Opinion
Civil No. 01-881-JO.
May 4, 2004
JOHN E. STORKEL, Salem, OR, Attorney for Petitioner.
HARDY MYERS, Attorney General, CAROLYN ALEXANDER, Assistant Attorney General, Oregon Department of Justice, Salem, OR, Attorneys for Respondent.
OPINION AND ORDER
Petitioner, an inmate at the Eastern Oregon Correctional Institution, located in Pendleton, Oregon, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his amended petition, petitioner alleges six claims for relief on the basis that he was denied effective assistance of trial counsel (Grounds 1-6) and appellate counsel (Ground 6), in violation of the United States Constitution. Respondent contends that relief should be denied because petitioner's claims are either procedurally defaulted, have been resolved by state court decisions that are entitled to deference, or have no merit. For the reasons set forth below, the Amended Petition for a Writ of Habeas Corpus (#31) is DENIED, and this action is DISMISSED WITH PREJUDICE.
BACKGROUND
Petitioner challenges the legality of his state court convictions and sentences for two counts of Sodomy in the First Degree and four counts of Sexual Abuse in the First Degree, which were committed against his stepson, J, when the victim was approximately ten years old. (Am. Petition (#31) at 1, 14-18; and see Response (#34) at 1-2.) Following a bench trial, the judge convicted petitioner of the crimes listed above and sentenced him to concurrent terms of imprisonment totaling ten years, with thirty years of post-prison supervision. (Am. Petition at 1; Response at 3.) The judgment in that proceeding, Marion County Circuit Court Case No. 95C-22008, was entered on May 14, 1996. (Respondent's Exhibits to Answer (#19) (hereafter "Resp't Exs.") at Ex. 101, p. 1.) Petitioner directly appealed his convictions and sentence, challenging the sufficiency of the evidence as to venue, the trial court's ruling excluding J's prior false testimony, and the sentence imposed; however, the Oregon Court of Appeals affirmed the convictions and sentence without issuing an opinion and the Oregon Supreme Court denied review. State v. Bowser, 148 Or. App. 635, 939 P.2d 678, rev. denied, 326 Or. 62, 944 P.2d 949 (1997).
I refer to the minor child by his initial.
On September 3, 1998, petitioner, who was proceeding pro se, sought post-conviction relief ("PCR") in Umatilla County Circuit Court. (Resp't Exs. at Ex. 109, p. 1.) Petitioner later received court-appointed counsel, who successfully moved to change the venue of the PCR proceeding to Marion County. (See id. at Ex. 110.) As part of his formal amended petition, petitioner claimed that his federal constitutional right to effective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution, and Art. I, sec. 11 of the Oregon Constitution were violated by trial counsel's failures on multiple grounds, which petitioner summarized as follows:
A) that his attorney did not properly defend him (failed to properly cross-examine the victim; failed to call witnesses; failed to introduce evidence at trial); B) that he did not properly argue issues and/or preserve them for appeal; and C) that counsel failed to object to petitioner's sentence, thus not preserving it for appeal.
(Id. at Ex. 113, Petitioner's Trial Mem., pp. 9-10.) Following a trial on the merits, at which petitioner submitted evidence and the PCR court heard arguments from counsel, the court denied relief on all of petitioner's ineffective assistance of trial counsel claims, concluding that petitioner failed to prove any of his claims by a preponderance of the evidence, and that deprived of his right to assistance of counsel as guaranteed by the U.S. Constitution and as articulated by the U.S. Supreme Court inStrickland v. Washington, 466 U.S. 668 (1984). (See id. at Ex. 149, pp. 1, 10-11.) The Oregon Court of Appeals affirmed the PCR court's findings of fact and conclusions of law without opinion, and the Oregon Supreme Court denied review. Bowser v. Hill, 170 Or. App. 566, 14 P.3d 102 (2000), rev. denied, 332 Or. 56, 26 P.3d 150 (2001). The judgment of the Oregon Court of Appeals became final on May 29, 2001, thereby concluding petitioner's state review. (Resp't Exs. at Ex. 155.)
Petitioner timely filed the instant petition which, as amended, alleges the following grounds for relief:
Ground One: Trial counsel failed to adequately defend petitioner's case when counsel failed to conduct a proper cross-examination of the victim. The victim in this case had numerous versions of what allegedly happened to him as it related to date, times, and the circumstances of the abuse. A proper cross-examination of the victim was necessary to bring all of the discrepancies to the court's attention, and to impeach the testimony.
Ground Two: Trial counsel failed to adequately defend petitioner's case when counsel failed to call and properly cross-examine witnesses.
Ground Three: Trial counsel failed to adequately defend petitioner's case when counsel failed to introduce evidence at trial that counsel, in fact, had in his possession at that time.
Ground Four: Trial counsel failed to adequately defend petitioner's case when counsel did not properly argue issues and/or preserve issues for appeal.
Ground Five: Trial counsel failed to adequately defend petitioner's case when counsel failed to object to petitioner's sentence.
Ground Six: Appellate and trial counsel failed to provide adequate assistance under the Fifth, Sixth and Fourteenth Amendment[s] of the United States Constitution where appellate counsel failed to properly argue the venue omission and trial counsel failed to preserve the venue omission.
(Am. Petition at 14, 26, 35, 49, 61, 62.) Respondent acknowledges that Grounds One, Two, Three, and portions of Grounds Four and Five were presented to the PCR court and that petitioner subsequently exhausted his available state remedies, but argues that because the state court decisions denying relief on the merits of these ineffective assistance of counsel claims are entitled to deference, habeas corpus relief should be denied by this court. (Response at 1-2, 9-19.) Respondent further argues that petitioner's remaining claims, contained in Grounds Four, Five and Six, were not properly exhausted in the state courts, and are now procedurally defaulted.
DISCUSSION
I. Exhaustion and Procedural Default A. Legal Standards
State prisoners must exhaust all available state court remedies by fairly presenting them to the state's highest court, either on direct appeal or through collateral proceedings, before a federal court will consider the merits of habeas corpus claims pursuant to 28 U.S.C. § 2254. Rose v. Lundy, 455 U.S. 509, 519 (1982). A state prisoner has not "fairly presented" his federal claims to a state court unless he has indicated the "federal law basis for his claim in a state court petition or brief . . . by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim 'federal.'" Baldwin v. Reese, 124 S.Ct. 1347, 1351 (2004); see also Peterson v. Lampert, 319 F.3d 1153, 1155-57 (9th Cir. 2003) (en banc); Lyons v. Crawford, 232 F.3d 666, 670 (2000) as modified by 247 F.3d 904 (9th Cir. 2001). Merely detailing the facts surrounding the claim is insufficient to present that claim.Picard v. Connor, 404 U.S. 270, 275 (1971); Anderson v. Harless, 459 U.S. 4, 6 (1982). A petitioner must also have presented his claim in a procedural context in which its merits will be considered. 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 at all. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991); Edwards v. Carpenter, 529 U.S. 446, 451 (2000). If state procedural rules preclude the state courts from hearing the claim prior to the filing of the federal petition, it is procedurally defaulted in federal court.See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). When a state prisoner has procedurally defaulted his federal claims in state court, federal habeas review is precluded unless the prisoner can demonstrate cause for the procedural default and actual prejudice, or demonstrate that the failure to consider the claims will result in the fundamental miscarriage of justice.Edwards, 529 U.S. at 451; see also Murray v. Carrier, 477 U.S. 478, 485 (1986); Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir. 1993). B. Analysis 1. Ground Four: Jurisdiction and Venue Claims
In Ground Four, petitioner alleges generally that "[t]rial counsel failed to adequately defend petitioner's case when counsel did not properly argue issues and/or preserve issues for appeal." (Am. Petition at 49.) In his argument, petitioner identifies three specific issues which were mishandled by counsel: prior false testimony of victim, sentencing, and jurisdiction. (Id. at 50, 57.) Respondent contends that the sub-issue of "jurisdiction," which may actually refer to a venue challenge from petitioner's direct appeal, was not properly exhausted because petitioner abandoned it when he neglected to specifically include it among the ineffective assistance of counsel claims presented in his post-conviction appeals. (See Response at 15-16.)
Petitioner neither explains nor provides additional facts in support of the "jurisdiction" claim in his amended federal habeas petition; instead, he simply cites the trial memorandum from his state post-conviction proceeding. That single reference in the record appears in petitioner's memorandum under the heading of "jurisdiction," as follows: "Please see Exhibit 5, Respondent's Brief, and transcript of sentencing regarding counsel's failure to establish jurisdiction in this case." (Resp't Exs at Ex. 113, p. 42.) The referenced exhibit includes a discussion about an assignment of error — from the State's brief on direct appeal — that there was insufficient evidence to establish venue in Marion County. (See Am. Petition at Ex. 5, pp. 1-7.) However, "jurisdiction" and "venue" are separate and distinct issues, see O.R.S. 131.215, et seq. (state requirements for establishing jurisdiction) and see O.R.S. 131.305, et seq. (state requirements for venue). Thus, petitioner's claim suffers from two significant defects: 1) it attempts to raise — by reference to a discussion of venue contained in the opposing party's brief from a separate proceeding on direct appeal — a state post-conviction claim that trial counsel was ineffective because he made an error involving jurisdiction; and 2) the venue question presented on direct appeal did not involve a federal ineffective assistance of counsel claim, as petitioner now asserts in his federal habeas corpus petition.
My review of the record confirms respondent's assertion that whether petitioner's claim is viewed as one alleging that trial counsel erred by failing to argue and preserve for appeal the issue of improper jurisdiction or of improper venue, the claim was not properly exhausted. The record shows that petitioner had the benefit of court-appointed counsel throughout his state post-conviction trial and appeals. On appeal from the PCR court's ruling, petitioner made only one general assignment of error, as follows: "The post-conviction court erred in concluding that petitioner received adequate assistance of trial counsel, and in denying and dismissing petitioner's request for post-conviction relief." (Resp't Exs. at Ex. 151, p. 6.) There was no specific discussion of trial counsel error related to jurisdiction or venue issues either in petitioner's or in respondent's briefs to the Oregon Court of Appeals (see id. at Exs. 151 152), and neither issue was discussed in petitioner's subsequent petition for review to the Oregon Supreme Court. (See id. at Ex. 153.) Furthermore, the state post-conviction court made no specific findings of fact or conclusions of law with respect to trial counsel's treatment of jurisdiction or venue issues. (See id. at Ex. 149.) The record reveals that petitioner abandoned this portion of his claim. State appellate courts reviewing the matter were given no reason to conclude otherwise.
Therefore, petitioner's federal ineffective assistance of counsel claim based on trial counsel's failure to argue or preserve a either a jurisdiction or a venue issue for appeal was not fully and fairly presented to the state's highest court through available post-conviction review proceedings. See Baldwin, 124 S.Ct. at 1351 ("[O]rdinarily a state prisoner does not 'fairly present' a claim to a state court if that court must read beyond a petition or brief . . . that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so."); see also Picard, 404 U.S. at 275; Duncan v. Henry, 513 U.S. 364, 365 (1995); Peterson, 319 F.3d at 1155-56. Accordingly, petitioner did not properly exhaust his federal ineffective assistance of trial counsel claim with respect either to jurisdiction or to venue issues. See Rose, 455 U.S. at 519; and see 28 U.S.C. § 2254(b)(1)(A).
Because petitioner's claim is now procedurally barred by applicable state rules, he cannot obtain habeas corpus relief on the portion of Ground Four alleging that trial counsel was ineffective for failing to argue and preserve for appeal the issue of improper jurisdiction or of improper venue unless he can demonstrate cause for the procedural default and actual prejudice, or show that a failure to consider the claim will result in a "miscarriage of justice." See Edwards, 529 U.S. at 451. Petitioner bears the burden to show cause. See Murray, 477 U.S. at 488. In his reply brief, petitioner argues that he is entitled to relief on this aspect of Ground Four because a "[federal] court always has the discretion to determine if there is proper venue in a case. . . . [and] [t]he fact that the appellate counsel in the post conviction appeal did not include it should not be held against the petitioner." (Answer to Resp't Response (#43) at 5.)
Petitioner's arguments lack merit. First, petitioner ignores the fact that in Ground Four he raised a collateral ineffective assistance of counsel claim, not a direct claim of constitutional error committed by the state trial court. The claim that a violation of the U.S. Constitution occurred when the Marion County trial court failed to make a specific finding of appropriate venue in petitioner's criminal proceeding is not properly before this court. The claim has not been alleged in petitioner's amended federal habeas corpus petition, and he has not moved to further amend the petition. Even if an amendment was authorized, it would be futile because the record reveals that petitioner's direct appeal presented the venue claim to the Oregon Supreme Court as a pure issue of state law. (See Resp't Exs. at Ex. 106, pp. 4, 6-7, 13-14.) It is well settled that "federal habeas corpus relief does not lie for errors of state law." Estelle v. McGuire, 502 U.S. 62, 67 (1991) (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990)); Pulley v. Harris 465 U.S. 37, 41 (1984); Campbell v. Blodgett, 982 F.2d 1321, 1330 (9th Cir.) amended 997 F.2d 512, 522 (9th Cir. 1993) (citingEstelle, supra at 67); Hendricks v. Vasquez, 974 F.2d 1099, 1105 (9th Cir. 1992); and see 28 U.S.C. § 2254(a). Therefore, even if properly raised in this court, petitioner's direct venue challenge would be defective because it involves a state law issue, and also because the record shows that any potential claim that the state trial court committed a violation of the U.S. Constitution or federal law was not properly exhausted.See Lyons, 232 F.3d at 669 ("[A] federal claim has not been exhausted in state court unless the petitioner both raised the claim in state court and explicitly indicated then that the claim was a federal one." (emphasis in original)).
Second, state post-conviction counsel's alleged error in abandoning the collateral ineffective assistance of counsel claim with respect to trial counsel's failure to argue or preserve either jurisdiction or venue issues for appeal does not constitute cause to excuse a procedural default. See Murray, 477 U.S. at 488 ("So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland . . . we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default."); and see Coleman, 501 U.S. at 752 (because there is no constitutional right to an attorney in state post-conviction proceedings, there can be no cause of action for ineffective assistance of post-conviction counsel); Pennsylvania v. Finley, 481 U.S. 551, 553 (1987) (same). Accordingly, because petitioner failed to properly exhaust his claim that trial counsel was ineffective for failing to argue and preserve either the jurisdiction or venue issue for appeal, because the claim is now procedurally defaulted, and because petitioner has not demonstrated sufficient cause to excuse the procedural default, he is not entitled to habeas corpus relief on this portion of Ground Four.
2. Ground Five: Eighth Amendment Claim
In Ground Five, petitioner alleges generally that "[t]rial counsel failed to adequately defend petitioner's case when counsel failed to object to petitioner's sentence." (Am. Petition at 61.) Petitioner specifically argues that counsel erred when he failed to object to the calculation of petitioner's criminal history score, and "asserts that his conviction is illegal under the Eighth Amendment of the United States Constitution, because he received a lengthy sentence for an offense which he did not commit." (Id. at 61-62.) Respondent contends that the portion of Ground Five which alleges an Eighth Amendment claim was not properly exhausted, and is now procedurally defaulted. (Response at 19.) In his reply, petitioner does not dispute that the Eighth Amendment claim is procedurally defaulted, and argues only that he "overcomes the state post convictions courts [sic] determination by clear and convincing evidence that legally he is entitled to a new sentencing." (Answer to Resp't Response at 5.)
My review of the record confirms respondent's contention that petitioner did not raise an Eighth Amendment claim challenging the length of his sentence in any of the state courts, either as an assignment of error on direct appeal from his criminal proceeding, or as the basis for an ineffective assistance of counsel claim in his post-conviction proceeding and the appeals that followed. (See Resp't Exs. at Exs. 104 (Appellant's Brief — direct appeal), 112 (Amended Petition for Post-Conviction Relief), 113 (PCR Trial Memorandum), 151 (Appellant's Brief — PCR appeal), 153 (Petition for Review — PCR appeal).) As a result, petitioner did not properly exhaust any type of Eighth Amendment claim by presenting it to Oregon's highest court, as required by 28 U.S.C. § 2254(b)(1)(A). Because petitioner cannot file further direct appeals or petitions for post-conviction relief, the claim is also procedurally barred rather than simply unexhausted. See Rose, 455 U.S. at 519; Coleman, 501 U.S. at 735 n. 1; see also Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002) (under O.R.S. 138.550(3), all post-conviction review claims must be asserted in the original or amended petition unless they could not reasonably have been raised therein); and see O.R.S. 138.071 (A direct appeal of a criminal proceeding must be filed "not later than 30 days after the judgment or order appealed from was entered in the register.").
To the extent that petitioner's claim can be characterized either as a direct challenge to his sentence as violating the Eighth Amendment, or as an ineffective assistance of counsel claim based on counsel's failure to assert such an Eighth Amendment claim, the result is the same — neither claim was properly exhausted.
Petitioner has not attempted to demonstrate cause and prejudice to excuse the procedural default of his Eighth Amendment claim, or to show that a fundamental miscarriage of justice would occur if this court does not consider the merits of this claim. Accordingly, because petitioner did not meet his burden to show cause, he is not entitled to habeas corpus relief on that portion of Ground Five which challenges the length of his sentence based either on a theory that the trial court committed an Eighth Amendment violation when it imposed petitioner's sentence, or on a theory that trial counsel was ineffective for failing to assert an Eighth Amendment claim attacking the length of petitioner's sentence. See Murray, 477 U.S. at 488 (petitioner bears burden to show cause for procedural default); see also Edwards, 529 U.S. at 451 (prisoner must demonstrate cause for his state-court default).
3. Ground Six: Venue Claim
In Ground Six, petitioner alleges that appellate and trial counsel rendered ineffective assistance under the Fifth, Sixth and Fourteenth Amendments when trial counsel failed to properly preserve the venue issue and appellate counsel failed to properly argue the venue issue. (Am. Petition at 62.) Respondent argues that no portion of Ground Six has been properly exhausted because petitioner did not present any of the claims contained in this ground to the state's highest court. (See Response at 19-20.) Respondent alternatively contends that the portion of Ground Six alleging that trial counsel was ineffective for failing to preserve the issue of proper venue was duplicated in Ground Four under the heading "jurisdiction." (Id.) In his reply, petitioner accepts respondent's construction, as indicated by the following statement: "The petitioner requests that the evidence and arguments regarding claim[s] four and six be viewed together." (Answer to Resp't Response at 5.)
As discussed above, I found that petitioner procedurally defaulted the claim in Ground Four that trial counsel was ineffective for failing to properly preserve either a jurisdiction or a venue issue for appeal. See Part I.B.1, supra at pp. 8-14. Because Ground Six duplicates the ineffective assistance of trial counsel claim raised in Ground Four with respect to venue, the same legal analysis and conclusions apply. Accordingly, petitioner is not entitled to habeas corpus relief on the portion of Ground Six which alleges that trial counsel failed to provide effective assistance under the Sixth Amendment when he failed to preserve the venue issue for appeal because this claim was not properly exhausted, it is now procedurally defaulted, and petitioner did not demonstrate sufficient cause to excuse the procedural default. See id. at pp. 12-14.
My review of the record also reveals that the remaining claims alleged in Ground Six were never raised at the state court level. Petitioner did not allege at any point in his post-conviction proceedings that trial counsel's ineffectiveness gave rise to a due process violation based on either the Fifth or the Fourteenth Amendments to the U.S. Constitution. (See Resp't Exs. at Exs. 112, 113, 151, 153.) Petitioner also failed to raise any ineffective assistance claims against appellate counsel in the post-conviction proceedings. (See id.) Therefore, these claims were not properly exhausted because they were never presented to the state courts prior to the filing of the instant petition. See 28 U.S.C. § 2254(b)(1)(A); and see Rose, 455 U.S. at 519. Because petitioner is barred by state procedural rules from bringing a successive petition for post-conviction relief, these claims are procedurally defaulted. See O'Sullivan, 526 U.S. at 845; Coleman, 501 U.S. at 735 n. 1;Sandgathe, 314 F.3d at 376.
Petitioner has not attempted to demonstrate cause and prejudice to excuse the procedural default of his Fifth and Fourteenth Amendment claims, or of his ineffective assistance of appellate counsel claims; nor has petitioner argued that failure to review these federal claims would result in a fundamental miscarriage of justice. Accordingly, petitioner has not met his burden to show cause to excuse the procedural default, and therefore he is not entitled to habeas corpus relief on Ground Six. See Murray, 477 U.S. at 488; Edwards, 529 U.S. at 451.
I note that petitioner runs into the same procedural default conundrum as that presented in Edwards: when a petitioner attempts to use a claim of ineffective assistance of counsel to establish "cause" for the procedural default of his primary claim, he must either properly exhaust the secondary ineffective assistance of counsel claim by presenting it to the state courts in a context in which its merits will be considered, or — if the secondary ineffective assistance of counsel claim is itself defaulted — he must satisfy the "cause-and-prejudice" standard to excuse that secondary procedural default. 529 U.S. at 451-53. In this case, petitioner has procedurally defaulted the secondary ineffective assistance of appellate counsel claim raised in Ground Six — and he has failed to establish an independent cause to excuse this procedural default — so that this secondary claim also cannot constitute "cause" to excuse the procedurally defaulted primary venue claim that petitioner unsuccessfully attempted to assert in Ground Four. See Part I.B.1, supra at pp. 12-14.
II. Relief on the Merits A. Standard of Review
The remaining grounds alleged in this petition involve ineffective assistance of counsel claims that were raised in petitioner's state post-conviction proceeding, and were subsequently appealed to the Oregon Supreme Court. Therefore, these claims were properly exhausted and this court must next determine whether petitioner is entitled to relief on the merits of the claims raised in Grounds One, Two, Three, and portions of Grounds Four and Five.
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) 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). "[The] AEDPA circumscribes a federal habeas court's review of a state-court decision." Lockyer v. Andrade, 123 S.Ct. 1166, 1172 (2003). A federal court's "independent consideration of the constitutional issue is neither relevant, nor necessary to dispose of the question presented." Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.), cert. denied 124 S.Ct. 446 (2003). "'The only question that matters under § 2254(d)(1),' . . . is whether or not the . . . state court's decision is contrary to or involved an unreasonable application of, clearly established Federal law." Id. (quoting Lockyer, 123 S.Ct. at 1171). The 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); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
A state court acts "contrary to" clearly established federal law if it arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if it decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Lockyer, 123 S.Ct. at 1173;Bell v. Cone, 535 U.S. 685, 694 (2002); Williams v. Taylor, 529 U.S. 362, 412-13 (2000); Ramdass v. Angelone, 530 U.S. 156, 164-66 (2000). Only those Supreme Court holdings in effect at the time the state court renders its decision constitute "clearly established Federal law" under § 2254(d)(1). Lockyer, 123 S.Ct. at 1172; Clark, 331 F.3d at 1069.
A state court decision is an "unreasonable application of" clearly established federal law if the court identifies the correct governing legal principle from Supreme Court decisions, but unreasonably applies that principle to the facts of the prisoner's case or unreasonably refuses to extend the governing legal principle. Lockyer, 123 S.Ct. at 1174-75; Williams, 529 U.S. at 412-13; Ramdass, 530 U.S. at 166. Under this standard of review, a federal court may not issue a writ of habeas corpus simply because it concludes in its independent judgment that the state court applied clearly established federal law erroneously or incorrectly. Lockyer, 123 S.Ct. at 1175; Williams, 529 U.S. at 411. Rather, the state court decision must be "objectively unreasonable." Id. at 1175 (citing Williams, 529 U.S. 409; Bell, 535 U.S. at 699; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam)). A habeas petitioner bears the burden to show that the state court made an objectively unreasonable application of a Supreme Court case. Price v. Vincent, 123 S.Ct. 1848, 1853 (2003) (citing Woodford, 537 U.S. at 24-25).
B. Ineffective Assistance of Counsel Analysis
To prevail on a claim of ineffective assistance of counsel, petitioner must show both that (1) his attorney's performance fell below an objective standard of reasonableness; and (2) the performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The first part of this test requires a showing that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. While this burden is not insurmountable, there is a strong presumption that counsel's conduct falls within "the wide range of reasonable professional assistance." Id. at 689.
To establish the second prong of the Strickland test, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. In determining whether a defendant was prejudiced by ineffective assistance of counsel, the court should examine whether the "'result of the proceeding was fundamentally unfair or unreliable.'" United States v. Palomba, 31 F.3d 1456, 1460-61 (9th Cir. 1994) (quoting Lockhart v. Fretwell, 506 U.S. 364, 368 (1993)).
1. Ground One
Petitioner alleges that he was denied the effective assistance of counsel because trial counsel failed to conduct a proper cross-examination of the victim. Specifically, petitioner claims that counsel failed to cross-examine J on his conflicting versions of the incidents of abuse, and on the inconsistences between J's testimony and the testimony provided by petitioner and his wife (J's biological mother) regarding the discussion of the school's sex education materials, regarding the presence of a blanket over J's bedroom window which darkened the room so that J could not have observed the details about which he testified, and regarding J's testimony that he did not know that petitioner was not his biological father until told by a state caseworker after J was removed from the home. (Am. Pet. at 14-23.)
Following an evidentiary hearing, the state post-conviction court entered the following pertinent findings of fact:
1. Petitioner received adequate assistance of trial counsel.
2. Counsel properly investigated, prepared and defended petitioner's case.
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4. While inconsistent statements of exactly how the events occurred might have arguably cast some doubt as to affect the credibility of the victim, in view of the strength and reasons stated for the judge's findings, it does not appear that these matters taken alone or together with other matters argued as potential inconsistences which might have been raised, would have any tendency to affect the trial judge's determination of credibility or the outcome of the trial.
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20. Counsel properly cross-examined the victim.* * *
23. Counsel's closing was adequate.
24. This was a case of credibility. Counsel argued inconsistencies in the victim's testimony. The victim, however, was more believable.
(Resp't Exs. at Ex. 149, pp. 8-10.) The post-conviction court then made the following conclusions of law:
1. Based on the findings of fact set forth above, in the underlying criminal proceedings resulting in petitioner's conviction, petitioner was not denied the right to assistance of counsel, as guaranteed by either the United States Constitution and as articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), or the Constitution of the State of Oregon.
2. Petitioner did not prove any of his claims by the preponderance of the evidence.
(Id. at pp. 10-11.)
The state court's findings of fact are presumed correct; upon a thorough review of the record, I find that petitioner has not met the burden of rebutting those findings with clear and convincing evidence. The transcript from petitioner's criminal trial reveals not only that the judge commented that petitioner's counsel, Mr. Bostwick, performed effectively, but also that as a result the judge, in his role as the trier-of-fact, took particular care to weigh the inconsistencies in the victim's testimony to make a credibility determination, as evidenced by the following excerpt:
[THE COURT:] This is a situation I think that either happened or it didn't. . . . I have considered all the possible motives, all the possible biases of each of the witnesses. I even went through and made a list of the different inconsistencies and the different strengths and weaknesses in the State's case . . . [a]nd those were ably pointed out by Mr. Bostwick. I don't think any other attorney could do it better than he does in terms of pointing out the inconsistencies of J's statements.
(Am. Petition at Ex. 3, p. 250.)
Although Mr. Bostwick could have cross-examined J further about the conflicting versions of his testimony, his failure to do so did not result in a performance that was so deficient that he undermined the proper functioning of the adversarial process. The underlying record reveals not only that Mr. Bostwick's cross-examination of J was thorough, adversarial, and designed to undermine J's credibility by revealing multiple inconsistencies in J's testimony, but also that Mr. Bostwick effectively highlighted the key inconsistencies in his closing argument. (See id. at pp. 90-113, 236-45.) Even if Mr. Bostwick had presented additional evidence demonstrating that there were further inconsistences in J's testimony, the record supports the PCR court's finding that such evidence was not so damaging to J's credibility that it would have affected the outcome of the trial.
In its conclusions of law, the PCR court did not specify whether its decision was based on the performance prong, the prejudice prong, or both prongs of Strickland. The Supreme Court announced the general legal principle in Strickland that, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." 466 U.S. at 686. I find that whether the PCR court's decision rests on the performance analysis, the prejudice analysis, or both, its conclusion that petitioner was not denied the right to assistance of counsel with respect to Ground One is neither contrary to nor an unreasonable application of Strickland and its progeny.
"[I]t is the habeas applicant's burden to show that the state court applied Strickland to the facts of his case in an objectively unreasonable manner." Woodford, 123 S.Ct. at 360. Petitioner has not met this burden; therefore, habeas relief is not permissible under § 2254(d). See id. at 361. Accordingly, petitioner is not entitled to relief on the merits of the claim in Ground One that he was denied effective assistance of counsel by counsel's failure to conduct a proper cross-examination of the victim.
2. Ground Two
Petitioner alleges that he was denied the effective assistance of counsel because trial counsel failed to call and properly cross-examine certain witnesses. Specifically, petitioner claims that counsel erred when he failed to call Detective Mark Peterson, Children's Services Division (CSD) Investigator Mike Williams, and J's sister, Ashley Bowser. (Am. Petition at 26-30.) With respect to this claim, the state post-conviction court made the following additional findings of fact:
3. Counsel's decision not to call Deputy Mark Peterson was a judgment call. It is unlikely that the overall affect [sic] of calling the state's primary investigator would have done anything to improve petitioner's case.
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6. There is nothing in the record from which this Court can determine that the younger sister of the victim would have been allowed by the Court to testify or that her testimony would have presented any inconsistency which would have had a tendency to affect the outcome of the proceeding.
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11. Counsel's decision not to call Deputy Michael Williams was a judgment call. It is unlikely that the overall affect [sic] of calling one of the state's main investigators would have done anything to improve petitioner's case.
(Resp't Exs. at Ex. 149, pp. 8-9.) Based on these findings, the PCR court reached the two conclusions of law reproduced above in the discussion of Ground One. See Part II.B.1, supra at p. 24.
My review of the record in this case leads me to conclude that petitioner has not produced clear and convincing evidence to rebut the presumption that the PCR court's findings of fact are correct with respect to Ground Two. Generally, petitioner contends that the testimony of Peterson, Williams, and Ashley Bowser would have been particularly useful to impeach J's testimony and to reveal inconsistent details regarding each of the alleged incidents of abuse, so that counsel's failure to call these witnesses resulted in ineffective representation. (See Am. Petition at 26-30.) However, as discussed above in Ground One, the PCR court's findings of fact numbers 1, 2, 4 and 24, which petitioner has already failed to rebut, establish that petitioner's counsel performed effectively in his attack on J's credibility; further attacks would have been unnecessarily duplicative.
Petitioner has not clearly established that any of the potential testimony from Peterson, Williams, or Ashley Bowser would have been exculpatory. Petitioner's trial counsel, Mr. Bostwick, attests that he declined to call Deputy Peterson because "he was the primary investigator for the prosecution and any testimony that he would have had clearly would have been in support of the victim and detrimental to [petitioner]." (Resp't Exs. at Ex. 141, p. 2.) Similarly, Mr. Bostwick attests that he declined to call Michael Williams because his analysis compelled him to conclude that the detrimental effects of Williams's testimony would have outweighed any of its benefits. (See id. at p. 3.) Williams's report, which was entered into the PCR court's record as one of petitioner's exhibits, contains graphic details about the sexual abuse allegedly committed by petitioner, and shows that Williams would have corroborated much of J's testimony. (See Ex. 116.) Finally, Mr. Bostwick attests that because Ashley Bowser was only five years old at the time of the trial, because her testimony would not have sufficiently impeached J's, and because petitioner and his wife could provide sufficient testimony about the issues covered by Ashley's testimony, he decided not to use her as a witness. (See id. at Ex. 141, pp. 3-4.) Accordingly, the record supports the PCR court's findings that petitioner's counsel made reasonable judgment calls when he declined to call Peterson, Williams, and Ashley Bowser as defense witnesses, and that the failure to call these witnesses would not have affected the outcome of petitioner's trial.
As discussed above in Ground One, the PCR court did not specify which aspects of the Strickland analysis formed the basis for its conclusions of law. Nevertheless, I find that whether the PCR court's holding rests on Strickland's performance prong, its prejudice prong, or both prongs, the state court's application of Strickland's governing principles to the facts at issue in Ground Two was not objectively unreasonable. This is not a case of "failure to investigate" as petitioner argues. (See Am. Petition at 33-35.) Rather, my review of the record supports the finding that Mr. Bostwick investigated the testimony that Peterson, Williams, and Ashley Bowser could have provided, that Mr. Bostwick exercised reasonable professional judgment in making the tactical decision to decline to call them as defense witnesses at trial, and that petitioner did not establish that Mr. Bostwick's conduct prejudiced his defense. Because petitioner has not satisfied his burden to show that the state PCR court applied Strickland to the facts of his claim in an objectively unreasonable manner, he is not entitled to relief on the merits of the claim alleged in Ground Two. See Woodford, 123 S.Ct. at 360-61; 28 U.S.C. § 2254(d).
3. Ground Three
Petitioner alleges that he was denied the effective assistance of counsel because counsel failed to introduce certain pieces evidence during the trial, even though he had the evidence in his possession. (See Am. Petition at 35.) Specifically, petitioner alleges that counsel should have introduced the following evidence at trial: a letter dated November 4, 1998, describing the topics for "Safety Week" issued by the Salem-Keizer School District (Pet'r Ex. 16); a handout from the Salem-Keizer School District titled, Human Sexuality Education, Grade 4 Boys (Pet'r Ex. 17); a similar handout titledHuman Sexuality Education, Grade 6 Boys/Girls (Pet'r Ex. 18); a Salem-Keizer School District booklet titled, Opening Lines: Parent Guide for Teaching Sexuality and Values in your Home for Kindergarten through Grade 5 (Pet'r Ex. 19); an instructional publication used by the school titled, Growing to Maturity (Pet'r Ex. 20); a letter dated March 11, 1996, from Eric A. Dover, M.D. (Pet'r Ex. 12); and petitioner's chart notes from the Salem Clinic (Pet'r Ex. 21). (See Am. Petition at pp. 43-46.)
I note that, particularly with respect to Ground Three, which consists of fourteen pages of disparate facts and arguments, petitioner has not provided this court with "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Accordingly, I have construed the "certain pieces" of evidence referred to by petitioner in Ground Three to mean only those items listed under the heading "evidence which should have been introduced at trial." (See Am. Petition at p. 43.) As a result, I will not address petitioner's argument that trial counsel was ineffective because he failed to introduce a transcript (Trial Ex. 111) from a prior restraining order proceeding at which J testified. This document was not included in petitioner's list. Furthermore, the record shows that Mr. Bostwick attempted to introduce the transcript but the trial court judge ruled that it was inadmissible, so that this piece of evidence falls outside the scope of the claim alleged in Ground Three. (See Am. Petition at 38.)
In addition to the findings of fact set forth above in Ground One, the state post-conviction court made the following findings of fact relevant to Ground Three:
5. Evidence that petitioner [sic] had attended a sex education class at school was not at issue. Witnesses testified that petitioner and his wife had conversations with the victim which included the use of sexual terms and body parts, and that these conversations were initiated because of a suggestion from a sex education class of the victim['s].
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9. [P]etitioner's wife testified to petitioner's alleged sexual inadequacies and problems.
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12. Counsel argued the size of petitioner's penis from photographs of petitioner's penis in the record.
13. Whether petitioner had open sores on his legs at the time of the incidents would not have affected the outcome of the case.
(Resp't Exs. at Ex. 149, pp. 8-9.) Based on these findings, the PCR court reached the two conclusions of law reproduced above in the discussion of Ground One. See Part II.B.1, supra at p. 24.
Again, the PCR court's findings of fact with respect to Ground Three are presumed correct, and my thorough review of the record leads me to find that petitioner has failed to rebut this presumption with clear and convincing evidence. Petitioner generally argues that trial counsel rendered ineffective assistance because he attempted to present the evidence listed by petitioner during the sentencing phase of petitioner's criminal proceeding, rather than at trial, even though the evidence was available at the time of trial. (See Am. Petition at pp. 35-41.) Specifically, petitioner contends that the documentary evidence at issue could have been used much more effectively at trial to "substantiate the testimony of the petitioner and his wife, and to discredit the victim's testimony." (Id. at 36.) As discussed above in Grounds One and Two, petitioner has already failed to rebut the PCR court's findings of fact numbers 1, 2, 4 and 24, which establish that trial counsel performed effectively in his attack on J's credibility. Again, additional documentary evidence discrediting J's testimony would have been unnecessarily duplicative.
Furthermore, the Salem-Keizer School District's letter and sex education materials proffered by petitioner are of questionable relevance, and petitioner failed to demonstrate to the PCR court that these exhibits would have been admitted at trial. Petitioner has also failed to establish a proper foundation for the admission of these documents because he did not authenticate them, or present evidence to the PCR court that the listed materials were used to instruct J at school. In addition, my review of the materials leads me to agree with respondent's argument that "nothing in this documentary evidence discussed the abuse that the victim revealed — specific acts of incest and sodomy," which the victim testified to using slang terms rather than the clinical terms used in the sex education materials. (Response at 14.) The state did not dispute the testimony provided by petitioner and his wife establishing that they engaged in sex education discussions with J in the months preceding his reports of sexual abuse; therefore, the documentary evidence was not needed to establish defense counsel's theory that J fabricated his reports based on the information he obtained from his recent participation in sex education discussions. (See id.)
Similarly, petitioner's medical records and Dr. Dover's letter dated March 11, 1996, are also of questionable relevance; and petitioner again failed to demonstrate to the PCR court that these documents would have been admitted had they been offered at trial. My review of the evidence at issue leads me to agree with respondent that "Dr. Dover did not opine that Petitioner's penis was too small to have committed the crimes in question. . . . [and] [n]one of the [medical] reports conclude that Petitioner's health prevented him from committing the acts described by the victim." (Id. at 14-15.) Again, because petitioner and his wife both testified about petitioner's symptoms of disease and his physical limitations, and because counsel admitted photographs of petitioner's undersized genitalia into the record at trial, the additional documentary evidence was not needed to establish defense counsel's theory that J's descriptions of the specific events and circumstances surrounding the incidents of abuse were so inaccurate that they were likely to have been fabricated.
Finally, petitioner has not established by clear and convincing evidence that any of the proffered documents would have been exculpatory even if they had been admitted at trial. To the extent that these documents could have been used to impugn J's testimony, or to bolster the testimony of petitioner and his wife, petitioner has failed to demonstrate by clear and convincing evidence that counsel's failure to offer them at trial altered the outcome of the proceeding. Considering all of the circumstances, Mr. Bostwick's decision not to use the documentary evidence at issue here during petitioner's trial falls within "the wide range of reasonable professional assistance." See Strickland, 466 U.S. at 689. Accordingly the record supports the PCR court's findings of fact with respect to Ground Three, as well as its conclusions of law.
Again, I find that it matters not whether the PCR court based its conclusion on Strickland's performance prong, its prejudice prong, or both prongs; the PCR court's application of Strickland to the facts at issue in Ground Three was not objectively unreasonable. Accordingly, petitioner is not entitled to relief on the merits of his claim in Ground Three. See Woodford, 123 S.Ct. at 360-61; 28 U.S.C. § 2254(d).
4. Ground Four
Petitioner alleges that he was denied the effective assistance of counsel because trial counsel failed to properly argue certain issues and/or preserve those issues for appeal. (Am. Petition at 49.) Specifically, petitioner alleges that trial counsel failed to effectively argue and to preserve for appeal the issue that the victim's prior false testimony was admissible, and that trial counsel failed to object and to preserve for appeal the inappropriate gridblock classifications to which petitioner was assigned during sentencing. (Id. at 50-57.)
As discussed above, petitioner procedurally defaulted the portion of Ground Four in which he claimed that counsel failed to adequately argue and preserve jurisdiction or venue issues for appeal. See Part I.B.1, supra at pp. 8-14.
In addition to the relevant findings of fact set forth above in Ground One, the state post-conviction court made the following findings of fact specifically regarding Ground Four:
17. Petitioner's sentencing issues were preserved and argued and appealed.
18. The judge's ruling that past statements of the victim during a restraining order hearing were not admissible as impeachment evidence against the victim was proper.
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22. Petitioner's sentence was valid. Counsel had no reason to object.
(Resp't Exs. at Ex. 149, p. 10.) Based on these findings, the PCR court reached the two conclusions of law reproduced above in the discussion of Ground One. See Part II.B.1, supra at p. 24.
Having thoroughly reviewed the record in this case, I find that petitioner has not produced clear and convincing evidence to rebut the correctness of the PCR court's findings of fact with respect to Ground Four. Regarding the issue of J's prior false testimony, the transcript from petitioner's criminal trial shows that Mr. Bostwick made a vigorous attempt during the pre-trial conference to admit the transcript from an August 30, 1994, hearing where J testified untruthfully that Marian Krause, J's grandmother, was stalking him while he was at his day care center. (See Am. Petition at Ex. 3, pp. 11-14.) The record shows that the trial court judge simply ruled against petitioner, finding that such evidence was not admissible under the Oregon Evidence Code. (Id. at 17-18.) Therefore, petitioner has failed to rebut the PCR court's finding that the trial court judge's underlying evidentiary ruling was proper. In fact, the record shows just the opposite: when presented with petitioner's assignment of error on direct appeal contending that the trial court erred by not allowing the prior sworn testimony of the victim to be admitted for impeachment purposes (see Resp't Exs. at Ex. 104, pp. 26-31), the Oregon Court of Appeals affirmed the trial court, and the Oregon Supreme Court denied review of the matter. State v. Bowser, 148 Or. App. 635, 939 P.2d 678, rev. denied, 326 Or. 62, 944 P.2d 949 (1997). Because the trial court did not commit an evidentiary error, petitioner's counsel was not unreasonable for failing to object in order to preserve the issue for appeal; furthermore, without a showing of legal error, petitioner has failed to affirmatively prove that counsel's conduct prejudiced his defense.
There is some uncertainty about whether the PCR court's finding number 17 can be presumed correct, because the record shows that the State argued on direct appeal that petitioner's counsel failed to preserve the sentencing issue for appeal (see Resp't Exs. at Ex. 105, pp. 19-20), and the Oregon Court of Appeals affirmed the trial court without issuing an opinion.State v. Bowser, 148 Or. App. 635, 939 P.2d 678 (1997). Also, in this habeas corpus proceeding petitioner claims that trial counsel was ineffective for failing to object to the sentence and thereby preserve the issue for appeal. (See Am. Petition at 50, 57.) Nevertheless, because this court is reviewing the sentencing issue raised by petitioner in Ground Four, to the extent that the PCR court's finding number 17 is in error, the error is harmless.
Similarly, petitioner fails to rebut the PCR court's finding that his sentence was valid. On direct appeal, when presented with petitioner's contention that the trial court erred when it adjusted petitioner's criminal history score on Count III and Count IV to reflect two prior convictions, which both arose from the same criminal episode (see Resp't Exs. at Ex. 104, pp. 31-36), the Oregon Court of Appeals affirmed the trial court, and the Oregon Supreme Court denied review of the matter. State v. Bowser, 148 Or. App. 635, 939 P.2d 678, rev. denied, 326 Or. 62, 944 P.2d 949 (1997). I find that the record supports respondent's argument that petitioner's counsel had no basis to object to the trial court's calculation of petitioner's criminal history score because the rule relied on by petitioner in his direct appeal was repealed on November 1, 1993, so that it did not apply, and that the case law cited by petitioner was unpersuasive. (See Resp't Exs. at Ex. 105, pp. 20-23.) Because any objection to petitioner's gridblock classification would have been frivolous as a matter of law, petitioner's trial counsel acted reasonably when he declined to object to petitioner's sentence, and petitioner suffered no prejudice as a result.
Again, as discussed above, because the record supports the PCR court's conclusions of law with respect to Ground Four regardless of whether PCR court based its conclusion on Strickland's performance prong, its prejudice prong, or both prongs, the PCR court's application of Strickland to the facts at issue in Ground Four was not objectively unreasonable. Accordingly, petitioner is not entitled to relief on the merits of the claims raised in Ground Four. See Woodford, 123 S.Ct. at 360-61; 28 U.S.C. § 2254(d).
5. Ground Five
Petitioner alleges that trial counsel was ineffective when he failed to object to the calculation of the criminal history score during petitioner's sentencing. (Am. Petition at 61.) This claim is identical in substance to the claim of trial counsel error raised in Ground Four. Accordingly, for same reasons discussed above at pages 38-39, petitioner is not entitled to relief on the merits of the Ground Five. See Woodford, 123 S.Ct. at 360-61; 28 U.S.C. § 2254(d).
As discussed above, petitioner procedurally defaulted the portion of Ground Five in which he claims that the sentence he received violates the Eighth Amendment because of its excessive length. See Part I.B.2, supra at pp. 14-17.
CONCLUSION
For the foregoing reasons, petitioner's Amended Petition for Writ of Habeas Corpus (#31) is DENIED, and this action is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.