Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Evett v. Nooth

United States District Court, D. Oregon

January 14, 2019

RICHARD EUGENE EVETT, Petitioner,
v.
MARK NOOTH, Respondent.

          OPINION AND ORDER

          MICHAEL W. MOSMAN, UNITED STATES DISTRICT JUDGE

         Petitioner is currently in the custody of the Oregon Department of Corrections. He brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons set forth below, Petitioner's Habeas Corpus Petition (ECF No. 2) is DENIED, and this case is DISMISSED.

         BACKGROUND

         On August 11, 2011, Petitioner pleaded guilty and no contest to one count of Attempt to Commit Burglary in the First Degree, three counts of Attempt to Commit Assault in the Second Degree, one count of Felon in Possession of a Firearm, and one count of Unlawful Use of a Weapon. Resp't Ex. (ECF No. 22) 101. Pursuant to a plea agreement, the Douglas County Circuit Court sentenced him to 36 months of supervised probation. Resp't Ex. 104; Douglas County Circuit Court Case No. 11CR1723FE. A few days later, Petitioner was re-arrested on suspicion of violating several conditions of his probation. Resp't Ex. 182.

         On September 20, 2011, Petitioner appeared for a probation violation hearing. Resp't Ex. 104. The court found Petitioner had violated the conditions of his probation by consuming alcohol, criminally trespassing a saloon he was asked to leave, harassing the bartender, and (based upon his blood-alcohol level several hours after re-arrest) likely driving under the influence of intoxicants. Id. at 151-53. Accordingly, the court revoked probation and imposed the sentence previously agreed upon in the plea agreement-four consecutive 36-month prison terms on Counts One through Four, totaling 144 months imprisonment-to be followed by post-prison supervision. Resp't Exs. 101, 104.

         Petitioner appealed the probation revocation, but the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. Evett, 260 Or.App. 767, 355 Or. 317 (2014); Resp't Exs. 105-110. Petitioner then filed a petition for post-conviction relief (PCR). Following a hearing, the PCR trial court denied relief. Evett v. Nooth, Malheur County Circuit Court Case No. 12039326P; Resp't Ex. 203. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Evett v. Nooth, 275 Or.App. 169 (2015), 358 Or. 611 (2016); Resp't Exs. 204-208.

         Petitioner requests habeas relief because he believes the use of an inaccurate criminal history worksheet during plea negotiations rendered his guilty plea not knowing and voluntary. Respondent asks this Court to deny relief because the PCR trial court reasonably determined that counsel was not ineffective in assisting Petitioner in the plea process, and because Petitioner's claims of prosecutorial misconduct are procedurally defaulted.

         DISCUSSION

         I. Procedural Default: Grounds Four and Five

         Grounds Four and Five of the Petition allege prosecutorial misconduct occurred when the prosecutor included another person's convictions on Petitioner's criminal history worksheet, used to calculate the prison sentences in the plea agreement, which were ultimately imposed when the trial court revoked Petitioner's probation.

         A. Standards

         Generally, a state prisoner must exhaust all available state court remedies either on direct appeal or through collateral proceedings before a federal court may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1). A state prisoner satisfies the exhaustion requirement by "fairly presenting" his claim to the appropriate state courts at all appropriate stages afforded under state law. Castille v. Peoples, 489 U.S. 346, 351 (1989); Baldwin v. Reese, 541 U.S. 27, 29 (2004); Carrillo-Carrillo v. Coursey, 823 F.3d 1217, 1220 (9th Cir. 2016); Casey v. Moore, 386 F.3d 896, 915-16 (9th Cir. 2004). If the petitioner procedurally defaults his available state remedies, habeas relief is precluded absent a showing of cause and prejudice, or that the failure to consider the defaulted claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).

         B. Analysis

         The PCR trial court found that claims of prosecutorial misconduct should have been raised on direct appeal. Resp't Ex. 203 at 4. However, Petitioner did not file a direct appeal of his judgment of conviction. Petitioner claims he was "not permitted" to file a direct appeal because the public defender declined to do it for him. Pet'r's Br. in Supp. (ECF No. 20) at 19. Petitioner does not explain why he could not file a notice of appeal for himself. Instead, he contends it would have been futile for him to raise prosecutorial misconduct claims on PCR appeal, given the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.