Opinion
2:17-cv-02016-JR
06-14-2022
CECIL FAIRLEY, Petitioner v. TROY BOWSER, Superintendent, Two Rivers Correctional Institution, Respondent.
FINDINGS AND RECOMMENDATION
Jolie A. Russo United States Magistrate Judge
Petitioner, an adult in the custody of the Oregon Department of Corrections, brings this 28 U.S.C. § 2254 habeas corpus action challenging his 2010 Washington County conviction. For the reasons that follow, the Second Amended Petition for Writ of Habeas Corpus (ECF No. 30) should be DENIED.
BACKGROUND
I. Procedural History
On April 28, 2000, a Washington County grand jury indicted petitioner on thirty-two separate counts: two counts of rape in the first degree by forcible compulsion; four counts each of sexual abuse in the second degree, rape in the third degree, and sodomy in the third degree; six counts of delivery of cocaine to a minor; eight counts of delivery of marijuana to a minor; and one count each of kidnapping in the second degree, tampering with a witness, unlawful use of a weapon, and assault in the fourth degree. Respondent's Exhibit (“Resp. Exh.”) 102. The case was tried to a jury. At the close of the state's case, the trial judge granted a judgment of acquittal on the charge of unlawful use of a weapon. Trial Transcript (“Tr.”) 349. The jury found petitioner not guilty of tampering with a witness, assault in the fourth degree, and one of the third degree counts of sodomy, but otherwise found petitioner guilty as charged. Tr. 595-97. The trial judge imposed sentences totaling 360 months of imprisonment. Resp. Exh. 101, pp. 9-14.
The trial transcript consists of three continuously paginated volumes which appear in the record as Respondent's Exhibits 103, 104, and 105. Citations are to the original transcript pagination, which appears in the upper right-hand corner.
After the trial judge imposed sentence, petitioner moved for a new trial, citing newly discovered evidence. Resp. Exh. 107, pp. 68-71. The trial judge denied the motion without a hearing or reviewing any response from the state. Resp. Exh. 107, p. 68.
Petitioner filed a direct appeal. Appellate counsel asserted six assignments of error. Resp. Exh. 107. Petitioner filed a pro se supplemental brief setting forth four additional assignments of error. Resp. Exh. 108. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. Fairley, 250 Or.App. 570, rev. denied, 353 Or. 127 (2012). Petitioner filed a petition for writ of certiorari, which the Supreme Court denied. Fairley v. Oregon, 134 S.Ct. 75 (2013).
Petitioner then sought state post-conviction relief (“PCR”). In his initial pro se PCR petition, petitioner alleged forty-four claims of ineffective assistance of trial counsel and eight claims of ineffective assistance of appellate counsel. Resp. Exh. 115. Appointed counsel filed an amended PCR petition alleging ten claims of ineffective assistance of trial counsel. Resp. Exh. 116. Petitioner asked the PCR trial court multiple times under Church v. Gladden, 244 Or. 308 (1966) to order his appointed counsel to raise the rest of the claims alleged in the original pro se petition, as well as additional claims, but the PCR trial judge declined to do so. Resp. Exhs. 131134. Following an evidentiary hearing on the claims alleged in the amended PCR petition, the PCR trial judge granted relief as to one claim, vacating petitioner's convictions for two of the counts of delivery of marijuana to a minor. Resp. Exh. 135, pp. 39-55. The PCR trial judge denied relief on the remaining claims. Id.
The PCR court left petitioner's overall sentence unchanged. Id.
On appeal, appointed counsel asserted one assignment of error. Resp. Exh. 137. Petitioner filed a pro se supplemental brief assigning error to the denial of two additional claims, and to the denial of his Church motions as to the claims alleged in the original pro se petition. Resp. Exh. 138. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Fairley v. Myrick, 285 Or.App. 652, rev. denied, 362 Or. 94 (2017).
On December 19, 2017, petitioner filed his habeas corpus action in this Court. The Court appointed counsel, and on November 9, 2018, counsel filed a Second Amended Petition alleging six grounds for relief, several with multiple sub-claims. (ECF No. 30). Respondent filed an Answer and Response, arguing that most of the claims were procedurally defaulted and that the two claims which were properly exhausted in state court were denied in decisions entitled to deference. (ECF No. 31). On October 8, 2019, counsel filed a Third Amended Petition where he deleted one sub-claim and added a seventh ground for relief, that his conviction on non-unanimous jury verdicts violated his Sixth Amendment rights. (ECF No. 49).
On June 2, 2020, this Court entered an Order staying the case pending a decision by the United States Supreme Court in Edwards v. Vanney, No. 19-5807. (ECF No. 64). On June 22, 2021, the Court lifted the stay and this action proceeded.
Currently before the Court are the seven grounds for relief alleged in the Third Amended Petition:
Ground One: Trial counsel provided constitutionally ineffective assistance of counsel in the following respects:
1. Counsel was ineffective in litigating the motion to sever by not adequately arguing: (a) the prejudicial nature of the joinder (e.g., drugs, scales, and extensive photographic exhibits showing drugs and drug paraphernalia, presence, and discharge of gun vis-a-vis sex charges); and (b) petitioner's desire to testify and present other evidence in defending against the two counts of rape in the first degree and one count of kidnapping in the second degree.
2. Counsel was ineffective in failing to move to preclude evidence of prior bad acts.
3. Counsel was ineffective in failing to object to the jury instruction on rape in the first degree.
4. Counsel was ineffective in failing to have the jury instructed on a lesser-included offense for the rape in the first degree charges.
5. Counsel was ineffective in failing to object to witness Detective Adler's testimony vouching for the victim.
6. Counsel was ineffective in failing to object to the prosecutor's closing argument which included: (a) vouching for the victim's credibility; (b) providing expert testimony not presented at trial by arguing petitioner engaged in “grooming” the victim; (c) improperly arguing for community safety as a reason to return a guilty verdict; (d) disparaging the defense and defense counsel; and (c) shifting the burden of proof.
7. Counsel was ineffective in failing to demand exculpatory Brady evidence relating to the victim, including evidence of prior false accusations of sexual abuse.
Ground Two: Violation of Petitioner's rights under the Due Process Clause due to prosecutorial misconduct in the following particulars:
1. The prosecutor elicited testimony about an alleged prior, uncharged kidnapping incident.
2. The prosecutor elicited testimony from the victim reciting hearsay as to an uncharged attempt to tamper with a witness.
3. The prosecutor introduced evidence of recorded jail calls which included improper and inadmissible evidence of prior bad acts.
4. The prosecutor elicited improper and prejudicial testimony that petitioner had previously been imprisoned on an unrelated case.
5. The prosecutor's closing argument was improper in multiple respects: (a) repeatedly vouching for the victim's credibility; (b) providing expert testimony regarding “grooming” that was not presented at trial; (c) improperly arguing community safety as a reason to return a guilty verdict; (d) repeatedly disparaging the defense and defense counsel; and (e) shifting the burden of proof.
Ground Three: The prosecutor violated petitioner due process rights under Brady v. Maryland by failing to disclose evidence that the victim had falsely accused another person of sexual abuse.
Ground Four: Appellate counsel provided constitutionally ineffective assistance of counsel in the following respects:
1. Appellate counsel failed to adequately argue the prejudicial joinder of the charged offenses and failed to federalize the constitutional basis of the claim.
2. Appellate counsel refused to assert as error the trial court's denial of petitioner's motion for judgment of acquittal on the charges of rape in the first degree and kidnapping in the second degree.
3. Appellate counsel failed to assert as error the trial court's denial of petitioner's objection and motions for mistrial concerning evidence of his prior jail custody status and the prosecutor's presentation of evidence that a co-defendant was found guilty of some of the drug delivery charges being tried against petitioner.
Ground Five: The trial and appellate courts erred in rejecting petitioner's claim that he was denied due process when the sex crime charges were consolidated with the other charges for trial.
Ground Six: There was insufficient evidence of forcible rape to support conviction on one of the charges of rape in the first degree.
Ground Seven: Petitioner's Sixth Amendment right to a fair jury was violated because the convictions for rape in the first degree and kidnapping in the second degree were based upon non-unanimous jury verdicts.
As to the first six grounds for relief, respondent argues that petitioner procedurally defaulted the grounds for relief except two: (1) his claim that trial counsel was ineffective in failing to request a proper jury instruction on the charges of rape in the first degree, and (2) in failing to object to various parts of the prosecutor's closing and rebuttal arguments. Respondent contends the Oregon state courts reasonably denied relief on those claims in decisions that are entitled to deference in this court.
II. Summary of the Evidence
The primary witness, MH, testified that she first met petitioner on a MAX train in late December 2007, when she was fourteen years old, and petitioner was twenty-eight. Tr. 84, 136. MH was riding the train with her friend when petitioner approached and asked to borrow MH's cell phone, which she allowed. Tr. 138, 145, 146-47. After hearing MH and her friend talk about smoking marijuana, petitioner asked them if they wanted to go to his friend's place and “hang out.” Tr. 138. Petitioner intimated that he would provide marijuana. Tr. 139. Petitioner's friend, Chris Hazelton, picked the three up and drove them to his apartment. Tr. 140. They all smoked marijuana together, and after about an hour MH got a strange feeling and decided it was time to go; she faked a phone call, told her friend that MH's sister was having a baby, and then left. Tr. 141-42. No sexual activity occurred between petitioner and MH that day. Tr. 142.
MH and petitioner began to meet regularly. Tr. 143. On April 20, 2008, MH, and another friend, KJ, met petitioner and Brazelton at Brazelton's apartment. Tr. 150. Petitioner and Brazelton provided the girls with marijuana and cocaine. Tr. 151, 153. After using the drugs, KJ left the apartment, but MH stayed the night; MH and petitioner had vaginal sexual intercourse. Tr. 157.
On April 23, 2008, petitioner and MH argued and MH sent her mother a text message at 2:30 a.m. asking her to come pick MH up. Tr. 161. MH's stepfather, Fred Ball, instead came to pick her up and arrived to find petitioner and MH arguing on the sidewalk. Tr. 287-88. Ball ordered MH to get in his truck and told petitioner that he would kill him if he touched MH again and yelled, “She's only 14.” Tr. 172, 288-89. MH testified that petitioner called her the following morning and asked if she was really fourteen years old, MH said that she was, and the two did not speak for a week. Tr. 163. MH testified that petitioner later told her to tell other people she was 18. Tr. 165.
Petitioner telephoned MH after a week, and she went with him to Brazelton's apartment to get high. Tr. 164. MH stated that her primary goal in life at the time was to get access to drugs. Tr. 164. After that, petitioner and MH began to get together about five days a week, she began thinking of petitioner as her “boyfriend,” and the two regularly had sex. Tr. 164, 173, 175.
Petitioner regularly smoked crystal methamphetamine, which MH had previously avoided. Tr. 167, 175. MH began using methamphetamine, which became her drug of choice, replacing cocaine. Tr. 168. MH believed that petitioner's use of methamphetamines elevated his sex drive and she testified that he “would always just want to go and go and go.” Tr. 184. MH did not want to have intercourse as often as petitioner and would frequently attempt to steer him towards oral sex instead but testified that they would still always end up having vaginal intercourse afterwards. Tr. 177; 185-86.
On one occasion in June 2008, when petitioner and MH were alone in Brazelton's apartment, MH told petitioner she would not have sex with him, and he responded, “Yeah you are.” Tr. 184-85. Petitioner then roughly pushed MH down to the floor and grabbed hold of her shoulders, causing her head to hit the floor. Tr. 184-85. Petitioner then engaged in sexual intercourse with MH. Tr. 185.
Later in June, MH again told petitioner she did not want to have sex with him, and petitioner became angry and the two argued. Tr. 187-88. Petitioner said they were going to have sex despite MH's refusal, resulting in a physical fight, and MH explained, “I don't know how I ended up, but like my pants were off and then we ended up in the dining room and we were having sex[.]” Tr. 188.
In early July, petitioner and MH were at Brazelton's apartment with Brazelton and MH's friend. Tr. 197-98. When MH told petitioner that she did not want to have sex, he became angry and started hitting her. Tr. 198. Once MH was on the floor, petitioner engaged in sexual intercourse with her. Tr. 198. MH's friend came into the room and told petitioner to get off MH, and in response, petitioner shoved the friend out of the room and hit MH, causing her to black out. Tr. 198.
On July 13, 2008, MH was at Brazelton's apartment with petitioner and Brazelton. Tr. 201. When petitioner and Brazelton went into a back room, MH heard the sound of a gun discharging and saw smoke. Tr. 202. Petitioner and Brazelton ran out of the room, and petitioner told MH that they were leaving; MH said she did not want to leave with petitioner, but he dragged her by her hair to the car and they drove away. Tr. 202-03. During the car ride, petitioner told MH to take the blame for the discharged gun and threatened her with physical harm. Tr. 204. The three arrived at the home of Angela Painter, a drug dealer with whom petitioner and Brazelton were acquainted. Tr. 204. MH testified that petitioner forced her into Painter's basement and closed the door. Tr. 213-14. Petitioner told MH he did not want her to leave. Tr. 205. Eventually, MH left the basement and ran down the street; petitioner initially chased her down, but the two ended up going their separate ways. Tr. 205-06.
Detective Loran Andler responded to a complaint about the discharge of the gun in Brazelton's apartment. Tr. 65. Petitioner was later arrested for firing the gun. Tr. 67. While in custody due to the gun incident, petitioner frequently spoke with MH on the telephone, and those calls were recorded. Tr. 73. During those calls, MH told petitioner that she believed she might be pregnant, petitioner acknowledged that he might be the father and seemed happy, but MH turned out not to be pregnant after all. Tr. 75, 212.
At the close of the state's case, the trial judge granted a judgment of acquittal on the unlawful use of a weapon charge but denied petitioner's motion for acquittal on the forcible rape counts and the other remaining charges. The defense presented testimony from five witnesses, who variously testified about the victim's reputation for untruthfulness and petitioner's character. Angela Painter testified that MH's version of what happened in Painter's basement was not truthful. Tr. 406-09. Petitioner did not testify.
DISCUSSION
I. Claims Alleged in the Third Amended Petition But Not Addressed in Petitioner's Briefing
As noted, petitioner's Third Amended Petition alleges seven grounds for relief, some with several sub-claims. Petitioner does not, however, provide argument on all of the claims alleged, nor does he address respondent's arguments as to why relief on those claims should be denied.Specifically, petitioner does not address the ineffective assistance of counsel claims alleged in subclaims two, four, five, and six of Ground One; the prosecutorial misconduct claims alleged in subclaims one, two, three, and four of Ground Two, or any of the ineffective assistance of appellate claims alleged in subclaims of Ground Four. As such, petitioner has not carried his burden of proof with respect to these unargued claims. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (a petitioner bears the burden of proving his claims). In any event, upon a review of the record petitioner is not entitled to habeas relief on these claims.
In his Brief in Support and numerous subsequent filings, petitioner does not directly identify the specific grounds for relief upon which he advances arguments. Upon a thorough review, however, the Court identified the claims addressed in this section as not addressed by petitioner.
Petitioner argues the prosecutor committed misconduct in his closing and rebuttal arguments, which is alleged as a separate claim for relief in subclaim five of Ground Two, but he does not argue the claim in the context of ineffective assistance of counsel for failing to object to the arguments.
II. Procedurally Defaulted Claims
A. Legal Standards
A habeas petitioner must exhaust his claims by fairly presenting them to the state's highest court, either through a direct appeal or collateral proceedings before a federal court will consider the merits of those claims. 28 U.S.C. § 2254(c), Rose v. Lundy, 455 U.S. 509, 519 (1982). “As a general rule, 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 ‘affording 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)).
Generally, when a state allows review of a constitutional violation either on direct appeal or by collateral attack, a prisoner need exhaust only one avenue before seeking habeas corpus relief. Turner v. Compoy, 827 F.2d 526, 529 (9th Cir. 1987). However, if a state “mandates a particular procedure to be used to the exclusion of other avenues of seeking relief” the correct avenue must be fully exhausted. Id. “In Oregon, most trial errors must be raised by direct appeal to the Oregon Court of Appeals.” Kellotat v. Cupp, 719 F.2d 1027, 1030 (9th Cir. 1983). However, violations of a defendant's rights which require a further evidentiary hearing for their determination, such as a claim of ineffective assistance of trial counsel, are appropriately determined upon post-conviction review. Id; State v. McKarge, 78 Or.App. 667, 668, 717 P.2d 656 (1986) (claim of ineffective assistance of counsel may only be resolved in post-conviction proceeding).
If a habeas litigant failed to present his claims to the state court 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 are therefore not eligible for federal habeas corpus review. Edwards v. Carpenter, 529 U.S. 446, 453 (2000); Castille v. Peoples, 489 U.S. 346, 351 (1989). 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. Carpenter, 529 U.S. at 451; Coleman v. Thompson, 501 U.S. 722, 750 (1991). If a petitioner has procedurally defaulted a claim in state court, a federal court will not review the claim unless the petitioner shows “cause and prejudice” for the failure to present the constitutional issue to the state court or makes a colorable showing of actual innocence. Gray v. Netherland, 518 U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992); Murray v. Carrier, 477 U.S. 478, 485 (1986).
B. Analysis
1. Ground One - Ineffective Assistance of Counsel
Petitioner included the ineffective assistance of trial counsel claims alleged in subclaim one, five, and seven of Ground One in his initial pro se PCR petition. Resp. Exh. 115. PCR counsel, however, did not include these claims in the operative, amended PCR petition. Resp. Exh. 116. Because these claims were not included in the amended PCR petition, petitioner failed to present them to the state court in a context in which it could rule on the merits. See Or. Rev. Stat. § 138.550(3) (providing that grounds not asserted in the petition are “deemed waived”); Bowen v. Johnson, 166 Or.App. 89, 92-93 (2000) (holding that the PCR trial court could not grant relief on a claim not alleged in the petition).
Petitioner argues that he nonetheless fairly presented the claims to the PCR trial court by including them in his Church motions. A Church motion, however, does not present claims in a procedural context in which the PCR court can rule on their merits. Instead, the purpose of such a motion is to “notify the post-conviction court that counsel has failed to raise certain grounds for relief and to ask the court to either replace counsel or instruct counsel to raise those grounds for relief.” Bogle v. State, 363 Or. 455, 471 (2018) (emphasis in original). Because the PCR trial court could not rule on the merits of the claims contained in petitioner's Church motion, petitioner did not fairly present these claims and they are therefore procedurally defaulted.
Petitioner did include the ineffective assistance of trial counsel claims alleged in subclaim four and parts of subclaims two and eight of Ground One in his amended PCR petition. Resp. Exh. 116. Petitioner did not, however, assert as error any of those claims to the Oregon Court of Appeals. Resp. Exhs. 137, 138. Petitioner argues that his Pro Se Supplemental Brief expressly sought to exhaust all of his federal issues and that he submitted a supplemental excerpt of the record seeking to ensure that the Oregon appellate court had everything needed to weigh his claims. In support of this argument, petitioner cites Farmer v. Baldwin, 563 F.3d 1042 (9th Cir. 2009). This argument is not well taken. As an initial matter, Farmer is limited to cases involving Balfour briefs; it does not speak to supplement pro se briefs filed pursuant to Or. R. App. P. 5.92. See Justice v. Cain, No. 2:17-cv-01963-AC, 2021 WL 5138182, at *5-6 (D. Or. Aug. 2, 2021) (collecting cases), report and recommendation adopted 2021 WL 5133678 (D. Or. Nov. 2, 2021). Moreover, petitioner did not explicitly incorporate by reference in his pro se supplemental brief all of the claims alleged in the formal amended PCR petition. Accordingly, these grounds for relief are procedurally defaulted.
Under State v. Balfour, 311 Or. 434, 451-52 (1991), counsel is not ethically bound to withdraw when faced with only non-meritorious issues on appeal. Instead, the attorney may file a Section A of an appellant's brief setting forth a short statement of the case sufficient to apprise the appellate court of the jurisdictional basis for the appeal, and the defendant/petitioner may file a Section B identifying any assignments of error he wishes to raise.
2. Ground Two - Prosecutorial Misconduct
In Ground Two, petitioner alleges the prosecutor violated petitioner's right to due process in five different respects. Again, however, although at least some of the claims were included in his initial pro se PCR petition, they were not included in the operative amended PCR petition, and petitioner did not present them to the Oregon appellate courts. For the reasons discussed above, these claims are also procedurally defaulted.
3. Ground Three - Brady v. Maryland Due Process Violation
In Ground three, petitioner alleges that the state violated due process by failing to disclose exculpatory evidence in its possession as required by Brady v. Maryland, 373 U.S. 83 (1963). The evidence in question, M.H.'s accusation of sexual abuse against another person, came to petitioner's trial attorney's attention prior to sentencing.
At the sentencing hearing, petitioner himself testified that his attorney had “indicated to me that he was in a hearing, a DHS hearing where she had accused somebody in her foster care home of raping her. That, based on that, I mean I really I want a new trial for the jury to be able to hear that because I don't know what kind of information they could draw from it, but it's astounding.'' Resp. Exh. 106, pp. 23-24. After sentencing, but before judgment of conviction was entered, counsel moved for a new trial. Resp. Exh. 107, p. 67. In the Memorandum of Law in support of the motion, counsel argued that a new trial was warranted under Oregon law based upon the newly discovered evidence. Resp. Exh. 107, pp. 69-71. Nothing in the motion or memorandum suggested a Brady violation.
In his brief on direct appeal, petitioner reiterated the argument that a new trial should have been granted in light of the new evidence, and additionally argued that the state's failure to provide petitioner with that evidence violated his due process rights under Brady. In response to this argument, the state noted that the due process claim was not properly preserved. Resp. Exh. 109, p. 36.
Errors which are not preserved in the lower court in Oregon will not be considered, unless the error is an “error of law apparent on the face of the record,” also known as “plain error.” State v. Ramirez, 343 Or. 505, 508 n.2 (2007). Petitioner does not assert that his Brady claim was “plain error” such that the Oregon Court of Appeals exercised its discretion to review it despite his failure to preserve it below. Indeed, petitioner does not address this aspect of respondent's procedural default argument at all. Instead, petitioner appears to argue that the Brady claim was defaulted in the PCR proceedings due to the ineffective assistance of PCR trial counsel, and that he is entitled to expand the record in this Court to establish cause and prejudice under Martinez v. Ryan, 566 U.S. 1 (2012) to excuse his procedural default.
As an initial matter, the Supreme Court recently foreclosed petitioner's argument that he would be entitled to expand the record. See Shinn v. Ramirez, - S.Ct. -, 2022 WL 1611786 (2022). More importantly, Martinez applies to establish cause and prejudice only to underlying claims of ineffective assistance of trial counsel, not to any other kinds of claims. See Davila v. Davis, 137 S.Ct. 2058, 2062-63 (2017) (declining to extend Martinez to claims of ineffective assistance of appellate counsel); Hunton v. Sinclair, 732 F.3d 1124, 1126-27 (9th Cir. 2013) (refusing to extend Martinez to Brady claims).
4. Ground Six - Insufficient Evidence
In Ground Six, petitioner alleges the evidence of forcible rape was legally insufficient to establish the element of forcible compulsion. At the close of the state's case, trial counsel moved for judgment of acquittal; counsel filed written motions directed at the charges of unlawful use of a weapon alleged in count seventeen and made a verbal motion on the remaining counts including the charges of rape in the first degree, stating, “I understand . . . that the Court considers the evidence in the light most favorable to the State. All inferences going in their direction. Even so, I do not believe that the State has put on sufficient evidence that the Court should permit a jury to determine whether [petitioner] is guilty of Counts One, Two and Three.” Tr. 346; Resp. Exhs. 144, 145. Counsel offered no further argument. On appeal, petitioner argued in his pro se supplemental brief that the trial court erred in denying the motion for judgment of acquittal on count one because the state failed to establish the element of forcible compulsion.
Under Oregon law, in order to preserve a claim of insufficiency of the evidence for the purposes of appeal, the defendant must “state the specific theory on which the state's proof was insufficient.” State v. Paragon, 195 Or.App. 265, 268 (2004); see also State v. Schodrow, 187 Or.App. 224, 231 n.5 (2003) (general motion for judgment of acquittal without specifying theory on which state's proof was insufficient preserves no ground for challenge on appeal). Here, petitioner's general motion for judgment of acquittal on the rape charges did not specify the theory that the evidence of rape in the first degree charged in count one was legally insufficient to establish the element of forcible compulsion. As such, the claim was not preserved for appeal, and petitioner did not present it to the appellate courts in a context in which they could rule on the merits. Accordingly, the claim alleged in ground six is procedurally defaulted.
C. Excuse for the Procedural Default
In sum, petitioner procedurally defaulted the claims discussed above. Petitioner does not present evidence of cause and prejudice or a fundamental miscarriage of justice excusing his procedural defaults. Accordingly, habeas relief should be denied on these claims.
III. State Court Decisions Entitled to Deference
A. Legal Standards
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) “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 precedent if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases” or “if the state court confront 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).
Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant relief “if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. The “unreasonable application” clause requires the state court decision to be more than incorrect or erroneous. Id at 410. Section 2254(d) “preserves authority to issue the writ in cases where there is no possibility fair-minded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents. It goes no further.” Harrington Richter, 562 U.S. 86, 102 (2011).
Section 2254(d)(2) allows a petitioner to “challenge the substance of the state court's findings and attempt to show that those findings were not supported by substantial evidence in the state court record.” Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). A federal habeas court cannot overturn a state court decision on factual grounds “unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). This is a “'daunting standard-one that will be satisfied in relatively few cases,' especially because we must be ‘particularly deferential to our state-court colleagues.” Hernandez v. Holland, 750 F.3d 843, 857 (9th Cir. 2014) (quoting Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)).
In assessing claims of ineffective assistance of counsel, the Court uses the general two-part test established by the Supreme Court. Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). First, a petitioner must show that his counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 686-87 (1984). Due to the difficulties in evaluating counsel's performance, courts must indulge a strong presumption that the conduct falls within the “wide range of reasonable professional assistance.” Id. at 689.
Second, a petitioner must show that his counsel's performance prejudiced the defense. The appropriate test for prejudice is whether the petitioner can 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. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the trial. Id at 696. When Strickland's general standard is combined with the standard of review governing 28 U.S.C. § 2254 habeas corpus cases, the result is a “doubly deferential judicial review.” Mirzayance, 556 U.S. at 122.
B. Analysis
1. Ineffective Assistance in Failing to Request Appropriate Jury Instruction
In subclaim three of Ground One, petitioner alleges trial counsel provided constitutionally ineffective assistance in failing to request a jury instruction that a knowing mental state applied to the element of forcible compulsion in the charges of rape in the first degree. Respondent argues the state PCR court's decision denying relief on this claim is entitled to deference.
Under Oregon law, a person commits rape in the first degree if, as relevant here, the person “has sexual intercourse with another person,” and the victim “is subjected to forcible compulsion by the person.” Or. Rev. Stat. § 163.375(1)(a). The statute does not describe any particular mental state for the crime, but Oregon law provides (subject to exceptions not relevant here) that a person is guilty of an offense if the person “acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state.” Or. Rev. Stat. § 161.095(2). Moreover, when a statute defining an offense does not prescribe the culpable mental state, “culpability is nonetheless required and is established only if a person acts intentionally, knowingly, recklessly or with criminal negligence.” Or. Rev. Stat. § 161.115(2); see also Or. Rev. Stat. § 161.085 (defining each of those mental states).
In State v. Nelson, 241 Or.App. 681 (2011), which was decided more than a year after petitioner's trial, the Oregon Court of Appeals first considered what mental state applied to which parts of the crime of rape in the first degree. The court held that forcible compulsion is a material element of the crime and that the state was required to prove a culpable mental state with respect to that element, and that the trial court erred in failing to instruct the jury “that it had to find beyond a reasonable doubt that defendant had knowingly subjected the victim to forcible compulsion” in order to convict him of rape in the first degree. Id. at 686-88 (emphasis in original). In reaching its decision, the court recognized that “the task of determining whether an element of a crime is a material one that necessarily requires a culpable mental state has long vexed Oregon Courts.” Id. at 686 (internal quotations and citations omitted). The court relied heavily upon its decision in State v. Rainoldi, 236 Or.App. 129, rev'd on other grounds 351 Or. 486 (2011), which itself was decided more than four months after the trial in this case, to conclude that the “subject of forcible compulsion” of rape in the first degree is properly categorized as conduct that constitutes a material element of the crime. Id. at 687-88.
Prior to Nelson, the uniform criminal jury instructions did not set forth a separate mental state for the “forcible compulsion” element of rape in the first degree. Uniform Criminal Jury Instruction No. 1603 (2010 supplement). Petitioner contends nevertheless, that despite this absence in the uniform instructions, and although Oregon's appellate courts did not expressly require a jury instruction linking the knowing mental state to forcible compulsion until after petitioner's trial, a prior Oregon case State v. Lane, 341 Or. 433 (2006) should have put petitioner's trial counsel on notice that such a conclusion was mandated by Oregon's criminal statutes.
Petitioner asserted this argument in his PCR proceedings, but the state PCR court denied relief on this claim. The PCR trial judge explained the decision to deny relief as follows:
Now, claim 4 was a claim trial counsel failed to ensure that the jury be required to find the petitioner knowingly subjected the victim the [sic] forcible compulsion. That's based on State v. Nelson and State v. Gray.
I don't think that counsel, at the time of this trial, was inadequate for not making that motion. And I just - you have to judge counsel's performance at the time based upon the state of the law. If it was being tried today, clearly competent counsel would have requested instruction, but it wasn't tried today.
It was before those cases. Again, uniform instructions are not law and I - I have no problem with that, but clearly, attorneys from the prosecutor's office and the defense bar prepare these instructions and attorneys from both the prosecution and defense rely on those instructions.
It was not unreasonable for counsel to rely upon that instruction and to try to go behind that instruction. And I guess when you get down to push and shove then, again, I'm not convinced it would have made any difference. The jury's either going to be convinced that there was force used or there wasn't force used.
And I guess the argument, well, these people were involved - were involved in rough sex and so it made a difference whether the petitioner knew he was using forceful compulsion. I guess I - I don't think that argument would have flown in
front of a - a jury, especially female jurors. I just don't think that's a reasonable argument.
And so I - I don't find that there's prejudice.Resp. Exh. 135, pp. 42-44.
The PCR court's decision was not contrary to or an unreasonable application of Strickland. It is well settled that Strickland does not require trial counsel to be clairvoyant. Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994); see also Souphanouvong v. Palmateer, 378 F.3d 859, 870 (9th Cir. 2004) (“Strickland does not mandate prescience, only objectively reasonable advice under prevailing professional norms”). Accordingly, petitioner's trial attorney was not constitutionally ineffective in failing to identify the issue that would later prove successful under Nelson. See Sullivan v. Taylor, No. 2:17-cv-00763-MK, 2021 WL 6880576, at *5 (D. Or. Dec. 1, 2021) (trial counsel was not ineffective in failing to object to jury instruction that did not instruct the jury that petitioner must have knowingly subjected the victim to forcible compulsion where petitioner's trial pre-dated Nelson), report and recommendation adopted, 2022 WL 409075 (D. Or. Feb. 10, 2022).
Moreover, the PCR trial judge reasonably found that, in any event, petitioner was not prejudiced by counsels' failure to request a different jury instruction. The jury found that petitioner subjected MH to forcible compulsion, and he would have been prejudiced only if the jury could have found that he did so unknowingly. Morris v. Nooth, No. 6:18-cv-01747-CL, 2020 WL 8971501, at *5 (D. Or. Nov. 20, 2020) (citing O'Hara v. Premo, 291 Or.App. 419, 423, rev. denied, 363 Or. 390 (2018)), report and recommendation adopted, 2021WL 1136058 (D. Or. Nov. 20, 2020), cert. of appealability denied, 2021 WL 4852436 (9th Cir. 2021). Based on the evidence presented at trial, petitioner fails to do so.
MH testified to two instances in which petitioner forcibly compelled her to engage in sexual intercourse. In the first incident, in June, she repeatedly told petitioner that she did not want to have sex, but he told her, “Yeah you are, yeah you are.” Tr. 193. She was on the bed, and he was on top of her, saying that she was having sex if she wanted it or not. Tr. 193. MH managed to get up, but “didn't make it very far” because petitioner grabbed her by her shoulders and pushed her onto the ground with “a good force,” causing her head to bounce on the floor. Tr. 193-94. MH testified she “was scared after that” and stopped resisting, and petitioner had sex with her until “he finished.” Tr. 193-94. Afterward, he hid her phone so that she could not call anyone. Tr. 193.
The second incident occurred in July. MH testified that petitioner “expressed that he wanted to have sex like usual,” but she said she did not want to. Tr. 206. He “got really mad, like really mad,” and started hitting her until they ended up on the ground and he was having sex with her. Tr. 206-07. When MH's friend told petitioner to get off of her, petitioner shoved the friend out of the room. Tr. 207. MH testified she “blacked out” and did not remember anything until she “came to” and saw that she had no clothes on at all; when she regained consciousness her “head was just like pounding” and her body and vagina were sore. Tr. 207.
In light of this evidence, the PCR court reasonably concluded that, even if trial counsel had requested a jury instruction for the culpable mental state defined in Nelson, the outcome of the trial would not have been different. Accordingly, petitioner has not established he was prejudiced by counsel's failure to request the jury instruction, and he is not entitled to habeas relief.
2. Ineffective Assistance for Failing to Object to the Prosecutor's Closing and Rebuttal Arguments
In subclaim six of Ground One, petitioner alleges trial counsel was ineffective in failing to object, move for a mistrial, or request a curative instruction based on statements made by the prosecutor in his closing and rebuttal arguments. Specifically, petitioner alleges four bases upon which counsel should have objected: (1) repeated vouching for the victim's credibility; (2) providing expert testimony that was not introduced at trial by claiming petitioner engaged in grooming the victim; (3) improper argument for community safety as a reason to return a guilty verdict; and (4) repeated disparagement of the defense and defense counsel before the jury.
The PCR considered these claims and rejected them, focusing in particular on the claim concerning the prosecutor's argument that petitioner was “grooming” the victim:
Vouching, the testimony - you've categorized the testimony, but the statements about grooming that the DA made, statements about inflammatory rhetoric during closing and disparaging remarks concerning the defense, all of these, in my impression, show an over-aggressive district attorney, looking back, but I'm not convinced that a motion would have been granted, had counsel made it.
And, therefore, I'm not convinced that counsel was inadequate for not making a motion. The closest one, obviously, is the grooming one, although it occurs to me that - that clearly grooming has an expert testimony ramification to it, but it occurs to me that it's also becoming more of a generic word.
People hear it on TV all the time. It's very aggressive argument. It's pushing the envelope to the - to the end of the line. But on the other hand, like I say, I don't think it gets to the point where it meets the test of Washington v. Hoffbrau.
It wasn't - it's not a situation where her - where the argument in this case argued about facts that weren't in evidence. It didn't go that far. And for that reason, I don't think counsel was inadequate and I don't feel that there was a tendency to affect the outcome of the case.
So I'm denying that claim.Resp. Exh. 135, pp. 39-40. The PCR's decision was not an unreasonable application of Strickland.
Generally, prosecutors and defense attorneys are given “reasonable latitude to fashion closing arguments” and make “reasonable inferences based on the evidence.” United States v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991). Accordingly, to violate a criminal defendant's constitutional rights, “it ‘is not enough that the prosecutors' remarks were undesirable or even universally condemned.'” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation omitted). Rather, “the relevant question is whether the prosecutors' comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” Id. (citation omitted). In making this assessment, courts should consider “(1) whether the prosecutor's comments manipulated or misstated the evidence; (2) whether the trial court gave a curative instruction; and (3) the weight of the evidence against the accused.'” Tak Sun Tan v. Runnels, 413 F.3d 1101, 1115 (9th Cir. 2005).
Petitioner contends the prosecutor improperly vouched for the victim by describing her demeanor while she testified, by arguing that what she said was true, by arguing that she was “credible,” and by discussing “guarantees of trustworthiness.” There are two basic types of improper prosecutorial vouching: (1) the prosecutor' personal assurances of the witness's veracity; and (2) the prosecutor's suggestion that evidence not presented to the jury establishes the credibility of a witness. Draper v. Rosario, 836 F.3d 1072, 1083 (9th Cir. 2016); see also State v. Parker, 235 Or. 366, 377-78 (1963). As noted, the ultimate question is whether the prosecutor's comments so infected the trial with unfairness as to make the resulting conviction a denial of due process. Here, a review of the transcript reveals the prosecutor was not personally vouching for MH's credibility, nor was the prosecutor attempting to insinuate he possessed information to which the jury was not privy. Instead, the prosecution was arguing why the jury should find MH credible based upon the evidence in the record. Because the prosecutor's arguments were not improper, counsel was not constitutionally deficient for not objecting.
Petitioner next claims the prosecutor improperly argued petitioner engaged in “grooming” behavior, argued that the jury should return a guilty verdict to ensure community safety, and disparaged defense counsel and the defendant. In the context of the entire trial, however, none of these arguments by the prosecutor were so egregious as to demand that every reasonable attorney would object. See United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993) (“[b]ecause many lawyers refrain from objecting during opening statement and closing argument, absent egregious misstatements, the failure to object during closing argument . . . is within the ‘wide range' of permissible professional legal conduct”). Finally, the trial judge instructed the jury that it must render its verdict based upon the evidence, and that the attorney's opening statements and closing arguments did not constitute evidence. “A jury is presumed to follow its instructions.” Weeks v. Angelone, 528 U.S. 225, 234 (2000) (citing Richardson v. Marsh, 481 U.S. 200, 211 (1987)).
For all of these reasons, counsel's performance did not fall below an objective standard of reasonableness when he did not lodge objections during the prosecutor's closing and rebuttal arguments, and petitioner has not established that he was prejudiced by this decision. Accordingly, the PCR court's decision denying relief on this claim was not unreasonable, and habeas corpus relief is not warranted.
3. Improper Joinder
In Ground Five, petitioner alleges the trial and direct appellate courts erred in rejecting his claim that he was denied due process “when the sex charges were consolidated with the other charges for trial.” Petitioner fails, however, to demonstrate that the state courts' rejection of his misjoinder claim contradicted or unreasonably applied clearly established law as determined by the Supreme Court.
Respondent also argues that petitioner procedurally defaulted this claim because it differs from the arguments presented to the trial court orally and in writing, and from the argument presented on direct appeal. Because it is apparent petitioner is not entitled to relief on the merits of this claim, and in the interest of judicial economy, the court does not address the procedural default argument. Error! Main Document Only.See 28 U.S.C. § 2254(b) (2) (“[a]n application for writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State”); Runningeagle v. Ryan, 686 F.3d 758, 778 n.10 (9th Cir. 2012) (exercising discretion afforded under § 2254(b) (2) to decline to address procedural default issue where relief denied on the merits).
The Supreme Court has never held that improper joinder of charges violates the Constitution. In United States v. Lane, 474 U.S. 438, 446 n.8 (1986), the Supreme Court stated in a footnote that “[i]improper joinder does not, in itself, violate the Constitution. Rather, misjoinder will rise to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial.” The Ninth Circuit held this language dicta, finding it “did not set forth the governing legal principle . . . . It was merely a comment.” Collins v. Runnels, 603 F.3d 1127, 1132 (9th Cir. 2010); see also Young v. Pliler, 273 Fed.Appx. 670, 672 n.1 (9th Cir. 2008) (noting that Lane's statement was “probably dictum,” and that “Court dicta and circuit court authority may not provide the basis for granting habeas relief). Faced with the lack of clearly established law, this Court cannot grant relief. Knox v. Nooth, No. 2:16-cv-01990-YY, 2021 WL 6137595, at *4 (D. Or. Oct. 6, 2021), report and recommendation adopted, 2021 WL 6137202 (D. Or. Dec. 29, 2021). Accordingly, the state courts' adjudication of petitioner's misjoinder claims is entitled to deference in this Court.
4. Non-Unanimous Jury
Finally, petitioner's seventh claim for relief alleges violation of his constitutional rights as a result of his conviction on non-unanimous jury verdicts pursuant to Ramos v. Louisiana, 140 S.Ct. 1390, 1397 (2020), which held that the Sixth Amendment right to jury trial, as incorporated against the states by the Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a serious offense. As petitioner concedes, however, because Ramos does not apply retroactively to cases on federal collateral review, this claim necessarily fails. See Edwards v. Vannoy, 141 S.Ct. 1547, 1559 (2021).
CONCLUSION
For these reasons, the Court should DENY the Petition for Writ of Habeas Corpus and enter a judgment of DISMISSAL. A certificate of appealability should be denied as 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 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 shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as 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 this recommendation.