Opinion
2:21-cv-01848-MK
05-16-2023
DALE EUGENE BROOKS, Petitioner, v. JAMIE MILLER, Superintendent, Snake River Correctional Institution, Respondent.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI UNITED STATES MAGISTRATE JUDGE
Petitioner brings this federal habeas Petition pursuant to 28 U.S.C. § 2254 and challenges his state convictions for sexual abuse on grounds that his counsel provided ineffective assistance at trial. Respondent maintains that Petitioner's first claim was denied in a state court decision entitled to deference and his second claim is procedurally defaulted and barred from federal review. For the reasons explained below, the Petition should be DENIED.
BACKGROUND
In May of 2014, Petitioner was charged by indictment with six counts of Sexual Abuse in the First Degree. Resp't Ex. 102. The charges arose from the abuse of Petitioner's stepdaughter, CF, when she was approximately nine years old.
Petitioner waived his right to a jury trial and the case proceeded to trial before the court. Transcript of Proceedings (Tr.) 4-6. At trial, CF testified that when she was nine or ten years old, Petitioner taught her to play “strip poker” and they would often play until they were both unclothed. Tr. 60-66. Over time, Petitioner began forcing CF into a bedroom, where he would bend her over and rub his penis against her backside. Tr. 67, 71, 81-86. CF testified that Petitioner also made her touch his penis, and that the sexual contact occurred every few days for a couple of months. Tr. 67, 71-74. A school counselor and a sheriff's deputy testified about CF's disclosure and description of the abuse, which corroborated CF's trial testimony. Tr. 162-197; 215-233. Petitioner took the stand in his defense and denied playing strip poker with CF or committing any act of abuse. Tr. 414-15, 426-27. The trial court found Petitioner guilty of three counts of Sexual Abuse in the First Degree and imposed concurrent and consecutive sentences totaling 180 months of imprisonment. Resp't Ex. 101.
After pursuing a direct appeal, Petitioner sought post-conviction relief (PCR) and alleged that trial counsel failed to obtain and present evidence that Petitioner was physically incapable of committing the “physically vigorous acts of alleged sex abuse” due to a previous leg injury. Resp't Exs. 114, 115 at 3. The PCR court denied relief, finding that Petitioner had not established deficient performance or prejudice. Resp't Ex. 138. The Oregon Court of Appeals affirmed without opinion and the Oregon Court of Appeals denied review. Resp't Exs. 142-43.
Petitioner's direct appeal challenged the trial court's imposition of monetary obligations. The Oregon Court of Appeals reversed a county fee assessment and otherwise affirmed. State v. Brooks, 285 Or.App. 54 (2017).
Petitioner initially alleged two claims for relief; he withdrew one claim and did not present it to the PCR court.
Petitioner now seeks federal habeas relief.
DISCUSSION
Petitioner asserts two grounds for relief in his federal habeas Petition. In Ground One, Petitioner claims that his trial counsel was ineffective by failing to obtain and present evidence that a previous leg injury rendered Petitioner physically incapable of committing the alleged acts of sexual abuse. The PCR court rejected this claim and Respondent maintains that its decision is reasonable and entitled to deference.
A federal court may not grant habeas relief regarding any claim “adjudicated on the merits” in state court, unless the state court ruling “was contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A state court decision is “contrary to” established federal law if it fails to apply the correct Supreme Court authority or reaches a different result in a case with facts “materially indistinguishable” from relevant Supreme Court precedent. Brown v. Payton, 544 U.S. 133, 141 (2005); Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision is an “unreasonable application” of clearly established federal law if the state court identifies the correct legal principle but applies it in an “objectively unreasonable” manner. Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam); see also Early v. Packer, 537 U.S. 3, 11 (2002) (state court decisions may be set aside only “if they are not merely erroneous, but ‘an unreasonable application' of clearly established federal law, or are based on ‘an unreasonable determination of the facts.'”).
Under the well-established precedent of Stricklandv. Washington, 466 U.S. 668 (1984), a habeas petitioner alleging the ineffective assistance of counsel must show that 1) “counsel's performance was deficient” and 2) counsel's “deficient performance prejudiced the defense.” Id. at 687. To establish deficient performance, a petitioner “must show that counsel's representations fell below an objective standard of reasonableness.” Id. at 688. To demonstrate prejudice, a petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” Id. at 687.
In rejecting Ground One, the PCR court found that Petitioner did not assert this defense at trial and never informed trial counsel, the defense investigator, or an examining psychologist that he was physically incapable of committing the alleged acts. Resp't Ex. 138 at 2-3; Tr. at 403-27; see also Resp't Exs. 106, 132 (filed under seal), 137 at 38-40. The PCR court also cited trial testimony that reflected Petitioner's ability to ride a bike, walk his children to school, clean their home, go on family camping trips, and hunt for rocks. Resp't Ex. 138; Tr. 307, 409-13; see also Resp't Ex. 134 at 10. The PCR court further noted that prior to trial, Petitioner reported his “current” recreational interests as “playing pool, cribbage, video games and outdoor activities such as fishing, hunting, and camping.” Resp't 138 at 3; see also Resp't Ex. 132 at 7 (filed under seal). Based on this record, the PCR court reasonably found that trial counsel was not deficient by failing to investigate or present evidence of Petitioner's physical limitations.
Petitioner nonetheless argues that the PCR court unreasonably discounted the testimony of Donald Brooks and Andrew Little, the brother and friend of Petitioner, respectively. During the PCR proceeding, Brooks testified that Petitioner could not have stood behind CF and rubbed his genitals against her, because Petitioner could not stand “for long periods of time” without experiencing “screeching pain.” Resp't Ex. 137 at 58. Little similarly testified that Petitioner could stand for only a few minutes without his cane, and he doubted Petitioner could have stood behind CF as she described. Resp't Ex. 137 at 63, 65.
However, the testimony of Brooks and Little, as a whole, failed to support Petitioner's claim. Notably, Brooks testified earlier in the proceeding that he and Petitioner hunted and camped together several years after CF's abuse, that Petitioner was able to walk around his house, and that he had no firsthand knowledge that Petitioner was physically incapable of abusing CF as she described. Resp't Ex. 137 at 51-52, 55. Likewise, Little admitted that Petitioner was capable of walking his children to school and had camped and hunted for rocks during the time in question. Resp't Ex. 137 at 64. Accordingly, the PCR court reasonably rejected their testimony to the extent they suggested Petitioner was physically unable to commit the alleged acts of abuse.
In Ground Two, Petitioner contends that counsel was ineffective by failing to elicit testimony that would have impeached CF's allegedly “inaccurate description” of his genitals. Petitioner withdrew this claim during his PCR proceeding, and Respondent maintains that the claim is unexhausted and procedurally defaulted.
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks and citation omitted). In order to exhaust his state remedies, a petitioner must present federal constitutional claims to the State's highest court before seeking federal habeas relief. Id.; Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011) (“Exhaustion requires the petitioner to ‘fairly present' his claims to the highest court of the state.”). If a claim was not fairly presented to the state courts and no state remedies remain available for the petitioner to do so, the claim is barred from federal review through procedural default. See Coleman v. Thompson, 501 U.S. 722, 732, 735 n.1 (1991); Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002) (“A procedural default may be caused by a failure to exhaust federal claims in state court.”). A federal court may consider unexhausted and procedurally barred claims only if the petitioner demonstrates cause for the default and actual prejudice, or if the lack of federal review would result in a “fundamental miscarriage of justice.” Edwards v. Carpenter, 529 U.S. 446, 451(2000); Coleman, 501 U.S. at 750.
Petitioner does not dispute that he failed to exhaust Ground Two and it is now procedurally defaulted. Instead, Petitioner's counsel requests the opportunity to investigate whether Petitioner was incompetent at the time in order to show cause for the default. However, nothing in the record suggests that Petitioner was incompetent during PCR proceedings. Petitioner was represented by counsel and testified before the PCR court, and no party questioned his competence at any time. Thus, the record provides no basis for cause or prejudice, and Ground Two is barred from federal review through procedural default.
CONCLUSION
For the reasons explained above, the Petition for Writ of Habeas Corpus (ECF No. 2) should be DENIED. A Certificate of Appealability should be DENIED on the basis that Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The parties may file specific written objections within fourteen (14) days from the date of service of a copy of this recommendation. If an objection is filed, any response to the objection is due within fourteen (14) days from the date of the objection. See Fed.R.Civ.P. 72. The parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).