Opinion
Civil No. 02-1103-HO.
June 23, 2004
ORDER
Before the court is a petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254.
Factual Background
On May 27, 1994, in the Circuit Court for the State of Oregon for Lane County, petitioner entered guilty pleas to counts five and six of the indictment in case number 10-94-00808, charging convicted felon in possession of a firearm and theft in the first degree, respectively, and to count two of the indictment in case number 10-94-03778, charging tampering with a witness. Petitioner entered the pleas pursuant to an agreement that sentences imposed in the two cases would run concurrently and counts one through four in 00808 and count one in 03778 would be dismissed. Exs. 104, 105. Petitioner and respondent dispute other alleged terms of the agreement. The indictment in 00808 was severed, and petitioner went to trial on counts seven, eight and nine. Petitioner refers to this trial as the "robbery trial." Petitioner was sentenced on counts five and six of 00808, and count two of 03778 prior to the robbery trial. The robbery trial resulted in convictions on the severed counts. The results of the robbery trial are the subject of another federal habeas corpus proceeding in this court. See Woodroffe v. Lampert, Civil No. 02-707-BR (D.Or.).
Discussion
The petition alleges the following four grounds for relief. First, the state breached provisions of the plea agreement requiring that petitioner not be sentenced on the charges to which he pleaded guilty until after the robbery trial. Second, the prosecutor engaged in misconduct in threatening a "harder sentence" if petitioner did not cooperate, and in failing to uphold the state's agreement that petitioner would be sentenced after the robbery trial. Third, petitioner received an excessive sentence as the result of the failure to delay his sentencing until after the robbery trial, and the state breached its agreement not to seek a departure or consecutive sentences. Finally, petitioner alleges that he received ineffective assistance of counsel when his attorney "failed to object to things or make state keep [its] deal," and when his post conviction attorney failed to enter evidence and transcripts for hearing. Pet. at 5-6. Petitioner does not address all four grounds in his memorandum; he argues only that he was deprived of due process when he unknowingly pleaded guilty, and counsel ineffectively handled his sentencing. Pet's Memo. at 7.
Petitioner filed the petition pro se. Thereafter, the court appointed counsel.
In his memorandum, petitioner appears to argue that the agreement was to consolidate sentencing for the charges to which he pleaded guilty with any sentencing hearing that should result from the robbery trial.
Petitioner did not fairly present his claims of prosecutorial misconduct, excessive sentence and ineffective assistance of sentencing council to the Oregon Supreme Court; the time to do so has passed; petitioner does not argue cause and prejudice for his failure to present these claims. Exs. 126, 133; Or.Rev.Stat. § 138.650. These claims are procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991). As there is no constitutional right to counsel in post-conviction proceedings, petitioner cannot establish that the representation provided by his post-conviction attorney was constitutionally deficient.Id. at 752-53.
As to petitioner's claim that the state violated the plea agreement, thus rendering his pleas unknowing and involuntary, this court can grant habeas relief only if the state court's adjudication on the merits resulted in a decision contrary to or involving an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States, or based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(1); Early v. Packer, 537 U.S. 3, 10 (2002). Petitioner contends that under the plea agreement, he was to be sentenced after the robbery trial, and the sentences on counts five and six in case 00808 were to run concurrently. The PCR trial court concluded that the trial court sentenced petitioner properly and in accordance with the plea agreement; the court of appeals affirmed in a one-sentence per curiam opinion; the Oregon Supreme Court denied review. Exs. 136 at 5, 132, 134. The PCR trial court specifically found that the plea agreement contemplated consecutive sentences on counts five and six in possession charges in 00808. Id. at 4, ¶ 8. Respondent argues that the PCR trial court implicitly concluded that the plea agreement did not include an agreement to delay sentencing until after resolution of the robbery trial. Petitioner argues that if this is so and the plea agreement was not breached, it is apparent that petitioner did not knowingly enter his pleas.
At the sentencing hearing, petitioner's attorney recited petitioner's understanding that under the plea agreement, sentences imposed on counts five and six in case 00808 would run concurrently, and would run concurrent with any sentence imposed in case 03778. Ex. 107 at 5. The affidavit of petitioner's sentencing attorney supports this contention. Ex. 114 at 2. However, statements by defense counsel, petitioner and the prosecutor at the change of plea hearing, statements by the prosecutor at the sentencing hearing and affidavits of petitioner's change of plea attorney support the PCR trial court's conclusion that the agreement called for consecutive sentences on counts five and six in case 00808. Exs. 106 at 3-4, 107 at 6, 118, 119. Petitioner concedes that the plea colloquy can fairly be interpreted as indicating that the State would seek a total of fourteen months in case number 00808, a total that indicates consecutive sentences. Pet.'s Memo. at 9; Ex. 106 at 2-3. The PCR trial court did not base its conclusion that the plea agreement permitted consecutive sentences in case 00808 on an unreasonable determination of the facts.
Different attorneys represented petitioner at the change of plea and sentencing hearings.
Petitioner stated at the sentencing hearing that he understood that the negotiations contemplated that sentencing would be "held pending the robbery case . . ." Ex. 107 at 6. The affidavits of counsel and change of plea documents contain no mention of an agreement to delay or consolidate sentencing. Exs. 114, 118, 119. After counsel recited the negotiations and petitioner entered his pleas, defense counsel asked for a sentencing date subsequent to the robbery trial, advising the court, "I think we're in agreement that this sentencing should take place after that." Ex. 106 at 9. The assistant district attorney responded, "Very well. It doesn't matter." Id. To the extent it is implicit in the rulings of the PCR trial court that the plea agreement did not include an agreement to delay sentencing until after petitioner's robbery trial, this conclusion is not based on an unreasonable determination of the facts.
The final issue is whether petitioner's guilty pleas were voluntary and intelligent, so as to not run afoul of due process guarantees, regardless of whether the State breached the plea agreement. See Boykin v. Alabama, 395 U.S. 238, 242 (1969). Petitioner argues that the failure to delay sentencing until after the robbery trial resulted in the loss of credit for time served for sentences resulting from the robbery trial. Petitioner asserts that he reasonably understood he would receive credit for time served against any sentence imposed on the severed charges, and he did not understand that he would be deprived of this benefit "when his sentencing was bifurcated." Pet.'s Memo. at 2-3, 10.
Petitioner contends that the "bifurcation" of his sentencing resulted in an eight month increase to his sentence on the severed charges. Pet.'s Memo. at 11.
A plea is voluntary when entered by one fully aware of the direct consequences. Torrey v. Estelle, 842 F.2d 234 (9th Cir. 1988). Lack of awareness of collateral consequences does not render a plea involuntary. Id. A direct consequence results in a "definite, immediate and largely automatic effect on the range of the defendant's punishment." Id. at 236 (citations, internal quotations omitted). Assuming arguendo that the department of corrections lacked discretion to award credit for time served on sentences imposed for convictions on the severed charges, petitioner concedes that the harm resulted from the failure to consolidate sentencing. The harm thus does not result directly from the pleas. Also, the harm would not have occurred had the jury acquitted petitioner on the severed charges. Any harm was a collateral consequence to the guilty pleas. See Torrey, 842 F.2d 236. Petitioner voluntarily entered his pleas.
Conclusion
Based on the foregoing, the petition for writ of habeas corpus [#2] is denied. This proceeding is dismissed.
IT IS SO ORDERED.