Blackman v. Stutrud

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

CODY RAY BLACKMAN Case No. 6:18-CV-01981-AC

FINDINGS AND RECOMMENDATION

Petitioner,

v.

HEATHER DAY STUTRUD, Marion

County Sheriff's Office, Community

Corrections Division,

Respondent.

ACOSTA, Magistrate Judge:

Introduction

Petitioner Cody Blackman (“Blackman”) brings this federal habeas corpus proceeding

under 28 U.S.C. § 2254. Petitioner challenges his convictions pursuant to entry of guilty pleas to

two counts of attempted kidnapping in the second degree. For the following reasons, the Petition

for Writ of Habeas Corpus (ECF No. 1) should be denied.

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Background

I. Criminal Case

The State of Oregon charged Blackman with two counts of attempted kidnapping in the

second degree. (Exs. to Ans., ECF No. 22 (“Answer”), Ex. 110.) The State charged that, on or

about April 16, 2015, Blackman attempted to take two separate victims, a 15-year-old and a 16-

year-old boy, from one place to another with the intent to substantially interfere with their personal

liberty. (Br. in Supp. of Second Am. Pet. for Writ of Habeas Corpus, ECF No. 27 (“Br.”) at 2.)

On May 20, 2015, Blackman signed a plea petition on the advice of his counsel, John

Storkel (‘““Storkel”), whereby he agreed to plead guilty to both charges in exchange for a sentence

of probation. (Br. at 2-3.) On May 28, 2015, the trial court imposed the sixty-month probationary

sentence as agreed to by the parties. (Br. at 3.) The sentence also included conditions requiring

Blackman to register as a sex offender. (Br. at 3.)

IL. Motion to Withdraw Guilty Plea

On June 4, 2015, Blackman appeared before the court on a motion to withdraw his plea or

modify the judgment to remove the sex offender requirement. (Br. at 3.) The prosecutor

acknowledged there was a misunderstanding on both his and Storkel’s part over whether Blackman

was required to register as a sex offender. (Answer, Ex. 142 at 29: 14-24.) The prosecutor

conceded based on this misunderstanding that Blackman had the right to withdraw his plea.

(Answer, Ex. 142 at 30: 6-11.) The trial court asked Storkel if Blackman wanted to withdraw his

plea, and Storkel said he did not. (Answer, Ex. 142 at 31: 2-5.) The court asked Blackman if he

understood his right to withdraw his plea, and Blackman said he understood. (Answer, Ex. 142 at

31: 18.) The court concluded that it was satisfied Blackman understood the situation and did not

want to withdraw his plea agreement. (Answer, Ex. 142 at 32: 5-10.)

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Ill. Post- Conviction Relief

In April 2016, Blackman filed a pro se petition for state post-conviction relief (“PCR”).

(Br. at 4) Ina counseled Amended Petition, Blackman alleged Storkel failed to ensure Blackman’s

“guilty pleas were knowingly, intelligently, and voluntarily made because Storkel did not

adequately explain the allegations and facts to Blackman so Blackman could fully understand and

appreciate the consequences of entering guilty pleas to the alleged charges.” (Answer, Ex. 123 at

3: 5-8.)

The PCR trial court conducted an evidentiary hearing in April 2017. (Br. at 4.) At the

hearing, Blackman testified that he did not receive a copy of the police reports until a year after

his guilty plea. (Answer, Ex. 143 at 14: 9-10.) He said Storkel would instead summarize the

police reports in their meetings. (Answer, Ex. 143 at 13: 19-20.) Blackman claimed that if he

had read the police reports earlier, he would not have pleaded guilty and would have brought his

case to trial. (Answer Ex. 143 at 16: 8-9.) Storkel also testified as a witness at the hearing. (Br.

at 6.) Storkel admitted that he did not provide Blackman with copies of the police reports, but

explained he did not because he feared they might bring Blackman harm while in custody because

of the nature of his crime. (Answer, Ex. 143 at 36: 14-18.) Instead of providing the actual reports

to Blackman, Storkel reviewed “substantive portions” of the police reports and other discovery

with Blackman. (Answer, Ex. 143 at 35: 6.)

At the conclusion of the hearing, the PCR court found Storkel’s response to be credible

and no deficiency in his performance as counsel. (Br. at 7.) On April 20, 2017, the court issued a

judgment denying relief, which memorialized the court’s in-court findings:

[Petitioner] signed a written plea [petition] that sets out his rights, and the plea

agreement states that he’d gone over the police reports with his attorney.

Il

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The court inquired of [petitioner] and [petitioner] had an opportunity to ask

questions and make a statement.

[Petitioner] had an opportunity to later withdraw his plea and chose not to do so.

This was a good deal — the second conviction was a 7D (19-20 months).

[Attorney] did not give [petitioner] a copy of the [police reports] due to their nature.

Court believes [attorney] and investigator went through [police reports with

petitioner] and [petitioner] knew what facts would be at trial.

[Court] finds the plea knowing and voluntary and a good decision. This court has

read the police reports and the state certainly had sufficient evidence to get this case

to ajury. [Petitioner]’s own statements would certainly be damaging. This court

does not believe that [petitioner] would have chanced a penitentiary sentence by

going to trial.

This court finds no inadequacy and no prejudice.

(Br. at 7-8.)

IV. Post-Conviction Appeal

On May 12, 2017, Blackman filed a Notice of Appeal from the PCR judgment. (Br. at 8.)

In his brief Blackman noted that, to prevail, he had to prove both (1) that his counsel’s performance

was deficient, and (2) that he suffered prejudice. (Answer, Ex. 137 at 7-8.) The State filed a

motion for summary affirmance, contending that Blackman failed to actually challenge both

prongs. (Answer, Ex. 138 at 2-3.) On July 26, 2018, the Oregon Court of Appeals granted the

State of Oregon’s motion for summary affirmance on the grounds that Blackman did not assign

error to the PCR trial court’s conclusion that Storkel did not render ineffective assistance.

(Answer, Ex. 141.)!

1 The court denied relief based upon Austin v. Premo, 280 Or. App. 482 (2016), which held that

where a petitioner seeks PCR based on ineffective assistance of counsel and the trial court denies

relief for failure of proof of both ineffective assistance and prejudice, to avoid summary judgment

on appeal, the petitioner must raise a substantial question of law as to both elements. Here,

Blackman addressed only the element of prejudice.

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On October 4, 2018, the Supreme Court of Oregon denied Blackman’s petition for review

without a published opinion. (Br. at 10.)

Blackman subsequently petitioned this court for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. (Second Am. Pet for Writ of Habeas Corpus, ECF No. 10.) Blackman again

alleged that he received ineffective assistance of trial counsel, and that Blackman would have

chosen to go to trial had he received “thorough and accurate legal advice” from Storkel. (Br. at

16-17.) The Respondent countered that these issues are resolved as the PCR trial court decision

qualifies for deference from this court. (Resp. to Second Am. Pet. for Writ of Habeas Corpus,

ECF No. 20 (“Response”) at 13-14.)

The Respondent also contends the claim for relief is procedurally defaulted. (Response at

5.) However, because it is apparent that Blackman is not entitled to relief on the merits of his

claims, the court does not address procedural default. See 28 U.S.C. § 2254(b)(2) (“[a]n

application for writ of habeas corpus may be denied on the merits, notwithstanding the failure of

the applicant to exhaust the remedies available in the courts of the State”); Rumningeagle v. Ryan,

686 F.3d 758, 778 (9th Cir. 2012)(exercising discretion afforded under § 2254(b)(2) to decline to

address procedural default issue where relief denied on the merits).

Legal Standard

An application for a federal writ of habeas corpus is governed by 28 U.S.C. § 2254, as

revised by the Anti-Terrorism and Effective Death Penalty Act of 1996 (‘AEDPA”). AEDPA

instructs federal courts to not grant a writ of habeas corpus unless the adjudication of a claim in

state court was (1) “contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court” or (2) “was based on an unreasonable

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determination of the facts in light of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d).

A state court decision is contrary to federal law “if the state court applies a rule that

contradicts the governing law set forth in [Supreme Court] 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 [Supreme Court] precedent.” Lockyer v. Andrade,

538 US. 63, 73 (2003)(quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Alternatively,

“[uJnder the “unreasonable application’ clause, a federal habeas court may grant the writ 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.” Williams, 529 U.S. at

413. The inquiry under this clause is not whether the state court decision was erroneous, but

whether the decision was “objectively unreasonable.” Nunes v. Mueller, 350 F.3d 1045, 1051 (9th

Cir. 2003)(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003)).

The Sixth Amendment provides defendants with the right to assistance of counsel in all

criminal prosecutions, which implies the right to effective assistance of counsel. Missouri v. Frye,

566 U.S. 134, 138 (2012). The “Sixth Amendment guarantees a defendant the right to have counsel

present at all ‘critical’ stages of the criminal proceedings.” Jd. at 140 (quoting Montejo vy.

Louisiana, 556 U.S. 778, 786 (2009)). In Padilla v. Kentucky, the Court noted that the negotiation

of a plea bargain is included among these “critical stages.” 559 U.S. 356, 373 (2010).

The Supreme Court set forth a two-prong standard for evaluating claims of ineffective

assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). First, a defendant must

show that their counsel’s “representation fell below an objective standard of reasonableness,” id.

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at 688; and second, 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.

Review of counsel’s performance under the first prong should be “highly deferential.” Jd.

at 689. “Every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct

the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” /d. Under the “prejudice” prong, where a defendant claims ineffective

assistance of counsel led him to accept a plea agreement instead of going to trial, he must show a

“reasonable probability” that, but for his counsel’s ineffectiveness, he would have proceeded to

trial and would not have pleaded guilty. Hill y. Lockhart, 474 U.S. 52, 59 (1985).

A federal habeas review of an ineffective assistance of counsel claim is “doubly

deferential.” See Cheney y. Washington, 614 F.3d 987, 995 (noting federal court review of a state

court Strickland decision applies both AEDPA and Strickland deference). “When § 2254(d)

applies, the question is not whether counsel’s actions were reasonable. The question is whether

there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Premo

y, Moore, 562 U.S. 115, 123 (2011). The “last reasoned decision” by the state court serves as the

basis of review by the federal court under this heightened deferential standard. Jd.

Discussion

Here, the decision of the state PCR trial court provides the basis for review. See Yist v.

Nunnemaker, 501 U.S. 797, 803-04 (1991)(the last reasoned decision by the state court is the basis

for review by the federal court). The PCR trial court determined “there was no inadequacy here

and no prejudice.” (Br. at 8.) The court found that Blackman signed a plea petition stating he had

gone over the police reports with his attorney, that he had the option to withdraw his plea but chose

not to, and that Storkel’s explanation for his failure to show Blackman the police reports was

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acceptable. (Br. at 7-8.) These were not “unreasonable determination[s] of the facts” in light of

statements made by Blackman and Storkel in both the PCR court hearing and in the June 4, 2015

hearing to withdraw Blackman’s plea or modify the trial court judgment. See 28 U.S.C. § 2254(d);

see also (Answer, Ex. 142 at 31: 2-5; 31:18); see also (Answer, Ex. 143 at 36: 14-18.) Given these

findings, the PCR trial court was not objectively unreasonable in concluding that Storkel’s failure

to present Blackman with copies of the police reports was not indicative of prejudice or

ineffectiveness in Storkel’s role as counsel.

Further, a key factor in the PCR trial court’s decision was the strength of the plea deal,

which allowed Blackman to avoid prison time. (Answer, Ex. 143 at 46.) In Hill, the Supreme

Court elaborated on the requirements to satisfy Strickland’s first prong within the plea bargain

context. 474 U.S. at 58-59. Where, as here, a defendant enters a plea on the advice of counsel,

“the voluntariness of the plea depends on whether counsel’s advice ‘was within the range of

competence demanded of attorneys in criminal cases.’” Id. at 51 (quoting McMann v. Richardson,

397 U.S. 759, 551 (1970)). The PCR trial court determined that the State “had sufficient evidence

to get this case to ajury” and, therefore, that the plea deal allowed Blackman to avoid a potential

penitentiary sentence of nineteen to twenty months. (Br. at 7.) The strength of this plea deal —

that it avoided both an unfavorable jury verdict at trial and no incarceration at all — demonstrates

Storkel clearly was competent in his role as counsel. Therefore, the PCR trial court was not

objectively unreasonable in concluding that Storkel’s representation was adequate.

Finally, as the PCR trial court noted, it is unlikely that Blackman would have risked a

penitentiary sentence of twenty months. (Answer, Ex. 143 at 46.) In Premo, the Court held against

the defendant under the second prong of Strickland because “[defendant]’s prospects at trial were

anything but certain.” 562 U.S. at 127. Similarly, the PCR trial court in this case observed that

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the State had sufficient evidence to make a twenty-month sentence a considerable risk for

Blackman at trial. (Answer, Ex. 143 at 46.) Accordingly, the PCR court finding of no prejudice

was not an objectively unreasonable decision.

Conclusion

For these reasons, the Petition for Writ of Habeas Corpus (ECF No. 1) should be DENIED,

and a judgment of dismissal should be entered. A certificate of appealability should be denied

because Blackman has not made a substantial showing of the denial of a constitutional right. See

28 U.S.C. § 2253(c)(2).

SCHEDULING ORDER

The above Findings and Recommendation are referred to a United States District Court

Judge for review. Objections, if any, are due by August 3, 2020. If no objections are filed, review

of the Findings and Recommendation will go under advisement that date.

A party may respond to another party’s objections within 14 days after the objections are

filed. If objections are filed, review of the Findings and Recommendation will go under

advisement upon receipt of the response, or on the latest date for filing a response.

DATED this KS A of July, 2020. ./)

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Cy UL

United States Magistrate Judge

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