Opinion
Case No. 2:18-cv-00290-SI
02-14-2019
DANIEL STEVEN ZOLOTOFF, Petitioner, v. TROY BOWSER, Respondent.
Daniel Steven Zolotoff #4180964 Two Rivers Correctional Institution 82911 Beach Access Road Umatilla, Oregon 97882-9419 Petitioner, Pro Se Ellen F. Rosenblum, Attorney General Nicholas M. Kallstrom, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent
OPINION AND ORDER Daniel Steven Zolotoff
#4180964
Two Rivers Correctional Institution
82911 Beach Access Road
Umatilla, Oregon 97882-9419
Petitioner, Pro Se Ellen F. Rosenblum, Attorney General
Nicholas M. Kallstrom, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent SIMON, District Judge.
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his state-court conviction for Possession of a Weapon by an Inmate. For the reasons that follow, the Petition for Writ of Habeas Corpus (#2) is denied.
BACKGROUND
In 2009, a jury convicted Petitioner of Possession of a Weapon by an Inmate, and the trial court sentenced him to 36 months in prison to be served consecutively to the prison term he was already serving. The Oregon Court of Appeals awarded Petitioner a new trial because the trial court failed to instruct the jury on a lesser included offense involving attempt, and the Oregon Supreme Court affirmed that decision. State v. Zolotoff, 253 Or. App. 593, 595-96 (2012), affirmed 354 Or. 711 (2014).
In 2014, Petitioner proceeded to his retrial. At the conclusion of the bench trial, the trial court found Petitioner guilty of Possession of a Weapon by an Inmate and once again imposed a 36-month sentence. The Oregon Court of Appeals reversed an award of attorney fees, but otherwise affirmed the trial court's decision. State v. Zolotoff, 279 Or. App. 605 (2016). Petitioner did not seek review in the Oregon Supreme Court.
Petitioner next filed for post-conviction relief ("PCR") in Umatilla County where the PCR court dismissed the PCR Petition for failure to state a claim. Respondent's Exhibits 124 & 125. Petitioner appealed that decision, but the Oregon Court of Appeals dismissed the appeal. Respondent's Exhibit 126. Petitioner did not seek review in the Oregon Supreme Court.
On February 14, 2018, Petitioner filed this 28 U.S.C. § 2254 habeas corpus case raising the following grounds for relief:
1. Petitioner is actually innocent of the crime of conviction;
2. Petitioner's appointed attorney from the second trial was unprepared, untimely, and sought continuances only for the purpose of billing additional time to the case; and
3. Petitioner's PCR attorney effectively abandoned him when he "submitted that [Petitioner's] case was without merit[.]"
Respondent timely filed his Answer and Response on October 29, 2018. Although Petitioner's supporting memorandum was due on December 28, 2018, Petitioner has not filed his brief, sought additional time to do so, or otherwise communicated with the Court since May of last year.
DISCUSSION
I. Ground One: Actual Innocence
There are two kinds of actual innocence claims in habeas corpus proceedings. A Petitioner may make a "gateway" showing of actual innocence so as to overcome a procedural deficiency, or he may raise a "freestanding" claim of actual innocence. In Schlup v. Delo, 513 U.S. 298 (1995), the Supreme Court addressed the process by which state prisoners may prove "actual innocence" as to a gateway claim. The Court explained that in order to be credible, a claim of actual innocence "requires petitioner to support his allegations of constitutional error with new reliable evidence--whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence--that was not presented at trial." Id. at 324; Downs v. Hoyt, 232 F.3d 1031, 1040 (9 Cir. 2000), cert. denied, 121 S. Ct. 1665 (2001). Ultimately, petitioner must prove that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. Schlup, 513 U.S. at 327; Bousley v. United States, 523 U.S. 614, 623 (1998); Downs, 232 F.3d at 1040.
In this case where Petitioner raises a freestanding claim of actual innocence, he must surmount even the Schlup standard. House v. Bell, 547 U.S. 518, 555 (2006) (Herrera requires more convincing proof of innocence than Schlup). Petitioner, however, fails to present any new evidence of his innocence. Accordingly, he fails to establish his actual innocence in this proceeding.
II. Ineffective Assistance of Trial Counsel
Petitioner next alleges that his trial attorney was "untimely" insofar as he sought too many extensions of time, and that he was still unprepared at the time of trial. Where the PCR court adjudicated this claim on its merits, Petitioner will not be entitled to relief unless he can show the PCR decision was either "contrary to, or involved 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 in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
Because no Supreme Court precedent is directly on point that corresponds to the facts of this case, 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 reasonable probability is one which is sufficient to undermine confidence in the outcome of the trial. Id at 696. 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.
The PCR court dismissed Petitioner's ineffective assistance of counsel claim when it found he failed to state a valid claim for pleading purposes. In doing so, the PCR court adopted the State's reasoning that petitioner failed to allege facts sufficient to show that trial counsel was not competent, or how any deficiency on counsel's part resulted in prejudice. Respondent's Exhibits 121, 124. In this proceeding, Petitioner once again fails to identify the specific ways in which his trial attorney was allegedly unprepared for trial, nor does he establish how counsel's performance prejudiced him. Accordingly, he fails to demonstrate that the PCR court's decision involved an unreasonable application of clearly established federal law as required by 28 U.S.C. § 2254(d)(1).
III. Ground Three: Ineffective Assistance of PCR Counsel
As his final claim, Petitioner argues that his PCR attorney was constitutionally ineffective. There is no constitutional right to an attorney in state post-conviction proceedings, thus there can be no cause of action for ineffective assistance of post-conviction counsel. Coleman v. Thompson, 501 U.S. 722, 752 (1991); Pennsylvania v. Finley, 481 U.S. 551, 553 (1987). To the extent that Petitioner also seeks to raise constitutional claims against the PCR court itself, alleged errors in the state PCR process are not addressable as independent grounds for relief through habeas corpus petitions. Ortiz v. Stewart, 149 F.3d 923, 939 (1998), cert. denied 526 U.S. 1123 (1999); Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989), cert. denied, 493 U.S. 1012 (1989). /// /// /// /// /// /// ///
CONCLUSION
For the reasons identified above, the Petition for Writ of Habeas Corpus (#2) is denied. The Court declines 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).
IT IS SO ORDERED.
DATED this 14 day of February, 2019.
/s/_________
Michael H. Simon
United States District Judge