Pohlman v. Frost

JELDERKS, Magistrate Judge.

Anthony D. Bornstein Assistant Federal Public Defender Attorney for Petitioner

Ellen F. Rosenblum, Attorney General Daniel Toulson, Assistant Attorney General Department of Justice Attorneys for Respondents

FINDINGS AND RECOMMENDATION

JELDERKS, Magistrate Judge.

Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his Multnomah County convictions dated November 1, 2013. For the reasons that follow, the Amended Petition for Writ of Habeas Corpus (#13) should be denied.

BACKGROUND

On March 14, 2023, the State charged Petitioner by information with two counts of Kidnapping in the First Degree, and one count each of Rape in the First Degree, Sodomy in the

First Degree, Assault in the Second Degree, Unlawful Sexual Penetration in the First Degree, and Sexual Abuse in the First Degree. Respondents' Exhibit 102. According to the Malheur County Circuit Court,

Petitioner's charges arose from his practice of acquiring nitrous oxide, ecstasy, scopolamine, ketamine, and other drugs and providing these freely (or surreptitiously) to young women. A number of women reported to the police that they had passed out shortly after petitioner gave them alcohol or nitrous oxide, and suspected (or knew) that he had violated them sexually while they were unable to either consent or resist.

Respondents' Exhibit 141, p. 1.

Faced with a variety of Measure 11 crimes carrying mandatory minimum sentences, Petitioner elected to enter into a plea bargain. He reviewed and signed a Plea Petition wherein he expressed his desire to plead guilty to Assault in the Second Degree, Unlawful Possession of 3,4-Methylenediioxymethamphetamine, and Unlawful Possession of a Controlled Substance. Respondent's Exhibit 103, p. 2. He would also plead no contest to Sexual Abuse in the Second Degree. In exchange, the prosecutor would move to drop the remaining charges at sentencing and recommend a prison sentence totaling 75 months. Id.

On September 30, 2013, Petitioner appeared in court to enter his pleas. I have reviewed the colloquy and am satisfied the trial judge did a very thorough job of explaining to Petitioner the charges he faced, his sentencing exposure, and the fact that he was waiving his trial rights. See Respondents' Exhibit 104. When she asked Petitioner whether he was “absolutely certain” that he wished to enter his pleas, he responded in the affirmative. Id at 6-7. The judge accepted his pleas and set sentencing for October 16, 2013.

When Petitioner appeared for sentencing on October 16, 2013, he took responsibility for the crimes for which he had pled guilty, but he maintained his innocence as to the sexual abuse charge to which he had already pled no contest. This led to the following exchange:

Petitioner: With regard to Count 3, I maintain my innocence and voice my intent to seek post-conviction relief on the grounds that a motion for severance should have been entered after the reindictment, which resulted in the removal of the charge related to Ms. [S]. This should have happened before plea negotiations with separate prosecution resolution of each allegation. I passed a polygraph examination confirming my innocence with one of Portland's foremost polygraphers. On the morning of the incident, Ms. [J] assisted me in calling a police officer to Ms. [J's] home to report a missing vehicle.

The defense has witness testimony that Ms. [J] took no offense at my actions until she was coached by her employer, my former business partner [ ]. The State has insisted on a felony sex charge as part of this negotiation, and I have no choice but to acquiesce or face a Measure 11 sentence related to Count 2, which is totally unrelated.

Prosecutor: Your Honor, if I may, because I'm a little confused by some of Mr. Pohlman's statements. I want to make sure that he understands that by making the plea, he mentioned some sort of motion to sever that should have been granted. There's never been a motion that I'm aware of that has been argued in court or ruled upon. I would assume that he understands by entering the plea that he's giving up the right to have those kind of motions heard. So I

didn't quite understand what he was getting at by talking about post-conviction relief. Maybe the defense will clarify that.

Defense Counsel: I think Mr. Pohlman is undergoing the period of adjustment to a very difficult new reality that anyone in his circumstance would face. And I, again, am just going to ask the Court to follow the negotiated agreement of the parties. I think it is a fair agreement and a lawful agreement. I understand that it's been extremely difficult for Mr. Pohlman to accept conviction of a sex offense, but he ultimately to my judgment made that agreement knowingly, intelligently, and voluntarily.

I believe . . . he thinks more could have been done with regard to arguing to sever the sex offense charges from the violent charge of Assault in the Second Degree in this case. Uhm, ultimately at the end of the day, I do agree with counsel's legal position, that he waived any such argument for severance when he agreed to waive indictment and be arraigned on the superseding information for which he's entering pleas on today, Your Honor.

Judge: Mr. Pohlman, do you understand all that?

Petitioner: I understand that now. I didn't understand that at the time. But I understand that now, Your Honor.

Court: But you understand that now?

Petitioner: Yes.

Court: And are you still wanting to move forward with the agreement understanding what you understand now?

Petitioner: Understanding what I understand now, yes. I feel I have no choice unless a severance would have been made.

Court: I want to make certain that you understand that is water under the bridge, so to speak, at this point.

Petitioner: At this point.

Court: Assuming that you want to go forward with the agreement and be sentenced, that's water under the bridge permanently.

Defense Counsel: I have explained this to him, Your Honor. And I think at this point there would be no legal basis to change anything in the agreement, and I would ask the Court to accept - the Court

has already accepted his plea, so I just ask that the Court sentence him pursuant to his plea.

Court: All right. Anything else anyone wants to be heard on?

Prosecutor: No, Your Honor.

Respondents' Exhibit 105, pp. 6-10.

The sentencing hearing resumed and, consistent with the Plea Petition, the judge sentenced Petitioner to 75 months in prison and a term of post-prison supervision. Petitioner took a direct appeal, but the Oregon Court of Appeals affirmed the trial court's decision without issuing a written opinion, and the Oregon Supreme Court denied review. State v. Pohlman, 272 Or. app. 181, 356 P.3d 11171, rev. denied, 358 Or. 70, 363 P.3d 501 (2015).

Petitioner next filed for post-conviction relief (“PCR”) in Malheur County where he raised a variety of claims. Respondents' Exhibit 114. The PCR court granted relief as to an ineffective assistance of counsel claim based upon trial counsel's failure to object to the term of post-prison supervision as to one count, but otherwise denied relief. Respondents' Exhibit 141. Petitioner appealed that decision, raising numerous assignments of error in both counseled and pro se briefs. Relevant to this habeas corpus case, he asserted that trial counsel was ineffective for failing to move to withdraw the guilty and no contest pleas. Respondents' Exhibit 142, pp. 29-33. He argued that counsel's decision was based upon a misunderstanding of Oregon law because, if he was actually innocent, there was no factual basis for the pleas such that the trial court was required to permit their withdrawal. Id. The Oregon Court of Appeals affirmed the PCR court's decision in a written opinion that did not address this claim, and the Oregon Supreme Court denied review. Pohlman v. Cain, 312 Or.App. 676, 493 P.3d 1095, rev. denied, 368 Or. 787, 498 P.3d 809 (2021).

During the pendency of this habeas case, Petitioner litigated an unsuccessful successive PCR action in Oregon's state courts. The completion of those PCR appeals mooted Respondents' pending Motion to Dismiss Mixed Petition (#23).

On September 6, 2019, Petitioner filed this federal habeas corpus case. In his Amended Petition, he raises 51 grounds for relief. With the assistance of appointed counsel, he presents argument in support of his Ground 31 claim that reads as follows: “I assert actual/factual innocence and Trial Counsel provided improper advice on defendant's ability to withdraw plea prior to sentencing due to discovery, by client, of element of factual innocence when requested in violation of U.S. Const 5^th, 6^th, and 14^th amend.” Amended Petition (#13), p. 13; see also Memo in Support (#55), p. 10 (focusing brief on Ground 31). Respondents ask the Court to deny relief on the Amended Petition because: (1) Petitioner has not met his burden of proof on his 50 unargued claims; (2) the unargued claims are also procedurally defaulted; and (3) the PCR court's application of federal law was objectively reasonable.

DISCUSSION

I. Standard of Review

An application for a writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court's findings of fact are presumed correct, and Petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

A state court decision is "contrary to . . . clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the "unreasonable application" clause, a federal habeas court may grant relief "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id at 413. The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. Id at 410. Twenty-eight U.S.C. § 2254(d) "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents. It goes no farther." Harrington v. Richter, 562 U.S. 86, 102 (2011).

II. Unargued Claims

As mentioned above, Petitioner does not provide argument in support of 50 of the 51 claims he raises in his Amended Petition, and Respondents asserts that the unargued claims are procedurally defaulted. Not only is Respondents' procedural default argument uncontroverted, but Petitioner has not carried his burden of proof as to his unargued claims. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (Petitioner bears the burden of proving his claims). The unargued claims should therefore be denied.

III. Ground 31: Ineffective Assistance of Counsel

As Ground 31, Petitioner alleges that his trial attorney inaccurately advised him that he could not withdraw his pleas prior to sentencing when, in fact, Oregon law mandated withdrawal of the pleas if his claim of innocence removed the factual basis for them. The Court uses the general two-part test established by the Supreme Court to determine whether Petitioner received ineffective assistance of counsel. Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). First, Petitioner must show that his counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 686-87 (1984). Due to the difficulties in evaluating counsel's performance, courts must indulge a strong presumption that the conduct falls within the "wide range of reasonable professional assistance." Id at 689.

Second, Petitioner must show that his counsel's performance prejudiced the defense. The appropriate test for prejudice is whether Petitioner can show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id at 694. A petitioner who has pled guilty or no contest to an offense must demonstrate that there is a reasonable probability that, but for counsel's errors, he would not have entered such a plea and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). “The likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. 86, 112 (2011) (citing Strickland, 466 U.S. at 693). When Strickland's general standard is combined with the standard of review governing 28 U.S.C. § 2254 habeas corpus cases, the result is a "doubly deferential judicial review." Mirzayance, 556 U.S. at 122.

In this case, Petitioner relies upon the arguments he raised in the PCR court and during his PCR appeals to support his claim. Memo in Support (#55). p. 12. During his PCR appeal, he argued that his trial attorney's refusal to move to withdraw the pleas was based upon his misunderstanding of Oregon law. Respondents' Exhibit 142, p. 32. According to Petitioner, he wished to withdraw his pleas based on his assertion that “he was factually innocent of crimes to which he pleaded guilty or no contest.” Id at 32-33. He believes that his assertion of actual innocence, if accurate, would have required the trial judge to permit him to withdraw his pleas because there was no factual basis to support them. Id at 33. (citing State v. Taylor, 62 Or.App. 220, 224, 660 P.2d 690 (1983) (a defendant has no right to withdraw a plea unless the trial court determines there is an insufficient factual basis for it).

The PCR court specifically found, however, that there was no legal basis to withdraw the pleas: “Petitioner did change his mind and wanted to withdraw his plea between plea and sentencing. At that time there was no legal basis to withdraw the plea.” Respondents' Exhibit 141, p. 7 (bold added). This state-court determination regarding an issue of Oregon law is binding upon this Court. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[W]e reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."); Floyd v. Filson, 949 F.3d 1128, 1146 (9^th Cir. 2020) (even a state court's misreading of state law is not a ground for habeas corpus relief). Whether the PCR court's language means that the sentencing judge had no discretion to allow Petitioner to withdraw his pleas, or whether that language meant that the facts of Petitioner's case did not require the trial judge to permit him to withdraw his pleas, the result is the same. Ground 31 lacks merit due to the PCR court's application of Oregon law to Petitioner's case.

Beyond the PCR court's legal conclusion on the state-law issue, two points warrant emphasis. The trial judge thoroughly explained all of the relevant factors associated with the entry of Petitioner's pleas, and he knowingly, intelligently, and voluntarily entered those pleas on September 30, 2013 when he acknowledged that he was “absolutely certain” that he wanted to enter his pleas.Respondent's Exhibit 104. Despite the entry of a valid plea, at the sentencing proceeding, the judge twice gave him the opportunity to withdraw his pleas given his apparent misunderstanding that a severance issue would remain appealable post-plea. She asked whether he was “still wanting to move forward with the agreement” given his new understanding, and Petitioner indicated in the affirmative. Respondent's Exhibit 105, p. 9. Shortly thereafter, the judge again advised him, “Assuming that you want to go forward with the agreement and be sentenced,” the severance issue would be “water under the bridge permanently.” Id. Petitioner again did not avail himself of this opportunity to withdraw his pleas. Where the judge twice invited him to withdraw his pleas, Petitioner has not credibly asserted in this proceeding that erroneous advice on his ability to withdraw his pleas prevented him from actually doing so.

A sufficient factual basis for Petitioner's pleas can be found within his Plea Petition. Respondent's Exhibit 103, p. 2.

In his briefing in this Court, Petitioner also presents what amount to two additional claims. First, he asserts that the PCR court improperly emphasized the advantageousness of and benefit of the plea agreement to the defense, something that is not the proper focus in a Sixth Amendment challenge to a conviction obtained through a guilty or no contest plea. Second, he alleges that when his attorney opposed his wish to withdraw his pleas at the sentencing hearing and stated that there was no legal basis to withdraw the pleas, this effectively left him without representation. Reply (#70), pp. 2-3 (citing United States v. Gonzalez, 113 F.3d 1026, 1029 (9^thCir. 1997)). Neither of these claims is pled in the Amended Petition, thus they are not properly before the Court. See Rule 2(c), Rules Governing Section 2254 Proceedings, 28 U.S.C. foll. § 2254 (requiring each habeas petition to "specify all the grounds for relief which are available to the petitioner"); Greene v. Henry, 302 F.3d 1067, 1070 fn 3 (9th Cir. 2002) (a court need not consider claims not raised in the petition). Even assuming these two claims are properly pled within Petitioner's 51 grounds for relief, Respondents have invoked the affirmative defense of procedural default as to all claims raised within the Amended Petition with the exception of Ground 31,and it is evident that Petitioner did not present either of these questions to the Oregon Supreme Court. See Respondents' Exhibit 146. The claims are therefore procedurally defaulted and ineligible for merits review. See Coleman v. Thompson, 501 U.S. 722, 731 (1991) (a federal habeas petitioner may only raise claims he has previously presented to the state's highest court for consideration).

See Response (#65), p. 2 n. 2.

Even if the unpled claims Petitioner argues here did not suffer from these procedural deficiencies, they would not entitle him to habeas corpus relief. Petitioner alleges that it was improper for the PCR court to look at the advantageousness of the plea offer when it stated the plea deal “was a very good result” which removed exposure to Oregon's mandatory minimum sentencing scheme and allowed Petitioner to earn a reduction in the time actually served on his sentence. Respondent's Exhibit 141, p. 6. This was not the sole basis for the PCR court's decision, and it was a factor that court could reasonably consider in adjudicating the claim. See, e.g., Lee v. U.S., 582 U.S. 357, 366-68 (2017) (looking to consequences of a guilty plea from a defendant's perspective).

With respect to Petitioner's other new claim that his attorney was not functionally representing him during a part of the sentencing proceeding, he cannot establish either deficient performance or prejudice. As discussed above, the PCR court determined that Oregon law did not provide a legal basis to withdraw the pleas under the procedural posture of this case, and that interpretation of state law is binding here. Because there was no legal basis to withdraw the pleas, counsel was not obligated to attempt to do so, and Petitioner did not suffer any adverse consequence from the absence of such a motion. For all of these reasons, habeas corpus relief is not appropriate.

RECOMMENDATION

For the reasons identified above, Respondents' Motion to Dismiss Mixed Petition (#23) should be denied as moot, the Amended Petition for Writ of Habeas Corpus (#13) should be denied, and a judgment should be entered dismissing this case with prejudice. The Court should also decline to issue a Certificate of Appealability on the basis that Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2).

SCHEDULING ORDER

This Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 17 days. If no objections are filed, the Findings and Recommendation will go under advisement on that date.

If objections are filed, a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.