Opinion
6:17-cv-02008-JR
07-20-2023
OTHA LEE BANKS, Petitioner, v. JOHN MYRICK, Respondent.
FINDINGS AND RECOMMENDATION
Jolie A. Russo United States Magistrate
Petitioner, an adult in the custody of the Oregon Department of Corrections, brings this habeas corpus action pursuant to 28 U.S.C. § 2254 challenging his 2013 convictions for one count of rape in the second degree and two counts of sex abuse in the first degree. For the reasons that follow, the Amended Petition for Writ of Habeas Corpus should be DENIED.
BACKGROUND
In 2012, petitioner was charged in two separate indictments in Multnomah County on multiple counts of sexual abuse, sodomy, and rape against four child victims. Respondent's Exhibit (“Resp. Exh.”), ECF No. 27, Exhs. 102, 103. In Case No. 120331003, the grand jury indicted petitioner on eleven counts of sexual abuse in the first degree, two counts of rape in the second degree, one count of sodomy in the second degree, and one count of sexual abuse in the third degree. Resp. Exh. 102. The offenses were alleged to have occurred between 2005 and 2010. Resp. Exh. 102. In Case No. 120934136, the grand jury indicated petitioner on four counts of rape in the second degree and one count of sexual abuse in the first degree. Resp. Exh. 103. Those offenses were alleged to have occurred between 1997 and 2000. Resp. Exh. 103.
Petitioner's trial attorney moved to dismiss the charges in the second indictment, arguing that they were barred by the statute of limitations. Resp. Exh. 118. Counsel contended that “state-produced documents” demonstrated that on December 5, 1999, someone named Michelle reported to the Oregon Department of Human Services (“DHS”) that the victim had been sexually abused by petitioner and that she was pregnant. Resp. Exh. 118. Thus, counsel argued, the deadline to commence the action under Or. Rev. Stat. § 138.125(2) was December 5, 2011, before the indictment was issued. Resp. Exh. 118. Regarding two of the second-degree rape charges, the state alleged in the indictment that petitioner had been “identified on the basis of deoxyribonucleic acid (“DNA”) same comparisons, in 2012, thereby allowing commencement of [prosecution for the charged crimes] within 25 years after the commission of the crime pursuant to [Or. Rev. Stat. §] 131.125(8).”
Under Or. Rev. Stat. § 138.125(2) (2012), a prosecution for rape in the second degree or sex abuse in the first degree:
may be commended within six years after the commission of the crime or, if the victim at the time of the crime was under 18 years of age, anytime before the victim attains 30 years of age or within 12 years after the offense is reported to a law enforcement agency or the Department of Human Services, whichever occurs first[.]
That statute provides:
Notwithstanding subsection (2) of this section, if the defendant is identified after the period described in subsection (2) of this section on the basis of DNA (deoxyribonucleic acid) sample comparisons, a prosecution for . . . [r]ape in the second degree . . . may be commenced within 25 years after the commission of the crime.
Following a hearing on petitioner's motion to dismiss, the trial court denied the motion, explaining the decision as follows:
So having reviewed the pleadings submitted by both attorneys and having heard the arguments of counsel, this Court finds that because of the lack of reliability of the initial reporting, if you will, about the alleged perpetrator of the abuse in this case that the offense was not reported until it was something that authorities could
act on. And while the alleged victim was still denying it and while there wasn't separate DNA evidence ....it's not that the victim always has to be the reporter. Often, we have victims denying allegations of abuse but there was insufficient, concrete information to constitute report. Accordingly, I find that the offense was reported within the applicable statute of limitations period under 131.125(2), before the alleged victim was 30 and within 12 years of the report and even if I'm incorrect on that, that these [sic] statute of limitations was extended by the DNA analysis that confirmed the allegations initially made and that the prosecution or charges were brought within two years of the DNA analysis so that the statute . . . the charges were brought timely[.]Resp. Exh. 135, pp. 6-11.
The parties ultimately reached a plea agreement under which petitioner pleaded no contest to two counts of sexual abuse in the first degree in Case No. 120331003 and pleaded guilty to one count of rape in the second degree in Case No. 120934136. Resp. Exh. 135, p. 58. At the change of plea hearing, the trial court engaged in an extensive colloquy with petitioner, ensuring that he understood the rights he was giving up by entering his plea. Resp. Exh. 135, pp. 58-66. Petitioner told the trial judge that he had reviewed the plea petition in both cases and had discussed the petitions with his attorney. Resp. Exh. 135, p. 59. The plea petitions in both cases specified that petitioner understood that his right to appeal was limited: “I may appeal only if I can make a colorable showing of error in the disposition of my case or a colorable claim of error in the proceeding.” Resp. Exh. 104, p. 1; Resp. Exh. 134, p. 1). The plea petition in Case No. 120934136 specified a sentence of 75 months of imprisonment and noted petitioner's agreement to open sentencing in Case No. 120331003. Resp. Exh. 104, p. 2. The plea petition in Case No. 120331003 provided for “open sentencing pending PSI.” Resp. Exh. 134, p. 2.
After petitioner entered the plea agreement but before he was sentenced, petitioner's trial attorney moved to withdraw on the basis of a conflict of interest with petitioner. Resp. Exh. 108. On November 8, 2012, the trial court held a hearing on that motion. Resp. Exh. 108. Petitioner stated that he had not understood that, by pleading guilty, he could not appeal the denial of his motion to dismiss based on the statute of limitations. Resp. Exh. 108, p. 9. The trial court granted counsel's motion to withdraw and appointed new counsel. Resp. Exh. 108, p. 11.
On December 14, 2023, petitioner appeared in court with his new counsel and moved to withdraw his plea. Resp. Exh. 109. At the hearing, petitioner acknowledged he had the chance to review the plea petitions, and that nothing in those petitions indicated they were conditional pleas which would allow him to appeal the denial of the motion to dismiss on statute of limitations grounds. Resp. Exh. 109, p. 16, 43. Petitioner testified, however, that he did not understand that by pleading guilty he would be waiving his right to appeal from the denial of his motion to dismiss: “I believed that I was keeping the right to be able to appeal . . . the motion to dismiss.” Resp. Exh. 109, p. 47. Petitioner also testified that he believed he would receive concurrent rather than consecutive sentences. Resp. Exh. 109, pp. 26-27. On cross-examination, however, he admitted that the trial judge had explained during the plea colloquy that it would be up to the judge to determine whether sentences would be concurrent or consecutive. Resp. Exh. 109, pp. 38-39.
Petitioner's original trial counsel also testified. She disputed petitioner's account, testifying that she reviewed the plea petitions with petitioner “line-by-line,” she told him he would be giving up his right to appeal, and explained this information to petitioner before the plea hearing. Resp. Exh. 109, p. 73. As to the motion to dismiss on the statute of limitations issue, she recounted the following exchanges with petitioner:
[W]e were sitting in the courtroom side-by-side, and he said, “Will I be able to appeal our motion?” And I said, “Statute of limitations?” And he said, “Yes.” And I said, “No, you would not,” when he asked me that question. Later when we were going over the plea petition, line-by-line, word-for-word, we came up to that again and he said, “Will I be able to appeal our motion?” And I said, “The statute of limitations? No.” It came up two times.Resp. Exh. 109, p. 77. Counsel also testified that there had been no discussion of a conditional plea with the prosecution. Resp. Exh. 109, p. 79. As to sentencing, counsel testified that she specifically advised petitioner that under the terms of the agreement the judge could impose consecutive sentences. Resp. Exh. 109, p. 68-70.
The trial judge denied petitioner's motion to withdraw his plea, finding that his counsel had fully advised him of the consequences of his plea, and finding not credible petitioner's testimony that he did not understand he was giving up the right to appeal the statute of limitations issue:
I agree with the State that, uh, I'm now convinced more than ever, that [petitioner] was fully advised of all the possible consequences, in a very clear manner, and I do find that both based on the early colloquy I had with [petitioner], but also now hearing from [petitioner] and his attorney, uh, I don't find credible [petitioner's] testimony that he did not understand that he was not going to be able to appeal his . . . motion to dismiss on statute of limitations grounds. I find that his-he had very able assistance of counsel, who fully advised him of all the rights and consequences of a plea, as do I on the record, and I found that he, and still find, that he freely, voluntarily and intelligently entered his pleas of guilty and no contest in this case[.]Resp. Exh. 109, pp. 92-93 (emphasis added).
On January 24, 2013, the trial court entered a judgment of conviction in each case. Resp. Exh. 101. In Case No. 120934136, the court sentenced petitioner to a term of imprisonment of 75 months, to be followed by 10 years of post-prison supervision. Resp. Exh. 101, p. 9. In Case No. 120331003, the court sentenced petitioner to two 75-month terms of imprisonment, to be followed by 10 years of post-prison supervision. Resp. Exh. 101, pp. 4-6. The court directed that all of the sentences were to be served consecutively, for a total term of imprisonment of 225 months. Resp. Exh. 101, pp. 4-6.
Petitioner did not file a direct appeal. He did, however, subsequently file a petition for state post-conviction relief (“PCR”). Resp. Exh. 111. In his formal amended PCR petition, he alleged his trial attorney was ineffective for failing to properly argue that the offenses alleged in the second indictment were time barred under Or. Rev. Stat. § 131.125. Resp. Exh. 112, p. 13. Petitioner alleged:
The prosecution of those charges was not commenced “within 12 years after the offense is reported to a law enforcement agency of the Department of Human Services” as required under ORS 131.125(2). Moreover, since the offenses were first reported more than 6 years prior to the effective date of the 2006 amendment of ORS 131.125 (expanding its limitations period from 6 to 12 years), the offenses were time-barred under former ORS 131.125 as well. Since the offenses were time-barred under ORS 131.125 prior to the effective date of ORS 131.125(9) and (10), those sections were inapplicable to the alleged offenses and could not be used to render them timely prosecuted. Finally, trial counsel failed to properly articulate the standard for determining a “report” sufficient to trigger the limitations period under ORS 131.125 and failed to properly argue that such a report of the alleged offenses against [the victim] had been made more than 12 (or 6) years prior to commencement of the prosecution of those alleged offenses. Finally, trial counsel failed to preserve these arguments, and the arguments made in support of the defense's motion to dismiss, via a conditional plea.Resp. Exh. 112, p. 13.
Petitioner also alleged that trial counsel was ineffective for failing to ensure that his plea was knowing, intelligent, and voluntary, because “petitioner was not aware that he would be exposed to the possibility of consecutive sentences under the plea agreement,” and “was not aware that his guilty plea would entail forfeiture of his right to appeal the trial court's denial of the defense's motion to dismiss.” Resp. Exh. 112, p. 14.
In response to the PCR petition, the state introduced as exhibits petitioner's plea petition in Case 120934136 and transcripts of the hearings in which the issue was addressed in the trial court. Resp. Exh. 116. The state also submitted an affidavit from the prosecutor, who averred that there was no offer extended for a conditional plea, and there was no agreement to a conditional plea because it would not have been “appropriate” in petitioner's case. Resp. Exh. 123. The prosecutor also averred that petitioner “was fully aware and informed of the terms of the plea agreement and potential sentence when he elected plea rather than trial.” Resp. Exh. 123.
At the evidentiary hearing on petitioner's PCR claims, petitioner declined the option to testify. Resp. Exh. 124, pp. 5-7. After considering the evidence and the arguments from counsel, the PCR trial judge denied relief, explaining his decision as follows:
I had sworn testimony from [petitioner's trial counsel] that she had discussed the plea offer; that she had discussed the issue of open sentencing; that she had discussed the conditional plea with [petitioner].
And as I read the . . . petition, he says that he was not aware that the sentences were going to run consecutive, and he was not aware that he was going to give up his right of appeal. [Trial counsel] clearly says she talked to him about that.
I note when the - in fact, she says, “Well, we're going to plead to the one case and get 75 months. And then the other case that had two victims was going to be open sentencing.”
And I note at the plea . . . hearing . . . the judge said, “Okay. So, there's no agreement also as to how that charge is going to operate, whether it's going to be concurrent or consecutive to the open sentencing case. Do you understand that?” And [petitioner] said, “Yes.
* * *
[Petitioner] signed the document. The judge asked him if he read it. It clearly says that his appeal rights are affected. And even though there's a human element in when you sign a document, I've still got the document, and it's still signed, and it's still acknowledged in open court to the judge.
And so, on both of these issues, the - the consecutive part and on the conditional plea . . . I find that there is not evidence - well, I'm not convinced that counsel's conduct was unreasonable.
And frankly, I have to make a credibility decision between what the petitioner tells me that he didn't know and what [trial counsel] testified that she told him and talked with him about it; and frankly, she's more credible. At the time of - the motion for withdrawal of the plea, she certainly knew he'd turned her into the Bar.
And she testified, and I find her testimony more credible. And that -that's - that's supported by the statement that the judge made to [petitioner] and the plea petition itself. And so, on that issue, I do not find that counsel's conduct was less than that required of a competent defense attorney. And so that's my ruling on that.
As far as the statute of limitations, boy, I'll tell you what, that - that is one sticky issue.
* * *
The question is whether the statute of limitations ran, period. And - and if there's more than one element to that, so be it. They were all there. And so because of that, I do not feel that there was a tendency to affect the outcome ‘cause I think the motion would have been denied in spite of that.
I think when [petitioner] entered the plea the preponderance of the evidence was that he knew that it was a conditional plea. He clearly knew about conditional pleas. He, in his conversation with the Court before [trial counsel] testified, . . . the DA said, “Well, you know, didn't you discuss the conditional plea with [trial counsel]?”
And he said, “Yeah, we discussed it.” I mean, he - he knew about it. And so I think her rendition of the facts and the fact that it is more credible and I think he enter [sic] the plea knowing that it was a conditional plea. And so, frankly, the statute of limitations argument kind of goes by the wayside.
So because of those reasons, I'm going to deny the petition. I'm not convinced by a preponderance of the evidence what I need to be.Resp. Exh. 124, pp. 17-24.
Petitioner appealed from the denial of his PCR petition. In his counseled brief, he asserted one claim pertinent here, that his attorney was ineffective in failing to ensure that his plea was knowing, intelligent, and voluntary because petitioner thought he was entering into a conditional plea, when he was actually pleading guilty without reserving in writing the right to appeal any pretrial rulings. Resp. Exh. 126. Petitioner filed an Amended Pro Se Supplemental Brief which posed one question: “Is it fair just to give extra life to a crime that will be time barred when time is a material element on the accusatory instrument?” Resp. Exh. 127, p. 1. Petitioner also alluded to counsel's general alleged ineffectiveness but did not articulate that as a second ground or explain in any detail how counsel was allegedly ineffective. Resp. Exh. p. 3.
Petitioner also asserted that the PCR trial court erred in issuing a judgment that did not satisfy the requirements of Oregon law.
On appeal, the parties argued over whether the written transcript of the PCR trial court's oral ruling was accurate or whether it contained a scrivener's error. Specifically, whether that portion of the ruling set forth above where the PCR trial judge stated, “And so I think her rendition of the facts and the fact that it is more credible and I think he enter [sic] the plea knowing that it was a conditional plea” was incorrectly recorded. Resp. Exh. 124, p. 24 (emphasis added). Petitioner argued that the PCR court found petitioner believed he was entering a conditional plea but that, because the plea was in fact unconditional, petitioner entered the plea with a misunderstanding of the consequence of the plea. Resp. Exh. 126, pp. 17-19. In response, the state urged the appellate court to listen to the audio recording of the PCR trial court's oral ruling, which appeared to indicate that the judge actually said that petitioner knew that it wasn't a conditional plea. Resp. Exh. 128, p. 13; see also Resp. Exh. 133 at 1:22:00 -1:22-48, Audio Recording. In the alternative, the state contended that the PCR trial judge simply misspoke, arguing that it defies logic that the judge would credit trial counsel's testimony that she specifically spoke with petitioner about giving up his right to appeal the statute of limitations issue, while also finding that petitioner knew his plea was conditional on him retaining that very right. Resp. Exh. 128, p. 14. The Oregon Court of Appeals affirmed the PCR court decision without opinion. Banks v. Myrick, 285 Or.App. 343 (2017).
Petitioner then sought review. In his counseled petition for review, he renewed his assertion that counsel was ineffective in failing to ensure petitioner's plea was knowing, intelligent, and voluntary, when petitioner believed he was entering into a conditional plea, but in fact was not. Resp. Exh. 129, p. 9. Petitioner filed a Pro Se Supplemental Petition for Review presenting two questions:
Is it fair and just to prosecute criminal charges that are time-barred presented beyond the statute of limitation without an unreasonable delay, when the “cause of action” arises when the crime is committed, or “reported”?
Did the court err and abuse its discretion in violation of petitioner[‘]s constitutional rights when it failed to make findings on trial counsel[‘]s performance and tactical decisions to not preserve and prepare for trial and appeal, abandoning petitioner with the burden of ironing out a procedure that caused a conflict of interest?Resp. Exh. 130, pp. 4-5. The Oregon Supreme Court denied review. Banks v. Myrick, 362 Or. 94 (2017).
Petitioner filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court on December 18, 2017. The court appointed counsel, who filed a First Amended Petition for Writ of Habeas Corpus alleging the following grounds for relief:
Ground One: Trial counsel rendered ineffective assistance of counsel in three respects: (A) counsel failed to move to dismiss Case No. 120934136 as beyond the application limitation period and on ex post facto grounds; (B) counsel failed to adequately investigate whether the charged offenses in Case No. 120934136 were reported sufficiently early to require dismissal on the ground that the prosecution was commenced after the limitation period had already run; and (C) counsel failed to adequately advise petitioner regarding the consequences of a guilty plea, namely that petitioner was unaware that (a) by entering the plea he was foregoing his right to appeal the trial court's adverse ruling on his motion to dismiss on statute of limitations grounds, and (b) that the court require that he serve his sentence on each count in each case consecutively to any or all of the sentences on the remaining counts.
Ground Two: Petitioner's guilty plea in Case No. 120934136 and his no contest plea in Case No. 120331003 were entered involuntarily, unknowingly, and unintelligently in violation of his right to due process because neither trial counsel nor the court advised petitioner that he would be foregoing his right to appeal the denial of his motion to dismiss or that the court could impose consecutive sentences.
Ground Three: Petitioner's conviction in Case No. 120934136 violates right to be free the imposition of an ex post facto law as guaranteed under Article 1, Section 10, Clause 1 of the United States Constitution.ECF No. 35.
In his brief in support of his petition, petitioner addresses only the claims alleged in parts (A) and (C) of Ground One. Respondent contends that petitioner procedurally defaulted the claim alleged in part (A), and that the PCR court decision denying relief on the claim alleged in part (C) is entitled to deference. In reply, petitioner argues alternatively that he did in fact fully exhaust the claim alleged in part (A) or, that if the claim is procedurally defaulted, he can establish cause and prejudice to excuse the procedural default under Martinez v. Ryan, 132 S.Ct. 1309 (2012). Finally, respondent contends petitioner is not entitled to relief on the claims alleged but not addressed in his brief in support.
DISCUSSION
I. Ineffective Assistance for Failure to Adequately Advise Petitioner Regarding the Consequences of his Plea Agreement
Petitioner contends trial counsel was ineffective in failing to inform him that, by pleading guilty, he would forfeit the right to appeal the denial of his motion to dismiss on statute of limitations grounds. Respondent argues that petitioner is not entitled to relief on the merits of this claim.
An application for a writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;” or (2) “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). A state court decision is ”contrary to . . . clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant relief “if the state identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. The “unreasonable application” clause requires the state court decision to be more than incorrect or erroneous. Id. at 410. Section 2254(d)(1) “preserves authority to issue the writ in cases where there is no possibility fair-minded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents. It goes no further.” Harrington v. Richter, 562 U.S. 86, 102 (2011).
In assessing claims of ineffective assistance of counsel, the Court uses the general two-part test established by the Supreme Court. Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). First, a petitioner must show that his counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 686-87 (1984). Due to the difficulties in evaluating counsel's performance, courts must indulge a strong presumption that the conduct falls within the “wide range of reasonable professional assistance.” Id. at 689.
Second, a petitioner must show that counsel's performance prejudiced the defense. The appropriate test for prejudice is whether the petitioner can show “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. In the context of a guilty plea, when a defendant enters his plea on the advise of counsel, to satisfy the prejudice requirement, “the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 58-59 (1985).
While the Supreme Court established in Strickland the legal principles that govern claims of ineffective assistance of counsel, it is not the role of the federal habeas court to evaluate whether counsel's performance fell below the Strickland standards Harrington, 562 U.S. at 101. Rather, when considering an ineffective assistance of counsel claim on federal habeas review, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable.” Id. As the Supreme Court explained in Harrington, “[a] state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Id.
Here, not one, but two state court proceedings explicitly found that trial counsel informed petitioner that he could not appeal the statute of limitations ruling when he agreed to plead guilty and that he faced the potential of consecutive sentences. After he entered his plea but prior to sentencing, petitioner moved to withdraw his plea on the basis that counsel did not inform him he could not appeal the denial of his motion to dismiss or that he faced the possibility of consecutive sentences. The criminal trial judge conducted an evidentiary hearing on petitioner's motion to withdraw his plea during which the judge heard testimony from petitioner and from his prior attorney. As noted above, petitioner's prior attorney testified that she informed petitioner of the possibility of consecutive sentences and that by accepting the plea he would relinquish his right to appeal the denial of his motion to dismiss. The trial judge denied petitioner's motion to withdraw his plea agreement, finding that petitioner was fully advised of all possible consequences of the agreement and that petitioner's testimony to the contrary was not credible.
When petitioner raised his claim of ineffective assistance to the PCR court, the PCR trial judge likewise found that trial counsel told petitioner both that the plea agreement precluded an appeal on the statute of limitations issue and that consecutive sentences were possible. Those findings are supported by the record and entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). The PCR court's conclusion that counsel's assistance did not fall below an objective standard of reasonableness was not contrary to or an unreasonable application of Strickland. Accordingly, petitioner has not established he is entitled to habeas corpus relief in this Court on his claim that counsel failed to advise him of the consequences of his plea agreement.
Because petitioner has not established that his criminal trial attorney's representation fell below an objective standard of reasonableness, the Court need not determine whether petitioner could establish a reasonable probability that, but for counsel's alleged unprofessional errors, the result of the proceeding would have been different. See Prescott v. Santoro, 53 F.4th 470, 485 (9th Cir. 2022) (where court found state court could have reasonably decided that counsel did not render ineffective assistance, the court need not address Strickland's second prong regarding whether petitioner was prejudiced by his attorney's allegedly deficient performance).
II. Ineffective Assistance for Failure to Move to Dismiss Case No. 120934136 as Beyond the Applicable Limitation Period and on Ex Post Facto Grounds
Petitioner alleges trial counsel was ineffective in failing to move to dismiss Case No. 120934136 as beyond the applicable limitation period and on ex post facto grounds. Specifically, petitioner alleges that while trial counsel did argue that the charges in Case No. 120934136 were outside the 12-year limitation period of the 2006 iteration of Or. Rev. Stat. § 131.125 based on the December 5, 1999, report, she failed to argue that dismissal was required under the 1997 iteration of the statute, which provided for a 6-year limitation period. Further, petitioner alleges, trial counsel failed to argue that the court's reliance on the 2006 iteration of Or. Rev. Stat. 131.125 violated the prohibition against ex post facto laws because that iteration, which was enacted after the expiration of the limitation period under the 1997 iteration, could not be applied to revive the previously time-barred prosecution.
In his Brief in Support, petitioner conceded that he procedurally defaulted this claim, but argued that the procedural default should be excused under Martinez v. Ryan, 566 U.S. 1 (2012). In response to this argument, respondent contends that the procedural default cannot be excused under Martinez because the default occurred at the appellate level of petitioner's state PCR proceeding. In his sur-reply, petitioner changes course, arguing first that the claim was fairly presented and fully exhausted through the PCR trial and appellate stages and then, in the alternative, reiterating the argument that the procedural default occurred at the PCR trial stage, and should be excused under Martinez. Rather than parse out the contradictory and convoluted procedural-default/cause-and-prejudice issues because it is apparent petitioner is not entitled to relief on the merits of this claim, and in the interest of judicial economy, the Court declines to address the procedural default arguments. See 28 U.S.C. § 2254(b)(2) (“[a]n application for writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State”); Runningeagle v. Ryan, 686 F.3d 758, 778 n.10 (9th Cir. 2012) (exercising discretion afforded under § 2254(b)(2) to decline to address procedural default issue where relief denied on the merits); Fairley v. Bowser, Case No. 2:17-cv-02016-JR, 2022 WL 18231560, at *13 n.6 (D. Or. June 14, 2022).
As noted, the trial court denied petitioner's motion to dismiss Case No. 120934136 on statute of limitations grounds. Although trial counsel argued, and the trial court applied, the 12-year limitation period set forth in the 2006 iteration of Or. Rev. Stat. § 131.125, petitioner cannot establish that the outcome of the motion would have been different had trial counsel based her argument on the 6-year limitation period set forth in the 1997 iteration of the statute, or on the argument that application of the 2006 iteration violated petitioner's rights under the ex post facto clause. In denying the motion to dismiss, the trial judge found the December 5, 1999, report did not trigger the limitation period; instead, the court found the statute of limitations did not begin to run until 2012, when petitioner's DNA was matched. Resp. Exh. 107, p. 18. That decision, regarding the application of Oregon state law, is not subject to this Court's review. See Waddington v. Sarausad, 555 U.S. 179, 192 n.2 (2009) (“we have repeatedly held that ‘it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions'”) (quoting Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)).
Moreover, at the PCR evidentiary hearing in the context of the discussion of the 6-year versus 12-year limitation period, the PCR trial judge noted that counsel's argument presupposed a finding that the 1991 report did trigger the limitation “as opposed to what the Court ruled.” Resp. Exh. 124, p. 13. The PCR trial judge agreed with the criminal trial court's ruling as to when the limitation period commenced, finding that the alternative argument would not have succeeded because: “was there a tendency to affect the result, if the ruling was wrong, clearly there was. But I don't think the ruling was wrong. I think the ruling was correct and I guess I disagree.” Resp. Exh. 124, p. 21 (emphasis supplied).
In light of the criminal trial judge's ruling that the December 1999 report did not trigger the statute of limitations, and instead the 2012 DNA match was the trigger, the PCR court's conclusion that petitioner could not establish that the outcome of his motion to dismiss would have been different was not contrary to or an unreasonable application of the prejudice element of a Strickland claim. Accordingly, petitioner is not entitled to relief on this ineffective assistance of counsel claim.
III. Remaining Claims for Relief
In addition to the two claims addressed above, petitioner alleges trial counsel was ineffective in failing to conduct adequate investigation to acquire additional extra-record evidence showing that the charged offenses were reported outside the limitation period, that his pleas were entered involuntarily, unknowingly, and unintelligently in violation of his due process rights under the Fourteenth Amendment, and that his conviction in Case No. 120934136 violated his rights under the Ex Post Facto Clause. As noted, petitioner declined to address these claims in his briefing to the Court. As such, petitioner has not met his burden of demonstrating he is entitled to relief on these claims. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (recognizing that a habeas petitioner bears the burden of proof; Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004) (petitioner bears the burden of proving he is entitled to habeas relief). In any event, upon a thorough review of the record, the Court finds all three remaining claims for relief are procedurally defaulted. The two trial court error claims were not raised on direct appeal, and this particular ineffective assistance of counsel claim was not asserted in the state PCR proceedings. Because petitioner has not established cause and prejudice or a fundamental miscarriage of justice to excuse his procedural default, he is not entitled to habeas corpus relief in this court.
CONCLUSION
For the reasons stated above, the Court should DENY the Amended Petition for Writ of Habeas Corpus and should enter a judgment dismissing this action and denying a certificate of appealability. 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 fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues 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 this recommendation.