Brood v. Nooth
| Decision Date | 16 July 2012 |
| Docket Number | 3: 09-CV-01431-JO |
| Parties | RANDELL R. BROOD, Petitioner, v. MARK NOOTH, Superintendent, Snake River Correctional Institution, Respondent. |
| Court | U.S. District Court — District of Oregon |
Kristina S. Hellman
Assistant Federal Public Defender
Attorney for Petitioner
Attorney General
Samuel A. Kubernick
Assistant Attorney General
Department of Justice
Attorneys for Respondent
Petitioner brings this habeas corpus action pursuant to 28 U.S.C. § 2254 in which he challenges his convictions and sentence for sodomy. For the reasons set forth below, the Amended Petition for Writ of Habeas Corpus [14] is denied, and Judgment is entered dismissing this action with prejudice.
On July 28, 2005, the Douglas County Grand Jury returned an amended indictment charging petitioner with nine counts of Sodomy in the First Degree. Respondent's Exhibit 104. Petitioner was convicted on all counts in a bench trial and the court imposed a sentence totaling 600 months. Respondent's Exhibit 101.
Petitioner directly appealed his convictions, but subsequently moved to voluntarily dismiss his appeal. Respondent's Exhibit 106.
Petitioner filed for post-conviction relief ("PCR") in state court. The PCR trial court denied relief. Brood v. Hill, Malheur County Circuit Court Case No. 07-04-5775-P. On appeal, the Oregon Court of Appeals affirmed the PCR court without written opinion, and the Oregon Supreme Court denied review. Brood v. Hill, 22 9 Or. App. 740, 213 P.3d 875 (2009), rev. denied, 347 Or. 258, 218 P.3d 540 (2009); Respondent's Exhibits 134-138.
On December 3, 2009, petitioner filed this action. In his Amended Petition for Writ of Habeas Corpus, he raises the following grounds for relief:
Respondent asks the Court to deny relief on the Amended Petition on the basis that: (1) Ground One and part of Ground Two are procedurally defaulted and the default is not excused; (2) the remainder of Ground Two was denied on the merits in a state court decision entitled to deference; and (3) all claims lack merit.
A habeas petitioner must exhaust his claims by fairly presenting them to the state's highest court, either through a direct appeal or collateral proceedings, before a federal court will consider the merits of those claims. Rose v. Lundy, 455 U.S. 509, 519 (1982). "As a general rule, a petitioner satisfies theexhaustion requirement by fairly presenting the federal claim to the appropriate state courts . . . in the manner required by the state courts, thereby 'affording the state courts a meaningful opportunity to consider allegations of legal error.'" Casey v. Moore 386 F.3d 896, 915-916 (9th Cir. 2004) (quoting Vasauez v. Hillery, 474 U.S. 254, 257, (1986)). If a habeas litigant failed to present his claims to the state courts in a procedural context in which the merits of the claims were considered, the claims have not been fairly presented to the state courts and are therefore not eligible for federal habeas corpus review. Castille v. Peoples, 489 U.S. 346, 351 (1989).
A petitioner is deemed to have "procedurally defaulted" his claim if he failed to comply with a state procedural rule, or failed to raise the claim at the state level at all. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). If a petitioner has procedurally defaulted a claim in state court, a federal court will not review the claim unless the petitioner shows "cause and prejudice" for the failure to present the constitutional issue to the state court, or makes a colorable showing of actual innocence. Gray v. Netherland, 518 U.S. 152, 162 (1996); Sawver v. Whitley, 505 U.S. 333, 337 (1992); Murray v. Carrier, 477 U.S. 478, 485 (1986).
While petitioner concedes his Ground One claim is defaulted, he contends he can demonstrate cause and prejudice to excuse such default based on the fact trial counsel rendered constitutionally ineffective assistance when he failed to make a motion objecting to the indictment on the same grounds.
Respondent acknowledges that petitioner raised several ineffective assistance of counsel claims during his post conviction proceedings related to his attorney's handling of the indictment, including a claim that counsel rendered ineffective assistance when he failed to object to the indictment on the ground "it was not specific as to times and dates to allow Petitioner to adequately defend himself." Respondent's Exhibit 109 at 5. Nevertheless, respondent suggests the indictment-related ineffective assistance claims petitioner presented to the Oregon courts were fundamentally different from the constitutional due process and double jeopardy claims set forth in this federal habeas action. Accordingly, respondent insists the referenced ineffective assistance of counsel claim raised during petitioner's state post-conviction proceedings cannot amount to cause to excuse a procedural default of his Ground One claim that the indictment violated his rights under the Due Process and Double Jeopardy clauses.
Notably, attorney error that rises to the level of ineffective assistance of counsel may constitute cause to excuse a procedural default. McCleskey v. Zant, 499 U.S. 467, 494 (1991). But if the claim of ineffectiveness is itself defaulted, it cannot be the basis for cause, unless the petitioner can establish cause and prejudice with respect to the ineffectiveness claim itself. Edwards, 529 U.S. 452-54.
As noted above, respondent argues petitioner did not present the PCR court with an ineffective assistance of counsel claim challenging the indictment based on the Constitution's due process and double jeopardy clauses. Even assuming he had, that court denied relief on all of petitioner's claims of ineffective assistance of counsel, including those related to counsel's failure to object to the indictment. Accordingly, petitioner cannot establish that ineffective assistance of counsel amounts to "cause and prejudice" to excuse his default of the Ground One claim unless he can show the PCR court's adjudication of the ineffective assistance claim was contrary to or an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984). For the reasons discussed below, the Court finds petitioner has failed to make this showing, and thus cannot establish cause and prejudice to excuse his default of his Ground One claim.
An application for writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court's findings of fact are presumed correct and petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
A state court decision is "contrary to clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of Court and nevertheless arrives at a result different from [that] precedent." Williams v. Tavlor, 529 U.S. 362, 405-06 (2000). Under the "unreasonable application" clause, a federal habeas court may grant relief "if the state court identifies the correct legal principle from [the Supreme Court's] decisions, but unreasonably applies that principle to the facts of the prisoner's case."Id. at 413. The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. Id. at 410. The state court's application of clearly established law must be objectively unreasonable. Id. at 409.
Ground Two:_Ineffective Assistance of Counsel for Failing to Object to the Indictment on the Basis It Did Not Provide Adequate Notice of the Charges and Prevented Petitioner From Protecting Himself From Double Jeopardy.
With respect to petitioner's ineffective assistance of counsel claim related to counsel's failure to object to the indictment for lack of adequate notice, the PCR trial court had before it a sworn affidavit from petitioner's trial counsel wherein counsel averred as follows:
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