Handsaker v. Lincoln Cnty., Civil No. 6:18-cv-01757-JR

CourtUnited States District Courts. 9th Circuit. United States District Court (Oregon)
Writing for the CourtRUSSO, Magistrate Judge.
PartiesKEVIN HANDSAKER, Petitioner, v. LINCOLN COUNTY, and STATE OF OREGON, Respondents.
Docket NumberCivil No. 6:18-cv-01757-JR
Decision Date24 November 2020

KEVIN HANDSAKER, Petitioner,
v.
LINCOLN COUNTY, and STATE OF OREGON, Respondents.

Civil No. 6:18-cv-01757-JR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

November 24, 2020


FINDINGS AND RECOMMENDATION

RUSSO, Magistrate Judge.

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.

BACKGROUND

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

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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."

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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 the

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Lincoln 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.

DISCUSSION

I. Fugitive Disentitlement Doctrine

The fugitive disentitlement doctrine recognizes that "escape...

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