Opinion
2:19-cv-01793-CL
09-11-2023
KIRK W. GARRISON, Petitioner, v. T. BLEWETT, Respondent.
FINDINGS AND RECOMMENDATION
MARK D. CLARKE, UNITED STATES MAGISTRATE JUDGE
Petitioner Kirk W. Garrison (“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
L Trial Court Proceedings
In 2010, a Lincoln County jury convicted Petitioner of numerous offenses arising from his prolonged sexual abuse of his adopted children. (Resp't Exs. (ECF No. 14), Ex. 101 at 612.) The Oregon Court of appeals summarized the “egregious”circumstances underlying Petitioner's convictions, as follows:
When citing Respondent's Exhibits, the Court uses the exhibit page numbers located in the bottom right corner of each page.
Petitioner states in his supporting brief that “[t]he conduct underlying the charges was admittedly egregious.” (Pet'r's Br. (ECF No. 43) at 5.)
[Petitioner] married in 1996; the same year, [Petitioner] and his wife became licensed foster parents and began providing care for children. The couple separated in 2007, several months before the abuse underlying [the charges] came to light. Over the course of their marriage, [Petitioner] and his wife fostered “close to 100” children, eight of whom the couple adopted. Over that span, the couple would regularly have six or seven children in their home at a time.
[Petitioner]'s wife first learned that [Petitioner] had sexually abused their children in early 2007, after [Petitioner] had moved out of the family home. Evidence of the abuse surfaced during an argument with their child K, who had just turned 17. K told [Petitioner]'s wife that he intended to move out of their home, and a physical struggle ensued. During the struggle, K revealed that [Petitioner] had sexually abused him, saying something to the effect of “you let your sick husband molest all of us children” and “[y]ou let that son of a bitch rape me.” Thereafter, in an attempt to verify K's allegation, [Petitioner]'s wife called another of her children, J. At that time, J, who is cognitively impaired, had recently turned 18 and was living in an adult group home. [Petitioner]'s wife asked J if [Petitioner] had abused her, and J confirmed that he had.
[Petitioner]'s wife then arranged to meet [Petitioner] to confront him about the allegations. During that meeting, [Petitioner] admitted to abusing J and explained that J “came on to” him. A third child, M, who was living with [Petitioner], was present at the meeting, and [Petitioner]'s wife insisted that [Petitioner] tell M what he had done. [Petitioner] then told M that “he had sexually abused [K] and [J] and that he was really sorry.” Ultimately the allegations reached the principal of K's school, and the principal immediately reported the abuse to a child-abuse-reporting hotline. Subsequently, [Petitioner] quit his job and left the state, ultimately settling with his mother in Long Beach, California.
Miller, a detective at the Lincoln County Sheriff's Office, was assigned to investigate the sexual-abuse allegations against [Petitioner]. Miller first attempted to interview [Petitioner] at his former Oregon home-a local trailer park-but discovered that [Petitioner]'s trailer was gone. Miller then met with [Petitioner]'s wife and interviewed K and M. Because Miller was concerned about J's cognitive impairment, Miller did not interview J; instead, she arranged to have J interviewed at the Children's Advocacy Center, an organization that counsels and interviews child victims of abuse. Miller also arranged interviews for [Petitioner]'s younger children at the Children's Advocacy Center, as well as a number of children who had been fostered in [Petitioner]'s home at various times. Eventually, Miller was able to reach [Petitioner] by telephone. During the call, [Petitioner] adamantly denied any wrongdoing and explained that he had left the area to care for his ailing mother.
In a 17-count indictment, [Petitioner] was charged with five counts of first-degree sexual abuse, ORS 163.427; three counts of first-degree rape, ORS 163.375; three counts of first-degree unlawful sexual penetration, ORS 163.411; three counts of second-degree sodomy, ORS 163.395; one count of second-degree sexual abuse, ORS 163.425; and two counts of coercion, ORS 163.275. The charges stemmed from [Petitioner's] abuse of J and K, as well as two younger children. [Petitioner] was arrested and held in the Lincoln County jail pending trial. Thereafter, Maeurer, an inmate at the jail, contacted Miller and explained that he had met and befriended [Petitioner] while both were incarcerated and that [Petitioner] had made a variety of admissions to him about [Petitioner]'s abuse of his children.
[Petitioner] pleaded not guilty to the charges and proceeded to jury trial, which was conducted over nine weeks from April to June 2010. At trial, the state elicited extensive testimony regarding the certification and operation of foster homes in general, as well as specifics regarding the circumstances of [Petitioner]'s home. Both J and K testified regarding [Petitioner]'s sexual abuse of them, and the recorded interview of J conducted at the Children's Advocacy Center was played for the jury. Maeurer also testified about his conversations with [Petitioner] in jail and related a number of graphic statements that he attributed to [Petitioner].
The jury ultimately convicted [Petitioner] of two counts of first-degree sexual abuse, two counts of first-degree rape, one count of second-degree unlawful sexual penetration, one count of second-degree sodomy, and one count of second-degree sexual abuse for conduct involving J and K. The jury failed to reach a verdict on three counts of first-degree sexual abuse stemming from defendant's alleged abuse of the two other children, and the state dismissed those charges without prejudice. The state had dismissed the remaining charges against defendant during trial.State v. Garrison, 266 Or.App. 749, 750-52 (2014).
During sentencing, the State requested the mandatory minimum sentence-either 75 or 100 months-on each of Petitioner's Measure 11 convictions.The State urged the trial court to run those sentences consecutively, arguing that a lengthy prison term was warranted because Petitioner had specifically targeted vulnerable children from abusive backgrounds, had shown “zero remorse for his crimes” as evidenced by his comments to Maeurer, and had caused significant pain to both the children and the family over the eight years J and K suffered abuse at Petitioner's hands. (Tr. (ECF No. 15) at 5571.)
All but one of Petitioner's convictions were for “Measure 11” offenses, which, under a ballot measure approved by Oregon voters in 1994, carry lengthy mandatory prison sentences. Ballot Measure 11 (1994). Measure 11 is codified at OR. REV. STAT. § 137.700 and OR. REV. STAT. § 137.707.
When citing the trial transcript, the Court uses the “Transcript” page numbers located in the bottom right corner of each page.
J then read a victim impact statement, explaining her desire to be adopted so that she “could be happy and feel safe . . . and not be ever hurt again.” (Id. at 5573.) J explained that she had trusted Petitioner “to keep us all safe from all harm[,]” but that Petitioner's abuse had “harmed and scared” her siblings, and had made her “a very troubled and angry person[.]” (Id. at 5573-74.) Explaining that the frequent rape and abuse had caused her “to feel depressed . . ., upset[,] [and] worthless,” and “to have trouble in trusting and believing in other people and to have close friends[,]” J told the trial court that she wanted Petitioner “out of [her] life forever[.]” (Id. at 5574.)
In response, defense counsel objected to the imposition of consecutive sentences, arguing that it would constitute “an unlawful upward departure without aggravating factors[.]” (Id. at 5574.) She did not, however, depart from the facts adduced at trial to offer mitigation evidence to support a lower sentence, stating only the following:
Your Honor, the Defense is not going to dishonor this process by rearguing the case or arguing the facts. Both you and the jury paid attention and were here for ten weeks during the trial, unlike the press, who is present today. There is no point in regurgitating those facts. As a Defense attorney, our job is to preserve the record and make sure that the process has integrity, which I believe that my client believes has occurred in this case.
The only thing that I know that upsets my client's family and my client is that this Court is largely without ability to impose any judicial discretion, as a result of Measure 11, which has been authorized by the voters of this state, despite its logic or illogic, as the case may be. I would ask the Court not to impose consecutive sentencing, and run all sentences concurrent to each other for a total sentence of 100 months. That's all I have.(Id. at 5575.)
Before announcing the sentence, the trial court reviewed the trial testimony, remarking that the case was “one of the most tragic” it had ever heard. (Tr. at 5577.) Specifically, the trial court noted that Petitioner's wife had testified that it was Petitioner's idea to foster children and that he had known that the victims already had been “savagely abused” by their parents or other caregivers before entering their home. (Id. at 5577-78.) The trial court also noted that Petitioner's wife had testified that she and Petitioner had ceased having sexual relations within six months of marrying, but that she had found Viagra and Livitra in Petitioner's dresser drawer years later. (Id. at 5578.) Addressing Petitioner directly, the trial court then stated that “[t]hese pieces to the puzzle make it clear that you had a perverted plan right from the start to unleash your sex drive on kids whom you knew had already been devastated[,]” also pointing to Petitioner's statements to Maeurer as evidence of the “calculating and scheming” nature of Petitioner's conduct. (Id. at 5581.) Considering these factors, the trial court concluded:
There's nothing I can do to make life better for [J] and [K]. That damage can't be undone. We can all only hope they can do something to salvage some good in their lives. But it's going to take the rest of their lives, if there is to be a chance.....The only thing I can do is try to take steps to protect other children from you and your predatory ways in the future.(Id. at 5580-81.) The trial court then imposed the mandatory minimum for each Measure 11 offense and thirty-six months for the second-degree sexual abuse conviction, ordering each to run consecutively to the next for a total custodial term of 536 months. (Id. at 5581-82; Resp't Ex. 101.) The trial court also imposed a lifetime term of post-prison supervision. (Id.)
II. Direct Appeal
Petitioner filed a direct appeal, asserting that the trial court had erred in 1) denying Petitioner's first motion for mistrial; 2) imposing a thirty-six month consecutive sentence on the second-degree sexual abuse conviction; 3) instructing the jury that it could return a non-unanimous guilty verdict; and 4) accepting the jury's verdict after giving the non-unanimous jury instruction. (Resp't Ex. 103 at 2-3.) The Oregon Court of Appeals affirmed in a written opinion, State v. Garrison, 266 Or.App. 749 (2014), and the Oregon Supreme Court denied review, State v. Garrison, 356 Or. 837 (2015).
III. Postconviction Proceedings
Petitioner next sought post-conviction relief, alleging in his counseled amended petition that his trial attorney was ineffective in failing “to provide any mitigation case . . . at sentencing.” (Resp't Ex. 114 at 9-10.) Specifically, Petitioner argued that “mitigation evidence existed in the form of Petitioner's learning disability, and research establishing the effects of aging on male sex offender recidivism rates[,]”and that a reasonable attorney would have presented such evidence to “increase[e] the likelihood that Petitioner would receive a sentence that would someday allow him to walk out of prison in late sixties or seventies[.]” (Id. at 10.) Petitioner also asserted an ineffective assistance claim against his appellate attorney. (Id. at 1011.) After a hearing, the postconviction court denied relief. (cite)
Petitioner appealed, assigning as error the postconviction court's denial of relief on Petitioner's claim that “trial counsel was ineffective and inadequate for failing to offer mitigation evidence at sentencing.” (Resp't Ex. 127.) The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. (Resp't Exs. 130, 131.)
IV. Federal Habeas Proceedings
On November 7, 2019, Petitioner filed a pro se Petition for Writ of Habeas Corpus in this Court, asserting four grounds for relief:
Ground One: Court failed to grant mistrial even though witness testified allegation was unfounded.
Supporting Facts: The trial court erred in denying [Petitioner's first motion for mistrial. [Petitioner] then noted that there was a question about the statement before the stricken statement regarding someone being inappropriately touched while being babysat. Counsel noted that if [Petitioner's wife] had testified that [Petitioner] was accused of having inappropriate touched a child, then she needed to move for a mistrial, as that testimony was much more prejudicial than the slapping testimony. The testimony was played back. [Petitioner] immediately moved for a mistrial based on prosecutorial misconduct. [Petitioner] asserted that the prosecutor had intentionally elicited very damaging information of an incident of sex abuse by [Petitioner] regarding an allegation of touching someone in the privates with a tool, and that information regarding the allegation had never been provided in the discovery. [Petitioner] asserted that the testimony that [Petitioner] had a sex abuse allegation of touch a child over their clothing with either his hands or a tool early in their marriage - the inference being that this was a precursor to the [Petitioner]'s charged behavior - was inadmissible and prejudicial. [Petitioner] argued that a mistrial [was] required due to the prosecutorial [misconduct].
Ground Two: Trial court error in imposing the wrong sentence.
Supporting Facts: The trial court erred in imposing a [thirty-six] month consecutive sentence on count #7. Preservation of error at sentencing, [Petitioner] objected to a consecutive sentence on count #7, under grid block 7-A, rather than under grid block 7-I.
Ground Three: Found guilty by non-unanimous jury.
Supporting Facts: The trial court erred when it instructed the jury that it could find [Petitioner] guilty by a non-unanimous verdict. The trial court erred when it accepted the jury's verdict after instructing the jury that the verdict did not have to
be unanimous. The Sixth and Fourteenth Amendments require unanimous verdicts.
Ground Four: Trial counsel was ineffective for failing to provide any mitigation case in support of Petitioner at sentencing.
Supporting Facts: [1.] Trial counsel failed to provide any mitigation case in support of petitioner at sentencing, limiting her argument to legal issues relating to sentencing. Mitigation evidence existed in the form of Petitioner's learning disability, and research establishing the effects of aging on male sex offender recidivism rates. Reasonable trial counsel would have presented such evidence at sentencing, increasing the likelihood that Petitioner would receive a sentence that would some day allow him to walk out of prison in his late sixties or seventies and trial counsel provided ineffective and inadequate assistance of counsel in failing to do so. Trial counsel virtually assured that petitioner would receive [what] would essentially constitute a life sentence - which is effectively what Petitioner received. Petitioner suffered prejudice as a result of trial counsel['s] performance and is entitled to relief.
[2.] Appellate counsel failed to assign error to the trial court's order denying trial counsel's motion for a mistrial based on testimony by Dr. Best and repeated discovery violations. The trial court erred in failing to grant and Petitioner would likely have prevailed on appeal had appellate counsel asserted such a claim, and appellate counsel provided ineffective and inadequate assistance of counsel in failing to do so. Petitioner's suffered prejudice as a result of appellate counsel's error and [is] entitled to relief.(Pet. at 6-7, 11-13.) Respondent urges this Court to deny habeas relief, arguing that Petitioner's claims are not cognizable in habeas corpus, are procedurally defaulted, or otherwise were denied by a state-court decision entitled to deference. (Resp. to Pet. for Writ of Habeas Corpus (ECF No. 12), at 4.) With the assistance of appointed counsel, Petitioner advances the merits of the ineffective assistance claim against trial counsel (Ground Four, part 1), but does not address the remaining claims.
The Court uses the ECF-assigned pagination when citing the petition and the parties' briefing.
DISCUSSION
I. The Postconviction Court's Denial of Petitioner's Ineffective Assistance of Trial Counsel Claim (Ground Four, Part 1) 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). 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).
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 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). To establish a claim of ineffective assistance under Strickland, a habeas petitioner must first must establish 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.
A petitioner also 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). Accordingly, when considering an ineffective assistance claim under the AEDPA, the relevant question “is not whether counsel's actions were reasonable[,]” but “whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” id.
B. Analysis
In part one of his Fourth Ground for relief, Petitioner alleges that his trial attorney violated his right to effective assistance of counsel when she failed to “provide any mitigation case in support of Petitioner at sentencing.” (Pet. at 7.) As noted above, Petitioner advanced a similar claim during his postconviction proceedings, specifically challenging trial counsel's failure to present evidence at sentencing of Petitioner's learning disability and research concerning the effect of aging on male sex offender recidivism rates. (Resp't Ex. 114 at 9-10.) Specifically, Petitioner argued that “[g]iven the ugliness of the allegations, and the amount of extremely graphic and disturbing information absorbed by the trial court,” trail counsel should have obtained and presented a psychosexual evaluation “to . . . humanize Petitioner, place his conduct in the context of his social history and psychological makeup, and provide some professionally generated basis for risk assessment.” (Resp't Ex. 118 at 22.)
In support of that claim, Petitioner submitted to the postconviction court a report authored by Dr. Keith Linn, a psychologist who recently had conducted a psychosexual evaluation of Petitioner. (Resp't Ex. 120.) In his report, Dr. Linn noted that Petitioner-“a lower functioning adult who steadfastly denies engaging in any deviant or illicit sexual contact”-had “managed to achieve a reasonable level of functioning and stability” despite a history “marked by a variety of negative factors including parental abandonment, exposure to domestic violence, and academic problems.” (Id. at 13, 14.) Noting that Petitioner's “treatment prognosis is complicated by possible denial, limited insight and/or accountability in his role in the instant offense and concerns around sexual deviation[,]” Dr. Linn found that Petitioner “presents as a mixed but reasonable candidate for outpatient treatment and community-based supervision.” Dr. Linn summarizing his findings, as follows:
In conclusion, [Petitioner] presents a low number of factors associated with future sexual arrests or convictions based on his STATIC-99-R. However, the nature and extent of the alleged sex crimes seems inconsistent with a confident Low risk prognosis. Areas of primary concern include a variety of sexual acting-out behaviors and the alleged presence of male and female victims. The alleged sexuality was coercive. In one instance, the examinee reportedly compelled fosters siblings to engage in sex acts with each other. The examinee denies responsibility for current charges. In his favor, [Petitioner] does not have a prior,
documented history of sexual deviation, major mental illness, interpersonal violence, community instability, or profound social deficits. While future offense specific treatment is likely to be complicated due to his longstanding denial, the lack of aggravating risk factors and relative community stability make him a reasonable candidate for community-based interventions. Diagnostically, the examinee does not express, exhibit, or endorse obvious symptoms of major mental illness. Available data does not support a formal diagnosis of personality disorder or psychopathy. The present data was not sufficient to confidently rule-in or rule-out diagnostic sexual deviation. His level of risk would likely be further mitigated through sex offender treatment and strict prohibitions related to contact with minors.(Id. at 2-3.)
Petitioner acknowledged that Dr. Linn's report was “not entirely positive[,]” but argued it provided “a candid, even-handed risk assessment” that, “taken as a whole[,] . . . provide[s] important mitigation evidence (including the dampening effect of age on rate of recidivism) that would have supported a less draconian sentence.” (Resp't Ex. 118 at 22.) Petitioner thus argued that it was “unthinkable” that trial counsel proceeded through sentencing without presenting a psychosexual evaluation like Dr. Linn's, and that doing so would have tended to persuade the trial court to impose “something less than fully consecutive sentences.” (Id.; Resp't Ex. 125 at 9.)
In opposition, the State submitted the declaration of Petitioner's trial counsel, a seasoned criminal attorney. (Resp't Ex. 124 ¶ 2.) In the declaration, trial counsel attested that when she has any concerns about a client's mental health or cognitive abilities, she secures an evaluation “very early” in the case to aid in plea negotiations and to determine if there is a viable diminished capacity or guilty except for insanity defense. (Id. ¶ 4.) Trial counsel attested that she retained Dr. Steven Mussack to conduct such an evaluation for Petitioner, which ultimately “raised no red flags requiring further cognitive testing and was not helpful” to Petitioner. (Id.) Trial counsel further explained that because Petitioner “was adamant that he was innocent” and refused to accept the State's plea offer, she focused her efforts on cultivating a defense that “highlight[ed] the years of foster care Petitioner provided to very difficult children-many of whom suffered from sexual and physical trauma and were predatory themselves.” (Id. ¶ 3.) Trial counsel attested that after presenting over fifty defense witnesses at trial to show that Petitioner “was [a] hardworking and capable foster parent with constant supervision and monitoring” by the Oregon Department of Human Services, child therapists, and other medical professionals, it “made no sense” to present evidence at sentencing that was at odds with that narrative:
Having spent [eleven] weeks before the court trying to convince the jury that Petitioner was hard-working and capable and diligent as a foster care provider (with training) for so many difficult children, it made no sense to put on a mitigation case that attempted to show Petitioner had some sort of developmental delay or otherwise diminished capacity. Based on my experience, that approach at sentencing would not have helped petitioner and could have hurt him. In particular, based on my experience before Judge Branford, presenting that evidence in an attempt to get a more lenient sentence after an extensive trial focused on proving the opposite would very likely have been more harmful to Petitioner than helpful.(Id. ¶¶ 3, 5.)
The postconviction court rejected Petitioner's ineffective assistance claim, finding that Petitioner “failed to prove that his attorney was ineffective for failing to offer mitigation at sentencing in the form of a sex offender evaluation and other evidence.” (Resp't Ex. 126 at 2.) Finding trial counsel's testimony credible, the postconviction court determined that Petitioner had not overcome the presumption that trial counsel had “followed a sound and reasonable strategy[,]” explaining:
The psychosexual evaluation [by Dr. Mussack] was obtained to secure a plea offer which the Petitioner rejected. Petitioner maintained his innocence and proceeded to trial. Trial counsel presented 50 witnesses over four weeks of testimony in an effort to portray petitioner as hardworking, capable, honest, and trustworthy. The trial court heard the evidence, sitting through 11 weeks of trial. In that context, presenting a sexual offender evaluation in an attempt to persuade the trial court to sentence Petitioner more leniently did not make sense, particularly in light of Petitioner's continued insistence on innocence. It also made no sense to put on a mitigation case that attempted to show petitioner had some
sort of developmental delay or otherwise diminished capacity. Trial counsel's strategy was reasonable.(Id. at 2.) The postconviction also found that Petitioner failed to prove that trial counsel's sentencing strategy had resulted in prejudice:
Petitioner has failed to prove that submission of psychosexual evaluation, such as Dr. Linn's, would have had a tendency to change the outcome of the sentence. All but one of the charges were Measure 11 crimes and the judge imposed the mandatory minimum sentence. The only real discretion that he had was whether to impose consecutive sentences. The sentencing judge sat through 11 weeks of testimony and the transcript of the sentencing makes it clear that it was his intent to sentence Petitioner for as long as possible to protect other children from Petitioner's predatory ways in the future. There is no reason to believe that Dr. Linn's report would have changed the trial judge's decision on consecutive sentences.(Id.)
Upon review, this Court concludes that the postconviction court's ruling was not objectively unreasonable.As the postconviction court noted, trial counsel obtained a psychosexual evaluation of Petitioner prior to trial, which revealed no “red flags” signaling the need for additional cognitive testing and otherwise was not helpful to Petitioner's claims of innocence. Given that trial counsel already possessed a psychosexual evaluation of Petitioner, and that such evaluation did not suggest that further cognitive testing was necessary or helpful, it was not unreasonable for trial counsel to forgo additional investigation concerning Petitioner's mental health and cognitive functioning. SeeBabbitt v. Calderont 151 F.3d 1170, 1173 (9th Cir. 1998) (explaining that “[w]hile a lawyer is under a duty to make reasonable investigations, a lawyer may make a reasonable determination that particular investigations are unnecessary”). This is especially true where trial counsel determined, based on her significant criminal experience and familiarity with the trial judge, that attempting to recast Petitioner as suffering from some kind of diminished capacity, after having presented extensive evidence to the contrary, would not only be unsuccessful in securing a more lenient sentence, but might also affirmatively harm Petitioner. See Strickland, 466 U.S. at 690-91 (explaining that “when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable”).
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).
To the extent Petitioner argues in his supporting brief that trial counsel's performance was per se deficient for failing to conduct a mitigation investigation prior to sentencing, such claim was not presented to the Oregon courts and therefore is procedurally defaulted. In addition, Petitioner presents no authority that such a brightline rule exists with respect to sentencing in non-capital cases.
Furthermore, Petitioner's insistence that the trial court would have been persuaded to impose less than fully concurrent sentences if trial counsel had presented evidence concerning his learning disability and amenability to rehabilitation, is at odds with the trial court's findings that Petitioner's conduct was preplanned, “calculated,” and “scheming,” and Dr. Linn's conclusion that Petitioner's denial, refusal to acknowledge any wrongdoing, and possible sexual deviation could impede treatment and rehabilitation. Thus, as Respondent points out, even if trial counsel had presented Dr. Linn's admittedly mixed report, the trial court still reasonably could have concluded that the lengthy sentence imposed was necessary to protect children from Petitioner's “predatory ways.”
Upon consideration of the record and Petitioner's arguments, the Court cannot conclude that the postconviction court's decision denying relief is “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 Part One of Ground Four.
II. Unargued Claims
Petitioner does not argue the merits of Grounds One, Two, Three, or Ground Four, Part Two. In addition, Petitioner does not challenge Respondent's arguments that those grounds are not cognizable, are procedurally defaulted, or were denied by the state court in decision entitled to deference. Accordingly, habeas relief is precluded as to Grounds One, Two, Three, and Ground Four, Part Two because Petitioner has failed to sustain his burden of demonstrating entitlement to habeas relief on those claims. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (recognizing that a habeas petitioner carries the burden of proving his case).
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.