Bardales v. Howton, No. 6:2007cv06358 - Document 64 (D. Or. 2010)
Court Description: Opinion and Order: Petitioner's federal habeas petition is denied and this case is dismissed. Signed on 9/24/10 by Chief Judge Ann L. Aiken. (ljb)
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FILED' 1(j SEP :::'h l·i'·;:'JIISTI'-'.fJDE ...... _ 'a..fi.I_, I_-_ ... .: H _~. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON JOSE ABEL BARDALES, Petitioner, Civil No. 07 6358-AA OPINION AND ORDER vs. NANCY HOWTON, Respondent. Nell Brqwn Assistant Federal Public Defender 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 Attorney for petitioner John Kroger Attorney General Summer R. ason Senior Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310-4096 Attorneys respondent AIKEN, Chief Judge: Pursuant to 28 U.S.C. § 2254, petitioner filed a petition for wr of habeas corpus on November 29, 2007. Petitioner's claims are denied and the petition is di ssed. BACKGROUND On May 6, 2003, petitioner was convicted of one count of. Sexual Abuse in the First Degree for touching the victim's breast. The trial court then imposed the statutory minimum, a 75-month sentence of imprisonment. Petitioner directly appealed his conviction, but the Court of Appeals affirmed without opinion, State v. Bardales, 181 Or. App. 661, 49 P.3d 850 (2002). the Oregon Supreme Court., 57 P.3d 581 (2002). Petitioner then sought review in That review was denied. See Resp's Exs. 103 109. Petitioner now seeks a Wr First, 335 Or. 42, of Habeas Corpus on two grounds. imposition of a 75-month prison term was unconstitutionally disproportionate to the crime in violation of the Eighth Amendment. Second, the state court improperly admitted involuntary statements made by petitioner to law enforcement officers whi subject to custodial interrogation and without being given Miranda warnings. DISCUSSION A. Standard of Review for Writ of Habeas Corpus Under the Antiterrorism and fective Death Penalty Act of 1996 ("AEDPA"), federal courts must afford state court factual findings and legal rulings a de 2 - OPINION AND ORDER measure of deference. See 28 U.S.C. §§ 2254 (d), (e). A federal court may not grant a habeas petition regarding any claim "adjudicated on the me s" in state court, unless the state court decision "was contrary to, or involved an unreasonable application , clearly established Federal Law, as determined by the Supreme Court," or "resulted in a de sion that was based on an unreasonable determination facts the light of the evidence presented in the State Court proceeding." 28 U.S.C. § 2254(d). The Supreme Court construed this statutory text as a "command that a I court not issue the habeas writ unless the state court was wrong as a matt~r of law or unreasonable in its application of law in a given case." Williams v. Taylor, 529 U.S. 362, 381 (2000). In sum, federal~courts are prevented from granting habeas relief to a state petitioner where the relevant decision is not "contrary to" or "an unreasonable application of" Supreme Court precedent. 2007). Crater v. Galaza, 491 F.3d 1119, 1126 (9th Cir. Further, a "merely erroneous" state sion does not warrant relief unless it is also "'an unreasonable application' of clearly established federal law." Early v. Packer, 537 U.S. 3, 11 (2002) (emphasis in original) . B. Violation of Eighth Amendment Petitioner argues that the imposition of a 75-month sentence as punishment for an "over-the-clothes" touching of a ten-year old's breast "shocks the moral sense and is grossly 3 - OPINION AND ORDER disproport [the child Petitioner reI to both [pet ioner'sJ conduct and imJ in this case." harm to Pet's Brief, p. 19. s on an Oregon Supreme Court case where that Court affirmed the decisions of two separate trial courts to deviate from a Measure 11 mandatory 75-month term for a crime comparable to crime at issue here, finding it would unconstitutionally disproportionate to impose that mandatory term. State v. Rodriguez, 347 Or. 46, 217 P.3d 659 (2009). Here we have an Oregon state t 11 sentence. al court imposing a Measure The state trial court imposed the Measure 11 sentence in accordance with the decision of the state appellate courts, including State ex reI Huddleston v. Sawyer, 324 Or. 597, { 932 P.2d 1145, 522 U.S. 994 (1997), rejecting itioner's argument that Measure 11 re unusual punishment." There is no dispute that petitioner properly appealed his sentence. The Oregon Court of Appeals affirmed the trial court's decision, and denied review. c ts in "cruel and Resp Exs. 106, 107. Oregon Supreme Court The Ninth rcuit applied y established federal law and determined that Measure 11 is not cruel and unusual punishment. 1066 (9 th Cir. 2001). Alvorada v. Hill, 252 F.3d Based on Ninth Circuit law as well as Oregon state law, this court has no grounds to overrule the Oregon state courts on this matter. on 4 s ground is denied. OPINION AND ORDER Petitioner's habeas petition C. Statements in Violation of Miranda/Failure to Exhaust Claim Petitioner alleges that the state court improperly admitted involuntary statements that he made to law enforcement while subject to custodial interrogation and without being given Miranda warnings. Respondent argues that the Miranda claim is defaulted because it was present to the Oregon Supreme Court as a state law issue. There no dispute that the suppression issue was preserved in the .trial court, and then raised on appeal as a federal constitutional challenge to the admission of his custodial, involuntary statements under the to the U. S. Constitution. fth and Fourteenth Amendments Respondent contends, however, that ioner's claim is procedural defaulted because when the im was presented to the Oregon Supreme Court on state constitutional grounds y. was presented Petitioner concedes that failed to make any reference to the federal Constitution in his petition seeking review by the Oregon Supreme Court. Resp. Ex. 105. In his pet ion for review before the Oregon Supreme Court, petitioner sented two issues - the trial court's denial his motion to suppress on state constitutional grounds alone; and whether his Measure 11 sentence was constitutional. The Oregon Supreme Court denied review and petitioner did not file a Pet ion for Post-Conviction Relief. 5 - OPINION AND ORDER Respondent argues that petitioner's claim was not fairly presented to the state courts as required by the exhaustion doct , and cannot now be fairly ented. Therefore, respondent argues, petitioner's claims are procedurally de s petitioners are required to exhaust state remedies on all c ims alleged in their § 2254' petition unless it appears there is an absence of available state corrective process, or circumstances exist that render such process protect the petitioner's rights. order to 28 U.S.C. ive to § y exhaust state remedies, "the 2254 (b) (1). In e prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). "fairly present" a federal claim in state court, habeas pet must "include re To ions rence to a specific federal constitutional guarantee, as well as a statement of facts that entitle the petitioner to reI (19~6). 1999) See (habeas pet f.1I Gray v. Netherland, 518 U.S. 152, 162 63 Hiivala v. Wood, 195 F.3d 1098, 1106 (9 th Cir. ioner must have "alert red] the state courts to the fact that he was asserting a claim under the United States Constitution"). The United States Supreme Court states: ordinarily a state prisoner does not 'fairly present' a claim to a state [I s] [appellate] court if that court must read beyond a ition or a brief (or a similar document) that does not alert it to the presence 6 - OPINION AND ORDER of a ral claim in order to find mater 1, such as a lower court opinion in the case, that does so. Baldwin v. Reese, 541 U.S. 27, 32 (2004). Hiivala also stated that, "the mere similarity between a claim of state and 1 error is insufficient to establish exhaustion." Hiivala, 195 F.3d at 1106. The exhaustion requirement is not "satisfied by the mere circumstance that the 'due process ramifications' of an argument might be 'self-evident. '" v. Madding, 189 F.3d 882, 888 (9 th Cir. 1999). also Anderson v. Harless, 459 u.s. 4, 7 (1982). In Farmer v. Baldwin, however, the Oregon Supreme Court held that a pet ion for review only contain a "brief" legal argument on the questions presented "[i]f des permitting." 346 Or. 67, 73, 205 P.3d 871 (2009). and space Farmer specifically held: "it follows that [the Oregon Supreme] Court may consider briefs filed in the Court of Appeals to identify and evaluate a party's legal arguments on a question presented for review." Id. that the Oregon Farmer explicitly rejected the State's contention Supreme Court "will not scour t petitioner's Court of Appeals briefs as part of its consideration of the petition for review." Id. at 72-74. In fact, Court stated the opposite was true: [w]hen this court considers a petition for a decision of the Court of Appeals, briefs Court of Appeals are available to this court and will be reviewed at that st if the court or any justice desire to do so. Nothing requires the court 7 - OPINION AND ORDER or any justice to consider only the petition in iding whether to grant review. review Id. at 72. The Court further explained that the appellate rules permit review of appellate briefs. at 72-73. here, when no response to the pet party's br f response." So, where, as ion for review is fi , "the the Court of Appeals will be considered as the Therefore, the Oregon Supreme Court necess considered respondent's appellate br federal constitutional issue. See Re ly f which addressed the . Ex. 104. Further, Farmer confirmed the Ninth Circuit's previous holdings that the Oregon Supreme Court will look to the of Appeals in Or. at 73, n.5. filed in the Court ing whether to grant review. Farmer, 346 So "for exhaustion purposes, a citation to a state case analyzing a federal constitutional issue serves same purpose as a ation to a federal case analyzing such an issue." Peterson v. Lampert, 319 F.3d 1153, 1158 (9 th Cir. 2003). The petition for review discussed Oregon cases that addressed the federal constitutional issue and analyzed Miranda, 384 u.S. 436; as well as Oregon v. Mathiason, 429 u.S. 492 (1977). The discuss of the federal issue in these cases was sufficient to alert Oregon Supreme Court to the federal constitutional issue this case, particularly given the extensive briefing of the federal issue in the Court of Appeals. 8 OPINION AND ORDER I find that petitioner "fairly presented" his claim to the Oregon Supreme Court during his direct appeal proceedings. Therefore, he adequately exhausted his state remedies as required by 28 U.S.C. § 2254. Next, in considering the merits of petitioner1s claim, I find that the writ must be denied. the province of a federal As stated above, "it is not as court to reexamine state-court determination on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." state court Estelle, 502 at 67-68. In sum, even incorrect isions must be given deference, unless they are "contrary to" or "objectively unreasonable" applications of a Supreme Court holding. (2003). Lockyer v. Andrade, 538 U.S. 63, 70-75 This is true even if articulate their reasoning. state courts do not fully Delgado v. Lewis, 223 F.3d 976, 982 (9 th Cir. 2000). Here, a merits, the tr considering pet ioner's Miranda I court made extensive findings. im on the Significant among those findings is as follows: Usery [police officer] told defendant that was not under arrest and was to leave; defendant was not under the influence of intoxicants and had no mental health issues; there was no language barrier (which defendant had demonstrated during his testimony at the hearing); no promises or s were made to defendant; the family plan that Samantha Cohen discussed with defendant was not contingent on 9 OPINION AND ORDER whether or not defendant cooperated; defendant agreed to go with Usery to the police department, and they traveled in a regular sedan, not a caged patrol car; he was told again at the department that he was not under arrest and was free to leave; at the end of the interview, fendant was allowed to leave; and, even if defendant said something about a lawyer, the comments were equivocal and did not required the conversations to end. The trial court's decision to admit petitioner's statements to law enforcement is entitled to deference, because it is a reasonable application of Miranda. Moreover, petitioner's testimony demonstrated that there was no language barrier in his discussions with Usery; petitioner agreed that it was "his choice" to go to the police department with Usery to discuss the matter; and petitioner admitted that Usery told him, more than once, that he was not under arrest, and that he was free to leave during the interview. Tr. 10/01/02, p. 42-43, 47. Petitioner testified that he believed he would be able to return home soon if he cooperated. Id., p. 43. He agreed that neither Cohen nor Usery told him that his children would be taken from him if he did not go with Usery to the police department to talk with him. He cooperated with Usery because he wanted to resolve quickly so that he could be reunited with is children. 55-56. matter p. Further, petitioner admitted that he had previously been arrested and advised of his Miranda rights and was aware that he had the right to an attorney. Id., p. 50-51. Cohen testified that, while she was with petitioner and Usery, petitioner never 10 - OPINION AND ORDER requested an attorney, and. she heard Usery tell petitioner that he was not under arrest. Id., p. 71-71, 78 79. On rebuttal, Usery denied that he ever told defendant that cooperating with the investigation would allow defendant to get home and be with family sooner. Id., p. 90. The trial court made extensive findings and rejected petitioner's argument, concluding that the statements petitioner made at his apartment and during Usery's interview at the police department were admissible. Id., p. 94-97. Based on the trial court's findings and a review of the record, "a reasonable man the suspect's position would have understood" that he was not in custody and was free to leave at his will. 468 U.S. 420, 442 (1984). Berkemer v. McCarty, Miranda warnings were not required here because petitioner was neither in full custody nor in a similarly compelling situation when he made his statements. Petitioner knew he was not under arrest, knew he was free to leave, and, in fact, left the police department at the conclusion of the interview. Moreover, I find no evidence that Usery threatened or promised petitioner anything. The Oregon state courts at every level of petitioner's appeal process have reviewed and considered the denial of petitioner's Miranda claim on a state and federal level. Each court affirmed the trial court's conclusion that circumstances of this case did not rise to the level of state or federal due 11 - OPINION AND ORDER process violations. I agree with the state courts' conclusions, and find their decision was not contrary to, or an unreasonable application of federal law as determined by the Supreme Court. 28 U.S.C. § 2254 (d). CONCLUSION Petitioner's federal habeas petition is denied and this case is dismissed. IT IS SO ORDERED~JJ Dated this~ day of September 2010. Ann ken United States District Judge 12 - OPINION AND ORDER
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