Opinion
Civil No. 01-1639-JE.
April 6, 2004
Lester R. Huntsinger Assistant Federal Public Defender, Portland, Oregon, Attorney for Petitioner.
Hardy Myers Attorney General, Anthony D. Bornstein, Assistant Attorney General, Department of Justice, Salem, Oregon, Attorneys for Respondent.
FINDINGS AND RECOMMENDATION
Petitioner brings this habeas corpus action pursuant to 28 U.S.C. § 2254 challenging several underlying state court convictions. For the reasons set forth below, the Petition for Writ of Habeas Corpus (#1) should be denied, and this proceeding should be dismissed.
BACKGROUND
The background facts of this case are taken directly from the Oregon Court of Appeals' decision in petitioner's brother's case,Bogle v. Armenakis, 172 Or. App. 55, 18 P.3d 390 (2001).
Petitioner's prosecution arose from an episode that occurred on July 1, 1993, when petitioner and his brother attacked David Fijalka and Sandra Jackson in their home. Petitioner and his brother came to the victims' residence, apparently angry about a business deal with Fijalka that had not been consummated. After Fijalka let the brothers in, petitioner's brother hit him with a handgun and then fired the gun at a stereo. Jackson lay down on the floor. Petitioner handcuffed Jackson and tied up Fijalka with an extension cord. Petitioner took about $500 from Jackson's wallet, then beat Fijalka and Jackson with the handgun. Petitioner and his brother kicked and hit Jackson. Jackson attempted to escape from the house, but the brothers caught her. Petitioner tried to get Fijalka to sign over the title to a motor home and knocked him unconscious when he refused. The brothers demanded Jackson's car keys, which she surrendered.
Jackson testified that petitioner threatened to cut her with a butcher knife if she failed to follow his directions. Petitioner stabbed at Fijalka's feet with the knife, then told Jackson to straddle Fijalka, wake him, and have sex with him. Neither Jackson nor the brothers could wake Fijalka. Petitioner's brother ordered Jackson into the bedroom, where he forced her to perform oral sex. Afterward, petitioner gagged and tied her. Eventually, Jackson feigned loss of consciousness, despite a threat from petitioner's brother to "blow off [Jackson's kneecap." Eventually, the brothers left in Jackson's vehicle. Jackson's car broke down in California, where police arrested the brothers.Bogle, 172 Or. App. at 57-58.
Because the background facts are taken from petitioner's brother's case, they have been altered so that the references to "petitioner" accurately reflect Robert Zane Bogle's participation in the underlying crimes.
On July 9, 1993, petitioner was indicted for Burglary in the First Degree, two counts of Robbery in the First Degree, four counts of Kidnapping in the First Degree, two counts of Assault in the Second Degree, Unauthorized Use of a Motor Vehicle, and Felon in Possession of a Firearm. Respondent's Exhibit 102. In a joint trial with his brother, Tracey Bogle ("Tracey"), the trial judge provided the jury with an instruction on the crime of Kidnapping in the First Degree which the Oregon Court of Appeals would later find to be defective. The jury instruction was improper because it provided for several different theories which could support a Kidnapping conviction, but "did not inform the jurors of the facts on which they must agree by the requisite number in order to convict petitioner of any of the four [Kidnapping] charges." Bogle, 172 Or. App. at 62. Separate trial counsel for each of the co-defendants failed to object to the faulty instruction.
A jury found petitioner guilty of all charges, and the court sentenced him to an aggregate term of 358 months in prison. Petitioner directly appealed his convictions and sentence, but the Oregon Court of Appeals affirmed the convictions and sentence without opinion, and the Oregon Supreme Court denied review.State v. Bogle, 141 Or. App. 137, 917 P.2d 1076, rev. denied, 323 Or. 535, 919 P.2d 1181 (1996).
Petitioner next filed a petition for post-conviction relief ("PCR"). The PCR trial court denied relief on all grounds. Respondent's Exhibits 127 128. The Oregon Court of Appeals affirmed the lower court without opinion, and on December 12, 2000, the Oregon Supreme Court denied review. Bogle v. Thompson, 165 Or. App. 770, 999 P.2d 562, rev. denied, 331 Or. 429, 26 P.3d 148 (2000).
In the meantime, Tracey had filed his own PCR case in which he challenged the validity of his convictions claiming that his trial attorney was constitutionally ineffective for failing to object to the defective kidnapping instruction, a claim petitioner failed to raise during his own PCR proceedings. The Oregon Court of Appeals agreed with Tracey's position, holding that trial counsel's failure to challenge the jury instruction constituted ineffective assistance of counsel. Bogle v. Armenakis, 172 Or. App. at 63-65.
Once petitioner learned of this decision, he sought to reinstate his PCR appeal, but on April 10, 2001, the Oregon Court of Appeals denied the motion. Petitioner's Exhibits A B. Left without any state court remedies to pursue, on November 6, 2001, petitioner filed this habeas corpus action.
DISCUSSION
In the Petition for Writ of Habeas Corpus, petitioner raises four grounds for relief. His first ground for relief mirrors the claim Tracey prevailed on during his PCR proceedings, i.e., trial counsel's failure to object to the defective jury instruction amounted to ineffective assistance of counsel. Petitioner declines to brief his remaining grounds for relief, and has not rebutted any of the arguments made by the State in opposition to those claims.Despite petitioner's decision to pursue only a single claim in this proceeding, the court has nevertheless reviewed the unbriefed claims and finds them to be without merit. Accordingly, relief on these claims should be denied. See 28 U.S.C. § 2248 ("The 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.").
In his sole remaining ground for relief, petitioner alleges that his trial attorney's performance fell below that required by the Sixth Amendment when he failed to object to the defective jury instruction. In order for the court to reach the merits of this claim, petitioner must first overcome the procedural default hurdle he faces.
A petitioner seeking habeas relief must exhaust his claims by fairly presenting them to the state's highest court, either through a direct appeal or collateral proceedings, before a federal court will consider the merits of habeas corpus claims pursuant to 28 U.S.C. § 2254. Rose v. Lundy, 455 U.S. 509, 519 (1982). A petitioner is deemed to have "procedurally defaulted" his claim if he failed to comply with a state procedural rule, or failed to raise the claim at the state level at all. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
Petitioner concedes that he failed to fairly present the ineffective assistance of counsel issue to the state courts for review, but argues that this court should excuse his default because: (1) the procedural rule used to deny the motion for reinstatement is not adequate; (2) there is cause and prejudice to excuse the default; (3) failure to review the claim would result in a miscarriage of justice; and (4) the application of the state procedural rule would produce a manifestly unjust result. The court addresses these arguments in turn.
I. Inadequate State Procedural Rule.
Petitioner first contends that Oregon has not regularly followed a rule prohibiting reinstatement of appeals, therefore the application of such a practice to his case does not constitute an independent and adequate state procedural bar to his claim. "A state procedural rule constitutes an adequate bar to federal court review if it was `firmly established and regularly followed' at the time it was applied by the state court." Poland v. Stewart, 169 F.3d 573, 585 (9th Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 424 (1991)). Petitioner asserts that in certain instances, the Oregon appellate courts have granted motions to reinstate appeals. He specifically cites two cases in which appeals were reinstated, State v. Caldwell, 2 Or. App. 199, 465 P.2d 489 (1970) and Nash v. Frank, 161 Or. App. 126, 984 P.2d 381 (1999), to support this proposition.
Essentially, petitioner argues that reinstatement of an appeal is discretionary, therefore the rule against reinstatement is not strictly or regularly applied. The fact that "the application of a rule requires the exercise of judicial discretion does not render the rule inadequate to support a state decision." Morales v. Calderon, 85 F.3d 1387, 1392 (9th Cir. 1996). Judicial discretion is not equivalent to inconsistency where "the exercise of judgment according to standards that, at least over time, can become known and understood within reasonable operating limits."Id. The court finds that petitioner's citation to two cases where appeals were reinstated over the span of almost 30 years does not demonstrate that Oregon inconsistently dealt with motions to reinstate appeals.
Even assuming this court were to find that Oregon has not consistently addressed motions to reinstate appeals where final judgment has been entered, the Oregon Court of Appeals most likely would not have entertained petitioner's ineffective assistance of counsel claim because it had not been presented to the PCR trial court, and was therefore not preserved for appellate review. O.R.A.P. 5.45(4)(a) ("Each assignment of error shall demonstrate that the question or issue presented by the assignment of error timely and properly was raised and preserved in the lower court.").
II. Cause and Prejudice.
Petitioner next asks the court to excuse his default because he can demonstrate cause and prejudice. In order to demonstrate "cause," petitioner must show that some objective factor external to the defense impeded his efforts to fairly present the claim in state court. Vansickel v. White, 166 F.3d 953, 958 (9th Cir.),cert. denied, 528 U.S. 965 (1999); Murray v. Carrier, 477 U.S. 478, 488 (1986). A petitioner meets the "prejudice" standard if he can establish that the errors he complains of undermine confidence in the outcome of his trial. Vansickel, 166 F.3d at 958-59.
Petitioner asserts that his attorney during his PCR trial was responsible for the default because he failed to include the ineffective assistance of counsel claim for the PCR trial court's consideration. He argues that "by omitting this highly meritorious claim of constitutional error from the post-conviction case, appointed PCR counsel was not acting as [petitioner's] legitimate agent." Memo in Support (#49), p. 16. Petitioner's characterization of his attorney's error as violative of agency law principles is simply another way of claiming that he suffered a default due to the fault of his attorney.
As the Supreme Court has said, "[s]o long as a defendant is represented by counsel whose performance is not constitutionally ineffective . . . we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default."Murray, 477 U.S. at 488. Consequently, despite the showing of prejudice petitioner can offer, he cannot demonstrate cause since it is well-established that there is no constitutional right to an attorney in state post-conviction proceedings. Coleman, 501 U.S. at 752; Pennsylvania v. Finley, 481 U.S. 551, 553 (1987).
III. Fundamental Miscarriage of Justice.
Petitioner next claims that his default should be excused because he is actually innocent, therefore the failure to entertain his ineffective assistance of counsel claim would result in a fundamental miscarriage of justice. "[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." Murray, 477 U.S. at 496. In order to be credible, a claim of actual innocence "requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995); Downs v. Hoyt, 232 F.3d 1031, 1040 (9th Cir. 2000), cert. denied, 121 S.Ct. 1665 (2001).
Ultimately, petitioner must prove that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. Schlup, 513 U.S. at 327; Bousley v. United States, 523 U.S. 614, 623 (1998); Downs, 232 F.3d at 1040. In making this determination, this court "must assess the probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial." Schlup, 513 U.S. at 332.
The court begins with petitioner's "new" evidence of innocence, a requirement for the fundamental miscarriage of justice exception to procedural default. He relies on the Oregon Court of Appeals decision in his brother's case to initiate the actual innocence analysis. This does not constitute the kind of new evidence contemplated by Schlup, which specifically recognized exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence as categories of new evidence which could support an actual innocence claim. Petitioner contends, however, that new law, not just new evidence, may support a claim of actual innocence. The court agrees.
In Bousley, supra, the petitioner pleaded guilty to "using" a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Five years later, while his appeal was pending, the Supreme Court defined the "use" prong of § 924(c)(1), holding that the Government is required to show "active employment of the firearm." Bailey v. United States, 516 U.S. 137, 144 (1995). Although this claim was procedurally defaulted, the Supreme Court held that petitioner could potentially excuse the default in light of the Bailey decision, and remanded the case for further proceedings.
Under the new interpretation of § 924, petitioner did not appear to qualify as having "used" a firearm.
Here, by contrast, petitioner relies on the Oregon Court of Appeals' decision in his brother's case which did not announce a new rule of law or statutory interpretation. Instead, it applied the holding of State v. Boots, 308 Or. 371, 780 P.2d 725 (1989) to the facts of Tracey's case. In Boots, the Oregon Supreme Court invalidated a jury instruction which allowed the jury to convict the defendant of aggravated murder without having to agree on which alternative aggravating element of the crime had been proven. Consequently, the law on which petitioner could have relied had been established roughly seven years prior to the initiation of petitioner's PCR proceedings. The Oregon Court of Appeals' decision in Tracey's case did no more than highlight for petitioner a claim which he had failed to present in his own PCR proceeding. This constitutes neither new evidence, nor new law.
Even if the appellate decision in Tracey's PCR case constituted new law, petitioner has not shown that no reasonable juror would have convicted him in light of the evidence adduced at trial. While petitioner can point out that Tracey was not convicted of three of the four Kidnapping charges, Tracey was nevertheless convicted of First Degree Kidnapping. Petitioner's Exhibit C. A slightly different result in Tracey's 2001 proceeding does not establish that petitioner was innocent of the crimes for which he was convicted in 1993. For all of these reasons, petitioner is unable to excuse his default through the fundamental miscarriage of justice exception.
IV. Manifestly Unjust Result.
Finally, petitioner argues that the court should reach the merits of his constitutional claim because to do otherwise would be to reach a manifestly unjust result. He directs the court toJudd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001) for guidance.
In Judd, the Eleventh Circuit recognized that in order for a state court procedural rule to be adequate, "it must not be applied in an arbitrary or unprecedented fashion;" it cannot be "manifestly unfair in its treatment of the petitioner's federal constitutional claim to be considered adequate for purposes of the procedural default doctrine." Id (citing Card v. Dugger, 911 F.2d 1494, 1517 (11th Cir. 1990). As this court has already determined that the Oregon Court of Appeals validly applied an independent and adequate state procedural bar to petitioner's motion to reinstate his PCR appeal, petitioner's citation to Judd is not persuasive.
RECOMMENDATION
For the reasons identified above, the Petition for Writ of Habeas Corpus should be DENIED, and judgment should be entered dismissing this action with prejudice.
SCHEDULING ORDER
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have ten (10) days from the date of service of a copy of this recommendation within which to file specific written objections. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issue, and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation.