Summers v. State of Oregon

Page 1 – FINDINGS AND RECOMMENDATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROBERT CODY SUMMERS,
Case No. 1:25-cv-00029-JR
Petitioner,
FINDINGS AND RECOMMENDATION
v.
STATE OF OREGON,
Respondent.
RUSSO, Magistrate Judge:
Petitioner, an adult on post-prison supervision, brings this 28 U.S.C. § 2254 habeas
corpus action challenging his 2016 Klamath County convictions for one count each of sexual
abuse in the first degree, burglary in the second degree, sexual abuse in the second degree, and
criminal trespass in the second degree. For the reasons that follow, the Petition for Writ of
Habeas Corpus should be DENIED.
BACKGROUND
On October 3, 2016, a Klamath County grand jury indicted petitioner on one count each
of sexual abuse in the first degree, burglary in the second degree, sexual abuse in the third
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degree, and criminal trespass in the second degree. Respondent’s Exhibits, ECF No. 16 (“Resp.
Exh.”), No. 102. The case proceeded to a bench trial where the trial judge found petitioner guilty
of all charges. Resp. Exh. 103, pp. 117-118. The trial judge sentenced petitioner to a total of
120 months of imprisonment, following by a term of post-prison supervision.
Petitioner filed a direct appeal, but the Oregon Court of Appeals affirmed without opinion
and the Oregon Supreme Court denied review. State v. Summers, 292 Or. App. 896, rev. denied,
363 Or. 744 (2018). The Oregon Supreme Court’s order denying review was dated October 25,
2018. Resp. Exh. 114. Petitioner did not seek a writ of certiorari from the United States
Supreme Court.
On April 12, 2019, petitioner filed a state petition for post-conviction relief (“PCR”).
Resp. Exh. 118. Following an evidentiary hearing, the state PCR trial court denied relief. Resp.
Exh. 136. Petitioner appealed, but once again the Oregon Court of Appeals affirmed without
opinion and the Oregon Supreme Court denied review. Summers v. Causey, 322 Or. App. 562,
rev. denied, 370 Or. 694 (2022). The Oregon Supreme Court order denying review was dated
December 29, 2022. Resp. Exh. 143.
On January 6, 2025, petitioner filed his petition for writ of habeas corpus in this Court.
Petition, ECF No. 2. This Court initially required petitioner to show cause in writing why the
petition should not be summarily dismissed, but upon receipt of petitioner’s response, the Court
withdrew the order to show cause and ordered the petition served upon respondent. Orders, ECF
Nos. 11, 12. Respondent argues the petition should be denied as untimely. Petitioner was given
the opportunity to file a brief in support of his petition and was advised that if he did not do so,
the petition would be taken under advisement on the record before the Court. Order, ECF No.
17. Petitioner did not file a brief in support of his petition.
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DISCUSSION
The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) provides for a one-year
statute of limitations to file a petition for writ of habeas corpus seeking relief under 28 U.S.C. §
2254. See 28 U.S.C. § 2244(d)(1). Under the statute, the one-year period begins to run from the
date the judgment becomes final at the conclusion of direct review “or the expiration of the time
for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
The one-year limitation period is statutorily tolled while a “properly filed application for
State post-conviction or other collateral review with respect to the pertinent judgment or claim is
pending.” 28 U.S.C. § 2244(d)(2). A state post-conviction application remains “pending” until
the application has achieved final resolution in the state’s post-conviction procedures. Carey v.
Saffold, 536 U.S. 214, 220 (2002).
Equitable tolling is also available to toll the one-year statute of limitations applicable to
28 U.S.C. § 2254 habeas corpus cases. Holland v. Florida, 560 U.S. 631, 645 (2010). A litigant
seeking to invoke equitable tolling must establish: (1) they have been pursuing their rights
diligently; and (2) that some extraordinary circumstance prevented them from timely filing their
petition. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The “‘extraordinary circumstances
beyond a prisoner’s control [must] make it impossible to file a petition on time.’” Spitsyn v.
Moore, 345 F.3d 796, 799 (9th Cir. 2003) (quoting Brambles v. Duncan, 330 F.3d 1197, 1202
(9th Cir. 2003)). A petitioner who fails to file a timely petition due to his own lack of diligence
is not entitled to equitable tolling. Tillema v. Long, 253 F.3d 494, 504 (9th Cir. 2001). “The
habeas corpus applicant bears the burden of showing that this ‘extraordinary exclusion’ should
apply to him.” Ostrowski v. Kelly, 639 F.Supp.3d 1084, 1087 (2022) (citing Miranda v. Castro,
292 F.3d 1063, 1065 (9th Cir. 2002)).
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Here, as noted, the Oregon Supreme Court’s decision denying review in petitioner’s
direct appeal became final on October 25, 2018. Resp. Exh. 114. Petitioner had 90 days within
which to seek a writ of certiorari from the United States Supreme Court, but he declined to do
so. U.S. Sup. Ct. Rule 13.1. Thus, petitioner’s conviction became “final” for the purposes of §
2244(d)(1)(A) on January 23, 2019. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012)
(explaining that a conviction becomes “final” for purposes of § 2244(d)(a)(A) “when the time for
pursuing direct review in [the Supreme Court], or in state court, expires”).
Petitioner filed his state PCR petition on April 12, 2019, which triggered the statutory
tolling period provided under § 2244(d)(2).1 Resp. Exh. 118. At that point, 79 days of the
federal limitation period had accrued. Following proceedings in the PCR trial court and the
Oregon Court of Appeals, the Oregon Supreme Court denied review on December 29, 2022.
Resp. Exh. 143. The time to file a petition for reconsideration with the Oregon Supreme Court
elapsed 14 days later, on January 12, 2023. See Or. R. App. P. 9.25(1). At that point,
petitioner’s state PCR proceeding “cease[d] to be pending.” See Melville v. Shinn, 68 F.4th 1154
(9th Cir. 2023) (the petitioner’s state post-conviction action was “pending” for § 2244(d)’s
purposes until the petitioner “properly and timely” could have moved for reconsideration of the
Arizona Court of Appeals decision); see also Cartwright v. Oregon Board of Parole and Post-
Prison Supervision, No. 3:22-cv-01510-AA, 2023 WL 662450, at *1 (D. Or. Oct. 12, 2023)
(“Recently, the Ninth Circuit held that a state application for post-conviction relief is no longer
1 State law determines when a petition has been “properly filed” in state court. Orpiada v.
McDaniel, 750 F.3d 1086, 1089 (9th Cir. 2014). If state law rejects the mailbox rule, statutory
tolling does not begin until the court receives the filing for collateral review. Id. Oregon has
rejected the mailbox rule. See Baldeagle v. Lampert, 185 Or. App. 326, 330-32 (2002); see also
Stull v. Hoke, 326 Or. 72, 81 (1997). As such, the tolling period under § 2244(d)(2) commences
on the date the PCR petition is actually filed in state court.
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‘pending’ when ‘no other state avenues for relief remain open,’ rather than the date on which the
state court issues final judgment or mandate”) (quoting Melville, 68 F.4th at 1160-61).
Petitioner filed his petition in this Court on January 6, 2025.2 Between the time
petitioner’s state PCR proceeding became final and the date he initiated his habeas case in this
case, an additional 725 days accrued. In sum, a total of 804 days accrued before petitioner filed
his petition in this Court, far more than the one-year limitation period provided under § 2244(d).
Moreover, petitioner has provided no basis upon which the limitation period could be deemed
equitably tolled. Accordingly, the petition for writ of habeas corpus should be denied as
untimely.
CONCLUSION
For these reasons, the Court should DENY the Petition for Writ of Habeas Corpus and
enter a judgment of DISMISSAL. A certificate of appealability should be denied as petitioner
has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. §
2253(c)(2).
This recommendation is not an order that is immediately appealable to the Ninth Circuit
Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate
Procedure, should not be filed until entry of the district court’s judgment or appealable order.
2 Pursuant to the mailbox rule, a pro se petitioner’s habeas petition is deemed filed “at the time . .
. [it is] delivered . . . to the prison authorities for forwarding to the court clerk.” Hernndez v.
Spearman, 764 F.3d 1071, 1074 (9th Cir. 2014) (alteration in original) (internal quotation marks
omitted) (quoting Houston v. Lack, 487 U.S. 266, 276 (1988). Petitioner did not, however,
include a signature date on his petition, so the Court deems the petition filed as of the date it was
entered in the Court’s record. See Beasley v. McDowell, 2021 WL 22451, at *1 n.2 (E.D. Cal.
Jan. 4, 2021) (where no signature date appeared on petition, actual court filing date was
employed to calculate timeliness of habeas petition).
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The parties shall have fourteen (14) days from the date of service of a copy of this
recommendation within which to file specific written objections with the court. Thereafter, the
parties shall have until fourteen (14) days within which to file a response to the objections.
Failure to timely file objections to any factual determination of the Magistrate Judge will be
considered as a waiver of a party’s right to de novo consideration of the factual issues and will
constitute waiver of a party’s right to appellate review of the findings of fact in an order
judgment entered pursuant to this recommendation.
DATED this 	day of December 2025.
Jolie A. Russo
United States Magistrate Judge
5th
/s/ Jolie A. Russo
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