United States District Court, D. Oregon
OPINION AND ORDER
J. Immergut, United States District Judge
Thomas Gerald Erickson ("Erickson"), an inmate at
the Eastern Oregon Correctional Institution, brings this
habeas corpus proceeding pursuant to 28 U.S.C. § 2254.
Erickson raises multiple grounds for relief premised on the
assertion that his prosecution was time barred. For the
reasons set forth below, this Court DENIES Erickson's
Amended Petition (ECF No. 126) as to all grounds except
ground seven. Respondent concedes that Erickson's
conviction for attempted rape should be vacated. Resp't
Resp. to Supp. and Second Supp. Br. (ECF No. 168) at 3.
Accordingly, this Court GRANTS Erickson's Amended
Petition as to ground seven and VACATES Erickson's
conviction only for Attempted Rape in the First Degree, as
alleged in count eleven of the indictment in Deschutes County
Circuit Court No. 03FE0823ST.
8, 2003, a grand jury returned an indictment charging
Erickson with five counts of Sodomy in the First Degree, five
counts of Sexual Abuse in the First Degree, and one count of
Attempted Rape in the First Degree. Resp't Exs. (ECF No.
25), Ex. 102. The indictment alleged that Erickson sexually
assaulted his daughter "A.I." between October 3,
1986 and April 23, 1992.
Ex. 102, Resp't Ex. 104 at 17-23. A.I. was under the age
of twelve when the abuse occurred. Resp't Ex. 102. A.I.
delayed disclosing the abuse to Oregon officials until she
was in high school. Resp't Ex. 104 at 167-71. She was
twenty-one years old at the time of trial. The Honorable Anna
J. Brown previously summarized the evidence and arguments
presented at trial as follows:
A.I.... testified that there were five incidents involving
four acts of sodomy and five acts of sexual abuse that
occurred when she visited Petitioner during Christmas of 1987
and through her stay into January 1988 at a Browning street
residence in Sunriver, Oregon. She returned for a visit to
the same residence around Easter in 1988, and she described
three incidents during that visit when Petitioner committed
two sodomy offenses and two sexual abuse offenses. In the
spring of 1989, A.I. visited Petitioner at a residence on
Solar Drive in Sunriver, and she testified that Petitioner
committed one act of sexual abuse and one act of sodomy. A.L
testified that the last incident occurred in the Spring of
1991 when she visited Petitioner at the Browning residence
and Petitioner tried to rape her by attempting intercourse.
A.I. testified that in 1992 and 1993 she told a school
counselor in Utah about Petitioner's sexual abuse.
At the end of the state's case, Petitioner's trial
counsel moved for a judgment of acquittal on three bases: (1)
that the statute of limitations barred the prosecution; (2)
that given the victim's lack of specificity regarding
three incidents during the Christmas visit, the state failed
to prove more than three incidents of sodomy; and (3) that
given the confusing testimony as to dates and places the
state otherwise failed to provide sufficient proof of all of
the incidents. As to the statute of limitations, counsel
argued that Or. Rev. Stat. § 131.125(2) required the
state to commence the prosecution within 6 years of a report
of the offense to law enforcement or other government agency,
and that the victim's disclosure to the Utah school
counselor in 1992 and 1993 triggered the running of the
statute. Specifically, counsel argued that the Utah school
counselor qualified as an "other governmental
agency." The trial court rejected this argument. The
trial judge noted that the argument presented open questions
of law and found that the Utah school counselor was not an
"other governmental agency" and that the
limitations period was not triggered until the State of
Oregon received a report. The trial judge also noted that the
school counselor likely had a duty not to disclose. The judge
denied Petitioner's other bases for acquittal as well.
Petitioner's substantive trial defenses were the statute
of limitations and an attack on his daughter's
credibility. He called several witnesses to support his
argument that she was a pathological liar and manipulator and
that she learned those traits to survive a difficult
childhood. A.I. experienced extreme poverty living with her
drug-using and drug-dealing mother, and she was sexually
abused by her step-uncle in 1990. Petitioner argued that A.I.
made up the allegations against him because she was resentful
that he did not protect her from the neglect and abuse she
experienced. He also argued that the timing of A.L's
allegations were related to her desire to become closer with
Petitioner's stepdaughter, then 25-years-old, by
supporting the step-daughter's allegation that Petitioner
touched her inappropriately sometime before 1990. Several
witnesses testified that A.I. had a reputation for
untruthfulness, and that she had denied being abused by
Petitioner over the years.
Op. and Order (ECF No. 97) at 2-4.
jury returned a guilty verdict on all counts. Resp't Ex.
101. The trial judge imposed consecutive 240-month sentences
for each count of sodomy, consecutive sixty-month sentences
for each count of sexual abuse, and a ninety-month durational
departure sentence for attempted rape. Id.
State Appellate and Collateral Review
filed a direct appeal raising two sentencing errors.
Resp't Ex. 106. The Oregon Court of Appeals initially
held that the trial court's imposition of a departure
sentence was plainly erroneous because it violated
Blakely v. Washington, 542 U.S. 296 (2004).
State v. Erickson, 205 Or.App. 555, 556 (2006). The
Oregon Supreme Court reversed and remanded to the Oregon
Court of Appeals to consider whether reaching the unpreserved
sentencing error would advance the ends of justice. State
v. Erickson, 345 Or. 315, 315 (2008). On remand, the
Oregon Court of Appeals declined to exercise its discretion
to review the unpreserved error and affirmed Erickson's
departure sentence. State v. Erickson, 227 Or.App.
299, 302-03 (2009). The Oregon Supreme Court denied
review..State v. Erickson, 346 Or. 361 (2009).
subsequently filed a. pro se petition for state
post-conviction relief (PCR), alleging that trial and
appellate counsel rendered ineffective assistance of counsel
("LAC") and that he was denied his right to a fair
trial because (1) a deputy district attorney withdrew from
the case without disclosing why, (2) a second deputy district
attorney failed to disclose exculpatory evidence, and (3) the
trial judge admitted evidence of prior bad acts in violation
of Erickson's right to be free from double jeopardy,
denied Erickson's motion for change of venue, denied
various objections, disregarded the applicable statute of
limitations, refused to dismiss Erickson's attorney, and
imposed an illegal sentence. Resp't Ex. 118.
trial court appointed attorney Mark Mordini as counsel for
Erickson. Resp't Ex. 119. Mordini subsequently filed a
notice that Erickson'spro se PCR petition would
constitute his formal petition to which the state should
answer. Resp't Ex. 122. Counsel did not attach any
supporting documentation. See Id. The state moved
for summary judgment based on Erickson's failure to
comply with Or. Rev. Stat. § 138.580, requiring that a
petitioner attach supporting documentation to his PCR
petition. Resp't Ex. 125. The PCR court summarily dismissed
the petition. Resp't Exs. 128-29.
appeal, Erickson's appellate counsel filed a
Balfour brief certifying in Section A that he could
not identify any nonfrivolous issue for appeal. Resp't Ex.
130. Appellate counsel attached a copy of Erickson's
pro se PCR petition as part of the excerpt of
record. Id. Erickson did not submit a Section B for
the brief. Id. at 4-5. The Oregon Court of Appeals
affirmed without opinion. Erickson v. Coursey, 246
Or.App. 576 (2011). Erickson thereafter filed (1) a pro
se petition for review complaining that appellate
counsel rendered ineffective assistance by failing to file a
timely petition for review (Resp't Ex. 132), a motion to
recall the appellate judgment (Resp't Ex. 133), and a
second pro se petition for review again complaining
of ineffective assistance of appellate counsel (Resp't
Ex. 134). The Oregon Supreme Court granted the motion to
recall the appellate judgment but denied review. Resp't
Erickson's Federal Habeas Corpus Proceeding
Erickson's original habeas petition to this Court, he
alleged the following grounds for relief: (1) prosecutorial
misconduct for failing to disclose exculpatory evidence; (2)
double jeopardy; (3) unconstitutionally selected and
impaneled jury; (4) ineffective assistance of trial and
appellate counsel; and (5) ineffective assistance of PCR
counsel. Pet'r's Habeas Pet. (ECF No. 1) at 4-5.
Respondent moved the Court to deny habeas relief because
Erickson procedurally defaulted grounds one through four by
failing to fairly present the grounds to the Oregon Supreme
Court on direct or PCR appeal and because ground five is not
cognizable. Resp't Resp. (ECF No. 23) at 1-2, 5-8.
responded in the alternative that (1) the procedural default
of his IAC claims is excused pursuant to the U.S. Supreme
Court's holding in Martinez v. Ryan, 132 S.Ct.
1309 (2012) (holding that IAC at an initial-review collateral
proceeding may establish cause to excuse a petitioner's
procedural default of substantial claims of ineffective
assistance of trial counsel ("IATC")); (2) the
procedural default of his PCR claims does not preclude habeas
relief because the PCR trial court relied on a state
procedural rule that is not independent of the federal
question and adequate to support the judgment; and (3) he has
made a colorable showing of actual innocence. Pet'r's
Br. in Supp. at 17-23. Additionally, Erickson moved to file
an amended habeas petition. Pet'r's Mot. to Amend
(ECF No. 71).
March 25, 2015, Judge Brown issued an Opinion denying
Erickson's habeas petition because he procedurally
defaulted all grounds raised in both his petition and
proposed amended petition. Op. and Order (ECF No. 97) at 16,
20-23. Judge Brown rejected Erickson's assertion that the
procedural default of his IAC claims was attributable to the
deficient performance of PCR trial counsel such that the
default should be excused pursuant to the holding in
Martinez. Id. at 9, 16-22. Additionally, Judge Brown
held that she need not decide whether Or. Rev. Stat. §
138.580 is an independent and adequate state procedural rule
because the PCR trial court rendered a decision on the
merits. Id. at 16-21 & n. 6. Finally, Judge
Brown held that Erickson failed to make a colorable showing
of actual innocence. Id. at 22-23. Judge Brown
declined to issue a certificate of appealability
("COA"). Id. at 26; see 28 U.S.C.
§ 2253(c)(1)(A) (providing that an appeal from a final
order in a § 2254 proceeding may not be taken unless a
judge or circuit justice issues a COA).
August 28, 2015, the Ninth Circuit granted Erickson's
request for a COA with respect to a single issue: whether the
district court properly ruled that Erickson procedurally
defaulted his claim that trial counsel "rendered
ineffective assistance by failing to adequately challenge the
prosecution of offenses on the ground they were barred by the
statute of limitations." Erickson v. Courtney,
No. 15-35320, Order (ECF No. 5) at \\see28 U.S.C.
§ 2253(c)(3) (providing that a COA "shall indicate
which specific issue or issues satisfy the showing required
for a COA).
August 8, 2017, the Ninth Circuit issued a memorandum
decision holding that Respondent "effectively
conced[ed]" Erickson's argument that his procedural
default was excused under Martinez and, in any
event, "Erickson appears to meet the requirement for the
Martinez exception" because "[h]is
post-trial counsel essentially abandoned him" and
"at least one of Erickson's
statute-of-limitations-based IATG arguments has some
merit." Erickson v. Courtney, 702 Fed.Appx.
585, 588 & n.2 (9th Cir. 2017). The Ninth Circuit
reversed and remanded for further proceedings. Id.
Erickson's Amended Petition
remand, Judge Brown reconsidered Erickson's motion for
leave to file an amended petition. Op. and Order (ECF No.
124). Judge Brown granted Erickson's motion as to
proposed grounds six through nine
(statute-of-limitations-based IATC claims) and ground ten (a
freestanding claim of actual innocence). Id. at 29.
Judge Brown denied the motion as to the remaining grounds for
subsequently filed an Amended Habeas Petition (ECF No. 126)
re-alleging "pro se" grounds one through five and
adding grounds six through ten. Specifically, Erickson
alleges in his Amended Petition:
Ground One: "Conviction obtained by the
unconstitutional failure of the prosecution to disclose to
the defendant evidence favorable to the defendant."
Ground Two: "Conviction obtained by a
violation of the protection against double jeopardy."
Ground Three: "Conviction obtained by
action of a grand or petit jury which was unconstitutionally
selected and impaneled."
Ground Four: "Denial of effective
assistance of [trial and appellate] counsel."
Ground Five: "Post-Conviction Attorney
Mr. Mordini was ineffective in representation."
"(While not a Ground for Relief the allegation is
relevant and is restated)."
Ground Six through Nine: "Petitioner
was denied his 6th and 14th Amendment rights to effective
assistance of trial counsel when counsel failed to object to,
effectively object to or assign plain error to the
court's failure to dismiss the state's prosecution of
crimes after the statute of limitations had expired."
Ground Ten: "Petitioner is actually
innocent of his convictions and ...