Osornio v. Reyes

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

URIEL OSORNIO, Case No. 2:22-cv-00910-MC

Petitioner, OPINION AND ORDER

v.

ERIN REYES, Superintendent,

Respondent.

____________________________

MCSHANE, District Judge.

Petitioner files this federal habeas Petition pursuant to 28 U.S.C. § 2254 challenging his

convictions for attempted murder, robbery, assault, theft, and burglary. Petitioner claims that the

State violated the terms of a plea agreement and that his counsel provided ineffective assistance

by failing to seek specific performance of the agreement. The Oregon courts rejected Petitioner’s

claims in decisions that are entitled to deference, and the Petition is DENIED.

BACKGROUND

In December 2015, Petitioner was charged by indictment in Case No. 15CR58621 with

two counts each of Attempted Aggravated Murder with a Firearm, Robbery in the First Degree

with a Firearm, Assault in the Second Degree with a Firearm, and Theft in the First Degree; and

one count each of Burglary in the First Degree with a Firearm, Felon in Possession of a Firearm

and Burglary in the First Degree. Resp’t Ex. 103.

In February 2016, Petitioner was charged by Amended Information in Case No.

16CR07249 with three counts of Burglary in the First Degree and one count of Unauthorized

Use of a Vehicle. Resp’t Ex. 106. Petitioner faced more than 360 months’ imprisonment in Case

No. 15CR58621 and more than 100 months’ imprisonment in Case No. 16CR07249. Resp’t Ex.

130 at 1.

Petitioner and the State participated in a judicial settlement conference and ultimately

agreed to resolve both cases. Resp’t Exs. 104, 107-08, 126. In Case No. 15CR8621, Petitioner

agreed to plead guilty to one count each of Attempted Aggravated Murder, Assault in the Second

Degree, Felon in Possession of a Firearm, and two counts of Burglary in the First Degree, and

the State agreed to dismiss the remaining charges. Resp’t Ex. 104. In Case No. 16CR07249,

Petitioner agreed to waive indictment and plead guilty to the offenses as charged. Id.; Resp’t Ex.

123.

The parties’ agreement also provided that the State would recommend 240 months of

imprisonment if Petitioner disclosed, with immunity, his involvement in other offenses and

verified his disclosures with a polygraph examination. Resp’t Ex. 108 at 9 (providing that the

State’s recommendation was “dependent upon” Petitioner’s assistance “in identifying other

crimes that he had committed, and if necessary…verifying his information that he provides by

polygraph examination or any other reasonable means”); see also id. (explaining that Petitioner

would receive immunity from prosecution for disclosing other offenses that he committed);

Resp’t Ex. 109 at 4 (prosecutor’s statement that the “sentencing range was dependent upon the

Defendant providing information to the Salem Police Department and that information being

verified by a polygraph examination”). The parties further agreed that the State would

recommend a sentence of 286 months if Petitioner did not fully cooperate. Resp’t Ex. 108 at 10.

On May 4, 2016, Petitioner met with Detective Burke and provided information that

allowed the Salem Police Department to clear several burglary cases. Resp’t Ex. 120 at 13.

However, Petitioner denied responsibility for the armed robbery of an ARCO gas station, a

robbery he was suspected of committing. Id. at 16. Detective Burke arranged for Petitioner to

take a polygraph examination in accordance with the parties’ agreement.

On May 6, 2016, a polygrapher questioned Petitioner about the ARCO robbery, and

Petitioner answered that he heard about the robbery from another person in the neighborhood. Id.

at 18-19. Petitioner again denied involvement in the ARCO robbery, and his answers were found

to be consistent with deception and he failed the polygraph examination. Id. at 20.

At sentencing, the State explained that, although Petitioner’s cooperation was not

sufficient to warrant a 240-month sentencing recommendation, it had agreed to a modified

sentencing recommendation of 274 months, rather than 286 months, to account for the

information provided by Petitioner. Resp’t Ex. 109 at 4-5. The trial court reviewed this

recommendation with Petitioner and confirmed that he agreed with the proposed resolution.

Resp’t Ex. 109 at 6-8. The trial court imposed concurrent and consecutive sentences totaling 274

months of imprisonment.

Petitioner directly appealed, and appellate counsel could not identify an “arguably

meritorious issue on appeal.” Resp’t Ex. 110. Accordingly, counsel filed a Balfour brief and

Petitioner submitted a supporting pro se brief. Id.; see also State v. Balfour, 311 Or. 434 (1991).

The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied

review. Resp’t Exs. 113-14.

Petitioner then sought post-conviction relief (PCR) on several grounds, including breach

of the parties’ agreement and ineffective assistance of counsel arising from the alleged failure to

seek specific performance of the agreement. Resp’t Ex. 116. The PCR court denied relief, the

Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied

review. Resp’t Exs. 130, 135-36.

DISCUSSION

Petitioner raises two Grounds for Relief in his Petition. Pet. at 6 (ECF No. 2).1 In Ground

One, Petitioner alleges that he was convicted in violation of his rights to due process, because the

State breached the terms of the Plea Agreement by not recommending a 240-month term of

imprisonment. In Ground Two, Petitioner claims that his trial counsel rendered ineffective

assistance by failing to seek specific performance of the 240-month recommendation.

Respondent maintains that the PCR court reasonably denied these claims in a decision that is

entitled to deference.2

1 Respondent argues that Petitioner failed to allege sufficient Grounds for Relief, because

he relies on PCR briefing that is attached to his Petition. See Pet at 4. Construed liberally, I find

that the Petition alleges the same two grounds that Petitioner raised on PCR appeal in the Oregon

courts.

2 Respondent also argues that Petitioner did not raise Ground One on direct appeal, and

that the claim is unexhausted and barred from federal review as a result. However, Petitioner

raised this ground as a claim in his PCR petition, and the PCR court denied the claim on the

merits. Resp’t Exs. 116, 130. On PCR appeal, Petitioner fairly presented this claim to the Oregon

appellate courts, and I consider Ground One exhausted. Resp’t Exs. 131, 134.

A federal court may not grant habeas relief regarding any claim “adjudicated on the

merits” in state court, unless the state court ruling “was contrary to, or involved an unreasonable

application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A state court decision is

“contrary to” established federal law if it fails to apply the correct Supreme Court authority or

reaches a different result in a case “materially indistinguishable” from relevant Supreme Court

precedent. Brown v. Payton, 544 U.S. 133, 141 (2005); Williams v. Taylor, 529 U.S. 362, 405-06

(2000). A state court decision is an “unreasonable application” of clearly established federal law

if the state court identifies the correct legal principle but applies it in an “objectively

unreasonable” manner. Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam); see Penry

v. Johnson, 532 U.S. 782, 793 (2001) (“even if the federal habeas court concludes that the state

court decision applied clearly established federal law incorrectly, relief is appropriate only if that

application is also objectively unreasonable”). To meet this highly deferential standard, a

petitioner must demonstrate that the state court’s ruling “was so lacking in justification that there

was an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

In his PCR proceeding, Petitioner argued that State the breached the parties’ agreement

by failing to recommend a 240-month sentence after Petitioner provided truthful information

about several unsolved robberies. Petitioner also argued that his counsel was deficient by failing

to argue that the State had breached the plea agreement and by failing to seek enforcement of the

240-month recommendation. Resp’t Exs. 116, 117 at 14-15. The PCR court rejected both of

Petitioner’s claims and made the following findings:

Counsel was not ineffective for not seeking specific enforcement by the

prosecutor to recommend the 240-month plea agreement because petitioner

breached the 240-month plea agreement. The record, the declaration by trial

counsel and the affidavit by the prosecutor all confirm that petitioner did not fully

cooperate with police, as was required by the plea agreement for the 240-month

sentence. Because the plea agreement only provided for two options – a 240-

month sentence or a 286-month sentence – and because Petitioner did not fully

comply with the plea agreement, a motion to enforce the plea agreement would

have likely resulted in a 286-month sentence. Instead, the prosecutor offered to

modify the agreement to provide for a 274-month sentence because there had

been partial compliance by the Petitioner. Petitioner agreed to the modification

and so advised the court. Petitioner advised the court that he agreed with the

modified agreement, that he had enough time to discuss it with his attorney, that

his attorney had answered all of his questions and that he wanted to proceed with

the agreed sentencing.…Trial counsel acted reasonably in not arguing to enforce

the original plea agreement.

Petitioner has also failed to prove prejudice. There is no evidence that making an

argument to enforce the original plea agreement would have likely resulted in a

240-month sentence for the Petitioner. The judge’s comments at the sentencing

suggests that such an argument could have resulted in the 286-month sentence.

Resp’t Ex. 130 at 2-3. The PCR court’s decision was not objectively unreasonable.

As noted, the PCR court found that Petitioner, and not the State, breached the parties’

agreement regarding a 240-month sentencing recommendation, because he failed to provide

truthful information regarding the ARCO robbery. Resp’t Ex. 130 at 2. In so finding, the PCR

necessarily found that parties’ agreement required Petitioner to pass the polygraph examination.

This finding is reasonably supported by the record.

First, the parties agreed, on the record, that the 240-month recommendation was

“dependent upon the Defendant and his desire and effort at assisting the Salem Police

Department in identifying other crimes that he had committed, and if necessary and as

determined by the detective, verifying his information that he provides by polygraph

examination or any other reasonable means.” Resp’t Ex. 108 at 9. In other words, to obtain a

240-month sentence, Petitioner was required to “verify” the truthfulness of his information by

passing a polygraph examination.

Second, the trial court, the prosecutor, and Petitioner’s counsel all believed that

Petitioner’s failed polygraph meant that he did not meet the cooperation requirement for a 240-

month recommendation. For example, the trial court remarked that the “terms of the agreement

did provide for verification of that [information] by polygraph” and “[n]ot all of the information

that was provided, and certainly that which appeared to be of most interest to the State, that was

not verified.” Resp’t Ex. 109 at 5. The prosecutor likewise believed that Petitioner’s polygraph

failure “did not show substantial cooperation to warrant a recommendation” of 240 months.

Resp’t Ex. 128 at 4. And Petitioner’s counsel understood that “sentencing would be subsequent

to [Petitioner] satisfying the conditions of cooperation with police and passing the polygraph,”

and that Petitioner “failed the polygraph test, thus failing his end of the settlement.” Resp’t Ex.

127 at 2.

For the same reasons, the PCR court reasonably found that counsel was not deficient by

failing to seek specific performance of the 240-month sentencing recommendation. See

Strickland v. Washington, 466 U.S. 668, 688 (1984) (to establish deficient performance, a

petitioner “must show that counsel’s representations fell below an objective standard of

reasonableness”). As the PCR court noted, reasonable counsel could have concluded that seeking

specific performance was futile given Petitioner’s failure to pass the polygraph requirement. See

Hernandez v. Chappell, 923 F.3d 544, 557 (9th Cir. 2019) (reiterating that “the failure to take a

futile action can never be deficient performance”) (quoting Rupe v. Wood, 93 F.3d 1434, 1445

(9th Cir. 1996)). Further, the PCR reasonably found that seeking specific performance could

have jeopardized the compromise offer of 274 months and resulted in the originally agreed

sentence of 286 months. Resp’t Ex. 130 at 2-3.

Finally, Petitioner cites no evidence in the record showing that a motion seeking specific

performance would have succeeded, and the PCR court reasonably found that Petitioner failed to

show prejudice arising from counsel’s alleged deficient performance. Strickland, 466 U.S. at 694

(prejudice requires showing “a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different”).

In sum, PCR court did not unreasonably apply clearly established federal law when

denying Petitioner’s claims, and he is not entitled to federal habeas relief.

CONCLUSION

The Petition for Writ of Habeas Corpus (ECF No. 2) is DENIED and this case is

DISMISSED. A Certificate of Appealability is DENIED on the basis that Petitioner has not

made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).

IT IS SO ORDERED.

DATED this 12th day of March, 2024.

s/Michael J. McShane

MICHAEL J. MCSHANE

United States District Judge