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Shutoff v. Kelly

United States District Court, D. Oregon

September 7, 2019

TIMOTHY SHUTOFF, Petitioner,
v.
BRANDON KELLY, Respondent.

          Timothy Shutoff Petitioner, Pro Se

          Ellen F. Rosenblum, Attorney General Nick M. Kallstrom, Assistant Attorney General Attorneys for Respondent

          OPINION AND ORDER

          Marco A. Hernandez, United States District Judge.

         Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the imposition of a 36-month term of post-prison supervision. For the reasons that follow, the Petition for Writ of Habeas Corpus (#2) is denied.

         BACKGROUND

         In 2010, Petitioner operated a motor vehicle under the influence of alcohol and methamphetamine. The car reached speeds of up to 115 miles per hour, and Petitioner ultimately crashed the vehicle. His passenger, Jezaray Ibarra, suffered a broken pelvis, a broken nose, a fractured skull, and had his scalp partially removed. Respondent's Exhibit 103, pp. 84-86. Petitioner was also injured in the accident, but was able to walk off into the woods before authorities located him. Helicopters airlifted both men to the hospital for emergency care.

         The Marion County Grand Jury charged Petitioner with Assault in the Second Degree, Failure to Perform Duties of a Driver to Injured Persons, and Driving While Under the Influence of Intoxicants. Respondent's Exhibit 102. A jury found him guilty on all counts, and the trial court sentenced him to: (1) 12 0 months in prison on the Assault II conviction; (2) a concurrent 45-month prison term on the Failure to Perform conviction, to be followed by 36 months of post-prison supervision; and (3) a concurrent 12-month sentence on the Driving Under the Influence conviction. Respondent's Exhibit 101.

         Petitioner took a direct appeal where he argued, in part, that the trial court plainly erred when it imposed the 36-month term of post-prison supervision on the Failure to Perform conviction.[1] Respondent's Exhibit 106. The Oregon Court of Appeals affirmed the trial court's decision without issuing a written opinion, and the Oregon Supreme Court denied review. State v. Shutoff, 258 Or.App. 388., 310 P.3d 1203, rev. denied, 354 Or. 389, 315 P.3d 421 (2013).

         Petitioner next filed for post-conviction relief ("PCR") in Malheur County where the PCR court denied relief. Respondent's Exhibit 121. The Oregon Court of Appeals affirmed that decision without opinion, and the Oregon Supreme Court denied review. Shutoff v. Nooth, 289 Or.App. 823, 412 P.3d 1226, rev. denied, 362 Or. 860, 418 P.3d 757 (2018).

         Petitioner filed this federal habeas corpus case on September 12, 2018 raising three grounds for relief that can be summarized as follows:

(1) Petitioner was denied his right to effective assistance of counsel when appellate counsel failed to properly argue a claim that that trial court imposed an unlawful term of post-prison supervision on the Failure to Perform conviction, -[2]
(2) Petitioner's PCR attorney was ineffective because he was not prepared for the PCR hearing as evidenced by his failure to adequately respond to a question from the PCR judge pertaining to the post-prison supervision issue; and
(3) Petitioner's PCR attorney provided ineffective assistance when he did not argue a claim that trial counsel failed to preserve the trial court's alleged ...

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