Stefan v. Allen

Decision Date18 March 2014
Docket Number3:12-cv-2370-SU
PartiesLIVIU STEFAN, Petitioner, v. PAULA ALLEN, Respondent.
CourtU.S. District Court — District of Oregon

FINDINGS AND

RECOMMENDATION

SULLIVAN, Magistrate Judge.

At the time he filed the petition in this proceeding, petitioner was in the custody of the Oregon Department of Corrections pursuant to a judgment from the Washington County Circuit Court after convictions for four counts of Sexual Abuse in the Second Degree. Petitioner is currently on post-prison supervision in Washington County.

After petitioner waived his right to a jury trial, the court convicted him of the above listed crimes and imposedsentences totaling 100 months imprisonment.

Petitioner directly appealed his convictions, but the Oregon Court of Appeals affirmed in a written opinion and the Oregon Supreme Court denied review. Exhibits 103 - 110.

Petitioner filed a First Amended Petition for Post-conviction Relief, Exhibit 111, but the Multnomah County Circuit Court denied relief. Exhibit 139. The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Exhibits 140 - 144.

Petitioner filed a petition under 28 U.S.C. § 2254 alleging four claims for relief. Petition (#1), p. 6-7. Petitioner also incorporated the claims alleged in his post-conviction trial memorandum by reference.1 The court will address the claims as enumerated in the Petition (#1) as Grounds One through Four and the claims in the PCR Trial Memorandum attached to the petition as enumerated therein.

Petitioner alleges in Ground One that he is entitled to "post-conviction relief because he was denied his right to due process of law and his right to a fair trial" due to "ineffective and inadequate assistance of counsel." Petition (#1) p. 6. However, petitioner has not alleged any specific factual allegations in support of his general claim that hiscounsel was "inadequate and ineffective."

Ineffective assistance of counsel claims are discreet and must be separately alleged with specificity. See, Carriger v. Lewis, 971 F.2d 329, 333-34 (9th Cir. 1992) (en banc). Therefore, petitioner's Ground One fails to state a claim and should be denied.

Under 28 U.S.C. § 2254(b)(1), an application for a writ of habeas corpus "shall not be granted" unless "the applicant has exhausted the remedies available in the courts of the State[.]" Exhaustion occurs when a petitioner has given the state courts a "full and fair" opportunity to consider and resolve all federal claims. Keeney v. Tomayo-Reyes, 504 U.S. 1, 10 (1992). If a petitioner can present a claim to the state's Supreme Court, he must do so to properly exhaust that claim. O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999).

To "fairly present" a federal claim in state court, habeas petitioners must "include reference to a specific federal constitutional guarantee, as well as a statement of facts that entitle the petitioner to relief." Gray v. Netherland, 518 U.S. 152, 162-63 (1996).; see also, Castillo v. McFadden, 399 F.3d 993, 1000 (9th Cir. 2005); see also, Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) ("In [the Ninth Circuit], a petitioner must make the federal basis of the claim explicit either by specifying particularprovisions of the federal Constitution or statutes, or by citing to federal case law."); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (per curiam) (holding that, when a petitioner failed to cite federal case law or mention the federal constitution in his state court briefing, he did not alert the state court to the federal nature of his claims).

Furthermore, to properly exhaust a claim the petitioner must present the federal claim to the state courts in a procedural context in which the claims' merits will be considered. Castille v. Peoples, 489 U.S. 346, 351-52 (1989); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1984; Turner v. Compoy, 827 F.2d 526, 529 (9th Cir. 1987), cert. denied, 489 U.S. 1059 (1989).

If a petitioner has failed to present a federal constitutional claim to the state's highest court (i.e., has failed to exhaust state remedies) and can no longer do so because of a procedural bar, that claim is procedurally defaulted. Boerckel, 526 U.S. at 848, citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). Once a petitioner has procedurally defaulted a claim, federal habeas corpus review is barred unless the petitioner can demonstrate: (1) cause for the procedural default, and (2) actual prejudice from the failure. Edwards v. Carpenter, 529 U.S. 446, 451 (2000), Coleman, 501 U.S. at 750; see also, Wainwright v. Sykes, 433U.S. 72 (1977); Murray v. Carrier, 477 U.S. 748 (1986); Hughes v. Idaho Bd. of Corr., 800 F.2d 905 (9th Cir. 1986).

Cause for a procedural default exists only if petitioners "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray, 477 U.S. at 488. Prejudice exists only if petitioners show that the procedural default "worked to [petitioner's] actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170 (1982). Demonstrating a mere possibility of prejudice is insufficient. Id.

Procedural defaults may also be excused by demonstrating a "fundamental miscarriage of justice." Edwards v. Carpenter, 529 U.S. 446, 451 (2000). To establish the fundamental miscarriage of justice exception to the exhaustion requirement requires a showing of actual innocence. Schlup v. Delo, 513 U.S. 298, 329 (1995); Calderon v. Thompson, 523 U.S.538, 559 (1998).

In Grounds Two, petitioner alleges that his waiver of jury trial was invalid because the "trial court accepted waiver of jury trial without colloquy or questioning petitioner if he understood what he was signing." Petition (#1) p. 6. In Ground Three, petitioner alleges that his right to an impartial jury under the Sixth Amendment was violatedbecause "the court" failed to explain to petitioner the details surrounding jury trials and jury selection. Petition (#1) p. 7. Additionally, in PCR Trial Memorandum Claim 1a petitioner alleges he was denied due process and equal protection of the law because the trial court allowed Petitioner to waive his constitutional right to a jury trial without obtaining a waiver of that right." Petition (#1) attachment 1, p. 2

Claims of trial court error must be raised at trial and on direct appeal. Kellotat v. Cupp, 719 F.2d 1027, 1030 (9th Cir. 1983); Palmer v. State of Oregon, 318 Or. 352, 356-58 (1994).

Petitioner did not raise any of these claims in his direct appeal. To the extent that these claims can be construed as encompassed in petitioner's PCR petition, they were not raised in a procedural context in which the merits of the claim would be considered by the state court. Castilles v. Peoples, supra.

In Ground Four petitioner alleges that "a criminal defendant is entitled to a jury determination of any facts used to aggravate a criminal sentence. Petitioner['s] defense was prejudiced by non jury determination of aggravating factors." Petition (#1) p. 7. In his "supporting facts" petitioner alleges "[b]y failing to explain the effects juryabsence would or might have at sentencing petitioner was placed in further jeopardy of being upward departed at the sole discretion of the court." Id. Petitioner's claim is ambiguous in that he does not identify who allegedly failed to explain these matters to petitioner. In PCR Trial Memorandum claim 1d petitioner alleges an ineffective assistance of counsel claim based on counsel's failure to object to departure sentences based on judicial fact-finding. Under these circumstances, petitioner's Ground Four is most reasonably construed as a claim that the trial court erred in imposing an upward departure sentence based on facts that were not found by a jury or admitted by (petitioner) as required under the principles articulated in Blakely v. Washington, 542 U.S. 296 (2004).

Petitioner raised a Blakely claim on direct appeal. Exhibit 103, p. 12. However, the Court of Appeals held that petitioner's Blakely claim was not preserved below and that the trial court's imposition of departure sentences did not constitute plain error. Exhibit 105, p. 4.

Therefore, although petitioner's Blakely claim was presented to the Oregon appellate courts, it was not presented in a procedural context in which the merits of the claim would be considered. See, Castilles v. Peoples, supra.

In addition, federal courts are precluded from reviewingthe merits of a claim where a state court decision has denied relief on the basis of an independent and adequate state procedural rule. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991); Vansickel v. White, 166 F.3d 953 (9th Cir.) cert denied, 528 U.S. 965 (1999).

The Oregon Rules of Appellate procedure provide that "[n]o matter claimed as an error will be considered on appeal unless the claim of error was preserved in the lower court and is assigned as error in the opening brief in accordance with this rule." ORAP 5.45(1).

As noted above, the Oregon Court of Appeals affirmed petitioner's sentence, citing State v. Gornick, 340 Or 160 (2006)(under established Oregon law, claims may not be raised for the first time on appeal unless they fall into the narrow "plain error" exception, and Apprendi claims do not fit within that exception).

Therefore, because the Oregon Court of Appeals found that an independent and adequate state procedural rule precluded review of petitioner's Ground Four claim on the merits, the claim is procedurally defaulted. See, Lalonde v. Belleque, 2008 U.S. Dist. LEXIS 22365 (D. Or. Mar. 19, 2008) unpublished (holding that petitioner procedurally defaulted his (Apprendi) claim when he failed to preserve it for appeal to the Oregon Court of Appeals).

In PCR Trial Memorandum claims 1c and 2 through 4b, petitioner alleges that trial counsel was ineffective in various particulars. Petitioner also alleges a claim that counsel's cumulative errors constituted ineffective assistance...

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