United States District Court, D. Oregon
Timothy Shutoff Petitioner, Pro Se
F. Rosenblum, Attorney General Nick M. Kallstrom, Assistant
Attorney General Attorneys for Respondent
OPINION AND ORDER
A. Hernandez, United States District Judge.
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.
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
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
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. 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).
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).
filed this federal habeas corpus case on September 12, 2018
raising three grounds for relief that can be summarized as
(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) 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 ...