Opinion
Case No. 2:16-cv-02342-JE
07-17-2018
SILVESTRE CERVANTES-AVILA, Petitioner, v. BRAD CAIN, Respondent.
Robert W. Rainwater Rainwater Law Group 1327 SE Tacoma, Suite 239 Portland, Oregon 97202 Attorney for Petitioner Frederick M. Boss, Deputy Attorney General Samuel A. Kubernick, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent
FINDINGS AND RECOMMENDATION Robert W. Rainwater
Rainwater Law Group
1327 SE Tacoma, Suite 239
Portland, Oregon 97202
Attorney for Petitioner Frederick M. Boss, Deputy Attorney General
Samuel A. Kubernick, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent JELDERKS, Magistrate Judge.
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of a variety of state-court convictions from 2009. For the reasons that follow, the Petition for Writ of Habeas Corpus (#2) should be denied.
BACKGROUND
On November 10, 2008, the victim in this case, Valeria Romo-Ortega, went to the Blue Iguana Bar in Washington County with Edith Gonzalez and Coral Martinez-Lopez. When the bar closed, Ms. Gonzalez left with her boyfriend, and Romo-Ortega and Martinez-Lopez met two men in the parking lot, one of whom was Petitioner. Petitioner showed the women a handgun he owned, explaining that he carried it because he had received threats from his girlfriend's former boyfriend. Trial Transcript, pp. 197, 247, 255.
Romo-Ortega and Martinez-Lopez agreed to return to Petitioner's apartment with him, where Petitioner and Romo-Ortega ingested drugs. Id at 201. Petitioner asked Romo-Ortega to come over to a bedroom, and she proceeded to stand in the doorway of the bedroom. Petitioner asked her if she would sell drugs for him at the Blue Iguana, but she declined. He also told her "he wanted a woman," but Romo-Ortega told him, "I can't be your woman." Id at 203. They then returned to talking about drugs, and Petitioner ultimately closed the door to the bedroom. Romo-Ortega, who was sitting on the bed, tried to stand up when Petitioner closed the door, but he would not allow her to do so. Id.
Petitioner proceeded to pull out his pistol. When Romo-Ortega began to yell, Petitioner pointed the gun at her causing her to yell again, but Petitioner refused to allow her to leave. Id. Petitioner told her to pretend that he was her boyfriend, and she said "No." Id at 204. Whenever Romo-Ortega yelled out, he began to choke her. He also pointed the gun at her and threatened to kill her if she yelled. Id. Petitioner proceeded to rape and sodomize Romo-Ortega, putting her underwear in his pocket when he was finished. Id at 205.
When Petitioner and Romo-Ortega emerged from the bedroom, Martinez-Lopez was no longer present. Romo-Ortega fled from the residence, hid underneath a tree, and called Martinez-Lopez who returned to the apartment complex and picked Romo-Ortega up from her hiding place. Id at 208. They initially went to Gonzalez's house, and Gonzalez later testified that Romo-Ortega was so scared that she was barely able to speak. She was screaming, crying, and claimed that she had been raped. Id at 184-85. Gonzalez called the police, and an ambulance took Romo-Ortega to a hospital. Id at 194. Romo-Ortega had abrasions on her neck, left arm, fingers, and inner thighs, and her pelvic exam revealed "a small area of redness on her left vaginal wall, and her cervix was very red and abraded." Id at 56-57.
When police initially questioned Petitioner, he denied being at the Blue Iguana or having sex with the victim, claiming to have been with his girlfriend. However, he later admitted that he had, in fact, been at the Blue Iguana and had sex with Romo-Ortega, claiming the sex was consensual. Id at 77-82, 162. When police searched his apartment, they found Romo-Ortega's underwear, drugs, firearms, as well as six other pairs of female underwear in an attic crawl space. Id at 131.
On November 19, 2008, the Washington County Grand Jury indicted Petitioner on nine charges: Rape in the First Degree, Sodomy in the First Degree, Unlawful Use of a Weapon, Unlawful Manufacture and Delivery of Methamphetamine, and Unlawful Manufacture, Delivery, and Possession of Cocaine. Respondent's Exhibit 102. Petitioner proceeded to a jury trial where he argued that his sexual encounter with Romo-Ortega was consensual. The jury found Petitioner guilty of the charged offenses and the trial court sentenced him to 260 months in prison.
Petitioner took a direct appeal alleging that the trial court erred in imposing consecutive sentences. Respondent's Exhibit 103. The Oregon Court of Appeals affirmed the trial court's decision in a written opinion, and the Oregon Supreme Court denied review. State v. Cervantes-Avila, 242 Or. App. 122, 255 P.3d 536, rev. denied, 350 Or. 573, 258 P.3d 1240 (2011).
Petitioner next filed for post-conviction relief ("PCR") in Malheur County where the PCR Court denied relief on all of his claims. Respondent's Exhibit 139. The Oregon Court of Appeals affirmed the PCR Court's decision without issuing a written opinion, and the Oregon Supreme Court denied review. Avila v. Nooth, 279 Or. App. 336, 384 P.3d 543, rev. denied, 360 Or. 422, 383 P.3d 855 (2016).
Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on December 19, 2016 wherein he raises eight grounds for relief faulting the performance of his trial and appellate attorneys. Respondent asks the Court to deny relief on the Petition because the state court denial of relief was not objectively unreasonable.
I. Standard of Review
An application for a 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 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 are 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 of § 2254(d)(1), a federal habeas court may grant relief "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id at 413. The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. Id at 410. Twenty-eight U.S.C. § 2254(d) "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents. It goes no farther." Harrington v. Richter, 562 U.S. 86, 102 (2011).
Twenty-eight U.S.C. § 2254(d)(2) allows a petitioner to "challenge the substance of the state court's findings and attempt to show that those findings were not supported by substantial evidence in the state court record." Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). A federal habeas court cannot overturn a state court decision on factual grounds "unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). This is a "'daunting standard-one that will be satisfied in relatively few cases,' especially because we must be 'particularly deferential to our state-court colleagues.'" Hernandez v. Holland, 750 F.3d 843, 857 (9th Cir. 2014) (quoting Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)).
II. Unargued Claims
As previously noted, Petitioner raises eight claims in his pro se Petition for Writ of Habeas Corpus. In his supporting memorandum Petitioner filed with the assistance of appointed counsel, however, Petitioner chooses to support only one claim with argument: whether his trial attorney was ineffective for failing to locate, interview, and secure the attendance of Martinez-Lopez at trial.
Petitioner does not argue the merits of his remaining claims, nor does he address any of Respondent's arguments as to why relief on these claims should be denied. As such, Petitioner has not carried his burden of proof with respect to these unargued claims. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (Petitioner bears the burden of proving his claims). Even if Petitioner had briefed the merits of these claims, the court has examined them based upon the existing record and determined that they do not entitle him to relief.
III. Ground Four: Failure to Interview and Call Martinez-Lopez
According to Petitioner, his attorney was constitutionally obliged to call Martinez-Lopez because she had important testimony to offer on Petitioner's behalf. Because no Supreme Court precedent is directly on point that corresponds to the facts of this case, the court uses the general two-part test established by the Supreme Court to determine whether Petitioner received ineffective assistance of counsel. Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). First, Petitioner must show that his counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 686-87 (1984). Due to the difficulties in evaluating counsel's performance, courts must indulge a strong presumption that the conduct falls within the "wide range of reasonable professional assistance." Id at 689.
Second, Petitioner must show that his counsel's performance prejudiced the defense. The appropriate test for prejudice is whether Petitioner can show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id at 694. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the trial. Id at 696. 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." Mirzayance, 556 U.S. at 122.
According to Petitioner, Martinez-Lopez gave an interview to the police on November 12, 2008, in which she made several factual representations that would have been materially helpful to the defense. In that police report, Martinez-Lopez stated that: (1) she and Romo-Ortega voluntarily used cocaine at Petitioner's apartment; (2) Romo-Ortega voluntarily went into Petitioner's bedroom with him; (3) she heard Romo-Ortega tell Petitioner "No" but assumed they were just playing; and (4) "she received a telephone call and since everything seemed okay she decided to leave and go pick up her friend." Respondent's Exhibit 117, p. 3. Petitioner argues that this testimony would have substantially contradicted Romo-Ortega's statements that she was screaming and yelling while Petitioner attacked her, and that such statements would therefore have supported his defense that the sexual encounter was voluntary. He further claims that in a case where the jury verdict finding him guilty was not unanimous, the absence of Martinez-Lopez at trial was especially damaging.
The verdicts pertaining to the sex offenses and firearms charges were not unanimous. Trial Transcript, pp. 378-389.
During Petitioner's PCR proceedings, trial counsel submitted an Affidavit in which he explained the following:
I have reviewed Mr. Cervantes-Avila's claim that I failed to secure Coral Martinez-Lopez to testify on his behalf at trial. At the time of trial I was pleased to learn that Ms. Martinez-Lopez was not available to testify. Ms. Martinez-Lopez picked the victim up after the alleged rape and was witness to some extremely damaging excited utterances the victim made about allegedly being raped which corroborated the state's case powerfully. My assessment was that Ms. Martinez-Lopez would not have been a very good witness for our defense case, and that her potential testimony would have been very damaging to the defense case. Mr. Martinez-Lopez was a strong witness for the State. If Ms. Martinez-Lopez had been available to testify, I would not likely have called her as a defense witness.Respondent's Exhibit 137, p. 4.
Petitioner did not offer an affidavit from Lopez-Martinez during the PCR hearing, and the PCR Court resolved this claim in the State's favor, reasoning as follows:
Trial attorney was not ineffective for not securing the attendance of Coral Martinez to testify at trial. There was no evidence that the attorney could have secured her attendance at trial. There is no evidence of what Ms. Martinez's testimony would have been at trial. It is more likely that her testimony would have been harmful to the Petitioner rather than helpful.Respondent's Exhibit 139, p. 2.
It does not appear from the record that Martinez-Lopez was available as a witness for Petitioner's trial. Petitioner was unable to locate Martinez-Lopez during his PCR proceedings, but he did submit the Affidavit of an investigator in which he swore that "there were records of [her] being in the Beaverton, Oregon area during the following times: September 2008 to March 2010, and January 2009 to December 2011." Respondent's Exhibit 119, p. 2. Although the investigator claimed there were unidentified records showing that Martinez-Lopez was Beaverton for an indeterminate amount of time during the intervals referenced above, when Detective Viola of the Beaverton Police Department attempted to serve Martinez-Lopez with a subpoena to appear at Petitioner's trial (which was scheduled to begin on March 31, 2009), Detective Viola discovered that Martinez-Lopez had been deported to Mexico on February 4, 2009. Trial Transcript, p. 230. Where the State was unable to secure Martinez-Lopez's presence at trial, it is doubtful Petitioner's trial attorney could have done so.
Petitioner offers new evidence in support of his assertion that Martinez-Lopez might have been available to testify. Because that evidence was not offered to the PCR Court, it is not properly considered here. See Cullen v. Pinholster, 563 U.S. at 181-82 ("evidence introduced in federal court has no bearing on § 2254(d)(1) review."). --------
Even if Martinez-Lopez had been available to testify at Petitioner's trial, and further assuming she would have testified consistently with her police report, she also could have offered testimony damaging to the defense. Martinez-Lopez told the police she heard no screaming or yelling coming from Petitioner's bedroom, but in the same report also told authorities that: (1) she received a call from Romo-Ortega stating that Petitioner had put a gun to her head and raped her, and not to return to Petitioner's apartment because he would kill her; (2) Romo-Ortega was hiding in the bushes, crying, and had red marks on her throat; and (3) she was still screaming and crying when they arrived at Gonzalez's apartment. Respondent's Exhibit 117, pp. 2-4. Thus, although Martinez-Lopez might have testified that she heard no yelling and screaming, she could have offered damaging testimony that was highly consistent with the State's evidence presented at trial. On balance, counsel's inclination not to call Martinez-Lopez as a defense witness was strategically sound.
Petitioner also asserts that the PCR Court's determination that there was no evidence as to what Martinez-Lopez's testimony would have been amounts to an unreasonable determination of the facts in light of the evidence presented given that the police report is part of the PCR record. While Petitioner was able to refer the PCR Court to the statement Martinez-Lopez gave to the police, he never presented any affidavit or declaration from her stating that she was available to testify, and what the contents of that testimony would have been.
In the absence of any document in the record speaking directly to the issue of how Martinez-Lopez would have testified if called at trial, Petitioner's argument is speculative. Accordingly, even assuming Petitioner could establish that counsel's performance fell below an objective standard of reasonableness, he cannot establish prejudice. See Horn v. Hill, 180 Or. App. 139, 148-49, 41 P.3d 1127 (2002) ("Where evidence omitted from a criminal trial is not produced in a post-conviction proceeding . . . its omission cannot be prejudicial"). At a minimum, the PCR Court's decision did not involve either an unreasonable determination of the facts in light of the evidence presented, or an unreasonable application of clearly established federal law.
IV. Evidentiary Hearing
Petitioner makes an alternative request for an evidentiary hearing in the event the Court does not provide relief on his Petition. Where the record in this case is sufficiently developed to resolve the issues, Petitioner's request for an evidentiary hearing should be denied. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007); Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011).
RECOMMENDATION
For the reasons identified above, the Court should deny the Petition for Writ of Habeas Corpus (#2), deny Petitioner's alternative request for an evidentiary hearing, and enter a judgment dismissing this case with prejudice. The Court should decline 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).
SCHEDULING ORDER
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 17 days. 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 Finding and Recommendation will go under advisement.
DATED this 17 day of July, 2018.
/s/_________
John Jelderks
United States Magistrate Judge