Opinion
2:14-cv-01548-YY
03-29-2022
TAD BRADLEY, Petitioner, v. MARK NOOTH, Superintendent, Snake River Correctional Institution, Respondent.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You, United States Magistrate Judge.
FINDINGS
Petitioner, an adult in custody of the Oregon Department of Corrections, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Second Amended Petition for Writ of Habeas Corpus (ECF No. 154) should be DENIED.
I. Background
A. Procedural History
On December 8, 2003, a Clackamas County grand jury indicted Petitioner on four counts of Sexual Penetration in the First Degree, ten counts of Sexual Abuse in the First Degree, two counts of Delivery of a Controlled Substance, and two counts of Furnishing Alcohol to a Person Under 21 Years of Age. Respondent's Supplemental Exhibits (“Resp. Supp. Exh.”), ECF No. 69, Exh. 111. The case was tried to a jury, who acquitted petitioner of two counts of Delivery of a Controlled Substance and found him guilty on the remaining counts. Respondent's Exhibits (“Resp. Exh.”), ECF No. 40, Exh. 101. The trial judge sentenced Petitioner to a total of 225 months in prison.
Petitioner appealed his conviction and sentence. On appeal, the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. State v. Bradley, 222 Or.App. 213, rev. denied, 345 Or. 381 (2008).
Petitioner then filed a petition for state post-conviction relief (“PCR”). Following an evidentiary hearing, the PCR trial court denied relief. Petitioner appealed, and the Oregon Court of Appeals affirmed without opinion. Bradley v. Nooth, 260 Or.App. 782 (2014). Petitioner's attorney failed to timely file a petition for review with the Oregon Supreme Court.
On September 29, 2014, petitioner filed a pro se Petition for Writ of Habeas Corpus in this court. ECF No. 5. On April 4, 2016, the undersigned issued Findings and Recommendation concluding that the petition was untimely. ECF No. 47. Following additional briefing, the parties reached a Joint Stipulation agreeing that the Findings and Recommendation should be withdrawn, the limitation period under 28 U.S.C. § 2244 would be tolled, and Respondent would agree to waive the procedural default defense as to the precise claims contained within the untimely Petition for Review in the state PCR proceeding. ECF No. 68. On September 22, 2016, the court withdrew the April 4, 2016 Findings and Recommendation and set a new briefing schedule. ECF. No. 70.
On September 22, 2020, Petitioner filed his Second Amended Petition for Writ of Habeas Corpus (ECF No. 154). Petitioner alleges twenty-three claims of ineffective assistance of trial counsel, three claims of ineffective assistance of appellate counsel, three claims of prosecutorial misconduct, a confrontation clause claim, a Sixth Amendment claim regarding right to a unanimous jury, and a claim of cumulative error. ECF No. 154. Also that date, this Court issued an order staying these proceedings pending the Supreme Court's decision on the retroactive application of the ruling in Ramos v. Louisiana, 140 S.Ct. 1390 (2020). ECF No. 153. On May 18, 2021, after the Supreme Court issued its decision in Edwards v. Vannoy, 141 S.Ct. 1547, 1552 (2021), in which it held that Ramos does not apply retroactively, the Court lifted the stay and this action proceeded. ECF No. 156.
B. Trial Evidence
The indictment charges Petitioner with crimes involving three minor females, TR, CR, and DB, who were friends with Petitioner's three daughters, Jennifer, Jessica, and Janelle. Petitioner was a single father and the three victims spent long periods of time at Petitioner's home visiting his daughters.
TR was seventeen at the time of trial. Tr. 62. She testified that she became friends with Petitioner's oldest daughter, Jennifer, around the age of twelve, and began going to Petitioner's house most days after school and would spend the night there on weekends. Tr. 72-73. During the summer months, TR stated she would spend the majority of nights at Petitioner's home. Tr. 73. She testified that she liked it there because “[w]e could smoke cigarettes, we could drink alcohol, and on occasion we smoked marijuana, ” which Petitioner would sometimes provide. Tr. 74-76. TR said Petitioner would sometimes drink alcohol with them, but that she never saw him smoke marijuana. Tr. 78-79.
The trial transcripts are in the Court record as Respondent's Supplemental Exhibit 112, ECF No. 69. The page citations are to the original transcript page numbers located in the upper righthand corner of each page.
TR testified that Petitioner's home had two bedrooms, one of which was Jennifer's, and the other shared by Jessica and Janelle; Petitioner slept in the living room. Tr. 85. When TR stayed at Petitioner's home overnight, she recalled that she often “passed out” and slept on a small couch in the living room. Tr. 85. TR testified that on three separate occasions when she was fourteen years old, Petitioner approached her while she was sleeping on the couch and put his hands down her pants, touching her vagina. Tr. 87-89. She described how he would touch her, that “[h]e could have sometimes went inside the lips, you know, but he wouldn't go actually inside the hole.” Tr. 88. TR stated that when Petitioner would touch her, she would awaken and would then either turn away and curl up in a ball or go to Jennifer's room to sleep on the floor. Tr. 88.
TR testified that she eventually disclosed the touching to Jennifer, but that Jennifer did not believe her and “told me her dad would never do anything like that.” Tr. 94. TR acknowledged that she responded that it may have just been a weird dream, explaining that she “still wanted to be friends with Jennifer, so I just didn't know what else to say to keep that friendship.” Tr. 108, 129. After that, TR's friendship with Jennifer ended, although TR's younger sister CR continued to go to Petitioner's house because she was friends with Jennifer's younger sisters. Tr. 96.
When TR was sixteen, after Jennifer had moved out of the home, Petitioner hired TR to babysit his two younger daughters. Tr. 100. TR testified that Petitioner would leave early in the morning for work and needed someone to help get the younger girls off to school, so she would go over the night before and spend the night at Petitioner's house. Tr. 100. After about two weeks of babysitting, TR stated that she was again awakened to Petitioner touching her vagina. Tr. 100. TR testified that, “I asked him what the hell he thought he was doing, and he didn't say anything. He looked at me, turned around and sat down in his chair and started watching TV again.” Tr. 101.
A week or two later, TR's mother became aware of allegations that Petitioner had sexually abused CR and DB, and she questioned TR about it. Tr. 102. TR then disclosed Petitioner's sexual abuse to her mother and, eventually, the police. Tr. 102.
CR was twelve years old at the time of trial. Tr. 138. CR testified that she became friends with Petitioner's daughter, Jessica, when she was in the first grade, and that she met Janelle through Jessica. Tr. 141. CR stated that she started staying overnight at Petitioner's home on a regular basis when she was eight or nine years old. Tr. 145. CR testified that “sometimes in the mornings I would either find my pants and underwear across the room or not on, and I woke up with [Petitioner's] hands in my pants.” Tr. 153-54. CR recalled at least two times when Petitioner “actually had his finger in my vagina.” Tr. 160.
CR testified that she liked to go to Petitioner's house because she “got to do what I wanted to do. I got to hang out with my friends without being watched by my mom or my parents, being able to drink and smoke and smoke pot, doing what I wanted to do without someone saying no or you're grounded.” Tr. 166-67. She testified that Petitioner would also take them places like restaurants and the skating rink, would buy her clothes, shoes, and earrings, and once paid for her to get her belly-button pierced. Tr. 166-67. CR stated that she did not want to believe that Petitioner was touching her because “he was there for us more than my dad was, and I was always at their house, so he was like a dad to me and I didn't want to believe it was him.” Tr. 169. When CR learned that DB's mother spoke to CR's mother about sexual abuse, and that TR had told their mother about her sexual abuse, CR decided to disclose what Petitioner had done to her as well. Tr. 170.
DB was also twelve years old at the time of trial. Tr. 204. DB testified that when she was ten or eleven years old, she befriended Jessica and Janelle and began staying overnight at their house, stating that she did so “[t]oo many times to count” as DB's mother had recently lost her job and house and the family had to move into a small trailer. Tr. 208-09. Unlike TR and CR, DB denied being given alcohol or marijuana when she was staying at Petitioner's home or seeing any of the girls drinking. Tr. 213-215. Petitioner did, however, buy her items that she needed and took her along with the other girls to amusement parks, roller-skating, camping, restaurants, and the movies. Tr. 210-212.
DB testified that when Petitioner and his two younger daughters moved out of their house and into the Milwaukee Inn for a period of time, she spent the night there over fifteen times. Tr. 218-19. She stated that when she slept at the Milwaukee Inn, Petitioner would pick up the blanket she was sleeping under, pull back her underwear, and look at her. Tr. 225-26. DB denied that Petitioner ever touched her skin, but stated that he touched her underwear. Tr. 22526. She testified that this happened “lots of times.” Tr. 224.
DB testified that she did not initially tell anyone, but she wrote about the incidents in her diary. Tr. 288. She said that after CR read her diary, CR told her that she had awoken “with her pants off, and she said that [petitioner had] done the same thing to her.” Tr. 229. DB eventually told her mother about Petitioner's conduct after DB got mad at Petitioner for yelling at her about cleaning the house for Jessica's birthday. Tr. 230.
DB's mother also testified. She stated that CR was present when DB began disclosing an incident in which Petitioner reached towards her under the covers, and CR disclosed how she woke up at Petitioner's home without her pants and underwear. Tr. 296-97. DB's mother waited approximately one month to report CR's disclosure to CR's mother, after which CR's mother reported it to the police. Tr. 265-66, 299.
Once the police were contacted, CR and DB were interviewed and examined at CARES Northwest. Recordings of the interviews were played for the jury. Tr. 306-07. Patricia Reilly, a nurse practitioner at CARES, examined DB. Although the process generally involves a physical examination, DB declined to be physically examined. Tr. 325. DB provided information to Reilly that was generally consistent with her testimony. Reilly testified without objection that she diagnosed DB as having been sexually abused based on all the available information: “the history available to us today and today's evaluation provide a clear indication of sexual abuse based on the child's clear and consistent statements.” Tr. 332-33.
TR was too old to be interviewed at CARES and instead was interviewed by Detective Chad Weaver, as discussed below.
Dr. Elizabeth Carr performed CR's physical examination, and she testified that CR's “genital exam was entirely normal.” Tr. 412. Dr. Carr explained, however, that “the great majority of children who report touching on the vaginal area don't have any physical evidence.” Tr. 412. Based on the information available to her, Dr. Carr testified that “my diagnosis was that I was very concerned that [CR] had been sexually abused.” Tr. 416.
All three of Petitioner's daughters, Jennifer, Jessica, and Janelle, were called to testify in the State's case in chief. Jennifer was seventeen at the time of trial and testified that she had not lived with Petitioner since she was fifteen years old. Tr. 353, 355. She testified that TR would frequently spend the night at her house when they were in the seventh and eighth grades. Tr. 354-57. Jennifer recalled that, during that time period, TR told her Petitioner had touched her in an inappropriate way, but TR also said she might have been dreaming. Tr. 357. More recently, TR told Jennifer that Petitioner had touched her vagina while TR was babysitting the younger girls, and Jennifer testified that she apologized to TR for not believing her earlier disclosure, though she explained that she was confused at the time she apologized because she had not lived with Petitioner for over two years and did not know what had happened. Tr. 361. Jennifer testified that, although she and TR did sometimes smoke cigarettes and marijuana together, they never got it from Petitioner. Tr. 361. She denied that Petitioner ever provided them alcohol, and testified that Petitioner “never allowed that to happen.” Tr. 362.
On cross-examination by Petitioner's counsel, Jennifer testified that TR did not have a good reputation for telling the truth, stating that “[s]he had started a lot of rumors around school. She was a rumor person.” Tr. 368. Jennifer also testified that she was familiar with CR's reputation at school and in the community and that it was “not good. She doesn't tell the truth.” Tr. 368. When asked about DB's reputation for truthfulness, Jennifer indicated that she didn't really know DB that well and was not aware of her reputation in that regard. Tr. 368.
On redirect, the prosecutor questioned Jennifer about a statement she made to Petitioner's defense investigator that she did not believe her friends would lie about what happened with Petitioner. Jennifer denied making the statement to the investigator, but ultimately said she could not remember if she told the investigator that or not. Tr. 372-74.
Jessica was thirteen at the time of trial. Tr. 375. She testified that she met CR in the first grade. She testified that one time when CR spent the night at her house, CR told her that she had awoken in the morning to find that her pants, underwear, and tampon had been removed. Tr. 378. She said CR told her not to tell to tell anyone, and that she never mentioned the incident to Petitioner because she was too frightened, explaining, “I didn't know if he would freak out or what he would do[.]” Tr. 379. On cross-examination, Jessica testified that she slept next to CR most of the time, and never saw her wake up without her pants on. Tr. 383. Jessica also testified on cross-examination that Petitioner never provided them with alcohol or marijuana, but that CR would probably sneak alcohol out of the refrigerator. Tr. 380-81. She also stated that it was her opinion that CR would not tell the truth. Tr. 383.
Janelle was eleven at the time of trial. Tr. 388. She also recalled the time when CR reported that her underwear had been removed overnight, and that CR told Jessica not to tell Petitioner. Tr. 391-92. On cross-examination, Janelle testified that she never saw CR wake up without pants on, and that she and CR would sleep fairly close to one another in the same room. Tr. 393.
Chad Weaver, the detective assigned to the case, testified for the prosecution. Weaver recounted statements that the victims gave shortly after TR and CR's mother made their report to police, and he discussed his interviews with Petitioner's daughters. Tr. 430-43. Weaver testified that Jennifer reported to him that CR told her she woke up on the couch one night with her pants pulled down around her ankles and Petitioner touching her vaginal area. Tr. 427. Jennifer also reported that CR had disclosed to Jessica that she also woke up in the morning, after spending the night, with her pants around her ankles. Tr. 427.
Weaver testified that TR reported that Petitioner first touched her when she was fourteen; she was staying the night at Petitioner's house and asleep on the couch when she awoke to find Petitioner with his hands down her pajama bottoms. Tr. 432. She reported two other, similar incidents occurred around that same time. Tr. 432-33. Weaver stated TR told him that a few weeks before the matter was reported to the police, when she was spending the night babysitting, she was sleeping on the couch wearing pajamas and she woke up sometime in the early morning hours with her pajamas and underwear around her ankles and Petitioner touching her vaginal area. Tr. 431. TR also told Weaver that Petitioner would give her beer or other alcohol and would also provide marijuana to smoke. Tr. 431.
Weaver explained that he interviewed CR after her CARES evaluation because CR told her mother she had not disclosed everything that had occurred. Tr. 439-40. CR told Weaver about waking up numerous times in the early morning hours with her pajama bottoms around her ankles and Petitioner touching her vaginal area with his hand, and that on one occasion he actually penetrated her vagina with his finger. Tr. 441-443.
Weaver also interviewed Petitioner, Tr. 445, who denied that he had ever inappropriately touched the girls. Tr. 449. Petitioner also denied that he had ever provided the victims with drugs or alcohol. Tr. 450.
At the close of the state's case, Petitioner's attorney made a motion judgment of acquittal on several counts, which was denied.
In the defense case, Petitioner's attorney called Dr. Norvin Cooley, a clinical and forensic psychologist, who provided expert testimony regarding the formation of false memories through misattribution and suggestibility. Tr. 478-88. Dr. Cooley reviewed the CARES interviews of CR and DB and noted that DB had discussed the allegations with her mother repeatedly, which may have allowed DB to fill in gaps that would reinforce her memory. Tr. 486-87. He also testified that when the evaluator told DB toward the end of her interview, “you've done a good job, ” it could have reinforced the child's memory, even if it is a false memory. Tr. 477-78.
On cross-examination, the prosecutor focused on Dr. Cooley's career as an expert witness working mainly for the defense, and his membership in the Oregon Criminal Defense Lawyers Association. Tr. 489-93. The prosecutor also elicited that Dr. Cooley had not testified for the prosecution for three or four years, although he had been hired by a prior district attorney in the county where Petitioner was being prosecuted. Tr. 500-01.
After Dr. Cooley testified, the defense called seven witnesses who attested to Petitioner's good character, his excellent conduct around his daughters and their friends, and the general structure and management of Petitioner's household. Tr. 503-71. Finally, Petitioner testified at length on his own behalf and denied all of the charges. Tr. 572-682.
During closing arguments, the prosecutor discussed Dr. Cooley's employment as an expert for defense attorneys:
Dr. Cooley is who he is. That man's been working here in Clackamas County since the early 80s. He has made thousands upon thousands upon thousands of dollars off of being a criminal defense expert. And he's going to live a lot longer and he's going to continue to make thousands upon thousands upon thousands of dollars more to take the stand and say what they want him to say. Don't kid yourself. He hasn't testified for the prosecution in this court, at least for any of us, for eight years except for may be, and I trust him when he says under oath, Terry Gustafson, our former DA.
Do you remember her? She is currently disbarred and will never practice law again. And the four years that she was our DA before, the darkest years in the history of this county, I've been here under three DA's - actually five if you want to count the time that the AG's office was over our office, while she was going through all of her ethical problems. So she hired -Tr. 747-48. At that point, Petitioner' attorney interrupted: “Judge, there we're way beyond the scope of this trial.” Tr. 748. The judge sustained the objection, but Petitioner's attorney did not request to strike the argument or for a curative instruction. Tr. 748.
As noted, the jury acquitted Petitioner on the counts charging him with providing marijuana to TR and his daughter Jessica, and convicted him on all of the remaining counts.
II. LEGAL STANDARDS
A. Procedural Default
A habeas petitioner 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 those claims. Rose v. Lundy, 455 U.S. 509, 519 (1982). “As a general rule, a petitioner satisfies the exhaustion requirement by fairly presenting the federal claim to the appropriate state courts . . . in the manner required by the state courts, thereby ‘affording the state courts a meaningful opportunity to consider allegations of legal error.'” Casey v. Moore, 386 F.3d 896, 915-916 (9th Cir. 2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 257 (1986)). If a habeas litigant failed to present his claims to the state courts in a procedural context in which the merits of the claims were actually considered, the claims have not been fairly presented to the state courts and therefore are not eligible for federal habeas corpus review. Edwards v. Carpenter, 529 U.S. 446, 453 (2000); Castille v. Peoples, 489 U.S. 346, 351 (1989).
A petitioner is deemed to have “procedurally defaulted” his claim if he failed to comply with a state procedural rule or failed to raise the claim at the state level. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). If a petitioner has procedurally defaulted a claim in state court, a federal court will not review the claim unless the petitioner shows “cause and prejudice” for failure to present the constitutional issue to the state court or makes a colorable showing of actual innocence. Gray v. Netherland, 518 U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992); Murray v. Carrier, 477 U.S. 478, 485 (1986).
B. Relief on the Merits and Ineffective Assistance of Counsel
An application for writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was: (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” or (2) “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). A state court's findings of fact are presumed correct and petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
A state court decision is “contrary to . . . clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases” or “if the state court confronts a set of facts that a materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the “unreasonable application” clause, a federal habeas court may grant relief “if the state court identifies the correct legal principle from [the Supreme Court's] decisions, but unreasonably applies that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 413. The “unreasonable application” clause requires the state court decision to be more than incorrect or erroneous. The state court's application of clearly established law must be objectively unreasonable. Id. at 409-10. A federal habeas court reviews the state court's “last reasoned decision.” Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).
It is clearly established federal law that to prevail on a claim of ineffective assistance of counsel, a habeas petitioner must prove that counsel's performance fell below an objective standard of reasonableness and there is 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 (1987). Failure to satisfy either prong of this test obviates the need to consider the other. Id. at 687.
The Strickland standard also applies to claims of ineffective assistance of appellate counsel based on the failure to raise particular claims on appeal. See Smith v. Robbins, 528 U.S. 259, 285 (2000). A habeas petitioner must show that, but for appellate counsel's objectively unreasonable failure to raise the omitted claim(s), there is a reasonable probability that petitioner would have prevailed on appeal. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. In the absence of such a showing, neither Strickland prong is satisfied. See Pollard v. White, 119 F.3d 1430, 1435-37 (9th Cir. 1997); Miller v. Keeney, 882 F.2d 1428, 1434-35 (9th Cir. 1989).
This court's inquiry under Strickland is highly deferential. When Strickland's general standard is combined with the standard of review governing 28 U.S.C. § 2254 habeas corpus cases, the result is a “doubly deferential judicial review.” Knowles v. Mirzayance, 556 U.S. 111, 122 (2009).
III. DISCUSSION
As noted, Petitioner alleges numerous claims for relief in his Second Amended Petition. In his Memorandum in Support and subsequent briefing, however, he addresses only the following claims: (1) trial counsel provided ineffective assistance of counsel when he failed to effectively cross-examine Petitioner's daughters to elicit exculpatory evidence concerning the victims; (2) trial counsel provided ineffective assistance of counsel when he failed to object to the admission of the CARES Northwest testimony that vouched for the credibility of two of the victims absent any medical evidence or findings; (3) trial counsel provided ineffective assistance of counsel when he failed to object to inflammatory and impermissible comments made by the prosecutor during closing arguments; (4) the prosecutor committed misconduct in his closing argument; and (5) cumulative errors require issuance of a writ of habeas corpus.
Petitioner also initially argued his constitutional rights were violated by non-unanimous jury verdicts, but subsequently conceded that the Supreme Court's decision in Edwards v. Vannoy, 141 S.Ct. 1547 (2021), in which the Court declined to retroactively extend Ramos v. Louisiana, 140 S.Ct. 1390 (2020), precludes relief on this claim.
Respondent counters that this court must give deference to the state PCR court's rejection of Petitioner's ineffective assistance claims. Respondent also argues that Petitioner procedurally defaulted his claim that trial counsel was ineffective in failing to object to the CARES Northwest testimony and, in any event, he would not be entitled to relief on the merits. Respondent further argues that Petitioner failed to adequately plead and procedurally defaulted his claims that trial counsel was ineffective in failing to object to the prosecutor's purported vouching during closing argument, and that he procedurally defaulted his claim that the prosecutor committed misconduct during the course of his closing argument. Finally, Respondent contends Petitioner has not satisfied his burden of proof on the remaining claims alleged, and habeas corpus relief should be denied.
A. Ineffective Assistance for Failing to Cross-Examine Petitioner's Children
In sub-claim (A) of his First Claim, Petitioner contends trial counsel was constitutionally ineffective in his cross-examination of Petitioner's daughters, by failing to elicit exculpatory and beneficial testimony concerning their observations of the victims and other matters. In the state PCR proceeding, Petitioner alleged trial counsel failed to elicit testimony concerning CR's belly piercing, allegations that Petitioner gave the victims money and other gifts, and prior abuse allegations by each the victims against other people. In support of this claim, Petitioner submitted several affidavits from his daughters. The PCR trial court rejected the claim, concluding that trial counsel had conducted an “effective” cross-examination of Petitioner's daughters and that Petitioner had failed to demonstrate inadequate representation. This conclusion was not contrary to or an unreasonable application of Strickland.
At trial, Petitioner's attorney elicited testimony from each of Petitioner's daughters that was favorable to the defense. For example, trial counsel elicited testimony from Jennifer that both TR and CR had poor reputations for telling the truth. Jennifer also contradicted the victims' testimony that Petitioner supplied them with alcohol and marijuana. Similarly, Jessica testified that CR had a poor reputation for telling the truth, and also testified that Petitioner never furnished alcohol or marijuana. Both Jessica and Janelle testified that, although they had slept next to CR, neither of them had seen CR wake up without her pants on, contradicting CR's earlier testimony.
Given the favorable evidence that trial counsel elicited from Petitioner's children, the PCR trial court reasonably applied Strickland in concluding that trial counsel conducted an effective cross-examination. Trial counsel was not constitutionally ineffective for failing to touch on every conceivable topic in cross-examining Petitioner's daughters. See, e.g., Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (holding that “[w]hen counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect”); Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000) (explaining that “counsel's tactical decisions at trial, such as refraining from cross-examining a particular witness or from asking a particular like of questions, are given great deference and must . . . meet only objectively reasonable standards”).
Moreover, in light of the totality of the evidence, Petitioner has failed to demonstrate that, but for trial counsel's failure to further cross-examine Petitioner's daughters, there is a reasonable probability that the outcome of the trial would have been different. Petitioner relies upon affidavits signed by Petitioner's daughters and submitted in the PCR proceedings to argue that trial counsel should have cross-examined them on topics such as that they never saw pornography on Petitioner's computer, Petitioner did not buy the victims gifts, at least one daughter could not remember a time when anyone was sleeping by themselves, TR had reported that her own father sexually abused her, CR threatened to falsely accuse Petitioner's brother of sexually abusing her, and CR told one daughter a story about an unrelated incident that was obviously a lie. This evidence that Petitioner claims should have been elicited on cross- examination was either in fact elicited from his daughters, was otherwise introduced through other witnesses, or was ruled inadmissible when counsel attempted to introduce it by other means. Accordingly, the PCR court's decision that Petitioner was not prejudiced by counsel's actions was not an unreasonable application of Strickland and is entitled to deference.
B. Ineffective Assistance for Failing to Object to CARES Testimony
In sub-claim (M) of his First Claim, Petitioner alleges trial counsel was constitutionally ineffective because he failed to object to testimony by a CARES Northwest witness that CR or DB had been sexually abused, in the absence of any medical evidence. As noted, Respondent contends Petitioner procedurally defaulted this claim and, in any event, is not entitled to relief on the merits of this claim. Because it is abundantly clear that petitioner is not entitled to relief on the merits of the claim, the Court does not address the alleged procedural default. See 28 U.S.C. § 2254(b)(2) (“[a]n application for writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State”); Runningeagle v. Ryan, 686 F.3d 758, 778 n.10 (9th Cir. 2012) (exercising discretion afforded under § 2254(b)(2) to decline to address procedural default issue where relief denied on the merits), cert. denied, 133 S.Ct. 2766 (2013).
At the time of Petitioner's trial in 2004, the opinion testimony by the CARES witnesses was admissible under Oregon law. In 2009, the Oregon Supreme Court decided State v. Southard, 347 Or. 127, 142 (2009), in which it held that a medical diagnosis of sexual abuse in the absence of corresponding physical evidence of sexual abuse is inadmissible under Oregon law. Petitioner's claim of ineffective assistance of counsel, however, “must be viewed through a pre-Southard lens because ‘Strickland' does not mandate prescience, only objectively reasonable advice under prevailing professional norms.'” Hall v. Myrick, No. 3:15-cv-00060-MO, 2017 WL 3816543, at *6 (D. Or. Aug. 30, 2017) (quoting Sophanthavong v. Palmateer, 378 F.3d 859, 870 (9th Cir. 2004)), aff'd 740 F. App'x. 599 (2018), cert. denied, 141 U.S. 2668 (2021).
Viewed in such light, both the Ninth Circuit and this court have repeatedly rejected claims that counsel was constitutionally ineffective for failing to anticipate Southard. See Mesta v. Myrick, 774 F. App'x. 1032 (9th Cir. 2019), cert.denied, 140 S.Ct. 391 (2019); Hall v. Myrick, 740 F. App'x. 599 (9th Cir. 2018); Leonard v. Oregon, 714 F. App'x. 801 (9th Cir. 2018), cert. denied, 139 S.Ct. 49 (2018); Vidal v. Nooth, No. 2:16-cv-00072-HZ, 2018 WL l715349, at *2 (D. Or. Feb. 2, 2018) (collecting the numerous cases from this court). Accordingly, trial counsel was not ineffective for failing to object to the CARES professionals' testimony, and the PCR court did not unreasonably apply Strickland in so holding.
C. Ineffective Assistance for Failing to Object during Closing Argument
In sub-claim (T) of his First Claim, Petitioner alleges trial counsel was ineffective in failing to adequately and timely object to the prosecutor's inflammatory comments concerning defense expert witness Dr. Norvin Cooley. Petitioner raised and exhausted a similar claim in his PCR proceedings. The PCR trial court denied relief on the claim, finding that Petitioner failed to demonstrate deficient performance or prejudice.
Generally, prosecutors and defense attorneys are given “reasonable latitude to fashion closing arguments” and make “reasonable inferences based on the evidence.” United States v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991). Accordingly, to violate a criminal defendant's constitutional rights, “it ‘is not enough that the prosecutors' remarks were undesirable or even universally condemned.'” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation omitted). Rather, “the relevant question is whether the prosecutors' comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” Id. (citation omitted).
In making this assessment, courts should consider “(1) whether the prosecutor's comments manipulated or misstated the evidence; (2) whether the trial court gave a curative instruction; and (3) the weight of the evidence against the accused.” Tak Sun Tan v. Runnels, 413 F.3d 1101, 1115 (9th Cir. 2005).
Petitioner first contends that counsel should have objected to the prosecutor's argument that Dr. Cooley was biased because he made significant amounts of money testifying for defense attorneys and the jury should consider Dr. Cooley's financial incentives to testify on Petitioner's behalf. Petitioner contends that this argument was hyperbolic and beyond any facts in evidence. However, Dr. Cooley testified that he charges $100 per hour to do forensic work on behalf of defense attorneys, including providing testimony, and that 75 percent of his income is derived from such work. Tr. 490. Dr. Cooley explained that he had been in practice in Clackamas County for 24 years, and estimated that he had worked for between 20 and 25 defense attorneys within the county during that time. The prosecutor's argument that Dr. Cooley had made “thousands upon thousands” of dollars testifying on behalf of criminal defendants was a reasonable inference given this testimony. See Molina, 934 F.2d at 1445 (prosecutors may make “reasonable inferences based on the evidence”). Moreover, it was not improper for the prosecutor to urge the jury to consider any financial incentives Dr. Cooley might have had in evaluating his testimony. See United States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997) (“[c]riticism of defense theories and tactics is a proper subject of closing argument”). Under these circumstances, the prosecutor did not utter an egregious misstatement such that trial counsel was constitutionally deficient in failing to object. Moreover, even if trial counsel had believed the prosecutor's statement was objectionable, he could have reasonably declined to object to avoid further highlighting Dr. Cooley's financial relationship with the defense bar. See Molina, 934 F.2d at 1448 (“[f]rom a strategic perspective . . . many trial lawyers refrain from objecting during closing argument to all but the most egregious misstatements by opposing counsel on the theory that the jury may construe their objections to be a sign of desperation or hyper-technicality”).
Petitioner next argues trial counsel was constitutionally ineffective in responding to the prosecutor's statements about Dr. Cooley's connection to the disbarred former district attorney. However, trial counsel did interject that the prosecutor's argument concerning the former district attorney was not relevant, and the trial judge sustained the objection. Following closing arguments, the trial judge instructed the jury that “[t]he lawyers' statements and arguments are not evidence.” Tr. 753. It is presumed that the jury followed the court's instructions. See Penry v. Johnson, 532 U.S. 782, 799 (2001) (“[w]e generally presume that jurors follow their instructions”). While Petitioner argues that trial counsel should have requested a curative instruction or moved for a mistrial, he fails to demonstrate a reasonable probability that the result of Petitioner's trial would have been different had he done so.
Petitioner has not demonstrated that the PCR trial court's decision denying relief on this claim was unreasonable and, as such, that decision is entitled to deference. Accordingly, Petitioner is not entitled to relief on his claim that trial counsel was ineffective in failing to adequately object to the prosecutor's statements about Dr. Cooley during closing argument.
In his Memorandum in Support, Petitioner also argues that trial counsel was ineffective in failing to object to the prosecutor's final statements in closing argument exhorting the jury to convict him in order to protect all children. Petitioner did not, however, allege this claim in his Second Amended Petition for Writ of Habeas Corpus; he alleges only that trial counsel was ineffective in failing to adequately object to the prosecutor's statements about Dr. Cooley. As such, the claim is not properly before this court and will not be addressed. See Rules Governing § 2254 Cases, 28 U.S.C. § 2254, Rule 2(c) (requiring that a petition for habeas corpus “specify all the grounds for relief that are available to the petitioner”); Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (rejecting claims not alleged in the petition and raised for the first time in briefing).
D. Prosecutorial Misconduct During Closing Arguments
In subclaims (B) and (C) of his Third Claim, Petitioner alleges the prosecutor engaged in misconduct by “[v]ouching for witness credibility during closing argument” and by “engaging in character assassination of the defense expert witness Dr. Norvin Cooley.” As noted, Respondent contends Petitioner procedurally defaulted these claims.
In his state PCR proceedings, Petitioner alleged the prosecutor committed misconduct by “[w]ithholding Brady material prior to trial” and “[m]aking deliberate mischaracterizations of facts and statements during trial.” Resp. Exh. 118, p. 6. Petitioner did not assert the claims he alleges here, and because Petitioner cannot now present those claims in state court, they are procedurally defaulted. Petitioner acknowledges the procedural default, but states without further argument that the claims “are cognizable under Martinez v. Ryan, 566 U.S. 1 (2012).” Pet.'s Memo. Support, ECF No. 89, p. 12, n.5. Martinez, however, applies only to claims of ineffective assistance of counsel. See Hunton v. Sinclair, 732 F.3d 1124, 1126-27 (9th Cir. 2013) (declining to extend Martinez to excuse the default of a claim of prosecutorial misconduct). Accordingly, Petitioner is not entitled to habeas corpus relief on the claims of prosecutorial misconduct alleged in subclaims (B) and (C) of his Third Claim for relief.
E. Cumulative Error
Petitioner asserts that even if, individually, the errors he identifies in this case do not entitle him to relief, the cumulative effect of the errors entitles him to relief. While a series of errors might rise to a constitutional violation even where no single error is of a constitutional dimension, Davis v. Woodford, 384 F.3d 628, 654 (9th Cir. 2004), Petitioner's claims are not meritorious and therefore do not meet the threshold for cumulative error.
F. Claims Not Addressed
As noted, Petitioner does not address the remaining claims for relief alleged in his Second Amended Petition for Writ of Habeas Corpus. As such, Petitioner has not sustained his burden to demonstrate why he is entitled to relief on these claims. See Lampert v. Blodgett, 393 F.3d 942, 970 n. 16 (9th Cir. 2004). Nevertheless, the Court has reviewed Petitioner's remaining claims and is satisfied that Petitioner is not entitled to habeas corpus relief.
RECOMMENDATION
For the reasons, the Petition for Writ of Habeas Corpus should be DENIED and a judgment of dismissal should be entered. Because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability should be DENIED. See 28 U.S.C. § 2253(c)(2).
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due by April 12, 2022. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.