Lundy v. Nooth, No. 1:2007cv01513 - Document 41 (D. Or. 2010)
Court Description: Opinion and Order. Petitioner's Petition for Writ of Habeas Corpus 2254 2 is DENIED. The Court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). Ordered and signed on 01/22/2010 by Judge Owen M. Panner. (jw)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON CV. 07-1513-PA REX A. LUNDY, Petitioner, OPINION AND ORDER v. MARK NOOTH, Respondent. HAROLD DUCLOUX, III Office of the Federal Public Defender 101 SW Main Street, Suite 1700 Portland, OR 97204 Attorney for Petitioner JOHN KROGER Attorney General LESTER R. HUNTSINGER Oregon Department of Justice 1162 Court Street, NE Salem, OR 97301 Attorneys for Respondent 1 - OPINION AND ORDER Panner, Judge. Petitioner, an inmate at Snake River Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. challenges the legality of his 2000 state court He convictions, alleging he was denied the effective assistance of counsel. For the reasons set forth below, the Petition for Writ of Habeas Corpus (#2) is DENIED. BACKGROUND In May 2000, in the Second Petitioner was indicted on three counts of Rape Degree 1, (Counts Penetration in the Second Degree First Degree (Counts 5, 6, 2, and 3), (Count 4), and 7), Unlawful Sexual Sexual Abuse in the and Sodomy (Count 8) with a 12 year old girl who lived next door to him. for acts Petitioner admitted to police that he had had sexual relations with the victim at least once, and that he loved her and intended to marry her when he was released from prison. (#18, Resp. at 2; #33, Mem. at 2.) The victim was prepared to testify she had engaged in sex with (Id.; #20, Ex. 104 Petitioner on five or six different occasions. at 5.) On the morning set for trial, defense counsel informed the trial court Petitioner wished to waive his right to a jury trial and wished to have the court decide his case. (#20, Ex. 104 at 2.) After a recess, the parties informed the court they had reached a plea agreement and that Counts 2, 1 and Rape 2 - OPINION AND ORDER Petitioner would be pleading guilty to in the Second Degree, with the State dismissing all remaining counts; and that the State would ask for consecutive terms of imprisonment under Measure 11, for a total of 150 months, and Petitioner was free to argue for concurrent terms, for a total affirmatively of 75 months. when the at (Id. court 3.) asked Petitioner if he responded understood the negotiations that had taken place and if he understood that by entering a guilty plea he was waiving his constitutional rights to have a trial. Petitioner also affirmed that he understood (Id. ) the terms of the plea and that he could be subject to consecutive terms of imprisonment. Count One, When asked what his plea was to (Id. ) Petitioner replied "guilty", and when asked what his plea was to Count Two, Petitioner replied "guilty." Counsel requested as immediately. informed part the of court the that plea was a (Id. ) condition that Petitioner sentencing occur The trial court asked Petitioner to confirm this was his request, which he did. (Id.) Following counsel's argument for concurrent terms, the trial court imposed two consecutive 75-month terms for a total of 150 months imprisonment, noting the victim's vulnerability and Petitioner's criminal history. (Id. at 18.) Petitioner directly appealed his convictions, but the Oregon Court of Appeals affirmed without opinion. Or.App. 522, 19 P.3d 387 (2000). the Oregon Supreme Court. 3 - OPINION AND ORDER State v. Lundy, 171 Petitioner did not seek review by (#20, Exs. 105, 106.) Petitioner filed for post-conviction relief (PCR) raising numerous claims of ineffective assistance of counsel, and claims of trial court error and prosecutorial misconduct, but the PCR court denied relief. (#20, Ex. 121.) Petitioner appealed advancing two claims of ineffective assistance of counsel, but the Oregon Court of Appeals summarily affirmed, and the Oregon Supreme Court denied review. (#20, Exs. 122-127.) Petitioner filed the instant petition raising 14 claims of ineffective assistance of trial counsel, assistance of appellate counsel, 2 1 claim of ineffective claims misconduct, and 1 claim of trial court error. of prosecutorial (#2, Pet. at 4-5.) In his memorandum, Petitioner argues trial counsel was deficient in failing to investigate witnesses and in failing to investigate that Petitioner was under the influence of Mellaril prior to allowing him to waive his right to a jury trial and enter a plea of guilty. (#33, Mem. at 10.) Respondent asserts the claims not argued in Petitioner's memorandum were not raised to the Oregon Supreme Court in appellate proceedings Resp. at 3, and are procedurally defaulted, (#18, 6-7), and that In failing to argue the claims in his memorandum, Petitioner has not met his burden of proof for habeas relief. (#38, Petitioner's Reply at memorandum, 4-5.) As Respondent to the asserts claims the findings are entitled to deference under 28 U.S.C. (e) (1) . (#18 at 7.) 4 - OPINION AND ORDER argued state § in court 2254(d) and DISCUSSION I. STANDARDS Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a habeas petitioner whose claim was adjudicated on the merits in state court is not entitled to relief in federal court unless he demonstrates that the state court's adjudication: (1) resulted in a decision that was contrary to, or clearly invol ved an unreasonable application of, established Federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). In construing this provision the Supreme Court stated: "[I]t seems clear that Congress intended federal judges to attend with the utmost care to state court decisions, including all of the reasons supporting their decisions, before concluding that those proceedings were infected by constitutional serious to warrant the issuance of the writ." 529 u.S. 362, 386 (2000). error sufficiently Williams v. Taylor, "We all agree that state court judgments must be upheld unless, after the closest examination of the state court judgment, a federal court is firmly convinced that a federal constitutional right has been violated." Id. at 389. The last reasoned decision by the state court is the basis for review by the federal court. See 5 - OPINION AND ORDER Ylst v. Nunnemaker, 501 u.S. 797, 803-04 (1991). The decision of the state PCR trial court is the basis for review in the instant proceeding. (1) Contrary to, or unreasonable established Federal law application "'Clearly established Federal law' under of clearly 2254 (d) (1) § is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." v. Andrade, 538 u.S. 63, 71 (2003). Lockyer Circuit court law may be used as guidance in determining whether a state court decision is an unreasonable application of determining what the law is. 974 the law, but not for Lambert v. Blodgett, (9th Cir. 2004), cert. denied, 126 S.Ct. 484 purposes of 393 F.3d 943, (2005). A state court decision is "contrary to" clearly established Federal law if "the state court applies a rule that contradicts the governing law set forth in [Supreme Court] court confronts indistinguishable a set of from a decision facts of cases or if the state that the are materially [Supreme] Court and nevertheless arrives at a result different from [the Supreme Court] precedent." Lockyer, 538 u.S. at 73 (internal quotations omitted). A state court decision is an "unreasonable application" of clearly established identifies the Supreme correct Court governing law when legal "the state principle court but unreasonably applies that principle to the facts of the [ ] case." Lambert, 393 F.3d at 974 (citing Williams.) The state court's application of law must be objectively unreasonable. 6 - OPINION AND ORDER Id. (emphasis "Under added) . 2254(d) 's § 'unreasonable application' clause, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state court decision applied application law] federal of [the law application of federal law." 24-25 (2002), incorrectly. is different from incorrect an Woodford v. Visciotti, 537 U.s. 19, rehearing denied, citations omitted). unreasonable An 537 U.s. 1149 (2003) (internal "[I]t is the habeas applicant's burden to show that the state court applied [the law] to the facts of his case in an obj ecti vely unreasonable manner." (2) Id. (emphasis added) . Law governing claims of ineffective assistance counsel Generally, Strickland v. Washington, 466 U.s. governs claims of ineffective assistance of counsel. be granted counsel's under Strickland, performance fell a an (1987), For relief to petitioner must below 668 prove objective 1) standard that of reasonableness and, 2) that there is a reasonable probability that, but for counsel's unprofessional errors, proceeding would have been different. 695 (2002) ; Strickland, Wi 11 i am s 466 U.s. v. Ta y 1 or, 687-88. 52 9 the result of the Bell v. Cone, 535 U.s. 685, U. S . 362 , 390 - 91 (2 0 0 0) ; "Not every error that conceivably could have influenced the outcome undermines the reliability of the resul ts of the proceeding" and "every effort eliminate the distorting effects of hindsight." [must] be made to Id. at 690, 693. "The reasonableness of counsel's performance is to be evaluated 7 - OPINION AND ORDER from counsel's perspective at the time of the alleged error and in light of all the circumstances, Kimmelman v. highly deferential." (1986); Cir. see also Hendricks v. 1995) and the (" [U] nder the Morrison, Calderon, rule standard of of 477 review is U.S. 70 F.3d 1032, contemporary 365, 1036 381 (9th assessment, an attorney's actions must be examined according to what was known and reasonable at the time the attorney made his choices."). Hill v. Lockhart, 474 U.S. 52 (1985), established that the principles articulated in Strickland apply in the context of a guilty plea, but that to prevail a Petitioner has the burden of showing counsel's advice was not "within the range of competence demanded of attorneys in criminal cases," Id. at 56 (citing McMann v. and Richardson, "reasonable 397 U.S. 759 probability" (1970)), that "but for" that counsel's representation he would not have pleaded guilty. II . there was a deficient Id. at 59. CLAIMS NOT ADVANCED IN MEMORANDUM Pursuant to 28 U.S.C. § 2248, "[t]he allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true." I have reviewed the record and find to Petitioner is not entitled advanced in his memorandum. 8 - OPINION AND ORDER relief on the claims not On habeas review, Petitioner must show that the state court determination of his claims was contrary to or an unreasonable application of established Supreme Court precedent. § 2254(d). 28 U.S.C. By not addressing claims in his memorandum, Petitioner has failed to meet the burden of proof for habeas relief under § 2254(d). Accordingly, relief on the claims Petitioner did not advance in his memorandum must be denied. III. THE MERITS The claims Petitioner advances in his memorandum allege counsel was deficient 1) in failing to investigate witnesses, and 2) in failing to investigate that Petitioner was under the influence of Mellaril, prior to allowing him to waive his right to a jury trial and enter a plea of guilty. (#33, Mem. at 10.) To prevail in the PCR proceedings Petitioner had to show the PCR court that trial counsel's performance was deficient when he allowed Petitioner to enter into a plea agreement, and that, but for counsel's deficient performance, plea agreement and gone to trial. he would have rejected the Upon review of the record, I conclude Petitioner failed to make the necessary showing and it was neither contrary to nor an unreasonable application of Strickland for the PCR court to deny relief. In its judgment denying relief, the PCR trial court made the following findings: (1) [P]etitioner had a romantic relationship with the girl and that both he and the girl admitted that they had sexual intercourse. 9 - OPINION AND ORDER (2) Additional investigation would not have disclosed evidence that would help petitioner. (3) There were no witnesses that could have testified that petitioner did not do what he admitted he had done. (4) Petitioner's medications did not render him unable to understand the nature of the charges, the consequences of pleading guilty and the potential sentence he could receive if convicted of all the charges. (#20, Ex. 121.) The PCR court findings are presumed to be correct absent Petitioner presenting clear and convincing evidence to the contrary. 28 U.S.C. 2254 (e) (1). Petitioner has not met this burden. While Petitioner argues the medication he received while in jail caused him to be "mentally incapacitated when he waived his jury trial and entered into a guilty plea[,]" (#33, Mem. at 1), his medical records, his PCR deposition, and trial counsel's affidavit do not support this assertion. A review of the record before the PCR trial court, including the plea petition Petitioner signed, the transcript of the plea and sentencing proceeding in which Petitioner affirmed he understood his plea and its consequences, trial counsel's affidavit clearly stating there was no indication Petitioner's ability to consequences of plea his understand was the impaired, proceedings the or transcript the of Petitioner's PCR deposition in which he admits not mentioning his medications to his attorney or the court, and Petitioner's medical records covering the time he was medicated while in j ail which 10 - OPINION AND ORDER mention long standing anger management issues but make no mention of cognitive impairment or confusion, leads to the conclusion the PCR court's findings are supported by the record. Petitioner failed to show the PCR court that counsel's advice was not within the range of competence demanded of attorneys in criminal cases and that, have pleaded guilty. but for counsel's advice, he would not Accordingly, it was neither contrary to, nor an unreasonable application of Strickland for the PCR court to deny relief. Petitioner's unsupported and, request for an evidentiary See 28 U.S.C. therefore, denied. § hearing is 2254(e) (2); 403 F.3d 657, 669-70 (2005). Insyxiengmay v. Morgan, CONCLUSION Based on the Habeas Corpus (#2) foregoing, is DENIED. Petitioner's The Court Petition for Writ of declines to issue a Certificate of Appealability on the basis that Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253 (c) (2). IT IS SO ORDERED. DATED this )r1V day of January, 2010. '1tt~lIte&L~ ~M. States District Panner United 11 - OPINION AND ORDER Judge
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