Handsaker v. Lincoln Cnty.
| Decision Date | 24 November 2020 |
| Docket Number | Civil No. 6:18-cv-01757-JR |
| Parties | KEVIN HANDSAKER, Petitioner, v. LINCOLN COUNTY, and STATE OF OREGON, Respondents. |
| Court | U.S. District Court — District of Oregon |
FINDINGS AND RECOMMENDATION
Petitioner, an adult in custody in the State of Texas, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. Currently before the Court are respondents' Motions to Dismiss (ECF Nos. 36 and 38) the Amended Petition for Writ of Habeas Corpus.
On November 17, 2004, petitioner was charged in Lincoln County Circuit Court with seven misdemeanor counts of Sexual Abuse in the Third Degree based on conduct alleged to have occurred in October and November 2004, when petitioner was eighteen years of age. The charges arose out of allegations that petitioner had inappropriately touched four girls who were all under the age of eighteen.
In March 2005, petitioner pleaded guilty to three of the charged counts, and the remaining four counts were dismissed. The trial judge sentenced petitioner to 60 months of probation under the supervision of Lincoln County Community Corrections. The conditions of petitioner's probation included requirements to "[r]emain in the State of Oregon until written permission to leave is granted," and to "[r]eport as required and abide by the direction of the supervising officer." Or. Rev. Stat. §§ 137.540(e), (m). Petitioner did not file a direct appeal of his conviction and sentence and did not seek state post-conviction relief.
In August 2005, petitioner's parole and probation officer recommended that petitioner's probation be revoked based on his failure to report as directed, as well as his association with minors under the age of 18 without the consent of his probation officer. At that time, petitioner's whereabouts were unknown, and his probation officer recommended that the trial court issue a warrant for petitioner's arrest and that he be brought before the court to show cause why his probation should not be revoked. Later that month, the trial court issued a bench warrant, and petitioner was arrested on September 6, 2005. Petitioner was conditionally released to appear for arraignment on the probation violation on September 26, 2005; however, petitioner failed to appear at the arraignment and another bench warrant was issued.
Petitioner's probation officer filed a second motion for revocation of petitioner's probation, alleging that petitioner had associated with minors and failed to pay his financial obligations. The trial court again issued a warrant, but service was never returned on the warrant and petitioner never appeared. On January 30, 2006, petitioner was placed on "abscond status."The Lincoln County Parole and Probation Department reviewed petitioner's status numerous times in the ensuing years and confirmed that petitioner's warrant remains active. Probation records indicate that the Oregon warrant is a "non-serviceable warrant" and "remains active," though no action has ever been taken to extradite petitioner to Oregon and the probation violation allegations have never been adjudicated by the Lincoln County Circuit Court.
By April 2006, petitioner had re-located to Texas. On April 12, 2006, a representative of the Brazoria County, Texas, Sheriff's Office telephoned petitioner's probation officer in Oregon and reported that petitioner was attempting to register as a sex offender. The probation officer spoke with petitioner later that month by telephone, where petitioner reported that he knew about the outstanding warrants and that he did not have permission to leave Oregon, but that he was going to remain in Texas.
Petitioner was eventually charged with other crimes in Texas and detained. In January 2012, petitioner was charged in Brazoria County, Texas, with committing a sexual assault of a child under the age of seventeen. On February 11, 2013, petitioner was credited with serving 325 days in jail and placed on "deferred adjudication probation" for eight years.
On May 8, 2013, petitioner was charged with being a felon in possession of a firearm in Brazoria County. The charge was based on a September 6, 2011, felony conviction for Theft in that county. On September 30, 2013, petitioner was sentenced to a term of six years in prison. His projected release date was June 17, 2018.
Prior to petitioner's release, however, the State of Texas moved to have petitioner civilly committed as a "sexually violent predator" under Texas law. The complaint seeking the designation was based on three prior convictions, two of those convictions were from theLincoln County case, and the third conviction was from Brazoria County. On October 17, 2018, the district court of Brazoria County, Texas ordered petitioner to be civilly committed. Since May 2019, petitioner has been held in custody at the Texas Civil Commitment Center in Littlefield, Texas.
In October 2018, petitioner initiated this action with a handwritten pro se filing. This Court construed the filing as a petition for writ of habeas corpus and ordered it amended to comply with Local Rule 81-1(a). The Court then appointed counsel to represent petitioner, who filed an Amended Petition for Writ of Habeas Corpus alleging that petitioner's plea was not knowing, voluntary, and intelligent, that petitioner received ineffective assistance of counsel, and that petitioner is actually innocent of the charges upon which he was convicted.
Respondent State of Oregon filed a Motion to Dismiss the Amended Petition based on the fugitive disentitlement doctrine. Respondent Lincoln County filed a separate motion joining in the State's Motion to Dismiss.
The fugitive disentitlement doctrine recognizes that "escape from custody is inconsistent with the pursuit of judicial remedies and constitutes a voluntary waiver of any pending judicial review of a criminal conviction." United States v. Murgia-Oliveras, 421 F.3d 951, 954 (9th Cir. 2006). The Supreme Court has sustained the authority of a court to dismiss an appeal in a criminal matter when the party seeking relief becomes a fugitive. Degen v. United States, 517 U.S. 820, 823 (1996). The doctrine is a "discretionary device by which courts may dismiss criminal appeals or civil actions by or against individuals who are fugitives from justice."Frank v. Yates, 887 F.Supp.2d 958, 972 (C.D. Cal. 2012) (internal citations omitted). It has been applied in civil cases, including habeas challenges to state-court convictions. See, e.g., Sanchez-Alfonso v. Board of Parole and Post-Prison Supervision, Case No. 3:13-cv-00624-ST, 2014 WL 1383484, at *2 (D. Or. 2014), Findings and Recommendation Adopted, 2014 WL 1383667 (D. Or. Feb. 11, 2014); Bagwell v. Dretke, 376 F.3d 408, 412 (5th Cir. 2004).
In Degen, the Court gave four reasons for dismissal under the fugitive disentitlement doctrine: (1) the difficulty of enforcing a judgment if the fugitive cannot be found; (2) the unfairness of allowing a party access to the courts while evading their jurisdiction; (3) the need to discourage escape and encourage voluntary surrender; and (4) the desire to "promote[] the efficient, dignified operation of the courts." Degen, 517 U.S. at 824 (internal quotations omitted); see also United States v. Gonzalez, 300 F.3d 1048, 1051 (9th Cir. 2002) (). Dismissal under the doctrine, however, "is a severe sanction that courts should not lightly impose." Murgia-Oliveras, 421 F.3d at 954; Degen, 514 U.S. at 828. The Ninth Circuit has twice found that the doctrine is not directly implicated when the defendant has not escaped from incarceration but has merely violated the terms of probation. Gonzalez, 300 F.3d at 1051; United States v. Van Cauwenberghe, 934 F.2d 1048, 1054-55 (9th Cir. 1991); but see Sanchez-Alfonso, 2014 WL 1383484, at *2 ().
There is no question that petitioner is technically a fugitive and that there is a substantial connection between the underlying conviction and probation from which petitioner has fled andhis instant petition. This is not, however, a situation where petitioner's whereabouts are unknown or he is currently defying any attempt to return him to the jurisdiction of his convicting court; petitioner is an inmate in custody and his location has long been known by the State of Oregon. Compare Moller v. Alameda, Case No. C 00-20190JF, 2006 WL 778624, at *3-4 (N.D. Cal. March 24, 2006) (); Sanchez-Alfaro, 2014 WL 1383484, at *2 (). Moreover, applying the doctrine to preclude petitioner from pursuing his habeas claims in this action would not serve the purposes of the doctrine, i.e., to avoid making decisions that could not be enforced, to deter flight, to assure an effective adversary process, and to serve the interest in efficient, dignified appellate practice. Accordingly, respondents' Motions to Dismiss based on the fugitive disentitlement doctrine should be denied. As discussed below, however, before respondents are required to respond to petitioner's claims on the merits, petitioner should be required to show cause why his Amended Petition for Writ of Habeas Corpus should not be summarily denied on the bases that it is untimely and his claims are procedurally defaulted.
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