Linton-Helms v. State of Oregon

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DENA R. LINTON-HELMS,

Case No. 3:19-cv-00877-SI

Petitioner,

OPINION AND ORDER

v.

SUPERINTENDENT PAULA MEYERS,

Respondent.

Susan F. Wilk

Assistant Federal Public Defender

101 S.W. Main Street, Suite 1700

Portland, Oregon 97204

Attorney for Petitioner

Ellen F. Rosenblum, Attorney General

James M. Aaron, 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 her state-court

convictions for Assault in the First Degree and Unlawful Use of

a Weapon. For the reasons that follow, the Amended Petition for

Writ of Habeas Corpus (#5) is denied.

BACKGROUND

On July 17, 2014, Petitioner assaulted Shelby Acosta at a

public park in Grants Pass. She demanded that Mr. Acosta give

her money he owed her and obtain some sort of medication or

narcotic. She then lashed out at him with large hunting knife.

Petitioner severed a portion of Acosta’s left ear and lacerated

his scalp. As a result, the Josephine County Grand Jury indicted

her on one count each of Assault in the First Degree and

Unlawful Use of a Weapon. Respondent’s Exhibit 102. Pursuant to

Oregon’s mandatory minimum sentencing scheme, Petitioner faced a

90-month sentence if convicted of Assault in the First Degree.

The trial court appointed Pete Smith to represent

Petitioner and, in the summer of 2014, the State offered her a

plea deal whereby she could plead guilty to Assault in the

Second Degree which carried a mandatory minimum sentence of 70

months in prison. Petitioner’s Exhibit 1, p. 2. By pleading

guilty to the lesser charge, Petitioner would not only reduce

her sentencing exposure by 20 months, but would also be eligible

to earn sentencing credits. Respondent’s Exhibit 123, p. 2.

The State’s plea offer remained open for several months. In

January 2015, Smith withdrew due to a conflict and Daniel Simcoe

substituted as new counsel. Simcoe discussed the State’s pending

plea offer with Petitioner and, according to Petitioner’s

Declaration, although she had rejected that offer while

represented by Smith, she told Simcoe she wished to accept the

offer but “wanted to know whether the offer included programs

like drug treatment.” Declaration of Dena Renee Linton-Helms,

¶ 1, ¶ 4. She also wished to know whether the prosecutor would

agree to furlough her as part of the deal so she could visit her

terminally ill mother prior to the start of her sentence.

Although Simcoe reached out to prosecutor Lisa Turner on these

issues, Petitioner swears Simcoe “never got back to me” despite

her attempts to contact him. Id at ¶ 5.

For his part, Simcoe similarly declares Petitioner rejected

the State’s offer while Smith represented her, and later asked

him to inquire as to whether she could be furloughed so as to

visit her terminally ill mother in California as part of the

plea deal. Declaration of Daniel Simcoe, ¶ 5. Simcoe approached

Turner with both the programming question and the furlough

proposal, but Turner stated Petitioner was not eligible for

Alternative Incarceration Programs and flatly rejected the

request for a furlough. In contradiction to Petitioner’s

Declaration, however, Simcoe declares that he “communicated

regularly with [P]etitioner at the jail and discussed with her

all of my communications with Ms. Turner. I communicated Ms.

Turner’s response to the furlough question to [P]etitioner.” Id

at ¶ 7. According to Simcoe, “Petitioner always maintained that

she did not commit the crimes alleged and consistently wanted to

take the case to trial despite my advice that she take the

offer.” Id at ¶ 10.

Whether attributable to omissions by counsel or

Petitioner’s own choosing, Petitioner did not accept the State’s

plea offer. She proceeded to a bench trial where the trial court

convicted her on both counts, merged the convictions for

purposes of sentencing, and imposed the statutorily-mandated 90-

month sentence. Petitioner directly appealed her convictions,

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. Linton-Helms, 284 Or. App.

557, 392 P.3d 392, rev. denied, 361 Or. 671, 399 P.3d 1007

(2017).

Petitioner next sought post-conviction relief (“PCR”) in

Washington County where, with the assistance of PCR counsel, she

filed an Amended PCR Petition raising a single claim: whether

Simcoe had been ineffective when he failed to include in his

closing argument that a fingernail recovered from the crime

scene was devoid of Petitioner’s DNA. Respondent’s Exhibit 110.

The PCR court denied relief on this claim, and Petitioner

voluntarily dismissed a subsequent appeal. Respondent’s Exhibits

119-121.

Petitioner filed this federal habeas corpus action on June

5, 2019. The Court appointed Susan F. Wilk to represent her and,

with Wilk’s assistance, Petitioner filed an Amended Petition in

which she raises five grounds for relief containing 12 claims.

In her briefing, Petitioner chooses to argue only her Ground Two

claim that Simcoe was ineffective when he failed to communicate

with her regarding a favorable plea offer. Respondent asks the

Court to deny relief on the Petition because: (1) the Amended

Petition contains no supporting facts, therefore it fails to

state a claim; (2) Petitioner’s unargued claims do not entitle

her to relief; and (3) Petitioner procedurally defaulted her

Ground Two claim and is unable to excuse that default.

DISCUSSION

I. Failure to State Claim

Rule 2(c) of the Rules Governing Section 2254 Proceedings

requires each habeas corpus petition to "specify all the grounds

for relief which are available to the petitioner[.]" In order to

comply with this Rule, a petition must contain specific facts

supporting each claim. James v. Borg, 24 F.3d 20, 26 (9th Cir.

1994). In this case, Petitioner alleges in Ground Two that her

trial attorney “failed to communicate with her regarding a

favorable plea offer.” Amended Petition (#5), p. 3. Given that

there was only one plea offer at issue in this case, the

implication is that Simcoe failed to provide adequate

communication so as to allow Petitioner to take advantage of the

State’s offer. This is sufficient to state a valid claim for

pleading purposes.

II. Unargued Claims

As noted above, the Amended Petition presents 12 claims for

the Court’s consideration. With the assistance of counsel,

Petitioner limits her argument to her Ground Two claim of

ineffective assistance of counsel. Petitioner does not argue the

merits of her remaining claims, nor does she address

Respondent’s argument that the remaining claims are procedurally

defaulted. As such, Petitioner has not carried her burden of

proof with respect to these unargued claims. See Silva v.

Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (Petitioner bears

the burden of proving her claims). Even if Petitioner had

supported these claims with briefing, the Court has examined

them based upon the existing record and determined that they do

not entitle her to habeas corpus relief.

III. Ground Two: Ineffective Assistance of Counsel

A. Evidentiary Objections

1. Hearsay Statements

Petitioner maintains that when Simcoe failed to communicate

with her regarding a plea offer she was willing to accept, the

offer lapsed and the trial court convicted her of the more

severe offense of Assault in the First Degree. During the course

of this habeas corpus case, Wilk and her investigator, Mitzi

Miller, interviewed Simcoe in relation to Petitioner’s Ground

Two claim. Petitioner seeks to admit Simcoe’s statements during

that interview through Miller’s Declaration. Respondent objects

to paragraphs eight and nine of that Declaration on the basis

that, while they are properly considered for impeachment

purposes, they constitute inadmissible hearsay.1

1 Paragraphs eight and nine address Simcoe’s discussions with the prosecutor.

Miller declares that Simcoe “indicated that she wished to accept the offer”

but had questions about whether a furlough would be possible and whether she

would qualify for Alternative Incarceration Programs. Miller Declaration,

¶ 8. According to Miller, Simcoe stated that although he had no documentation

memorializing his discussions with Petitioner, he was certain that he relayed

It is difficult to parse out what amounts to potential

impeachment evidence versus hearsay, but the disparities between

what Miller claims Simcoe said, and what Simcoe himself

declares, are few as well as immaterial to the resolution of

this case. The Court will therefore consider the totality of

paragraphs eight and nine of the Miller Declaration in reaching

a decision on the issues in this case.

2. Disciplinary Records

As part of her investigation, Miller also obtained Simcoe’s

Oregon State Bar disciplinary file containing two public

reprimands and four complaints that did not result in any

disciplinary action. Petitioner believes that this history

displays a pattern of poor communication from Simcoe that

renders it more likely that he failed to properly communicate

with her. Respondent objects to Petitioner’s use of Simcoe’s Bar

disciplinary records as irrelevant, unfairly prejudicial, and

improper propensity evidence in violation of Fed. R. Evid. 403

and 404(b), respectively.

Although Petitioner attempts to establish that Simcoe acted

in conformity with his character as demonstrated by his

disciplinary record with the Oregon State Bar, such evidence is

inadmissible under Fed. R. Evid 404(b) which bars the use of

prior crimes, wrongs, or other acts to establish that a person

acted in accordance with his character on a particular occasion.

In addition, the two public reprimands the Bar levied against

that information to Petitioner and that she “decided to go to trial instead

of pleading guilty.” Id at ¶ 9.

Simcoe are irrelevant insofar as they did not pertain to the

failure to communicate a plea offer. Instead, those reprimands

involved: (1) legal advice to an unrepresented person and the

failure to promptly return client property upon the termination

of the representation; and (2) the failure to follow up with a

client and submit forms pertaining to spousal death benefits.2

Miller Declaration, ¶ 12. Accordingly, the Court will not

consider the proposed evidence pertaining to Simcoe’s

disciplinary record with the Oregon State Bar.

B. Cause and Prejudice

The parties agree that Petitioner failed to fairly present

her Ground Two claim to Oregon’s state courts, leaving it

procedurally defaulted. Petitioner argues, however, that the

Court should excuse the default because her PCR attorney

performed deficiently by failing to raise it.

In Martinez v. Ryan, 566, U.S. 1 (2012), the Supreme Court

set forth the procedure by which a habeas corpus petitioner can

excuse a procedural default associated with a claim of

ineffective assistance of trial counsel. First, Petitioner must

show that her attorney in her initial-level PCR proceeding was

ineffective under the standards the Supreme Court announced in

Strickland v. Washington, 466 U.S. 668 (1984). Id at 14. “[T]o

fulfill this requirement, a petitioner must not only show that

PCR counsel performed deficiently, but also that this prejudiced

petitioner, i.e., that there was a reasonable probability that,

2 The four Bar complaints Petitioner references that did not result in

disciplinary action would be of very limited probative value even if they

were otherwise admissible.

absent the deficient performance, the result of the post-

conviction proceedings would have been different.” Runningeagle

v. Ryan, 825 F.3d 970, 982 (9th Cir. 2017) (quotation omitted).

Next, Petitioner must show that the defaulted claim of

ineffective assistance of trial counsel is substantial insofar

as it has some merit. Martinez, 566 U.S. at 14.

Petitioner argues that PCR counsel ignored Simcoe’s failure

to adequately communicate the State’s plea offer and, instead,

proceeded to pursue a borderline frivolous claim pertaining to

the absence of DNA evidence from a fingernail recovered from the

crime scene. She argues that the evidence against her was so

overwhelming that she had no realistic chance of prevailing on

such a claim, and that PCR counsel performed deficiently by

pursuing that claim to the exclusion of her Ground Two claim.

In support of her argument, Petitioner points out that PCR

counsel had access to Simcoe’s trial notes and emails, including

an email from Simcoe to Turner in which he indicated that “I

believe Linton-Helm will accept your latest offer.” Miller

Declaration, Att. A. However, that email also asks Turner to

agree to allow Petitioner a furlough. Id. In response, Turner

refused the additional furlough request. This documentary record

did not provide a clear indication that Petitioner wished to

accept the State’s offer in the absence of the furlough.3

3 Simcoe’s impression from speaking with Petitioner was that her primary

concern, both in the months leading up to Simcoe’s appointment as well as

during plea negotiations involving Simcoe, was “getting let out of jail, not

resolving the case by plea.” Simcoe Declaration, ¶ 5. Although his email to

Turner suggests that Petitioner was willing to resolve the case by way of

plea agreement, the email and Declaration are not necessarily inconsistent.

Petitioner also believes that PCR counsel should have

examined counsel’s notes and, finding them devoid of a specific

entry pertaining to plea discussions or any decision to forego

the State’s plea offer, raised her Ground Two claim which was

clearly supported by relevant case law at the time. See Missouri

v. Frye, 566 U.S. 134, 145 (2012) (attorneys must communicate

formal plea offers from the prosecution). The absence of a

billing entry or specific notes pertaining to plea discussions

is insufficient to prompt a reasonable practitioner to assume

that an attorney failed to adequately communicate a plea offer.

Indeed, Petitioner, herself, declares that she and Simcoe

discussed the State’s plea offer while also noting the absence

of notes in Simcoe’s files referencing such discussions. Linton-

Helms Declaration, ¶¶ 4-5.

It is also telling that although Petitioner claims she

repeatedly attempted to discuss the plea offer with Simcoe only

to be ignored, notably absent from her Declaration is any

statement that she ever told PCR counsel that the plea offer had

been an issue in her case. Consistent with that omission, PCR

counsel declares:

I have no specific memory of talking about

whether petitioner would have taken a plea

offer, but I usually do when the facts are

as unfavorable as in this case. A failure to

communicate a plea offer or to adequately

advise the defendant about such an offer is

a type of claim that I regularly seek out

and raise in post-conviction when the facts

support it. If petitioner had told me that

she was unaware of a plea offer or that she

had wanted to accept the state’s offer, I

would have raised a claim regarding that

issue.

Declaration of Travis Rhoades Dickey, ¶ 4.

Thus, not only does Petitioner’s own Declaration make no

mention of any communications with PCR counsel about the plea

issue,4 but PCR counsel’s Declaration suggests that Petitioner

never alerted him that she had difficulty communicating with

Simcoe about the plea. On this record, it was not incumbent upon

PCR counsel to raise the ineffective assistance of counsel claim

Petitioner now argues as Ground II. See Strickland, 466 U.S. at

691 (attorney performance is properly evaluated based upon

information the client provides to counsel).

Because PCR counsel had no reason to suspect that Simcoe

failed to properly communicate the State’s plea offer, PCR

counsel’s performance did not fall below an objective standard

of reasonableness. Accordingly, Petitioner cannot excuse her

default as to Ground Two.

V. Evidentiary Hearing

Finally, Petitioner asks the Court to conduct an

evidentiary hearing should it require additional evidence to

resolve whether she has made a showing of cause and prejudice to

excuse her procedural default. Petitioner and Respondent have

already expanded the record on the issue of cause and prejudice,

and that new evidence in conjunction with the existing record

make it clear that Petitioner is unable overcome her procedural

default. Where the record in this case is sufficiently developed

4 In fact, Petitioner’s Declaration makes no mention of PCR counsel at all.

to resolve the issues before the Court, Petitioner’s request for

an evidentiary hearing is denied. See Rhoades v. Henry, 638 F.3d

1027, 1041 (9th Cir. 2011); see also Gandarela v. Johnson, 286

F.3d 1080, 1087 (9th Cir. 2002).

CONCLUSION

For the reasons identified above, the Petition for Writ of

Habeas Corpus (#5) is denied. The Court does, however, issue a

Certificate of Appealability on the issue of whether Petitioner

has demonstrated cause and prejudice sufficient to excuse the

procedural default of her Ground II claim.

DATED this 1st day of March, 2021.

/s/ Michael H. Simon_

Michael H. Simon

United States District Judge