Thomas Erickson v. Rick Courtney , 702 F. App'x 585 ( 2017 )

FILED
NOT FOR PUBLICATION
AUG 08 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS GERALD ERICKSON, No. 15-35320
Petitioner-Appellant, D.C. No. 2:12-cv-01466-BR
v.
MEMORANDUM*
RICK COURTNEY, Superintendent at
East Oregon Correctional Institution,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted March 10, 2017
Portland, Oregon
Before: LEAVY and FRIEDLAND, Circuit Judges, and BENITEZ,** District
Judge.
Petitioner Thomas Gerald Erickson appeals the district court’s judgment
dismissing his petition for writ of habeas corpus. We have jurisdiction under 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
U.S.C. §§ 1291 and 2253. We review de novo. Smith v. Ryan, 823 F.3d 1270,
1278-79 (9th Cir. 2016). We reverse and remand.
1. Trial court proceedings. Erickson was charged in 2003 with various sex
offenses committed against his daughter. Evidence at Erickson’s jury trial
included testimony that the alleged abuse had been reported to an authority at least
ten years earlier. Erickson’s trial counsel moved for a judgment of acquittal on
statute of limitations grounds. The trial court denied the motion and Erickson was
convicted of first-degree sodomy, first-degree sexual abuse, and attempted first-
degree rape. On direct review, Erickson’s appellate counsel did not raise the
statute of limitations issue. The Oregon Court of Appeals affirmed the convictions,
and the Oregon Supreme Court denied review.
2. State post-conviction proceedings. On August 3, 2010, Erickson filed
pro se a state petition for post-conviction relief, raising several claims of
ineffective assistance of his trial counsel (IATC), including a claim that trial
counsel failed to argue effectively for acquittal on statute of limitations grounds.
Erickson’s pro se petition did not include supporting documents. The post-
conviction court appointed counsel for Erickson. On November 4, 2011, Erickson
filed a notice with the post-conviction court concerning the attorney’s allegedly
deficient performance, stating that the attorney failed to work on his case. The
2 15-35320
post-conviction trial court denied Erickson’s request for new counsel and
admonished the parties to “work together.” On January 31, 2011, the appointed
counsel filed a notice that Erickson’s pro se petition, filed without supporting
documents, was Erickson’s formal post-conviction petition. On February 1, 2011,
the state moved for summary judgment on the grounds that Erickson failed to
attach any evidence supporting the petition, as required by Or. Rev. Stat.
§ 138.580.1 On February 9, 2011, Erickson moved pro se to dismiss his appointed
counsel for failure to perform. The post-conviction trial court notified Erickson
that it would not accept his pro se motion because Erickson was represented by
counsel. Erickson’s appointed counsel filed no response to the motion for
summary judgment. On March 9, 2011, the post-conviction trial court granted the
state’s summary judgment motion and dismissed Erickson’s pro se petition with
prejudice. Erickson appealed pro se the summary judgment. A newly-appointed
post-conviction appellate counsel filed a brief stating that he found no meritorious
issues for appeal. The Oregon Court of Appeals affirmed without opinion.
Appellate counsel declined to petition for review in the Oregon Supreme Court.
1
Or. Rev. Stat. § 138.580 provides, in relevant part, “[a]ffidavits, records or
other documentary evidence supporting the allegations of the petition shall be
attached to the petition.”
3 15-35320
Erickson petitioned pro se for review to the Oregon Supreme Court and his petition
for review was denied.
3. Federal habeas proceedings. In 2013, Erickson filed pro se a petition for
federal habeas relief alleging his IATC claim as well as ineffective assistance of his
post-conviction counsel for failure to effectively raise the IATC claim. The district
court denied the habeas petition, concluding that Erickson has procedurally
defaulted his IATC claim. The district court determined that the post-conviction
trial court’s dismissal for noncompliance with Or. Rev. Stat. § 138.580 was a
decision on the merits.
This court granted a certificate of appealability on the issue whether the
district court properly ruled that the IATC claim was procedurally defaulted.
4. Procedural default. Erickson acknowledges that his IATC claim was
procedurally defaulted because his post-conviction counsel did not raise the IATC
issue in Oregon’s appellate courts. He contends that the post-conviction trial court
did not make a decision on the merits, and his procedural default is excused under
an exception articulated in Martinez v. Ryan, 566 U.S. 1 (2012). We agree.
In Martinez, the Supreme Court instructed that a procedural default caused
by the failure of state post-conviction trial counsel to raise an IATC claim may be
excused if the petitioner can demonstrate that (1) appointed counsel in the post-
4 15-35320
conviction trial court was ineffective under the standards of Strickland v.
Washington, 466 U.S. 668 (1984); and (2) the underlying IATC has some merit.
Martinez, 566 U.S. at 14. This exception does not apply if a claim was litigated on
the merits in the state court. Detrich v. Ryan, 740 F.3d 1237, 1246 (9th Cir. 2013)
(en banc).
Here, the post-conviction trial court’s dismissal for the reason that Erickson
failed to attach documents to his petition was not a decision on the merits. See
Johnson v. Williams, 133 S. Ct. 1088, 1097 (2013) (describing a “decision on the
merits” as one involving an assessment of “[t]he intrinsic rights and wrongs of a
case as determined by matters of substance, in distinction from matters of form.”)
(internal citations omitted). The post-conviction trial court did not assess the
merits because post-conviction trial counsel provided the court with no evidence
whatsoever. Moreover, following the state’s motion for summary judgment for
failure to comply with Or. Rev. Stat. § 138.580, Erickson’s counsel failed to
respond to the state’s summary judgment motion. With no statutorily-required
supporting materials, allegedly caused by either the inadequacy or abandonment of
appointed counsel, the post-conviction trial court could not make a substantive
evaluation of the intrinsic merits of Erickson’s claims. Cf. Ogle v. Nooth, 330 P.3d
572, 584 (Or. 2015) (holding that Or. Rev. Stat. § 138.580 does not require
5 15-35320
attachment of evidence that meets some particular standard of reliability, but
requires attachment of “some evidence supporting each element of each asserted
claim for relief”). In this circumstance, the post-conviction trial court’s dismissal
of Erickson’s petition hinged upon a matter of procedural form rather than
substance, as well as alleged inadequacy. See Johnson, 133 S. Ct. at 1097
(explaining that when a federal claim is rejected or overlooked in state court due to
inadvertence, a prisoner is entitled to make his case before a federal judge).
Erickson contends that his post-conviction trial counsel was ineffective
under Strickland, and the underlying IATC was substantial. The respondent does
not address these contentions in its briefing, thus effectively conceding Erickson’s
arguments.2 Cf. Nardi v. Stewart, 354 F.3d 1134, 1142 (9th Cir. 2004) (noting that
when respondent makes no mention it its brief of certain issues that have been
raised, respondent effectively waives the arguments), overruled on other grounds
by Day v. McDonough, 547 U.S. 198, 209 (2006). Accordingly, Erickson has met
2
Even if the respondent had not waived these issues, Erickson appears to
meet the requirements for the Martinez exception. His post-trial counsel
essentially abandoned him by choosing to rely on an obviously procedurally
deficient petition and failing to respond to the motion for summary judgment,
which could constitute deficient performance under Strickland. And at least one of
Erickson’s statute-of-limitations-based IATC arguments has some merit. See
Martinez, 566 U.S. at 14.
6 15-35320
the narrow exception in Martinez. We reverse the judgment of the district court
and remand for further proceedings.
REVERSED and REMANDED.
7 15-35320
FILED
Erickson v. Courtney, 15-35320
AUG 08 2017
BENITEZ, District Judge, dissenting. MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Because this is a simple case of an unexhausted meritless habeas claim, I
respectfully dissent and would affirm the district court’s dismissal.
In the initial post-conviction proceedings, the state court dismissed the
petition. The dismissal order was short. It did not say that the dismissal was based
solely on procedural grounds. It simply said: “The Court being first fully advised,
and finding there is no genuine issue of material fact, and that the defendant is
entitled to judgment as a matter of law, Now, THEREFORE, IT IS ORDERED that
defendant’s Motion for Summary Judgment is granted. IT IS FURTHER
ORDERED that petitioner’s pro se Petition for Post-Conviction Relief is dismissed
with prejudice.”
In my view, the federal district court correctly decided that the state court
decision was a decision on the merits. See Harrington v. Richter, 562 U.S. 86, 99
(2011) (“When a federal claim has been presented to a state court and the state
court has denied relief, it may be presumed that the state court adjudicated the
claim on the merits in the absence of any indication or state-law procedural
principles to the contrary.”) (citation omitted). Since the ineffective assistance of
trial counsel claim was not also presented to the state’s highest court, it is an
unexhausted claim, correctly dismissed on federal habeas review. See Rose v.
Lundy, 455 U.S. 509, 515 (1982) (“[A]s a matter of comity, federal courts should
not consider a claim in a habeas corpus petition until after the state courts have had
an opportunity to act.”) (citing Ex parte Royall, 117 U.S. 241, 251 (1886)); see
also 28 U.S.C. § 2254(b)(1).
The majority presumes that the state post-conviction court dismissal was not
on the merits but instead based upon petitioner’s failure to support his habeas claim
with documentary evidence as required by Oregon’s post-conviction procedures.
But that assumes that claim had merit. The federal district court had the state trial
transcript at its disposal. Presumably, the state post-conviction court did too. At
trial, petitioner’s counsel argued the statute of limitations issue and lost. See
district court docket # 25-3, pp. 162-72. What kind of documentary evidence
would a court now expect to support his ineffective assistance of trial counsel
claim? An affidavit from another attorney to the effect that trial counsel should
have been more persuasive and a more persuasive attorney would have changed the
outcome on the legal question? No.
Viewed through the lens of the trial transcript, the state post-conviction
dismissal on the merits makes sense. The statute of limitations argument was
weak. Trial counsel was not deficient. Appellate counsel was not deficient for not
raising the weak claim on direct appeal. Post-conviction counsel was not deficient
2
for not attaching support for a meritless ineffective assistance of trial/appellate
counsel claim. The state court looked at the petitioner’s new claim of ineffective
assistance, judged that it lacked merit, and concluded that this was the reason no
supporting evidence was (or ever could) be provided. The federal district court
judge, herself a former state trial court and circuit court judge, correctly determined
that the state court ruled on the lack of merit. Since the claim is now procedurally
defaulted and petitioner can show neither “cause” because post-conviction counsel
was not deficient, nor “prejudice” because the original trial counsel was not
deficient, the narrow escape hatch of Martinez v. Ryan was closed. The federal
claim was dismissed as unexhausted. I would affirm.
3