Rose v. Palmateer ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASON WAYNE ROSE, 
Petitioner-Appellant, No. 03-35937
v.
 D.C. No.
CV-00-01041-REJ
JOAN PALMATEER, Superintendent,
Oregon State Penitentiary, OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the District of Oregon
Robert E. Jones, District Judge, Presiding
Argued and Submitted
September 17, 2004—Portland, Oregon
Filed January 24, 2005
Before: J. Clifford Wallace, Ronald M. Gould and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Wallace
1063
ROSE v. PALMATEER 1065
COUNSEL
Noel Grefenson, Salem, Oregon, for the petitioner-appellant.
Timothy A. Sylwester, Assistant Attorney General, Salem,
Oregon, for the respondent-appellee.
1066 ROSE v. PALMATEER
OPINION
WALLACE, Senior Circuit Judge:
State prisoner Rose appeals from the district court’s denial
of his 28 U.S.C. § 2254 petition. He argues that he properly
exhausted the claim that his confession and re-enactment of
events were unlawfully induced and should have been sup-
pressed, and he contends he did not validly waive his Ex Post
Facto Clause objection to his sentence. The district court had
jurisdiction pursuant to 28 U.S.C. § 2254(a). We have juris-
diction over this timely appeal pursuant to 28 U.S.C.
§ 2253(a), and we affirm.
I.
Following his arrest, Rose confessed to the robbery and
murder of Melissa Meyer and re-enacted the crime for investi-
gating officers. His videotaped re-enactment was admitted at
trial. On April 20, 1989, Rose was convicted of aggravated
murder and robbery in the first degree. The jury subsequently
sentenced him to death. On automatic and direct review, the
Oregon Supreme Court affirmed his convictions but vacated
his death sentence due to a jury instruction error in the penalty
phase and remanded. State v. Rose, 810 P.2d 839 (Or. 1991).
To avoid the possibility that he would again receive the
death sentence, Rose, with the assistance of counsel, negoti-
ated an agreement with the state pursuant to which he would
accept a sentence of life without the possibility of release or
parole. The state specifically refused Rose’s offer of life with
the possibility of parole after 30 years, so Rose’s only choice
for a settlement to avoid the possibility of the death penalty
was life without parole. This “true life” sentence was not
authorized under state law until an amendment to Oregon
Revised Statutes § 163.105, which became effective after
Rose was convicted but before his resentencing took place in
1992. See OR. REV. STAT. §§ 163.105, 163.105(5) (1993). This
ROSE v. PALMATEER 1067
amendment was made retroactively applicable to Rose
because he was a “defendant sentenced to death after Decem-
ber 6, 1984.” Id. § 163.150(5)(e). Prior to this amendment, the
only sentencing options for aggravated murder were death or
life in prison with the possibility of parole after thirty years.
See OR. REV. STAT. § 163.105 (1987). In State v. McDonnell,
987 P.2d 486 (Or. 1999), the Oregon Supreme Court held that
a defendant may waive an Ex Post Facto objection to the
application of the revised statute, and a court errs if it refuses
to allow such application despite a defendant’s waiver. Id. at
492-93.
On July 31, 1992, a Lane County Circuit Court judge
reviewed the terms of the agreement in the presence of the
prosecutor, Rose and his counsel, and questioned Rose in
order to ascertain whether he understood the nature and con-
sequences of accepting the “true life” sentence. Rose
expressly reserved in the plea agreement his rights to appeal
and to pursue post-conviction relief.
The Oregon Court of Appeals affirmed without opinion,
State v. Rose, 865 P.2d 1341 (Or. Ct. App. 1993), and Rose
did not seek review by the Oregon Supreme Court. Accord-
ingly, the judgment of the Oregon Court of Appeals became
final on January 7, 1993.
On December 29, 1993, Rose filed a petition for post-
conviction relief in Marion County Circuit Court, claiming,
among other things, that (1) he was denied the effective assis-
tance of trial and appellate counsel in violation of the Sixth
and Fourteenth Amendments to the U.S. Constitution, and (2)
his life sentence was unconstitutional under Article I, § 10 of
the U.S. Constitution. The court denied post-conviction relief,
and the Oregon Court of Appeals affirmed without issuing an
opinion. Rose v. Maass, 972 P.2d 1233 (Or. Ct. App. 1999).
The Oregon Supreme Court denied review. Rose v. Maass,
994 P.2d 130 (Or. 2000). The judgment of the Oregon Court
of Appeals became effective on March 2, 2000.
1068 ROSE v. PALMATEER
On July 31, 2000, Rose filed a federal habeas petition
which included his claim that his confession and re-enactment
of the crime were unlawfully induced by a police officer in
violation of the Fifth Amendment to the U.S. Constitution. He
also asserted that his sentence of life without parole was
unconstitutional because it was “brought into effect” after he
had been convicted. The district court held Rose had failed to
exhaust his Fifth Amendment claim in the state courts and had
waived any Ex Post Facto objection to his sentence.
We review de novo the district court’s denial of Rose’s
habeas petition. Peterson v. Lampert, 319 F.3d 1153, 1155
(9th Cir. 2003) (en banc). Habeas relief is not allowed unless
the state court adjudication resulted in a decision that was
“contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States,” or was “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).
II.
[1] Rose argues that his confession and re-enactment were
in violation of his rights under the Fifth and Fourteenth
Amendments. The district court found that this argument was
waived because Rose did not raise this claim on direct appeal
or in his state habeas petition. Pursuant to 28 U.S.C.
§ 2254(b)(1)(A), a federal court may not consider the merits
of Rose’s Fifth Amendment claim unless he has exhausted all
available state court remedies. To satisfy the exhaustion
requirement, Rose must have fairly presented this claim in the
state courts in order to give them the “opportunity to pass
upon and correct alleged violations” of his rights. Baldwin v.
Reese, 124 S. Ct. 1347, 1349 (2004) (internal quotation marks
omitted).
Rose concedes that he never claimed on state direct appeal
or in his petition for review in the Oregon Supreme Court that
ROSE v. PALMATEER 1069
his re-enactment and confession were induced in violation of
the Fifth Amendment. Nor did Rose assert that claim in his
state post-conviction petition. However, he contends he “indi-
rectly” exhausted this claim by alleging in his state post-
conviction petition before the Circuit Court, the Oregon Court
of Appeals, and the Oregon Supreme Court that he was
denied the effective assistance of counsel under the Sixth and
Fourteenth Amendments (i) when trial counsel failed to argue
properly the inadmissibility of his confession and re-
enactment, and (ii) when appellate counsel failed to assign
error to the trial court’s adverse ruling on his motion to sup-
press. The district court characterized his argument as a
request to “ ‘cut and paste’ two separate and distinct claims
into one viable claim for relief,” and it concluded that “[s]uch
a reconstruction is not legally defensible.”
In Peterson, we held that the petitioner did not fairly pre-
sent his federal ineffective assistance claim to the Oregon
Supreme Court. 319 F.3d at 1154. Although he cited two state
court cases which analyzed state and federal right-to-counsel
claims, he preceded these citations with an allegation of “in-
adequate” assistance of counsel under the Oregon Constitu-
tion, which is “the usual term referring to the state version of
the constitutional right,” and did not allege “ineffective”
assistance of counsel, which is the term usually used to refer
to the federal version. Id. at 1157-59. The court reasoned that
“the clear language used in Peterson’s counseled petition
leads us to conclude he made a deliberate, strategic choice not
to present the federal issue in his petition.” Id. at 1159. Fur-
thermore, “a fair reading of Peterson’s counseled petition was
that the cases were cited only to support a state-law claim.”
Id.
[2] In this case, a fair reading of Rose’s post-conviction
petition is that he deliberately chose, with the assistance of
counsel, not to raise the Fifth Amendment claim before the
state courts. He only mentioned the alleged unlawfulness of
his confession and re-enactment in order to support his inef-
1070 ROSE v. PALMATEER
fective assistance claims. Indeed, the Circuit Court in the
post-conviction proceedings limited its conclusions to
addressing the constitutional adequacy of counsel issues with-
out directly opining on the unlawfulness of the confession and
re-enactment.
[3] Furthermore, petitioners must plead their claims with
considerable specificity before the state courts in order to sat-
isfy the exhaustion requirement. See, e.g., Duncan v. Henry,
513 U.S. 364, 366 (1995) (“[M]ere similarity of claims is
insufficient to exhaust”); Lyons v. Crawford, 232 F.3d 666,
668 (9th Cir. 2000), as modified by 247 F.3d 904 (9th Cir.
2001) (“[A] petitioner must make the federal basis of the
claim explicit either by citing federal law or the decisions of
federal courts, even if the federal basis is ‘self-evident’ or the
underlying claim would be decided under state law on the
same considerations that would control resolution of the claim
on federal grounds.” (internal citations omitted)); Johnson v.
Zenon, 88 F.3d 828, 830 (9th Cir. 1996) (“If a petitioner fails
to alert the state court to the fact that he is raising a federal
constitutional claim, his federal claim is unexhausted regard-
less of its similarity to the issues raised in state court”).
[4] In addition to requiring specificity in pleading the fed-
eral nature of a claim, we also require a petitioner to articulate
the substance of an alleged violation with some particularity.
In Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), we held that
although the petitioner had exhausted a claim of ineffective
assistance based on counsel’s failure to object to several
instances of alleged prosecutorial misconduct, the petitioner
had not exhausted a related ineffective assistance claim that
was premised on counsel’s failure to file a motion to recuse
the prosecutor based on that same misconduct. Id. at 1068 n.2.
We held that “it was incumbent upon Petitioner to set forth
the alleged failure to file a motion to recuse as an independent
constitutional claim in order to give the California Supreme
Court a ‘full and fair opportunity’ to act upon it, rather than
ROSE v. PALMATEER 1071
hope that the court would infer this Sixth Amendment claim
from the related failure to object.” Id.
[5] Here, although Rose’s Fifth Amendment claim is
related to his claim of ineffective assistance, he did not fairly
present the Fifth Amendment claim to the state courts when
he merely discussed it as one of several issues which were
handled ineffectively by his trial and appellate counsel. While
admittedly related, they are distinct claims with separate ele-
ments of proof, and each claim should have been separately
and specifically presented to the state courts. Cf. Kimmelman
v. Morrison, 477 U.S. 365, 374 & n.1 (1986) (distinguishing
between a Fourth Amendment suppression claim and a Sixth
Amendment ineffective assistance claim based on failure to
litigate competently the Fourth Amendment issue, and stating
that “[w]hile defense counsel’s failure to make a timely sup-
pression motion is the primary manifestation of incompetence
and source of prejudice advanced by respondent, the two
claims are nonetheless distinct, both in nature and in the req-
uisite elements of proof”).
In order to prevail on his Sixth Amendment claim, Rose
was required to show that his counsel’s representation “fell
below an objective standard of reasonableness” and that
“there [was] a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland v. Washington, 466 U.S. 668, 687-
88, 694 (1984). Pursuant to this standard, Rose’s Sixth
Amendment claim could have been rejected regardless of
whether his Fifth Amendment rights were violated. See Lordi
v. Ishee, 384 F.3d 189, 194 (6th Cir. 2004) (“Lordi attempts
to avoid procedural default by characterizing the Ohio appel-
late court’s disposition of his post-conviction ineffectiveness
claim on the prejudice prong as being a ruling on the merits
of the [underlying constitutional claim], which would permit
this court to review it. This is not correct. By addressing the
prejudice of an ineffectiveness claim a court does not bind
itself into ruling on the claim’s underlying merits”). Cf. Kim-
1072 ROSE v. PALMATEER
melman, 477 U.S. at 382 (“Although a meritorious Fourth
Amendment issue is necessary to the success of a Sixth
Amendment claim [that is premised on mishandling of the
Fourth Amendment issue], a good Fourth Amendment claim
alone will not earn a prisoner federal habeas relief”).
Indeed, the Circuit Court did not rule directly on the Fifth
Amendment issue in the post-conviction case. It stated in its
findings of fact that prior to trial, the trial court held a hearing
to determine the voluntariness of Rose’s confession and re-
enactment, and that the trial court found that they were “freely
and voluntarily made.” As a result, the Circuit Court found
that trial counsel’s conclusion that he had no basis for a
motion to suppress petitioner’s statements “was a reasonable
exercise of trial counsel’s professional skill and judgment.” It
concluded that Rose’s trial and appellate counsel were not
constitutionally inadequate. The Circuit Court did not directly
hold that Rose’s Fifth Amendment rights were not violated.
[6] In summary, Rose did not fairly present his Fifth
Amendment claim to the state courts. Furthermore, the district
court held that this “claim is now procedurally barred by
applicable state rules,” and that there were no grounds for
excusing this procedural default. As Rose does not contest
this aspect of the district court’s opinion, we hold that the dis-
trict court did not err in rejecting this claim.
III.
Rose contends that his sentence violates the Ex Post Facto
Clause of the U.S. Constitution, U.S. CONST. art. I, § 9, cl. 3,
because the true life sentence he agreed to was not authorized
by state law at the time he committed the offenses. He argues
he did not knowingly waive this claim because he did not
understand that his plea agreement at resentencing “turned
upon acceptance of a sentence which was not authorized for
his crime of conviction.”
ROSE v. PALMATEER 1073
However, the state court found that Rose “affirmatively
stipulated to the imposition of an extra-legal sentence in order
to avoid a potential death sentence.” We test this finding by
analyzing whether the state court’s decision “was based on an
unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(2).
[7] Rose has not shown that the state court’s decision
involved an unreasonable determination of the facts. See id.
The record indicates that the judge at resentencing carefully
questioned Rose to ensure that he understood the sentence he
was accepting:
[M]y understanding is that you are willing to submit
yourself to the sentence of life imprisonment without
the possibility of release or parole as set out in ORS
163.105(1)(b), specifically acknowledging that the
provisions of ORS 163.150 . . . (5)(e) would apply,
which say that the provisions of this section are pro-
cedural and shall apply to any defendant sentenced
to death after December 6th, 1984. Is that correct,
sir?
Rose therefore was not only advised that he was agreeing to
a sentence of life without the possibility of release or parole;
he was also informed that his sentence was being applied pur-
suant to section 163.150(5)(e), which authorized the retroac-
tive application of section 163.105(1)(b). In addition, Rose
received a substantial benefit as a result of his resentencing
agreement: avoidance of a possible death sentence. It would
be strange indeed if Rose could raise an Ex Post Facto chal-
lenge to a sentence that he affirmatively chose as the more
favorable option. On the contrary, that affirmative choice con-
stituted a waiver of his Ex Post Facto claim. See United States
v. Gilcrist, 106 F.3d 297, 302 (9th Cir. 1997) (“[W]e cannot
consider [Gilcrist]’s ex post facto argument because [he], at
the sentencing hearing, expressly agreed to the use of the
1074 ROSE v. PALMATEER
Guidelines Manual in effect at the time of sentencing. . . . In
thus consenting, Gilcrist abandoned his ex post facto argu-
ment”). The fact that Rose might not have understood that
acceptance of the true life sentence would preclude an Ex Post
Facto objection to that sentence does not render Rose’s choice
unknowing or involuntary. Cf. United States v. Navarro-
Botello, 912 F.2d 318, 320-21 (9th Cir. 1990) (rejecting the
argument that a “plea was involuntary because it is logically
impossible to make a knowing and voluntary waiver of
unknown rights”; the defendant “knew he was giving up pos-
sible appeals, even if he did not know exactly what the nature
of those appeals might be” and he “gained a set sentence” in
exchange). We have never held that an Ex Post Facto claim
cannot be waived unless the defendant specifically under-
stands that he is waiving that particular right, and we will not
do so now.
[8] Finally, Rose did not preserve his Ex Post Facto objec-
tion by reserving his right to appeal his sentence and seek
post-conviction relief. The fact that he agreed to his sentence
distinguishes his situation from United States v. Groves, 369
F.3d 1178, 1182 (10th Cir. 2004) (holding Groves was enti-
tled to challenge his sentence on Ex Post Facto grounds after
he pleaded guilty without agreeing to a specific sentence, and
reserved the right to appeal any “illegal sentence” that may be
imposed).
IV.
The district court did not err when it held that Rose failed
to exhaust his Fifth Amendment claim, which is now proce-
durally defaulted. Furthermore, it properly concluded that
Rose validly waived his Ex Post Facto objection to his sen-
tence. We therefore affirm the district court’s denial of habeas
relief.
AFFIRMED.