IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

STEPHEN JASON WHITAKER, 

Case No. 6:16-cv-00479-HZ 

Petitioner, 

OPINION AND ORDER 

v. 

JEFF PREMO, 

Respondent. 

Oliver W. Loewy 

Assistant Federal Public Defender 

101 S.W. Main Street, Suite 1700 

Portland, Oregon 97204 

Attorney for Petitioner 

Ellen F. Rosenblum, Attorney General 

Kristen E. Boyd, Assistant Attorney General 

Department of Justice 

1162 Court Street NE 

Salem, Oregon 97310 

Attorneys for Respondent 

1 - OPINION AND ORDER 
HERNANDEZ, District Judge. 

Petitioner brings this habeas corpus 

U.S.C. § 2254 challenging the legality 

case pursuant to 28 

of his state-court 

convictions for Manslaughter, Reckless Driving, and Driving Under 

the Influence of Intoxicants. For the reasons that follow, the 

Amended Petition for Writ of Habeas Corpus (#24) is denied. 

BACKGROUND 

After spending the day drinking alcohol, Petitioner drove 

his 1972 Winnebago RV at excessive speeds northbound on I-5 near 

the Creswell area. Petitioner veered erratically from side to 

side at speeds of 80 miles per hour despite heavy traffic, 

changing lanes abruptly. He ultimately struck the freeway median 

with such force that body of the RV became unmoored from its 

chassis, flew through the air, and crushed the back seat area of 

another vehicle traveling in the southbound lanes of I-5. The 

impact "shredded" the rear left side of the vehicle, killing a 

six-year-old girl. John Ratliff, Petitioner's friend who was 

riding with him in the RV, was also killed in the crash. 

Petitioner had been operating the RV without a license, and 

he admitted to consuming a great deal of alcohol and ingesting 

prescription medications prior to getting behind the wheel. A 

blood draw at the hospital following the accident showed 

Petitioner's blood-alcohol content to be . 24. Based upon all of 

these facts, the Lane County Grand Jury indicted Petitioner on 

two counts of Manslaughter in the First Degree, two counts of 

Assault in the Third Degree, and one count each of Driving Under 

2 - OPINION AND ORDER 
the Influence of Intoxicants and Reckless Driving. Respondent's 

Exhibit 102. 

Petitioner elected to enter a guilty plea to both 

Manslaughter counts, Driving Under the Influence, and Reckless 

Driving. In exchange, the State agreed to drop the two counts of 

Assault. It also agreed that Petitioner could argue for a total 

Manslaughter sentence of 10 years, and that any sentence from the 

DUI and Reckless Driving convictions would run concurrently with 

the sentence imposed for Manslaughter. The trial court 

subsequently imposed partially concurrent sentences on the 

Manslaughter convictions resulting in a total prison sentence of 

200 months. Respondent's Exhibit 103, pp. 33-34. 

Petitioner did not take a direct appeal, but filed for postconviction relief ("PCR") in Marion County where the PCR court 

denied relief on his claims. Respondent's Exhibit 134. The Oregon 

Court of Appeals affirmed the PCR court's decision without 

opinion, and the Oregon Supreme Court denied review. Whitaker v. 

Premo, 268 Or. App. 854, 344 P.3d 1149, rev. denied, 357 Or. 415, 

356 P.3d 638 (2015). 

Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on 

March 21, 2016, and amended his Petition on January 20, 2017 to 

raise various due process and ineffective assistance of counsel 

claims. Respondent asks the Court to deny relief on the Amended 

Petition because Petitioner procedurally defaulted all of his 

claims, and the default is not excused. 

Ill 

Ill 

3 - OPINION AND ORDER 
DISCUSSION 

A petitioner seeking habeas relief must exhaust his claims 

by fairly presenting them to the state's highest court, either 

through a direct appeal or collateral proceedings, before a 

federal court will consider the merits of habeas corpus claims 

pursuant to 28 U.S.C. § 2254. Rose v. 

(1982). The exhaustion doctrine is 

Lundy, 455 U.S. 509, 

designed "to avoid 

519 

the 

unnecessary friction between the federal and state court systems 

that would result if a lower federal court upset a state court 

conviction without first giving the state court system an 

opportunity to correct its own constitutional errors." Freiser v. 

Rodriguez, 411 U.S. 475, 490 (1973). 

In this case, Petitioner did not take a direct appeal, thus 

he did not fairly present any of his claims to Oregon's courts in 

that fashion. During his PCR proceedings, he presented the Oregon 

Supreme Court with state-law issues, state procedural issues, and 

issues that were not properly in his Petition for Review because 

he had not presented them to the Oregon Court of Appeals. 

Respondent's Exhibits 138, 140, 141. Petitioner did not fairly 

present any federal claims to the Oregon Supreme Court and 

therefore procedurally defaulted all of his claims. Petitioner 

does not argue otherwise, 

to excuse his default. 

and instead contends that he has cause 

Specifically, he argues that his PCR 

attorney was ineffective for failing to raise a variety of 

ineffective assistance of trial counsel claims. 

used 

Traditionally, 

to establish 

the performance of PCR counsel could not be 

cause and prejudice to excuse a procedural 

4 - OPINION AND ORDER 
default. Coleman v. Thompson, 501 U.S. 722, 753-54 (1991) (only 

the constitutionally ineffective assistance of counsel 

constitutes cause); Pennsylvania v. Finley, 481 U.S. 551, 556 

( 1987) (there is no constitutional right to counsel in a PCR 

proceeding). However, in Martinez v. Ryan, 566 U.S. 1, 4 (2012), 

the Supreme Court found "it necessary to modify the 

unqualified statement in Coleman that an attorney's ignorance or 

inadvertence in a postconviction proceeding does not qualify as 

cause to excuse a procedural default." Id at 8. It concluded, 

"Inadequate assistance of counsel at initial-review collateral 

proceedings may establish cause for a prisoner's procedural 

default of a claim of ineffective assistance at trial." Id. 

In order to establish cause to excuse his default pursuant 

to Martinez, Petitioner must show first that his underlying claim 

of ineffective assistance of trial counsel is substantial insofar 

as it has "some merit." Next, he must demonstrate that his PCR 

attorney was ineffective under the standards of Strickland v. 

Washington, 466 U.S. 668 (1984) for failing to raise the claim. 

"[T]o fulfill this requirement, a petitioner must not only show 

that PCR counsel performed deficiently, but also that this 

prejudiced petitioner, i.e., that there was a reasonable 

probability that, absent the deficient performance, the result of 

the post-conviction proceedings would have been different." 

Runningeagle v. Ryan, 825 F.3d 970, 982 (9th Cir. 2017) 

(quotation omitted). Such a finding, of course, would necessarily 

require the Court to conclude that there is a reasonable 

5 - OPINION AND ORDER 
probability that the trial-level ineffective assistance claim 

would have succeeded had it been raised. Id. 

Petitioner argues that the element of Manslaughter in the 

First Degree requiring "extreme indifference to the value of 

human life" in Oregon is so vague as to violate due process. He 

believes that PCR counsel should have faulted trial counsel for 

not raising the issue. However, the record reveals that trial 

counsel was prepared to make this argument had the case proceeded 

to trial. Respondent's Exhibit 132, p. 26. As such, the Court 

cannot conclude that PCR counsel omitted a substantial claim of 

ineffective assistance of trial counsel. 

Petitioner next claims that the trial court violated his 

right to due process, and trial counsel overlooked these 

violations, when the trial court failed to: (1) make findings to 

support consecutive sentences; (2) find a factual basis for his 

crimes; and (3) ensure that Petitioner was afforded a plea 

agreement on par with other cases in the State. Petitioner killed 

two victims, which obviously supported consecutive sentences 

under Oregon law. See ORS 137.123(5) (b). The prosecutor provided 

a detailed factual basis to support the plea in this case, thus 

any objection would not have benefitted the defense. Respondent's 

Exhibit 103, pp. 7-12. While Petitioner believes he has a due 

process right to be afforded a plea offer equal to defendants 

convicted of Manslaughter in other Oregon cases, that position is 

not tenable where "there is no constitutional right to plea 

bargain." Weatherford v. Bursey, 429 U.S. 545, 561 (1977). 

Accordingly, PCR counsel's performance did not fall below an 

6 - OPINION AND ORDER 
objective standard of reasonableness when he declined to include 

these claims. 

Although Petitioner claims that his PCR attorney omitted a 

claim that Petitioner did not enter a knowing or voluntary plea 

based upon trial counsel's shortcomings, Petitioner concedes that 

"each claim or some, broader, related claim does appear in the 

state post-conviction petition." Sur-reply (#50), p. 6. Although 

he faults PCR counsel for not providing sufficient argument to 

support the claims, Martinez does not instruct district courts to 

engage in a separate analysis of whether or how strenuously 

counsel argued a particular claim. Instead, it speaks only to 

whether a PCR attorney failed to present a substantial claim of 

ineffective assistance of trial counsel. See Martinez, 566 U.S. 

at 5, 12 (the proper formulation of the issue is "whether a 

federal habeas court may excuse a procedural default . when 

the claim was not properly presented in state court due to an 

attorney's errors 11 ); ( "To present a claim of ineffective 

assistance at trial in accordance with the State's procedures, 

then, a prisoner likely needs an effective attorney."); ("A 

prisoner's inability to present a claim of trial error is of 

particular concern when the claim is one of ineffective 

assistance of counsel.") (bold added) . 

In this case, PCR counsel presented Petitioner's claims 

regarding the voluntariness of his plea to the PCR court, his 

trial attorney spoke to 

developed for purposes of 

provided Petitioner with a 

7 - OPINION AND ORDER 

these issues during a deposition 

the PCR proceeding, the PCR court 

hearing, and the PCR court issued 
Findings of Fact and Conclusions of Law that specifically 

addressed the voluntariness issue. Respondent's Exhibits 132-133, 

135 pp. 43-54. Where PCR counsel presented the issue of the 

knowing and voluntary nature of the plea in the context of an 

ineffective assistance of counsel claim, Martinez does not excuse 

Petitioner's default. 

More generally, it is difficult for Petitioner to 

demonstrate prejudice as to any of his ineffective assistance of 

counsel claims in light of the uncontroverted facts of this case 

as well as his sentencing exposure at trial. 1 Had Petitioner 

proceeded to trial, the State would have presented evidence that 

a motorist passing the scene and who happened to be an emergency 

medical technician "heard a bloodcurdling scream" and saw 

something he told the grand jury "will forever haunt him." 

Respondent's Exhibit 103, pp. 9-10. The mother of the dead sixyear-old girl was "wailing at the left-rear side of her vehicle" 

while her husband "was lying on top of her . preventing her 

from going to the left-rear passenger side of the car where their 

daughter had obviously been sitting." Id at 10, 21. As the PCR 

court correctly advised him, "This was not a case to take to 

trial. No attorney I can imagine who is competent would have 

wanted to take this case to trial . this was a loser at trial 

and you were going to be found responsible and the consequences 

then were going to be bad." Respondent's Exhibit 133, pp. 31-32. 

1 Petitioner estimates his exposure at trial would have been 260 months. Surreply (#50), p. 9. 

8 - OPINION AND ORDER 
Petitioner's remaining claims include his assertion that he 

was denied the ability to be present during a specific hearing in 

his PCR action, but alleged errors in the state PCR process are 

not addressable as independent grounds for relief through habeas 

corpus petitions. Ortiz v. Stewart, 149 F.3d 923, 939 (1998), 

cert. denied 526 U.S. 1123 (1999); Franzen v. Brinkman, 877 F.2d 

26 (9th Cir. 1989), cert. denied, 493 U.S. 1012 (1989). The Court 

finds Petitioner's cumulative error claim does not entitle him to 

relief, and that he has not sustained his burden of proof as to 

the claims he has not argued. For all of these reasons, habeas 

corpus relief is not appropriate. 

CONCLUSION 

For the reasons identified above, the Amended Petition for 

Writ of Habeas Corpus ( #24) is denied. The Court declines to 

issue a Certificate of Appealability on the basis that petitioner 

has not made a substantial showing of the denial of a 

constitutional right pursuant to 28 U.S.C. § 2253(c)(2). 

IT IS SO ORDERED. 

DATED this _J:{_ day of January, 2019. 

A~jf1~ff:kandez United States District Judge 

9 - OPINION AND ORDER