Opinion
2:18-cv-00732-CL
02-20-2021
DARRYL LAMONT GALLOWAY, Petitioner, v. MARK NOOTH, Superintendent of Snake River Correctional Institution, Respondent.
FINDINGS AND RECOMMENDATION
CLARKE, MAGISTRATE JUDGE
Petitioner brings this habeas corpus proceeding under 28 U.S.C. § 2254 and challenges his 2008 rape and sex abuse convictions on Sixth and Eighth Amendment grounds. Petitioner alleges that his counsel provided ineffective assistance at trial and that the trial court accepted a . non-unanimous jury verdict and imposed a disproportionate sentence in violation of his rights. Respondent maintains that petitioner's claims are procedurally defaulted or were denied in state court decisions entitled to deference. For the reasons explained below, petitioner's non-unanimous jury claim should be stayed pending a decision of the United States Supreme Court in Ramos v. Louisiana, and petitioner's remaining grounds for relief should be denied.
BACKGROUND
On August 15, 2007, petitioner was charged with two counts of Rape in the First Degree (Counts 1 and 2), two counts of Sodomy in the First Degree (Counts 3 and 4), and two counts of Sexual Abuse in the First Degree (Counts 5 and 6). Resp't Ex. 102. The charges against petitioner arose from the abuse of his nine-year-old stepdaughter, JG. Counts 1, 3, and 5 were based on abuse that reportedly occurred between June 1, 2006 and August 5, 2007, and Counts 2, 4, and 6 were based on abuse that occurred between August 6, 2007 and August 8, 2007. The evidence against petitioner included JG's disclosures, physical evidence of abuse discovered during a forensic physical examination, and DNA evidence that matched a sperm sample from petitioner. Resp't Ex. 103 at 80-82, 94-96, 134-38; Resp't Ex. 104 at 22-25, 66, 82-86.
The case proceeded to trial by jury in April 2008. Several witnesses testified that JG disclosed petitioner had sexually abused and “hurt” her on or around August 7, 2007. Resp't Ex. 103 at 147-49, 153; Resp't Ex. 104 at 22, 24-26, 32, 37-40. JG also testified that petitioner touched and “hurt” her “front and back private” parts on several occasions, but aside from the abuse in August 2007, she could not remember when or where the abuse occurred. Resp't Ex. 104 at 82-92. Petitioner testified in his own defense and denied that he knowingly touched his stepdaughter in a sexual manner. Petitioner testified that any evidence he had sexual intercourse with JG on or about August 7, 2007, including DNA evidence found inside JG's vaginal area, was the result of an Ambien overdose. Resp't Ex. 104 at 103, 125-26. Petitioner testified that he took a “couple of sleeping pills” to help him sleep, and he woke up facing JG with his penis between her legs. Resp't Ex. 104 at 125-26. Petitioner testified that he was “horrified” and had no specific memory of any sexual act. Resp't Ex. 104 at 127. Petitioner denied any other sexual contact with JG.
The jury convicted petitioner on all counts. The jury unanimously voted to convict petitioner of Counts 2, 4, and 6, and ten jurors voted in favor of guilt on Counts 1, 3, and 5. Resp't Ex. 105 at 5. Petitioner's counsel did not object to the non-unanimous verdicts. At sentencing, the trial court imposed mandatory 300-month sentences for Counts 1 through 4 and ordered them to run consecutively, for a total sentence of 1, 200 months of imprisonment. Resp't Ex. 105 at 51. The trial court merged Counts 5 and 6 with Counts 1 and 2 “for sentencing purposes.” Resp't Ex. 101 at 6.
Petitioner directly appealed his convictions and challenged the non-unanimous verdicts on Counts 1, 3, and 5 and the “disproportionate” sentence of 100 years. Resp't Ex. 107, 109. The Oregon Courts of Appeals affirmed petitioner's convictions and sentence and the Oregon Supreme Court denied review. Resp't Ex. 110-11.
Petitioner then sought post-conviction relief (PCR) on grounds that his trial counsel provided ineffective assistance in numerous respects. Resp't Ex. 114. The PCR court denied petitioner's claims, the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Resp't Exs. 135, 138, 141-42.
On April 26, 2018, petitioner filed this federal action.
DISCUSSION
In Grounds One, Two, Three, Seven, and Eight, petitioner alleges that trial counsel provided ineffective assistance by failing “to reasonably investigate, develop, and present evidence relating to the flaws in the sexual abuse investigation, ” by failing to retain expert witnesses, and by failing to subject petitioner to a “psychosexual examination.” Pet. at 10-11, 1314 (ECF No. 2). In his supporting brief, however, petitioner presents no argument to support these claims. See generally Pet'r Brief (ECF No. 33). Accordingly, petitioner fails to meet his burden of establishing entitlement to habeas relief on these grounds. See Mayes v. Premo, 766 F.3d 949, 957 (9th Cir. 2014) (a habeas petitioner bears the burden of proving his claims).
Respondent also argues that these grounds were not fairly presented to the Oregon courts and are barred from review by procedural default. Petitioner does not contest this argument.
With respect to petitioner's remaining claims, respondent maintains that Grounds Four, Five, and Six were denied in state court decisions entitled to deference, and Grounds Nine through Eleven were not fairly presented to the Oregon appellate courts and are now barred by procedural default.
A. Ineffective Assistance of Counsel Claims
In Grounds Four and Five, petitioner alleges that counsel rendered ineffective assistance by failing to object to the inadmissible and prejudicial testimony of a police detective and a social worker. Pet. at 11-13. In Ground Six, petitioner alleges that counsel was also deficient by failing to object or seek a curative remedy after the jury heard testimony that petitioner was the subject of another child sex abuse investigation. Pet. at 13. The PCR court rejected these claims, and respondent maintains that its decision is entitled to deference.
A federal court may not grant a habeas petition 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 if it reaches a different result in a case with facts “materially indistinguishable” from relevant Supreme Court precedent. Brown v. Payton, 544 U.S. 133, 141 (2005); Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision is an “unreasonable application” of clearly established federal law if the state court identifies the correct legal principle but applies it in an
“objectively unreasonable” manner. Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam); Williams, 529 U.S. at 407-08, 413; see also Early v. Packer, 537 U.S. 3, 11 (2002) (per curiam) (state court decisions that are not “contrary to” Supreme Court law may be set aside only “if they are not merely erroneous, but ‘an unreasonable application' of clearly established federal law, or are based on ‘an unreasonable determination of the facts.'”).
Under well-established Supreme Court precedent, a petitioner alleging ineffective assistance of counsel must show that 1) “counsel's performance was deficient, ” and 2) counsel's “deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To meet these elements, a petitioner “must show that counsel's representations fell below an objective standard of reasonableness, ” and “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 688, 694. Unless a petitioner makes both showings, “it cannot be said that the conviction ...resulted from a breakdown in the adversary process that renders the result unreliable.” Id. at 687. Petitioner fails to show that the PCR court unreasonably applied Strickland when rejecting his claims.
1. Testimony of Detective Loughary
The State called Detective Mike Loughary as a witness during its case in chief. Resp't Ex. 103 at 162. During his direct examination, Det. Loughary testified that petitioner appeared evasive and potentially deceptive when the detective interviewed him on August 8, 2007. Resp't Ex. 104 at 3-7. Specifically, Det. Loughary testified that petitioner would “look down, ” get “cotton mouth, ” or evade the question when Det. Loughary asked petitioner about the alleged abuse of his stepdaughter. Resp't Ex. 104 at 3-5. Trial counsel did not object to Det. Loughary's testimony. Petitioner argues that the detective's testimony constituted an impermissible comment on his credibility and counsel's failure to object was unreasonable and prejudicial.
The PCR court rejected this claim, finding no deficiency and no prejudice. The PCR court explained:
When taken as a whole, Detective Loughary's testimony regarding Petitioner's behavior during questioning, and why it appeared deceptive, constituted commenting on the veracity of a witness as discussed in St. v. Lowell, 249 Or.App. 364 (2012). Normally, the failure to object to such testimony would constitute ineffective assistance of counsel. Not so in this case. The deceptive behavior that Detective Loughary testified about was when Petitioner was telling him that nothing unusual happened with his step-daughter. It was not unreasonable for the trial attorney to fail to object to such testimony when he knew that his client was going to testify later in the trial that he did in fact have sexual contact with the victim while in an Ambient induced state. Even if the attorney reasonably should have objected to the testimony, there was no prejudice shown because Petitioner's later testimony regarding the events demonstrated to the jury that he was, in fact, being deceptive when being interviewed by the detective.Resp't Ex. 135 at 2. The PCR court's finding was not unreasonable in these circumstances.
Granted, the PCR recognized that Det. Loughary's testimony commented on petitioner's veracity and acknowledged that an attorney should ordinarily object to such testimony. However, the PCR court correctly observed that petitioner's subsequent testimony about waking up with his penis between JG's legs would contradict his statements to Det. Loughary indicating that he had not touched JG inappropriately. Resp't 104 at 140-41. Thus, the PCR court was not unreasonable in finding no prejudice arising from counsel's failure to object when petitioner's own testimony reflected that he was evasive and not entirely truthful when interviewed by Det. Loughary.
2. Testimony of Linda Terry
The State also called Linda Terry, a clinical social worker who provided services to JG and her mother. During her testimony, Terry described JG's mother as a “non-offending” parent. Resp't Ex. 104 at 56-59. Petitioner maintains that this testimony “constituted indirect, yet prejudicial, inadmissible vouching for the State's case, ” because Terry's “description of one parent as the ‘non-offending'” party necessarily implied that petitioner was the “offending” party and guilty of the charged offenses. Pet'r Br. at 20.
Petitioner alleges several other claims pertaining to Terry's testimony. Pet. at 12-13. However, the only claim petitioner presented to the Oregon courts and argued in his supporting brief involves Terry's use of the phrase “non-offending parent.” Pet'r Br. at 20. Accordingly, petitioner fails to sustain his burden with respect to the non-argued claims.
In his PCR proceeding, petitioner argued that counsel should have objected to the phrase “non-offending” parent as inadmissible and prejudicial. Resp't Ex. 121 at 29; Resp't Ex. 134 at 70-72; Resp't Ex. 136 at 25-24. The PCR court disagreed and found: “Ms. Terry's testimony regarding Elizabeth Galloway was not objectionable. There was no basis to object to Ms. Terry's use of the term ‘non-offending spouse' in view of the fact that Petitioner admitted having sexual contact with [JG]. Her testimony also did not constitute improper comment on the veracity of another witness.” Resp't Ex. 135 at 3.
This exhibit is mismarked as “Exhibit 101.” (ECF No. 23-3).
The PCR court's finding of no deficiency or prejudice was not unreasonable. No evidence suggested that petitioner's wife was an offending parent, and petitioner did not dispute that he had sexual contact with JG. Further, Terry was a social worker who provided services to JG, and her testimony was provided in that context rather than as a legal pronouncement. Thus, the PCR court reasonably found that counsel had a slim basis on which to base an objection, and given the evidence presented, it is not likely that this statement affected the outcome at trial.
3. Testimony Regarding Prior Abuse Investigation
In his defense case, petitioner called Debbie Briscoe, a caseworker for the Oregon Department of Human Services, who interviewed JG in May 2007. Resp't Ex. 104 at 146.
Petitioner did so to support his argument that the allegations against him, particularly the alleged abuse occurring between June 2006 and August 2007, had been planted in JG's mind after she reported the rape and abuse that occurred on or about August 7, 2007. Resp't Ex. 104 at 177-79.
To bolster this argument, Briscoe testified that JG denied being abused or touched inappropriately when JG was questioned in May 2007. Resp't Ex. 104 at 147.
The parties had agreed that petitioner's questioning of Briscoe would allow the State to ask why Briscoe had interviewed JG in May 2007. Resp't 104 at 100. As Briscoe testified on direct examination, Clackamas County had contacted her office “with a founded disposition in their county on another child, ” and Briscoe interviewed the children in petitioner's household as part of a “threat of harm assessment.” Resp't 104 at 146. On cross-examination, the State asked about the Clackamas County report:
Q: Okay. What is a founded disposition and who was it against, why did that mean you had to go out to that house?
A: There's a founded disposition against [petitioner] from Clackamas County in regards to another minor child, in which the child disclosed to being inappropriately touched. And I think in fact - and that was, it was rape. And because we have a founded disposition from another county, and we had the children living in the home, reportedly living in the home with [petitioner], sometimes we don't know if that's actually correct information. So we go out to assess, investigate whether there are indeed children in the home. And if they are, we interview them to see if they make any disclosures about anything inappropriate regarding them.Resp't Ex. 104 at 148.
Petitioner's counsel did not object to Briscoe's testimony suggesting that the founded disposition in Clackamas County involved petitioner's alleged “rape” of another child. Petitioner maintains that trial counsel was deficient in failing to object to Briscoe's inflammatory testimony or seek a curative instruction.
The PCR court rejected this claim, explaining:
Petitioner failed to prove a basis for post-conviction relief based on the claim that his attorney improperly allowed evidence of a prior Clackamas County investigation to be admitted. The evidence was admissible because Petitioner chose to testify and specifically testified about some issues related to the Clackamas County matter. That opened the door for the state to offer additional testimony regarding the Clackamas County case. Petitioner was advised of that probability by the court and his attorney before he chose to testify. The trial attorney was not ineffective for not objecting to the evidence. There is no reason to believe that such an objection would have been granted.Resp. Ex. 135 at 3.
The trial court had also informed petitioner that the State could inquire into charges arising from the Clackamas County incident if petitioner chose to testify, and he did. Resp't Ex. 104 at 98-100.
The PCR court's decision was not objectively unreasonable. Petitioner understood that the State would be allowed to inquire into the founded disposition if the defense called Briscoe to testify about the May 2007 interview. Thus, petitioner had no basis to object to Briscoe's testimony. Even if counsel did not anticipate Briscoe's testimony concerning “rape, ” the PCR court reasonably found that any objection would have emphasized Briscoe' reference to rape and would have been overruled in light of the parties' agreement.
In sum, the PCR court did not unreasonably apply Strickland when it found no deficiency or prejudice arising from counsel's failure to raise objections to the testimony of these witnesses. Harrington v. Richter, 562 U.S. 86, 101 (2011) (on federal habeas review, a state court decision “must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself').
B. Disproportionate Sentence
In Grounds Nine and Eleven, petitioner alleges that his 1, 200-month sentence is constitutionally disproportionate and violates his Eighth Amendment right to be free from cruel and unusual punishment. Respondent argues that petitioner did not fairly present a federal constitutional claim to the Oregon courts on this ground, and his claim is now barred by procedural default.
A state habeas petitioner must exhaust all available state court remedies before a federal court may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1)(A); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004). To meet the exhaustion requirement, the petitioner must “fairly present” a federal claim to the State's highest court “in order to give the State the opportunity to pass upon and to correct alleged violations of its prisoners' federal rights.” Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam) (quotation marks omitted); Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011) (“Exhaustion requires the petitioner to ‘fairly present' his claims to the highest court of the state.”). Further, a petitioner must “clearly state the federal basis and federal nature of the claim, along with relevant facts.” Cooper, 641 F.3d at 327. If a federal constitutional claim was not fairly presented to the state courts and no state remedies remain available for the petitioner to do so, the claim is barred from federal review through procedural default. See Coleman v. Thompson, 501 U.S. 722, 732, 735 n.l (1991).
Here, petitioner challenged his sentence on Eighth Amendment grounds before the Oregon Court of Appeals on direct appeal. Resp't Ex. 107 at 40. However, petitioner did not cite the Eighth Amendment or present a federal constitutional argument when seeking review with the Oregon Supreme Court. Resp't Ex. 109. Thus, petitioner did not fairly present this claim to Oregon's highest court.
Regardless of exhaustion, petitioner cites no legal authority to support his argument that a de facto life sentence for raping a child is impermissible under the Eighth Amendment. Rather, petitioner argues that, because he was not a repeat sex offender, his offenses of conviction did not authorize a life sentence and he should not have been given a de facto life sentence through the imposition of consecutive sentences. As petitioner concedes, the Supreme Court has upheld life sentences for much lesser crimes than rape of a child. Lockyer v. Andrade, 538 U.S. 63, 77 (2003); Ewing v. California, 538 U.S. 11, 21-22 (2003); Harmelin v. Michigan, 501 U.S. 957, 994-96 (1991).
Accordingly, petitioner fails to show that the Oregon courts' rejection of this claim unreasonably applied clearly established federal law.
C. Non-Unanimous Verdicts
Finally, in Ground Ten, petitioner argues that the non-unanimous verdicts on Counts 1, 3 and 5 were unconstitutional under the Sixth and Fourteenth Amendments. Respondent argues that petitioner's failure to object to the non-unanimous verdict at trial prevented petitioner's claim from being addressed on the merits by the Oregon appellate courts. Thus, respondent maintains that petitioner did not present this claim to the Oregon courts in the correct procedural context, and it is now procedurally barred. See Coleman, 501 U.S. at 732; Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009) (per curiam) (“A petitioner fully and fairly presents a claim to the state courts if he presents the claim (1) to the correct forum; (2) through the proper vehicle; and (3) by providing the factual and legal basis for the claim.”) (citations omitted).
Petitioner did not raise an objection to the non-unanimous verdicts at trial. However, petitioner presented the issue to the Oregon Court of Appeals and Oregon Supreme Court and argued that the claim was appropriate for plain error review. In response, the State argued that an unpreserved challenge to a non-unanimous jury verdict did not rise to the level of plain error. Resp't Ex. 108 at 6-7. The Court of Appeals affirmed petitioner's convictions, and the Oregon Supreme Court denied review.
Notably, the Oregon Court of Appeals affirmed without opinion, and, as a result, the record is not clear whether the Oregon courts denied petitioner's non-unanimous verdict claim on the merits or on procedural grounds. Absent clarity on this issue, I decline to find procedural default. See Smith v. Or. Board of Parole and Post-Prison Supervision, 736 F.3d 857, 860-61 (9th Cir. 2013).
Regardless of default, respondent argues that petitioner cannot show that the Oregon appellate courts unreasonably applied clearly established federal law under § 2254(d)(1), because the Supreme Court has upheld the Oregon system of allowing non-unanimous verdicts. See Apodaca v. Oregon, 406 U.S. 404, 406 (1972); see also Remme v. Hill, 370 Fed. App'x 855, 856 (9th Cir. Mar. 12, 2010) (holding that the Ninth Circuit lacks the “the authority to disregard the holding of Apodaca”).
Petitioner acknowledges Apodaca but nonetheless argues that the Supreme Court is revisiting the question of non-unanimous verdicts in Ramos v. Louisiana, No. 18-5924, argued before the Supreme Court on October 7, 2019, and will decide if the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict as applied to the states. Respondent emphasizes that, even if the Supreme Court holds non-unanimous verdicts unconstitutional in Ramos, its ruling would not have been clearly established federal law at “the time of' the Oregon courts' decisions. Williams, 529 U.S. at 412; see also Greene v. Fisher, 565 U.S. 34, 38 (2011); Demirdjian v. Gipson, 832 F.3d 1060, 1076 & n. 12 (9th Cir. 2016). Thus, respondent argues that petitioner would be unable to show that the Oregon courts unreasonably applied clearly established federal law in order to obtain federal habeas relief.
While I appreciate respondent's argument, the forthcoming decision in Ramos will undoubtedly lend clarity to the viability of Ground Ten and this Court's analysis of the claim under § 2254(d)(1). Accordingly, resolution of Ground Ten is stayed until the Supreme Court issues its decision in Ramos and the parties have an opportunity to address the applicability of the Court's ruling to petitioner's claim.
CONCLUSION
Grounds One through Nine and Eleven of the Petition for Writ of Habeas Corpus (ECF No. 2) should be DENIED. Ground Ten is STAYED until the United States Supreme Court issues a decision in Ramos v. Louisiana. Referral of this Findings and Recommendation to a district judge is DEFERRED until a final Findings and Recommendation is issued with respect to Ground Ten.