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Whitaker v. Premo

United States District Court, D. Oregon

January 14, 2019

STEPHEN JASON WHITAKER, Petitioner,
v.
JEFF PREMO, Respondent.

          Oliver W. Loewy Assistant Federal Public Defender Attorney for Petitioner

          Ellen F. Rosenblum, Attorney General Kristen E. Boyd, Assistant Attorney General Department of Justice Attorneys for Respondent

          OPINION AND ORDER

          MARCO A. HERNANDEZ UNITED STATES DISTRICT JUDGE

         Petitioner 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.

         BACKGROUND

         After 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.

         Petitioner 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.

         Petitioner 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.

         Petitioner 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).

         Petitioner 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.

         DISCUSSION

         A 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).

         In this 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.

         Traditionally, 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 ...


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