Chavez v. Belleque
| Decision Date | 27 January 2011 |
| Docket Number | Civil No. 08-287-BR |
| Parties | VICTOR HUGH TUMBACO CHAVEZ, Petitioner, v. BRIAN BELLEQUE, Superintendent, Oregon State Penitentiary, Respondent. |
| Court | U.S. District Court — District of Oregon |
MARK BENNETT WEINTRAUB
Attorney for Petitioner
Attorney General
Attorneys for Respondent
Petitioner, an inmate at the Oregon State Penitentiary, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Court DENIES the Petition for Writ of Habeas Corpus.
On August 27, 1998, a Clackamas County grand jury indicted Petitioner on charges of one count of Sodomy in the First Degree, five counts of Sexual Abuse in the First Degree, one count of Unlawful Sexual Penetration in the First Degree, and one count of Attempted rape in the First Degree. The victim was the eleven-year-old daughter of a family Petitioner and his wife resided with upon their move from Petitioner's native Ecuador.
The case was tried to a jury. The jury convicted Petitioner of one count of Sodomy in the First Degree, four counts of Sexual Abuse in the First Degree, one count of Unlawful Sexual Penetration in the First Degree, and one count of Attempted Rape in the First Degree. On May 25, 1999, the trial judge imposed concurrent and consecutive sentences for a total of 320 months of imprisonment.
Petitioner directly appealed. In a written opinion, the Oregon Court of Appeals affirmed. State v. Chavez, 172 Or. App. 326, 19 P.3d 923 (2001). Petitioner sought review from the Oregon Supreme Court on four grounds: (1) did the admission of Petitioner's statements to police violate his rights under the Geneva Convention; (2) did Petitioner knowingly and voluntarily waive his right to counsel after he requested counsel, but then volunteered information related to his crime; (3) was the admission of testimony from Petitioner's wife regarding the marital relationship probative; and (4) did the trial court violate Petitioner's due process rights when the court imposed consecutive sentences.1
The Oregon Supreme Court granted review to address the question of whether a suspect's statements to police must be suppressed if the Vienna Conviction was violated. The Oregon Supreme Court affirmed the decision of the trial court and the Oregon Court of Appeals. State v. Chavez, 335 Or. 44, 56 P.3d 923 (2002).
Petitioner then sought state post-conviction relief ("PCR") alleging various ineffective assistance claims against trial and appellate counsel, trial court error, and prosecutorial misconduct. Following an evidentiary hearing, the PCR trial judge denied relief. Petitioner appealed and, through his court-appointed counsel, assigned error to the PCR court's denial of Petitioner's claim that appellate counsel was ineffective forfailing to challenge the consecutive sentences. Petitioner also filed a pro se supplemental brief in which he assigned error to: (1) the PCR trial judge's finding that Petitioner and his wife were properly informed of the benefits and problems of having her testify; (2) the PCR trial judge's analysis of Petitioner's wife's trial testimony; and (3) the PCR trial judge's finding that the evidence in the record supported Petitioner's guilt.
The Oregon Court of Appeals granted the state's motion for summary affirmance. Petitioner then sought review from the Oregon Supreme Court. In his Petition for Review, he advanced only his claim that counsel was ineffective for failing to challenge the consecutive sentences.
On March 7, 2008, Petitioner file his habeas corpus action in this Court. In his pro se Petition for Writ of Habeas Corpus, he alleges numerous claims for relief: 2
GROUND ONE
Petitioner received inadequate and ineffective assistance of trial counsel in violation of the Fifth, Sixth, and Fourteenth Amendment to the United States Constitution, and the Oregon Constitution, when trial counsel's acts and/or omissions fell below a reasonable standard of professional representation in the following particulars:
CONSECUTIVE SENTENCES
Petitioner's attorney should have objected to the consecutive sentences as provided by the Judge during his sentencing. Petitioner's case is directly affected by State v. Ice, 343 Or. 248 (Or 2007) 2007 WL 2949148. Petitioner presents this case to advance the issue and the case expeditiously and efficiently as this case has recently been decided and could only be put forward here.
The State of Oregon deprived Petitioner of his right to a jury trial and due process of law in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, section 11, of the Oregon Constitution, when the sentencing judge exceeded his/her proper authority by imposing a sentence in excess of the applicable statutory maximum sentence without requiring a jury determination of the requisite facts and without requiring that those facts be proved beyond a reasonable doubt. In Ice, the Oregon Supreme Court held that the rule from Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 LEd 2d 435 (2000) applies to the statutorily-required predicate facts beyond a reasonable doubt before a sentencing court has authority to impose a consecutive sentence. See ORS 137.1223 (2), (4) and (5). The Ice opinion emphasizes and reiterates the United States Supreme Court's "bright line" rule that:
"'Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'" Ice, 343 Or. 248, (slip op at 18) (emphasis in Ice) (quoting Apprendi, 530 US 490). The court reasoned that the United States Supreme Court's post-Apprendi statements have made it "inescapably clear that the rule * * * is not directed at the traditional discretion of judges to select a sentence within the range the legislature has selected and the jury's verdict determines, but sentences that a jury's verdict alone would authorize." Ice, 343 Or. 248, (slip op at 20) (emphasis in original).
a. Trial counsel failed to employ the services of a culturally diverse, linguistic expert to testify, at the hearing on the Motion to Suppress, as to the meaning of the terms "understand" and "comprehend" to a foreignperson such as petitioner. Such testimony would have established that although petitioner "understood" the words of the Miranda warning, he did not "comprehend" the meaning of those words, thereby making his waiver his Miranda rights not knowingly, intelligently, or voluntarily made.
b. Trial counsel erroneously failed to cross-examine State witness VanOrman [sic] during the Motion to Suppress Hearing. Had counsel cross-examined Van Orman, counsel could have obtained testimony from such witness about how a person with petitioner's background would have reacted to, or understood, police "questioning." The state's witness stated on direct examination that she had wide experience with persons of backgrounds similar to petitioner. (T. 79, I. 19)[sic].
c. Trial counsel improperly abandoned the VCCR issue during the Motion to Suppress Hearing expressly telling the trial court that he was not trying to argue that the VCCR created individual rights beyond those that Miranda confers. Trial counsel affirmatively asked the trial court not to consider the VCCR issue.
d. Trial counsel failed to separate and argue the Miranda warning issue from the Vienna Convention (VCCR) issue during the Motion to Suppress Hearing. Counsel incorrectly assumed that the issues were "the same questions, and (the court) (could) resolve it by focusing on the Miranda issue." (Tr. 110, I. 7-9).
e. Trial counsel failed to file a brief in opposition to the State's brief concerning the VCCR issue, prior to the pre-trial Motion to Suppress Hearing. Additionally, counsel was not prepared to address the issue during the hearing.
f. Trial counsel failed to call a member of the Ecuadorian Consulate as a witness during the Motion to Suppress Hearing. Testimony from a member of the Ecuadorian Consulate would established, contrary to the state's argument, all the rights and benefits petitioner would have received if the Consulate had been contacted prior to questioning by law enforcement personnel.
g. Trial counsel incorrectly advised the court that "(i)f a consulate was contacted, (it is) as if anattorney had been contacted" and that they simply would have advised petitioner not to say anything. (Tr. 109, I. 19-23). This is inaccurate information. Counsel's representation mischaracterizes what the Ecuadorian Consulate would have done. The Consulate would have afforded petitioner numerous benefits including but not limited to, ensuring no statements were given to the police without an attorney being present, and that petitioner fully comprehended the Miranda warning.
h. Trial counsel failed to conduct an adequate investigation into the law related to this VCCR and how it applied to petitioner. Counsel misinformed the court that the VCCR "doesn't create additional substantive rights." (Tr. 110, I. 13-14). Or personal rights. Counsel made these and other representations about the operation of the VCCR without first contacting the Consulate and before understanding the complexities of the language within the Treaty. Counsel made these representations after merely reading the face of the VCCR and clearly misunderstanding its meaning and effect.
i. Trial counsel failed to object to the accuracy and qualifications of Officer Roberts, the West Linn official English/Spanish Interpreter. Specifically counsel failed to object to the interpreter going beyond his duty as interpreter and violating the Code of Professional Responsibilities for interpreters in the Oregon Courts (Code), in one (I) or more of the followings [sic] particulars:
1. when Officer Roberts read the Miranda Warnings card only in Spanish but never translated the card to the...
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