Opinion
2:21-cv-01164-CL
01-18-2023
ALLAN RALPH EVANS, Petitioner, v. BRIGITTE AMSBERRY, Respondent.
FINDINGS AND RECOMMENDATION
MARK D. CLARKE UNITED STATES MAGISTRATE JUDGE
Petitioner Allan Ralph Evans (“Petitioner”) brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254 alleging several claims based on trial court error and the ineffective assistance of counsel. For the reasons set forth below, the district judge should DENY the Petition for Writ of Habeas Corpus (ECF No. 1) and decline to issue a certificate of appealability.
BACKGROUND
On March 4, 2014, a Multnomah County grand jury returned an indictment charging Petitioner with two counts of Sexual Abuse in the First Degree. (Resp't Exs. (ECF No.14), Ex. 102.) The charges arose from Petitioner's conduct toward his niece, “EE”, on a single occasion between June 20, 2003, and June 19, 2005. (Id.) Petitioner pleaded not guilty to both counts and proceeded to a bench trial in December 2014.
The State built its case primarily on the testimony of EE, who was eighteen at the time of trial. (Resp't Ex. 105 at 39.) EE testified that when she was seven or eight years old, she attended a family birthday party and then stayed the night with her uncle, Petitioner, who at that time lived alone. (Id. at 50-51, 54.) EE recalled that they rented a movie from a local video store and that Petitioner had put his arm around her as she watched the movie in her pajamas. (Id. at 50-51.) EE testified that before going to bed, Petitioner asked her to change into one of his t-shirts, which she did. (Id. at 50.) EE testified that as they lay in Petitioner's bed, he “put his hands on my vagina and rubbed it, and then . . . proceeded to take my hand and put it on his penis and rub it.” (Id.) EE clarified that the touching had involved “direct contact” underneath her clothing and that Petitioner had placed her hand on his erect penis underneath his clothing. (Id. at 50, 52.)
When citing Respondent's Exhibits, the Court uses the exhibit-assigned pagination in the lower right corner.
EE recalled that immediately after the sexual touching, she “didn't really think anything of it” and “didn't know there was anything wrong” because she “trusted [her] uncle[.]” (Id. at 54, 72.) She also recalled that a few months after the incident, Petitioner told her not to tell anyone. (Id. at 69.) EE testified that it was not until several years later, when she was twelve years old, that she began to recognize the significance of Petitioner's actions and told her best friend. (Id. at 56-57, 59, 74.) EE recalled that she also told a close friend and her boyfriend when she was a sophomore in high school. (Id. at 56-59.) EE testified that she finally reported the sexual abuse to her parents in October 2013, when she was a high school senior. (Id. at 55, 60-61.)
EE's best friend testified at trial, explaining that during a sleepover when she was eleven or twelve years old, EE told her that when she stayed the night with Petitioner, he made her sleep in his bed with him, would not allow her to wear her pajamas, and made her wear his t-shirts. (Resp't Ex. 106 at 30.) EE told her best friend during the sleepover that “she knew something wasn't right about the way she was being treated” but did not disclose the specific type of touching that had occurred. (Id.)
EE's boyfriend testified at trial that EE told him that Petitioner had touched her sexually. (Resp't Ex. 105 at 148.) EE's close friend testified that during EE's junior year of high school, EE told her that her uncle “had done things to her” that were sexual in nature. (Resp't Ex. 106 at 45.)
Following EE's disclosure, her parents made a report to the Child Abuse Hotline, which then was referred to law enforcement. (Resp't Ex. 105 at 132-33, 163; Resp't Ex. 106 at 10-20.) Police interviewed Petitioner, who confirmed that EE had spent the night at his home after a party. (Resp't Ex. 105 at 165.) Petitioner told the interviewing officer that they had watched a “kids movie” and that EE had asked if he had any pajamas. (Id. at 166.) Petitioner told the officer that he had given EE a t-shirt to wear, tucked her in, and gone to sleep on the couch while EE slept in his bed. (Id.)
Shortly after the interview, Petitioner called his sister, Mary Sebastian (“Sebastian”). (Resp't Ex. 106 at 57.) Sebastian testified that Petitioner was “very upset” and yelling during the phone call, and that he repeatedly asked, “why do they keep bringing up the past?” (Id.) Sebastian testified that she “didn't say much” and “just listened,” and that Petitioner never denied EE's allegations during the call or during subsequent conversations. (Id.) Notably, Sebastian twice volunteered testimony that implied that she did not believe Petitioner. (Id. at 59, 62-63.)
Law enforcement also interviewed EE, who gave a substantially similar account to that described in her testimony at trial. (Id. at 74-80.) Law enforcement then referred EE to CARES Northwest, where she was interviewed by a child abuse interviewer. (Id. at 20-21, 84, 87-88.) That interviewer also elicited from EE a description of the abuse that was largely consistent with her trial testimony. (Id. at 100-09.) The State played a video recording of the CARES interview for the trial court. (Id. at 89.)
Petitioner testified in his own defense, describing the breakdown of his relationship with his brother, EE's father, over providing care for their elderly mother, and suggesting that his brother was behind EE's allegations. (Resp't Ex. 107 at 16-23, 50-55.) Petitioner recalled the night in question, confirming that EE had spent the night in his home after a birthday party and that they had watched a children's movie before going to bed separately-Petitioner on the couch and EE in Petitioner's bed. (Id. at 27-29.) Contrary to his statements to law enforcement, however, Petitioner denied giving EE a t-shirt to wear, testifying instead that EE had gone to bed in her pajamas. (Id. at 28, 46-49.) Petitioner flatly denied ever having abused EE and denied Sebastian's recollection of the phone call after his interview with law enforcement. (Id. at 24, 4344.)
The trial court ultimately found Petitioner guilty on both counts of Sexual Abuse in the First Degree. (Id. at 157-58.) In a separate proceeding, the trial court sentenced Petitioner to a custodial term totaling seventy-five months and a lengthy term of post-prison supervision. (Resp't Ex. 101 at 4-5; Resp't Ex. 108 at 7-8.)
Petitioner filed a direct appeal, raising four assignments of error based solely on state law. First, Petitioner alleged that the trial court erred by excluding as hearsay his statements denying the abuse allegations to Officer Legler, arguing that the “rule of completeness” codified at Oregon Evidence Code 106 required their admission. (Resp't Ex. 109 at 15-20.) Second, Petitioner alleged that the trial court erred by permitting Sebastian to testify that she did not believe Petitioner, arguing that such testimony constituted impermissible vouching. (Id. 23-27.) Third, Petitioner alleged that the trial court plainly erred by entering separate convictions for each count of sex abuse in the first degree because Oregon law required merger. (Id. at 30-34.) And fourth, Petitioner alleged that the trial court erred by imposing terms of post-prison supervision that exceeded the statutory maximum. (Id. at 39-41.)
In a written opinion, the Oregon Court of Appeals granted relief as to Petitioner's fourth assignment of error, concluding that the trial court had imposed a term of post-prison supervision that exceeded the statutory maximum by seventy-five months. State v. Evans, 281 Or.App. 771, 772-73 (2016). The appellate court rejected Petitioner's other assignments of error without discussion. Id. The Oregon Court of Appeals thus remanded for resentencing but otherwise affirmed Petitioner's convictions. Id. at 773. The Oregon Supreme Court denied review. State v. Evans, 360 Or. 752 (2017).
Petitioner then filed a petition for post-conviction relief. (Resp't Ex. 116.) In his counseled amended petition, Petitioner asserted three ineffective assistance of counsel claims, including a claim that trial counsel was ineffective when he did not object to, move to strike, or seek an instruction with respect to “vouching evidence offered by the state”-specifically, Sebastian's comments implying that she did not believe Petitioner. (Resp't Ex. 117 at 5-6.) Petitioner also asserted that counsel was ineffective in failing to object to adoptive admission and failing properly to argue a hearsay objection. (Id. at 3-4, 6-8.) After an evidentiary hearing, the postconviction court rejected Petitioner's ineffectiveness claims and denied relief. (Resp't Exs. 126, 127.)
Petitioner appealed, raising in a counseled brief and a pro se supplemental brief challenges to the postconviction court's denial of his ineffective assistance claims. (Resp't Exs. 128, 129.) The Oregon Court of Appeals affirmed without opinion. (Resp't Ex. 134.) Petitioner then petitioned the Oregon Supreme Court, raising a single question for review:
Question Presented: In the circumstances of this case, was trial counsel ineffective and inadequate for failing to object on the basis of a witness commenting on the credibility of the defendant when she testified that she told her son she did not believe the defendant because he had not denied committing the charged crime?(Resp't Ex. 132 at 10-11.) The Oregon Supreme Court denied review. (Resp't Ex. 133.)
On August 6, 2021, Petitioner filed a pro se Petition for Writ of Habeas Corpus in this Court. In the body of the petition, Petitioner asserts three grounds for relief based on trial court error:
Ground One: The trial court erred by excluding evidence that Defendant denied the sex abuse allegations to Officer Leglar.
Supporting Facts: As soon as I heard the allegations against me, I explained that my niece spent [one] night at my house on 5-5-2004. I slept on the couch, she slept in my bed. I tucked her in, but did not touch her inappropriately. My trial counsel erred by not arguing the hearsay objection.
Ground Two: The trial court erred by permitting Sebastian to testify that she did not believe Defendant.
Supporting Facts: My sister vouched testimony that she did not believe my innocence because I did not deny the allegations against me right away. I did deny it to her, but later than a week.
Ground Three: The trial court plainly erred by entering separate convictions for each count of sex abuse in the [First] Degree.
Supporting Facts: Defendant did not preserve his [third] assignment of error.(Pet. at 5-8.) Petitioner also asserts in an attachment to the petition three claims based on the ineffective assistance of counsel:
First Claim of Ineffective Assistance: Petitioner was denied “due process” and effective and meaningful assistance of counsel in violation of his rights under article 1, 11 of the Oregon Constitution and Six and Fourteenth Amendments to the United States Constitution when [trial counsel] failed to object to adoptive admission.
Second Claim of Ineffective Assistance: Petitioner was denied “due process” and effective and meaningful assistance of counsel in violation of his rights under article 1, 11 of the Oregon Constitution and Six and Fourteenth Amendments to the United States Constitution when [trial counsel] failed to object to vouching evidence.
Third Claim of Ineffective Assistance: Petitioner was denied “due process” and effective and meaningful assistance of counsel in violation of his rights under article 1, 11 of the Oregon Constitution and Six and Fourteenth Amendments to the United States Constitution when [trial counsel] failed to properly argue hearsay objection.(Pet. at 16-19.) Respondent urges this Court to deny habeas relief, arguing that Petitioner's claims fail to allege a federal basis for relief, are procedurally defaulted, or were denied by a state-court decision entitled to deference. (Resp. to Pet. for Writ of Habeas Corpus (ECF No. 18), at 6-16.)
The Court uses the ECF-assigned pagination when citing the petition and the parties' briefing.
DISCUSSION
I. Grounds One, Two, and Three Fail to Allege a Federal Basis for Relief
A. Legal Standards
“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67 (1991) (simplified); see also 28 U.S.C. 2254(a) (instructing that federal courts “shall entertain an application for writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States”). Habeas relief is not available for alleged errors interpreting or applying state law. See Estelle, 502 U.S. at 67 (instructing that “it is not the province of a federal habeas court to reexamine state court determinations on state law questions” and reaffirming that “federal habeas corpus relief does not lie for errors of state law”) (simplified); see also Loftis v. Almager, 704 F.3d 645 (9th Cir. 2012) (holding that “[i]t is axiomatic that habeas relief lies only for violations of the Constitution, laws, or treaties of the United States; errors of state law will not suffice”). A habeas petition therefore “must allege a deprivation of one or more federal rights to present a cognizable federal habeas corpus claim.” Burkey v. Deeds, 824 F.Supp. 190, 192 (D. Nev. 1993); see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (explaining that “it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts”).
B. Analysis
In Grounds One, Two, and Three, Petitioner asserts that the trial court erred when it excluded evidence that Petitioner denied EE's allegations to law enforcement, when it allowed Sebastian to offer vouching testimony that she did not believe Petitioner, and when it entered separate convictions on each count of first-degree sexual abuse. (Pet. at 6-8.) Petitioner does not identify a federal basis for relief in the petition nor does he argue in his supporting brief that he is entitled to relief under any provision of federal law. As noted above, however, Petitioner raised Grounds One, Two, and Three during his direct appeal proceedings and it appears he now seeks to renew the arguments presented in state court, all of which were grounded in state law, in support of those claims. (Id. at 29-48.) Because Petitioner does not allege or otherwise argue that the trial court's alleged errors amounted to a violation of any provision of federal law, he fails to present a cognizable basis for habeas relief. See Clayton v. Biter, 868 F.3d 840, 845 (9th Cir. 2017) (explaining that a habeas petition is not cognizable “where the petitioner fails to allege a federal claim”). The district judge thus should deny habeas relief as to Grounds One, Two, and Three. II. Petitioner's First and Third Ineffective Assistance Claims are Procedurally Defaulted
The Court must liberally construe pro se habeas filings. Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006). However, even if the Court could construe the petition to state federal bases for relief on Grounds One, Two, and Three, Petitioner at no point alerted the state appellate courts that any of these claims were grounded in federal law, nor even did he allude to his federal constitutional rights more broadly. Petitioner therefore failed fairly to present any federal claims for relief with respect to Grounds One, Two, and Three, and therefore such claims are procedurally defaulted. See Baldwin v. Reese, 541 U.S. 27, 124 (2004) (holding that fair presentation ordinarily requires the petitioner to clearly identify federal issues for review in the state court brief); Fields v. Waddington, 401 F.3d 1018, 1020-21 (9th Cir. 2005) (explaining that the petitioner “fairly presented federal claims only if he alerted the state court that his claims rested on the federal Constitution”).
A. Legal Standards
A habeas petitioner generally must exhaust all remedies available in state court, either on direct appeal or through collateral proceedings, before a federal court may consider granting habeas relief. See 28 U.S.C. § 2254(b)(1)(A) (instructing that a court may not issue a writ of habeas corpus on behalf of an individual in state custody unless “the applicant has exhausted the remedies available in the courts of the State”); see also Smith v. Baldwin, 510 F.3d 1127, 1137 (9th Cir. 2007) (noting that a prisoner must first exhaust available remedies before a federal court may consider the merits of a habeas petition). Generally, a petitioner satisfies the exhaustion requirement “by fairly presenting the federal claim to the appropriate state courts . . . in the manner required by the state courts, thereby ‘afford[ing] the state courts a meaningful opportunity to consider allegations of legal error.'” Casey v. Moore, 386 F.3d 896, 915-16 (9th Cir. 2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 257 (1986)) (alteration in original); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (holding that “[b]ecause the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, . . . state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the state's established appellate review process”).
If a petitioner failed to present his claims to the state courts in a procedural context in which the merits of the claims were actually considered, the claims have not been fairly presented to the state courts and therefore are not eligible for federal habeas corpus review. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In this respect, 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. Id. at 446; see also Coleman v. Thompson, 501 U.S. 722, 750 (1991). An individual in state custody is barred from raising procedurally defaulted claims in federal court unless she “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law or demonstrate that failure to consider the claims will result in fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.
B. Analysis
In his First Claim of Ineffective Assistance of Counsel, Petitioner alleges that his trial attorney was ineffective in failing to object to an adoptive admission-specifically, Sebastian's testimony that Petitioner “had not denied the allegations and had instead made comments to the effect that he did not understand why the past was being brought up.” (Pet. at 16.) In his Third Claim of Ineffective Assistance of Counsel, Petitioner alleges that trial counsel was ineffective in failing to properly argue against the State's hearsay objection when he attempted to elicit testimony from a police officer that Petitioner “denied any inappropriate touching during that officer's initial encounter.” (Pet. at 18.)
Petitioner raised his First and Third Claims of Ineffective Assistance of Counsel during his postconviction proceedings. (Resp't Ex. 117 at 3-4, 6-8.) Fair presentation, however, required Petitioner to raise both claims to the Oregon Supreme Court. Petitioner does not dispute that he did not include his first and third ineffectiveness claims in his petition for review to the Oregon Supreme Court, and Oregon's highest court thus did not have an opportunity to pass on the merits of those claims. (Resp't Ex. 132.) Petitioner therefore failed fairly to present his First and Third Claims of Ineffective Assistance of Counsel, and because he can no longer do so, they are procedurally defaulted. See OR. R. APP. P. 9.05(2) (instructing that petitioner for review to the Oregon Supreme Court must be filed within thirty-five days of the decision by the Oregon Court of Appeals). Because Petitioner provides no argument or authority on which this Court might excuse the default, the district judge should deny habeas relief as to Petitioner's First and Third Claims of Ineffective Assistance of Counsel.
III. The State-Court Decision Denying Relief on Petitioner's Second Ineffective Assistance Claim is Entitled to Deference
A. Legal Standards
1. Deference to State Court Decisions
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) prohibits relitigation of any claim adjudicated on the merits in state court unless such adjudication 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).
A state-court decision is “contrary to” clearly established federal law if it “applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases,” or if it “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” of clearly established federal law occurs if the state court correctly identifies the governing legal principle but misapplies that principle to the facts at hand. See Id. at 407 (holding that “a state-court decision involves an unreasonable application of this Court's precedent if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case”). The “unreasonable application” clause requires the state court's decision to be more than merely erroneous or incorrect. See Id. at 411 (noting that “a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly”). Rather, the state court's application of clearly established federal law must be objectively unreasonable. See Id. at 409 (instructing that a federal habeas court making the ‘unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable”).
A federal habeas court may not disturb a state-court decision on factual grounds unless the state court's decision was based on an unreasonable determination of the facts in light of the evidence before it. 28 U.S.C. § 2254(d)(2). Under the “unreasonable determination” clause, “[t]he question . . . is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). The Ninth Circuit has clarified that when a petitioner challenges the substance of a state court's findings, the federal habeas court “must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.), cert denied, 543 U.S. 1038 (2004).
“Determining whether a state court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning.” Harrington v. Richter, 562 U.S. 86, 98 (2011). Where a state court decision is issued without explanation, “the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Id. Where, however, the highest state court issues a decision on the merits unaccompanied by its reasons for the decision, a federal habeas court must “look through” to the last reasoned decision issued in a lower state court, and presume the unexplained decision adopted the same reasoning. See Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).
The AEDPA thus imposes “a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (simplified); see also White v. Wheeler, 577 U.S. 73, 76-77 (2015) (acknowledging that the “AEDPA, by setting forth necessary predicates before a state-court judgment may be set aside, erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court”) (simplified). “The petitioner carries the burden of proof.” Pinholster, 563 U.S. at 181.
2. Ineffective Assistance of Counsel
The clearly established federal law governing ineffective assistance of counsel claims is set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Williams, 529 U.S. at 391 (noting that “[i]t is past question” that the rule established in Strickland is clearly established federal law determined by the Supreme Court of the United States). To establish a claim of ineffective assistance under Strickland, a habeas petitioner must satisfy a two-pronged test. First, the petitioner must show that counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 686. Such a showing requires the petitioner to overcome a strong presumption that the challenged conduct falls within the “wide range of reasonable professional assistance; that is the [petitioner] must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Id. at 689. The first prong thus is satisfied only if “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed . . . by the Sixth Amendment.” Id. at 687.
Second, a petitioner must demonstrate prejudice: “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome.” Id. Therefore, it is not enough if counsel's errors had only “some conceivable effect on the outcome of the proceeding.” Id. at 693. Counsel's errors must have been “so serious as to deprive [the petitioner] of a fair trial, a trial whose result is reliable.” Id. In making the prejudice determination, the court must “consider the totality of the evidence before the judge or jury.” Id. at 695.
Analyzing an ineffective assistance of counsel claim under the AEDPA is “all the more difficult” because both standards are “highly deferential and when the two apply in tandem, review is ‘doubly' so.” Richter, 562 U.S. at 105 (citations omitted). The question under such circumstances “is not whether counsel's actions were reasonable.” Id. Rather, the court must determine “whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id.
B. Analysis
In his Second Claim of Ineffective Assistance of Counsel, Petitioner alleges that his trial attorney violated his right to effective counsel when he failed to object to “vouching evidence.” (Pet. at 17.) Specifically, Petitioner alleges that trial counsel failed to exercise reasonable professional skill and judgment when he did not object, move to strike, or seek an instruction from the trial court in response to Sebastian's testimony implying that she did not believe Petitioner. (Id.) Petitioner claims that such failures prejudiced him “because this case amounted to a credibility contest[.]” (Id.)
Oregon's rule against vouching “is a judicially created rule of evidence” that bars witnesses “from expressing a view on whether another witness is ‘telling the truth.'” State v. Black, 364 Or. 579, 585, 585 (2019); State v. Murphy, 319 Or.App. 330, 335 (2022) (quoting State v. Middleton, 294 Or. 427, 438 (1983)). The rule is intended to safeguard the jury's role as “the sole arbiter of witness credibility” and therefore “prohibits a witness from making a direct comment, or one that is tantamount to a direct comment, on another witness's credibility.” Black, 364 Or. at 585 (first citing State v. Chandler, 360 Or. 323, 330 (2016), then citing State v. Beauvais, 357 Or. 524, 545 (2015)). Although “the exact contours of [the vouching rule] can be ‘difficult to trace[,]'” the Oregon Supreme Court has made clear that vouching testimony “is categorically inadmissible.” Black, 364 Or. at 587. “Whether proffered testimony constitutes impermissible vouching is measured by whether it conveys one witness's opinion of the truthfulness of another witness, or, instead, provides information that permits the jury to make that determination.” Id. at 587-88 (emphasis added).
As noted above, Sebastian testified at trial about receiving a phone call from Petitioner after his initial interview with law enforcement. (Resp't Ex. 106 at 57.) Sebastian described Petitioner's agitation during the call and noted that rather than denying the allegations, Petitioner repeatedly asked why “they ke[pt] bringing up the past[.]” (Id.) When the prosecutor asked whether Petitioner had denied sexually abusing EE during subsequent conversations, Sebastian volunteered:
No. But he said, why are you; I would never leave you hanging like this. That is one thing that he said, but he never said I didn't do it. And until after my son asked me why don't you believe [Petitioner], and I said because he's never said I didn't do it.(Id. at 59.) Trial counsel did not object.
During cross-examination, Sebastian again volunteered testimony concerning Petitioner's initial delay in denying the allegations, stating:
- - if you didn't do something, you would say why are they even accusing me, I didn't do it. I'm his sister. He has never - - he never said I didn't do it until my son asked me why don't you believe Uncle Al, and I said because Uncle Al has never told me he did not do it. And after that then Al took, and asked, and told me I didn't do it, but that was like two months later.(Id. at 62-63.) Trial counsel did not move to strike this testimony but instead clarified with Sebastian that Petitioner had in fact denied the allegations to her, albeit “a long time after he was accused.” (Id. at 63.)
During his postconviction proceedings, Petitioner challenged trial counsel's failure to object to Sebastian's testimony that Petitioner had not denied the allegations until after she told her son that she did not believe Petitioner. (Resp't Ex. 117 at 5.) Specifically, Petitioner argued that trial counsel should have objected to Sebastian's comments on direct and should have moved to strike when she repeated them on cross because they were “clearly [inadmissible] vouching evidence” that was “used to detract from Petitioner's credibility in [what ultimately amounted to] a swearing contest[.]” (Id.; Resp't Ex. 118 at 11-12.)
The postconviction court rejected this claim, finding that Petitioner had not proven “that his trial attorney failed to exercise reasonable professional skill and judgment in failing to object to the statements of Sebastian about her son asking why she didn't believe the Petitioner.” (Resp't Ex. 127 at 4.) In a written general judgment, the postconviction court determined that trial counsel “was reasonable in not objecting,” explaining:
[T]he testimony was not vouching. Sebastian was not testifying about the credibility or lack of credibility by another witness. Her statements on direct and on cross-examination were not offered by either party for any particular purpose. Both were volunteered and non-responsive to the questions. It appears that Sebastian was explaining when Petitioner actually denied to her that he had abused [EE]. When Sebastian's son asked her why she didn't believe Petitioner, she responded by saying, because Petitioner had never denied it, was when Petitioner finally denied to her that he had committed the abuse. [The comment] was not being tendered to express an opinion about the Petitioner's credibility but rather to explain the circumstances and timing of his denial. It was not even an out of court expression of an opinion about credibility by Sebastian but rather a response to a question by her son about her opinion. When a person makes an out-of-court statement about the credibility of a witness or non-witness complainant, that statement is subject to the categorical prohibition against vouching evidence only if the statement is offered for the truth of the credibility opinion that it expresses. Put another way, a court does not err in admitting an out-of-court statement as to the credibility of a witness or non-witness complainant if the statement is offered for a relevant, non-opinion purpose[.] State v. Chandler, 360 Or 323 (2016)[.] Given the context of the testimony, trial counsel was not acting unreasonably when counsel did not object to the comments. As this was a bench trial, it was reasonable to move on, trusting the court's ability to give the comments the weight that they deserved - which is to say, no weight at all.(Resp't Ex. 127 at 4-5.) The postconviction court further noted that because the case had been tried to a trial judge who would have known to ignore Sebastian's comments and appeared not to have relied on them to render a verdict, Petitioner also failed to prove prejudice. (Id.)
Upon review, this Court concludes that the postconviction court's ruling was not objectively unreasonable. As noted above, the postconviction court determined that Sebastian's testimony that Petitioner did not deny the allegations until after she told her son that she did not believe Petitioner did not amount to impermissible vouching under Oregon law, and this Court must defer to that ruling. See Woods v. Sinclair, 764 F.3d 1109, 1138-39 (9th Cir. 2014) (noting that a federal habeas court must defer to a state court's ruling if it is based on state law); see also Mendez v. Small, 298 F.3d 1154, 1158 (9th Cir. 2002) (acknowledging that “[s]tate courts are the ultimate expositors of state law, and [federal habeas courts are] bound by the state's construction” on state law matters). Because Sebastian's comments did not constitute impermissible vouching, trial counsel's failure to object on that basis was not ineffective. See Juan H. v. Allen, 408 F.3d 1262, 1273-74 (9th Cir. 2005) (noting that counsel is not ineffective for failing to raise a meritless objection). Moreover, even if Sebastian's comments had warranted objection, this case was tried to a judge who would have recognized, and disregarded, testimony intended to detract from Petitioner's credibility. Sebastian's comments thus likely had little bearing on the outcome of trial. Indeed, there is no evidence in the record to suggest that the trial court at all relied on Sebastian's comments in reaching a verdict. The postconviction court's decision denying relief therefore is not “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). Accordingly, the postconviction court's decision is entitled to deference and the district judge should deny habeas relief on Petitioner's Second Claim of Ineffective Assistance.
Because the Oregon Court of Appeals affirmed without opinion, this Court must “look through” to the last reasoned decision on the issue, i.e., the postconviction court's denial of Petitioner's ineffectiveness claims. See Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) (explaining that where the highest state court issues a decision on the merits unaccompanied by its reasons for the decision, a federal habeas court must “look through” to the last reasoned decision issued in a lower state court, and presume the unexplained decision adopted the same reasoning).
CONCLUSION
Based on the foregoing, the district judge should DENY the Petition for Writ of Habeas Corpus (ECF No. 1), and should DISMISS this proceeding, with prejudice. Petitioner has not made a substantial showing of the denial of a constitutional right, and therefore the district judge also should DENY a Certificate of Appealability. 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 Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation.