Opinion
6:17-cv-01930-SB
11-16-2021
GREGORY SIEFKEN, Petitioner, v. BRANDON KELLY, Respondent.
FINDINGS AND RECOMMENDATION
HON. STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE
Petitioner Gregory Siefken (“Petitioner”) filed this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the following reasons, the district judge should deny the Amended Petition for Writ of Habeas Corpus (ECF No. 50) and decline to issue a certificate of appealability.
BACKGROUND
On October 16, 2002, a Yamhill County grand jury returned an indictment charging Petitioner with five counts of Rape in the First Degree; two counts of Sodomy in the First Degree; three counts each of Rape in the Second Degree and Rape in the Third Degree; and two counts each of Sodomy in the Second Degree and Sodomy in the Third Degree. (Resp't Exs. (ECF No. 26), Ex. 102.) The charges arose from Petitioner's conduct with his stepdaughter, “CF”, on numerous occasions between September 1999 and August 2002. (Resp't Ex. 102 at 1, 3.) Petitioner pleaded not guilty to all counts and proceeded to trial before a jury on September 23, 2003.
I.TRIAL COURT PROCEEDINGS
A. The State's Case at Trial
The state asserted at trial that Petitioner had sexually abused the victim, CF, over the course of several years. The state built its case on a variety of evidence, including the testimonies of the victim, CF, and several individuals to whom CF disclosed the abuse; a recording of a pretext phone call between CF and Petitioner in which Petitioner made several incriminating statements; and medical evidence gathered during CF's child abuse assessment soon after her disclosure.
1. CF's Disclosure
CF, who was fifteen at the time of trial, testified that her stepfather, Petitioner, began having sexual intercourse with her when she was in the sixth grade. (Tr. (ECF Nos. 27, 28), 619-20.) CF testified that it first happened in the woods on a large farm-like property in Sheridan, Oregon (the “property”), where she lived with Petitioner, her mother, her younger brother (“TF”), Petitioner's daughter (“Shoshanna”), and Shoshanna's young son. (Tr. 613-15, 621.) CF testified that Petitioner continued having sex with her on a regular basis-“[a]bout once a week” unless she was menstruating-for a period of years. (Tr. 621, 624-25.) CF testified that it often happened in the woods or in Petitioner's bedroom, and that it usually happened on Friday or Saturday when she came home early from school or when her mother was out running errands. (Tr. 620, 625-26.) CF testified that she also engaged in oral sex with Petitioner on several occasions, including once in the summer of 2002 when she gave Petitioner oral sex as a “birthday present.” (Tr. 622-23, 626.) CF testified that Petitioner warned her that if anyone ever found out, he would go to jail and the family's wolves would be put down. (Tr. 634, 655.)
The Court cites the page numbers listed in the lower right corner of the trial transcript.
The family kept approximately twenty wolves in a federally licensed wolf habitat on the property. CF cared about the wolves and understood that they were an important part of the family. (Tr. 634, 733-34.)
“CS, ” who attended Sheridan High School with CF, testified that she heard a rumor that CF might be pregnant in the fall of 2002. (Tr. 689-90.) CS testified that she asked CF about the rumor during class and CF confirmed she might be pregnant. When asked, CF refused to identify the father, stating only that it was no one CS knew and that he was “older”-“maybe in his fifties[.]” (Tr. 691-92.) CS testified that CF eventually “started crying and [revealed that the father] was her stepdad[.]” (Tr. 692.) CF “made” CS promise not to tell anyone. (Id.)
CS testified that CF was upset and left their next class. (Tr. 693.) CS testified that she went looking for CF and found her in the restroom, “standing in the corner crying.” (Tr. 694.) CS testified that she tried to continue discussing the pregnancy with CF, but that there was someone in the bathroom stall and CF “didn't want [that] person . . . to know what [they] were talking about.” (Id.)
The individual in the stall emerged and it was the music teacher, Noreen Fleishman (“Fleishman”), who asked CF if she was okay and why she was crying. (Tr. 695.) CS “nudged” CF to tell Fleishman about the pregnancy but CF “said that she couldn't tell . . . because she didn't want to get anybody in trouble and didn't want anybody to be mad at her.” (Id.) CF eventually told Fleishman that she thought she was pregnant but did not reveal the identity of the prospective father. (Tr. 707.) Over CF's objection, Fleishman took CF to see the school counselor. (Tr. 706.)
CF testified that Fleishman overheard her tell CS that Petitioner was the father while in the restroom. (Tr. 647.) CF testified that she then asked Fleishman not to involve the police because she loved Petitioner and did not want to get him into trouble. (Tr. 648.)
Fleishman testified that in the school counselor's office, CF was crying uncontrollably, “violently shaking[, ] . . . [and] pale.” (Id.) In response to questioning, CF again disclosed that she might be pregnant, and eventually revealed that Petitioner was the father. (Tr. 707, 714.) Fleishman testified that CF stated “that she loved [Petitioner, ] . . . [and] didn't want to hurt him.” (Tr. 707.) Fleishman further testified that CF tried to take responsibility for the situation, explaining that “whenever it happened, it was always her choice” and “that [Petitioner] . . . apparently [had] said, if you want to stop, I will stop” and “she never told him to, so he didn't.” (Id.) The school counselor subsequently reported CF's allegations to child protective services. (Tr. 714.)
Within hours, Becky Brewster (“Brewster”), a child protective service worker for the State of Oregon, and Russell Ludwig (“Ludwig”), a detective for the Yamhill County Sheriff's Office, arrived at Sheridan High School and interviewed CF. (Tr. 821-22, 826, 858-59.) During the interview, CF reported that “her stepdad . . . had been having sex with her for the last couple of years, and [that] she was very afraid she was pregnant.” (Tr. 826, 859.) CF stated that she had never had sex with anyone other than Petitioner, and insisted that “he love[d] her[, ] . . . really care[d] about her[, ] . . . [and was] always nice to her.” (Tr. 826, 862.)
Upon further questioning, CF told Brewster and Ludwig that it had been two months since she last had sexual contact with Petitioner. (Tr. 827, 861.) CF explained that she had told Petitioner that “she liked a boy her age[, ]” and that Petitioner had become angry and “told her she was making a big mistake.” (Tr. 827.) CF stated that since then, Petitioner had “stopped caring for her” and “hardly talked to her.” (Id.)
CF also told the investigators that her mother had caught her with Petitioner on two occasions, including once when CF “had her pants undone.” (Tr. 862.) However, Petitioner “lied about it . . . [and] told her [mother] that she was trying to cause problems.” (Id.) CF stated that she did not disclose the abuse to her mother because she “didn't want to get in trouble” and because “her mother was jealous of her.” (Id.) CF's mother verified that at the time of CF's disclosure her relationship with CF was “caustic, ” and that it had so drastically deteriorated that they were not speaking at the time of trial. (Tr. 729, 741-42.)
Brewster testified that during the initial investigation, CF's mother told her “that she had caught [Petitioner] and her daughter [CF] in some kind of compromising situation at one point and thought something was going on, and that they had both denied it to her.” (Tr. 831.) When asked about this statement at trial, CF's mother testified that she could not recall Brewster asking her if she had observed a “sexually compromising” situation between CF and Petitioner; that she never observed CF and Petitioner in a situation that suggested that they were sexually involved; and that she never had concerns about CF and Petitioner's relationship. (Tr. 735-36.)
Evidence in the record indicates that jealousy may have been a factor in the strained relationship between CF and her mother. For example, Brewster testified that upon learning of CF's allegations, CF's mother commented, “wouldn't that be something if [CF] is getting [sex] and I hardly get any[.]” (Tr. 835.) She then stated that she did not “mean to sound jealous[.]” (Id.) Petitioner also alluded to jealousy between CF and her mother when he was interviewed by Ludwig, explaining that “[CF] would hug him and smooch him in front of her mother[, ]” which “was a problem.” (Tr. 865.)
2. The Pretext Phone Call
After the interview, CF agreed to participate in a pretext phone call to Petitioner. (Tr. 863.) During the recorded call, which was played for the jury in its entirety, Petitioner made several incriminating statements:
. . . .
[CF]:Greg, I'm pregnant.
[Petitioner]:Just a minute, what?!
[CF]:I'm pregnant
[Petitioner]:Who told you that?
[CF]:I took a test this morning
[Petitioner]:Yeah?
[CF]:and it showed up positive . . . .
[Petitioner]:I don't see how it could be positive 'cause you just had your period
[CF]:No, I had one day and it did not do anything
[Petitioner]:Well you had it last month
[CF]:I don't have it, it showed up positive, I don't know what to do . . . .
[Petitioner]: Where are you at?
[CF]:I'm at school
[Petitioner]:You're talking like that on the phone?
[CF]:Yes
[Petitioner]:That's not very smart. Whose [sic] with ya?
[CF]:No one
[Petitioner]:Well, (sigh), it's been more than two months and you had your period last month
[CF]:I don't know
[Petitioner]:Well it has been more than two months and you had your period last month, so it's a good possibility that your test is wrong . . . they are wrong quite often
[CF]:Okay, I can, I dunno I'll just . . . . . . .
[Petitioner]:. . . the truth of the matter is . . . is that you've had your period since then, and we both know that
[CF]:Okay, but . . .
[Petitioner]:No, I'm serious
[CF]:(sigh), I don't know what to do
[Petitioner]:Well, is that or is that not true
[CF]:I think so, I don't know
. . . .
[Petitioner]:Well the thing is, if you don't know for sure [that you're pregnant] right now, then why are you calling and doing all this on the phone
[CF]:I don't know
[Petitioner]:'Cause, even if you're not and you're talking like that, it won't make any difference anyway
[CF]:Okay
[Petitioner]:Cause everybody's gonna be in a whole bunch of shit
[CF]:I-I I don't know
[Petitioner]:Why is it you did the test in the first place?
[CF]:Because normally my periods are seven days, not one
[Petitioner]:You have had odd pe . . . excuse me, odd periods before
[CF]:Once . . . .
[Petitioner]:And who knows you took the test?
[CF]:[CF's friend, “K”]
[Petitioner]:Wha[t] . . . that's the dumbest thing you could ever do
[CF]:I'm sorry
[Petitioner]:Sorry won't make a bit of difference, it won't change anything, won't change a darn thing
[CF]:Okay
[Petitioner]:Well, I mean it's way too late now
[CF]:I'm, I'm just gonna go to the game
[Petitioner]:And what is it you told [K]
[CF]:I told K that the test showed positive
[Petitioner]:And what did [K] say
[CF]:She said that I need to talk to my parents
[Petitioner]:And did she ask you who the father was?
[CF]:Yes
[Petitioner]:And you told her what?
[CF]:You
[Petitioner]:You did?
[CF]:Yeah . . .
[Petitioner]: and she tells her mother, and her mother tells . . . and everybody else, and everyone else comes and arrests me and they throw me in jail. Thank you very much.
[CF]:(Crying) I'm sorry
[Petitioner]: Sorry ain't gonna do it [CF], you're either gonna have to figure it out what's going on, ‘cause it ain't me
[CF]:Well it's not anybody else
[Petitioner]: Well you don't know you're pregnant. You took a pregnancy, a home pregnancy test and it came up positive. Happens all the time . . . .
[CF]:I just, maybe we should never have done what we did
[Petitioner]: It doesn't really make any difference what was, or wasn't done, [CF]
[CF]:(Sigh)
[Petitioner]:You can't go back and say okay I was just upset and I just said that
[CF]:(Sigh)
[Petitioner]:Can ya?
[CF]:No I can't
[Petitioner]:I mean you can, you can say that
. . . .
[Petitioner]: This is really bad timing, we're going to have to sit down and talk to your mother and Shosh[anna] about this tonight and do damage control
[CF]:What are you going to tell mom?
[Petitioner]: Uh . . . when you're there, after I've spoken to you, and after I find out what the hell you're thinking and what you're saying and what you're going to say and what you're not going to say. But there's going to have to be blood tests and there's going to have to be court testimony, there's going to have to be everything going on now that you've done that
. . . .
[Petitioner]: I'm going to have to talk to your mother about it, I don't really have any choice
[CF]:So mom's gonna know that we had sex
[Petitioner]: What, no she's not going to know because I'm going to deny it. Where you at
[CF]:I'm at school
. . . .
[Petitioner]: Uh, well I really think you should come home now and discuss this so you know what you're going to say to your mother, because this is a life changing event for every single person who lives in this household including the horses, the future of the whole property, which everything was going really wonderful just recently. And figure out what the hell is really going on and give your mom a buzz and tell her she needs to head on home and find out what the hell is going on. Don't you think?
. . . .
[CF]:Okay[]
[Petitioner]:Okay which
[CF]:Okay I'll see if I can get a hold of mom
[Petitioner]: I'll talk to your mother first[]
[CF]:Okay
[Petitioner]: And I would appreciate it if you wouldn't go[] around telling people that we had sex and you are pregnant with my child
[CF]:Okay
[Petitioner]: I would really appreciate that. Because whether it's true or not true, it's all going to make no difference in the end; and I can say no I'm not, and you can say yes he is, they can do all kinds of blood tests and stuff, and then they're going to find out that no he's not. And regardless of how that works . . . in any case you're probably not pregnant anyway and you just threatened everybody's life(Resp't Ex. 104 at 40-48.)
3. CF's Assessment at Juliette's House
Two days later, on October 10, 2002, Brewster arranged for CF to be seen at Juliette's House, a child abuse assessment center. (Tr. 839.) There, CF participated in an interview with a medically trained forensic interviewer, Jennifer Mason (“Mason”), and underwent a “head-to-toe” physical examination conducted by Dr. Robert Moore (“Dr. Moore”). (Tr. 911-12.)
Mason testified that CF disclosed “that for the past two years . . . she had been having sexual intercourse with her stepdad . . . approximately one time per week.” (Tr. 912.) Mason stated that CF “also said that he [p]ut his penis in her mouth and ejaculated [and] described him laughing about that.” (Id.) Mason testified that CF further “described [Petitioner] fondling her breasts with his hand . . . [a]nd inserting a couple of his fingers into her vaginal area.” (Id.) The State then played a video recording of CF's interview for the jury. (Tr. 917.)
Mason testified that during the interview, CF did not appear to be angry at or dislike Petitioner, but rather “spoke fondly” of him because “he treated her like she was special” and “was the only one that was ever really nice to her.” (Tr. 926-28.) Mason testified that even though it is difficult for a child who has been abused over several years to distinguish between events, CF was able to provide specific details about what had occurred, including “the places that it . . . happen[ed], the time frame, the frequency[, ] . . . how it felt, . . . [and] the use of protection [or] not using protection[.]” (Tr. 951-52.) Mason testified that she did not find inconsistencies in CF's reporting to be cause for concern because “it is not uncommon” for a child who has experienced a series of traumatic events “to not always report exactly the same thing every single time.” (Tr. 953.) Mason explained that so long as “the bulk of [the child's] disclosure is the same[, ]” she considers the disclosure valid. (Id.)
Dr. Moore testified that he conducted a “complete [physical] exam [of CF that included] height, weight, blood pressure, eyes, ears and throat as well as [a] genital examination[.]” (Tr. 979.) Dr. Moore testified that CF's genital examination “was especially significant” because it revealed that CF's “vaginal opening was like that of a mature adult.” (Tr. 980.) Specifically, Dr. Moore testified that CF had “no remnant of hymenal tissue[, ]” the “fibrous membrane . . . which surrounds the opening of the vagina[, ]” which is unusual for a child CF's age. (Tr. 979-80.) Dr. Moore explained that such findings are “consistent with a child who had been sexually active, who had sexual intercourse, not just once or twice, but repeatedly over a period of time so that all the hymenal tissue is destroyed and there is no remnant of that at all.” (Tr. 981.) In light of CF's “very descriptive story of various types of sexual abuse[, ]” and “physical findings that were entirely consistent with what she described[, ]” Dr. Moore diagnosed CF as having been sexually abused. (Tr. 990.)
B. The Defense Theory at Trial
The defense presented a theory of reasonable doubt that largely focused on CF's credibility. Throughout the trial, the defense pointed out inconsistencies in CF's reporting and argued that CF had fabricated the allegations against Petitioner because she hated her mother; because she was angry that her mother, Petitioner, and Shoshanna had forbidden her to continue seeing an older boyfriend (“AH”), during a family meeting that occurred two days before her disclosure; and because she had a history of behavioral issues that included lying, stealing, aggression, and mood swings. (Tr. 1233-56.) The defense also attempted to undermine the State's case by challenging the adequacy of the underlying investigation and by presenting several witnesses who testified as to Petitioner's reputation for sexual propriety and CF's reputation for dishonesty. (Tr. 1066-1120.)
Notably, the defense sought to counter the State's medical evidence by establishing that Dr. Moore's physical findings could have been caused by masturbation rather than repeated sexual intercourse. In support of this theory, the defense introduced a red and white “light stick” that CF admitted to using for self-stimulation, as well as the testimony of CF's younger brother, TF, who stated that CF made comments implying that she had used a yellow toothbrush holder for similar purposes. (Tr. 641-43, 655-57, 1361-64.) When asked how CF's use of the light stick related to his findings, Dr. Moore conceded that he could not “say it is impossible for [the light stick] to be used to totally erode the hymenal tissue[.]” (Tr. 986.) He opined, however, that the light stick was likely too small to do so without being inserted “lots of times.” (Id.)
Petitioner's daughter, Shoshanna, and her friend, Angie Bernards, found the light stick and toothbrush holder in CF's dresser drawer while searching her bedroom soon after the disclosure. (Tr. 1149-52.)
CF testified that she used the light stick for self-stimulation “once.” (Tr. 641.)
The defense also presented an expert, Dr. Elizabeth Newhall (“Dr. Newhall”), who disagreed with Dr. Moore's conclusion that CF's genital examination necessarily was indicative of repeated vaginal intercourse. Dr. Newhall testified that “a [fourteen] year old girl's vagina [could] look like she had sexual intercourse from using objects . . . to sexually stimulate herself[.]” (Tr. 1391, 1395.) Dr. Newhall further opined that depending on the object and the child's age, “you could conceivably do more damage with an object than you could do [through sexual intercourse].” (Tr. 1391.)
In addition, Petitioner testified on his own behalf and denied having sexual intercourse with CF. (Tr. 1518.) Among other things, Petitioner testified that CF's allegations could not be true because he was in ill health and had problems with his prostate. (Tr. 1514.) Petitioner also sought to clarify his comments during the pretext phone call, explaining that he “primarily wanted to find out if [CF] was pregnant or not because any accusation [that he was the father] would be cleared up with a blood test anyway.” (Tr. 1518.) Petitioner further explained that he did not rebut CF's accusation that he was the father or accuse her of making a false allegation of abuse against him because “we both already [knew] that she [was] lying about me.” (Tr. 1525.)
The jury acquitted Petitioner on all five counts of Rape in the First Degree but returned guilty verdicts on all remaining charges. (Tr. 1282-83.) The jury's guilty verdicts were not unanimous. (Tr. 1283-1303.) The trial court ultimately sentenced Petitioner to a custodial term of fifteen years followed by a term of post-prison supervision totaling twelve years. (Resp't Ex. 101.)
At the close of the State's evidence, the trial court dismissed Counts 6, 7, 11, and 12 on Petitioner's motion for judgment of acquittal. (Tr. 1027.) Petitioner was thus convicted on eight of the seventeen charges brought against him: three counts each of Rape in the Second Degree and Rape in the Third Degree, and two counts of Sodomy in the Third Degree. (Tr. 1282-83.)
II. DIRECT APPEAL PROCEEDINGS
Petitioner filed a direct appeal, raising six assignments of error:
ASSIGNMENT OF ERROR NO. 1: The trial court erred in denying defendant's motion to suppress.
ASSIGNMENT OF ERROR NO. 2: The trial court erred in denying defendant's “motion to dismiss, or in the alternative, motion to exclude evidence of tape recording and testimony of Detective Ludwig.”
ASSIGNMENT OF ERROR NO. 3: The trial court erred in failing to give defendant's proposed special instructions to the jury, concerning the evidence of sexual propriety.
ASSIGNMENT OF ERROR NO. 4: The trial court erred when it imposed sentence under Measure 11 rather than under the sentencing guidelines.
ASSIGNMENT OF ERROR NO. 5: The trial court erred in denying defendant's motion for access to jury records.
ASSIGNMENT OF ERROR NO. 6: The trial court erred in imposing consecutive sentences in this case.(Resp't Ex. 103 at 2-4.) The Oregon Court of Appeals affirmed without opinion, State v. Siefken, 213 Or.App. 391 (2007), and the Oregon Supreme Court denied review, State v. Siefken, 344 Or. 280 (2008).
III. STATE POSTCONVICTION PROCEEDINGS
Petitioner next sought post-conviction relief, and eventually amended the petition with the assistance of counsel. In the second amended petition, Petitioner raised numerous ineffectiveness claims stemming from both trial and appellate counsel's representation, as well as several claims of trial court error. (Resp't Ex. 110 at 3-7.) After an evidentiary hearing, the post-conviction court denied relief. (Resp't Exs. 134 at 41-42; 135 at 2-3.)
Petitioner appealed the postconviction court's judgment, raising only two assignments of error in his counseled brief:
FIRST ASSIGNMENT OF ERROR: The post-conviction court erred when it denied petitioner relief on his claim that he was denied his right to adequate assistance of trial counsel[] when counsel failed to offer into evidence a handwritten note describing sexual behavior with someone other than petitioner.
SECOND ASSIGNMENT OF ERROR: The post-conviction court erred when it denied petitioner relief on his claim that he was denied his right to adequate assistance of trial counsel when counsel failed to offer into evidence that C[F] “made out” with a boy all night when C[F] lived with a foster family.(Resp't Ex. 136 at 3.) Petitioner also filed a supplemental pro se brief, raising an additional assignment of error, as follows:
SUPPLEMENTAL QUESTION PRESENTED: Did the post-conviction court err when it failed to grant relief for trial counsels' failure to properly object to the admissibility of the prosecution's evidence of communications between Petitioner and the prosecution's complaining witness which was intercepted/obtained in violation of ORS 42.910 and ORS 165.540(2)(a)(B)?(Resp't Ex. 137 at 3.)
The Oregon Court of Appeals issued a written opinion addressing Petitioner's first assignment of error, finding that “[b]ecause the record contains no basis on which the post-conviction court could determine that the note could have been authenticated at petitioner's criminal trial, petitioner failed to establish that he was prejudiced when his trial counsel did not offer that note into evidence.” (Resp't Ex. 140 at 7.) The Oregon Court of Appeals thus affirmed the postconviction court's denial of relief on that basis and rejected Petitioner's remaining assignments of error without comment. (Id. at 2 n.1, 7.) The Oregon Supreme Court denied review. (Resp't Ex. 143.)
IV. FEDERAL HABEAS PROCEEDINGS
On December 1, 2017, Petitioner filed a pro se Petition for Writ of Habeas Corpus in this Court. (ECF No. 2.) On October 28, 2019, Petitioner filed an amended petition raising four grounds for relief, each with numerous subclaims, based on ineffective assistance of trial and appellate counsel, trial court error, and Petitioner's conviction by a non-unanimous jury.
While this case was pending, the Supreme Court decided Ramos v. Louisiana, 590 U.S., 140 S.Ct. 1390 (2020), holding that the Sixth Amendment right to a jury trial, as incorporated against the States by the Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a serious offense. Ramos, 140 S.Ct. at 1397. On May 4, 2020, the Supreme Court granted certiorari in Edwards v. Vannoy, 141 S.Ct. 1547 (2021), to consider whether its decision in Ramos applies retroactively to cases on federal collateral review. On June 5, 2020, this Court granted Petitioner's request to stay these proceedings pending the Supreme Court's decision in Edwards. (ECF No. 72.) On May 17, 2021, the Supreme Court issued a ruling in Edwards, holding that Ramos does not apply retroactively on federal collateral review. Edwards, 141 S.Ct. at 1559. Soon thereafter, the Court lifted the stay and, after additional briefing, took the Petition under advisement on August 12, 2021.
Petitioner does not address in his supporting brief all grounds raised in the amended petition, instead arguing the merits of only subclaim (5) of the First Ground for Relief (“subclaim (5)”). (Am. Pet. (ECF No. 50), at 2-5.) Respondent urges the Court to deny habeas relief, arguing that the state court decision denying relief on subclaim (5) is entitled to deference; that to the extent Petitioner failed fairly to present his remaining claims to the Oregon courts, they are procedurally defaulted; and that Petitioner cannot establish cause and prejudice to overcome the default. In the alternative, Respondent argues that Petitioner has failed to sustain his burden of demonstrating entitlement to habeas relief on all unaddressed claims. (Resp. to Am. Pet. (ECF No. 14), at 13-14; Reply (ECF No. 40), at 3-4.)
Petitioner also argues in his supporting brief the merits of Ground Four-the Sixth Amendment challenge to his conviction by a non-unanimous jury-but appears to concede in his Response that Edwards forecloses relief on that claim. (Pet'r's Resp. to Resp't Reply (ECF No. 86), at 1-2.) The Court thus notes without further discussion that habeas relief is not warranted with respect to Ground Four.
The Court cites to the ECF-assigned pagination when citing to the parties' briefing in this case.
DISCUSSION
I. SUBCLAIM (5)
In subclaim (5), Petitioner asserts that “[t]rial counsel . . . provided ineffective assistance . . . . [by] fail[ing] to properly admit evidence of specific instances of sexual behavior engaged in by the alleged victim, pursuant to [Oregon Evidence Code (“OEC”)] 412 [.]” Specifically, Petitioner argues that his trial attorneys failed to investigate and admit “the most significant defense evidence” available: evidence that CF and her younger brother, TF, sexually acted out together, and a handwritten note in which CF purportedly admits to having sex with a nineteen-year-old boy. (Pet'r's Br. (ECF No. 54), at 26.) Petitioner argues that this evidence “was critical both to explain the medical evidence and [to] provide context for [his] statements during [the pretext] call.” (Id. at 28.)
As relevant here, OEC 412 provides that evidence of an alleged victim's past sexual behavior is not admissible unless it relates to the motive or bias of the alleged victim; is necessary to rebut or explain scientific, medical, or testimonial evidence offered by the State; or is otherwise constitutionally required to be admitted. Or. Rev. Stat. § 40.210(2)(b). Any qualifying evidence under OEC 412 must be admitted in accordance with specific procedures as set forth in the statute, including the admitting party's compliance with a fifteen-day notice requirement. Or. Rev. Stat. § 40.210(4).
In his supporting brief, Petitioner documents at length trial counsel's efforts to introduce the light stick and toothbrush holder pursuant to OEC 412. (Pet'r's Br. at 9-19.) The proper introduction of those items, particularly with respect to OEC 412's fifteen-day notice requirement, was the subject of significant dispute between the parties. Petitioner asserts that his trial attorneys were ineffective “with respect to the Rule 412 litigation” because they “filed an incomplete and untimely motion to allow evidence of CF's prior sexual conduct[.]” However, the Court understands the focus of subclaim (5) to be trial counsel's ineffectiveness with respect to their failure to introduce the note and evidence of CF's sexual involvement with TF, not their efforts involving the admission of the light stick and toothbrush holder. (Pet'r's Br. at 27.) To the extent Petitioner seeks to include in subclaim (5) trial counsel's conduct litigating the admissibility issues associated with the light stick and toothbrush holder, Petitioner was not prejudiced by counsel's untimeliness because the trial court ultimately admitted the light stick into evidence and the jury heard testimony from CF's brother about CF's use of the toothbrush holder. (Tr. 643, 1364.) Trial counsel's performance with respect to that litigation otherwise is not relevant in determining whether trial counsel's decision not to introduce the note or evidence of CF's conduct with TF was ineffective.
A. Trial Counsel's Failure to Investigate and Introduce Evidence of CF and TF's Sexual Involvement
1. Legal Standards
a. Exhaustion and Procedural Default
A habeas petitioner generally must exhaust all remedies available in state court, either on direct appeal or through collateral proceedings, before a federal court may consider granting habeas relief. See 28 U.S.C. § 2254(b)(1)(A) (instructing that a court may not issue a writ of habeas corpus on an individual in state custody's behalf unless “the applicant has exhausted the remedies available in the courts of the State”); see also Smith v. Baldwin, 510 F.3d 1127, 1137 (9th Cir. 2007) (noting that an individual in custody must first exhaust available remedies before a federal court may consider a habeas petition on the merits). Generally, a petitioner satisfies the exhaustion requirement “by fairly presenting the federal claim to the appropriate state courts . . . in the manner required by the state courts, thereby ‘afford[ing] the state courts a meaningful opportunity to consider allegations of legal error.'” Casey v. Moore, 386 F.3d 896, 915-16 (9th Cir. 2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 257 (1986)) (alteration in original); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (holding that “[b]ecause the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, . . . state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the state's established appellate review process”).
If a petitioner failed to present his claims to the state courts in a procedural context in which the merits of those claims actually were considered, the claims have not fairly been presented to the state courts and therefore are not eligible for federal habeas corpus review. See Edwards v. Carpenter, 529 U.S. 446, 453 (2000) (explaining that the reasons for the exhaustion requirement would be frustrated if a habeas court “allow[ed] federal review to a[n] [individual in state custody] who had presented his claim to the state court, but in such a manner that the state court could not, consistent with its own procedural rules, have entertained it”). 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. See Carpenter, 529 U.S. at 451 (explaining that a “petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance[, ]” and that the procedural default doctrine applies “whether the default in question occurred at trial, on appeal, or on state collateral attack”) (simplified); see also Coleman v. Thompson, 501 U.S. 722, 750 (1991) (noting that federal review is barred “[i]n all cases in which a[n] [individual in state custody] has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule”). An individual in state custody is barred from raising procedurally defaulted claims in federal court unless he “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.
2. Analysis
a. With Respect to Trial Counsel's Failure to Investigate and Introduce Evidence of CF and TF's Sexual Involvement, Subclaim (5) is Procedurally Defaulted
As noted, Petitioner presented to the postconviction court numerous claims for relief based on the ineffective assistance of trial counsel, one of which was a near verbatim rendering of subclaim (5):
FIRST CLAIM FOR RELIEF (5) Trial counsel . . . failed to properly admit evidence of specific instances of sexual behavior engaged in by the alleged victim, pursuant to . . . OEC 412 (1997).(Resp't Ex. 110 at 4-5.) Petitioner was deposed during the postconviction proceedings and testified in support of this claim. Specifically, Petitioner argued that his attorneys were ineffective in failing to investigate and introduce several pieces of evidence, including: 1) a bus driver's testimony about CF and a boy (“AH”) who allegedly put his hand down her pants; 2) evidence that CF and TF sexually acted out together; 3) evidence that CF had at some point been diagnosed with Borderline Personality Disorder; and 4) a handwritten note found in CF's bedroom in which she allegedly “bragged that it was not hard for her boyfriend to get her into bed.” (Resp't Exs. 111 at 23-26; 124 at 10-11, 26-31.) After conducting an evidentiary hearing, the postconviction court denied relief, finding that Petitioner failed to establish that trial counsel's representation was inadequate or that he suffered prejudice as a result. (Resp't Exs. 134 at 42; 135 at 3.)
Petitioner narrowed this claim on postconviction appeal, raising as error the postconviction court's denial of relief only with respect to trial counsel's failure to introduce the note and trial counsel's failure to introduce evidence that CF “made out” with a boy all night. (Resp't Ex. 136 at 21-22.) Petitioner did not challenge the postconviction court's decision denying relief on any other claim, and thus abandoned on postconviction appeal all other claims concerning OEC 412 evidence. The Oregon Court of Appeals rejected Petitioner's claims in a written opinion and the Oregon Supreme Court denied review.
Fair presentation required Petitioner to raise his ineffectiveness claim to the Oregon Supreme Court in a procedural context in which it would assess its merits. See Carpenter, 529 U.S. at 453 (explaining that where a petitioner fails to present his claim in a way that allows the state court to consider the claim on the merits, “it could hardly be said that, as comity and federalism require, the State had been given a fair opportunity to pass upon his claims”) (simplified). As described above, Petitioner fairly presented his ineffectiveness claim with respect to trial counsel's failure to introduce the note, and that claim is addressed in Section I(B), infra. However, Petitioner abandoned on appeal his argument concerning trial counsel's failure to introduce evidence of CF and TF's sexual involvement, and Oregon's highest court therefore did not have an opportunity to pass on the merits of that claim. See Baldwin v. Reese, 541 U.S. 27, 29 (2004) (explaining that a petitioner “must fairly present his claim in each appropriate state court (including a state supreme court with powers of discretionary review)”) (simplified). Petitioner thus failed fairly to present his ineffectiveness claim with respect to trial counsel's failure to introduce evidence that CF and TF sexually acted out together, and because he can no longer do so, it is procedurally defaulted. See Or. Rev. Stat. § 138.510(3) (setting forth a two-year limitation period in which to file for postconviction relief); Or. Rev. Stat § 138.550(3) (instructing that all grounds for relief must be asserted in the original or amended postconviction relief petition unless the grounds could not reasonably have been raised). Accordingly, this component of Petitioner's ineffectiveness claim is procedurally barred unless Petitioner can establish cause and prejudice or actual innocence to excuse the default.
In his briefing, Petitioner cites Martinez v. Ryan, 566 U.S. 1 (2012) and Schlup v. Delo, 5 13 U.S. 298 (1995), but does not appear to rely on those cases to overcome procedural default. Instead, Petitioner argues that Martinez and Schlup provide a mechanism by which the Court may consider new evidence in support of subclaim (5), a claim adjudicated on the merits in state court. To the extent Petitioner's arguments may be construed as an attempt to excuse the procedural default of his claim concerning the evidence of CF's conduct with TF, the Court addresses those arguments infra. The Court, however, rejects Petitioner's attempts to circumvent the well-established rule announced in Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011) that “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Despite Petitioner's arguments to the contrary, “Pinholster precludes the consideration of new evidence . . . for the purpose of determining whether the last reasoned state court decision was contrary to or an unreasonable determination of the facts under 28 U.S.C. § 2254(d).” Crittenden v. Chappell, 804 F.3d 998, 1010 (9th Cir. 2015) (citing Pinholster, 131 S.Ct. at 1398). Petitioner's arguments that Martinez can transform an adjudicated claim into an unadjudicated claim based on postconviction counsel's “evidentiary default” are without merit. See Jones v. Franke, No. 2:11-cv-01527-KI, 2013 WL 4026368, at *2 (D. Or. Aug. 5, 2013) (rejecting the petitioner's argument that Martinez should excuse postconviction counsel's “evidentiary default” because “Martinez does not support the conclusion that petitioner should be permitted to expand the factual record in order to support his ineffective assistance of counsel claims which were raised and rejected in the initial-review state post-conviction proceeding”); see also Whiley v. Mills, No. 3:10-cv-00365-JO, 2013 WL 840084, at *8 (D. Or. Mar. 4, 2013) (holding that “any alleged failure on [postconviction] counsel's part to thoroughly develop and support the subject ineffective assistance of trial counsel claim raised during petitioner's [] postconviction proceeding, does not bring it under Martinez's purview”).
b. Petitioner Cannot Establish Cause and Prejudice
“In Martinez v. Ryan, the Supreme Court held that ineffective assistance of counsel in an initial review state collateral proceeding may provide cause to excuse the procedural default of an ineffective assistance of trial counsel claim, provided that the defaulted claim is ‘substantial.'” Jones, 2013 WL 4026368, at *2 (citing Martinez, 566 U.S. at 13-15); see also Detrich v. Ryan, 740 F.3d 1237, 1244 (9th Cir. 2013) (noting that under Martinez, “a procedural default by state [postconviction] counsel in failing to raise trial-counsel IAC is excused if there is ‘cause' for the default”). Martinez's holding, however, “does not concern attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts.” Martinez, 566 U.S. at 16.
As noted above, Petitioner presented his claim concerning trial counsel's failure to introduce evidence that CF and TF engaged in sexual activity to the postconviction court but abandoned that argument on appeal. Martinez therefore does not apply, and Petitioner cannot establish cause and prejudice to overcome the default of this claim based on postconviction counsel's alleged ineffectiveness.
c. Petitioner Cannot Establish Actual Innocence
i. Actual Innocence Standard
“[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass” to overcome procedural default. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). A petitioner therefore may secure review of his procedurally barred claims if he “presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.” Schlup, 513 U.S. at 316. To be credible, a petitioner's claim of actual innocence must be supported with “new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Id. at 324.
In evaluating a claim of actual innocence, the Court must consider all the evidence, both old and new, and conclude that “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Id. at 327. This is an exacting standard that is satisfied “only in the extraordinary case.” House v. Bell, 547 U.S. 518, 538 (2006) (internal quotation marks omitted). Indeed, cases in which the Schlup standard has been satisfied have “typically involved dramatic new evidence of innocence.” Larson v. Soto, 742 F.3d 1083, 1096 (9th Cir. 2013).
The Ninth Circuit has made clear, however, that a petitioner raising an actual innocence claim is not required affirmatively to prove that he is innocent of the crime for which he was convicted. See Sistrunk v. Armenakis, 292 F.3d 669, 673 (9th Cir. 2002) (noting that a petitioner may satisfy Schlup by casting doubt on the conviction in ways other than “affirmatively proving innocence”). Rather, evidence “undercutting the reliability of the proof of guilt . . . can be enough to pass through the Schlup gateway.” Id. A petitioner therefore may satisfy Schlup by providing evidence that “significantly undermines or impeaches the credibility of witnesses presented at trial, if all the evidence, including new evidence, makes it ‘more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'” Gandarela v. Johnson, 286 F.3d 1080, 1086 (9th Cir. 2002) (citation omitted). Speculative or collateral impeachment evidence “falls far short of showing actual innocence.” Id.
ii. Petitioner's Evidence
In support of his actual innocence claim, Petitioner presents Exhibits B and C, the affidavits of his daughter, Shoshanna, dated August 14, 2012 and February 20, 2018, respectively. (Pet'r's Br., Exs. B, C (ECF Nos. 54-2, 54-3).) During Petitioner's trial, Shoshanna was called to testify in an offer of proof to discuss her search of CF's bedroom and the delivery of specific items to Petitioner's trial attorneys. (Tr. 1156-57.) This was done in connection with defense efforts to admit into evidence the light stick and toothbrush holder. (Tr. 1156-57, 1165.)
Shoshanna testified that she found and boxed up the light stick and toothbrush holder while searching CF's bedroom soon after Petitioner's arrest. (Tr. 1159.) Shoshanna testified that she told CF's mother about the items but could not recall if she told anyone else. (Tr. 1160.) When asked specifically if she had discussed the items with trial counsel, Shoshanna replied, “You know, there was so much happening then I don't remember all the things that happened.” (Id.) Shoshanna testified that she could not recall an exact date when she discussed the items with Petitioner's attorneys but noted that they had remained boxed up “[u]ntil just recently.” (Tr. 1160, 1164.) Shoshanna explained that she had no recollection of the timing of these events because she had been “extremely busy.” (Tr. 1164.) The evasive nature of Shoshanna's testimony later prompted the trial court to comment that “she is the most deceptive witness I heard in days.” (Tr. 1167.)
In Exhibit B, the 2012 affidavit “regarding [Shoshanna's] recollection of events surrounding evidence submitted to attorneys in [Petitioner's] 2002-2003 trial, ” Shoshanna states that she met with one of Petitioner's trial attorneys during the week of October 8, 2002 and brought to that meeting “notes written by [CF] and her friends which [she] believed would help . . . [the] case.” (Pet'r's Br., Ex. B at 1.) Shoshanna also describes finding the light stick and toothbrush holder in CF's bedroom that same week, and states that she delivered those items to Petitioner's trial attorneys around that time. (Id.) Shoshanna attests that one of Petitioner's attorneys called her the night before trial and told her “not to mention the dates these things were delivered during [her] testimony.” (Id.) Shoshanna states that she asked Petitioner's attorney if he wanted her to lie, to which he responded no, but that she should “avoid bringing up the subject during [her] testimony.” (Id.) Shoshanna attests that she did not want to lie, but because she felt the evidence was “crucial” to the defense, she “refused to answer the questions exactly.” (Id.)
The attorney at issue was deposed during Petitioner's postconviction proceedings and adamantly denied instructing Shoshanna to be vague in her testimony regarding her delivery of the objects to Petitioner's trial attorneys. (Resp't Ex. 128 at 76-77.)
In Exhibit C, the 2018 affidavit, Shoshanna states that she provided Exhibit B to Petitioner's postconviction attorney “to give validation of a handwritten note by [CF], given to [Petitioner's] trial attorneys[.]” (Pet'r's Br., Ex. C.) Shoshanna further attests that she was prepared to testify as to her “knowledge of the note and [to] substantiate any claims needed[, ]” but that Petitioner's postconviction attorney did not present Exhibit B to the postconviction court and did not call her to testify. (Id.)
Petitioner also presents Exhibit D, the declaration of CF's younger brother, TF, dated July 23, 2019. In the declaration, TF states that CF began sexually abusing him when they shared a bedroom approximately two years before her disclosure regarding Petitioner. (Pet'r's Ex. D (ECF No. 57), ¶ 3.) TF states that CF first wanted to try kissing and soon began waking him up in the middle of the night to have sex with him. (Id.) TF attests that this went on for two years until CF was moved to a different bedroom. (Id.) TF states that he disclosed the abuse to defense investigators but told them that he would not testify at Petitioner's trial about his sexual contact with CF. (Id. ¶ 4.)
Finally, Petitioner presents Exhibit E, the declaration of a family acquaintance (“KJ”), dated July 26, 2019. In the declaration, KJ states that sometime between 2000 and 2003, when he was about ten years old, CF kissed him while he was visiting the property. (Pet'r's Ex. E (ECF No. 57), ¶ 2.) KJ attests that CF subsequently initiated approximately ten episodes of escalating sexual conduct between them, culminating in a final encounter in which CF pulled her pants down and KJ “freak[ed] out and [left.]” (Id. ¶ 3.) KJ speculates that CF “was trying to initiate sexual intercourse with [him] during that last meeting[, ]” and opines that “she was sexually experienced, knew what she was doing and wanted to have sex with [him].” (Id. ¶ 4.) KJ states that these incidents occurred prior to CF's disclosures regarding Petitioner. (Id.)
CF reported Petitioner's abuse in October 2002, when she was fourteen years old. CF therefore was between twelve and fourteen years old at the time of these alleged incidents.
iii. Analysis
Petitioner seeks to establish actual innocence by providing evidence of CF's alleged sexual activity. Petitioner insists this evidence was crucial to cast doubt on the reliability of CF's testimony, to rebut Dr. Moore's findings, and to provide context for Petitioner's comments during the pretext phone call.
As an initial matter, the Court notes that evidence supporting a claim of actual innocence must be new and reliable. The Ninth Circuit has held that “[d]eclarations are not a strong form of evidence because ‘the affiants' statements are obtained without the benefit of cross-examination and an opportunity to make credibility determinations.” Garcia v. Evans, 670 Fed.Appx. 622, 623 (9th Cir. 2016); see also Cotton v. Schriro, 360 Fed.Appx. 779, 780 (9th Cir. 2009) (stating that affidavits obtained after trial without the benefit of cross-examination should be “treated with a fair degree of skepticism”). In addition, the declarations and affidavits presented here were executed long after trial, and Petitioner provides no explanation for the delay. See Herrera v. Collins, 506 U.S. 390, 423 (1993) (O'Connor, J., concurring) (finding that affidavits “produced . . . in the 11th hour with no reasonable explanation for the nearly decade-long delay” are suspect).
More importantly, however, Petitioner's evidence falls far short of “evidence of innocence so strong that [the] [C]ourt cannot have confidence in the outcome of the trial[.]” Schlup, 513 U.S. at 329. Even if Exhibits B-E conclusively established that CF at some point engaged in sexual activity with someone other than Petitioner, that fact alone does not affirmatively suggest that CF did not also engage in sexual activity with Petitioner. Indeed, evidence that CF was “sexually experienced” may have cast doubt on CF's statement that she never had sex with anyone other than Petitioner and may have provided an alternative explanation for Dr. Moore's findings, but it does little to counter Petitioner's comments during the pretext phone call, particularly his apparent acquiescence to CF's insistence that the father was “not anybody else.” Such evidence also fails to rebut CF's consistent account of having regular sexual encounters with Petitioner over the course of several years. Thus, Petitioner's evidence at most might show that some doubt exists with respect to certain aspects of this case, but that is not enough to demonstrate actual innocence. See Downs v. Hoyt, 232 F.3d 1031, 1040 (9th Cir. 2000) (noting that “[i]t is not enough that the evidence [submitted in support of an actual innocence claim] shows the existence of a reasonable doubt”); see also Lorensten v. Hood, 223 F.3d 950, 954 (9th Cir. 2000) (explaining that a petitioner must demonstrate actual innocence “by a preponderance of the evidence, and he must show not just that the evidence against him was weak, but that it was so weak that ‘no reasonable juror' would have convicted”) (simplified); Coon v. Nooth, Case No. 2:15-CV-02125-MO, 2019 WL 1118545, at *10 (D. Or. Mar. 11, 2019) (holding that even if the petitioner could present “expert forensic testimony” establishing an alternative cause of the victim's death, “this would fall far short of establishing that no reasonable juror would have voted to convict him”). The Court therefore concludes that the proffered evidence, when considered with the evidence presented at trial, is not such that no reasonable juror would have found Petitioner guilty beyond a reasonable doubt. Accordingly, Petitioner has not established that he is actually innocent, and the district judge should not excuse the procedural default.
B. Trial Counsel's Failure to Introduce the Note
1. Legal Standards
a. Deference to State-Court Decisions
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) prohibits relitigation of any claim adjudicated on the merits in state court unless such adjudication resulted in a decision that was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) was “based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d).
A state-court decision is “contrary to” clearly established federal law if it “applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, ” or if it “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” of clearly established federal law occurs if the state court correctly identifies the governing legal principle but misapplies that principle to the facts at hand. See Id. at 407 (holding that “a state-court decision involves an unreasonable application of this Court's precedent if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case”). The “unreasonable application” clause requires the state court's decision to be more than merely erroneous or incorrect. See Id. at 411 (noting that “a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court 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”).
“Clearly established Federal law” under the AEDPA “refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412; see also Thaler v. Haynes, 559 U.S. 43, 47 (2010) (noting that “[a] legal principle is ‘clearly established' within the meaning of [28 U.S.C. § 2254(d)(1)] only when it is embodied in a holding of [the Supreme] Court”). To be “clearly established, ” a Supreme Court precedent must “‘squarely address[] the issue' in the case before the state court, or ‘establish[] a legal principle that “clearly extends”' to the case before the state court. Andrews v. Davis, 798 F.3d 759, 773 (9th Cir. 2015) (citations omitted). If no “clearly established Federal law” governs the issue at bar, the federal habeas court “must defer to the state court's decision.” Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009).
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.” Pinholster, 563 U.S. at 181 (simplified); see also White v. Wheeler, 577 U.S. 73, 76-77 (2015) (acknowledging that the “AEDPA, by setting forth necessary predicates before a state-court judgment may be set aside, erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court”) (simplified). “The petitioner carries the burden of proof.” Pinholster, 563 U.S. at 181.
b. Ineffective Assistance of Counsel
An ineffective assistance of counsel claim is analyzed under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, the petitioner must show that counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 686. That showing requires the petitioner to overcome a strong presumption 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 therefore is satisfied only if “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed . . . by the Sixth Amendment.” Id. at 687.
Second, a petitioner must demonstrate prejudice: “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome.” Id. Therefore, it is not enough if counsel's errors had only “some conceivable effect on the outcome of the proceeding.” Id. at 693. Counsel's errors must have been “so serious as to deprive [the petitioner] of a fair trial, a trial whose result is reliable.” Id. In making the prejudice determination, the Court must “consider the totality of the evidence before the judge or jury.” Id. at 695.
Analyzing an ineffective assistance of counsel claim under the AEDPA is “all the more difficult” because both standards are “highly deferential and when the two apply in tandem, review is ‘doubly' so.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (citations omitted). The question under such circumstances “is not whether counsel's actions were reasonable.” Id. Rather, the court must determine “whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id.
2. Analysis
As explained above, Petitioner challenged in his postconviction proceedings trial counsel's failure to introduce a handwritten note in which CF allegedly admits “that she had sex with a [nineteen] year old.” (Resp't Exs. 111 at 19.) In support of this claim, Petitioner submitted a copy of the note, which consists of a back-and-forth exchange between two unidentified individuals about a potential pregnancy that proceeds, in relevant part, as follows:
Person 1: You gonna tell your sister 1st?
Person 2: Ya, then my dad. Then if I have to [tell] my mom.
Person 1: Your dad would be cool about it?
Person 2: Yes and no he'd get scared and be motherly but he won't rip off my head and shit down my neck
Person 1: Ha! I see! Well how did this certain someone get you in bed?
Person 2: It wasn't hard to do for him:)
Person 1: Oh, you really love this guy?
Person 2: Ya, but I don't know what his reaction will be.
Person 1: Probably screw this! He's over 18?
Person 2: Yea, no he won't leave me I won't let him.(Resp't Ex. 113.) Petitioner also testified in support of this claim in his deposition, stating that trial counsel had the note for over a year but nevertheless failed to offer it as evidence at trial. (Resp't Ex. 111 at 19.)
The postconviction court ultimately rejected Petitioner's claim, explaining that there was no foundation for admitting the note into evidence at trial. (Resp't Ex. 135 at 3.) Specifically, the postconviction court found that there was no proof of who wrote the note and no indication of who found it or where. (Id. at 6.) The postconviction court further explained that because the note was not dated, there was no proof that it impeached CF since the case came to light when she told her friend that she might be pregnant by Petitioner. (Id.) The postconviction court thus concluded that Petitioner failed to establish that the note would have been admissible at trial. (Id.)
On appeal, Petitioner argued, among other things, that trial counsel could have established the requisite foundation “by simply calling petitioner's family members who found the note to testify.” (Resp't Ex. 136 at 33.) Petitioner also made several other arguments about that note's admissibility and relevancy.
In a written opinion, the Oregon Court of Appeals considered the note's admissibility under Oregon's evidentiary rule for authentication, OEC 901(1), which provides that “[t]he requirement of authentication . . . as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” (Resp't Ex. 140 at 6.) The Court of Appeals found that despite Petitioner's insistence that trial counsel could have called Petitioner's family to authenticate the note, Petitioner had not called any family members to testify during his postconviction proceedings, nor had he submitted affidavits or deposition testimony to establish that they were available and willing to provide authentication testimony at trial. (Id. at 6-7.) The Court of Appeals concluded that “[w]ithout that evidence, the postconviction court had no knowledge of what the testimony of those witnesses would have been and whether that testimony would have authenticated the note.” (Id. at 7.) The Court of Appeals further concluded that Petitioner's own testimony was insufficient because it provided no information “to support a finding that it was written by the victim, such as whose handwriting was in the note, where it was found, or when it was written.” (Id.) The Court of Appeals thus held that “[b]ecause the record contains no basis on which the post-conviction court could determine that the note could have been authenticated at petitioner's criminal trial, petitioner failed to establish that he was prejudiced when his trial counsel did not offer that note into evidence.” (Id.)
Petitioner has not demonstrated that the Oregon Court of Appeals' ruling was objectively unreasonable. As the appellate court noted, the “authentication requirement can be satisfied by relatively minimal showing, [but] the rule still requires some showing that the evidence could be authenticated, and petitioner made no showing at all.” (Id. at 6.) Indeed, Petitioner failed to provide the postconviction court with any evidence, other than his own insufficient testimony, that the note could have been authenticated and admitted into evidence at trial, and thus he cannot establish that he was prejudiced by trial counsel's failure to introduce it. See New v. Armenakis, 156 Or.App. 24, 29 (1998) (holding that the petitioner failed to carry his burden of proof that he was prejudiced by trial counsel's failure to locate a witness where the petitioner offered no evidence, other than his own inadequate testimony, as to what the witness would have testified to and whether it would have been favorable to the defense). Accordingly, the Oregon Court of Appeals' decision denying relief on this basis was not “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement[, ]” Richter, 562 U.S. at 103, and its decision denying Petitioner's claim is entitled to deference.
Petitioner attempted to submit new evidence in support of this claim for the Court's review. (Pet'r's Br., Ex. B.) The Court rejected those efforts as explained in note 14, supra, but nevertheless notes that Petitioner has not provided any evidence as to who authored the note or when.
Even if the note had been admissible, trial counsel reasonably could have concluded that it would have been of little value and thus decided to focus their efforts on other evidence that would prove more helpful to the defense. As Respondent points out, the note is undated and therefore its substance is not necessarily inconsistent with the facts underlying Petitioner's conviction, and the reference to one of the authors having sex with a “guy” who is “over 18” does not necessarily preclude Petitioner. Trial counsel reasonably could have sought to avoid introducing the note, which at best may have provided relatively weak and speculative impeachment evidence, or at worst may have led the jury to believe that Petitioner was the sexual partner referenced in the note. Thus, the denial of Petitioner's claim was not contrary to, nor an unreasonably application of Strickland, and Petitioner is not entitled to habeas relief.
II. UNARGUED CLAIMS
Petitioner does not argue the merits of the claims alleged in Ground One, subclaims (1-4) and (6-19), or in Grounds Two and Three of the Petition. In addition, Petitioner does not challenge Respondent's arguments that those grounds are procedurally defaulted or otherwise were denied in a state-court decision that is entitled to deference. Accordingly, habeas relief is precluded as to Ground One, subclaims (1-4) and (6-19), and Grounds Two and Three because they are procedurally defaulted, because the Court must defer to the state court's decision denying relief, and because Petitioner has failed to sustain his burden of demonstrating entitlement to habeas relief on those claims. See 28 U.S.C. § 2248 (instructing that “[t]he allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true”); see also Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (recognizing that a habeas petitioner carries the burden of proving his case).
III. EVIDENTIARY HEARING
Petitioner requests an evidentiary hearing in the event the current record is deemed insufficient to grant relief. (Pet'r's Br. at 39.) Based on the foregoing, however, the Court finds that an evidentiary hearing is neither necessary nor in the interests of judicial economy. See Schriro v Landrigan, 550 U.S. 465, 474 (2007) (where the record in the case precludes habeas relief, a district court is not required to hold an evidentiary hearing); see also Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (finding that an evidentiary hearing is not required on issues that can be resolved by reference to the state court record). Accordingly, the district judge should deny Petitioner's request for an evidentiary hearing.
CONCLUSION
For the reasons stated, the district judge should DISMISS the Amended Petition for Writ of Habeas Corpus (ECF No. 50) with prejudice, and decline to issue a Certificate of Appealability because Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).
SCHEDULING ORDER
The Court will refer its Findings and Recommendations to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
IT IS SO ORDERED. 36