Habibullah v. Kelly
| Decision Date | 21 April 2022 |
| Docket Number | 6:21-cv-01208-JE |
| Parties | MOHDSIDEK HABIBULLAH, Petitioner, v. BRANDON KELLY, Respondent. |
| Court | U.S. District Court — District of Oregon |
Mohdsidek Habibullah
18667057
Oregon State Penitentiary
Petitioner, Pro Se
Ellen F. Rosenblum, Attorney General
James Aaron, Assistant Attorney General
Department of Justice
Attorneys for Respondent
FINDNGS AND RECOMMENDATION
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his Multnomah County convictions dated May 2, 2014. For the reasons that follow the Petition for Writ of Habeas Corpus (#1) should be denied.
Petitioner is serving a 180-month sentence within the Oregon Department of Corrections resulting from his convictions involving a murder-for-hire plot. Following his bench trial, Petitioner successfully argued on direct appeal that: (1) his convictions for Solicitation to Commit Murder (Count 5) and Conspiracy to Commit Murder (Count 6) should have merged into his conviction for Attempted Aggravated Murder (Count 1); and (2) his convictions for Solicitation to Commit Assault in the Fourth Degree (Count 7), Conspiracy to Commit Assault in the Fourth Degree (Count 8), and Conspiracy to Commit Robbery in the Third Degree (Count 9) lacked sufficient evidence because the State's only evidence to support those charges was the testimony of Petitioner's accomplice.[1] State v. Habibullah, 278 Or.App. 239, 373 P.3d 1259 (2016).
On remand, the trial court merged Counts 5 and 6, acquitted Petitioner of Counts 7 through 9, and imposed a 180-month prison sentence. Petitioner did not appeal the new judgment, but proceeded to file for post-conviction relief (“PCR”) in Marion County where the PCR court denied relief on his claims. Respondent's Exhibit 120. The Oregon Court of Appeals affirmed that decision without issuing a written opinion, and the Oregon Supreme Court denied review. Habibullah v. Kelly, 304 Or.App. 459, 464 P.3d 534, rev. denied, 367 Or. 218, 474 P.3d 393 (2020).
On August 16, 2021, Petitioner filed his 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus in which he raises two grounds for relief:
Respondent asks the Court to deny relief on the Petition because: (1) Petitioner failed to fairly present the portion of Ground Two addressing counsel's alleged failure to argue merger as to Count Five; and (2) the PCR court's decision denying relief on these claims was not objectively unreasonable. Because Petitioner's Ground Two claim is plainly without merit, the Court need not address the exhaustion issue. See 28 U.S.C. § 2254(b)(2) (); Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005).
An application for a 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. Taylor, 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 governing 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. Twenty-eight U.S.C. § 2254(d) "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with Court's precedents. Harrington v. Richter, 562 U.S. 86, 102 (2011).
As Ground One, Petitioner alleges that the State offered him a 36-month plea deal which his attorney advised him not to accept. He maintains that, but for counsel's improper advice, he would have accepted the State's offer and would not be subject to his current 180-month term of imprisonment.
The Court uses the general two-part test established by the Supreme Court to determine whether Petitioner received ineffective assistance of counsel. Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). First, Petitioner must show that his counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 686-87 (1984). Due to the difficulties in evaluating counsel's performance, courts must indulge a strong presumption that the conduct falls within the "wide range of reasonable professional assistance." Id at 689.
Second, Petitioner must show that his counsel's performance prejudiced the defense. The appropriate test for prejudice is whether Petitioner can show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id at 694.
A reasonable probability is one which is sufficient to undermine confidence in the outcome of the trial. Id at 696. “The likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. 86, 112 (2011) (citing Strickland, 466 U.S. at 693). When Strickland's general standard is combined with the standard of review governing 28 U.S.C. § 2254 habeas corpus cases, the result is a "doubly deferential judicial review." Mirzayance, 556 U.S. at 122.
In denying relief on Petitioner's Ground One claim, the PCR court made the following findings:
Pet[itioner] has not met his burden of proof that a three year offer was made. The DA remembers a negotiation meeting, but does not remember a number. She does, however, remember that pet[itioner] wanted to go to trial, not to enter into any plea. This is confirmed by pet[itioner]'s statements at sentencing in which he denies any intent to murder or have Mr. Asbar murdered. Since there was an incriminating audio tape, any defense attorney would have been seriously worried about a conviction and would have viewed a three year offer [as] a gift.
Respondent's Exhibit 120, p. 2.
According to Petitioner, he did not fully understand what was happening during his plea negotiation because his Burmese interpreter was not qualified to assist him. Specifically, Petitioner asserts that although he is originally from Burma, he does not speak Burmese. Instead, he speaks a distinct language spoken by an ethnic minority within Burma known as the Rohingya.
Petitioner does not raise any claim for the Court's consideration that his attorney committed an error of constitutional dimension pertaining to the interpreter's services.[2] See Rule 2(c), Rules Governing Section 2254 Proceedings, 28 U.S.C. foll. § 2254 (requiring each habeas petition to "specify all the grounds for relief which are available to the petitioner"); Greene v. Henry, 302 F.3d 1067, 1070 n.3 (9th Cir. 2002) (). His claim is that his trial attorney provided him with incompetent advice because she advised him to pass on a 36-month plea offer and proceed to a trial that resulted in his 180-month sentence. However, Petitioner not only failed to establish during his PCR hearing that the State ever tendered a 36-month plea offer to him, but the PCR court also made a factual finding that Petitioner did not wish to enter into any plea agreement at all.[3] Petitioner has not rebutted that finding with clear and convincing evidence from the record. See 28 U.S.C. § 2254(e)(1). Accordingly, Petitioner cannot prove that counsel failed to provide him with competent advice as to a plea offer which is not established as having actually been made. Even assuming the State tendered such an offer and further assuming counsel misadvised him to pass on it, where Petitioner was unwilling to accept any plea agreement at all, he suffered no prejudice as a result of any such advice from counsel.
Petitioner next asserts that his trial attorney, resentencing attorney, and appellate attorney were all ineffective when they failed to seek merger of Counts 1, 4, and 5. He believes that had one of his attorneys done so, Oregon's courts would have merged those convictions and he would be subject to a lesser sentence. This is not the case. The PCR court specifically examined this issue and concluded:
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