Opinion
Civil No. 02-704-CO.
August 24, 2004
FINDINGS AND RECOMMENDATION
Petitioner is in the custody of the Oregon Department of Corrections pursuant to the Judgment of Conviction and Sentence, dated June 8, 1993, from Clackamas County Circuit Court Case No. 92-2099, after pleading guilty to Kidnaping in the First Degree, Rape in the First Degree, Robbery in the First Degree, and Assault in the First Degree. The trial court sentenced petitioner to a total of 480 months' imprisonment.
The relevant facts of petitioner's crimes are particularly horrific and need not be repeated here. The facts are detailed in the pre-sentence investigation report. See, Exhibits to Answer (#23), Exhibit 114.
Petitioner directly appealed his sentences, but the Oregon Court of Appeals affirmed without opinion, State v. Burchett, 139 Or. App. 600 (1996), and the Oregon Supreme Court denied review, 323 Or. 483 (1996).
Petitioner filed a petition for post-conviction relief in Malhuer County Circuit Court Case No. 96-12-28416-M. Venue was changed to Umatilla County, and the case proceeded as Umatilla County Case No. CV 97-0669. The post-conviction court denied relief. Petitioner appealed, but the Oregon Court of Appeals affirmed without opinion, Burchett v. Hill, 173 Or. App (2001), and the Oregon Supreme Court denied review, 332 Or. 632 (2001).
Petitioner filed a pro se petition for habeas corpus relief under 28 U.S.C. § 2254 alleging five grounds for relief. Grounds one through four are issues solely of state sentencing law. Ground five alleges ineffective assistance of counsel.
Petitioner was subsequently appointed counsel. Petitioner's Memorandum in support of Habeas Corpus Relief (#38), states "By the time he unsuccessfully petitioned for review of the post-conviction court's denial of his petition, Mr. Burchett's only asserted claim was ineffective assistance of counsel by virtue of counsel's failure to object to an upward departure sentence on the assault conviction based upon the use of a weapon, which was an element of the first degree assault charge. . . . In this case, Mr. Burchett pursues this properly exhausted claim."
This characterization of the only properly exhausted claim is more limited than counsels statement of the "Argument" on page four of the Memorandum in support of Habeas Corpus Relief (#38) which argues that other alleged elements of the first degree assault charge (permanent injury, deliberate cruelty and significantly greater harm than typical) were also improperly used to enhance petitioner's sentence.
Based on counsel's statement of the issue before the court and failure to offer any argument in support of the claims, I deem the sentencing issues alleged in petitioner's pro se petition (Grounds one through four) abandoned. In any event, issues of state sentencing law are not cognizable in a federal habeas corpus proceeding.
Federal courts may intervene in state judicial processes only to correct wrongs of federal constitutional dimension.Wainwright v. Goode, 464 U.S. 78, 83 (1993) (citing Engle v. Isaac, 456 U.S. 107 (1982)); see also, Quiroz v. Wawrzaszek, 749 F.2d 1375, 1377 (9th Cir. 1984) (overruled on other grounds by Adams v. Peterson, 968 F,2d 835, 841 (1992) (a judge's failure to follow state procedure is not a ground for federal habeas corpus relief). It is well established that "federal habeas corpus relief does not lie for errors of state law."Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A federal habeas corpus court does not reexamine state-court determinations on state-law questions. Id.
The construction of state law is for the state courts, who are the ultimate expositors of state law. Peltier v. Wright, 15 F.3d 860, 862 (9th Cir. 1994). The views of a state's highest court with respect to state law are binding on the federal courts. Wainwright, supra, 464 U.S. at 84. Even if the state-court decision is wrong in its construction or application of state law, the federal constitution is not by that fact implicated. Engle, supra, 456 U.S. at 120-21. Sentencing is a question of state law, and a reviewing federal court is bound by the state court's interpretation of its own sentencing scheme.Peltier, supra, 15 F.3d at 861. State law error in sentencing rises to the level of a due process violation only if the sentence is arbitrary and capricious. Richmond v. Lewis, 506 U.S. 40, 50 (1992). Absent a showing of fundamental fairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief. Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994). Federal courts are bound by the state's construction of sentencing statutes except where the interpretation is "an obvious subterfuge to evade the consideration of a federal issue. Id., (citing Mulaney v. Wilber, 421 U.S. 684, 691 (1975).
Petitioner has not alleged any facts that would establish that the alleged sentencing errors resulted in a sentence that is arbitrary and capricious or is fundamentally unfair.
Thus to the extent grounds one through four may be construed as properly before the court they should be denied on the ground that they are not cognizable under 28 U.S.C. § 2254.
Ground Five of petitioner's pro se petition alleges: "The post-conviction court erred in denying petitioner's claim that he was deprived of effective assistance of counsel when his attorney failed to object to the basis upon the sentencing court imposed upward departure sentences. Petitioner's trial counsel was ineffective in violation of the Sixth and Fourteenth Amendments to the United States Constitution. Trial counsel failed to object to the illegal consecutive sentences, the illegal departure sentences and the Rape I charge being wrongly subcategorized." (sic)
As noted above, recognizing petitioner's failure to exhaust his other ineffective of counsel claims, counsel for petitioner characterizes the ineffective assistance of counsel claim as follows: "Mr. Burchett's Sixth Amendment right to the effective assistance of counsel was denied when counsel failed to object to an upward departure sentence predicated upon an aggravating factor encompassed in the elements of the crime of First Degree Assault." Memorandum in Support of Habeas Corpus Relief (#38).
Based on the record and upon counsel's acknowledgment, I find that ineffective assistance of counsel based on counsel's failure to object to the upward departure predicated upon aggravating factors encompassed in the elements of the crime of First Degree Assault is the only issue properly before the court.
Respondent argues that the post-conviction court's disposition of the ineffective assistance claim is entitled to deference, and it factual findings presumed correct.
Under the Antiterrorism and Effective Death penalty Act of 1996 (AEDPA), "a determination of a factual issue made by a state court shall be presumed correct" unless the petitioner rebuts the presumption of correctness "by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Solis v. Garcia, 219 F.3d 922, 926 (9th Cir. 2000). Further, habeas corpus relief may not be granted on any claim that was adjudicated on the merits in state court, unless the adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly 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).
Petitioner argued in his post-conviction proceeding that his sentences were improper because (1) the sentencing court failed to make requisite findings under ORS 137.123, (2) the findings the court did make were unsupported by the evidence, (3) each count was "incidental" to the other, (4) the court did not connect the aggravating factors with each sentence, (5) some of the factors duplicated elements of the underlying offense, and (6) the same factors were used to impose consecutive sentences and departure sentences. Exhibits to Answer (#23) Exhibit 112 at p. 2-7 and Exhibit 121 at p. 4-7.
The post-conviction found that "petitioner identified nothing in the sentence imposed that is unauthorized by law," and that "[t]rial counsel had no legitimate grounds on which to object to petitioner's consecutive or departure sentences." Exhibits to Answer (#23) Exhibit 123, p. 5. The court further found that "petitioner was not denied the right to assistance of counsel, as guaranteed by either the United States Constitution or the Constitution of the State of Oregon. Id.
The post-conviction court's finding that the sentences were authorized by law is a state law finding and binding on the federal court. See, Peltier v. Wright, 15 F.3d 860 (9th Cir. 1992) at p. 861 (a reviewing federal court is bound by the state court's interpretation of its own sentencing scheme). As discussed above, state sentencing law claims are not cognizable in federal habeas corpus proceedings except under certain circumstances not present in this case.
The standard for constitutionally effective counsel under the Sixth Amendment is set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a defendant's claim that counsel was so defective as to require reversal of a conviction has two components. First the defendant must demonstrate that counsels performance was deficient. Second, the defendant must show that the deficient performance prejudiced the defense.Id., at 687. The first component of the Strickland, standard requires the defendant to demonstrate that "counsel's representation fell below an objective standard of reasonableness." Id, at 688. The second component of the standard requires the defendant to demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability "sufficient to undermine confidence in the outcome." Id., at 694.
The Strickland standard was affirmed in Williams v. Taylor 528 U.S. 389 (2000). In Williams, the Court held" "It is past question that the rule set forth in Strickland qualifies as `clearly established Federal law, as determined by the Supreme Court of the United States." 529 U.S. at 391. Thus, pursuant to Williams, a petitioner may be granted federal habeas relief if the decision of the state court was contrary to, or an unreasonable application of Strickland. Id. This is a highly deferential inquiry, in which "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.Bell v. Cone, 535 U.S. 685, 698 (2002) (quoting Strickland, 466 U.S. at 689).
For the reasons set forth below, I find that the post conviction court's finding that the consecutive departure sentences were authorized by state law and properly imposed is binding on this court. I further find that the postconviction court's conclusion that counsel had no legitimate basis for objection and was not constitutionally deficient in his representation of petitioner, is entitled to deference and is correct on the merits.
The authority for the imposition of consecutive sentences is provided in ORS 137.123, which provides in relevant part:
(4) When a defendant has been found guilty of more than one criminal offense arising out of a continuous and uninterrupted course of conduct, the sentences imposed for each resulting conviction shall be concurrent unless the court complies with the procedures set forth in subsection (5) of this section.
(5) The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds:
(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime, but rather was an indication of defendant's willingness to commit more than one criminal offense; or
(b) The criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing greater or qualitatively different harm to the victim or caused or created a risk of causing loss, injury, or harm to a different victim than was caused or threatened by the other offense or offenses committed during a continuous and uninterrupted course of conduct.
A sentencing court is not required to state its reasons for imposing consecutive sentences or make special findings on the record after it finds that consecutive sentences are authorized.State v. Racicot, 106 Or. App. 557 (1991). A determination of whether an offense was not merely incidental to a more serious offense or whether an offense is qualitatively different may require a sentencing court to "choose between competing versions of the facts or to make a qualitative judgment about the relative seriousness of facts or circumstances." Id. at p. 561; see also, Smith v. Maass, 110 Or. App. 554, 557, rev. denied, 313 Or. 210 (1992), and State v. Dickerson, 112 Or. App. 51, rev. denied 313 Or. 627 (1992).
Departure sentences are authorized by ORS 137.671(1), which allows a sentencing court to impose a departure sentence if it finds there are "substantial and compelling reasons justifying a deviation from the presumptive sentence." When imposing a departure sentence, ORS 137.671(2) requires the court to state its reasons. OAR 213-008-0002(1)(b) provides a nonexclusive list of aggravating factors. State v. Orsi, 108 Or. App. 176 (1991). Those factors include (1) deliberate cruelty, (2) threat of actual violence, (3) use of a weapon, (4) permanent injury to the victim, and (5) harm or loss significantly greater than typical. A sentencing court has "broad discretion" in determining what circumstances warrant imposition of departure sentences. State v. Clark, 113 Or. App. 692 (1992). Only one aggravating factor is required for departure. State v. Williams, 131 Or. App. 85, 87, adhered to on recon., 133 Or. App 191 (1994), rev. denied, 321 Or. 512 (1995).
In State v. Davis, 315 Or. 484, n. 15 (1993) the court noted: A departure sentence may be imposed `only if the judge finds substantial and compelling reasons to impose a departure sentence for any individual offense being sentenced consecutively.' The Commentary to [Or. Admin. R. 253-08-007] adds that `[t]he grounds for departure should specifically apply to the offense for which the departure sentence is to be imposed. (emphasis in original).
Petitioner argues:
The sentencing judge did not link the aggravating factors purportedly justifying the upward departure sentences to the specific counts. Ex. 105 at 80-81. This was error. Davis, 315 Or. at 484 n. 15. Defense counsel did not object.
The judge did, however, announce several aggravating circumstances: deliberate cruelty; actual violence; use of a weapon; permanent injury; and significantly greater harm than typical. Ex. 105 at 80-81. As the judge doubtless would have discovered had he complied with state law — by linking the purported factors to given counts — none of these properly applied to the assault count, because each duplicates elements of the offense.
Memorandum in Support of Habeas Corpus Relief (#38) p. 5.
Petitioner's argument that the sentencing court did not "link" an aggravating factor to his conviction for assault is not supported by the record.
At sentencing, the prosecutor asked the court to "make a . . . finding that any one of the listed aggravating factors . . . is sufficient to support a departure in each of the cases. Exhibits to Answer (#23), p. 68.
In sentencing petitioner, the court found that there were "numerous aggravating factors" including "deliberate cruelty to the victim, actual violence towards the victim, use of a weapon in committing the offense which resulted in permanent injury, and a degree of harm that is significantly greater than typical for the offense. Exhibits to Answer (23) Exhibit 105 at p. 81. The court further found: "I have found these aggravating factors that apply in all aspects of each of these each." Id. In sentencing plaintiff on the assault in the first degree charge, the judge specifically found that petitioner's conduct "caused and created a risk of causing a greater or qualitative different loss and harm to the victim. Id., p. 82.
In view of the prosecutors request, the judge's statement that the specifically enunciated aggravating factors "apply in all aspects of each of these" indicates a clear intent to apply each of the aggravating factors to each of the counts charged. In addition, the specific finding as to the first degree assault charge that petitioner's conduct "caused and created a risk of causing a greater or qualitative different loss and harm to the victim" is substantially identical to a finding that "the degree of harm is significantly greater than typical for this offense."
Thus, not only did the judge generally apply each of the aggravating factors to each of the counts, he made a specific finding of significantly greater than typical harm as to the first degree assault charge.
Petitioner also argues that the upward departure was unlawful because the aggravating factors of "deliberate cruelty," "significantly greater harm than typical," and "permanent injury" are "encompassed by the elements" of assault in the first degree. Memorandum in Support of Habeas Corpus Relief (#38), p. 5. I disagree.
Assault in the first degree is defined in ORS 163.185 as follows: "A person commits the crime of assault in the first degree if the person intentionally causes serious physical injury to another by means of a deadly or dangerous weapon."
Even if "permanent injury" may be construed as "encompassed" by the elements of first degree assault [and I find it is not], deliberate cruelty and significantly greater than typical harm clearly are not.
Deliberate cruelty is not defined by Oregon statute or case law. However, Oregon courts have held that words of common usage "should be given their plain, natural and ordinary meaning."P.G.E. v. Bureau pf Labor and Industry, 317 Or. 606, 611 (1993). In determining what the plain, natural, and ordinary meaning of a word is, Oregon courts consider the terms dictionary definition. See, Kahn v. Providence Health Plan, 335 Or. 460 (2003) (where statute does not provide definition, court assumes the "legislature intended that it be understood in the ordinary dictionary sense"). "Cruelty is defined in the dictionary as "something that causes pain or suffering." American Heritage College Dictionary (3rd Ed. 1993). Websters's New World Dictionary (3rd. Edition) defines cruel as "deliberately seeking to inflict pain and suffering; enjoying other's suffering; without mercy or pity." Cruelty is defined as "willful infliction of physical pain or suffering upon a person or animal, or of mental distress upon a person."
Pain and suffering, enjoying other's pain or suffering without mercy and the infliction of mental distress are not elements of assault in the first degree. They may be incidental to serious physical injury, but they are not necessary for conviction.
Petitioner struck the victim in the face with a crow bar, breaking her jaw in several places. Exhibits to Answer (#23), Exhibit 114 at p. 6. That act was sufficient to convict him of assault in the first degree. However, the violence did not end there. After breaking her jaw, petitioner stuffed the victim in the trunk of his car, preventing her from getting medical help for her injuries and told the victim that he intended to murder her. Id. at p. 9. As a result of her injuries, the victim swallowed and vomited blood, and almost bled to death. Id., p. 6-7. Moreover, petitioner brutally raped and sodomized the victim for a "long period of time" while she was "bleeding profusely from the face." Id., p. 6. These are acts of deliberate cruelty not encompassed in the elements of first degree assault. Petitioner's actions were barbaric and inhumane and far exceeded what was necessary to convict him of assault in the first degree.
I agree with respondent that petitioner's actions could be characterized as torture, i.e., the "intent to inflict intense physical pain.
Petitioner also argues "significantly greater harm than typical" was not a proper aggravating factor because "the judge did not explain how the harm from this assault with a metal bar was significantly greater than in other assaults. Every first degree assault requires an injury that is either life-threatening, permanently disfiguring, or results in the loss of function of a bodily organ. . . . The blow Mr. Burchett struck, which broke the victim's jaw, is simply no worse that the injury element of first degree assault." Memorandum in Support of Habeas Corpus Relief (#38) p. 6.
The victim's injuries in this case, however, were especially severe and permanent. The victim's jaw was misaligned and her teeth did not meet; the joints popped out of their sockets; she had scarring where she jumped out of the car; and she had scarring on her head where the hair would not grow back.
The victim's injuries are described in more graphic detail in Exhibits to Answer (#23), Exhibit 114 at p. 8.
In addition, the record reflects that the victim also suffered severe, permanent psychological damage. See, Exhibits to Answer (#23), Exhibit 114, p. 8-9. A "typical" first degree assault does not necessarily result in severe and permanent psychological injury. Therefore, such injury is properly considered "harm or loss significantly greater than typical."
I find that the sentencing judge properly applied the appropriate aggravating factors to each count and specifically applied the greater than typical harm factor to the count of assault in the first degree. I further find that deliberate cruelty, permanent injury and significantly greater harm than typical are not encompassed within the elements of assault in the first degree. Assuming arguendo that a tortured construction of permanent injury can render that factor as arguably within the elements of assault in the first degree, deliberate cruelty and significantly greater than typical harm are not. As noted above, it is only necessary to apply one aggravating factor to justify a departure sentence.
Arguably, "significantly greater than typical harm" is by definition not encompassed within the defining elements or meaning of a "typical" assault in the first degree.
In summary, I find that the only issue properly before the court in this proceeding is petitioner's claim that he was denied his Sixth Amendment right to effective assistance of counsel when counsel failed to object to an upward departure sentence predicated upon aggravating factors encompasses in the elements of the crime of first degree assault. The postconviction court's finding that the sentences were properly imposed and authorized by state law is a state law finding and is binding on this court. The post-conviction court's finding that petitioner was not denied his Sixth Amendment right to effective assistance of counsel is entitled to deference.
I further find, based on my independent de novo review of the record before the court, that petitioner's sentence was authorized under Oregon law and properly imposed. The sentencing judge made that appropriate finding that the aggravating factors generally applied to each of the counts and also made a specific finding that the significantly greater than typical harm factor applied to the first degree assault count at issue in this proceeding. I further find that the aggravating factors of deliberate cruelty, permanent injury and significantly greater than typical harm are not encompassed in the elements of assault in the first degree. Therefore, petitioner's counsel had no legitimate basis to object to the properly imposed upward departure sentences and was not ineffective for failing to do so. Petitioner's Sixth Amendment right to effective counsel was not violated.
Petitioner's Petition for Habeas Corpus Relief (#2) should be denied. This proceeding should be dismissed.
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 with the court. Thereafter, the parties have ten (10) days within which to file a response to the 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 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 the Magistrate Judge's recommendation.