Opinion
2:20-cv-00736-CL
11-16-2022
CRAIG ALAN SWINNEY, Petitioner, v. BRAD CAIN, Respondent.
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FINDINGS AND RECOMMENDATION
MARK D. CLARKE, United States Magistrate Judge.
Petitioner Craig Alan Swinney (“Petitioner”) brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254 alleging numerous claims based on the ineffective assistance of counsel and trial court error. For the reasons set forth below, the district judge should DENY the Petition for Writ of Habeas Corpus (ECF No. 2) and decline to issue a certificate of appealability. ///
BACKGROUND
On May 4, 2010, a Josephine County grand jury returned an indictment charging Petitioner with six counts of Sexual Abuse in the First Degree and one count each of Unlawful Sexual Penetration in the First Degree; Sodomy in the First Degree; Unlawful Sexual Penetration in the Second Degree; Sodomy in the Second Degree; and Rape in the First Degree. (Resp't Exs. (ECF No.12), Ex. 102.) The charges arose from Petitioner's conduct toward his stepdaughter, “EM”, over the course of several years. (Id.)
Petitioner pleaded not guilty on all charges and proceeded to trial in September 2011. The Oregon Court of Appeals summarized the facts adduced at trial, as follows:
. . . . [Petitioner] met [EM] when she was about six years old and living in Sacramento, California. [EM]'s mother had multiple sclerosis that affected her vision and physical mobility, making it difficult for her to perform housework. In order to pool financial resources and to help [EM]'s mother with housework, [Petitioner], his wife, and his two children moved in with [EM] and her mother. When [EM] was about seven, [Petitioner]'s wife and two children moved out of the house and [Petitioner] began a romantic relationship with [EM]'s mother. [EM] testified that she viewed [Petitioner] as her father. Around the same time, he began tucking her in at night. As he did so, he would kiss her on the lips and say goodnight. Those kisses progressed from “a peck” to kisses that were “more involved, . . . [l]ike a girlfriend kisses her boyfriend.” When [EM] was about eight-and-a-half, [Petitioner] began kissing her with his tongue. At first, [EM] felt “awkward” about the kisses, but after a time, she thought the kisses were normal and they made her feel like [Petitioner] loved her.
When [EM] was almost [ten], the family moved to Oregon and began living at a campground in Cave Junction. [EM] stayed in a tent separate from her mother and [Petitioner], but she testified that [Petitioner] continued to kiss her at night, progressively kissing her for longer periods of time. As he would kiss her, [Petitioner] began to hug her and rub his hands on her chest over her clothes. [EM] described learning to kiss [Petitioner] back and feeling loved and cared for, particularly because she was a “bigger kid” who had been made fun of for being fat and the kissing made her feel like someone thought she was pretty. [Petitioner] had been the only protective male figure in her life. While living at the campground, [Petitioner] and [EM] would swim in a nearby river; [Petitioner] would often throw [EM] while they were in the water and would touch her bottom and vagina, briefly rubbing her vagina right before he released her.
After living at the campground for a few months, the family moved into a trailer on a nearby ranch. By that time, [EM]'s mother's health had declined; she was almost blind, and she took sleeping pills and smoked marijuana, which meant she slept heavily at night. [EM] testified that [Petitioner] continued to kiss her at night and began touching her over her clothes on her breasts, stomach, hips, thighs, and vagina, and would rub on the top of her vagina. She described feeling “weird” about that at first, but then becoming accustomed to it and liking it. She testified that, after a few months of that, [Petitioner] began touching her vagina underneath her underwear and touching the rest of her body underneath her clothes. Around this time, [Petitioner] also began slightly penetrating her vagina with his finger.
When [EM] was [eleven] years old, the family moved into an apartment. [EM] testified that the sexual abuse continued to escalate and [Petitioner] began more deeply penetrating her vagina with his finger. [Petitioner] began putting his mouth all over [EM]'s body, including her vaginal and anal areas. She testified that, like with the other sexual abuse, that transition occurred progressively. After she turned [twelve], [Petitioner] began rubbing his penis on her vagina, first on the outside of her clothes.
[[EM] testified that one night when she was [thirteen], [Petitioner] came into her room, straddled her, and began kissing her as he had before. He then partially penetrated [EM] with his penis. [EM] began crying and told him to stop. [Petitioner] got up, left the room, came back and changed [EM]'s sheets, and told her that if she told anyone about what had happened, they would both get into trouble. The next day, [EM] ran away from home. About four years later, when she was [seventeen], she disclosed the abuse to a counselor.State v. Swinney, 269 Or.App. 548, 549-52 (2015).
The State also presented the testimonies of EM's mother, several individuals to whom EM disclosed the abuse, and Detective Thomas Harrison (“Harrison”), who investigated EM's allegations. Notably, Harrison testified about the “grooming process” that often occurs in the context of “familial sexual abuse.” (Resp't Ex. 103 (“Tr.”) at 603-04.) Harrison explained that a perpetrator will take “extensive time” to build a child's trust, to foster a “special” relationship with the child, and to make the child comfortable with sexual touching. (Id. at 604.) Harrison further explained that perpetrators frequently urge the child not to tell anyone, warning that they could get in trouble if others discovered the sexual conduct. (Id. at 604-05.) Finally, Harrison testified that individuals who engage in sexual abuse tend to target vulnerable children who lack stability, adequate parental supervision, and a male influence in the home. (Id. at 701-02.) Based on EM's description of Petitioner's conduct and the circumstances underlying the abuse, Harrison opined that Petitioner purposely targeted and groomed EM because of her mother's disability, lack of a father figure, and vulnerability. (Id. at 604, 611, 702-03.)
When citing to Respondent's Exhibits, including the trial transcript, the Court refers to the page numbers located in the lower right corner of each exhibit.
The defense presented a theory of reasonable doubt that primarily focused on EM's credibility. Various defense witnesses characterized EM as a needy and uncontrollable child who was rude, argumentative, and controlling. (Tr. at 749-50, 769, 858.) Defense witnesses further described that as EM grew older, she remained a “very difficult” child who resisted parental control, “thr[ew] a fit over anything,” and was a liar. (Id. at 791, 848.) In addition, the defense presented evidence that after EM engaged in numerous problematic behaviors in the aftermath of the alleged abuse, (Id. at 225, 238-44, 247, 250, 326), she was diagnosed with “oppositional defiance disorder” - a condition in which “children struggle to follow the normal rules and expectations that are set forth by parents and/or society.” (Id. at 821, 827.) Finally, the defense presented the testimony of a DHS worker who described EM as “an out-of-control teen who rebels in various ways when she doesn't get her way,” and who characterized an episode of self-harm in 2008 as an “attention-getting measure.” (Id. at 836-37.) Petitioner did not testify. (Id. at 871.)
During closing argument, the prosecutor drew heavily from Harrison's testimony, arguing that Petitioner had “preyed on [EM]'s vulnerabilities of having no father, a disabled mother, and a low self-esteem and poor self-image to gain compliance to his sexual abuse.” (Resp't Ex. 103 at 878.) The prosecutor stressed that he was “not talking about a single incident” but rather “grooming and sexual abuse that spanned two states, four locations, and five years” and constituted “hundreds of . . . incidences of abuse.” (Id. at 880.) The prosecutor then urged the jury carefully to consider “what [EM] said . . . how she said it . . . [and] how she looked while she said it[,]” arguing that EM's detailed and emotional testimony contradicted Petitioner's theory that she simply had “played the rape card” and fabricated the allegations to avoid taking responsibility for her own poor behavior. (Id. at 889, 903-07.) The prosecutor thus argued in summation:
The prosecutor noted that his arguments, in part, expressly responded to the following comments made by defense counsel during his opening statement:
Ladies and gentlemen of the jury, the only disclosure . . . made about this initially is when [EM] is incarcerated in a girls home 100 miles from here, where she can't run away, and she has to confront . . . her issues. And at that point in time she played, “I was raped.” She plays the rape role. And you will see that that has flipped the entire situation. You will see that that manipulative child who was observed by DHS was manipulating the system by saying that. She shifted the burden of addressing her issues from herself to [Petitioner].(Tr. at 84-5.)
The Court notes that paragraph breaks have been added to improve the readability of the transcript.
Ladies and gentlemen, you have heard the evidence. This has been a long trial and you have patiently sat through it all and heard it all. You know what happened. This evidence does not exist for no reason. This evidence did not just come from nowhere. This evidence exists because [Petitioner] is guilty. We are not asking you to convict an innocent man. This is not fun for [EM], this is not fun for anyone. [EM] wouldn't come here and go through all this for nothing. She deserves help. She deserves justice. Only you folks can do that now. She deserves help. [Petitioner] hurt her bad. There is no doubt about that, he hurt her bad. The things he did to her during that five years he had access to her she will carry around with her for the rest of her life. [Petitioner] hurt her bad inside.
[EM] did all a kid can do who has been abused. Somebody hurts you, molests you. You get the guts to tell somebody and then you get to come here. You get to come here. You get to sit there and talk about a bunch of embarrassing details to a room full of strangers. You get to let the man who abused you,
molested you look at you. You get to let his attorney call you a liar. I'm sure that's a lot of fun for her.
No wonder some kids never tell [that they have been abused]. Because what happens is, you come here and it is not fun for anybody. She got hurt, she deserves help. There is one appropriate verdict, that is the verdict that holds [Petitioner] accountable for the things that he did. He is guilty of every single crime he has been charged with and more. There is one verdict, that is a verdict of guilty, guilty, guilty. He committed all these crimes and more.(Id. at 919-20.)
In response, defense counsel immediately urged the jury to “think carefully” about its role, explaining:
. . . . The prosecutor sought at the end to invoke your sympathy for [EM]. His comment was, “she deserves help.” Well let me tell you that your responsibility here is not to help [EM]. Your responsibility here is not to find justice for [EM]. Your responsibility here is to determine whether the State has proved its case beyond a reasonable doubt and to a moral certainty. That's a very, very important concept that you need to separate your responsibility of a juror from any sympathy or emotion sought to be invoked by the prosecution. It's vital that you do that. And I, as a juror, that's a hard thing to do in any case where you have a child involved. We always want to root for the child. But that's not the situation of what your responsibility is. It's important that you look objectively at the evidence, weigh the evidence, and come to [a] conclusion.(Id. at 943-44.)
Defense counsel then stressed that the State, not Petitioner, bore the burden “to eliminate . . . all reasonable doubt[,]” and argued that “doubt exists” because EM “was a difficult, attention getting, manipulative child” who lied about the abuse to fit in and get attention. (Id. at 922, 923, 956-57.) In closing, defense counsel again implored the jury to “separate [its] judgment and common sense from the emotion . . . and impartially look at the evidence,” which he insisted “points in the direction of reasonable doubt.” (Id. 942-43.)
In rebuttal, the prosecutor refuted defense counsel's theory of the case, reiterating:
Beyond a reasonable doubt is not beyond all doubt. [EM] is not here for some charade or some game. This is not a big conspiracy to get [Petitioner] in trouble for things that he didn't do. He is here because he hurt that girl and he hurt
her badly and she had the guts to tell and this is where you come and this is what happens and that is the only reason we are here. This evidence does not exist for no reason. It is not a spin on the evidence. The evidence exists because he is guilty. There is one verdict. There is only one verdict that is appropriate in this case. He is guilty, guilty, guilty of everything he has been charged with and more. He is guilty.(Id. at 951.) Defense counsel did not object during the State's closing argument or rebuttal.
The jury returned guilty verdicts on all counts. (Id. at 970.) In a separate proceeding, the trial court sentenced petitioner to a custodial term totaling 375 months. (Id. at 985-989; Resp't Ex. 101.)
Petitioner filed a direct appeal, raising six assignments of trial court error relating to Harrison's testimony. Among other things, Petitioner alleged that the trial court had erred when it overruled his objection “that Harrison was not sufficiently qualified as an expert to opine whether [Petitioner] engaged in ‘grooming'” and when it failed to exclude Harrison's testimony that Petitioner had groomed EM “because it was an indirect comment on the credibility of a witness.” (Resp't Ex. 104 at 2-3.) The Oregon Court of Appeals affirmed in a written opinion, Swinney, 269 Or.App. at 560, and the Oregon Supreme Court denied review, State v. Swinney, 357 Or. 743 (2015).
Petitioner next filed a petition for postconviction relief. (Resp't Ex. 110.) Postconviction counsel thereafter filed an amended petition raising three ineffective assistance of trial counsel claims but omitting numerous claims raised in the pro se petition. (Resp't Ex. 111.) Because Petitioner did not agree with postconviction counsel's decision to omit the claims he raised pro se, Petitioner filed a lengthy motion pursuant to Church v. Gladden, 244 Or. 308 (1966) seeking their inclusion in the amended petition. (Resp't Ex. 112.) After a hearing at which Petitioner argued the merits of his pro se claims, the postconviction court denied Petitioner's Church motion in its entirety. (Resp't Ex. 121 at 5-44.) The postconviction court later held an evidentiary hearing with respect to the claims raised in the amended petition and, in a subsequent written opinion, denied relief on Petitioner's counseled claims. (Id. at 48-66; Resp't Ex. 122.)
In Church, the Oregon Supreme Court held that a litigant must inform the court of an attorney's failure to follow a legitimate request, and that the litigant can ask to have counsel replaced or ask the court to require the attorney to comply with the litigant's request. 244 Or. at 311-12.
Petitioner appealed, asserting a single assignment of error:
ASSIGNMENT OF ERROR: The post-conviction court erred when it failed to appoint suitable counsel to represent petitioner after appointed counsel advocated against petitioner in open court.(Resp't Ex. 123 at 9.) The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. (Resp't Exs. 126, 127.)
On May 5, 2020, Petitioner filed a pro se Petition for Writ of Habeas Corpus in this Court, raising twenty-one grounds for relief based on the ineffective assistance of counsel and trial court error. (Pet. at 6-12.) Through appointed counsel, Petitioner argues in support of three grounds for relief:
Ground Fourteen: Denial of effective assistance of counsel at trial or on appeal. Petitioner was denied effective assistance of counsel that is guaranteed by the 6th Amendment to the United States Constitution, made obligatory upon the states by the 14th Amendment . . . when trial counsel failed to object to “improper comments” used in a case lacking overwhelming evidence.
Supporting Fact[s]: Court audio transcripts have multiple points in which alleged victim's testimony is inaudible. Therefore, prosecutor comments are improper because they are not backed by witness testimony. By opinion being allowed in testimony by prosecutor, plaintiff asserts that this is vouching.
Ground Nineteen: Denial of right to due process and equal protection under the law.
Supporting FACT[s]: The Petitioner's right[s] to due process and equal protection guaranteed by the 6th and 14th Amendments to the U.S. Constitution . . . [were violated] when the trial court erred in its rulings and abused its discretion . . . [by] overrul[ing] [Petitioner's] objection to Detective Harrison being accepted as an “expert witness” in the area of grooming a child. The court knew that there were never any qualifying statements that were backed by any certificates, logs of training courses taken or any other professional training that would qualify Det. Harrison as any type of “expert”. This failure had a greater tendency to prejudice the jury against the Petitioner than its probative value and should not have been allowed in court.
Ground Twenty: Denial of right to due process and equal protection under the law.
Supporting FACT[s]: The Petitioner's right[s] to due process and equal protection guaranteed by the 6th and 14th Amendments to the U.S. Constitution . . . [were violated] when the trial court erred in its rulings and abused its discretion by failing to suppress statements made by Det. Harrison that vouched [for] the credibility of the alleged victim's statements. It was the responsibility of the court to [e]nsure a fair and impartial jury. It was the trial court's responsibility . . ., sua sponte, to prevent the contamination of the jury by Det. Harrison's vouching for the credibility of the alleged victim. The prejudicial value highly outweighs the probative value and should have been suppressed.(Pet. at 10, 11.) Respondent urges the Court to deny habeas relief, arguing that (1) Petitioner argues an ineffective assistance claim that is “distinct and separate” from Ground Fourteen and therefore is not properly before the court; (2) Petitioner's argued claims are procedurally defaulted and he has not demonstrated cause and prejudice to excuse the default; and (3) Petitioner declined to argue the remaining grounds for relief alleged in the Petition, all of which also are procedurally defaulted. (Resp't Reply to Pet'r's Br. in Supp. (ECF No. 36), at 5-6, 9-10.)
The Court refers to the ECF-assigned pagination when citing to the parties' briefing.
DISCUSSION
I. Sufficiency of Pleading
Respondent asserts that the ineffectiveness claim argued in Petitioner's supporting brief is separate and distinct from Ground Fourteen as alleged the Petition and therefore it is not properly before this Court. (Reply at 5-6.) A habeas petition must “specify all grounds for relief which are available to the petitioner” and must “state the facts supporting each ground.” Rule 2(c), Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254. “A court need not consider a claim that is not contained within the operative habeas corpus petition.” Harwood v. Hall, Case No. 6:15-CV-00970-HZ, 2017 WL 3709068, at *2 (D. Or. Aug. 28, 2017) (citing Greene v. Henry, 302 F.3d 1067, 1070 n.3 (9th Cir. 2002)).
Petitioner acknowledges that he seeks to advance Ground Fourteen, which alleges that trial counsel was ineffective for failing to object to “improper comments used in a case lacking overwhelming evidence.” (Pet. at 10.) Specifically, Petitioner alleges in Ground Fourteen that EM's testimony is designated “inaudible” at various points in the trial transcript and therefore “prosecutor comments are improper because they are not backed by witness testimony” and also constitute vouching. (Id.) In his supporting brief, however, Petitioner argues that trial counsel was ineffective in failing to object during closing arguments when the prosecutor “vouched for the complainant[,] . . . vouched for the prosecution's case as a whole[,] . . . offered his own comment or ‘expert' opinions on critical subjects without a proper basis in the evidence adduced at trial[,] . . . [and] distorted the function of the jury.” (Pet'r's Br. in Supp. of Pet. for Writ of Habeas Corpus (ECF No. 29) (“Pet'r's Br.”), at 9.) This ineffectiveness claim is wholly separate from that set forth in the Petition.
Petitioner argues that Ground Fourteen is “framed quite broadly” to encompass all manner of improper comments by the prosecutor, and that the Court must liberally construe the pro se Petition to resolve any ambiguity in his favor. (Pet'r's Sur-Reply (ECF No. 39), at 2.) Although the Court must liberally construe pro se habeas filings, Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006), the Court appointed counsel to represent Petitioner on May 18, 2020, thirteen days after Petitioner filed the Petition and prior to service on Respondent (See ECF No. 5). Petitioner thus has had “every opportunity to amend his Petition to clearly state any claims he and his attorney wished to argue” in the nearly two years this case has been pending. Harwood v. Hall Case No. 6:15-CV-00970-HZ, 2017 WL 3709068, at *2 (D. Or. Aug. 28, 2017). Under such circumstances, “it is doubtful that [Petitioner] is entitled to the liberal construction he seeks.” Severy v. Or. Bd. of Parole and Post-Prison Supervision, Case No. 6:16-cv-01482-MO, 2017 WL 3568399, at *2 (D. Or. Aug. 16, 2017); see also Harwood, 2017 WL 3709068, at *2 n.2 (countering counsel's argument that liberal construction should apply due to the pro se nature of the initial filing because “it was incumbent upon appointed counsel to review the Petition and file an amended pleading if appropriate so as to avoid the unnecessary confusion that has resulted”). The Court nevertheless elects to liberally construe the Petition to include Ground Fourteen as argued in Petitioner's supporting brief. II. Exhaustion and Procedural Default
It is unclear why counsel for Petitioner did not file an amended petition raising the ineffectiveness claim asserted here.
Respondent argues that Petitioner failed fairly to present any of his claims to the Oregon appellate courts, and because he can no longer do so, they are procedurally defaulted. (Resp. to Pet. (ECF No. 10), at 1.) Petitioner argues that the default of Ground Fourteen should be excused pursuant to Martinez v. Ryan, 566 U.S. 1 (2012), but does not address Respondent's procedural default arguments with respect to any other claim. (Pet'r's Br. at 15-18.)
A. Legal Standards
A habeas petitioner generally must exhaust all remedies available in state court, either on direct appeal or through collateral proceedings, before a federal court may consider granting habeas relief. See 28 U.S.C. § 2254(b)(1)(A) (instructing that a court may not issue a writ of habeas corpus on behalf of an individual in state custody unless “the applicant has exhausted the remedies available in the courts of the State”); see also Smith v. Baldwin, 510 F.3d 1127, 1137 (9th Cir. 2007) (noting that a prisoner must first exhaust available remedies before a federal court may consider the merits of a habeas petition). Generally, a petitioner satisfies the exhaustion requirement “by fairly presenting the federal claim to the appropriate state courts . . . in the manner required by the state courts, thereby ‘afford[ing] the state courts a meaningful opportunity to consider allegations of legal error.'” Casey v. Moore, 386 F.3d 896, 915-16 (9th Cir. 2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 257 (1986)) (alteration in original); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (holding that “[b]ecause the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, . . . state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the state's established appellate review process”).
If a petitioner failed to present his claims to the state courts in a procedural context in which the merits of the claims were actually considered, the claims have not been fairly presented to the state courts and therefore are not eligible for federal habeas corpus review. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In this respect, a petitioner is deemed to have “procedurally defaulted” his claim if he failed to comply with a state procedural rule, or failed to raise the claim at the state level at all. Id. at 446; see also Coleman v. Thompson, 501 U.S. 722, 750 (1991). An individual in state custody is barred from raising procedurally defaulted claims in federal court unless she “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law or demonstrate that failure to consider the claims will result in fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.
B. Analysis
1. Ground Fourteen
In Ground Fourteen, Petitioner alleges that he was “denied the effective assistance of counsel under the Sixth Amendment when his trial counsel failed to object to multiple improper statements by the prosecutor during closing arguments.” (Pet'r's Br. at 7.) Petitioner concedes that he failed fairly to present Ground Fourteen to the Oregon appellate courts, and because he no longer can 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).
Petitioner argues, however, that this Court should excuse the default because postconviction counsel was ineffective. (Pet'r's Br. at 15-18.) Although the ineffective assistance of post-conviction counsel generally does not constitute “cause” to excuse a procedural default, see Coleman v. Thompson, 501 U.S. 722, 752 (1991) (holding that because there is no constitutional right to counsel in post-conviction proceedings, a petitioner “must ‘bear the risk of attorney error that results in a procedural default'”) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)), the Supreme Court recognized a narrow exception to this rule in Martinez: “Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial- review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” Martinez, 566 U.S. at 9; 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”). This narrow exception applies in Oregon where, by law, ineffective assistance claims must be raised and addressed in a proceeding for postconviction relief. See State v. Robinson, 25 Or.App. 675, 550 P.2d 758 (1976) (holding ineffective-assistance claims are “properly resolved only in a postconviction proceeding”); Sexton v. Cozner, 679 F.3d 1150, 1159 (9th Cir. 2012) (acknowledging that Oregon requires claims for ineffective assistance to be raised in a collateral proceeding).
To establish cause to excuse procedural default under Martinez, Smith must show first that his underlying claim of ineffective assistance of trial counsel is substantial insofar as it has “some merit.” Martinez, 566 U.S. at 14. Next, he must demonstrate that his postconviction attorney was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 (1984), for failing to raise the claim. “[T]o fulfill this requirement, a petitioner must not only show that [postconviction] counsel performed deficiently, but also that this prejudiced petitioner, i.e. that there was a reasonable probability that, absent the deficient performance, the result of the post-conviction proceedings would have been different.” Runningeagle v. Ryan, 825 F.3d 970, 982 (9th Cir. 2017). Such a finding necessarily would require the Court to conclude that there is a reasonable probability that the trial-level ineffective assistance claim would have succeeded had it been raised. Id.
Petitioner argues that his underlying ineffectiveness claim is “substantial” because a reasonable attorney would have objected when the prosecutor made several “improper and highly prejudicial” remarks during his closing argument and rebuttal. (Pet'r's Br. at 9-10.) Specifically, Petitioner identifies eight statements, in isolation, that he claims warranted objection:
1) Child sexual abuse victims constantly blame themselves for abuse. (Tr. 895.)
2) Attacking [EM] is the tactic of a guilty man. (Id. at 904.)
3) [EM]'s not playing the rape card and she's not lying and the only person lying in this case is [Petitioner]. (Id. at 907.)
4) There is one verdict. There is only one verdict that is appropriate in this case. He is guilty, guilty, guilty of everything he has been charged with and more. (Id. at 951.)
5) Child abusers, child molesters are classic, classic manipulators. That's why they think they can get away with it. . . . This is a tactic used by child molesters going way back, and this is a tactic used by this child molester and he is trying to work it very, very hard to get himself out of trouble for what he did to that little girl. (Id. at 915-16.)
6) This evidence exists because he is guilty. We are not asking you to convict an innocent man. [EM] . . . deserves help. He hurt her bad. There is no doubt about that . . . (Id. at 919.)
7) There is one appropriate verdict, that is the verdict that hold [Petitioner] accountable for the things that he did. . . . There is one verdict, that is the verdict of guilty, guilty, guilty. He committed all these crimes and more. (Id. at 920.)
8) The evidence exists because he is guilty. There is one verdict. There is only one verdict that is appropriate in this case. He is guilty, guilty, guilty of everything he has been charged with and more. He is guilty. (Id. at 951).
Petitioner argues that these statements improperly “told the jury they had a duty to convict”; “prejudicially distorted the function of the jury” by altering the jurors' roles as “impartial arbiters of the facts to partisans for the complaining witness and the state”; vouched for EM's credibility and for the State's case a whole; improperly offered “the functional equivalent” of expert testimony; and alluded to facts outside the case. (Pet'r's Br. at 10-14.) Petitioner claims that trial counsel's failure to object to these statements “caused actual and substantial disadvantage to the outcome of the case.” (Id. at 18.)
Where, as here, the deficient performance alleged is trial counsel's failure to raise an objection, a habeas petitioner must establish that the decision to forego objection fell below an objective standard of reasonableness, and that if counsel had objected, there is a reasonable probability that the objection would have been sustained and the outcome of the trial would have been different. See Juan H. v. Allen, 408 F.3d 1262, 1273-74 (9th Cir. 2005) (noting that counsel is not ineffective for failing to raise a meritless objection). However, the “failure to object during a closing summation generally does not constitute deficient performance.” Zapata v. Vasquez, 788 F.3d 1106, 1115 (9th Cir. 2015) (citation omitted). Only where counsel remains silent in the face of “egregious” prosecutorial misconduct does the failure to object during closing argument fall below an objective standard of reasonableness. See Cunningham v. Wong, 704 F.3d 1143, 1159 (9th Cir. 2013) (explaining that “absent egregious misstatements, the failure to object during closing argument and opening statement is within the wide range of permissible professional legal conduct”).
Petitioner has not demonstrated that trial counsel's failure to object amounts to ineffective assistance of counsel because the prosecutor's statements, when viewed in the context of closing arguments and the trial as a whole, do not amount to constitutionally objectionable misconduct. See Zapata, 788 F.3d at 1112 (explaining that whether counsel was deficient in failing to object to a prosecutor's remarks during closing argument necessarily turns on whether the challenged remarks amount to objectionable conduct); see also Knight v. Ryan, No. CV-14-02080-TUC-DCB (EJM), 2017 WL 3841806, at *26 (D. Ariz. July 14, 2017) (finding trial counsel was not ineffective in failing to object during to the prosecutor's closing arguments because no prosecutorial misconduct occurred). Rather, the prosecutor's arguments largely anticipated and responded to trial counsel's arguments that EM was a manipulative liar who fabricated the allegations to get attention and “played the rape role” to avoid dealing with her own problematic behavior. Petitioner's arguments to the contrary are unavailing.
Although Petitioner asserts that the prosecutor vouched for EM and the State's case as a whole, (Pet'r's Br. at 12-13), and improperly distorted the function of the jury by “effectively telling the jury they had a duty to convict” and “that the jury's job was to help the complainant,” (Id. at 10-11), this Court's review of the record reveals that the prosecutor at no point assured the jury that he personally believed EM, suggested that information not presented at trial supported the veracity of EM's testimony, or otherwise used the prestige of the government to bolster the State's case. See United States v. Nocoechea, 986 F.2d 1273, 1276 (9th Cir. 1993) (explaining that “[v]ouching consists of placing the prestige of the government behind a witness through personal assurances of the witness's veracity, or suggesting that information not presented to the jury supports the witness's testimony”). Nor did the prosecutor instruct the jury that its duty was to convict Petitioner or that it was obligated to help EM. Rather, the prosecutor, pointing to various aspects of the evidence presented, attempted to persuade the jury that EM was credible, and that Petitioner was lying. Such arguments do not amount to impermissible vouching or egregious misconduct. See Id. (recognizing that “prosecutors must have reasonable latitude to fashion closing arguments, and thus can argue reasonable inferences based on the evidence, including that one of the two sides is lying”).
Petitioner also asserts that the prosecutor “[e]gregiously” referred to sex crimes outside the case when he stated that Petitioner was guilty of “more” than the eleven crimes with which he was charged. (Pet'r's Br. at 14.) However, the prosecutor expressly noted to the jury that EM's testimony detailed misconduct spanning five years and encompassing “hundreds” of incidents of abuse. He then explained that “for practical purposes,” Petitioner could not be charged with each instance of abuse and instead was charged with eleven counts that adequately represented “what happened between [Petitioner] and that small child in that five-year period[.]” (Tr. at 881.) The prosecutor otherwise made no references to any matter outside the record. Given this context, no reasonable juror would understand the prosecutor's comments to refer to anything other than the myriad instances of abuse underlying the charges against Petitioner.
Finally, Petitioner argues that the prosecutor acted as “a de facto, yet unsworn, expert witness” when he made statements concerning the behaviors of child sex abusers and sex abuse victims. (Pet'r's Br. at 13-14.) However, the prosecutor's statements properly were grounded in the evidence and testimony presented at trial, including Harrison's expert testimony concerning the way in which child sex abusers choose and groom their victims and EM's own testimony describing her conflicting feelings and guilt about the abuse. See United States v. Tucker, 641 F.3d 1110, 1120 (9th Cir. 2011) (acknowledging that “[p]rosecutors can argue reasonable inferences based on the record and have considerable leeway to strike ‘hard blows' based on the evidence and all reasonable inferences from the evidence”).
Even if one or more of the prosecutor's statements were improper, trial counsel aggressively refuted many of the offending statements in his own closing remarks. For example, trial counsel immediately advised the jury that, despite the prosecutor's statements to the contrary, its duty was not to help or secure justice for EM, but to reach a verdict by weighing the evidence and testimony presented at trial. Trial counsel reasonably could have concluded that it was more effective to counter the prosecutor's statements in his closing argument rather than risk irritating the jury or highlighting the issue with an unsuccessful objection. Petitioner therefore has failed to demonstrate that trial counsel was objectively unreasonable in foregoing objection during closing arguments. See Montgomery v. Ryan, No. CV-17-03579-PHX-DWL (JZB), 2018 WL 8188024, at *5 (D. Ariz. Nov. 30, 2018) (finding no ineffectiveness where trial counsel “made a tactical choice to argue against the prosecutor's statement rather than object to it”).
Any possible prejudice was further mitigated by the trial judge's instructions to the jury that “the opening statements and closing arguments of the lawyers are intended to help you understand the evidence . . . [but] are not part of the evidence.” (Tr. at 54-55.) The trial judge further advised the jury that it must “not be influenced to any degree by personal feelings, sympathy for or prejudice against any party[.]” (Id. at 53-54.) The jury is presumed to have followed those instructions. Therefore, based on the victim's testimony and other evidence presented, there is no reasonable probability that the result of the proceeding would have been different if trial counsel had raised an objection to the various statements at issue. See Featherstone v. Estelle, 948 F.2d 1497, 1507 (9th Cir. 1991) (finding counsel's failure to object to a “manifestly improper” argument at close did not prejudice the petitioner where other evidence of his guilt was substantial, and the jury was instructed counsel's statements were merely argument and not evidence).
Under the circumstances of Petitioner's case, trial counsel reasonably could have abstained from objection because the substance of the challenged statements was adequately addressed in his own closing argument, and because further objection could have placed undue emphasis on the issue or inflamed the jury. As such, trial counsel's failure to object was not constitutionally ineffective, and postconviction counsel was not constitutionally ineffective in failing to assert such a claim, particularly in light of the ineffectiveness claims postconviction counsel did raise. See White v. Nooth, 770 Fed. App'x 412, 414 (9th Cir. 2019) (noting that in evaluating PCR counsel's performance, the court must “recognize that the ‘process of winnowing out weaker arguments on appeal and focusing on those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective . . . advocacy'”).
For the reasons stated, Petitioner has not established that his underlying ineffective assistance of trial counsel claim is “substantial,” and postconviction counsel therefore “could not have been ineffective for failing to raise the ineffective assistance of counsel claim in state court.” See Sexton, 679 F.3d at 1161 (holding postconviction counsel could not have been ineffective for failing to raise ineffective assistance of counsel claims where trial counsel was not ineffective). Accordingly, Petitioner fails to demonstrate that the procedural default of his ineffective assistance claims may be excused under Martinez, and the district judge should deny habeas relief on Ground Fourteen.
2. Grounds Nineteen and Twenty
In Grounds Nineteen and Twenty, Petitioner alleges that the trial court violated his Fourteenth Amendment right to due process by allowing the introduction of prejudicial evidence that rendered his trial fundamentally unfair. (Pet'r's Br. at 4-5.) Specifically, Petitioner argues that the trial court erroneously admitted “Detective Harrison's ‘expert testimony' about the behaviors of sex offenders and his vouching for the state's case and the complainant.” (Id. at 5.) Petitioner claims that the admission of such testimony made his defense less persuasive, had “a substantial effect on the jury's verdict[,]”and so infected his trial with unfairness as to deprive him of due process. (Id.)
Petitioner raised on direct appeal several claims challenging the trial court's evidentiary rulings in connection with Harrison's testimony, including claims that the trial court erred in allowing Harrison to testify about the tendency of sexual offenders to choose vulnerable victims and in failing to exclude Harrison's testimony that Petitioner had groomed EM. (Resp't Ex. 104 at 15-16.) Petitioner, however, argued these claims solely on state law grounds. (Id. at 29-48.) Indeed, Petitioner at no point alerted the appellate courts that any of his claims were grounded in federal law, nor even did he allude to his federal constitutional rights more broadly. Petitioner therefore failed fairly to present Grounds Nineteen and Twenty. See Baldwin v. Reese, 541 U.S. 27, 124 (2004) (holding that fair presentation ordinarily requires the petitioner to clearly identify federal issues for review in the state court brief); See also Fields v. Waddington, 401 F.3d 1018, 1020-21 (9th Cir. 2005) (explaining that the petitioner “fairly presented federal claims only if he alerted the state court that his claims rested on the federal Constitution”). Because Petitioner no longer can present his federal claims in state court, they are procedurally defaulted, and Petitioner presents no argument or authority on which this Court might excuse the default. Accordingly, the district judge should deny habeas relief as to Grounds Nineteen and Twenty.
III. Unargued Claims
Petitioner does not argue the merits of Grounds One through Thirteen, Fifteen through Eighteen, or Twenty-One. In addition, Petitioner does not challenge Respondent's arguments that those grounds are procedurally defaulted. Accordingly, habeas relief is precluded as to Grounds One through Thirteen, Fifteen through Eighteen, and Twenty-One because they are procedurally defaulted 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).
IV. Evidentiary Hearing
Petitioner requests an evidentiary hearing so that he may “demonstrate cause for the default of [his] claims.” (Pet'r's Br. at 19.) Based on the foregoing, however, 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) (evidentiary hearing not required on issues that can be resolved by reference to state court record). Accordingly, the district judge should deny Petitioner's request for an evidentiary hearing.
CONCLUSION
Based on the foregoing, the district judge should DENY the Petition for Writ of Habeas Corpus (ECF No. 2), 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.