Opinion
CASE NO. C16-5333 BHS
12-08-2016
GEORGE PATRICK WOODARD, Petitioner, v. PATRICK R. GLEBE, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter comes before the Court on the Report and Recommendation ("R&R") of the Honorable David W. Christel, United States Magistrate Judge (Dkt. 13), and Petitioner's objections to the R&R (Dkt. 14). The Court denies Petitioner's objections and adopts the R&R for the reasons stated herein.
I. BACKGROUND
Petitioner challenged his Lewis County Superior Court convictions and sentence by direct appeal on seven grounds for relief. Dkt. 10, Exs. 8, 10. The Court of Appeals of the State of Washington reversed Petitioner's second degree child molestation conviction and affirmed his remaining convictions. Dkt. 10, Ex. 11. On October 9, 2012, the Washington State Supreme Court denied Petitioner's petition for review. See Dkt. 10, Exs. 12, 13. On December 6, 2012, the Court of Appeals issued its mandate. Dkt. 10, Ex. 14.
On December 5, 2013, Petitioner filed a personal restraint petition ("PRP"). Dkt. 10, Exs. 16. Petitioner's PRP was denied by the Court of Appeals. Dkt. 10, Ex. 20. Petitioner sought discretionary review from the Washington State Supreme Court. On March 25, 2016, the motion for discretionary review was denied with comment. Dkt. 10, Exs. 21, 22. On June 1, 2016, Petitioner's motion for reconsideration was denied without comment. Dkt. 10, Exs. 23-25.
On May 3, 2016, Petitioner filed his petition for writ of habeas corpus. Dkt. 1-3. Petitioner raises four grounds in which he argues that the Washington State Courts' adjudication of his PRP was contrary to, or an unreasonable application of, clearly established federal law. Dkt. 1-1 at 1. On June 23, 2016, the Respondent filed a response. Dkt. 9. On July 18, 2016, Petitioner replied. Dkt. 11.
On September 2, 2016, Judge Christel issued the R&R recommending that the Court deny (1) the petition on the merits, (2) Petitioner's request for an evidentiary hearing, and (3) a certificate of appealability. Dkt. 13. On September 16, 2016, Petitioner objected to the R&R. Dkt. 14.
II. DISCUSSION
The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3).
Under 28 U.S.C. § 2254(d)(1), habeas relief from a state court conviction is merited if the adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." A state decision contravenes clearly established federal law if it either (1) arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or (2) confronts facts "materially indistinguishable" from relevant Supreme Court precedent and arrives at an opposite result. Williams v. Taylor, 529 U.S. 362, 405 (2000).
A. Admission of Expert Testimony and Physical Evidence
Petitioner objects to Judge Christel's determination that the admission of certain expert testimony and physical evidence did not rise to the level of a constitutional violation. Dkt. 14 at 1-14. The Court finds that Judge Christel's conclusions were correct. See Dkt. 13 at 13-14.
Petitioner cannot obtain habeas relief based on the fact that an expert witness, Ms. Wahl-Hermosillo, testified that a physical examination of M.P. was inconclusive of rape, sex, or "victimization." Even if the expert had testified that M.P. was indeed raped or victimized, Petitioner would not be entitled to relief. Habeas relief is not warranted where an expert witness testifies that a victim suffered a particular harm, such as rape or homicide, without testifying that the defendant caused the harm. See Moses v. Payne, 555 F.3d 742, 761-62 (9th Cir. 2008). Ms. Wahl-Hermosillo did not testify that Petitioner was responsible for inflicting harm on M.P.
Next, Petitioner cannot obtain habeas relief on the fact that Ms. Wahl-Hermosillo referenced a study on pregnant teenage girls showing that it was possible, if not common, for physical examinations to provide normal findings, inconclusive of "blunt penetrating trauma." As Judge Christel properly observed, "Petitioner has not identified, nor can the Court find, any clearly established federal law holding evidence of this type was inadmissible in state criminal trials." Contrary to Petitioner's argument, under federal law, such evidence appears admissible. See Domingo ex rel. Domingo v. T.K., 289 F.3d 600, 605-06 (9th Cir. 2002) ("[T]estifying experts may also show the validity of their theory by . . . point[ing] to some objective source—a learned treatise, the policy statement of a professional association, a published article in a reputable scientific journal or the like . . . .").
Nor can Petitioner obtain habeas relief on the ground that the trial court should not have admitted the "rape kit" of M.P. and the underwear worn during the assault. Although Petitioner complains that neither M.P. nor the expert witness could independently identify the underwear, a clear chain of custody provided "sufficient proof so that a reasonable juror could find that the items in the bag [we]re in substantially the same condition as when they were seized." United States v. Harrington, 923 F.2d 1371, 1374 (9th Cir. 1991) (quotation omitted). See Dkt. 13 at 14-15. To the extent Petitioner complains of minor "gaps" in the chain of custody for testing, "[t]he possibility of a break in the chain of custody goes only to the weight of the evidence." United States v. Solorio, 669 F.3d 943, 954 (9th Cir. 2012) (quoting Harrington, 923 F.2d at 1374).
B. Ineffective Assistance of Counsel
Petitioner objects to Judge Christel's conclusion that Petitioner received adequate assistance of counsel. Dkt. 14 at 14-35. However, as explained below, Judge Christel properly found that the Washington State Court of Appeals and Supreme Court reasonably applied the test from Strickland v. Washington, 466 U.S. 668 (1984), when evaluating Petitioner's claims for ineffective assistance of counsel.
First, the Court notes that the decision by Petitioner's counsel not to call an expert medical witness was not ineffective assistance of counsel.
Strickland does not enact Newton's third law for the presentation of evidence, requiring for every prosecution expert an equal and opposite expert from the defense. In many instances cross-examination will be sufficient to expose defects in an expert's presentation.Harrington v. Richter, 562 U.S. 86, 111 (2011).
In Petitioner's case, where two expert medical witnesses for the state offered inconsistent evaluations—one revealing signs of injury and the other revealing no such signs—"Petitioner's trial counsel cross-examined [the testifying experts] on these inconsistencies, and cited to these inconsistencies in his closing argument to argue they created reasonable doubt." Dkt. 13 at 21-22 (citing Dkt. 10, Ex. 5 at 51-58; Ex. 6 at 108-09). Like defense counsel in Harrington, Petitioner's "attorney represented him with vigor and conducted a skillful cross-examination." Harrington, 562 U.S. at 111. It was therefore reasonable for the Washington State Courts to find that Petitioner failed to show any deficiency in his counsel's performance.
Second, it was not ineffective assistance of counsel for Petitioner's attorney to decide against impeaching James Barnes with the declaration Barnes submitted in an attempt to be removed from the State's witness list. "Mere criticism of a tactic or strategy is not in itself sufficient to support a charge of inadequate representation." Gustave v. United States, 627 F.2d 901, 904 (9th Cir. 1980). The record shows that Barnes's previous declaration had little impeachment value on its own, and no value at all when combined with the information before the jury that was far more damaging to Barnes's general credibility. Dkt. 13 at 24-25 (citing Dkt. 10, Ex. 5 at 62, 66-67, 79). Focusing on the declaration to attack Barnes's credibility in general would have added nothing to strengthen Petitioner's defense. Judge Christel properly concluded that "the Court cannot say trial counsel's decision not to attempt to impeach Mr. Barnes with his prior declaration was not a reasonable trial strategy." Dkt. 13 at 24-25.
Third, Petitioner cannot obtain habeas relief for his counsel's failure to object to the testimony of Ms. Wahl-Hermosillo. As discussed above, Petitioner has failed to show that Ms. Whal-Hermosillo's testimony about a study on pregnant teenagers was improperly admitted. Moreover, even if Ms. Wahl-Hermosillo's testimony describing forceful sex as "victimization" was improper, Petitioner cannot demonstrate how Ms. Whal-Hermosillo's testimony could have prejudiced his defense when she neither expressly nor impliedly indicated that Petitioner was guilty. In fact, Ms. Whal-Hermosillo's testimony was favorable to the defense—she stated that her physical examination of M.P. revealed no conclusive signs that M.P. was raped or "victimized." Had the trial court excluded Ms. Whal-Hermosillo's testimony, or had Ms. Whal- Hermosillo otherwise been corrected or discredited before the jury, it would have strengthened the prosecution's case.
Fourth, Petitioner cannot obtain habeas relief for an alleged failure by his counsel to object to the admission of the rape kit and M.P.'s underwear. In fact, Petitioner's counsel successfully and repeatedly objected to the admission of such evidence until the prosecution established a convincing chain of custody. See Dkt. 10, Ex. 4 at 177; Ex. 5 at 153, 155. As discussed above, such evidence was properly admitted based on the chain of custody established by the prosecution.
Finally, Petitioner cannot obtain habeas relief on the ground that his counsel did not to object to statements in the prosecution's closing argument. Whether to object during a closing argument, "absent egregious misstatements," falls within the wide range of permissible professional conduct of defense counsel. United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993). While Petitioner complains about a statement by the prosecution that was technically inaccurate, see Dkt. 13 at 28, the prosecution's misstatement was neither egregious nor prejudicial. Therefore, Petitioner cannot show that his counsel's failure to object during closing argument constituted ineffective assistance of counsel.
C. Cumulative Error
Petitioner also objects to Judge Christel's conclusion that Petitioner failed to show cumulative error arising to a contravention of clearly established federal law. However, Petitioner has failed to allege any errors related to one another so that, when combined, they might "amplify each other in relation to a key contested issue in the case." See Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011). Moreover, the case against Petitioner was strong. See Dkt. 13 at 31. Accordingly, even if Petitioner had established any errors, the combined effect of those errors would not "infect the trial with unfairness or render [Petitioner's] defense far less persuasive than it might otherwise have been." Ybarra, 656 F.3d at 1001. Under such circumstances, Petitioner cannot obtain habeas relief based on the cumulative effects doctrine.
III. ORDER
The Court having considered the R&R, Petitioner's objections, and the remaining record, does hereby find and order as follows:
(1) The R&R is ADOPTED;
(2) Petitioner's request for a certificate of appealability is DENIED;
(3) The Clerk shall enter judgment in favor of Respondent and close this case.
Dated this 8th day of December, 2016.
/s/_________
BENJAMIN H. SETTLE
United States District Judge