Opinion
Civil No. 99-500-HA
January 4, 2001
Dennis N. Balske, Assistant Federal Public Defender Portland, OR, for Petitioner.
Douglas Y.S. Park, Assistant Oregon Attorney General, Salem, OR, for Respondent.
OPINION AND ORDER
I. Introduction.
In 1994, White was convicted of murder and aggravated murder for killing an elderly couple while they slept in their home. White, who was sixteen-years-old at the time of his conviction, was tried as an adult. The trial court sentenced White to 800 months imprisonment for the murder charge. White has filed a petition seeking habeas-corpus relief from this court, and respondent has filed a motion to deny the petition. After appointment of counsel, White elected to proceed solely on the basis of two claims: (1) his trial counsel rendered ineffective assistance by failing to adequately object to the trial court's 800-month prison sentence, which White maintains violated Article I, Section 16 of the Oregon Constitution's limitations on the lengths of sentences for juveniles; and (2) trial counsel rendered ineffective assistance by failing to adequately object to the court's upward departure which was based, in part, on the failure of earlier detention and incarceration measures when in fact White had never been previously incarcerated but only sentenced to suspended commitments at a juvenile facility. White's first claim is supported to some extent by State v. Davilla, 157 Or. App. 639, 972 P.2d 902 (1998), in which the Oregon Court of Appeals held that under the state law effective at the time, a juvenile could not be sentenced to an indeterminate sentence of life imprisonment. Because the court finds, however, that White's claims are barred by a procedural default, his petition must be denied.
II. Procedural Background.
Pursuant to a stipulated-facts trial, the Circuit Court of Marion County, Oregon convicted White of aggravated murder and murder. The court sentenced White to life imprisonment on the aggravated murder charge and, based on several aggravating circumstances, also sentenced White to 800 months imprisonment for the murder conviction. The 800-month sentence for murder was to run concurrently to the sentence for aggravated murder. White's counsel made a general objection to the sentence, but did not make specific objections. On direct appeal, White argues, in part, that his 800-month murder sentence exceeded that which was permissible for a juvenile under Oregon law. In response, the state maintained that the general objection did not properly preserve the issue for appeal. The Oregon Court of Appeals affirmed the conviction and sentence without opinion in State v. White, 139 Or. App.136, 911 P.2d 1287 (1996). Petitioner then filed a motion for post-conviction relief, which the state trial court denied.
The Court of Appeals affirmed without opinion in White v. Thompson, 157 Or. App. 723, 972 P.2d 1231 (1998), and the Oregon Supreme Court denied review in White v. Thompson, 328 Or. 293, 977 P.2d 1174 (1999).
III. Discussion.
In order for a federal court to consider a claim that an aspect of a state conviction violated federal law, the claim must be exhausted. Castille v. Peoples, 489 U.S. 346, 349; Rose v. Lundy, 455 U.S. 509, 518 (1982). The exhaustion requirement is satisfied (1) where the petitioner "fairly presented" his claim to the highest state court or (2) where the petitioner failed to fairly present his claim to the highest state court and is without an available state procedure by which to do so. Coleman v. Thompson, 501 U.S. 722, 732 (1991); Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 276-78 (1971). The exhaustion requirement is "designed to give the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picard, 404 U.S. at 512. As a result, a claim has been "fairly presented" to the state's highest court only where the petitioner has described the operative facts and legal theory on which his claim is based. Tamapua v. Shimoda, 796 F.2d 261, 262 (9th Cir. 1986); see also Anderson v. Harless, 459 U.S. 4, 6 (1982) (habeas petitioner must have "fairly presented" to the state courts the "substance" of his federal claim); Morris v. Norris, 83 F.3d 268, 270 (8th Cir. 1986) ("To avoid a procedural default, the habeas petitioner must fairly present his claim to the state court[;] that is, he must present the same facts and legal theories to the state court that he later presents to the federal courts.")
As noted above, White alleges that (1) his trial counsel rendered ineffective assistance by failing to adequately object to the trial court's 800-month prison sentence, which White maintains violated Article I, Section 16 of the Oregon Constitution's limitations on the lengths of sentences for juveniles, and (2) counsel rendered ineffective assistance by failing to adequately object to the court's upward departure which was based, in part, on the failure of earlier detention and incarceration measures when in fact White had never been previously incarcerated but only sentenced to suspended commitments at a juvenile facility.
This court finds that White failed to fairly present either claim to the Oregon Court of Appeals or the Oregon Supreme Court when White appealed the denial of his motion for post-conviction relief. The sole extent of White's presentation of these claims occurred in one obscure sentence in his eighteen page brief to the Court of Appeals in a list of alleged attorney deficiencies. White asserted that "trial counsel failed to . . . (4) make appropriate motions and objections in order to preserve issues for appeal later." (See State Ex. 122 at 2.) However, White failed to specify, in any way, what objections counsel had failed to preserve for appeal. Nor did he mention Article I, Section 16 of the Oregon Constitution or any cases cited thereunder. Further, he did not argue that his sentence exceeded any limits placed on the sentencing of juveniles. As for his second claim, White did not provide the appellate court with any facts suggesting that the court's upward departure was invalid because it was based, in part, on the failure of earlier detention and incarceration measures when White had only been sentenced to suspended commitments and not actually incarcerated. (See id.) Finally, White's petition for Supreme Court review does not even contain the vague sentence quoted above from his brief to the Court of Appeals. (See State Exhibit 124 at 3.)
In order to avoid the procedural default, White argues that because the state maintained on his direct appeal that his counsel had failed to adequately object to the imposition of his 800-month sentence, the Oregon courts, on reviewing the denial of his post-conviction motion, must have known what White's general reference to counsel's failure to preserve motions and objections meant. As noted above, however, neither the substance, the operative facts, nor the legal theory behind White's claims were raised in his appellate brief or petition for review. That the Oregon appellate courts could have deciphered the nature of White's claims by linking one vague sentence in an eighteen-page brief with a position the state took on appeal two years earlier in a brief in opposition to White's direct appeal is untenable. It was White's duty to articulate his claims in a manner in which the Oregon appellate courts could understand them; it was not the appellate court's duty to scour the record for claims White did not raise in his briefs appealing the denial of his motion for post-conviction relief. Tamapua, 796 F.2d at 262; Anderson, 459 U.S. at 6; Morris, 83 F.3d at 270. White's claims were not presented in a manner in which the Oregon appellate courts would have had an opportunity to review them. See Picard, 404 U.S. at 512 (state courts must be given an "opportunity to pass upon and correct alleged violations of its prisoners' federal rights."). Thus, his claims were not were not fairly presented. Procedural default occurs when a habeas petitioner fails to raise federal claims in the state courts, and as a result, he is now barred from doing so. See Wainwright v. Sykes, 433 U.S. 72, 81-89 (1977). ORS 138.550 provides that a petitioner may not file grounds for post-conviction relief that could have been asserted in a previous petition. As a result, White's claims have been procedurally defaulted. Before this court may consider a procedurally defaulted claim, the habeas petitioner must excuse the default. To excuse a procedural default the petitioner must demonstrate "cause" for the default and "prejudice" resulting therefrom. Wainwright v. Sykes, 433 U.S. 72 (1977). The existence of "cause" sufficient to excuse a procedural default "must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Coleman v. Thompson, 501 U.S. 722, 753 (1991). "Prejudice" requires a showing that the failure to raise the defaulted claims worked to petitioner's "actual and substantial disadvantage, infecting the entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1992). A further exception to the cause and prejudice requirement exists in those rare cases where a habeas petitioner presents evidence that his continued incarceration would be a "fundamental miscarriage of justice" because he is actually innocent of the crime. See Schlup v. Delo, 115 S.Ct. 851, 864 (1995). If the procedural default is not excused, a federal court may not consider the claim. Coleman, supra; Murray, supra; Wainwright; supra; Morris, supra.
White was represented by different counsel on his post-conviction motion.
White has failed to allege any grounds suggesting that he can show cause or prejudice for his failure to assert his claims on appeal. In addition, White does not suggest, nor can he show, that he was actually innocent of the crimes for which he was convicted. As a result, White's procedural default has not been excused, and this federal court may not consider his claims.
IV. Conclusion.
Therefore, respondent's motion to deny the habeas petition, (doc. 27), is granted. The petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, (doc. 2), is denied. This action is dismissed with prejudice pursuant to the judgment concurrently entered.
IT IS SO ORDERED.