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Acosta v. Amsberry

United States District Court, D. Oregon

August 7, 2019

THOMAS P. ACOSTA, Petitioner,
BRIGETTE AMSBERRY, Superintendent, Columbia River Correctional Institution, Respondent.




          ANNA J. BROWN United States Senior District Judge.

         Petitioner, an inmate in the custody of the Oregon Department of Corrections, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Court DENIES the Amended Petition for Writ of Habeas Corpus (ECF No. 34).


         In January 2012, a Lincoln County grand jury indicted Petitioner on sixteen different charges, including forcible sexual offenses and acts of domestic violence, all against Petitioner's girlfriend. Resp. Exh. 101. The charges were alleged to have occurred on or about December 15, 2011, in Lincoln County. Resp. Exh. 101.

         While Petitioner's case was awaiting trial, the victim died in an unrelated car' crash. The prosecutor moved in limine to be allowed to offer various hearsay statements made by the victim before her death. Following an extensive hearing on the matter, the trial judge denied the motion except as to statements allowed under Oregon Rule of Evidence 803(18)(a), which provides that a complaint of sexual misconduct is not excluded by the general prohibition on hearsay. The state then moved to dismiss ten of the sixteen charges, leaving Count 1 - Sodomy in the First Degree, Count 5 - Sexual Abuse in the Second Degree, Count 8 - Coercion, and Counts 11, 12, and 13 - Assault in the Fourth degree.

         The case was tried to a jury. Following the state's evidence, petitioner moved for a judgment of acquittal on all charges. The state conceded it had failed to prove Coercion, so the trial judge granted a judgment of acquittal as to COunt 8. The trial judge denied the motion as to the remaining charges.

         The jury found Petitioner not guilty of one of the charges of Assault in the Fourth Degree, but otherwise found him guilty of the remaining counts. The trial judge merged the verdicts of Sodomy in the First Degree and Sexual Abuse in the Second Degree into a single conviction for Sodomy, and merged the two counts of Assault in the Fourth Degree into a single conviction for one count of Assault. The court sentenced Petitioner to one year in jail for the Assault conviction and the mandatory minimum of 100 months of imprisonment for the Sodomy count, to be served consecutively.

         Petitioner appealed, assigning error to the denial of his motion for judgment of acquittal. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. Acosta, 270 Or.App. 351, 350 P.3d 234, rev. denied, 357 Or. 743, 361 P.3d 608 (2015).

         Petitioner then filed a pro se petition for state post-conviction relief ("PCR") alleging that his rights to confrontation and a speedy trial were violated. Resp. Exh. 108. Appointed PCR counsel concluded that the PCR petition could not be construed to state a ground for relief and could not be amended to do so. Resp. Exh". 109. The. PCR trial court conducted a hearing, where Petitioner reiterated his allegations. Resp. Exh. 110, pp. 3-5. The PCR trial judge noted that the issues Petitioner was raising were ones "that should have been raised on appeal to the direct appeal after your case, not issues to be raised at post-conviction relief." Resp. Exh. 110, p. 5. The PCR court dismissed the petition as meritless under Or. Rev. Stat. § 138.525. Resp. Exh. 111. Such a judgment is not appealable under Oregon law. Or. Rev. Stat. § 138.525(3) .

         Petitioner then filed a habeas corpus action in this Court. In his Amended Petition, he alleges twelve grounds for relief:

Ground One: Petitioner was denied his right to a speedy trial;
Ground Two: The state failed to offer constitutionally sufficient evidence that Petitioner was the perpetrator, that venue in Lincoln County was appropriate, and of the essential elements of the crimes charges;
Ground Three: The admission of certain evidence violated Petitioner's right to confront, cross-examine, and compel witnesses;
Ground Four: Petitioner was denied the right to an impartial jury due to publicity before and during the trial;
Ground Five: Ineffective assistance of trial and appellate counsel;
Ground Six: Petitioner was denied his right to be heard when the trial court did not sufficiently inquire into concerns Petitioner had with his attorney;
Ground Seven: The state knowingly proffered or failed to correct false testimony;
Ground Eight: The state violated' Petitioner's due process rights when the prosecutor made prejudicial statements in closing argument;
Ground Nine: The state failed to turn over exculpatory evidence;
Ground Ten; Petitioner was denied his right to present a complete defense;
Ground Eleven: Petitioner is actually innocent; and
Ground Twelve: Petitioner was denied due process due to "cumulative errors" during ...

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