attack on Petitioner's first victim, and eight counts stemmed from a September 2007 attack against a second victim. The case was tried to the court in August 2008. With respect to the first victim, the trial judge found Petitioner guilty on two counts of Sexual Abuse in the First Degree and two counts of Rape in the First Degree. As to the second victim, the trial judge found Petitioner guilty of Rape in the First Degree, Assault in the Second Degree, two counts of Sodomy in the First. Degree, and two. counts of Unlawful Sexual Penetration.[1]

         The trial judge sentenced Petitioner to a total of 320 months of incarceration. Following the sentencing hearing, the trial' court conducted four hearings on restitution before ultimately entering a restitution order. Petitioner was not present at any of the restitution hearings, and did not waive his right to be there.

         Petitioner appealed his conviction and sentence. The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. State v. Mileham, 241 Or.App. 572, 250 P.3d 464, rev. denied, 350 Or. 423, 256 P.3d 1097 (2011). The appellate judgment issued on April 26, 2011.

         Petitioner then sought state post-conviction relief ("PCR"). Following an evidentiary hearing, the PCR trial court denied relief. Petitioner appealed, but again the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. . Mileham v. Taylor, 275 Or.App. 1032, 367 P.3d 568, rev. denied, 359 Or. 39, 370 P.3d 1252 (2016). The PCR appellate judgment issued on May 18, 2016.

         On April 29, 2016, Petitioner filed a pro se Petition for Writ of Habeas Corpus with this Court. The Court appointed counsel, and on April 4, 2017, Petitioner filed a First Amended Petition alleging the following claims for relief:

Claim I: Trial Counsel Rendered Ineffective Assistance of Counsel, in Violation of Petitioner's Sixth and Fourteenth Amendment Right to Effective Assistance of Counsel.
A. Trial Counsel Failed to Adequately Advise Petitioner Regarding the Advantages, Disadvantages, and Risks in Rejecting or Accepting the State's Plea Offers and Proceeding to a Bench Trial.
B. Trial Counsel Failed to Adequately Investigate Whether Petitioner Was Competent to Stand Trial and Failed to Move ...

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