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Hill v. Taylor

United States District Court, D. Oregon

December 11, 2019

LAIRD WAYNE HILL, Petitioner,
v.
JERI TAYLOR, Respondent.

          Nell Brown Assistant Federal Public Defender Attorney for Petitioner

          Ellen F. Rosenblum, Attorney General Samuel A. Kubernick, Assistant Attorney General Department of Justice Attorneys for Respondent MOSMAN, District Judge.

          OPINION AND ORDER

          MICHAEL W. MOSMAN UNITED STATES DISTRICT JUDGE.

         Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his state-court convictions from 2005. Because Petitioner did not file the action within the applicable one-year statute of limitations, the Petition for Writ of Habeas Corpus (#2) is dismissed.

         BACKGROUND

         On September 23, 2005, a jury convicted Petitioner in Marion County of four counts of Sexual Abuse in the First Degree, prompting the trial court to sentence him to 150 months in prison. Petitioner pursued a direct appeal that was ultimately unsuccessful, and his Appellate Judgment issued with an effective date of April 15, 2010. To comply with the one-year statute of limitations applicable to habeas corpus cases, Petitioner had until July 11, 2011 in which to file for federal habeas corpus relief.[1]

         Petitioner believed he was the victim of ineffective assistance of counsel at his trial. However, instead of presenting his claims ineffective assistance of counsel in a post-conviction relief (``PCR") action in state court, [2] he proceeded directly to federal court where he filed his Petition for Writ of Habeas Corpus in Hill v. Coursey, No. 1:ll-cv-00426-PA, assigned to the Honorable Owen M. Panner. Petitioner signed his Petition on March 16, 2011 such that he complied with the AEDPA's one-year statute of limitations with 117 days to spare.

         In his Second Amended Petition for Writ of Habeas Corpus in l:ll-cv-00426-PA, Petitioner raised four grounds for relief, two of which were claims of trial court error that were procedurally defaulted and ineligible for federal habeas corpus review.[3] In his two remaining grounds for relief, he raised claims of ineffective assistance of counsel that, by virtue of his bypassing the state PCR remedy, he had not fairly presented to Oregon's state courts. The ineffective assistance of counsel claims were not procedurally defaulted, however, because Petitioner still had time to file a PCR petition in state court.[4]

         Judge Panner noted that the issue of potentially staying the action was not something the Court needed to raise sue sponte and, even if it was, neither Rhines v. Weber, 544 U.S. 269, 275 (2005) nor Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) could be properly applied. Judge Panner appeared to be primarily concerned that Petitioner, appearing to have no viable claims to present for federal habeas review at that time, might become time-barred from raising his claims of ineffective assistance of counsel in a state PCR proceeding because the two-year statute of limitations applicable to such cases was due to expire in less than 60 days. He therefore dismissed the habeas case without prejudice and without further leave to amend, and advised Petitioner that his best avenue for relief was a state PCR action. He reasoned that it was best to dismiss the action without prejudice and without further leave to amend because:

. by giving petitioner the option of proceeding, it could be seen as suggesting to a pro se litigant that federal habeas corpus is a legitimate option for his direct appeal claims only for petitioner to later find out not only that it was not, but that by pursuing the habeas remedy he lost his only opportunity to ever receive a merits adjudication of his ineffective assistance of counsel claims in any court.

Order (#29), p. 6.

         Following Judge Panner's February 21, 2012 dismissal, Petitioner timely filed a PCR action on April 6, 2012 wherein he litigated his claims against his trial attorney. The PCR court denied relief on Petitioner's claims, the Oregon Court of Appeals dismissed a subsequent appeal, and the Oregon Supreme Court denied review.

         At the conclusion of his state PCR action, and more than four years after Judge Panner dismissed his federal case, on July 5, 2016, Petitioner filed what amounted to a Third Amended Petition in the terminated case and a Motion seeking to reopen the case. Judge Panner appointed the Federal Public Defender to represent Petitioner, and counsel filed her own Motion for Reconsideration seeking to restart the earlier proceedings.

         Following Judge Panner's retirement, the Clerk transferred l:ll-cv-00426-PA to me. On June 7, 2017, I concluded that the Motion for Reconsideration seeking to invalidate Judge Panner's Judgment was untimely. I further concluded that even if Petitioner had timely filed his Motion for Reconsideration, a stay would not have been proper in the case because: (1) there was no ``good cause" to justify a Rhines stay; and (2) there was no authority requiring a Kelly stay in a case that involved only ...


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