Furnish v. Palmateer
| Decision Date | 25 February 2002 |
| Docket Number | No. CIV.00-6054-VR.,CIV.00-6054-VR. |
| Citation | 230 F.Supp.2d 1230 |
| Parties | Steven L. FURNISH, Petitioner, v. Joan PALMATEER, Superintendent, Oregon State Penitentiary, Respondent. |
| Court | U.S. District Court — District of Oregon |
Michele L. Kohler, Kohler & Burrows, P.C., Portland, OR, for Petitioner.
Hardy Myers, Attorney General, Douglas Y.S. Park, Assistant Attorney General, Department of Justice, Salem, OR, for Respondent.
Petitioner Steven L. Furnish, an inmate at the Oregon State Penitentiary, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Currently before the Court is Petitioner's Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (# 47). For the reasons that follow, the Amended Petition is DENIED, and this action is DISMISSED.
On February 19, 1994, police received a report that Petitioner was molesting his minor male cousin. Subsequent investigations revealed that between January 1989 and February 1994, Petitioner had molested and sodomized six minor boys. Petitioner also pressured the sister of one of the minor boys to have sexual intercourse with another boy while Petitioner watched.
On March 1, 1994, Petitioner was indicted in the Circuit Court of the State of Oregon for Multnomah County on 32 counts of Sodomy in the First Degree and 32 counts of Sodomy in the Second Degree. Pursuant to plea negotiations, Petitioner pleaded guilty to four counts of Sodomy in the First Degree and two counts of Sodomy in the Second Degree. The remaining 58 counts were dismissed. Petitioner was sentenced to 59 months imprisonment for Sodomy in the First Degree (Count 1), a consecutive 121-month term for Sodomy in the First Degree (Count 15), and a consecutive 50-month term for Sodomy in the First Degree (Count 27) with sentences on the remaining three counts running concurrently for a total term of imprisonment of 230 months. Petitioner also was sentenced to a total of 20 years of post prison supervision.
Petitioner directly appealed his convictions to the Oregon Court of Appeals by appointed counsel filing a brief pursuant to State v. Balfour, 311 Or. 434, 814 P.2d 1069 (1991), in which Petitioner did not seek to raise any claims. The Oregon Court of Appeals affirmed without opinion. State v. Furnish, 134 Or.App. 628, 894 P.2d 1268 (1995). Petitioner did not seek review from the Oregon Supreme Court.
Petitioner then sought state post conviction relief (PCR). In his formal state court Petition for Post-Conviction Relief, Petitioner alleged two claims:
First Claim for Relief: That petitioner's imprisonment was and is illegal in the proceedings as set forth above and they resulted in a substantial denial of petitioner's rights in violation of ORS 138.530 in that petitioner was denied his right to effective assistance of counsel at the sentencing level in that petitioner's sentencing counsel:
1. Convinced Petitioner to plead "guilty to the charges of Sodomy in the First and Second Degree" without fully explaining the consequences of Petitioner's taking such action.
2. Failed to argue for the conditions of sentencing as set out in the plea agreement.
3. Coerced or allowed Petitioner to enter a plea while under duress.
4. Failed to object to the length of the post-prison supervision.
Second Claim for Relief: That petitioner's imprisonment was and is illegal in the proceedings set forth above and that they resulted in a substantial denial of petitioner's rights in violation of ORS 138.530 in that the petitioner was denied his constitutional rights in that the trial Court:
1. Accepted a plea of guilty that was not knowingly, voluntarily and intelligently made.
2. Failed to follow the ORS 144.103 sentencing guidelines concerning post-prison supervision.
Following an evidentiary hearing, the PCR trial judge denied relief. Although Petitioner appealed and raised the same claims he alleged in his PCR petition, the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Furnish v. State, 161 Or. App. 666, 984 P.2d 958, rev. denied, 329 Or. 479, 994 P.2d 127 (1999).
Petitioner filed this action on March 6, 2000. In his Amended Petition, he set forth the following grounds for relief:
Ground One: Petitioner was deprived of his constitutional rights to counsel under both the Sixth and Fourteenth Amendment[s] to the United States Constitution in that his counsel convinced Petitioner to plead guilty without a full explanation of the consequences of Petitioner's actions which resulted in the functional denial of counsel.
Ground Two: Petitioner was deprived of his constitutional rights to counsel under both the Sixth and Fourteenth Amendment[s] to the United States Constitution in that his counsel failed to argue for conditions of sentencing as set out in the plea agreement which failure resulted in the functional denial of counsel.
Ground Three: Petitioner was deprived of his constitutional rights to counsel under both the Sixth and Fourteenth Amendment[s] to the United States Constitution in that his counsel coerced or allowed Petitioner to enter a plea while under duress which resulted in the functional denial of counsel.
Ground Four: Petitioner was deprived of his constitutional rights to counsel under both the Sixth and Fourteenth Amendment[s] to the United States Constitution in that his counsel failed to object to the length of post-prison supervision imposed which failure resulted in the functional denial of counsel and deprived Petitioner of his constitutional rights to equal protection of the law under the Fourteenth Amendment to the United States.
Ground Five: Petitioner was deprived of his constitutional rights to counsel under both the Sixth and Fourteenth Amendment[s] to the United States Constitution in that his counsel failed to preserve the issues for appellate counsel to present them on direct appeal which resulted in the functional denial of counsel.
Ground Six: Petitioner was deprived of due process under law under the Fifth, Sixth and Fourteenth Amendment[s] to the United States Constitution in that his plea was [not] knowingly, voluntarily, and intelligently made.
Ground Seven: Petitioner was deprived of equal protection and due process of law under the Fifth, Sixth and Fourteenth Amendment[s] to the United States Constitution in that the sentencing court failed to comply with state law in the imposition of his sentence.
Respondent argues Petitioner procedurally defaulted several of the claims alleged in his Amended Petition: (1) the Ground Four claim for ineffective assistance of counsel based on trial counsel's failure to object to the length of Petitioner's post prison supervision term on "equal protection" grounds, (2) the Ground Five claim for ineffective assistance of counsel based on trial counsel's failure to preserve issues for appellate review, (3) all claims alleged in Ground Six contending Petitioner's guilty pleas were not voluntary, and (4) all claims alleged in Ground Seven concerning the trial court's alleged noncompliance with state sentencing laws. Respondent also asserts Petitioner is not entitled to relief on the merits as to the remaining claims.
A state prisoner must exhaust all available state court remedies either on direct appeal or through collateral proceedings before a federal court may consider granting habeas corpus relief. O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). See also Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).
A prisoner satisfies the exhaustion requirement by providing the state courts with a "full and fair" opportunity to consider his claims. O'Sullivan, 526 U.S. at 844-45, 119 S.Ct. 1728. See also Keeney v. Tamayo-Reyes, 504 U.S. 1, 10, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992); Picard, 404 U.S. at 275-76, 92 S.Ct. 509. A petitioner "fairly" presents his federal claims by alerting the state courts that he is asserting a claim under the United States Constitution. Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995). Even though a petitioner raises a state constitutional claim that encompasses a "similar" but not "virtually identical" standard as an omitted federal constitutional claim, it does not constitute a "fair" presentation. Id. at 366, 115 S.Ct. 887. Moreover, a petitioner's citation of state law cases in which federal law is applied to a state law claim does not "fairly present" a federal claim to a state supreme court. Peterson v. Lampert, 277 F.3d 1073, 1079 (9th Cir.2002).
Generally, when a state allows review of a constitutional violation either on direct appeal or by collateral attack, a prisoner need exhaust only one avenue before seeking habeas corpus relief. Turner v. Compoy, 827 F.2d 526, 529 (9th Cir.1987), cert. denied, 489 U.S. 1059, 109 S.Ct. 1327, 103 L.Ed.2d 595 (1989). If a state, however, "mandates a particular procedure to be used to the exclusion of other avenues of seeking relief," the correct avenue must be fully exhausted. Id.
"In Oregon, most trial errors must be raised by direct appeal to the Oregon Court of Appeals." Kellotat v. Cupp, 719 F.2d 1027, 1030 (9th Cir.1983). Violations of a defendant's rights that require a further evidentiary hearing for their determination, such as ineffective assistance of counsel, however, are appropriately determined upon post conviction review. Id. See also Allbee v. Keeney, 78 Or.App. 19, 21, 714 P.2d 1058, rev. denied, 301 Or. 78, 718 P.2d 744 (1986) ().
If it is clear that no state remedies remain available to the petitioner, the exhaustion requirement is satisfied. See Coleman, 501 U.S. at 732, 111 S.Ct. 2546. See also Kellota...
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