Opinion
2:20-cv-00435-MK
03-06-2023
JEFFREY MARK CLARK, Petitioner, v. BRAD CAIN, Respondent.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI (HE / HIM), MAGISTRATE JUDGE
Petitioner brings this habeas corpus proceeding under 28 U.S.C. § 2254 and challenges the aggregate sentence imposed for offenses related to Petitioner's sexual abuse of his daughter and his subsequent attempts to avoid prosecution. Petitioner claims that the trial court violated his rights to due process by imposing a lengthier sentence of imprisonment after Petitioner successfully challenged his initial sentence on direct appeal. Upon review of the record, I find that the trial court denied Petitioner's claim in a decision that is entitled to deference, and the Petition should be denied.
BACKGROUND
Petitioner began sexually abusing his daughter, TC, when she was twelve or thirteen years old. Resp't Ex. 104 at 34; Resp't Ex. 111 at 35, 41, 44. By the time TC turned sixteen years old, Petitioner's abuse had escalated to rape and TC became pregnant. Resp't Ex. 110 at 37-41, 44, 51-53. In March of 1996, TC disclosed Petitioner's abuse and the pregnancy to her cousin, and he and other family members eventually notified law enforcement authorities. Resp't Ex. 111 at 55, 60-63.
Petitioner was arrested and charged in Case No. 96-1071 with fifteen felony offenses, including multiple counts of Sexual Abuse in the First and Second Degrees, Sodomy in the First Degree, and Incest. Resp't Ex. 110 at 88; Resp't Ex. 127. The trial court subsequently released Petitioner on bail and ordered him to have no contact with TC or her sister. Petitioner repeatedly violated those conditions and contacted TC through written, “coded” communications, by telephone, and in person. Resp't 111 at 64-67, 78-80, 83. Petitioner convinced TC that she should not cooperate with prosecutors and instead should disavow or minimize Petitioner's sexual abuse, blame other family members for the abuse, or claim that she “was the one who wanted to have sex.” Resp't Ex. 111 at 67-83.
Petitioner eventually pleaded guilty to one count of Incest and the State dismissed the remaining counts, largely as a result of Petitioner's successful efforts to prevent TC from cooperating with authorities. Resp't Ex. 104 at 17-18; Resp't Ex. 110 at 91-92. The trial court sentenced Petitioner to probation and ordered him to complete an in-custody, eighteen-month sex offender treatment program at Oregon State Hospital. Resp't Ex. 110 at 255-56.
While Case No. 96-1071 was pending, TC's mother, Cathleen, discovered videotape recordings that depicted Petitioner forcibly raping TC on three separate occasions. Due to Petitioner's coercion and threats of harm, Cathleen did not relinquish the recordings to law enforcement authorities for several months. Resp't Ex. 104 at 18; Resp't Ex. 110 at 170-73. Once she did, the State charged Petitioner in Case No. 98-1187 with three counts of Using a Child in a Display of Sexually Explicit Conduct, three counts of Encouraging Child Sexual Abuse in the Second Degree, two counts of Tampering with a Witness, and one count of Coercion. Resp't Ex. 102 at 1, 10-13.
In late October 1998, the trial court released Petitioner on bail, with the condition that he have no contact with TC and agree to electronic monitoring. Resp't Ex. 110 at 260-262; Resp't Exs. 133-34. In December 1998, Petitioner cut off the monitoring device and left a note implying that he intended to commit suicide. Resp't Ex. 104 at 52; Resp't Ex. 110 at 267-68; Resp't Ex. 135. Petitioner then assumed a false name, obtained a fraudulent passport, and fled to the Philippines. Resp't Ex. 104 at 56; Resp't Ex. 141; Resp't Ex. 158 at 34-35.
In 2002, Petitioner was captured, arrested, and extradited to Oregon to face prosecution. Resp't Ex. 104 at 53-57; Resp't Ex. 141. The State subsequently brought new charges against Petitioner in Case No. 02-1146, including one count of Sexual Abuse in the First Degree, two counts of Failure to Report as a Sex Offender, and eleven counts of Failure to Appear in the First Degree. Resp't Ex. 102 at 2-9.
On March 26, 2004, after extensive settlement negotiations, petitioner pled guilty in Case No. 98-1187 to three counts of Using a Child in a Display of Sexually Explicit Conduct (Counts 1, 3, and 5) and no contest to counts of Tampering With a Witness and Coercion (Counts 7 and 9). Resp't Ex. 103; Resp't Ex. 104 at 6-21. Petitioner also pled guilty in Case No. 02-1146 to one count of Failure to Appear in the First Degree (Count 4). The State dismissed the remaining charges.
On October 1, 2004, the trial court held a sentencing hearing. Resp't Ex. 104 at 22-106. The State introduced the testimony of two witnesses, a clinical social worker and a state trooper, and presented six exhibits in support of several aggravating sentencing factors. Resp't Ex. 104 at 24-25, 27, 49-50. Petitioner objected and argued that the trial court could not make factual findings to support upward departure sentences because Petitioner had not waived his right to have aggravating sentencing factors found by a jury beyond a reasonable doubt. Resp't Ex. 104 at 72-83; see Blakely v. Washington, 542 U.S. 296 (2004) (holding that the Sixth Amendment right to jury applies to facts that increase a defendant's sentence beyond the statutory maximum sentence). The trial court overruled Petitioner's objection and found that he had waived his right to a jury trial on sentencing factors through his guilty plea. Resp't Ex. 104 at 91.
In Case No. 98-1187, the trial court found eight aggravating sentencing factors applicable to Counts 1, 3, 5, 7, and 9 and imposed consecutive, upward departure sentences of fifty-six months, eighty months, and ninety months' imprisonment on Counts 1, 3, and 5, respectively; thirty months' imprisonment on Count 7; and thirty-six months' imprisonment on Count 9. Resp't Ex. 101 at 26-28; Resp't Ex. 104 at 93-96. In Case No. 02-1146, the trial court found one aggravating factor applicable to Count 4 and imposed an upward departure sentence of twenty-two months, to be served consecutively to Petitioner's sentences in Case No. 98-1187, for a total of 314 months' imprisonment in both cases. Resp't Ex. 101 at 22; Resp't Ex. 104 at 101.
Petitioner directly appealed his sentence and argued that the trial court erred by finding a waiver of his right to jury trial on aggravating sentencing factors and by imposing upward departure sentences. Resp't Ex. 106. The Oregon Court of Appeals found that “nothing in the record supports the conclusion that defendant validly waived the right to have a jury determine the facts on which his departure sentences are based,” and it vacated Petitioner's sentences and remanded for resentencing. See State v. Clark, 220 Or.App. 197, 202 (2008); Resp't Ex. 108. The Court of Appeals did not reach Petitioner's second argument.
On March 18, 2009, the same trial court judge held a two-day sentencing trial before a jury. Resp't Ex. 110 at 55-276; Resp't Ex. 111 at 6-213. The State called eight witness, including TC and Cathleen, and introduced twenty-three exhibits in support of numerous aggravating sentencing factors. Resp't Ex. 110 at 4-5; Resp't Ex. 111 at 4-5. The jury considered twenty-four aggravating sentencing factors, with some factors applicable to multiple counts, and found all but two to be true. Resp't Ex. 111 at 192-196, 204-212.
Based on the jury's factual findings, in Case No. 98-1187, the trial court imposed upward departure sentences of fifty-six months, eighty months, and ninety months' imprisonment on Counts 1, 3, and 5, respectively; sixty months' imprisonment on Count 7; and seventy-two months' imprisonment on Count 9. Resp't Ex. 101 at 7-10. In Case No. 02-1146, the trial court imposed an upward departure sentence of twenty months' imprisonment on Count 4. Resp't Ex. 101 at 12-13. The trial court again ordered the sentences to run consecutively, for a total of 378 months' imprisonment and an increase of sixty-four months from Petitioner's original sentence. The increase arose from the lengthier terms of imprisonment imposed on Counts 7 and 9, Tampering With a Witness and Coercion, in Case No. 98-1187.
Petitioner objected and argued that a lengthier sentence after remand would impermissibly punish him for exercising his appeal rights. Resp't Ex. 111 at 222-24. The trial court disagreed and found that it could not ignore the “whole complex set of facts” presented during the two-day sentencing trial. Id. at 224. The court explained:
[I]t's not my intent to punish Mr. Clark for exercising his right to appeal.. ..We've had really a de novo presentation of facts to the jury in a much more - there's a lot more facts that have now been presented at sentencing in this jury hearing than were presented to me in the two-hour presentation..
This has been a two-day jury trial where I've had an opportunity to hear from the victims personally, to have a much greater understanding of the facts and the harm, and there's been a de novo review by the community of those facts that suggest harm or aggravation and they've found many additional aggravating facts beyond what the court originally did.
So I am going to find that the court, under this particular situation, is not bound by its earlier sentence because the prior sentence was really void. It was without authority for me to impose and we have now had a trial on the facts where new facts have been presented.
They can't simply be ignored. I mean we've had a jury trial where the jury has reviewed a whole complex set of facts and ... I would have to simply ignore reality to say that my mind hasn't changed about what occurred here in this case.
I understood the gravity of the case when I imposed sentence, but let's be clear, that was a two-hour proceeding. I did have a presentence report but it really pales in comparison to the trial that has occurred in terms of understanding the impact on the victims, understanding the impact on the community, understanding the impact on the extended family of Mr. Clark, and if I just simply say that I'm bound by a two-hour hearing and I need to ignore everything I just heard doesn't seem in keeping with the spirit of cases indicating that the court must exercise its discretion anew in arriving at what he considers to be an appropriate sentence.
Otherwise it seems like we just went through a big charade. Just, you know, I gave him a sentence, we present new facts and I give him the same sentence. I think this is a new proceeding, there are new facts, and certainly I am now aware of impacts that I - that I don't believe I had either the time or the information to consider fully at the time of the original sentencing.Resp't Ex. 111 at 224-226.
Petitioner appealed his sentence after remand, and the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Resp't Ex. 115 at 14; Resp't Ex. 117-18. Petitioner subsequently sought post-conviction relief, and the Oregon courts granted relief regarding a compensatory fine and denied relief on all other grounds. Resp't Ex. 198; Resp't Ex. 200 at 21; Resp't Exs. 201-02.
On March 17, 2020, Petitioner sought federal habeas relief in this action.
DISCUSSION
In his Amended Petition, Petitioner asserts one Ground for Relief and alleges that the trial court violated his due process rights when it imposed a lengthier aggregate sentence after Petitioner's successful challenge on direct appeal. Respondent argues that the trial court denied Petitioner's claim in a decision that is entitled to deference and he is not entitled to habeas relief.
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 “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.'”). To meet this highly deferential standard, a petitioner must demonstrate that the state court's ruling “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011);
Under well-established Supreme Court precedent, the right to due process “'requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.'” Alabama v. Smith, 490 U.S. 794, 798 (1989) (quoting North Carolina v. Pearce, 395 U.S. 711, 725 (1969)). The mere fact that a defendant receives a lengthier sentence after a successful direct appeal does not establish vindictiveness on the part of the trial court. See Texas v. McCullough, 475 U.S. 134, 138 (1986) (“The Pearce requirements thus do not apply in every case where a convicted defendant receives a higher sentence on retrial.”). Rather, “'whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for [] doing so must affirmatively appear'” on the record. Smith, 490 U.S. at 798 (quoting Pearce, 395 U.S at 726). “Otherwise, a presumption arises that a greater sentence has been imposed for a vindictive purpose - a presumption that must be rebutted by ‘objective information ... justifying the increased sentence.'” Smith, 490 U.S. at 798-99 (quoting McCullough, 475 U.S. at 142).
In Smith, the Supreme Court clarified that the presumption of vindictiveness arises only when the record reflects “a ‘reasonable likelihood' that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.” Id. at 799 (citation omitted). “Where there is no such reasonable likelihood, the burden remains upon the defendant to prove actual vindictiveness.” Id. For example, a presumption of vindictiveness does not arise when “the first sentence was based upon a guilty plea, and the second sentence follows a trial” because, after a trial, “the judge may gather a fuller appreciation of the nature and extent of the crimes charged.” Smith, 490 U.S. at 795, 801.
In this case, the trial court imposed sentence after a full-blown trial on sentencing factors, which included the presentation of evidence that was not before the court during the first sentencing hearing. The trial court explicitly disavowed any intent to “punish” Petitioner for exercising his appeal rights and explained that: 1) the court “had an opportunity to hear from the victims” during the sentencing trial; 2) the court had gained “a much greater understanding of the facts and the harm” caused by Petitioner's crimes, including “impacts” on TC and Cathleen, the extended family, and the community; and 3) the “community” had reviewed the facts presented and “found many additional aggravating facts beyond what the court originally did.” Resp't Ex. 111 at 225. Thus, the trial court's explanation and its reasons for the sentence imposed appear affirmatively in the record and dispel any presumption of vindictiveness. As explained with approval in Smith, the trial court here gained a “fuller appreciation of the nature and extent of the crimes charged” and the impacts those crimes had on the victims. Smith, 490 U.S. at 801; see also McCullough, 475 U.S. at 140 (“Here, the second sentencer provides an on-the-record, wholly logical, nonvindictive reason for the sentence [and] stated candidly her belief that the 20-year sentence respondent received initially was unduly lenient in light of significant evidence not before the sentencing jury in the first trial.”).
Petitioner nevertheless argues that the trial court's comments at sentencing created a reasonable likelihood of vindictiveness, because the trial court “admonished” him for pursuing appeals and post-conviction relief. Pet'r Brief at 31. Notably, the trial court's comments were made in response to defense counsel's assertion that Petitioner was truly remorseful for what he had done to his daughter and wife. The trial court responded that it was “impossible to believe” Petitioner felt remorseful and emphasized that Petitioner had attempted “to manipulate both victims in the case” throughout the proceedings and did not appear to “have any remorse” for the crimes he committed. Resp't Ex. 111 at 255. The trial court believed that Petitioner would not be “thinking about this event” or thinking about “closure for [his] family” and instead would focus only on how he could “get out of custody” through “appeals and writing [his] briefs,” which the court recognized Petitioner was “entitled” to pursue. Resp't Ex. 111 at 256. Taken in context, the trial court's comments do not raise a likelihood of vindictiveness but rather its belief that Petitioner lacked any actual remorse for raping his daughter and threatening his wife with violence.
Regardless, even if a presumption of vindictiveness arose from such comments, it is rebutted by objective evidence of record supporting Petitioner's sentence. Petitioner's first sentencing lasted two days and consisted of two witnesses and six exhibits, while Petitioner's second sentencing involved a two-day jury trial with eight witnesses, including TC and Cathleen, and twenty-two exhibits in support of twenty-four aggravating factors. Compare Resp't Ex. 104 at 22-106 with Resp't Ex. 55-276 and Resp't Ex. 111 at 6-213.
During trial, Cathleen testified that Petitioner was the disciplinarian in the family, kept them isolated from others, and physically abused her and the children. Resp't Ex. 110 at 107, 111-18, 123-25. Cathleen testified that Petitioner warned her not to tell the police “anything” about his abuse of TC and she feared he would hurt or kill her if she did not comply. Resp't Ex. 110 at 108-09, 114, 125-26, 137, 162-63, 168-70. Cathleen also testified about Petitioner's prohibited contacts with TC after his arrest and his attempts to dissuade TC from cooperating with law enforcement authorities. Resp't Ex. 110 at 146-53. Cathleen further testified that when she told TC about the existence of the videotapes, TC was “[m]ore upset than I've ever seen anybody in my life.” Resp't Ex. 110 at 164-66. Finally, Cathleen testified that she, TC, and her family lived in fear while Petitioner was a fugitive, afraid that he might return and hurt or kidnap her sons or the baby born to TC. Resp't Ex. 110 at 175-80, 184-86.
TC testified at length about Petitioner's abuse, both physical and sexual, and its devastating effects on her and her family. Resp't Ex. 111 at 37-41, 44, 51-53. TC also testified that when Petitioner contacted her after his arrest, she felt guilty about reporting the abuse and thought it was her responsibility to keep the family together. Resp't Ex. 111 at 64-65, 75-76, 83.
TC testified that Petitioner encouraged her to accuse other family members of abusing her and to claim that she initiated sexual contact with Petitioner, and that Petitioner developed a “code” to communicate with her and influence her statements to law enforcement authorities. Resp't Ex. 111 at 67-83. TC testified that that she felt “terrible,” like a “liar and a freak,” for telling untruths about Petitioner's abuse and accusing others of abusing her. Resp't Ex. 111 at 88-89. TC also testified that she was devastated after learning of the videotapes and, after Petitioner absconded, she feared Petitioner would return and kidnap her daughter because TC had “turned on him.” Resp't Ex. 111 at 84-88.
The State also introduced sixteen new exhibits at the sentencing trial, including: 1) the letters TC wrote at Petitioner's direction, denying or minimizing his sexual abuse; 2) the notes Petitioner wrote to TC, instructing her what to report about Petitioner's abuse; 3) the secret code Petitioner developed to communicate with and manipulate TC her cooperation with law enforcement authorities; 4) Petitioner's fake suicide note. Resp't Ex. 110 at 4-5, 181-82; Resp't Ex. 111 at 4-5, 67-68, 72-74, 76-78, 82.
Finally, in contrast to Petitioner's first sentencing, the prosecution sought aggravating factors specific to the Coercion and Witness Tampering charges and argued why those aggravating factors applied. Resp't Ex. 111 at 141-65. As the trial court noted, the jury found numerous more aggravating factors that the court did after the original sentencing hearing. Resp't Ex. 111 at 225. This record provides more than sufficient objective evidence to rebut any presumption of vindictiveness. McCullough, 475 U.S. at 144 (“To foreclose reliance on the kind of pertinent new information developed in the second trial would be wholly incompatible with modern sentencing standards.”).
In sum, the trial court provided non-vindictive reasons for the sentence imposed and those reasons are supported by objective evidence of record. Accordingly, the trial court's decision was not an unreasonable application of clearly established federal law and Petitioner is not entitled to habeas relief.
CONCLUSION
For the reasons explained above, the Amended Petition for Writ of Habeas Corpus (ECF No. 53) 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).