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
MICHAEL W. MOSMAN, 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 Murder and Tempering with a Witness. For the reasons that
follow, the Corrected Amended Petition for Writ of Habeas
Corpus (#47) is denied.
had a history of violent relationships with women. In January
2001, he assaulted his girlfriend, Patty Flynn, resulting in
his arrest. The following month, he was out at a tavern with
Flynn when he hit her in the jaw. Respondent's Exhibit
108, p. 6. Flynn took a taxi to her mother's house where
Flynn visited with her five-year-old son. Petitioner arrived
sometime thereafter, and the mother told him to leave.
Flynn's mother, son, and Flynn's mother's
neighbor all witnessed Petitioner threaten Flynn, telling her
that he was going to kill her. Id. at 7. The
neighbor called the police, prompting Petitioner to leave the
area, and Flynn refused to talk to the officers who arrived
on the scene.
the officers departed, Flynn left her mother's home
claiming that she needed cigarettes, but she took a taxi to
Petitioner's home. Shortly thereafter, Flynn was dead.
Petitioner called his sister, Jerrie, asking for help with a
"problem" he had. Jerrie thought Petitioner sounded
suicidal and asked police to conduct a welfare check.
called his friend, Maggie, and told her "he had to get
out of there because he was going to jail, and that he wanted
to kill himself. ..." Respondent's Exhibit 201, p.
20. Maggie went over to Petitioner's home where he
grabbed her by both forearms and told her, "Don't
look. Don't look. Flynn is dead on the bed."
Id. at 23. Maggie responded, "Damn you Jim. You
brought me into the middle of a murder scene."
Id. at 24. Petitioner apologized to her, and
"just kept saying he was sorry. He didn't mean to do
it. It was an accident." Id. He told Maggie
that he needed to "dump" the body somewhere. When
Maggie told him that they should call the police, Petitioner
said he needed more time and indicated that he needed to
leave town. Id. at 24-25.
told Maggie that he had smothered or suffocated Flynn, and
that it had been his intention to scare her and that he
hadn't meant to kill her. Id. at 32. Maggie
drove Petitioner to the home of friends named Penny and
Kenneth, who drove Petitioner to another friend's home.
During the drive with Penny and Kenneth, Petitioner told
them, "I don't know if you guys know how serious
this is . . . but I killed Flynn last night."
Id. at 94. Kenneth told him not to say anything
more, and Petitioner responded that he had smothered her with
a pillow, and that it had been an accident. Id.
Kenneth once again told Petitioner not to say anything more.
authorities showed up at Petitioner's house to conduct
the welfare check Jerrie requested, they found Flynn's
body. In the meantime, Petitioner had decided to leave
Central Oregon, boarded a Greyhound bus bound for Portland,
and shaved off his mustache to change his appearance along
the way. Respondent's Exhibit 108, p. 16. Law enforcement
arrested Petitioner upon his arrival in Portland.
Deschutes County Grand Jury indicted Petitioner on three
counts of Aggravated Murder, one felony count of Tampering
with a Witness, and one misdemeanor count of Assault.
Respondent's Exhibit 104. The State posited three
theories underlying the Aggravated Murder charges: (1)
Petitioner had previously been convicted of Manslaughter in
the First Degree in California when he shot a man in the
back; (2) Flynn was a witness against Petitioner for the
pending assault from January 2001; and (3) Petitioner caused
Flynn's death while torturing her. The State was
confident it "had ample evidence to support every one of
those theories in this case" and noted that "as
time went by from the date of this incident in February, the
state's case actually became stronger in a number of
areas." Respondent's Exhibit 108, p. 13.
Deschutes County Circuit Court appointed Dennis Hachler and
Geoffrey Gokey to represent Petitioner. On October 4, 2001,
the trial court conducted a settlement conference where the
State offered him a reduced sentence in exchange for a plea
to Murder. The settlement conference was highly charged, and
according to Petitioner's Declaration that he submitted
during his post-conviction relief ("PCR")
proceedings, the Judge who presided over the settlement
conference indicated he would not hesitate to sign
Petitioner's death warrant if it came across his desk.
Respondent's Exhibit 124, p. 22. Petitioner also declared
that Hachler told him
to quit my damn crying. Then he yelled, "What the hell
is wrong with you! They're giving you your last chance!
You don't even have to admit any guilt-you can just plead
Alford pleas!" He walked over to where I was seated and
stopped. Looking down at me with an angry stare, Hachler
yelled, "Don't make us help them kill you! Take the
Id. at 27.
State's offer called for Petitioner to enter an
Alford plea to one count of Murder and one count of
Tampering with a Witness and waive his right to appeal. In
exchange, the State removed the Aggravated Murder charges and
stipulated to a sentence of: (1) 300 months imprisonment and
36 months of post-prison supervision on the Murder
conviction; and (2) a consecutive upward departure sentence
of 60 months on the Tampering conviction, with 24 months
supervision to be served concurrently with that of the Murder
term. Respondent's Exhibit 106. This represented a
particularly positive outcome for Petitioner where he not
only escaped the capital nature of an Aggravated Murder
trial, but also negotiated a sentence that was less than the
statutorily-required life sentence with a 300-month minimum
for Murder. See ORS 163.115(5).
entered his plea the day of the settlement conference, and
sentencing was scheduled to occur three weeks later. Very
shortly after entering his plea, Petitioner contacted his
attorneys and informed them he was dissatisfied with his plea
because he had been unduly pressured to accept it. He asked
counsel to file a motion to withdraw the plea.
Respondent's Exhibit 213, p. 71. Petitioner indicated he
might represent himself, but Gokey told him that he would try
to locate separate counsel, and reiterated that he felt that
the plea was still in Petitioner's best interests.
Id. at 72. Gokey contacted the Oregon State Bar the
following day, concerned about a potential conflict with his
client. He and Hachler then decided to get another attorney
to come in and talk with Petitioner:
Well, I didn't know anybody. Mr. Hachler knew Mark Rader
and I'd heard of Mark Rader, and so Mr. Hachler contacted
Mark Rader and then contacted the powers to be at that time,
the State Court Administrator's office about getting
somebody over there. And that lawyer, he came over and me
(sic) a copy of the file for him. I think I even gave him
some of our original materials and he went to meet the
client. I'm not sure if I met with Mr. Coon again. I
don't think I did.
Id. at 74-75.
to Rader, Hachler contacted him and "said that
[Petitioner] was a very troublesome client. He wants me to
review the discovery and meet with Mr. Coon to discuss his
case and attempt to get him back in line so he'll go
through with sentencing now scheduled for 10/25."
Respondent's Exhibit 143, p. 1. Rader, in turn,
successfully sought authorization for a particular
investigator who, as Rader put it, "very often has a way
with these guys so maybe between the two of us we can talk
Coon into staying with the deal." Id.
the attorneys involved with Petitioner's case moved to
withdraw the plea, and the case proceeded to sentencing.
Gokey and Hachler accompanied Petitioner to his sentencing,
but did not represent him during that proceeding. The
sentencing Judge personally told Gokey in chambers that he
was upset about the settlement conference and he was
upset about the process; and he said he thought maybe it was
unethical. And this was in chambers with the District
Attorney sitting there, and the District Attorney said we
want to stick with this judge or something like that. He
said, well, if he wants out of this he's getting out of
this; and that was in chambers to us. And . . . then I sat
and watched him, my recollection is five times he asked Mr.
Coon if he wanted to withdraw his plea and he said, no,
he's fine. That's with Mr. Rader.
Exhibit 213, pp. 86-87.
sentencing commenced, Rader represented Petitioner while
Gokey and Hachler sat inside the courtroom and observed the
proceedings. Id. at 86. At the court's request,
Rader stated on the record how he had come to represent
Petitioner at sentencing. Rader informed the court that
Petitioner wished to go forward with the plea and sentencing.
Respondent's Exhibit 108, p. 23. The sentencing judge
twice more inquired as to Petitioner's willingness to
Court: I just want to make sure that your client is prepared
to go forward today without any hesitation, he still is
comfortable with the plea agreement he entered into.
Rader: Your Honor, Mr. Coon just explained to me that he is
comfortable going forward with it.
Court: And he does not wish to file a motion to withdraw his
Rader: No, Your Honor, he does not.
Court: All right, let's go ahead.
Id. at 24-25.
judge proceeded to sentence Petitioner in accordance with the
plea deal to 300 months in prison and 36 months of
post-prison supervision on the Murder conviction, and 60
consecutive months in prison on the Witness Tampering
conviction with a concurrent 24-month term of post-prison
supervision. The Judgment the court issued erroneously stated
that Petitioner was guilty of Aggravated Murder instead of
Murder, and in February 2002 the State moved to amend the
judgment to correct the error. The State also asked the court