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Guerrero-Muro v. Snake River Correction

United States District Court, D. Oregon

April 5, 2019

RAFAEL GUERRERO-MURO, Petitioner,
v.
SNAKE RIVER CORRECTION, Respondent.

          OPINION AND ORDER

          Ann Aiken, United States District Judge.

         Petitioner brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that his 300-month sentence violated his rights against cruel and unusual punishment under the Eighth Amendment. Respondent argues that the petition is untimely, and petitioner's claim is barred by the statute of limitations. I agree and dismiss the petition.

         BACKGROUND

         In January 2010, after trial by jury, petitioner was convicted of two counts of Unlawful Sexual Penetration in the First Degree and six counts of Sexual Abuse in the First Degree. Resp't Ex. 101. Petitioner's convictions arose from the abuse of two girls who were friends of petitioner's step-daughter. Ex. 102 at 11-16. The trial court imposed a sentence of 300 months' imprisonment on Count 3, Unlawful Penetration in the First Degree, and imposed concurrent sentences on the remaining counts. Resp't Ex. 101.

         On appeal, petitioner asserted that the 300-month sentence on Count 3 violated the Eighth Amendment's prohibition against cruel and unusual punishment. Resp't Ex. 102 at 46-48. The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Resp't Exs. 106-107. On August 7, 2013, the appellate judgment issued, and petitioner's conviction became final on November 5, 2013, when the time for seeking review by the United States Supreme Court expired. Gonzalez v. Thayer, 565 U.S. 134, 150 (2012).

         On May 30, 2014, petitioner signed a state court petition for post-conviction relief (PCR) and alleged several claims of ineffective assistance of counsel. Resp't Ex. 108. Petitioner's appointed PCR counsel subsequently moved to voluntarily dismiss his PCR petition, and the judgment of dismissal was entered on October 14, 2015. Resp't Exs. 109-11.

         On October 16, 2015, petitioner wrote his PCR counsel and informed her that he had not given consent to dismiss his PCR petition. Pet'r Ex. 1 (ECF No. 34-1). On November 2, 2015, PCR counsel unsuccessfully attempted to speak with petitioner over the telephone, and on November 23, 2015, she wrote petitioner a letter and disputed his assertion that he had not agreed to dismiss his petition. Pet'r Ex. 2. PCR counsel also informed petitioner that she would mail his complete file as soon as petitioner obtained a "package consent form" and mailing sheet from his correctional institution. Pet'r Ex. 2. Counsel explained, "Due to the size of the CD-ROM and the Discovery, you will need a mailing sheet. Once I receive the mailing sheet for the packages, I will send you the files as legal correspondence in your name." Pet'r Ex. 2.

         On December 7, 2015 and February 10, 2016, petitioner again wrote PCR counsel. He disputed the dismissal of his PCR petition and asked about "the amount of documents that will be sent and the CD-ROMs." Pet'r Ex. 3-4.

         On March 23, 2016, PCR counsel responded to petitioner and recalled their conversations about the PCR petition and explained her decisions. Counsel indicated that she had not filed an appeal because the PCR petition was voluntarily dismissed, and she reiterated her request for a packaging slip to mail petitioner's 2, 600-page file. Pet'r Ex. 6.

         On April 19, 2016, petitioner submitted a package authorization form, which was mailed to PCR counsel on April 29, 2016. On May 24, 2016, petitioner received his file from PCR counsel. Resp't Ex. 121.

         On June 12, 2016, petitioner moved to allow an untimely appeal of the dismissal of his PCR petition. Resp't Ex. 112. The motion was denied by the Oregon Appellate Commissioner. Resp't Ex. 113. Petitioner sought reconsideration, and the Oregon Court of Appeals denied reconsideration and the Oregon Supreme Court denied review. Resp't Ex. 114-19. On January 18, 2017, the appellate judgment issued.

         On March 13, 2017, petitioner signed his federal petition for writ of habeas corpus.

         DISCUSSION

         Respondent argues that the federal petition is untimely and barred from review by the relevant one-year statute of limitations. See 28 U.S.C. ยง 2244(d)(1)(A) (a petitioner must file a federal habeas ...


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