Opinion
CV 02-707-BR.
September 23, 2004
STEVEN T. WAX, Federal Public Defender, THOMAS J. HESTER, Assistant Federal Public Defender, Portland, Oregon, Attorneys for Petitioner.
HARDY MYERS, Attorney General, LESTER R. HUNTSINGER, Assistant Attorney General, Salem, Oregon, Attorneys for Respondent.
OPINION AND ORDER
Petitioner Robert Woodroffe, an inmate in the custody of the Oregon Department of Corrections, brings this Petition for Writ of Habeas Corpus (#2) and Amended Petition for Writ of Habeas Corpus (#40) pursuant to 28 U.S.C. § 2254.
For the reasons that follow, the Court DENIES Petitioner's Petition for Writ of Habeas Corpus and Amended Petition for Writ of Habeas Corpus and DISMISSES this matter.
BACKGROUND
In January 1994, the Grand Jury in Lane County, Oregon, indicted Petitioner on four counts of being a convicted felon in possession of a firearm; two counts of theft in the first degree; and one count each of robbery in the first degree, burglary in the first degree, and theft in the third degree in Lane County Circuit Court Case No. 10-94-00808 (the First Case). In April 1994, the Grand Jury also indicted Petitioner in Case No. 10-94-03778 on two counts of tampering with a witness (the Second Case).
Petitioner pleaded guilty to count one in the Second Case, and the Court dismissed the remaining count. Pursuant to a plea agreement, Petitioner pleaded guilty to count five (felon in possession of a firearm) and count six (theft in the first degree) in the First Case. The trial court dismissed count one (burglary in the first degree), count two (theft in the first degree), count three (convicted felon in possession), and count four (convicted felon in possession). In addition, the trial court severed for trial the remaining counts in the First Case: count seven (robbery in the first degree), count eight (felon in possession of a firearm), and count nine (theft in the third degree).
On October 5, 1994, Petitioner appeared for his jury trial on the severed counts in the First Case. Petitioner renewed a previous request for new counsel and also asked the trial judge to recuse himself. Tr. 204-13. The trial court denied these motions.
When Petitioner asserted he was prepared to plead guilty to the counts remaining in the First Case but for the prosecutor's demand that Petitioner waive his appellate rights, the trial judge adjourned the proceedings to allow the parties further discussion. Tr. 214-17. When court resumed, Petitioner's counsel advised the court that the parties had "reached a resolution." Tr. 214. After noting he had not had time to prepare a written plea petition, Petitioner's counsel placed the terms of this plea agreement on the record. Tr. 217.
Petitioner agreed to plead guilty pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), to the three counts remaining in the First Case. In addition, Petitioner agreed to waive his right to appeal his convictions arising from his earlier guilty pleas in the First Case and to the single count of conviction in the Second Case. Although the prosecutor agreed not to seek an upward departure under the Oregon sentencing guidelines, he stated he would be seeking consecutive sentences at the high end of the applicable guidelines for each count: specifically, 50 months on count seven (robbery in the first degree), 90 days as a condition of probation on count eight (felon in possession of a firearm), and 30 days on count nine (theft in the third degree) for a total of 54 months. Tr. 218-20.
When the trial court advised Petitioner of the statutory maximum penalty for each offense, Petitioner indicated he understood. The trial court also confirmed Petitioner was satisfied with the services of his counsel in the plea negotiations. Tr. 222-23. In addition, Petitioner stated he understood and voluntarily waived his trial rights, including his right to a jury trial; his right to confront the witnesses against him; his right to access compulsory process; and his Fifth Amendment right not to incriminate himself. After the trial court found Petitioner knowingly and voluntarily waived his trial rights, Petitioner expressly agreed with the court's finding.
The prosecutor then set out the factual basis to support Petitioner's pleas of guilty pursuant to Alford, and Petitioner stipulated to these facts. Petitioner further confirmed the basis for his Alford pleas and indicated his desire to escape the mandatory "gun minimum" sentence under Oregon law. Tr. 233-34. Petitioner then entered an Alford plea of guilty to each of the three remaining charges, and Petitioner indicated he was satisfied with his pleas of guilty. Tr. 234-35.
After the trial court accepted Petitioner's Alford pleas, Petitioner's counsel informed the court that "[w]e are prepared to proceed [to] sentencing at this time." Tr. 235. The court advised Petitioner, "[Y]ou're entitled as a matter of law to a two-day delay in connection with your sentencing. If [you] wish to waive that two-day right you can proceed with sentencing now. It's up to you?" Tr. 235. In response, Petitioner's counsel stated Petitioner "was going to make a request of the Court that he not be transported until after next Tuesday. If that can be — if the Court would be willing to do that, I think we can proceed right now. What I'm saying is he's prepared to be sentenced today." Tr. 235. The trial court noted it had limited control over the Department of Corrections and stated, "It may well be that if he's sentenced today the State will want to transport him tomorrow." Tr. 236.
Petitioner's counsel then indicated the requested delay in transport was "of significant consequence to Mr. Woodroffe and that he would not wish to proceed at this time if he is not permitted to remain for the few additional days that are requested." Tr. 236. Counsel offered to prepare a motion requesting the court to hold Petitioner through the next Tuesday. Although the court was willing to entertain such a motion, it indicated it would also consider the concerns of the Corrections Department when deciding the motion. Tr. 237. This colloquy followed:
[DEFENSE COUNSEL]:. . . . I understand the bind that this places the Court in. I've had similar motions in the past and I recognize that it's based upon the merits of the given situation whether the individual stays or not.
I'm also familiar with the custom within the sheriff's office that prisoners are transported as quickly as they can be. We're sort of at something of an impasse here.
We have a resolution of this case. We're not anxious to see this resolution come undone.
THE COURT: Well, I would say this. We're close to noon now. And I don't wish to protract this thing in the least. We could probably conclude sentencing by noon if we started now. I'm not disposed to rushing anybody. And if the parties want more time to discuss that, that's okay.
We still have the jury waiting downstairs and I've declined to release that jury. We can start at 1:30. But we can also convene at 1:30 and address this issue of sentencing if there's going to be a sentencing.
[DEFENSE COUNSEL]: Clearly Mr. Woodroffe has indicated to me he doesn't wish to waive his two days.
[PROSECUTOR]: Part of our deal was the sentencing had to be today.
THE DEFENDANT: I know. I'm not prepared to proceed a deal [ sic ]. I think it's come unraveled and I'd ask the Court to have the jury up here and we can begin jury selection at 1:30.
THE COURT: Okay. Well, we'll be ready to convene the jury at 1:30. I'm not going to vacate the guilty pleas until then.
I'll inquire again at 1:30 if that's what you want to do is go to trial. 1:30.
(Luncheon recess.)
AFTERNOON SESSION, OCTOBER 5, 1994
THE COURT: Okay. I'm going to indicate the following, which was communicated by my judicial assistant to counsel. And that is that upon inquiry I determined that if the matter were to proceed as anticipated this morning to sentencing now that the defendant could decline to waive a 48-hour transport and therefore not be transported until Tuesday. If sentencing is postponed until Friday, defendant will be transported on Tuesday.
So the choices are, sentencing today, or not. In any event, transport would be on Tuesday.
[DEFENSE COUNSEL]: Mr. Woodroffe wishes to proceed to trial. Wishes to withdraw his change of plea and proceed to trial.
THE COURT: Pleas are withdrawn. They are vacated. We will assemble a panel of jurors.
Tr. 238-40 (emphasis added).
A jury was selected, and the trial proceeded. Petitioner testified at trial that he had been on a major drug binge and had injected methamphetamine on a nearly hourly basis in the days preceding the robbery. Tr. 878-79. Petitioner testified he and two associates with whom he had been doing drugs traded a radio for an inoperable gun with a broken firing hammer just before the robbery. Tr. 888. Petitioner testified the three of them consumed some beer, finished their methamphetamine, and smoked marijuana. Tr. 890-91. Petitioner testified he then took the broken gun across the street to the U.S. Bank and robbed a couple at a drive-up automated teller machine. Tr. 892-93. Petitioner's counsel argued to the jury that Petitioner was guilty of robbery in the second degree (a lesser and included offense), but not guilty of robbery in the first degree as charged in count seven. After brief deliberations, the jury returned a verdict of guilty on all of the remaining charges. Tr. 1050-51.
Thereafter the prosecutor requested and the court ordered a presentence report and a "dangerous offender" evaluation pursuant to Or. Rev. Stat. § 161.725(1), which provides that a person convicted of a Class A felony (such as robbery in the first degree) may receive an enhanced 30-year dangerous offender sentence if the court finds "the defendant is suffering from a severe personality disorder indicating a propensity toward crimes that seriously endanger the life or safety of another." Tr. 1052-53.
When Petitioner appeared for sentencing on March 8, 1995, Petitioner's counsel argued the State's only purpose in conducting the dangerous offender proceeding was to punish Petitioner for his "unwillingness to take a deal in this case." Tr. 1062. Nonetheless, the trial court conducted an evidentiary hearing regarding the dangerous offender sentencing enhancement as part of the sentencing proceeding. The trial court received reports from Dr. George Suckow, a psychiatrist called by the State, and from Dr. David Mace, a psychologist who testified for Petitioner.
Dr. Suckow testified Petitioner "had a significant psychoactive substance abuse problem and that he has an antisocial personality disorder. And finally that he does meet the criteria as a dangerous offender under the relevant Oregon statutes." Tr. 1069-70. When asked whether Petitioner exhibited a "propensity toward crimes that seriously endanger the life or safety of another," Dr. Suckow replied, "He appears to [be] tending that way." Tr. 1091.
Dr. Mace testified Petitioner's criminal activity was directly related to drug use and Petitioner showed signs of depression. Tr. 1106-07. Dr. Mace concluded, however, Petitioner did not manifest a propensity toward crimes that seriously endanger the life or safety of another. Tr. 1113.
After these witnesses testified, Petitioner's counsel reminded the trial court that Petitioner "would not be sitting here right now being considered for dangerous offender treatment had he not refused to take a deal." Tr. 1143-44. When Petitioner addressed the court prior to sentencing, he stated:
I pled guilty to these crimes because I know I am guilty of something, I believe that. And I believe I should be punished for what I have done. And I pled guilty because I was scared to death [of what] the State and what the Court is capable of doing to me. And I pled guilty to everything. And because I wanted to waive my two-day right, which was not part of any plea negotiation, the Court takes upon it's own initiative to withdraw my own plea. . . .
Tr. 1167-68.
The trial court concluded the State had carried its burden to show that Petitioner met the statutory requirements as a dangerous offender. Tr. 1153. The court sentenced Petitioner to a term of 30 years in prison as a dangerous offender, a 100-month minimum indeterminate departure sentence, and a 5-year mandatory "gun minimum" sentence. Tr. 1176-77.
On April 18, 1995, the trial court held a hearing on Petitioner's motion for a new trial. Petitioner's counsel asserted Petitioner's double jeopardy rights were violated when the trial court allegedly withdrew Petitioner's Alford pleas "on its own" solely because Petitioner refused to waive his statutory right to a continuance of 48 hours between plea and sentencing. Tr. 1233-34. Petitioner testified he did not ask the court to withdraw his Alford pleas and his pleas were withdrawn without his consent. Tr. 1189. The trial court took the matter under advisement and thereafter issued an order denying Petitioner's motion for a new trial.
Petitioner then filed a direct appeal in which he asserted: 1) the trial court erred when it denied Petitioner's motion to dismiss the indictment based on vindictive prosecution, 2) the trial court violated the double jeopardy prohibition under federal law when it withdrew Petitioner's guilty plea, and 3) the imposition of a dangerous offender sentence was illegal because it was not supported by the facts in the record. In his pro se supplemental brief, Petitioner argued it should have been the decision of the jury rather than the trial judge to determine whether Petitioner was a dangerous offender. The Oregon Court of Appeals, however, affirmed from the bench. The Oregon Supreme Court denied review.
Petitioner filed an amended petition for post-conviction relief in the Marion County Circuit Court in which he raised fifteen claims of ineffective assistance of trial counsel, one claim of ineffective assistance of appellate counsel, three claims of prosecutorial misconduct, and one claim of trial court error. The Marion County Circuit Court denied relief. Petitioner's appeal from the denial of post-conviction relief was consolidated with two related cases involving Petitioner. The Oregon Court of Appeals affirmed in a per curiam opinion. The Oregon Supreme Court denied review.
In his Petition for Writ of Habeas Corpus and Amended Petition for Writ of Habeas Corpus filed in this Court, Petitioner raises the following issues: 1) whether the state trial court denied Petitioner's rights under the Fifth and Fourteenth Amendments to the United States Constitution to protection from being put in jeopardy twice for the same offense, 2) whether Petitioner was denied effective assistance of trial counsel in violation of his Sixth and Fourteenth Amendment rights under the United States Constitution, 3) whether Petitioner's right to due process under the Fourteenth Amendment to the United States Constitution was violated by prosecutorial misconduct and selective prosecution, and 4) whether the sentences imposed by the trial court were excessive and illegal in violation of Petitioner's Fourteenth Amendment right to due process under the United States Constitution as well as his Sixth Amendment right to trial by jury under the United States Constitution.
DISCUSSION
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), habeas corpus relief may not be granted as to any claim that was adjudicated on the merits in state court unless the adjudication "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 the adjudication "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)(1)(2). "[A] determination of a factual issue made by a State court shall be presumed to be correct[, unless the petitioner rebuts] . . . the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
Ground One — Double Jeopardy
As noted, Petitioner moved the trial court for a new trial on the ground that Petitioner's jury trial was barred by constitutional protections against double jeopardy. The trial court denied Petitioner's motion for a new trial.
Petitioner pursued this issue on direct appeal and raises the issue again in this federal habeas action. In particular, Petitioner contends jeopardy attached when the court accepted his Alford pleas. According to Petitioner, the withdrawal of those pleas was forced, and, therefore, the subsequent jury trial violated his constitutional rights to be protected from double jeopardy. According to Petitioner, his pleas were withdrawn by the trial court as a result of Petitioner's exercise of his statutory right to a 48-hour delay between the plea and sentencing. Petitioner asserts immediate sentencing was not a part of the plea agreement, and, in any event, he did not make a voluntary choice to withdraw his pleas and to proceed to trial.
Respondent correctly notes this Court must give deference to the state court's ruling that there was no double jeopardy violation. In particular, Respondent contends Petitioner's claim is based on the erroneous factual allegations that Petitioner never requested the trial court to withdraw Petitioner's Alford pleas and the trial court did so without Petitioner's consent. Indeed, the record reflects the trial court advised Petitioner of his right to a 48-hour delay before sentencing, Petitioner's counsel informed the court that his client did not wish to be transported until after the next Tuesday, and the court indicated it would consider such a request by way of a motion. The record also shows Petitioner affirmatively withdrew his pleas, and the trial court vacated the pleas only as requested by Petitioner. In any event, Respondent emphasizes the trial court did not enter a judgment upon Petitioner's pleas, and, therefore, Respondent argues jeopardy did not attach.
Prohibitions against double jeopardy are contained in the Oregon Constitution, Or. Rev. Stat. §§ 131.505 to 131.353, and the United States Constitution. In particular, Or. Rev. Stat. § 131.515(2) provides:
No person shall be separately prosecuted for two or more offenses based upon the same criminal episode, if the several offenses are reasonably known to the appropriate prosecutor at the time of commencement of the first prosecution and establish proper venue in a single court.
In addition, Or. Rev. Stat. § 131.505(5) provides:
A person is `prosecuted for an offense' when the person is charged therewith by an accusatory instrument filed in any court of this state or in any court of any political subdivision of this state, and when the action either:
(a) Terminates in a conviction upon a plea of guilty. . . .
Under federal law, however, jeopardy ordinarily attaches on the court's acceptance of a guilty plea in part because it is the formal plea that exposes the defendant to conviction. United States v. Smith, 912 F.2d 322, 324 (9th Cir. 1990). See also United States v. Patterson, No. 00-30306, 2004 WL 1858114, at *4 (9th Cir. Aug. 20, 2004); State v. Taylor, 62 Or. App. 220, 224, 660 P.2d 690 (1983). The court, however, may allow withdrawal of a guilty plea or a no contest plea before the entry of judgment and substitute a not guilty plea. State v. Cornelius, 249 Or. 454, 457, 438 P.2d 1020 (1968), overruled by State v. Clevenger, 297 Or. 234, 683 P.2d 1360 (1984). Indeed, Or. Rev. Stat. § 135.365 provides: "The court may at any time before judgment, upon a plea of guilty or no contest, permit it to be withdrawn and a plea of not guilty substituted therefor." In such a case, jeopardy does not attach. United States v. Patterson, 2004 WL 1858114, at *4.
As noted, Petitioner entered guilty pleas in this matter pursuant to Alford. Within minutes after the court accepted Petitioner's pleas, however, a controversy arose over whether to delay sentencing or to proceed immediately. Although Petitioner's counsel stated Petitioner did not wish to be transported until the following Tuesday, it was Petitioner who affirmatively asked the court to proceed to trial.
As noted, Petitioner stated to the court: "I'm not prepared to proceed a deal [ sic]. I think it's come unraveled and I'd ask the Court to have the jury up here and we can begin jury selection at 1:30." Tr. 239. The trial court did not immediately act on Petitioner's statement. Instead the court recessed to allow the parties to address the matter over the noon hour. When court reconvened thereafter, the record reflects the following colloquy:
THE COURT: Okay. I'm going to indicate the following, which was communicated by my judicial assistant to counsel. And that is that upon inquiry I determined that if the matter were to proceed as anticipated this morning to sentencing now that the defendant could decline to waive a 48-hour transport and therefore not be transported until Tuesday. If sentencing is postponed until Friday, defendant will be transported on Tuesday.
So the choices are, sentencing today, or not. In any event, transport would be on Tuesday.
[DEFENSE COUNSEL]: Mr. Woodroffe wishes to proceed to trial. Wishes to withdraw his change of plea and proceed to trial.
THE COURT: Pleas are withdrawn. They are vacated. We will assemble a panel of jurors.
Tr. 240 (emphasis added).
Thus, the record clearly establishes Petitioner requested and the trial court allowed the withdrawal of Petitioner's Alford pleas. It was within the trial court's discretion to allow the withdrawal of Petitioner's pleas. See State v. Taylor, 62 Or. App. at 224. When the pleas were withdrawn before entry of judgment, not guilty pleas were reinstated. See Or. Rev. Stat. § 135.365. Jeopardy did not attach because Petitioner's pleas were withdrawn at his request. In short, there is no factual support for Petitioner's assertion that the trial court withdrew Petitioner's pleas without his consent.
Petitioner also contends his subsequent jury trial was unconstitutional because his pleas were withdrawn based on his exercise of a statutory right. Petitioner asserts he cannot be compelled to sacrifice one right in order to preserve another. The record of the proceedings, however, reflects Petitioner made the affirmative statement that he was "not prepared to proceed with the plea agreement." Although Petitioner made this statement after the prosecutor objected to any delay in sentencing, the prosecutor did not ask and the trial court did not direct the pleas to be withdrawn. Indeed, the trial judge and Petitioner's counsel were actively attempting to accommodate Petitioner's request not to be transported immediately when Petitioner told the judge he wanted to go to trial instead. Again, the record does not support Petitioner's contention that he was compelled to give up a right in order to preserve another right.
Accordingly, this Court concludes the trial court's decision to deny Petitioner a new trial based on Petitioner's claims of a constitutional double jeopardy violation was not an unreasonable application of clearly established federal law. Ground Two — Denial of Effective Trial Counsel
Petitioner argues trial counsel failed to gather and to present all of the necessary evidence and witnesses, failed to protect Petitioner's rights on plea, and failed to stop the prosecutor from making statements unsupported by the evidence, all in violation of Petitioner's Sixth and Fourteenth Amendment rights under the United States Constitution. Respondent, however, contends this claim was procedurally defaulted because Petitioner did not present any claim of ineffective assistance of trial counsel to the appellate courts of the State of Oregon.
Generally, a state prisoner must fully exhaust his claims in state court before filing a federal habeas corpus petition. 28 U.S.C. § 2254(b)(1). To satisfy the exhaustion requirement, the prisoner must give the state court a fair opportunity to act on the prisoner's claims before he presents those claims to a federal court in a habeas petition. Id. See also Castille v. Peoples, 489 U.S. 346, 349-50 (1989). State courts, like federal courts, are obliged to enforce federal law. Comity, however, dictates state courts should have the first opportunity to review such a claim and to provide the necessary relief when a prisoner alleges his continued confinement for a state court conviction violates federal law. Rose v. Lundy, 455 U.S. 509, 515-26 (1982). When a state prisoner fails to exhaust his federal claims in state court and those claims become procedurally barred under applicable state rules, federal habeas review also is barred unless the prisoner can demonstrate cause for the procedural default and actual prejudice or demonstrate the court's failure to consider the claim will result in a miscarriage of justice. Gray v. Netherland, 518 U.S. 152, 162 (1996). See also Schlup v. Delo, 513 U.S. 298, 315-318 (1995).
On post-conviction relief in state court, Petitioner claimed his trial counsel ineffectively assisted Petitioner by failing to investigate his case properly and failing to call relevant witnesses. The post-conviction relief court, however, found Petitioner was not denied the right to effective assistance of trial counsel as guaranteed by the United States Constitution. On direct appeal of the judgment entered by the post-conviction relief court, Petitioner claimed the following assignments of error: 1) the trial court erred by not conducting an inquiry when Petitioner moved for new post-conviction counsel, 2) the trial court erred by proceeding when Petitioner did not have adequate post-conviction counsel in each of the three cases consolidated for post-conviction relief, and 3) the trial court erred by denying Petitioner post-conviction relief for credit for time served in his robbery case. Petitioner, however, did not present any claim of ineffective assistance of trial counsel to the state appellate court. Thus, Petitioner's claim of ineffective assistance of trial counsel raised in this federal habeas action was procedurally defaulted. In any event, Petitioner makes no claim of cause and prejudice or miscarriage of justice to excuse his procedural default.
Accordingly, the Court concludes Petitioner is not entitled to any relief on this ground.
Ground Three — Prosecutorial Misconduct and Selective Prosecution
Petitioner alleges prosecutorial misconduct and selective prosecution in violation of his Fourteenth Amendment right to due process under the United States Constitution. Respondent contends Petitioner has abandoned this ground because he did not address this claim in his Memorandum prepared by appointed counsel.
Although Petitioner did not address the issues of prosecutorial misconduct and selective prosecution in his Memorandum, these issues were specifically realleged in Petitioner's Amended Petition for Writ of Habeas Corpus filed after Respondent filed his Answer. The Court, therefore, will address the merits of this claim.
The record reflects Petitioner moved the trial court to dismiss the indictment in the First Case on the grounds that the prosecutor introduced the statutory gun enhancement and dangerous offender penalties into this prosecution because the case was progressing slowly and Petitioner was unwilling to enter into negotiations to resolve the case. The prosecutor, however, argued Petitioner had not established any basis to support this claim for vindictive prosecution. The trial court denied the motion to dismiss. Tr. 1062-63.
On direct appeal, Petitioner alleged the trial court erred when it denied Petitioner's motion to dismiss. In response, Respondent argued the gun minimum statute had been unintentionally omitted from the original indictment and the plea negotiations had nothing to do with Petitioner's ongoing criminal activity. As noted, the Oregon Court of Appeals affirmed from the bench the trial court's judgment, and the Oregon Supreme Court denied review. Thus, these issues were presented to the highest court of the State of Oregon before they were raised in this federal habeas proceeding.
Petitioner does not present any evidence to support his assertion that the ruling of the state courts resulted in a decision that was contrary to clearly established federal law or based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
The Court, therefore, concludes Petitioner is not entitled to relief on this ground.
Ground Four — Excessive and Illegal Sentence
Petitioner asserts his 30-year dangerous offender sentence was excessive and alleges he was unlawfully denied due process in violation of the Fourteenth Amendment to the United States Constitution. Petitioner also argues he was denied his Sixth Amendment right to trial by jury. Petitioner contends 1) there was no evidence to support the trial court's ruling that Petitioner exhibited a propensity toward crimes that endanger the life and safety of others, and 2) the dangerous offender sentencing scheme under Oregon law violates the constitutional requirements set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000).
A. The Evidence
Or. Rev. Stat. § 161.725 provides:
[T]he maximum term of an indeterminate sentence of imprisonment for a dangerous offender is 30 years, if the court finds that because of the dangerousness of the defendant an extended period of confined correctional treatment or custody is required for the protection of the public and if it further finds . . . that . . .:
(a) The defendant is being sentenced for a Class A felony, and the court finds that the defendant is suffering from a severe personality disorder indicating a propensity toward crimes that seriously endanger the life or safety of another.
Petitioner was convicted of robbery in the first degree with a firearm, which is a Class A felony under Or. Rev. Stat. § 164.415. As noted, the trial court ordered a presentence report and a dangerous offender report. The trial court also received testimony from Dr. Suckow on behalf of the State and from Dr. Mace on behalf of Petitioner.
In evaluating the evidence, the trial court explained: "I understand quite clearly that the two experts disagree in some significant ways." Tr. 1149. The trial court noted the experts did not dispute the diagnosis of antisocial personality disorder. The experts, however, did not agree as to whether Petitioner also suffered from depression. Tr. 1113. In any event, the trial court was less optimistic than Petitioner's expert as to whether Petitioner would wholeheartedly embrace drug rehabilitation, whether Petitioner was contrite, and whether Petitioner was dangerous to others. Tr. 1150-53. Ultimately, the trial court concluded: "My view is that the burden that the State has with respect to the issue of the dangerousness, as a dangerous offender has been sustained clearly and convincingly." Tr. 1153.
On direct appeal, Petitioner conceded the record established that he may have been suffering from a personality disorder. Petitioner, however, asserted he was not suffering from a severe personality disorder as required by the statute. In addition, although Petitioner agreed his prior criminal record established that he is a "petty theft [ sic], forger, and burglar," he insisted the record did not indicate he had a propensity toward crimes that would seriously endanger the life and safety of others. As noted, the Oregon Court of Appeals affirmed from the bench, and the Oregon Supreme Court denied review.
In this Court, Petitioner contends the trial court erred in its factual finding that Petitioner exhibited a propensity toward crimes that endanger the life and safety of others. As noted, however, "a determination of a factual issue made by a State court shall be presumed to be correct" unless Petitioner rebuts "the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). After a thorough review of the record, this Court concludes the trial court had sufficient evidence before it to support its finding that Petitioner met the statutory requirements as a dangerous offender. In any event, Petitioner has not offered clear and convincing evidence to the contrary. The Court, therefore, concludes the trial court did not violate existing Oregon law, and there was no violation of Petitioner's federal due process rights.
B. Apprendi
Petitioner also asserts the Oregon dangerous offender sentencing scheme set forth in Or. Rev. Stat. § 161.725 violates the constitutional requirement that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. In particular, Petitioner contends this constitutional requirement set forth initially in Apprendi should be applied retroactively to invalidate his sentence. In his Supplemental Memorandum on the Retroactive Application of Apprendi, Petitioner argues the recent Supreme Court decision in Schriro v. Summerlin, 124 S. Ct. 2519 (2004), compels the retroactive application of Apprendi to cases on collateral review.
In Blakely v. Washington, the Supreme Court further explained:
[T]he `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. . . . In other words, the relevant `statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.124 S. Ct. 2531, 2537 (2004) (emphasis in original).
Respondent initially contends Petitioner did not fairly present this claim as a federal question in state court. Even if it was fairly presented, Respondent maintains Petitioner's claim, nonetheless, was procedurally defaulted. Finally, Respondent argues the Supreme Court decision in Schriro does not alter the conclusion reached by the Ninth Circuit Court of Appeals in United States v. Sanchez-Cervantes that Apprendi "does not apply retroactively to cases on initial collateral review." 282 F.3d 664, 671 (9th Cir.), cert. denied, 537 U.S. 939 (2002).
C. Fairly Presented
Petitioner asserts he anticipated Apprendi when he raised the claim in Assignment of Error No. 6 in his supplemental pro se brief to the Oregon Court of Appeals. In that brief, Petitioner contended his right to trial by jury was violated when the court rather than the jury determined Petitioner was a dangerous offender under Or. Rev. Stat. § 161.725. Respondent, however, contends Petitioner did not fairly present the federal nature of the claim before the Oregon appellate courts.
A claim is "fairly presented" when the state courts are given notice of the federal issue. Duncan v. Henry, 513 U.S. 364, 365-66 (1995). Petitioner must describe "`both the operative facts and the federal legal theory on which his claim is based so that the state courts [could] have a `fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim.'" Castillo v. McFadden, 370 F.3d 882, 886 (9th Cir. 2004) (quoting Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003)). Petitioner must have "characterized the claims he raised in state proceedings specifically as federal claims. In short, the petitioner must have either referenced specific provisions of the federal constitution . . . or cited to federal case law." Castillo, 370 F.3d at 1063 (internal quotation marks omitted; emphasis in original).
On June 17, 1996, Petitioner argued to the Oregon Court of Appeals that the Oregon statute under which he received an enhanced sentence effectively added an element to his crime of conviction. Petitioner specifically challenged the fact that "the trial court, rather than the jury, determines if a defendant falls within the dangerous offender act." Petitioner also maintained this procedure violated "defendant's right to trial by jury." While the main portion of Petitioner's supplemental pro se brief focused on the violation of state law and the state constitution, Petitioner, nonetheless, argued "[t]he court violated Defendant's state and federal, statutory and constitutional rights."
Petitioner's argument to the state appellate court clearly anticipated the holding in Apprendi issued four years later. In Apprendi, the United States Supreme Court held "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490.
For these reasons, this Court concludes Petitioner's claim was fairly presented to the state court as a federal question and the state appellate courts had a fair opportunity to apply controlling legal precedent to the facts bearing on Petitioner's federal constitutional claim.
D. Procedural Default
Even if Petitioner's claim was fairly presented, Respondent contends the claim was procedurally defaulted because Petitioner did not raise this issue to the trial court either at the sentencing hearing or in Petitioner's motion for new trial. Respondent asserts Petitioner advanced this claim for the first time in his supplemental pro se brief challenging the conviction on direct review. Thus, Respondent maintains the issue was not properly preserved in the trial court, and, therefore, the appellate court could not have considered the claim.
Generally an issue that is not preserved in an Oregon trial court will not be considered on appeal. State v. Wyatt, 331 Or. 335, 341, 15 P.3d 22 (2000). Or. R. App. P. 5.45(2), however, provides the appellate court has discretion to "consider errors of law apparent on the face of the record" notwithstanding a defect in preserving the issue at trial. An "error of law" is one in which the "legal point is obvious, not reasonably in dispute." State v. Brown, 310 Or. 347, 355, 800 P.2d 259 (1990). The error must appear "on the face of the record." Id. In other words, the court does not need to go "outside the record or choose between competing inferences to find it, and the facts that comprise the error are irrefutable." Id.
Although it is probable that Petitioner's Assignment of Error No. 6 would not have met the requirements of Or. R. App. P. 5.45(2) in 1996, this claim viewed in the light of Apprendi and Blakely is likely an "error of law apparent on the face of the record." See Or. R. App. P. 5.45(2). The decision whether to consider an error of law not raised in the trial court was discretionary with the Oregon appellate court.
Under these circumstances, this Court does not find Petitioner's claim to be procedurally defaulted.
E. Retroactive Application of Apprendi
In Sanchez-Cervantes, the Ninth Circuit held " Apprendi does not apply retroactively to cases on initial collateral review." 282 F.3d at 671. In Sanchez-Cervantes, the sentencing court increased the defendant's sentence beyond the statutory maximum based on the court's finding of drug quantity. Id. at 666. The Ninth Circuit concluded Apprendi did not apply retroactively to Petitioner's initial collateral review because Apprendi did not involve a "watershed rule of criminal procedure" under the second exception in Teague v. Lane, 489 U.S. 288 (1989). Sanchez-Cervantes, 282 F.3d at 668. The court explained:
We do not believe that requiring the jury to make drug quantity determinations beyond a reasonable doubt will greatly affect the accuracy of convictions. Nor is this rule a bedrock procedural element. Our view is consistent with the three circuits that have already ruled on this specific issue. In the cases facing those courts, as with the case before us, the existence of a drug violation was established beyond a reasonable doubt. The alleged Apprendi error only concerns an enhancement of the defendant's sentence based on a drug quantity finding by the judge. Therefore, the accuracy of the underlying conviction is not at issue.Id. at 669 (footnote omitted).
Pointing to Supreme Court decisions that have been applied retroactively, Petitioner, nonetheless, looks past Sanchez-Cervantes and contends Apprendi must be applied retroactively to all facts that may be used to increase the statutory maximum with the exception of a prior conviction. See, e.g., Ivan v. City of New York, 407 U.S. 203 (1972), in which the Supreme Court retroactively applied the rule announced in In re Winship, 397 U.S. 358, 364 (1970) (applied the constitutional standard of proof beyond a reasonable doubt in juvenile proceedings); Hankerson v. North Carolina, 432 U.S. 233, 240 (1977), in which the Supreme Court retroactively applied the rule announced in Mullaney v. Wilbur, 421 U.S. 684, 704 (1975) (State required to prove the absence of provocation in a homicide beyond a reasonable doubt).
The court in Sanchez-Cervantes, however, distinguished these earlier retroactivity decisions:
The rules announced in Winship and Mullaney were given retroactive effect because they were to "overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts[.]" The application of Apprendi only affects the enhancement of a defendant's sentence once he or she has already been convicted beyond a reasonable doubt. Therefore, it does not rise to the level of importance of Winship or Mullaney. Allowing the judge to determine the quantity of drugs for sentencing purposes does not impair the jury's ability to find the truth regarding whether the defendant possessed, distributed, or conspired to distribute some amount of drugs.282 F.3d at 671 (emphasis in original; footnotes omitted).
In his Supplemental Memorandum, Petitioner argues the Supreme Court's recent decision in Schriro logically repudiates the Ninth Circuit's rationale in Sanchez-Cervantes and mandates the retroactive application of Apprendi. In Schriro, the Court considered whether to apply retroactively its holding in Ring v. Arizona to cases already final on direct review. See Ring v. Arizona, 536 U.S. 584 (2002) ( Apprendi required the existence of an aggravating factor in the Arizona capital sentencing scheme to be proved to a jury rather than to a judge).
Petitioner acknowledges Justice O'Connor indicated to the contrary in her dissent in Blakely filed on the same day as Schriro. Justice O'Connor stated: "[W]e hold in Schriro . . . that Ring (and a fortiori Apprendi) does not apply retroactively on habeas review." 124 S. Ct. at 2549. Petitioner asserts, however, that Justice O'Connor's statement is dicta in dissent and contrary to the reasoning in Schriro in which she joined. See also Morris v. United States, No. 04-3096, 2004 WL 1944014, at *9 (D.C.C.D. Ill. Sep. 01, 2004) ( Blakely is not retroactive).
In Schriro, the Supreme Court explained applicable retroactivity principles as follows:
When a decision of this Court results in a "new rule," that rule applies to all criminal cases still pending on direct review. As to convictions that are already final, however, the rule applies only in limited circumstances. New substantive rules generally apply retroactively. This includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish. Such rules apply retroactively because they "necessarily carry a significant risk that a defendant stands convicted of `an act that the law does not make criminal'" or faces a punishment that the law cannot impose upon him.
New rules of procedure, on the other hand, generally do not apply retroactively. They do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise. Because of this more speculative connection to innocence, we give retroactive effect to only a small set of "`watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." That a new procedural rule is "fundamental" in some abstract sense is not enough; the rule must be one "without which the likelihood of an accurate conviction is seriously diminished." This class of rules is extremely narrow, and "it is unlikely that any . . . `ha[s] yet to emerge.'"
* * *
A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes. In contrast, rules that regulate only the manner of determining the defendant's culpability are procedural.124 S. Ct. at 2522-23 (citations omitted; emphasis in original). Applying these principles, the Court concluded the decision in Ring constituted a procedural rule because it "altered the range of permissible methods for determining whether a defendant's conduct is punishable by death, requiring that a jury rather than a judge find the essential facts bearing on punishment. Rules that allocate decisionmaking authority in this fashion are prototypical procedural rules." Id. at 2523. Thus, the Court found the Ring decision "announced a new procedural rule that does not apply retroactively to cases already final on direct review." Id. at 2526.
Petitioner, nonetheless, contends Schriro mandates the retroactive application of Apprendi to his claim because the Court recognized the rule in Apprendi satisfies the fundamental fairness prong in Teague. As the Court noted in Schriro, however, "That a new procedural rule is `fundamental' in some abstract sense is not enough; the rule must be one `without which the likelihood of an accurate conviction is seriously diminished.'" Id. at 2523 (quoting Teague, 489 U.S. at 313) (emphasis in original).
Here Petitioner was convicted beyond a reasonable doubt of robbery in the first degree, which is a Class A felony under Oregon law. Although Petitioner's sentence was enhanced beyond the statutory maximum based on a factual finding of dangerousness made by the trial judge, the procedure that permitted the judge to determine dangerousness in a sentencing proceeding had no bearing on and could not have affected the jury's ability to find beyond a reasonable doubt whether defendant was guilty of robbery in the first degree. Thus, the accuracy of the underlying conviction is not at issue.
In addition, Petitioner asserts Apprendi must be applied retroactively to his claim because the judicial determination of dangerousness in his case was made with a lower standard of proof (clear and convincing evidence) than the judicial determination in Ring (beyond a reasonable doubt). As noted, however, the Supreme Court explained in Schriro that the question in determining retroactivity is "whether judicial factfinding so seriously diminishe[s] accuracy that there is an impermissibly large risk of punishing conduct the law does not reach." 124 S. Ct. at 2525 (internal quotation marks omitted).
This Court finds the judicial factfinding in Petitioner's sentencing did not diminish the accuracy of Petitioner's conviction or the finding of his dangerousness. This Court, therefore, does not find any risk exists that Petitioner is being punished for "conduct the law does not reach." As noted, the trial court found the State had sustained its burden to prove Petitioner's dangerousness "clearly and convincingly." Tr. 1153.
As the Schriro Court explained:
The right to jury trial is fundamental to our system of criminal procedure, and States are bound to enforce the Sixth Amendment's guarantees as we interpret them. But it does not follow that, when a criminal defendant has had a full trial and one round of appeals in which the State faithfully applied the Constitution as we understood it at the time, he may nevertheless continue to litigate his claims indefinitely in hopes that we will one day have a change of heart.124 S. Ct. at 2526.
Thus, the holding in Sanchez-Cervantes "that Apprendi does not apply retroactively to cases on initial collateral review" continues to be the law in the Ninth Circuit. 282 F.3d at 671. Here Petitioner's case was final on direct review well before the Supreme Court announced its decision in Apprendi. Accordingly, the Court does not find any legal precedent for applying Apprendi retroactively to Petitioner's case on initial collateral review.
CONCLUSION
For these reasons, the Court DENIES Petitioner's Habeas Corpus Petition (#2) and Amended Habeas Corpus Petition (#40 and DISMISSES this matter.