Myers v. Peterson, CV 86-6587-E.
| Decision Date | 04 May 1989 |
| Docket Number | No. CV 86-6587-E.,CV 86-6587-E. |
| Citation | 744 F. Supp. 976 |
| Parties | Robert H. MYERS, Petitioner, v. R.S. PETERSON, Respondent. |
| Court | U.S. District Court — District of Oregon |
Steven T. Wax, Federal Public Defender, Portland, Or., for petitioner.
Dave Frohnmayer, Atty. Gen., Scott McAlister, Asst. Atty. Gen., Salem, Or., for respondent.
Petitioner Robert H. Myers brings this habeas petition under 28 U.S.C. § 2254 against respondent R.S. Peterson, superintendent of the Oregon State Correctional Institution (OSCI). Petitioner contends that the state should have credited him for time served in Iowa custody on Iowa charges after his escape from OSCI and before his return to Oregon custody. Respondent moves to dismiss the petition, contending that petitioner has procedurally defaulted on his claims and has failed to state a claim. I grant respondent's motion to dismiss the petition.
On April 28, 1978, petitioner was sentenced to twenty years in the custody of the Oregon State Department of Corrections for kidnapping, robbery, conspiracy, burglary, unauthorized use of a motor vehicle, and criminal trespass. The Oregon State Parole Board (Parole Board) set petitioner's release for November 27, 1983. On January 26, 1982, petitioner escaped. On February 20, 1983, he was arrested in Iowa on Iowa charges. Oregon filed a detainer. On June 28, 1983, Oregon filed a second detainer on an escape charge. The escape charge was later dropped. Petitioner remained in Iowa custody on Iowa charges until May 18, 1986, when he was returned to Oregon.
On July 14, 1986, the Parole Board rescinded petitioner's November 27, 1983 parole release date. The Parole Board added 670 days to petitioner's parole release date, based on his time on escape and in Iowa custody. On July 31, 1986, the Parole Board denied administrative review.
On September 26, 1986, petitioner's attorney, Gary Babcock, Oregon Public Defender, filed a petition in the Oregon Court of Appeals for review of the Parole Board's action. However, Babcock erroneously sought review of the Parole Board's July 31 denial of review, rather than the July 14 final order setting petitioner's parole release date. On December 10, 1986, the Oregon Court of Appeals dismissed, holding that the Parole Board's July 31 order denying administrative review was not reviewable. The court also denied Babcock's motion to amend the petition to substitute the Parole Board's July 14 order, which would have been reviewable if Babcock had filed a timely petition. There is no indication in the record, and petitioner does not contend, that he petitioned the Oregon Supreme Court for review of the Oregon Court of Appeals' dismissal.
While the judicial review action was pending at the Oregon Court of Appeals, petitioner filed for habeas relief in Marion County Circuit Court. The trial court dismissed the habeas petition because petitioner had an available legal remedy, the pending judicial review action. The Oregon Court of Appeals affirmed the trial judge's dismissal without opinion, and the Oregon Supreme Court denied the petition for review. Myers v. Peterson, 85 Or.App. 428, 736 P.2d 629, review denied, 303 Or. 699, 740 P.2d 1212 (1987).
After the Oregon Court of Appeals had dismissed petitioner's attempt to obtain judicial review of the Parole Board's action, he again petitioned for habeas relief, alleging that the dismissal of his judicial review action allowed him to seek habeas relief because there were no available legal remedies. The trial court dismissed based on res judicata. The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied the petition for review. Myers v. Peterson, 91 Or.App. 723, 756 P.2d 699, review denied, 306 Or. 527, 761 P.2d 928 (1988) (Lent & Linde, JJ., would allow).
Petitioner contends that he is entitled to credit for time served in Iowa custody on Iowa charges after February 20, 1983, when Oregon first lodged a detainer in Iowa. Respondent contends that petitioner has procedurally defaulted on his claims and that he not entitled to relief on the merits.
Petitioner contends that his attorney's failure to petition for review of the Parole Board action was ineffective assistance of counsel that excuses his procedural default. Respondent argues that petitioner was not constitutionally entitled to representation and that his attorney's failure to petition for review does not excuse the procedural default.
Procedural default occurs when a petitioner fails to raise an available constitutional claim in state court, and a state procedural rule then bars the petitioner from raising it. Tacho v. Martinez, 862 F.2d 1376, 1378 (9th Cir.1988). A procedural default will not prevent a federal court from hearing a habeas claim "unless the last state court rendering a judgment in the case `"clearly and expressly"' states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, ___, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989) () (citations omitted).
To excuse procedural default, a petitioner must show both cause and prejudice. "Cause for a procedural default on appeal ordinarily requires a showing of some external impediment preventing counsel from construing or raising the claim." Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 2647, 91 L.Ed.2d 397 (1986). Attorney error will not excuse procedural default on appeal unless the error amounts to ineffective assistance of counsel. Id. Even if a petitioner can show ineffective assistance of counsel, the petitioner usually must present such a claim to the state courts before contending a federal habeas action that the ineffective assistance caused the procedural default. Id. at 488-89, 106 S.Ct. at 2645-46.
To show prejudice, the petitioner must demonstrate that the errors actually and substantially disadvantaged him. Id. at 493-95, 106 S.Ct. at 2648-49. If the prejudice to the petitioner is extraordinarily great, the federal habeas court may grant the writ despite a failure to show cause for procedural default. See Roberts v. Arave, 847 F.2d 528, 530 n. 3 (9th Cir.1988).
First, I conclude that petitioner has procedurally defaulted on his claim. His attempt to obtain judicial review of his claim was "clearly and expressly" rebuffed on procedural grounds by the Oregon Court of Appeals. See Harris v. Reed, 109 S.Ct. at 1039. Petitioner did not attempt to obtain judicial review of that decision from the Oregon Supreme Court. Under the newly announced standard of Harris v. Reed, petitioner has procedurally defaulted on this claim.
Because petitioner has procedurally defaulted, I must examine whether his default can be excused under the cause and prejudice standard. See Carrier, 477 U.S. at 485-86, 106 S.Ct. at 2643-44. Petitioner contends that he has demonstrated cause because he received ineffective assistance of post-conviction counsel on his attempted petition for judicial review to the Oregon Court of Appeals from the Parole Board order. Respondent argues that petitioner has no constitutional right to counsel, so his ineffective assistance of counsel claim must fail.
Oregon grants appointed counsel for persons petitioning for review of a Parole Board order. ORS 144.337. Petitioner contends that his statutory right to counsel is meaningless unless that counsel is effective. Petitioner cites Wilson v. United States, 554 F.2d 893, 894 (8th Cir.), cert. denied, 434 U.S. 849, 98 S.Ct. 158, 54 L.Ed.2d 117 (1977), which held that in a 28 U.S.C. § 2255 case, the petitioner's attorney's failure to advise of the right to petition for certiorari on direct appeal violates the right to effective assistance of counsel guaranteed by Federal Rule of Criminal Procedure 44(a), 18 U.S.C. § 3006A, and an Eighth Circuit rule of court. In dictum, the court added that the attorney's failure "may also violate constitutional rights to effective assistance of counsel and due process of law." Id. (emphasis added). Because Wilson was decided before several of the Supreme Court decisions discussed below, I find it unpersuasive, particularly in light of its tentative phrasing.
In Giarratano v. Murray, 847 F.2d 1118, 1121-22 (4th Cir.), cert. granted, 488 U.S. 923, 109 S.Ct. 303, 102 L.Ed.2d 322 (1988), the court did hold that state post-conviction petitioners were entitled to effective assistance of counsel. However, the court relied on the petitioner's status as a death-row inmate and on his claim for access to the courts under Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). Assuming Giarratano is good law and would be followed by the Ninth Circuit, it is distinguishable because petitioner here is not on death-row and does not rely on Bounds.
Petitioner also cites Orantes-Hernandez v. Meese, 685 F.Supp. 1488 (C.D.Cal.1988) (); and Guerrero-Guerrero v. Clark, 687 F.Supp. 1022, 1030 n. 18 (E.D.Va.1988) (). Those decisions are not on point because they concern federal rights granted by federal statutes.
Although the Supreme Court has not squarely rejected the proposition advanced by petitioner, it has at least strongly hinted that it would do so if confronted with the issue. In Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), the Court held that state post-conviction petitioners were not entitled to the procedures required by Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967) (...
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