United States District Court, D. Oregon
THOMAS P. ACOSTA, Petitioner,
BRIGETTE AMSBERRY, Superintendent, Columbia River Correctional Institution, Respondent.
H. GROVER WARD GROVER & ASH ATTORNEY FOR PETITIONER
F. ROSENBLUM ATTORNEY GENERAL JAMES M. AARON ASSISTANT
ATTORNEY GENERAL DEPARTMENT OF JUSTICE ATTORNEYS FOR
OPINION AND ORDER
J. BROWN United States Senior District Judge.
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
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.
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.
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
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.
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).
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)
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
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
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
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
Ground Ten; Petitioner was denied his right to present a
Ground Eleven: Petitioner is actually innocent; and
Ground Twelve: Petitioner was denied due process due to
"cumulative errors" during ...