Vidal Carrillo-Carrillo v. Rick Coursey ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIDAL CARRILLO-CARRILLO, No. 14-35897
Petitioner-Appellant,
D.C. No.
v. 2:13-cv-01450-SI
RICK COURSEY, Superintendent,
EOCI, OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted March 10, 2016
Portland, Oregon
Filed May 24, 2016
Before: Raymond C. Fisher, Marsha S. Berzon,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Watford
2 CARILLO-CARILLO V. COURSEY
SUMMARY*
Habeas Corpus
Reversing the district court’s judgment dismissing Oregon
state prisoner Vidal Carrillo-Carrillo’s federal habeas corpus
petition, the panel held that Carrillo-Carrillo fairly presented
to the Oregon courts his claims that trial counsel rendered
ineffective assistance by unduly pressuring him into
accepting a no contest plea and that his decision to enter the
plea and waive his right to a jury trial was not knowingly and
voluntarily made.
The panel explained that Carrillo-Carrillo fairly presented
his claims, where he (1) attached his petition for post-
conviction relief to the Balfour brief filed by counsel on his
behalf in the Oregon Court of Appeals, (2) expressly
incorporated by reference his PCR petition into Section B of
the Balfour brief, and (3) filed in the Oregon Supreme Court
a petition for review that incorporated by reference Section B
of his Balfour brief.
COUNSEL
Anthony D. Bornstein (argued), Assistant Federal Public
Defender, Federal Public Defender’s Office, Portland,
Oregon, for Petitioner-Appellant.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CARILLO-CARILLO V. COURSEY 3
Rolf Christen Moan (argued), Senior Assistant Attorney
General, Office of the Oregon Attorney General, Salem,
Oregon, for Respondent-Appellee.
OPINION
WATFORD, Circuit Judge:
Vidal Carrillo-Carrillo is an Oregon state prisoner who
filed a petition for a writ of habeas corpus in federal court.
The district court dismissed the petition with prejudice after
concluding that Carrillo-Carrillo had not fairly presented his
claims to the Oregon state courts first, as he was required to
do. We disagree with that conclusion. In our view, Carrillo-
Carrillo gave the Oregon courts a fair opportunity to rule on
his claims, and those claims are now properly before the
district court for adjudication on the merits.
I
Carrillo-Carrillo pleaded no contest to one count of
racketeering in Oregon state court and was sentenced to 15
years in prison. He did not pursue a direct appeal but, with
the assistance of new counsel, he filed a timely petition for
post-conviction relief (PCR) in state court. Carrillo-Carrillo
asserted that he had been denied effective assistance of
counsel in violation of the Sixth and Fourteenth
Amendments. In support of that claim, he alleged that his
trial counsel “failed to provide legal advice and services
which met the minimum standards required of a criminal
defense attorney.” In particular, Carrillo-Carrillo alleged that
counsel had unduly pressured him into pleading no contest,
4 CARILLO-CARILLO V. COURSEY
and that as a result he did not enter his plea knowingly and
voluntarily.
The PCR court held an evidentiary hearing on Carrillo-
Carrillo’s claim. At the hearing, Carrillo-Carrillo testified
that he felt pressured into accepting the plea because, on the
day set for trial, the judge denied his request to postpone the
trial so that he could fire his current lawyer and retain new
counsel. The prosecution, moreover, had recently filed new
charges that threatened to land him in prison for 30 years and
deprive him of credit for the seven months he had already
served. The trial judge strongly suggested that he would be
willing to impose a sentence of just 15 years, but only if
Carrillo-Carrillo accepted the prosecution’s plea offer before
trial commenced.
At the conclusion of the evidentiary hearing, the PCR
court rejected Carrillo-Carrillo’s ineffective assistance of
counsel claim. The court found that Carrillo-Carrillo
“probably did feel some pressure” to accept the plea offer, but
not due to any deficiency in the representation provided by
his trial counsel. The court concluded that Carrillo-Carrillo
had not shown deficient performance or prejudice and that his
plea had been knowingly and voluntarily made.
Carrillo-Carrillo appealed to the Oregon Court of
Appeals. His lawyer filed what is known in Oregon as a
Balfour brief. In State v. Balfour, 814 P.2d 1069, 1078–80
(Or. 1991), the Oregon Supreme Court prescribed the
procedures appointed counsel should follow when a criminal
defendant seeks to pursue an appeal that counsel believes has
no merit. The procedures prescribed in Balfour are now
codified in Oregon Rule of Appellate Procedure (ORAP)
5.90. We provide a brief summary of those procedures
CARILLO-CARILLO V. COURSEY 5
because they become relevant when assessing the validity of
the State’s arguments in this appeal.
Under Rule 5.90, counsel must file an opening brief on
the defendant’s behalf divided into two sections, labeled
Section A and Section B. In Section A, counsel must provide
basic background information about the case and a statement
that counsel has thoroughly reviewed the record but has been
unable to identify any meritorious issues for appeal. ORAP
5.90(1)(a). Counsel signs only Section A of the brief.
Section B is entirely the defendant’s work product. The rule
states that Section B “may contain any claim of error that the
client wishes to assert,” and that “[t]he client shall attempt to
state the claim and any argument in support of the claim as
nearly as practicable in proper appellate brief form.” ORAP
5.90(1)(b)(i).
Oregon Rule of Appellate Procedure 5.45 prescribes the
proper appellate brief form for presenting claims of error.
The rule provides that “[e]ach assignment of error shall be
separately stated under a numbered heading.” ORAP 5.45(2).
Under that separately numbered heading, the appellant must
identify the ruling being challenged, state where in the record
the challenge was preserved below, identify the applicable
standard of review, and set forth the arguments supporting the
claim of error. ORAP 5.45(4)–(6) & App. 5.45, illus. 1. If
the brief asserts multiple claims of error, the same
information must be set forth under a separately numbered
heading for each claim. ORAP 5.45(2).
Carrillo-Carrillo’s appellate counsel complied with Rule
5.90. He prepared Section A of the Balfour brief, and he
included Section B as prepared by Carrillo-Carrillo.
However, Carrillo-Carrillo’s Section B did not comply with
6 CARILLO-CARILLO V. COURSEY
the formatting requirements of Rule 5.45. Under the heading
“Assignment of Errors,” Carrillo-Carrillo stated the
following:
Therefore, counsel was ineffective in the
following ways
1) Failed to interview and subpoena alibi
witnesses.
2) Failed to seek and prepare expert
witnesses and testimony.
3) Failed to investigate all prosecution
witnesses.
4) Failed to investigate character
witnesses that could have helped to
discredit these allegations.
5) Failed to investigate possible
corroborating witnesses.
6) Failed to obtain evidence in a timely
manner.
7) Failed to go over the case and
properly prepare defendant to testify.
8) Failure to know the law.
Just below that, under the heading “Argument,” Carrillo-
Carrillo stated: “Appellant sets forth his claims contained in
the petition for post-conviction relief and the memorandum
CARILLO-CARILLO V. COURSEY 7
of law that is submitted on the face of the record.” He
attached a copy of his PCR petition to Section B of the
Balfour brief.
In its answering brief, the State argued that the lone claim
of error asserted under the heading “Assignment of Errors”
was an entirely new claim concerning trial counsel’s
inadequate investigation of the case. Because that claim had
not been litigated below, the State argued that it could not
provide a basis for reversing the lower court’s judgment. The
State further argued that Carrillo-Carrillo had waived any
other grounds for reversal by not asserting them as separate
assignments of error.
The Oregon Court of Appeals affirmed the denial of
Carrillo-Carrillo’s PCR petition in a summary order stating
“affirmed without opinion.”
Carrillo-Carrillo petitioned the Oregon Supreme Court for
review. The only substantive passage of the petition stated:
“Petitioner hereby incorporates by reference into this petition
the Section B filed with the Court of Appeals, to present these
issues for review by this court and to preserve these issues for
federal review.” The Oregon Supreme Court summarily
denied the petition.
Carrillo-Carrillo then filed a pro se petition for habeas
corpus relief in federal court, using the pre-printed form
supplied by the District Court for the District of Oregon.
Under the heading “Grounds for Relief,” Carrillo-Carrillo
again asserted that he had been denied effective assistance of
counsel in violation of the Sixth and Fourteenth
Amendments. In the space provided for supporting facts,
Carrillo-Carrillo alleged three things: (1) trial counsel unduly
8 CARILLO-CARILLO V. COURSEY
pressured him into accepting the no contest plea; (2) his
decision to enter the plea and waive his right to a jury trial
was not knowingly and voluntarily made; and (3) trial
counsel failed to perform the same eight tasks listed under
“Assignment of Errors” in Section B of his Balfour brief,
which Carrillo-Carrillo re-alleged essentially verbatim in his
federal habeas petition.
The district court dismissed Carrillo-Carrillo’s petition
with prejudice. The court construed each of the three
“supporting facts” allegations as raising a distinct claim for
relief and concluded that none of those claims had been fairly
presented to the Oregon state courts. With respect to the first
two claims, the district court held that they had been fairly
presented to the state PCR court but not to the Oregon Court
of Appeals or the Oregon Supreme Court. In the district
court’s view, Carrillo-Carrillo had “abandoned these claims
on appeal.” As for the third claim, the district court held that
because the allegations concerning trial counsel’s failure to
investigate the case and prepare for trial did not appear in the
PCR petition and were not raised during the evidentiary
hearing, Carrillo-Carrillo had failed to present the claim in a
posture in which the Oregon appellate courts could decide the
merits. These rulings meant that all three of Carrillo-
Carrillo’s claims were procedurally defaulted, thus precluding
federal habeas relief absent a showing of cause and prejudice
or a fundamental miscarriage of justice, which Carrillo-
Carrillo did not attempt to make. The district court issued a
certificate of appealability on the following issue: “whether
petitioner’s PCR appellate claims are properly before this
court for adjudication on the merits.”
CARILLO-CARILLO V. COURSEY 9
II
To obtain federal habeas relief, Carrillo-Carrillo must
show that he has exhausted the remedies available in state
court by fairly presenting his claims to each level of Oregon’s
court system—the PCR court, the Oregon Court of Appeals,
and the Oregon Supreme Court. Baldwin v. Reese, 541 U.S.
27, 29 (2004). He concedes that if he has not already
complied with this requirement it is too late to do so now,
which would mean his claims are procedurally defaulted.
Carrillo-Carrillo’s argument for reversal is that he did fairly
present his claims to the Oregon state courts and that the
district court erred in concluding otherwise. We think
Carrillo-Carrillo is right.
No one disputes that Carrillo-Carrillo fairly presented to
the state PCR court his first two claims—that trial counsel
rendered ineffective assistance by unduly pressuring him into
accepting the no contest plea, and that his decision to enter
the plea and waive his right to a jury trial was not knowingly
and voluntarily made. The main question is whether Carrillo-
Carrillo fairly presented those claims to Oregon’s appellate
courts. In our view the answer is yes, given the Oregon
Supreme Court’s decision in Farmer v. Baldwin, 205 P.3d
871 (Or. 2009), and our subsequent decision in the same case,
Farmer v. Baldwin, 563 F.3d 1042 (9th Cir. 2009).
In Farmer, as here, a petitioner seeking federal habeas
relief presented his claims to the Oregon Court of Appeals in
a Balfour brief. The petitioner’s counsel prepared Section A
of the brief, but instead of drafting his own Section B, the
petitioner simply attached a copy of the PCR petition he had
filed in the lower court. By way of explanation, his attorney
stated in Section A: “Petitioner has decided to attach a copy
10 CARILLO-CARILLO V. COURSEY
of his post conviction petition, in the hopes of at least
preserving all the issues presented therein.” Farmer,
205 P.3d at 873. The Balfour brief contained no Section B at
all. In the Oregon Supreme Court, the petitioner’s petition for
review did nothing more than incorporate by reference his
PCR petition and the Balfour brief he had filed in the Court
of Appeals. The petitioner did not attach a copy of either
document to the petition for review. Id.
Faced with that record, our court was uncertain whether
the petitioner had fairly presented his claims to the Oregon
Supreme Court. We certified to the Oregon Supreme Court
the question whether the petitioner had properly raised his
claims before that court. 563 F.3d at 1043–44. The Oregon
Supreme Court answered our question in the affirmative:
“Under ORAP 5.90, a petitioner may present a question of
law to this court by means of an attachment to a Balfour brief
filed in the Court of Appeals, when the attachment serves as
section B of said brief, and the petitioner incorporates that
same brief by reference into his petition for review.” Farmer,
205 P.3d at 878. Upon receiving that answer, we held that
the petitioner had fairly presented his claims to the Oregon
Supreme Court. We reversed the district court’s dismissal of
the petitioner’s federal habeas petition and remanded for
consideration of his claims on the merits. 563 F.3d at 1044.
The Farmer decisions compel us to reverse the district
court’s judgment in this case as well. First, the Oregon
Supreme Court held that a petitioner can properly present his
claims to the Court of Appeals by attaching a copy of his
PCR petition to the Balfour brief, even if the brief does not
include Section B. Carrillo-Carrillo did more than that here.
He not only attached a copy of his PCR petition to the
Balfour brief, he also submitted Section B, where he
CARILLO-CARILLO V. COURSEY 11
expressly incorporated his PCR petition by reference. So
both claims raised in the PCR petition were properly
presented to the Oregon Court of Appeals. Second, Carrillo-
Carrillo properly presented his claims to the Oregon Supreme
Court by filing a petition for review that incorporated by
reference Section B of his Balfour brief. We know this
presentation was sufficient because the petitioner in Farmer
did the same thing. Finally, our decision in Farmer
establishes that, by taking these actions, Carrillo-Carrillo
satisfied the fair presentation requirement for purposes of
exhausting the remedies available in state court.
The State’s primary contention is that this case differs
from Farmer because, unlike the petitioner in Farmer,
Carrillo-Carrillo actually filed Section B of the Balfour brief.
According to the State, because Carrillo-Carrillo filed Section
B, he properly raised on appeal only the claim included under
the heading “Assignment of Errors,” even though he
elsewhere incorporated by reference his entire PCR petition.
We do not agree. The State may be right that, as a technical
matter, Carrillo-Carrillo failed to comply with Rule 5.45’s
requirement that “[e]ach assignment of error shall be
separately stated under a numbered heading.” ORAP 5.45(2).
But the Oregon Supreme Court held in Farmer that pro se
litigants are entitled to leeway on matters of form when filing
Section B of a Balfour brief. The court stressed that Rule
5.90 “does not require exact compliance with the forms and
rules of appellate briefing that lawyers observe; rather, it
requires that a litigant attempt to present his or her claims in
proper appellate brief form, as nearly as practicable.”
Farmer, 205 P.3d at 877. Carrillo-Carrillo attempted to
present his claims in proper form by filing Section B and
expressly incorporating his PCR petition by reference under
the heading “Argument.” That he may have done this under
12 CARILLO-CARILLO V. COURSEY
the wrong heading is surely a less serious error than the one
found excusable in Farmer, where the petitioner did not
bother to file Section B of the brief at all.
Because we hold that Carrillo-Carrillo fairly presented his
first two claims to the Oregon appellate courts, we presume
that those courts denied relief on the merits. See Harrington
v. Richter, 562 U.S. 86, 99 (2011); Smith v. Oregon Board of
Parole and Post-Prison Supervision, 736 F.3d 857, 860–62
(9th Cir. 2013). Both the Oregon Court of Appeals and the
Oregon Supreme Court summarily rejected Carrillo-Carrillo’s
claims without explanation. So, to determine the basis for
those decisions, we must look to the last reasoned state court
decision, which here was the decision of the state PCR court.
See Ylst v. Nunnemaker, 501 U.S. 797, 803–04 (1991). That
court rejected Carrillo-Carrillo’s claims solely on the merits,
and nothing in the record suggests that the Oregon appellate
courts rested their decisions on a different ground.
That leaves us with what the district court regarded as
Carrillo-Carrillo’s third claim for relief—the set of
allegations concerning trial counsel’s failure to investigate the
case and adequately prepare for trial. The State argues that
Carrillo-Carrillo did not fairly present this “claim” to the state
PCR court because he made the allegations concerning trial
counsel’s lack of investigation and preparation for the first
time in his Balfour brief. While that is true, we do not view
these allegations as stating a separate and distinct claim for
relief. They appear designed instead to flesh out why
Carrillo-Carrillo contends he felt pressured into accepting the
no contest plea. He alleges that he had no choice but to
accept the plea in part because his lawyer had not adequately
prepared for trial and the judge had denied his day-of-trial
request for a postponement so that he could retain new
CARILLO-CARILLO V. COURSEY 13
counsel. Carrillo-Carrillo’s allegations concerning trial
counsel’s inadequate investigation and preparation are best
construed as an attempt to buttress his first claim for
relief—that counsel rendered ineffective assistance by unduly
pressuring him into accepting the no contest plea.
* * *
We reverse the district court’s judgment dismissing
Carrillo-Carrillo’s federal habeas petition. Carrillo-Carrillo
fairly presented to the Oregon courts his claims that trial
counsel rendered ineffective assistance by unduly pressuring
him into accepting the no contest plea, and that his decision
to enter the plea and waive his right to a jury trial was not
knowingly and voluntarily made.
REVERSED AND REMANDED.