Petition for Writ of Certiorari — Forge Dennis Mileham, Petitioner v. Jeff Premo, Superintendent, Oregon State Penitentiary

No.

IN THE SUPREME COURT OF THE UNITED STATES

FORGE MILEHAM,

Petitioner,

Y

MR. PREMO,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Oliver W. Loewy

Assistant Federal Public Defender

101 SW Main Street, Suite 1700

Portland, Oregon 97204

(s03) 326-2123

Attorney for Petitioner

OUESTION PRESENTEI)

Mr. Mileham claimed in state postconviction proceedings that trial counsel

had been ineffective in advising Mr. Mileham respecting whether to waive a jury

triaI, in failing to request a hearing on whether Mr. Mileham was competent to

stand trial, and in failing to object to the imposition of consecutive sentences on

several counts of conviction. The only supporting factual allegations were that

trial corrnsel had failed to advise Mr. Mileham that he would be facing a life

sentence, that trial counsel "was informed of my mental state and that I had

recently attempted suicide," and that trial counsel had failed to object to the

imposition of consecutive sentences on certain counts of conviction. D. Ct. Dkt.

l9-2 at 178. In federal habeas proceedings, Mr. Mileham sought relief based on

related claims but which included robust and disturbing allegations of fact never

presented to the state courts-including particularized allegations of a long and

troubling history of suicidality, alcoholism, and psychiatric hospitalizations.

The question presented is: Whether a Court of Appeals' denial of a

certificate of appealability conflicts with this Court's rulings in Vasquez v. Hillery,

474U.5.254,260 (1986), and Miller-El v. Coclcrell,537 U.S. 322,336 (2003),

where the district court determined that ineffective assistance of counsel claims

were exhausted even though the federal claims included robust and disturbing

I

factual allegations as compared to the state court claims whose factual allegations

were sparse and qualitatively neutral

ll

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED

I

JURI SDICTIONAL STATEMENT

1

CONSTITUTIONAL AND STATUTORY PROVISIONS

1

STATEMENT OF TFIE CASE

2

A. State Court Proceedings

2

B. Federal Habeas Proceedings...........

...................4

REASONS FOR GRANTING TFIE WRIT.....

..........7

The Lower Courts Employ Various Inconsistent Interpretations Of Hillery

In Determining Whether A Claim Is New, As Compared To One

Adjudicated In State Postconviction Proceedings. ................

7

l1

CONCLUSION

1il

APPENDIX

Ninth Circuit's Order Denying Certificate of Appealability

1

Ninth Circuit's Order Denying Motion for Reconsideration

2

District Court's Opinion and Order

a

J

District Court's Judgment

............12

1V

TABLE OF AUTHORITIES

Page(s)

IJ.S. Const. Amend. VI

...... 1

CASES

Cullen v. Pinholster,

s63 U.S. 170 (2011)

7-8

Dickens v. Ryan,

740F.3d t302 (2014)

10

Gonzalez v. Wong,

667 F.3d965 (9th Cir. 2011)

10

Gray v. Zook,

806 F.3d 783 (4th Cir. 2015)

8

Kernan v. Hinojosa,

136 S.Ct. 1603 (2016)

7

Lafler v. Cooper,

s66 U.S. ts6 (20t2)

5

Martinez v. Ryan,

s66 U.S. | (2012)

8

Mileham v. Mr. Premo,

2018 WL 65 15142 (D. Or. December 1 1, 201 8)

1

Mileham v. Premo, No. I9-356013,

2019 WL 1 531774 (9th Cir. April 2,2019)

1

Mileham v. Taylor,

367 P.3d 568 (Or. Ct. App. 2016)

4

Miller-El v. Coclrell,

s37 U.S. 322 (2003)

Moore v. Mitchell,

708 F.3d 760 (6thCir.2013)

I

9, 10

Penry v. Lynaugh,

492rJ.5.302 (1989)

9

Rhines v. Young,

8e9 F.3d 482 (2018)

8

State v. Mileham,

2s0 P.3d 464 (Or. Ct. App. 2011)

-J

Strickland v. Washington,

449 U.S. 668

5

Vasquez v. Hillery,

i,7,8, 10, 1l

474U.5.2s4 (1e86)

STATUTES

18 U.S.C. $ 3006(4) (2012)

1

18 U.S.C. s 3oo6A(dx7) (20t2)

I

28 U.S.C. $ r2s4(1) (2012)

I

28 U.S.C. $ 22s3(c)(t) (2012)

I

28 U.S.C. $ 22s3(c)(2) (2012)

') J

-)

a

28 U.S.C. s 22s4

4

VI

OPINIONS BELOW

The United States District Court for the District of Oregon denied

Mr. Mileham's petition for writ of habeas colpus in an unpublished opinion and

order. App. at3-ll (Milehamv. Mr. Premo,2018 WL 6515142 (D. Or. December

lI,2073)). That Court also denied a certificate of appealability. App. at ll. On

appeal, the United States Court of Appeals for the Ninth Circuit also denied a

certificate of appealability as rvell as a motion to reconsider that denial. App. at 1

(Mileham v. Premo, No. 19-35 6013, 2019 WL 1 53177 4 (9th Cir. April 2, 2019).

The Ninth Circuit denied a motion to reconsider. App. at2 (Mileham v. Premo,

No. 19-356013 (9th Cir. April 26,2019).

STATEMENT

JURISDICTION

This Court has jurisdiction to review this petition for writ of certiorari under

28 U.S.C. $ 1254(1) (2012). The Ninth Circuit filed its order sought to be

reviewed on April 2,2019. App. at 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Const. Amend. VI provides

In all criminal prosecutions, the accused shall enjoy the right . . . to

have the Assistance of Counsel for his defense.

28 U.S.C. $ 2253(c)(I) (2012) provides:

Unless a circuit justice ofjudge issues a certificate of appealability,

an appeal may not be taken to the court of appeals from-

1

(A) the final order in a habeas corpus proceeding in which

the detention complained of arises out of process

issued by a State court. . .

28 U.S.C. $ 2253(c)(2) (2012) provides:

A certificate of appealability may issue . . . only if the

applicant has made a substantial showing of the denial of a

constitutional right.

STATEMENT OF THE CASE

A. State Court Proceedings

On Octob er 12, 2007 , a Hood River County, Oregon, grand jury returned a

thirteen count indictment charging Mr. Mileham with violent offenses against

Cheri Belander and Lela Teresa Hulahan. After his bench triaI, Mr. Mileham was

sentenced to a total of 320 months (about 26 ll2 years) imprisonment.

Ms. Hulahan, in her trial testimony, recounted Mr. Mileham's suicidality

and other mental imbalance. She testified that while assaulting her, Mr. Mileham

instantaneously pivoted from assaulting her to trying to kill himself. D. Ct. Dkt.

79-I al106-07 (trial transcript). When an officer first approached Ms. Hulahan

after the assault, she was holding an open cell phone and explained that she had

just been calling 911 when her phone died. Id. She told the officer that a friend

had beaten her up and that "[s]he was afraid that her friend was going to kill

himself . . . fw]ith a knife. She explained . . . that he was holding the knife to his

2

wrist threatening to kill himself, and actually asked her to hold his hand while he

did it." Id. at94

After his arrest later that night, Mr. Mileham was placed on suicide watch

and remained in that custody level until shortly after being sentenced.

Nevertheless, while in pretrial custody, Mr. Mileham attempted suicide by cutting

a major blood vessel with a razor blade. At the same time, he scrawled "Not

Guilty" on his cell wall with his own blood. Letters to his children explaining his

suicide were found in his cell. Trial counsel neither investigated Mr. Mileham's

mental health background nor moved for a hearing on whether Mr. Mileham was

competent to stand trial.

Mr. Mileham appealed his conviction and sentence. The Oregon Court of

Appeals affirmed without opinion, and the Oregon Supreme Court denied review.

State v. Mileham, 250 P.3d 464 (Or. Ct. App. 20ll) (table), pet'n for review

denied,256P.3d 1097 (Or. 2011) (table).

Mr. Mileham filed a petition for postconviction relief. Mileham v. Franke,

Umatilla County Circuit Court Case No. CV120714. Among other claims, Mr.

Mileham asserted that

(a) Trial counsel was ineffective because he "failed to adequately advised

Petitioner about the risk inwaiving a jury trial (that he would be

facing a life sentence). D.Ct. Dkt. l9-2 at 145 (amended

postconviction petition) (italics added).

-'t

(b) Trial counsel was ineffective because he "failed to request a

competency hearing although trial counsel was informed of

Petitioner's mental stat (suicide attempt)." Id.

(c) Trial counsel was ineffective because he "failed to object to the trial

court's imposition of consecutive sentences on Counts 2,6, and7." Id.

Relief was denied. The Oregon Court of Appeals affirmed without opinion, and the

Oregon Supreme Court denied review. Mileham v. Taylor,367 P.3d 568 (Or. Ct.

App. 2016) (table), pet'nfor review denied,370P.3d 1252 (Or. 2016) (table).

B. Federal Habeas Proceedings

On April 29,2016, the Court docketed Mr. Mileham's pro se Petition for

Writ of Habeas Corpus Pursuant to 28 U.S.C. 5 2254. D. Ct. Dkt.2. In an

amended petition, Mr. Mileham raised claims related to but distinct from the three

claims noted above:

(a) Trial counsel was ineffective because he "failed to adequately advise

Mr. Mileham regarding the advantages, disadvantages and risks in

rejecting or accepting the State's plea offers." D. Ct. Dkt. 28 at 6.

He further asserted that:

In failing to advise Mr. Mileham on the likelihood of

conviction after trial before a judge rather than a jury, on

the likelihood of a higher sentence after trial as compared

to the plea offer, and on the maximum sentence to which

Mr. Mileham would be exposed if convicted after Irial,

trial counsel performed deficiently. Had trial counsel

provided adequate advice in these regards, there is a

reasonable probability that Mr. Mileham would have

accepted the plea offer made before trial andlor the plea

4

offer made during trial. Lafler v. Cooper,566 U.S. 156,

r7o-7r (20t2).

D. Ct. Dkt. 28 at 7 .

(b) Trial counsel was ineffective because he "failed to adequately

investigate whether Mr. Mileham was competent to stand trial and

failed to move for a competency hearing." Id. (capitalization and

bolding deleted).

(c) Trial counsel was ineffective because he "failed to adequately

investigate Mr. Mileham's background and mental health in

preparation for the sentencing hearing [and] failed to present and

argue in favor of a lesser sentence what information he did possess

regarding Mr. Mileham's background and mental health." D. Ct. Dkt.

28 at9.

In support of (b), Mr. Mileham noted that his two attempted suicides, one

during one of the charged offenses and the other while in jail awaiting trral,

triggered counsel's obligation to investigate Mr. Mileham's background for

evidence suggestive of mental health difficulties and to present the results of that

investigation to a defense mental health professional with expertise in competency

determinations. D. Ct. Dkt. 35 at 10-11 (supporting brief) (citing to Strickland v.

Washington,44g U.S. 668, 691 ("counsel has a duty to make reasonable

investigations or to make a reasonable decision that makes particular investigations

unnecessary")). In support of (b) and (c), above, Mr. Mileham contended that had

trial counsel conducted an adequate investigation into Mr. Mileham's mental

health background, he would have leamed, among other things, that:

5

a

Forge grew up in a neglectful and physically abusive home. Indeed,

when he was approximatcly two years old, his biological mother

tried to suffocate him with a pillow.

a

Forge started drinking when he was about 7 years old. He remained

an active alcoholic until he was arrested in the underlying state

case.

a

Forge started using marijuana when he was about 11 or 12 years

old, and he abused other drugs as a teenager.

a

Forge first attempted suicide at age 12 or 13.

a

Shortly after his first suicide attempt, Forge was hospitalized at St.

Anthony's Hospital in Oklahoma City, Oklahoma, for

approximately six months because, among other things, he

remained suicidal. During his hospitalization, Forge was prescribed

Thorazine, a powerful medication used to treat such serious mental

health difficulties as schizophrenia, psychosis, and bipolar disorder.

a

Within ayear or two of his Oklahoma City mental health

hospitalization, Forge was admitted to the Oregon State Hospital

after again attempting suicide.

a

After having severely cut himself with the razor blade at NORCO

(so severely that he was hospitalized and placed on prescription

psychiatric medication), the jail's health care provider prescribed

Mr. Mileham a variety of medications including but not limited to

Elavil, Amitriptyline and Trazodone, and that Mr. Mileham was

continued on these andlor other psychiatric medications throughout

the remainder of his stay at NORCO, including throughout his trial

and sentencing. After his suicide attempt in jail, Mr. Mileham was

placed in special housing due to his mental health difficulties. He

remained specially housed until the conclusion of his trial

proceedings.

Dkt. 35 at lI-12.

6

After briefing, the District Court denied the three ineffective assistance of

trial counsel claims highlighted above on the ground that while they had all been

raised in state postconviction proceedings, each had been abandoned on appeal.

App.atT-8

REASONS FOR GRANTING THE WRIT

The Lower Courts Employ Various Inconsistent Interpretations Of

Hillery In Determining Whether A Claim Is New, As Compared To One

Adjudicated In State Postconviction Proceedings.

How to determine whether a federal habeas claim is new, as compared to a

related claim adjudicated in state postconviction proceedings, is an important

federal question because whether a claim is new drives how a court treats it. It has

profound effects on whether the claim may be reviewed on its merits at aII and,

assuming merits review is available, on what standard of review is employed and

what evidence may be considered in deciding the claim. If the claim had been

adjudicated in state court, then federal habeas courts must review with deference

the state court decision and may not consider any evidence outside the state court

record unless certain requirements are satisfied. Kernan v. Hinojosa, 136 S.Ct.

7603,1604 (2016) (AEDPA mandates "deference, rather than de novo, review" of

merits adjudicated claims unless either S 2254(d)(1) or (dX2) is satisfied); Cullen

v. Pinholster, 563 U.S. 170 (2011) (federal habeas court considering the merits of

an state court adjudicated claim ordinarily may not consider evidence beyond the

7

state court record). However, if a claim has not been adjudicated in state court, the

default may be excused by showing cause and prejudice. An ineffective assistance

of trial counsel ("IATC") claim may be excused, in an initial review jurisdiction,

by showing that postconviction counsel was ineffective in failing to raise the IATC

claim. Martinez v. Ryan,566 U.S. I (2012). Thus, generally, whether an IATC

claim is new governs whether a habeas petitioner may be able to present new

evidence and whether his claim will be reviewed de novo

Over two decades ago, the Court held that a habeas claim is new if it

"fundamentally alterfs]" the claim as presented to the state courts. Vasquez v

Hillery,474rJ.S.254,260 (1986). With no subsequent guidance from this Court

on how to determine when a claim is fundamentally altered, the lower courts have

developed different approaches.

The Fourth Circuit holds frtat"apetitioner may not support a claim in state

court with 'mere conjecture' and subsequently provide the necessary evidentiary

support for the claim on federal habeas review." Gray v. Zook,806 F.3d 783,799

(4th Cir. 2015) (quoting Winston v. Kelly,592F.3d 535 (4th Cir. 2010))

Similarly, the Eighth Circuit holds that "merely provid[ing] additional

evidentiary support" did not "fundamentally alter" the claim presented in state

court. Rhines v. Young,899 F.3d 482, 495 (2018). This could simply be an

unremarkable statement that where the "additional evidentiary support" is

8

immaterial, then it does not fundamentally alter the claim. But the Rhines opinion

did not note that the additional proffered evidence was of a type quintessentially

mitigating and that it had not been presented to the state courts. Specifically,

habeas counsel presented evidence of childhood exposure to environmental toxins,

of brain damage, and of military service and its resulting trauma. Rhines v. Young,

Case 00-5020-KES (S.D. Westem Div.) at Dkt. 282 (motion for leave to amend

and exhibits). Each of these factors is classic mitigation, as each may reduce moral

culpability. See Penry v. Lynaugh,492 U.S. 302, 319 (1989) ("defendants who

commit criminal acts that are attributable to . . . mental problemsf] may be less

culpable than defendants who have no such excuse") (internal quotation marks and

citation omitted). Thus, in ruling that the claim had been adjudicated in state court,

the Eighth Circuit is fairly read to have rejected in principle that a claim

adjudicated in state court can be fundamentally altered and, therefore, rendered

new and unexhausted by alleging or presenting supporting evidence for the first

time in federal court.

The Sixth Circuit, too, has rejected in principle that new facts presented in

federal habeas proceedings in support of a claim adjudicated in state court can

render it new and unexhausted. In Moore v. Mitchell, 708 F .3d 7 60 (6th Cir.

2013), the Court of Appeals ruled that petitioner's state court argument that

counsel spent insufficient time preparing his expert who, as a result, gave

9

damaging testimony exhausted his federal court claim based on depositions from

trial counsel, a mitigation specialist, and a psychologist. The Sixth Circr"rit rr"rled

that because the claim had been adjudicated in state court, new supporting

evidence could not render it new and unexhausted. Id. at 780 ("Thus we are faced

with the novel question stemming from Pinholster:May a federal habeas court

consider additional evidence not before the state courts[?] . . . We hold that it may

not." Id.

In the case at bar, the Ninth Circuit denied a COA on whether several of

Petitioner's habeas claims were exhausted. None of the salient facts alleged in his

federal habeas proceedings in support of his claims rendered had been presented in

state court. See also Gonzalez v. Wong,667 F.3d 965, 980 (9th Cir. 20ll)

(determining that habeas claim is not new even though "if the new evidence were

considered, fthe petitioner] could make a colorable or potentially meritorious

Brady claim fon which, in its state court iteration, the petitioner lost]"). Of course,

the Ninth Circuit has sometimes adhered to the Court's test set out in Hillery. See

Dickens v. Ryan,7 40 F .3d 1302 (2014). Nevertheless, as the instant case and

Wong illustrate, it does not always do so, and the cases discussed above from other

Circuit Courts of Appeal make clear that Hilleryhas been variously interpreted.

Lower courts and litigants need further guidance on how to distinguish new claims

from related claims adjudicated in state court

10

CONCLUSION

For these reasons, this Court should grant certiorari to resolve how to

distinguish new claims from related claim adjudicated in earlier state court

proceedings, or, in light of Hillery, grantthe writ, vacate the judgment, and remand

for further proceedings.

Respectfully submitted on July l,

oli ver w

Assistant Federal Public Defender

Attorney for Petitioner

11