United States District Court, D. Oregon
W. Loewy Assistant Federal Public Defender Attorney for
F. Rosenblum, Attorney General Kristen E. Boyd, Assistant
Attorney General Department of Justice Attorneys for
OPINION AND ORDER
A. HERNANDEZ UNITED STATES DISTRICT JUDGE
brings this habeas corpus case pursuant to 28 U.S.C. §
2254 challenging the legality of his state-court convictions
for Manslaughter, Reckless Driving, and Driving Under the
Influence of Intoxicants. For the reasons that follow, the
Amended Petition for Writ of Habeas Corpus (#24) is denied.
spending the day drinking alcohol, Petitioner drove his 1972
Winnebago RV at excessive speeds northbound on 1-5 near the
Creswell area. Petitioner veered erratically from side to
side at speeds of 80 miles per hour despite heavy traffic,
changing lanes abruptly. He ultimately struck the freeway
median with such force that body of the RV became unmoored
from its chassis, flew through the air, and crushed the back
seat area of another vehicle traveling in the southbound
lanes of 1-5. The impact "shredded" the rear left
side of the vehicle, killing a six-year-old girl. John
Ratliff, Petitioner's friend who was riding with him in
the RV, was also killed in the crash.
had been operating the RV without a license, and he admitted
to consuming a great deal of alcohol and ingesting
prescription medications prior to getting behind the wheel. A
blood draw at the hospital following the accident showed
Petitioner's blood-alcohol content to be .24. Based upon
all of these facts, the Lane County Grand Jury indicted
Petitioner on two counts of Manslaughter in the First Degree,
two counts of Assault in the Third Degree, and one count each
of Driving Under the Influence of Intoxicants and Reckless
Driving. Respondent's Exhibit 102.
elected to enter a guilty plea to both Manslaughter counts,
Driving Under the Influence, and Reckless Driving. In
exchange, the State agreed to drop the two counts of Assault.
It also agreed that Petitioner could argue for a total
Manslaughter sentence of 10 years, and that any sentence from
the DDI and Reckless Driving convictions would run
concurrently with the sentence imposed for Manslaughter. The
trial court subsequently imposed partially concurrent
sentences on the Manslaughter convictions resulting in a
total prison sentence of 200 months. Respondent's Exhibit
103, pp. 33-34.
did not take a direct appeal, but filed for postconviction
relief ("PCR") in Marion County where the PCR court
denied relief on his claims. Respondent's Exhibit 134.
The Oregon Court of Appeals affirmed the PCR court's
decision without opinion, and the Oregon Supreme Court denied
review. Whitaker v. Premo, 268 Or.App. 854, 344 P.3d
1149, rev. denied, 357 Or. 415, 356 P.3d 638 (2015).
filed this 28 D.S.C. § 2254 habeas corpus case on March
21, 2016, and amended his Petition on January 20, 2017 to
raise various due process and ineffective assistance of
counsel claims. Respondent asks the Court to deny relief on
the Amended Petition because Petitioner procedurally
defaulted all of his claims, and the default is not excused.
petitioner seeking habeas relief must exhaust his claims by
fairly presenting them to the state's highest court,
either through a direct appeal or collateral proceedings,
before a federal court will consider the merits of habeas
corpus claims pursuant to 28 U.S.C. § 2254. Rose v.
Lundy, 455 U.S. 509, 519 (1982) . The exhaustion
doctrine is designed "to avoid the unnecessary friction
between the federal and state court systems that would result
if a lower federal court upset a state court conviction
without first giving the state court system an opportunity to
correct its own constitutional errors." Preiser v.
Rodriguez, 411 U.S. 475, 490 (1973).
case, Petitioner did not take a direct appeal, thus he did
not fairly present any of his claims to Oregon's courts
in that fashion. During his PCR proceedings, he presented the
Oregon Supreme Court with state-law issues, state procedural
issues, and issues that were not properly in his Petition for
Review because he had not presented them to the Oregon Court
of Appeals. Respondent's Exhibits 138, 140, 141.
Petitioner did not fairly present any federal claims to the
Oregon Supreme Court and therefore procedurally defaulted all
of his claims. Petitioner does not argue otherwise, and
instead contends that he has cause to excuse his default.
Specifically, he argues that his PCR attorney was ineffective
for failing to raise a variety of ineffective assistance of
trial counsel claims.
the performance of PCR counsel could not be used to establish
cause and prejudice to excuse a procedural default.
Coleman v. Thompson,501 U.S. 722, 753-54 (1991)
(only the constitutionally ineffective assistance of counsel
constitutes cause); Pennsylvania v. Finley, 481 U.S.
551, 556 (1987) (there is no constitutional right to counsel
in a PCR proceeding). However, in Martinez v. Ryan,566 U.S. 1, 4 (2012), the Supreme Court found "it . . .
necessary to modify the unqualified statement in
Coleman that an attorney's ignorance or
inadvertence in a postconviction proceeding does not qualify
as cause to excuse a procedural default." Id.
at 8. It concluded, "Inadequate assistance of ...