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Zolotoff v. Bowser

United States District Court, D. Oregon

February 14, 2019

DANIEL STEVEN ZOLOTOFF, Petitioner,
v.
TROY BOWSER, Respondent.

          Daniel Steven Zolotoff Petitioner, Pro Se

          Ellen F. Rosenblum, Attorney General Nicholas M. Kallstrom, Assistant Attorney General Department of Justice Attorneys for Respondent

          OPINION AND ORDER

          MICHAEL H. SIMON UNITED STATES DISTRICT JUDGE

         Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his state-court conviction for Possession of a Weapon by an Inmate. For the reasons that follow, the Petition for Writ of Habeas Corpus (#2) is denied.

         BACKGROUND

         In 2009, a jury convicted Petitioner of Possession of a Weapon by an Inmate, and the trial court sentenced him to 36 months in prison to be served consecutively to the prison term he was already serving. The Oregon Court of Appeals awarded Petitioner a new trial because the trial court failed to instruct the jury on a lesser included offense involving attempt, and the Oregon Supreme Court affirmed that decision. State v. Zolotoff, 253 Or.App. 593, 595-96 (2012), affirmed 354 Or. 711 (2014).

         In 2014, Petitioner proceeded to his retrial. At the conclusion of the bench trial, the trial court found Petitioner guilty of Possession of a Weapon by an Inmate and once again imposed a 36-month sentence. The Oregon Court of Appeals reversed an award of attorney fees, but otherwise affirmed the trial court's decision. State v. Zolotoff, 279 Or.App. 605 (2016). Petitioner did not seek review in the Oregon Supreme Court.

         Petitioner next filed for post-conviction relief ("PCR") in Umatilla County where the PCR court dismissed the PCR Petition for failure to state a claim. Respondent's Exhibits 124 & 125. Petitioner appealed that . decision, but the Oregon Court of Appeals dismissed the appeal. Respondent's Exhibit 12 6. Petitioner did not seek review in the Oregon Supreme Court.

         On February 14, 2018, Petitioner filed this 28 U.S.C. § 2254 habeas corpus case raising the following grounds for relief:

1. Petitioner is actually innocent of the crime of conviction;
2. Petitioner's appointed attorney from the second trial was unprepared, untimely, and sought continuances only for the purpose of billing additional time to the case; and
3. Petitioner's PCR attorney effectively abandoned him when he "submitted that [Petitioner's] case was without merit[.]"

         Respondent timely filed his Answer and Response on October 29, 2018. Although Petitioner's supporting memorandum was due on December 28, 2018, Petitioner has not filed his brief, sought additional time to do so, ...


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