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Barteaux v. Premo

United States District Court, D. Oregon

December 11, 2018

MERVIN R. BARTEAUX, Petitioner,
v.
JEFF PREMO, Superintendent, Oregon State Penitentiary, Respondent.

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

          ELLEN F. ROSENBLUM Attorney General, KRISTEN E. BOYD Senior Assistant Attorney General Department of Justice, Attorneys for Respondent.

          OPINION AND ORDER

          ANNA J. BROWN UNITED STATES SENIOR DISTRICT JUDGE.

         Petitioner, an inmate at the Oregon State Penitentiary, 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. 25).

         BACKGROUND

         On May 28, 2002, a Multnomah County grand jury indicted Petitioner on two counts each of Sodomy in the First Degree and Sexual Abuse in the First Degree, and six counts of Unlawful Sexual Penetration in the First Degree. The charges arose from Petitioner's sexual acts against his developmentally disabled cousin over the course of a year. In particular, Petitioner, then married and nearly 61 years old, would take his developmentally disabled 46-year-old cousin out to fast food restaurants for lunch and then engage in sexual acts with her in his van. The victim ultimately disclosed the sexual acts to her mother, and Petitioner confessed. Petitioner provided an apology letter to the victim and outlined the nature of the sexual abuse to the investigating officer.

         Counsel was appointed to represent Petitioner. After two judicial settlement conferences, and after Petitioner rejected the prosecution's offer of a plea agreement for eight years of imprisonment, the case proceeded to a jury trial. On December 2, 2002, the case was called for trial. At the start of the proceeding, court-appointed counsel alerted the trial judge that Petitioner wanted to retain a different attorney to represent him. Petitioner explained to the trial judge that he had been in touch with the proposed retained counsel "a few months" earlier, but at that time was financially unable to hire him. Now in a different financial position, however, Petitioner wished to retain the private attorney in place of his court-appointed attorney. Following a lengthy colloquy and an in-chambers meeting among the trial judge, counsel, and Petitioner, the trial nevertheless proceeded with court-appointed counsel remaining on the case.

         The sole issue at trial was whether the victim was capable of consent under Oregon -law. The jury ultimately found Petitioner guilty on all counts by a 10-2 vote. The trial judge imposed consecutive and concurrent sentences totaling 180 months of imprisonment.

         Petitioner filed a direct appeal, asserting as error the trial judge's denial of Petitioner's motion for judgment of acquittal on all counts based upon an argument that the victim was capable of consent. The Oregon Court of Appeals issued a written opinion affirming the conviction and sentence. State v. Barteaux, 212 Or.App. 118, 157 P.3d 225 (2007) . The Oregon Supreme Court denied a petition for review. State v. Barteaux, 343 Or. 160, 164 P.3d 1161 (2007).

         Petitioner then filed a petition for state post-conviction relief ("PCR"). Following an evidentiary hearing, the state PCR trial judge denied relief. On appeal, the Oregon Court of Appeals reversed and remanded the case in light of the United States Supreme Court's then-recent decisions Lafler v. Cooper, 566 U.S. 156');">566 U.S. 156 (2012) and Missouri v. Frye, 566 U.S. 134');">566 U.S. 134 (2012). Barteaux v. Mills, 250 Or.App. 767, 281 P.3d 661 (2012). The state sought reconsideration, which the Court of Appeals allowed, and the court then adhered-to its original opinion. Barteaux v. Mills, 252 Or.App. 313, 286 P.3d 1243 (2012). On remand, the PCR trial court held another evidentiary hearing and again denied relief. Resp. Exh. 14 6. On appeal, the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Barteaux v. Taylor, 273 Or.App. 820, 362 P.3d 1215 (2015), rev. denied, 358 Or. 550, 368 P.3d 25 (2016).

         On May 5, 2016, Petitioner filed a pro se Petition for Writ of Habeas Corpus with this Court. The Court appointed counsel, who filed a First Amended Petition for Writ of Habeas Corpus alleging the following claims for relief:

CLAIM I: Petitioner was denied his choice of counsel, in violation of his right to counsel, as guaranteed by the Sixth and Fourteenth Amendments.
CLAIM II: The trial evidence was insufficient to prove guilty beyond a reasonable doubt, in violation of Petitioner's Fourteenth Amendment right to due process.
CLAIM- III: The "incapable of consent by reason of mental defect" element of the offenses of conviction is vague in violation of Petitioner's -Fourteenth Amendment right to due process, CLAIM -IV: Petitioner's convictions violate his Fourteenth Amendment right to due process because he is actually innocent of the offenses of the conviction.
CLAIM V: 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 assert Petitioner's right to counsel of choice.
B. Direct appeal counsel failed to raise the claim that the trial court had violated Petitioner's Sixth and Fourteenth Amendment right to be "represented by counsel of his choice.
C. Trial counsel failed to adequately advise Petitioner regarding the advantages, disadvantages, and risks in rejecting or accepting the State's plea offer.
D. Trial and direct appeal counsel failed to adequately assert and argue that the "incapable of consent by reason of mental defect" element of the offenses of conviction is unconstitutionally vague.
E. Trial and direct appeal counsel failed to adequately assert and argue that the trial evidence was insufficient to prove guilt beyond a reasonable doubt.
F. Trial and direct appeal counsel failed to adequately assert and argue that Petitioner's conviction violated his Fourteenth Amendment right to due process because he is actually innocent of the offenses of conviction.
CLAIM VI: Based exclusively on-the written record, not on hearing from witnesses at an evidentiary hearing, the state circuit court judge in post-conviction proceedings made credibility determinations adverse to Petitioner (which were affirmed on "appeal) in violation of his right to due "process guaranteed by the Fourteenth Amendment.
CLAIM VII: The cumulative effect of the prejudicial errors made in Petitioner's case mandate that his convictions and sentences be vacated.

         Respondent argues that Petitioner procedurally defaulted the grounds alleged in Claim I; Claim III; sub-parts A, B, D, and F, of Claim V; Claim VI; and Claim VII. As to Claims II and sub-claim D of Claim V, Respondent argues the state court decisions denying relief on the merits are entitled to deference.

         Petitioner concedes he procedurally defaulted, the grounds alleged in Claims I, III, and sub-parts A, D, and E of Claim V, but argues the procedural default should be excused. Petitioner also argues that the state court decisions denying relief on Claim II and sub-part D of Claim V are not entitled to deference. Petitioner does not address the remaining claims for relief.

         DISCUSSION

         I. Deference to State Court Decisions

         A. Legal Standards

         An application for writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding." 28 U.S.C. § 2254(d). A state court's findings of fact are .presumed correct and a habeas petition bears the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254 (e) (1) .

         A state court decision is "contrary to clearly established precedent if the state court. applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially distinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the "unreasonable application" clause, a federal habeas court may grant relief only "if the state court identifies the correct legal principle from [the Supreme Court's] decisions, but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. Id. at 410. The state court's application of clearly established law must be objectively unreasonable. Id. at 409.

         "Determining whether a state court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning." Harrington v. Richter, 562 U.S. 86, 98 (2011). Where a state court's decision is not accompanied by an explanation, "the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Id. Where, however, the highest state court decision on the merits is not accompanied by reasons for its decision but a lower state court's decision is so accompanied, a federal habeas court should "look through" the unexplained decision to the last related state-court decision that provides a relevant rationale, and presume the unexplained decision adopted the same reasoning'. Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).

         B. Claim II - Insufficient Evidence

         In Claim II, Petitioner alleges there was insufficient evidence to prove his guilt beyond a reasonable doubt. Specifically, Petitioner alleges the state failed to introduce sufficient evidence to convince a rational juror that the victim was incapable of consent by reason of mental defect. Petitioner argues that the prosecution's ...


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