Opinion
2:18-cv-00573-SB
08-13-2021
DAYTEN CORDELL HOPKINS, SR., Petitioner, v. MARK NOOTH, Superintendent, Snake River Correctional Institution, Respondent.
FINDINGS AND RECOMMENDATION
Hon. Stacie F. Beckerman, United States Magistrate Judge
Petitioner Dayten Cordell Hopkins, Sr. (“Petitioner”) filed this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons that follow, the district judge should deny the Second Amended Petition for Writ of Habeas Corpus (ECF No. 43) (the “Petition”), and decline to issue a certificate of appealability.
BACKGROUND
On August 24, 2009, a Washington County grand jury returned an indictment charging Petitioner with five counts of Rape in the First Degree; four counts of Sodomy in the First Degree; two counts of Unlawful Sexual Penetration in the First Degree; and three counts of Sexual Abuse in the First Degree. (Resp't Exs. (ECF No. 16), Ex. 102.) The charges arose from Petitioner's abuse of DE, a child under the age of twelve, and KT, a child under the age of fourteen, on various occasions between April 2006 and July 2007. (Resp't Ex. 102 at 2-3.)
Petitioner pleaded not guilty on all counts, and proceeded to trial before a jury on March 30, 2010. Several witnesses testified at trial, including the victims, DE and KT, and several adults to whom DE and KT reported the abuse. The post-conviction court summarized the evidence presented at trial, as follows:
In their briefing, the parties each cite to and rely on the post-conviction court's findings of fact. The Court thus recounts those factual findings here.
When D.E. was in third grade, petitioner and his girlfriend, [T.J.C.], moved into D.E.'s residence for about four months. During that time, petitioner became something of a caretaker for D.E. and her brother, [A.]. Sometimes, petitioner would take D.E. to the park, and when he did, he sexually abused D.E. He touched her sexually and caused her to touch him sexually. This also happened in her mother's room. Sometimes, petitioner would take out a knife and show it to D.E. before he touched her, and this scared her. Petitioner told D.E. not to tell anyone what he was doing, and D.E. was afraid to tell anyone about petitioner's abuse.
At some point, however, D.E. became tired of the abuse and did tell someone. Her mother once asked her if anyone had touched her, and D.E. told her yes, but only revealed a little bit at first. She also told [T.J.C.]. Over a couple of days, she finally told her mother everything that happened. Her mother threw petitioner and [T.J.C.] out of her house.
D.E.'s mother told her not to tell anyone else because her mother was scared. D.E. did, however, tell her Aunt [N.] when she was asked whether anyone had touched her. Eventually, D.E. underwent an evaluation at CARES and told the doctor there everything that had happened.
K.T. was another young girl, and she was in a special education class [taught by] [V.B.P.] in her sixth, seventh, and eighth grade years. Petitioner and [T.J.C.] moved into the home of [B.P.], K.T.'s mother, after moving out of D.E.'s home. [B.P.] was [T.J.C.'s] sister.
One day, after a lesson by [V.B.P.] on sexuality and unwanted touching, K.T. was very agitated and needed to talk with [V.B.P.] right away. K.T. told [V.B.P.] that an aunt's boyfriend had touched her inappropriately. Ultimately [V.B.P.] reported this disclosure to K.T.'s mother and to the Department of Human Services (DHS). DHS closed the report at screening because it determined there was no immediate threat to K.T. or other children.
K.T. was evaluated by CARES. She told Pamela Avila that petitioner and his girlfriend, K.T.'s Aunt [T.J.C.], used to live with them. K.T. told Avila that petitioner touched her on the front part of her private part. He directed K.T. not to tell anyone what he was doing. K.T. told the jury that petitioner touched with his hand her private that she uses to pee. K.T. told the jury this occurred on at least three different occasions. Eventually petitioner moved out, but he would still come by K.T.'s house to show her that he was still around.(Resp't Ex. 122 at 1-2.)
At the close of evidence, defense counsel moved for a judgment of acquittal, arguing that no reasonable juror could find that Petitioner “committed any of these crimes based on the lack of credibility of the witnesses.” (Tr. (ECF No. 17) at 528.) The trial court denied the motion, reasoning that “there is evidence in the light most favorable to the State that the jury could return a verdict of guilty on all counts....[e]ven in light of [KT's] testimony[, ]” which had been inconsistent, in some respects, with her CARES interview. (Id.) In his closing argument to the jury, defense counsel again asserted that DE and KT were “far from credible and . . . far from consistent.” (Tr. 566.)
The Court cites the page numbers listed in the lower right corner of the trial transcript.
The jury ultimately found Petitioner guilty on all counts, but returned nonunanimous verdicts on Counts 2 and 3-Rape in the First Degree with respect to DE-voting eleven to one in favor of conviction. (Tr. 609-11.) The jury returned unanimous verdicts on all of the remaining charges. (Id.) In a separate proceeding, the trial court sentenced Petitioner to a custodial term totaling 375 months, to be followed by a life term of post-prison supervision. (Resp't Ex. 101.)
Petitioner filed a direct appeal, assigning as error the trial court's denial of his motion for judgment of acquittal. (Resp't Ex. 103 at 6.) Specifically, Petitioner renewed his argument that the “testimony of the witnesses lacked credibility, ” and reiterated certain portions of his closing argument presented to the jury at trial. (Id. at 10-11.) The Oregon Court of Appeals affirmed without opinion, State v. Hopkins, 248 Or.App. 262 (2012), and the Oregon Supreme Court denied review. State v. Hopkins, 352 Or. 33 (2012).
Petitioner next sought post-conviction relief, eventually filing a second amended petition through appointed counsel. In the second amended petition, Petitioner raised several ineffective assistance of counsel claims stemming from both trial and appellate counsel's representation. (Resp't Ex. 110 at 7-10.) After an evidentiary hearing, the post-conviction court denied relief. (Resp't Ex. 122.) On appeal, Petitioner challenged only the post-conviction court's denial of his claim that counsel was ineffective for failing to object to the prosecutor's alleged vouching during closing arguments. (Resp't Ex. 123 at 7.) The Oregon Court of Appeals affirmed the postconviction court's judgment without opinion, and Petitioner did not seek review in the Oregon Supreme Court. (Resp't Exs. 125, 126.)
On April 4, 2018, Petitioner filed a pro se Petition for Writ of Habeas Corpus in this Court. (ECF No. 2.) The Court appointed counsel, and the parties proceeded to litigate this case in the normal course. During the pendency of this case, however, the Supreme Court decided Ramos v. Louisiana, 590 U.S. ___, 140 S.Ct. 1390 (2020), holding that the Sixth Amendment right to jury trial, as incorporated against the states by the Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a serious offense. Ramos, 140 S.Ct. at 1397. The Supreme Court then granted certiorari in Edwards v. Vannoy, 141 S.Ct. 1547 (2021) on May 4, 2020, to consider whether its decision in Ramos applied retroactively to cases on federal collateral review. In light of these developments, this Court granted Petitioner leave to amend his petition to add claims challenging the two nonunanimous verdicts returned in his case, and stayed these proceedings pending the Supreme Court's decision in Edwards. (ECF No. 42.)
On May 17, 2021, the Supreme Court issued a ruling in Edwards, holding that Ramos does not apply retroactively on federal collateral review. Edwards, 141 S.Ct. at 1559. On June 25, 2021, the Court lifted the stay, and the Petition now is before the Court.
Petitioner raises thirteen grounds for relief, but argues the merits of only Grounds One and Thirteen, which allege, as follows:
Ground One: Petitioner was denied due process of law in violation of the Fourteenth Amendment and the clearly established rule of Jackson v. Virginia, 443 U.S. 309 (1979), when the trial court denied his motion for judgment of acquittal despite insufficient evidence to support his convictions.
Ground Thirteen: Petitioner was denied his rights under the Sixth and Fourteenth Amendments to the United States Constitution when he was convicted by non-unanimous jury and, further, when his various attorneys failed to protect his constitutional jury-trial rights, including his right not to be convicted except upon proof beyond reasonable doubt to the unanimous satisfaction of an impartial jury. Petitioner's conviction by non-unanimous jury violated his rights: (1) to trial by jury, including to (a) unanimity and to (b) proof beyond a reasonable doubt, (2) to trial before a fair, representative cross-section of the community, and (3) his right to equal protection of the law.
Ramos . . . held that conviction by a less-than-unanimous jury violates the Sixth Amendment which is fully incorporated and applicable to state criminal proceedings through the Fourteenth Amendment. Petitioner's trial counsel did not object to or preserve Petitioner's right to a unanimous jury verdict. Appellate counsel did not raise this issue on direct appeal or in a petition for certiorari to the United States Supreme Court. Post-conviction counsel likewise did not raise any challenge to Petitioner's non-unanimous jury conviction. These failures of counsel prejudiced Petitioner as did the trial court's instruction and the jury's non-unanimous verdicts, which indicate a degree of residual doubt.(Second Am. Pet. (ECF No. 43) at 4, 6-7.) Respondent urges the Court to deny habeas relief, arguing that the state-court decision denying relief on Ground One is entitled to deference; that Ground Thirteen is procedurally defaulted and lacks merit; and that Petitioner's remaining claims are procedurally defaulted. In the alternative, Respondent argues that Petitioner has failed to sustain his burden of demonstrating entitlement to habeas relief on all unaddressed claims, specifically, Grounds Two through Twelve. (Resp. to Am. Pet. (ECF No. 14) at 13-14; Reply (ECF No. 40) at 3-4.)
DISCUSSION
I. GROUND ONE
In Ground One, Petitioner argues that the trial court's denial of his motion for judgment of acquittal was contrary to clearly established federal law because “the jury could not rely upon the incredible and uncorroborated statements of DE and KT to convict.” (Pet'r's Br. (ECF No. 36), at 8-9.) Respondent argues that the state-court decision denying this claim is entitled to deference because the trial court's denial was not objectively unreasonable “[i]n light of the evidence and testimony against petitioner in this case-which included testimony from both victims and a number of other witnesses to whom the victims reported Petitioner's sexual abuse[.]” (Resp. at 14.)
A. Legal Standards
1. Deference to State-Court Decisions
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) prohibits relitigation of any claim adjudicated on the merits in state court unless such adjudication 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) was “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 federal law if it “applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, ” or if it “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). An “unreasonable application” of clearly established federal law occurs if the state court correctly identifies the governing legal principle but misapplies that principle to the facts at hand. Seeid. at 407 (holding that “a state-court decision involves an unreasonable application of this Court's precedent if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case”). The “unreasonable application” clause requires the state court's decision to be more than merely erroneous or incorrect. See id. at 411 (noting that “a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly”). Rather, the state court's application of clearly established federal law must be objectively unreasonable. See id. at 409 (instructing that a federal habeas court making the ‘unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable”).
“Clearly established Federal law” under the AEDPA “refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412; see also Thaler v. Haynes, 559 U.S. 43, 47 (2010) (noting that “[a] legal principle is ‘clearly established' within the meaning of [28 U.S.C. § 2254(d)(1)] only when it is embodied in a holding of [the Supreme] Court”). To be “clearly established, ” Supreme Court precedent must “squarely address[] the issue in the case before the state court, or establish[] a legal principle that ‘clearly extends' to the case before the state court.” Andrews v.Davis, 798 F.3d 759, 773 (9th Cir. 2015) (simplified). If no “clearly established Federal law” governs the issue at bar, the federal habeas court “must defer to the state court's decision.” Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009).
The AEDPA thus imposes “a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (simplified); see also White v.Wheeler, 577 U.S. 73, 76-77 (2015) (acknowledging that “AEDPA, by setting forth necessary predicates before a state-court judgment may be set aside, erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court”) (simplified). “The petitioner carries the burden of proof.” Pinholster, 563 U.S. at 181.
2. Sufficiency of Evidence Claims
In considering a challenge to the sufficiency of the evidence, the relevant inquiry for the reviewing court “is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319. This deferential standard “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” id.; see also Coleman v. Johnson, 566 U.S. 650, 655 (2012) (per curiam) (explaining that “the only question under Jackson is whether [the jury's] finding was so insupportable as to fall below the threshold of bare rationality”). A reviewing court “faced with a record of historical facts that supports conflicting inferences [therefore] must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to the resolution.” Jackson, 443 U.S. at 326; see also Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) (explaining that under Jackson, a reviewing court “must respect the province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts by assuming that the jury resolved conflicts in a manner that supports the verdict”).
On federal habeas review, a federal court's consideration is limited to whether the state court's decision rejecting a challenge to the sufficiency of the evidence was objectively unreasonable. SeeJohnson, 566 U.S. at 651 (explaining that a habeas court “may not overturn a state court decision rejecting a sufficiency of the evidence challenge . . . [unless] the state court decision was ‘objectively unreasonable'”) (citation omitted) (per curiam). Challenges to the sufficiency of the evidence therefore “are subject to two layers of judicial deference” on habeas review, and thus “face a high bar in federal habeas proceedings[.]” Johnson, 566 U.S. at 651.
B. Analysis
Petitioner argues that the evidence presented at trial was insufficient to support a conviction for any of the crimes with which he was charged. (Pet'r's Br. at 7.) Specifically, Petitioner renews the arguments he presented on direct appeal, and asserts that “the trial court's decision was contrary to Jackson and an unreasonable determination of the facts in light of the trial court record” for the following reasons:
.... DE and KT were not credible and their stories were ‘far from consistent' and even ‘wildly inconsistent.' [Tr.] at 566, 579-81. There was no physical evidence to corroborate the allegations. Id. at 566-69. Nor did any testimony of others independently corroborate their stories, although usually there were others present who would have witnessed the acts had they occurred. Id. Physical evidence or corroboration is especially important when dealing with a child, such as DE, who was known to lie; it was unrefuted that DE's mother knew that DE had lied. Id. at 576-77. DE would not have repeatedly and voluntarily gone to the park with [Petitioner] if he had been abusing her. Id. at 568. The police investigation was inadequate; the CARES investigator suggested the details of the alleged incidents to DE; and the nurse practitioner who had examined DE had testified that she saw no evidence of sexual abuse. Id. at 569-71. As trial counsel argued, the jury could not rely upon the incredible and uncorroborated statements of DE and KT to convict. Id. at 583.(Pet'r's Br. at 8-9.)
As the State pointed out in its response on direct appeal, Petitioner “does not dispute that, if the trier of fact believed the victims' testimony, that evidence would be sufficient to convict him.” (Resp't Ex. 104 at 4.) Rather, Petitioner's challenge to the sufficiency of the evidence rests solely on DE and KT's alleged lack of credibility. Credibility determinations, however, are “the sole province of the trier of fact” under Oregon law. State v. Guy, 229 Or.App. 611, 616 (2009). Furthermore, the Oregon Court of Appeals has instructed that “[w]hen a defendant moves for a judgment of acquittal, it is not proper for the court to hold that there is reasonable doubt simply because there are conflicts in the evidence.” id. (citing State v. Krummacher, 269 Or. 125, 137 (1974)). Instead, “such conflicts must be resolved in favor of submitting the matter to the jury.” id. This Court therefore cannot conclude that the trial court's determination that the credibility of DE and KT was a matter for the jury and that the alleged inconsistencies and conflicts in their testimonies did not entitle Petitioner to a judgment of acquittal, was objectively unreasonable.Indeed, the Court's review of the entire record has revealed nothing to cast doubt on the trial court's decision. Accordingly, the trial court's denial of Petitioner's motion for judgment of acquittal is entitled to deference, and the district judge should deny habeas relief as to Ground One.
Because the Oregon Court of Appeals affirmed without opinion, this Court must “look through” to the last reasoned decision on the issue, i.e., the trial court's denial of Petitioner's motion for judgment of acquittal. See Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) (explaining that where the highest state court issues a decision on the merits unaccompanied by its reasons for the decision, a federal habeas court must “look through” to the last reasoned decision issued in a lower state court, and presume the unexplained decision adopted the same reasoning).
II. GROUND THIRTEEN
In Ground Thirteen, Petitioner asserts that his conviction by a nonunanimous jury on Counts 2 and 3 violated his rights to due process, to an unbiased jury, and to have the State prove the charges against him beyond a reasonable doubt. (Pet'r's Br. at 10.) In Edwards, however, the Supreme Court held that the jury unanimity rule announced in Ramos is not retroactive in cases on federal collateral review such as this one. Edwards, 141 S.Ct. at 1559. Furthermore, to the extent Petitioner seeks to challenge trial counsel's failure to raise and preserve claims concerning the nonunanimous verdicts, the Supreme Court decided Ramos ten years after Petitioner's trial, and “trial counsel is generally not ineffective for failing to anticipate a change in law.” Turner v. Pollard, Case No. ED CV 17-00737-VBF (JPR), 2020 WL 2441436, at *11 (C.D. Cal. Feb. 25, 2020), findings and recommendation adopted, 2020 WL 2395980 (C.D. Cal. May 11, 2020). Accordingly, Petitioner is not entitled to habeas relief on Ground Thirteen.
III. UNARGUED CLAIMS
Petitioner does not argue the merits of the claims alleged in Grounds Two through Twelve of the Petition. In addition, Petitioner does not challenge Respondent's argument that those grounds are procedurally defaulted, nor has Petitioner demonstrated cause and prejudice to excuse the procedural default or that a fundamental miscarriage of justice would occur if the Court declines to address his unargued claims. Accordingly, habeas relief is precluded as to Grounds Two through Twelve because they are procedurally defaulted, and because Petitioner has failed to sustain his burden of demonstrating entitlement to habeas relief on those claims. See 28 U.S.C. § 2248 (instructing that “[t]he allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true”); see also Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (recognizing that a habeas petitioner carries the burden of proving his case).
CONCLUSION
For the reasons stated, the district judge should DISMISS the Second Amended Petition for Writ of Habeas Corpus (ECF No. 43) with prejudice, and decline to issue a Certificate of Appealability because Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).
SCHEDULING ORDER
The Court will refer its Findings and Recommendations to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due fourteen (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 Recommendation will go under advisement.
IT IS SO ORDERED.