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Erickson v. Courtney

United States District Court, D. Oregon

January 7, 2020

THOMAS GERALD ERICKSON, Petitioner,
v.
RICK COURTNEY, Superintendent, Eastern Oregon Correctional Institution, Respondent.

          OPINION AND ORDER

          Karin J. Immergut, United States District Judge

         Petitioner 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.[1] 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.

         BACKGROUND

         I. Erickson's Trial

         On July 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.

         Resp't 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.

         The 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.

         II. State Appellate and Collateral Review

         Erickson 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).

         Erickson 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.

         The PCR 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.[2] The PCR court summarily dismissed the petition. Resp't Exs. 128-29.

         On appeal, Erickson's appellate counsel filed a Balfour brief certifying in Section A that he could not identify any nonfrivolous issue for appeal.[3] 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 Ex. 135.

         III. Erickson's Federal Habeas Corpus Proceeding

         In 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.

         Petitioner 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).

         On 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).

         On 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).

         On 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.

         IV. Erickson's Amended Petition

         On 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 relief. Id.

         Erickson 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 ...

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