Civil No. 02-955-JE.United States District Court, D. Oregon.
September 2, 2004
Marvin Leon Ballow, Eastern Oregon Correctional Institution, Pendleton, OR, Petitioner, Pro Se.
Hardy Myers, Attorney General, Douglas Y.S. Park, Assistant Attorney General Department of Justice, Salem, Oregon, Attorneys for Respondent.
FINDINGS AND RECOMMENDATION
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JOHN JELDERKS, Magistrate Judge
Petitioner brings this 28 U.S.C. § 2254 habeas corpus action challenging the Oregon Department of Corrections’ decision to deny him good-time credits. Because petitioner’s sole claim for relief is procedurally defaulted, the Petition for Writ of Habeas Corpus (#1) should be denied, and judgment should be entered dismissing this action with prejudice.
BACKGROUND
On August 6, 1992, a jury convicted petitioner of Burglary in the First Degree and Attempted Rape in the First Degree resulting in concurrent sentences of 130 and 80 months, respectively. Respondent’s Exhibit 101. Petitioner directly appealed his sentences, but the Oregon Court of Appeals affirmed the trial court without opinion and the Oregon Supreme Court denied review.State v. Ballow, 122 Or.App. 638, 858 P.2d 181, rev. denied,318 Or. 25, 862 P.2d 1305 (1993).
Petitioner next filed for collateral relief in Oregon’s post-conviction (“PCR”) courts, but the PCR trial court denied relief. Respondent’s Exhibit 106. The Oregon Court of Appeals affirmed the lower court without opinion, and the Oregon Supreme Court again denied review. Ballow v. Maass, 147 Or.App. 549, 936 P.2d 406 (1997), rev. denied, 325 Or. 491, 941 P.2d 1021
(1997). The PCR appellate judgment became final on September 4, 1997. See Respondent’s Exhibit 107, p. 3.
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On January 16, 2001, petitioner filed a state petition for writ of habeas corpus challenging the applicability of an Oregon statute (ORS 137.635) prohibiting him from amassing good-time credits based on a prior felony conviction.[1] Respondent’s Exhibit 109. The state habeas court granted the State’s motion to dismiss that action. Respondent’s Exhibit 114. The Oregon Court of Appeals affirmed the trial court’s dismissal without opinion, and the Oregon Supreme Court denied review. Ballow v. Hall,179 Or. App. 551, 42 P.3d 949, rev. denied 334 Or. 190, 47 P.3d 485
(2002). The appellate judgment was issued on July 10, 2002. Respondent’s Exhibit 120.
Petitioner filed this action on July 19, 2002 raising a single claim for relief:
Ground One: Denial of Good Time Credit under ORS 137.635, i.e. (Denny Smith).
Supporting Facts: At the time of my sentencing, ORS 137.635 was overturned by the Oregon Court of Appeals and was not in effect by the prosecutor’s own admission at sentencing, so I was not sentenced under this statute because it simply wasn’t available for the judge to include, but the department of corrections has applied to me, and toPage 4
my knowledge has made no attempt to change my sentencing order.
Respondent asks the court to deny relief on petitioner’s claim because: (1) this action is untimely; (2) the claim is procedurally defaulted; and (3) the claim lacks merit. Although petitioner has not filed a supporting memorandum to rebut any of these assertions, it is apparent to the court that any further briefing would not alter the outcome of this case.
DISCUSSION I. Timeliness.
Respondent first asserts the Petition was not timely filed because more than one-year ran untolled between the time petitioner’s PCR proceedings concluded and the filing of his state habeas corpus action. The Antiterrorism and Effective Death Penalty Act (“AEDPA”), enacted on April 24, 1996, provides that a one-year statute of limitations applies to federal habeas corpus actions filed by state prisoners. The one-year period typically runs from the date on which the criminal judgment became final by the conclusion of direct review or the expiration of the time for seeking such review, less any tolled time resulting from properly filed collateral challenges. 28 U.S.C. § 2244(d).
Petitioner’s challenge here is not to his underlying conviction, but to the execution of his sentence. He is challenging the actions taken by the Oregon Department of Corrections in refusing to award him good-time credits, not errors
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committed during his trial or resulting appeals.[2] Because only nine days elapsed between the conclusion of petitioner’s state habeas corpus proceeding challenging the denial of good-time credits and the filing of this action, petitioner has not breached the Anti-Terrorism and Effective Death Penalty Act’s one-year limitation period.
II. Exhaustion and Procedural Default.
Respondent next contends petitioner failed to fairly present his claim to the Oregon courts. A petitioner is required to exhaust his claims by fairly presenting them to the state’s highest court, either through a direct appeal or collateral proceedings, before a federal court will consider the merits of habeas corpus claims pursuant to 28 U.S.C. § 2254. Rose v.Lundy, 455 U.S. 509, 519 (1982). A petitioner is deemed to have “procedurally defaulted” his claim if he failed to comply with a state procedural rule, or failed to raise the claim at the state level at all. Coleman v. Thompson, 501 U.S. 722, 750 (1991);Edwards v. Carpenter, 529 U.S. 446, 451 (2000). If a petitioner has procedurally defaulted a claim in state court, a federal court will not review the claim unless the petitioner shows “cause and prejudice” for the failure to present the constitutional issue to the state court, or makes a colorable showing of actual innocence.
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Gray v. Netherland, 518 U.S. 152, 162 (1996); Sawyer v.Whitley, 505 U.S. 333, 337 (1992); Murray v. Carrier,477 U.S. 478, 485 (1986).
As petitioner’s claim before this court, he alleges that the Oregon Court of Appeals invalidated ORS 137.635 prior to his sentencing, therefore it was not applicable to his case and the Oregon Department of Corrections cannot deny him good-time credits. In his Appellant’s Brief and Petition for Review during his state habeas proceedings, petitioner claimed that the Oregon Department of Corrections acted unlawfully when it denied him good-time credits only because the judgment rendered by the criminal trial court “did not indicate that ORS 137.635 applied to the sentence imposed.” Respondent’s Exhibit 116, p. 3; Respondent’s Exhibit 118. Accordingly, petitioner did not ask the state courts to decide the validity of ORS 137.635; he merely alleged that the absence of the statutory citation from the criminal judgment precluded the Department of Corrections from applying ORS 137.635 to him.
Petitioner’s claim before this court is therefore distinct from the claim he presented to the Oregon Court of Appeals and Oregon Supreme Court. Because he did not give those courts the opportunity to address the issue he presents here, it was not fairly presented and remains unexhausted. As the time for presenting his claim to those courts passed long ago, it is procedurally defaulted. As petitioner has not demonstrated cause
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and prejudice, or made a colorable showing of actual innocence to excuse the default, relief on the Petition should be denied.
RECOMMENDATION
For the reasons identified above, the Petition for Writ of Habeas Corpus (#1) should be DENIED, and judgment DISMISSING this case with prejudice should be entered.
SCHEDULING ORDER
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. 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 issue, 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.
IT IS SO ORDERED.