Nitschke v. Belleque

• Decision Date: 24 May 2012
• Docket Number: No. 10–36121.,10–36121.
• Citation: 2012 Daily Journal D.A.R. 6829,12 Cal. Daily Op. Serv. 5659,680 F.3d 1105
• Parties: Michael Eric NITSCHKE, Petitioner–Appellant, v. Brian BELLEQUE, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

680 F.3d 1105

12 Cal. Daily Op. Serv. 5659

2012 Daily Journal D.A.R. 6829

Michael Eric NITSCHKE, Petitioner–Appellant,

v.Brian BELLEQUE, Respondent–Appellee.

No. 10–36121.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 18, 2011.

Filed May 24, 2012.

Robert Hamilton, Pacific Northwest Law LLP, Portland, OR, for petitioner-appellant Michael Eric Nitschke.

John R. Kroger, Attorney General; Mary H. Williams, Solicitor General; Erin G. Lagesen, Assistant Attorney General (argued), Oregon Department of Justice, Salem, OR, for respondent-appellee Brian Belleque.

Appeal from the United States District Court for the District of Oregon, Owen M. Panner, Senior District Judge, Presiding. D.C. No. 1:07–cv–01734–CL.

Before: RAYMOND C. FISHER, RICHARD A. PAEZ, and RICHARD R. CLIFTON, Circuit Judges.

OPINION

PAEZ, Circuit Judge:

In this appeal from the denial of habeas relief, we address whether Petitioner Michael Nitschke's Apprendi claim is procedurally defaulted under Oregon's preservation rule. SeeOr. R.App. P. 5.45(1).¹ Nitschke failed to raise at the state trial court level the Apprendi claim that forms the basis of his challenge to his enhanced sentence under Oregon's “dangerous offender”law. Although Nitschke raised the issue in his appeal to the Oregon Court of Appeals, that court declined to consider the merits of the claim because the issue had not been raised in the trial court and did not meet the plain error exception to the preservation rule. Nitschke ultimately sought habeas relief in federal court, but the district court concluded that the Apprendi claim was procedurally defaulted under federal law and dismissed his habeas petition. Because we conclude that the Oregon Court of Appeals' ruling was not interwoven with federal law, we affirm the district court's judgment.

I.

Nitschke was convicted in 1997 in Oregon state court of eight separate counts. One of those counts was manslaughter, a Class A felony. Or.Rev.Stat. § 163.118(3). The maximum sentence for that count of conviction was 20 years of imprisonment. § 161.605. At sentencing, the court found Nitschke to be a “dangerous offender” under Or.Rev.Stat. § 161.735 and increased his sentence to the maximum allowable 30 years. The judge made this finding on the basis of disputed expert testimony concerning Nitschke's mental health. Nitschke did not raise a constitutional or other objection to the court's “dangerous offender” finding at the sentencing hearing.

While Nitschke's case was on direct appeal to the Oregon Court of Appeals, the United States Supreme Court decided Apprendi v. New Jersey, holding that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In a supplemental brief, Nitschke raised for the first time an Apprendi challenge to his sentence.

Because the Apprendi argument had not been raised in the trial court, the State argued that the issue was barred by Oregon's preservation rule. This state rule of appellate procedure requires that any matter claimed as error on appeal must have been “preserved”—raised as error in the trial court. Or. R.App. P. 5.45(1). An exception to the preservation requirement is available if the trial court commits “plain error,” i.e., makes (1) an error of law that (2) is apparent and (3) appears on the face of the record. Ailes v. Portland Meadows, Inc., 312 Or. 376, 823 P.2d 956, 959 (1991); ²State v. Crain, 177 Or.App. 627, 33 P.3d 1050, 1056 (2001), rev'd on other grounds, State v. Caldwell, 187 Or.App. 720, 69 P.3d 830 (2003). Under Oregon law, an error is “apparent” when it is “obvious” and “not reasonably in dispute.” Ailes, 823 P.2d at 959.

Following Apprendi, Nitschke was not the only defendant in Oregon to raise an unpreserved Apprendi challenge to a sentence enhanced under the state's “dangerous offender” statute. One case, State v. Crain, ultimately became the lead case on this issue.

The Oregon Court of Appeals in Crain “decline[d] to consider” the defendant's unpreserved Apprendi claim because it held that the trial court did not commit plain error, and therefore that exception to the preservation rule did not apply. 33 P.3d at 1056. Applying Ailes,Crain held that the alleged error was “of law” and “on the face of the record.” Id.Crain further held, however, that the error was “not ‘apparent,’ ” because application of the Apprendi holding was an issue of first impressionfor Oregon courts, “the resolution of which is not obvious and, thus, is ‘reasonably in dispute.’ ” Id.

Citing Crain, the Oregon Court of Appeals affirmed Nitschke's sentence. State v. Nitschke, 177 Or.App. 727, 33 P.3d 1027 (2001) (per curiam). The Oregon Supreme Court denied review in 2002. State v. Nitschke, 335 Or. 142, 61 P.3d 938 (2002). The United States Supreme Court likewise denied Nitschke's certiorari petition the following year. Nitschke v. Oregon, 538 U.S. 1063, 123 S.Ct. 2230, 155 L.Ed.2d 1116 (2003).

II.

Nitschke timely filed a petition for a writ of habeas corpus in the federal district court in Oregon pursuant to 28 U.S.C. § 2254. Nitschke initially raised five claims in his petition but subsequently dismissed four of them, leaving only his Apprendi claim. The assigned magistrate judge, in a Report and Recommendation, concluded that Nitschke's unpreserved Apprendi claim was procedurally defaulted because the Oregon Court of Appeals' ruling rested on an independent and adequate state law ground. Noting that Nitschke did not argue that the procedural default should be excused because of cause and prejudice or manifest injustice, the magistrate judge recommended that Nitschke's habeas petition be dismissed. Adopting the magistrate judge's Report and Recommendation, the district court concluded that the Oregon appeals court's “plain error” analysis “was not interwoven with a federal constitutional claim,” and that it therefore operated as “an independent and adequate procedural bar to petitioner's Apprendi claim.” The district court therefore dismissed Nitschke's habeas petition. Nitschke timely appealed.

III.

We review de novo a district court's dismissal of a 28 U.S.C. § 2254 habeas petition on the basis of state procedural default. Griffin v. Johnson, 350 F.3d 956, 960 (9th Cir.2003).

We have jurisdiction to review the final judgment in a habeas proceeding under 28 U.S.C. §§ 1291 and 2253(a). As required by 28 U.S.C. § 2253(c)(1)(A), the district court granted a certificate of appealability “as to petitioner's argument that the decision of the Court of Appeals was interwoven with federal law.”

IV.

The issue before us is whether Nitschke's Apprendi claim is procedurally defaulted. Nitschke does not contest that his Apprendi constitutional claim is unpreserved or that the Oregon Court of Appeals was required to determine whether the alleged sentencing error constituted “plain error” in order to address his claim on the merits. Nitschke argues instead that the federal courts may reach the merits of his constitutional claim because the Oregon Court of Appeals' decision was “interwoven” with federal law.³ We disagree. Because the Oregon Court of Appeals' decision did not reach the merits of Nitschke's federal law claim, and was clearly and expressly based on state law, it was not “interwoven” with federal law and federal review of Nitschke's Apprendi claim is barred.

A.

“Federal habeas courts reviewing the constitutionality of a state prisoner's conviction and sentence are guided by rules designed to ensure that state-court judgments are accorded the finality and respect necessary to preserve the integrity of legal proceedings within our system of federalism.” Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 1316, 182 L.Ed.2d 272 (2012). One such rule is the doctrine of procedural default, according to which a federal court is barred from hearing the claims of a state prisoner in a habeas corpus proceeding when the decision of the last state court to which the prisoner presented his federal claims rested on an “independent and adequate state ground.” Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).⁴ However, federal courts are to “presume that there is no independent and adequate state ground for a state court decision when the decision ‘fairly appears to rest primarily on federal law, or to be interwoven with federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.’ ” Id. at 735, 111 S.Ct. 2546 (quoting Michigan v. Long, 463 U.S. 1032, 1040–41, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)). A state court may overcome the above presumption simply by stating “clearly and expressly that its decision is based on bona fide separate, adequate, and independent grounds.” Id. at 733, 111 S.Ct. 2546 (quoting Long, 463 U.S. at 1041, 103 S.Ct. 3469) (internal quotation marks and alterations omitted).

A state court judgment rests on an independent and adequate state procedural ground when the “state court decline[s] to address a prisoner's federal claims because the prisoner ... failed to meet a state procedural requirement.” Id. at 730, 111 S.Ct. 2546 (emphasis added).

“For a state procedural rule to be ‘independent,’ the state law ground for decision must not be ‘interwoven with the federal law.’ ” ⁵Park v. California, 202 F.3d 1146, 1152 (9th Cir.2000) (quoting Long, 463 U.S. at 1040–41, 103 S.Ct. 3469, and citing Harris v. Reed, 489 U.S. 255, 265, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (applying Long to federal habeas cases)). “A state law ground is so interwoven if ‘the state has made application of the procedural bar depend on an antecedent ruling on federal law [such as] the determination of whether federal constitutional error has been committed.’ ” Id. (quoting Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985)) ...