Opinion
CIVIL 2:18-cv-01698-YY
03-31-2022
JOHN ALLEN OVENDALE, Petitioner, v. BRAD CAIN, Respondent.
FINDINGS AND RECOMMENDATION
YOULEE YIM YOU UNITED STATES MAGISTRATE JUDGE
FINDINGS
Petitioner, an adult in custody at the Snake River Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Petition for Writ of Habeas Corpus (ECF No. 2) should be DENIED.
I. Background
On October 19, 2009, a Marion County grand jury indicted Petitioner on one count of Sodomy in the First Degree and four counts of Sexual Abuse in the First Degree. Respondent's Exhibits, ECF No. 19 (“Resp. Exh.”), Exh. 102. The count of Sodomy in the First Degree and one count of Sexual Abuse in the First Degree were alleged to have been committed against AV, the four-year-old son of Petitioner's then fiance. Id. The remaining three counts of Sexual Abuse in the First Degree were alleged to have been committed against Petitioner's minor daughter RB and against RB's young aunt, DB. Id.
The case was tried to a jury. The trial judge granted Petitioner's motion for judgment of acquittal on two counts of Sexual Abuse in the First Degree (one each involving RB and DB), and the jury found Petitioner not guilty on the charge of Sexual Abuse in the First Degree against AV. The jury convicted Petitioner on the remaining two counts. The trial judge sentenced Petitioner to 100 months of imprisonment on the Sodomy in the First Degree conviction and a consecutive 75 months of imprisonment on the remaining Sexual Abuse in the First Degree conviction.
Petitioner appealed, and the Oregon Court of Appeals issued a written opinion affirming the trial court's judgment. State v. Ovendale, 253 Or.App. 620 (2012). Petitioner sought review, which the Oregon Supreme Court denied. State v. Ovendale, 353 Or. 714 (2013).
The Oregon Court of Appeals opinion outlines in some detail the factual and procedural background of the underlying trial and direct appeals proceedings, which are not repeated here.
Petitioner then sought state post-conviction relief (“PCR”) where he was represented by counsel. In his First Amended PCR Petition, he alleged a number of claims of ineffective assistance of trial counsel. Resp. Exh. 114. Following an evidentiary hearing, the PCR trial court denied relief. Resp. Exh. 147. Petitioner appealed, but the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Ovendale v. Nooth, 291 Or.App. 448, rev. denied, 363 Or. 481 (2018).
On September 24, 2018, Petitioner filed his Petition for Writ of Habeas Corpus in this Court. Petitioner alleges ten claims for relief:
Ground One: Trial counsel provided ineffective assistance of counsel in failing to file a motion in limine to exclude evidence and testimony of a nurse practitioner's diagnosis that AV had been sexually abused.
Ground Two: The trial court erred in allowing a medical diagnosis from a nurse practitioner of sexual abuse.
Ground Three: The trial court erred in denying Petitioner's motion to sever the claims for trial.
Ground Four: Trial counsel provided ineffective assistance in failing to argue that the diagnosis of sexual abuse was inadmissible on the basis that the prejudicial effect of the evidence and diagnosis substantially outweighed the probative value.
Ground Five: Trial counsel provided ineffective assistance in failing to move for a mistrial after the trial court granted the motion for judgment of acquittal as to two of the counts.
Ground Six: Trial counsel provided ineffective assistance in failing to move for a mistrial based on the prosecutor's improper statements during closing argument and rebuttal argument.
Ground Seven: Trial counsel provided ineffective assistance in failing to argue that the diagnosis of sexual abuse and testimony regarding physical evidence of sexual abuse did not meet the standard for admissibility of scientific evidence.
Ground Eight: Trial counsel provided ineffective assistance in failing to provide a copy of the discovery to Petitioner.
Ground Nine: The trial court erred in failing to instruct the jury that any guilty verdict must be unanimous.
Ground Ten: Trial counsel provided ineffective assistance in failing to adequately prepare Petitioner's trial testimony.
Respondent contends that Petitioner procedurally defaulted the claims alleged in Grounds Two, Three, Five, Eight, and Ten, and that while Petitioner exhausted his state remedies as to the remaining claims, the state court decisions denying relief on those claims are entitled to deference in this Court. In his briefing, Petitioner addresses only two claims: that trial counsel was ineffective in failing to adequately challenge the nurse practitioner's testimony and the prosecutor's statements during closing argument.
Petitioner also initially addressed the claim alleged in Ground Nine, that the trial court erred in failing to instruct the jury that any guilty verdict must be unanimous. As Petitioner concedes in his Supplemental Brief (ECF No. 55), however, the Supreme Court's decision in Edwards v. Vannoy, 141 S.Ct. 1547 (2021), precludes relief on this claim.
II. Legal Standards
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 a claim of ineffective assistance of counsel requires a habeas Petitioner to prove that (1) counsel's performance fell below an objective standard of reasonableness, and (2) 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). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. Failure to satisfy either prong of this test obviates the need to consider the other. Id. at 687.
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
A. Failure to Adequately Challenge the Nurse Practitioner's Testimony
In Grounds One and Four, Petitioner alleges trial counsel was ineffective in not moving in limine to exclude evidence and testimony about the nurse practitioner's medical diagnosis that one of the victims (AV) had been sexually abused and by not arguing at trial that the diagnosis of sexual abuse was inadmissible under Oregon Evidence Code, Rule 403 on the basis that the prejudicial effect of the evidence and diagnosis substantially outweighed the probative value.At trial, counsel did object to the nurse practitioner's testimony regarding her diagnosis under State v. Southard, 347 Or. 127 (2009). The trial judge overruled that objection, and the Oregon Court of Appeals affirmed, holding that Southard did not bar admission of the diagnosis because the nurse practitioner relied on corroborating physical evidence in reaching her diagnosis. Ovendale, 253 Or.App. at 630. The Oregon Court Appeals noted that Petitioner “did not argue, either at trial or on appeal, that the diagnosis was nevertheless unduly prejudicial under OEC 403, and we do not address that issue here.” Id. at 633 n.4.
In Ground Seven, Petitioner alleges that trial counsel was also ineffective in failing to argue that the diagnosis of sexual abuse and testimony regarding physical evidence of sexual abuse did not meet the standards for admissibility of scientific evidence, but this claim is not addressed in Petitioner's briefing.
In Southard, the Oregon Supreme Court ruled that a medical diagnosis of sexual abuse in the absence of corresponding physical evidence of sexual abuse is inadmissible under Oregon law. Southard, 347 Or. At 142-43.
As noted, Petitioner did allege in the PCR proceedings that trial counsel was ineffective in failing to file a motion in limine to exclude evidence and failing to object to admission of the diagnosis under Rule 403. The PCR trial court denied relief on that claim for the following reasons:
Petitioner failed to prove that his attorney was ineffective for failing to file a motion in limine regarding the admissibility of testimony regarding the fecal matter and diagnosis of sexual abuse. The trial attorney explained that his strategic reason for raising the issue at trial rather than pre-trial was due to the trial judge's particular dislike for pre-trial motions. This was not an unreasonable decision under the circumstances. The trial attorney did raise the objection during the trial itself.
Petitioner also failed to prove that he was prejudiced by the failure to file a motion in limine. When the issue of the admissibility of the evidence was raised at trial, the judge admitted the evidence. There is no reason to believe his ruling would have been any different if the issue was raised in a motion in limine. The Court of Appeals also ruled that the evidence was properly admissible.
Petitioner also failed to prove that there was tendency that the outcome might have been different if his trial attorney had argued that the diagnosis and testimony regarding the cause of the fecal matter discharge by the child did not meet the standard for admissibility of scientific evidence or that it was inadmissible under OEC 403 because the probative value of the evidence was substantially outweighed by the danger of prejudice. Petitioner has not proven that either of these arguments, if made had any likelihood of being successful either before the trial court or on appeal. The opinion in the Court of Appeals
noted that the opinion was based on the nurse practitioner's medical background and education and that it was supported by one of the doctors who had examined the child. The fact that the Court of Appeals noted that the OEC 403 issue was not raised in the trial court or on appeal is not evidence that the results was [sic] likely to have been different if it had been raised. The record reflects that the diagnosis was relevant and helpful to the jury and was not unduly prejudicial. Petitioner failed to prove that his trial attorney's action or lack of action on these issues had a tendency to affect the outcome of the trial.Resp. Exh. 147, pp. 2-3. The PCR trial court's decision was not an unreasonable application of Strickland.
Petitioner's trial attorney described to the PCR trial court his vast experience trying criminal cases before the particular trial judge and explained his decision not to file a motion in limine or object based on Rule 403 as follows:
Based on my previous experience litigating criminal cases before the [trial judge], I had no reason to believe that written motions in limine (as opposed to oral arguments) would have convinced [the trial judge] to rule any differently. I also had no reason to believe that additional arguments for exclusion of the diagnosis and testimony would have convinced [the trial judge] to rule any differently. The transcripts will reflect my familiarity with the Southard decision. At the time of representing [Petitioner], I had access to other criminal defense attorneys both inside and outside of my firm for consultation and discussion about legal and strategic issues, at both the trial and appellate levels. I utilized those legal networks while representing [Petitioner]. My understanding from any discussions I had around the time I represented [Petitioner] was that my objections to the sexual abuse diagnosis testimony were consistent with common criminal defense practices in Marion County before [the trial judge] at the time of [Petitioner's] trial. Based on the case law existing by the time of [Petitioner's] trial, I had no reason to believe that further challenges based on the standard for admissibility of scientific evidence or OEC 403, for example, would have convinced [the trial judge] to exclude the evidence, or otherwise have made a practical difference in the defense of [Petitioner]. I had no reason to believe that additional motions would have been successful.Resp. Exh. 144, p. 2. Based on this explanation, it was reasonable for the PCR trial court to conclude that trial counsel's decision not to file a motion in limine or to make an independent objection under Rule 403 did not constitute deficient performance. Moreover, Petitioner has not shown that it was objectively unreasonable for the PCR trial court to conclude that the trial court's ruling on the Southard-based objection would have been any different if the issue was raised in a motion in limine as opposed to at trial.
Finally, Petitioner has not established that making an independent objection under Rule 403 would have led to a different outcome either at trial or on appeal. Indeed, in a case decided after the Oregon Court of Appeals issued its written opinion in Petitioner's direct appeal, the Oregon Supreme Court rejected a claim that evidence of a medical diagnosis of sexual abuse based on corroborative physical findings that was admissible under the Southard standard should nonetheless have been excluded as unduly prejudicial under Rule 403. See State v. Beauvais, 357 Or. 524, 537-38 (2015). Considering the physical evidence in Petitioner's case, and the medical expert's reliance on that evidence in making her diagnosis, it is not reasonably likely that, even if trial counsel had made an independent Rule 403 objection, either in addition to or instead of the more specific Southard-based objection, such an objection would have succeeded. Accordingly, Petitioner is not entitled to habeas corpus relief on his claims that trial counsel was ineffective in failing to file a motion in limine or failing to object on the basis of undue prejudice under Rule 403.
B. Failure to Adequately Challenge the Prosecutor's Statements in Closing Arguments
In Ground Six, Petitioner alleges trial counsel provided constitutionally ineffective assistance of counsel in failing to object to or move for mistrial based on portions of the prosecutor's closing argument. The PCR trial court described the basis for Petitioner's claim of ineffective assistance and rejected it as follows:
During closing argument, the prosecutor stated “I would just ask you . . . to think about common sense, what really makes sense and if they're trying to sell you a trick or is it true and who do you believe.” During rebuttal, the prosecutor compared trial counsel and trial counsel's arguments to a pickpocket stating “It's making mud, it's like magic. If you've got a wallet on this side, pickpocket hits
this side and takes your wallet out of this side because you're focusing over here. And that's a lot of what these arguments are. It's making mud out of a pretty clear situation here.” Trial counsel did not object to these statements and did not move for a mistrial.
Petitioner failed to prove that his trial attorney was ineffective in not objecting to and moving for a mistrial based on the argument made by the district attorney in the closing and rebuttal arguments. Petitioner's attorney explained that he did not object because he did not believe the argument was improper and because making meritless objections during closing would have been counterproductive. That was not an unreasonable decision.
Petitioner also failed to prove that he was prejudiced by his trial attorney's failure to object to the arguments. The district attorney was making appropriate arguments regarding why the jury should believe certain witnesses and countering the defense attorney's argument. An objection would have been overruled by the trial judge. The Court of Appeals did not address the issue but there is no evidence that it would have found the argument improper if that issue had been addressed. Petitioner has not proven that his trial attorney's failure to object had a tendency to affect the outcome of the trial.Resp. Exh. 147, pp. 2-5.
The PCR trial court's decision was not contrary to or an unreasonable application of Strickland. 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). For example, it is permissible for a prosecutor to offer arguments about the credibility of witnesses, including victims, and a prosecutor may ask “the jury to infer from the evidence that the prosecution's witnesses were credible” as such remarks are lawful “comments on the evidence rather than assertions of personal belief.” Glasscock v. Taylor, 740 F. App'x. 566, 567 (9th Cir. 2018) (internal citations omitted), cert. denied, 139 S.Ct. 2629 (2019). Moreover, while prosecutors may not express their opinions about a criminal defendant's guilt, they remain “free to voice doubt about the veracity of a defendant's story.” Dubria v. Smith, 224 F.3d 995, 1003-04 (9th Cir. 2000) (internal citations and quotations omitted).
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). As such, a defense attorney's decision not to object to a particular argument will rarely, if ever, amount to deficient performance. See United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993) (“Because many lawyers refrain from objecting during opening statement and closing argument, absent egregious misstatements, the failure to object during closing argument . . . is within the ‘wide range' of professional legal conduct.”); see also Molina, 934 F.2d at 1448 (explaining that “many trial lawyers refrain from objecting 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”).
Here, Petitioner's attorney offered the following explanation to the PCR trial court for his decision not to object to the prosecutor's closing argument:
[I]t was my normal practice to closely listen to the State's closing arguments, both for the purpose of enhancing my closing argument in response and to determine if a defense objection would be strategically appropriate. I followed my normal practice while representing [Petitioner]. I do not recall any arguments by the State during closing arguments that were outside the bounds of permissible argument. In my professional opinion based on my years of experience before [the trial judge], the State did not make any arguments in response to which an objection would have had any reasonable likelihood of success. I also had no
reason to believe that [the trial judge] would have granted the more drastic remedy of a mistrial in response to any of the State's arguments. Based on my personal observations of the jury, my assessment was that we had just about the best jury composition we could expect in a criminal case involving sex crime charges. So, in the absence of some remarkably egregious behavior by the State that I do not recall occurring, we wanted to keep the jury we had rather than risk a less favorable jury composition at a re-trial. I did not make motions that, in my professional assessment, were frivolous and therefore likely to merely alienate the Judge and/or the jury because that would not have served [Petitioner's] best interests.Resp. Exh. 144, p. 3. In light of counsel's explanations and the weight of the evidence against Petitioner, the PCR trial judge reasonably concluded that Petitioner failed to demonstrate either that counsel's performance was deficient or that the outcome would have been different had counsel objected to or moved for a mistrial based upon the prosecutor's closing argument. As such, that decision is entitled to deference in this Court, and Petitioner has not established he is entitled to habeas corpus relief on this claim.
III. Claims Not Addressed
As noted, Petitioner does not address the remaining claims for relief alleged in his Petition for Writ of Habeas Corpus. Accordingly, Petitioner has not sustained his burden to demonstrate why he is entitled to relief on these claims. See Lambert 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 these reasons, the Petition for Writ of Habeas Corpus (ECF No. 2) 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 14, 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.