Pinnell v. Belleque

• Decision Date: 26 June 2009
• Docket Number: No. 06-CV-828-BR.,06-CV-828-BR.
• Citation: 638 F.Supp.2d 1231
• Parties: Mark Allen PINNELL, Petitioner, v. Brian BELLEQUE, Warden, Respondent.
• Court: U.S. District Court — District of Oregon

638 F.Supp.2d 1231

Mark Allen PINNELL, Petitioner, v. Brian BELLEQUE, Warden, Respondent.

No. 06-CV-828-BR.

United States District Court, D. Oregon.

June 26, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Steven T. Wax, Federal Public Defender, C. Renee Manes, Assistant Federal Public Defender, Portland, OR, for Petitioner.

John R. Kroger, Attorney General, Carolyn Alexander, Timothy A. Sylwester, Assistant Attorneys General, Salem, OR, for Respondent.

OPINION AND ORDER

BROWN, District Judge.

This matter comes before the Court on Respondent Brian Belleque's Motion (# 108) for Partial Summary Judgment on exhaustion/procedural default grounds and Petitioner Mark Allen Pinnell's Motion (# 120) for Evidentiary Hearing on the adequacy of state-court process and the existence of state-created impediments.

In its Motion for Partial Summary Judgment, the State seeks to preclude analysis on the merits of one or more of the claims set forth in Petitioner's First Amended Petition for Writ of Habeas Corpus on the basis that such claims are unexhausted and/or procedurally defaulted.

In his Response to the State's Motion, Petitioner asserts he fairly presented and exhausted certain claims that the State characterizes as defaulted. According to Petitioner, he is also excused from exhausting certain other claims on the basis that a state-court remedy was not available, a clear or consistent rule pertaining to the claims did not exist, or the claims were not previously available. In addition, Petitioner contends any default should be excused because he can satisfy both exceptions to procedural default; namely, the fundamental miscarriage-of-justice exception and the cause-and-prejudice exception. In Petitioner's Motion for an Evidentiary Hearing, he seeks a hearing to develop the record further in support of his argument that he can satisfy the cause-and-prejudice exception to procedural default.

For the following reasons, the Court GRANTS in part and DENIES in part Respondent's Motion and DENIES in part Petitioner's Motion.

FACTUAL BACKGROUND

In August 1985 Petitioner contacted Randy Brown in response to an advertisement that Brown had placed in Swing N Sway magazine. Petitioner and Brown met and engaged in sex. On approximately September 9, 1985, Petitioner contacted Brown and arranged to meet him that evening at Brown's residence. A friend dropped off Petitioner and another friend, Donald Cornell, at Brown's house. Upon entry, the two men blindfolded and gagged Brown and tied his hands and feet behind his back with an electrical cord. They threatened him with a knife, and one of them kicked him in the side of the head when he attempted to free himself. Petitioner and Cornell ransacked the house, left Brown bound and gagged on the bathroom floor, and left in Brown's pickup after loading it with his belongings. Brown eventually managed to get help and ultimately did not sustain any permanent injuries.

On approximately September 19, 1985, Petitioner called John Ruffner, who also had placed an advertisement in the same issue of Swing N Sway magazine as Brown. Petitioner, Cornell, and Velma Varzali drove in a borrowed car to Ruffner's apartment. Petitioner went inside to see Ruffner, and Cornell followed in five minutes. Several hours later, Petitioner and Cornell returned to the car, loaded it with Ruffner's belongings, and drove away.

The next day, September 20, 1985, Ruffner's body was discovered on the bathroom floor of his ransacked apartment. His hands and feet were bound behind his back in part with electrical cords ripped from appliances in the apartment. A large wad of tissue paper was stuffed in his mouth, he was gagged, and a ligature was wrapped around his neck. An autopsy revealed he died of asphyxiation as a result of the wad of tissue, the ligature, or a combination of both. He also had cuts on his hands and had sustained a blunt-force injury to his head.

On September 22, 1985, Petitioner and Cornell were arrested in connection with Ruffner's murder.

PROCEDURAL BACKGROUND

On October 23, 1985, a Washington County Grand Jury returned an indictment jointly charging Petitioner and Cornell with one count of Aggravated Murder and two counts of Felony Murder. The trial court granted Petitioner's demurrer to the charge of Aggravated Murder based on the allegation of torture, and the State of Oregon appealed. On February 11, 1987, 83 Or.App. 559, 732 P.2d 922 (1987), the Oregon Court of Appeals affirmed the trial court, but the Oregon Supreme Court reversed and remanded on August 24, 1987, with instructions to reinstate the indictment as originally charged. State of Or. v. Pinnell, 304 Or. 27, 741 P.2d 501 (1987).

On January 7, 1988, the Washington County Grand Jury returned a second (but not superseding) indictment jointly charging Petitioner and Cornell with five additional counts of Aggravated Murder. Petitioner was tried first and separately from Cornell in May and June 1988. A jury found Petitioner guilty on all counts. Petitioner was sentenced to death on October 7, 1988. On direct review, the Oregon Supreme Court upheld Petitioner's convictions but remanded for a new penalty-phase trial. State of Or. v. Pinnell, 311 Or. 98, 806 P.2d 110 (1991).

Cornell was tried in July 1988 and was convicted of only two counts of Felony Murder. State v. Cornell, 109 Or.App. 396, 820 P.2d 11 (1991).

Petitioner's second penalty-phase trial was held in 1992, and the jury again sentenced him to death. On direct review, the Oregon Supreme Court upheld the death sentence. State of Or. v. Pinnell, 319 Or. 438, 877 P.2d 635 (1994). The Oregon Supreme Court entered its judgment on September 7, 1994. Petitioner did not file a petition for writ of certiorari in the United States Supreme Court.

On November 3, 1994, Petitioner filed a petition for post-conviction relief (PCR) in state court. The PCR court held an evidentiary trial and denied Petitioner's request for relief on January 3, 2001. While Petitioner's PCR appeal was pending in the Oregon Court of Appeals, Petitioner filed a successive PCR petition in state court on June 24, 2003. Pinnell v. Belleque, Marion County Circuit Court Case No. 03C-15644. On February 2, 2004, the state court entered final judgment dismissing the successive petition without prejudice. Petitioner did not appeal this judgment of the PCR court.

In 2005, the Oregon Court of Appeals affirmed the first PCR judgment in a written opinion, and, thereafter, the Oregon Supreme Court denied Petitioner's petition for review without comment. Pinnell v. Palmateer, 200 Or.App. 303, 114 P.3d 515 (2005), rev. denied, 340 Or. 483, 135 P.3d 318 (2006). On May 24, 2006, the Oregon Supreme Court entered its judgment. Petitioner did not file a petition for writ of certiorari in the United States Supreme Court regarding these decisions.

On May 24, 2007, Petitioner timely filed his Petition for Writ of Habeas Corpus (# 70) in this Court.

On January 25, 2008, the State moved for partial summary judgment on exhaustion/procedural default grounds. On May 1, 2008, Petitioner moved for an evidentiary hearing on the adequacy of the state-court process and the existence of state-created impediments.

DISCUSSION

The Court first addresses the issues pertaining to fair presentation and the exhaustion requirement for the purpose of identifying any claims that are defaulted. Next, the Court will apply the two exceptions to procedural default to the identified defaulted claims. Finally, the Court will consider Petitioner's Motion, if necessary, to determine whether he is entitled to an evidentiary hearing to develop the record further in support of his contention that he can satisfy the cause-and-prejudice exception to procedural default.

STANDARDS

I. Summary Judgment

Federal Rule of Civil Procedure 56(c) authorizes summary judgment if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. The moving party must show the absence of an issue of material fact. Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir.2005). In response to a properly supported motion for summary judgment, the nonmoving party must go beyond the pleadings and show there is a genuine issue of material fact for trial. Id.

An issue of fact is material "`if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.2002)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The court must draw all reasonable inferences in favor of the nonmoving party. Id. "Summary judgment cannot be granted where contrary inferences may be drawn from the evidence as to material issues." Easter v. Am. W. Fin., 381 F.3d 948, 957 (9th Cir.2004)(citing Sherman Oaks Med. Arts Ctr., Ltd. v. Carpenters Local Union No. 1936, 680 F.2d 594, 598 (9th Cir.1982)). A mere disagreement about a material issue of fact, however, does not preclude summary judgment. Jackson v. Bank of Haw., 902 F.2d 1385, 1389 (9th Cir.1990).

When the nonmoving party's claims are factually implausible, that party must "come forward with more persuasive evidence than otherwise would be necessary." Wong v. Regents of Univ. of Cal., 379 F.3d 1097 (9th Cir.2004), as amended by 410 F.3d 1052, 1055 (9th Cir.2005)(citing Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1149 (9th Cir.1998)).

The substantive law governing a claim or a defense determines whether a fact is material. Miller v. Glenn Miller Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006). If the resolution of a factual dispute would not affect the outcome of the claim, the court may grant summary judgment. Id.

The Federal Rules of Civil Procedure apply to habeas proceedings to the extent that the practice in such proceedings is not set forth in the Rules Governing 2254 Cases. Fed. R. Civ. P. 81(a)(2). See also Blackledge v. Allison...