Whaley v. Thompson
| Decision Date | 30 September 1998 |
| Docket Number | No. Civ. 97-254-MA.,Civ. 97-254-MA. |
| Citation | 22 F.Supp.2d 1146 |
| Parties | Leslie WHALEY, Petitioner, v. S. Frank THOMPSON, Respondent. |
| Court | U.S. District Court — District of Oregon |
Steven T. Wax, Federal Public Defender, Portland, OR, for Petitioner.
Hardy Myers, Attorney General, Lynn David Larsen, Jan Peter Londahl, Assistant Attorneys General, Department of Justice, Salem, OR, for Respondent.
Based on the Record,
IT IS ORDERED AND ADJUDGED that petitioner's habeas corpus petition (# 1) is GRANTED IN PART and DENIED IN PART as follows: Petitioner's first-degree kidnaping conviction in Multnomah County Circuit Case No. C88-07-35193 is VACATED and the petition is DENIED as to the remaining issues.
In accordance with my opinion issued this date, the petition for writ of habeas corpus (# 1) is GRANTED in part and DENIED in part as follows: GRANTED as to petitioner's kidnaping conviction and DENIED as to petitioner's rape conviction. Petitioner's first degree kidnaping conviction is VACATED.
IT IS FURTHER ORDERED that petitioner's motion for summary judgment (# 8) is DENIED and respondent's motion to deny habeas corpus relief (# 19) is DENIED as to the conviction for first degree kidnaping and GRANTED as to the remaining issues.
Petitioner's counsel shall present a form of judgment.
IT IS SO ORDERED.
Petitioner, an inmate at the Oregon State Penitentiary, brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Currently before the court are the petition (# 1), the petitioner's motion for summary judgment (# 8), and the respondent's motion to deny habeas corpus relief (# 19). For the reasons set forth below, the petitioner's motion for summary judgment (# 8) is DENIED. The petition (# 1), as well as the motion to deny habeas corpus relief (# 19) are each GRANTED IN PART and DENIED IN PART.
Petitioner was convicted on December 12, 1988, on charges of first degree rape and first degree kidnaping. On March 3, 1989, he was sentenced to a 20-year term of imprisonment on the rape charge and a consecutive 10-year term of imprisonment on the kidnaping charge.
Petitioner directly appealed his conviction and sentence. Petitioner's court-appointed attorney filed a brief on behalf of petitioner and petitioner also submitted a pro se brief asserting additional assignments of error. The Oregon Court of Appeals affirmed without opinion, the Oregon Supreme Court denied review, and the United States Supreme Court denied certiorari. State v. Whaley, 108 Or.App. 365, 815 P.2d 722, rev. denied, 312 Or. 526, 822 P.2d 1195 (1991), cert. denied, 504 U.S. 977, 112 S.Ct. 2951, 119 L.Ed.2d 574 (1992).
Petitioner subsequently filed a petition for state post-conviction relief. Again, despite being represented by counsel, petitioner filed his own supplemental briefs and exhibits. The matter was submitted on the briefs and exhibits without any testimony or argument. On December 13, 1993, the court issued its findings of fact and conclusions of law denying the petition.
Petitioner appealed the denial of post-conviction relief. His court-appointed counsel submitted a "Balfour" brief, in which he indicated that the appeal was frivolous, and attached arguments that petitioner desired to make. See State v. Balfour, 311 Or. 434, 814 P.2d 1069 (1991). The Oregon Court of Appeals affirmed the decision below, without opinion, and the Oregon Supreme Court denied review. Whaley v. Maass, 138 Or.App. 304, 906 P.2d 871 (1995), rev. denied, 323 Or. 264, 916 P.2d 312 (1996). The instant petition was filed on February 13, 1997. In it, petitioner raises six separate grounds for relief.
Deborah Baker, the victim, first met petitioner at the Pass Club, an alcohol-free night-club, on May 6, 1988. The following evening, Baker went to the Pass Club again. As Baker was leaving the Pass Club around midnight, petitioner called Baker's name and asked if she would go for coffee with him. She agreed. Around 1:30 am, they went to a coffee shop near Baker's home. In the course of their conversation, Baker told petitioner she was leaving for Minnesota in a few days to enter a substance abuse program. Petitioner told Baker he wanted to stay in touch with her and wrote his name, address and phone number on a piece of paper he cut out of a placemat using a pocket knife. After using the knife, petitioner put it into his coat pocket.
Around 3:00 a.m., Baker asked petitioner to take her home. Petitioner drove Baker to her parents' house. They parked either directly in front of the house or next door, and sat in the car talking. When Baker told petitioner she had to go and reached to open the door, petitioner pulled her into the car and told her she could not go. Baker and petitioner kissed. Then, according to Baker, petitioner forced himself on her. In response, she said "don't" several times. Baker tried to push petitioner off, but finally submitted.
Petitioner never struck Baker, threatened her or displayed any weapon. She sustained no cuts, bruises, or marks. Nevertheless, Baker testified that she knew petitioner had the pocket knife in his jacket and that she was terrified by it. She remembered attending a class where she had been taught "that if there was any possibility that you could be in danger or that there was not a chance that you could get away to submit." She did not scream for help because she did not think anyone would hear her.
Baker testified that after forcing himself upon her, petitioner immediately drove off preventing her escape from the car. They drove to an apartment building which petitioner identified as "a friend's house." According to Baker, petitioner got out, rapped on an apartment window, and returned to the car when there was no response. Baker did not think she had an opportunity to escape at that time because petitioner "kept an eye on her." During the entire time they were driving around petitioner never displayed any weapon, physically restrained her, or threatened to harm her. The car doors were unlocked. Baker testified that she didn't get out and run when they stopped at red lights or at the apartment building because she feared petitioner might chase after her.
Petitioner then drove Baker back to the Pass Club. There were "construction people and staff members" present. Petitioner went to use the restroom. When he returned, Baker says she told him that what he had done was wrong, and threatened to call the police if he didn't leave. She took a cab home and told her parents that she had been raped. Baker's parents immediately called the police.
Petitioner, when interviewed by the police, stated that he thought Baker had accused him as part of a plot by Darleen Emmonds, whom petitioner's referred to as his "ex-wife." In the weeks prior to trial, petitioner wrote several letters, to Emmonds and others, outlining his perception of the plot. At trial, he offered testimony that the entire story given by Baker was a fraud, a fabrication and a conspiracy to get him into trouble and to extort money from him or to obtain state funds for an abortion under false pretenses.
At trial, petitioner was represented by court-appointed counsel. After the prosecutor's opening argument, however, petitioner abruptly announced that he wanted to question some witnesses himself because he knew more about the details of the case than did his attorney, Robert Swider, and he wanted his accusers to have to "look [him] in the eye." However, petitioner still wanted Swider to handle "about 95 percent of [the] case." The trial judge tried to discourage petitioner from representing himself but ultimately allowed petitioner to proceed pro se. However, in view of petitioner's expressed intent to have Swider still handle "95 percent" of the case, and reservations about petitioner's ability to represent himself, the trial judge agreed to permit a "hybrid" representation. Petitioner would be in charge of his own defense, but he could delegate specific tasks to Swider. Swider protested that his client wasn't competent to stand trial, let alone represent himself, but that objection was overruled. Swider subsequently proposed that he be the one to make all evidentiary objections. Petitioner and the trial judge both agreed to this division of responsibility.
Before considering the merits of the petition, I must first determine the impact of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132 which amended 28 U.S.C. § 2254 in several respects. The parties disagree on the proper interpretation of the Act and whether it applies to petitioner's habeas petition, in five respects: (1) the viability of the prior petition precluding application of the AEDPA; (2) the impermissible retroactive effect of the AEDPA; (3) the continued discretion to hold evidentiary hearings in this court; (4) the continued recognition of procedural default as a defense; and (5) the deference to be accorded state court decisions.
Initially, I reject petitioner's contention that the AEDPA is inapplicable to this case because the instant petition is merely a "continuation" of an earlier petition that petitioner filed on March 18, 1992. The first petition was dismissed, without prejudice, because petitioner had not exhausted his state remedies. Although the prior petition does not count for purposes of the rule barring successive § 2254 petitions, In re Turner, 101 F.3d 1323 (9th Cir.1996), that does not mean the present petition relates back to the one filed five years earlier. In short, the instant petition was not "already pending" when the AEDPA was passed.
Because this action was filed after April 26, 1996, the...
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