Opinion
2:19-cv-01970-SU
06-24-2021
JOSE VENECIA, Petitioner, v. TYLER BLEWETT, Respondent.
Jose Venecia Two Rivers Correctional Institution Attorney for Petitioner Ellen F. Rosenblum, Attorney General Kristen E. Boyd, Assistant Attorney General Department of Justice Attorneys for Respondent
Jose Venecia
Two Rivers Correctional Institution
Attorney for Petitioner
Ellen F. Rosenblum, Attorney General
Kristen E. Boyd, Assistant Attorney General
Department of Justice
Attorneys for Respondent
FINDINGS AND RECOMMENDATION
Patricia Sullivan, United States Magistrate Judge
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his state-court convictions for Rape and Sexual Abuse. For the reasons that follow, the Petition for Writ of Habeas Corpus (#2) should be denied.
BACKGROUND
On August 3, 2012, the Marion County Grand Jury indicted Petitioner on two counts of Rape in the First Degree, two counts of Unlawful Sexual Penetration in the First Degree, and one count of Sexual Abuse in the First Degree for crimes Petitioner committed against his granddaughter. Respondent's Exhibit 102. His case proceeded to a bench trial at which the State called the victim's mother, Ms. DeLeon, to testify. During defense counsel's cross-examination, DeLeon made an impermissible comment on the credibility of her daughter:
DEFENSE: All right. Now, that was also at the time when your three children, these children, were placed in foster care with your parents; is that right? Was it about the same time?
DeLEON: Yeah. Yes.
DEFENSE: Now, that was not the first time these children were taken out of your home; is that right?
DeLEON. That's correct.
DEFENSE: And one of those times they were put in the foster care of somebody by the name of Calloway?
DeLEON: Who?
DEFENSE: Joey Calloway?
PROSECUTOR: Your Honor, I'm going to object to this line of questioning.
COURT: I'll allow a little inquiry. Do you know who the foster parents were for your children besides your mother and father?
DeLEON: I don't-there w[ere] different foster parents. There wasn't a stable, but what I can say is my daughter knows who she's talking about. She knows who her grandpa is, she knows his name. There's no reason for her to say that somebody else did it and blame it on him.
DEFENSE: Excuse me, that -
COURT: That's all right. I asked the question. Now you can go ahead and follow up.Respondent's Exhibit 105, pp. 87-88 (bold added). Although it appears counsel attempted to object to DeLeon's testimony when the trial judge cut him off, counsel did not attempt to object further. Instead, he resumed his examination as the judge instructed.
“[I]n Oregon a witness ... may not give an opinion on whether he believes a witness is telling the truth.” State v. Middleton, 294 Or. 427, 657 P.2d 1215, 1221 (1983).
The State subsequently presented an expert witness, Doctor Lauren McNaughten. During defense counsel's cross-examination of Dr. McNaughten, the following exchange ensued:
DEFENSE: Is this an accurate opinion that you made at the conclusion-first of all, was this a normal anal/genital exam?
DOCTOR: Yes, in my opinion.
DEFENSE: And in your opinion, you stated - tell me if this is accurate - that it neither supports nor rules out a diagnosis of sexual abuse.
DOCTOR: Yea.
DEFENSE: Okay. And those were your exact words?
DOCTOR: I think so.
DEFENSE: Page 11 if you want to check.
DOCTOR: All right.
COURT: She's already testified to that. I have written that down.
DEFENSE: I wanted to make sure that was the exact wording, what she just said was in the report. I just wanted to confirm that.
DOCTOR: Based on currently available information, a diagnosis of highly concerning for child sexual abuse is made. And prior to that, a normal anal/genital exam neither supports nor rules out a diagnosis of sexual abuse.
DEFENSE: That's all I have. Thank you.Id. at 121. Defense counsel did not object to Dr. McNaughton's testimony that she made a diagnosis of “highly concerning for sexual abuse” where she also found no physical evidence of abuse.
On October 1, 2009, the Oregon Supreme Court issued its decision in State v. Southard, 347 Or. 127, 218 P.3d 104 (2009), wherein it concluded that a medical diagnosis of sexual abuse in the absence of corresponding physical evidence of sexual abuse “does not tell the jury anything that it could not have determined on its own” such that the diagnosis is inadmissible under OEC 403 because its risk of prejudice outweighs the probative value of the diagnosis.2 347 Or. at 142. The following year, in State v. Lupoli, 348 Or. 346, 234 P.3d 117 (2010), the Oregon Supreme Court explicitly stated that an expert's diagnosis of child sexual abuse in the absence of supporting physical evidence constituted impermissible vouching because the testimony was “necessarily based on her assessment of the child's believability.” 348 Or. At 362-63.
At the conclusion of the bench trial, the judge found Petitioner guilty with regard to both counts of Rape in the First Degree and the singular count of Sexual Abuse in the First Degree, but concluded that the State had not presented evidence of guilt beyond a reasonable doubt as to the two charges of Unlawful Sexual Penetration. Respondent's Exhibit 105, pp. 214-15. The judge proceeded to sentence Petitioner to 300 months in prison.
Petitioner took a direct appeal where he argued that the trial court erred when it permitted DeLeon to comment on the victim's credibility, and allowed Dr. McNaughton to make a diagnosis of “highly concerning for sexual abuse” in the absence of any physical evidence of abuse. Respondent's Exhibit 107. He acknowledged that the claims were unpreserved, but asked the Oregon Court of Appeals to grant him relief because thy constituted “plain error.” The Oregon Court of Appeals affirmed the trial court's decision without issuing a written opinion, and the Oregon Supreme Court denied review. State v. Venecia, 267 Or.App. 125, 340 P.3d 173 (2014), rev. denied, 356 Or. 690, 344 P.3d 1112 (2015).
ORAP 5.45(1) provides a mechanism whereby an unpreserved claim may still be considered on appeal--"the appellate court may consider an error of law apparent on the face of the record." This provision allows the Oregon Court of Appeals to consider unpreserved errors of law which are "obvious" and "not reasonably in dispute." Ailes v. Portland Meadows, Inc., 312 Or. 376, 381, 823 P.2d 956 (1991).
Petitioner next filed for post-conviction relief (“PCR”) in Umatilla County where, relevant to this habeas corpus case, he argued that his trial attorney was ineffective for failing to object to DeLeon's vouching, and for failing to object to Dr. McNaughton's testimony regarding her diagnosis of “highly concerning for sexual abuse.” Respondent's 116. Following an evidentiary hearing, the PCR court determined that Petitioner was not entitled to relief. The Oregon Court of Appeals affirmed that decision without opinion, and the Oregon Supreme Court denied review. Venecia v. Bowser, 297 Or.App. 888, 446 P.3d 578, rev. denied, 365 Or. 557, 451 P.3d 1005 (2019).
On December 4, 2019, Petitioner filed this 28 U.S.C. § 2254 habeas corpus case in which he claims that his trial attorney was constitutionally ineffective when he failed to object to improper vouching testimony from DeLeon as well as Dr. McNaughton. Respondent asks the Court to deny relief on the Petition because the PCR court reasonably applied clearly established federal law when it denied relief on these claims. Although Petitioner's supporting memorandum was due by April 7, he has not filed any briefing with the Court.
DISCUSSION
I. Standard of Review
An application for a writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was: (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;” or (2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state court's findings of fact are presumed correct, and Petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
A state court decision is “contrary to . . . clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases” or “if the state court 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). Under the “unreasonable application” clause, a federal habeas court may grant relief “if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. The “unreasonable application” clause requires the state court decision to be more than incorrect or erroneous. Id. at 410. Twenty-eight U.S.C. § 2254(d) “preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents. It goes no farther.” Harrington v. Richter, 562 U.S. 86, 102 (2011).
II. Analysis
A. DeLeon's Vouching Testimony
During Petitioner's PCR hearing, he argued that trial counsel should have objected when DeLeon impermissibly vouched for her daughter's credibility. The Court uses the general two-part test established by the Supreme Court to determine whether Petitioner received ineffective assistance of counsel. Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). First, Petitioner must show that his counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 686-87 (1984). Due to the difficulties in evaluating counsel's performance, courts must indulge a strong presumption that the conduct falls within the "wide range of reasonable professional assistance." Id. at 689.
Second, Petitioner must show that his counsel's performance prejudiced the defense. The appropriate test for prejudice is whether Petitioner can show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the trial. Id. at 696. When Strickland's general standard is combined with the standard of review governing 28 U.S.C. § 2254 habeas corpus cases, the result is a "doubly deferential judicial review." Mirzayance, 556 U.S. at 122.
During Petitioner's PCR proceedings, trial counsel submitted an Affidavit wherein he stated that he considered raising an objection, but concluded that DeLeon's statement did not constitute impermissible vouching. Respondent's Exhibit 115, p. 2. He further asserted that because the statement occurred during the course of a bench trial, he did not believe the judge would consider any improper evidence. The PCR court found that DeLeon's testimony amounted to improper vouching, but concluded that counsel's conduct under the circumstances was reasonable and agreed with counsel that the vouching did not prejudice his client:
Petitioner failed to prove that his attorney was ineffective for failing to object and move to strike the comment made by Deleon in response to the Judge's question. Petitioner has proven that the comment constituted impermissible vouching. Even though the comment is somewhat similar to the comment in Easter v. Mills, 239 Or.App. 209 (2010), it crosses the line to constitute vouching. The words “She knows who her grandpa is, she knows his name. There's no reason for her to say that somebody else did it and blame it on him”, express[es] a belief that her daughter is telling the truth and constitutes vouching. State v. Vargas-Samado, 348 Or 346 (2010). In the context of tr[ia]l, however, trial counsel's decision not to object further was not unreasonable. The comment was in response to the trial judge asking a question and when trial counsel started to say something (presumably to object) the court cut him off and indicated that he should follow up. The judge's comment also appeared to indicate a recognition that the comment was improper and that it would not be considered by him in reaching his verdicts. Trial counsel had to make a quick strategic decision in responding to [a] unique and unusual situation. Trial counsel made the strategic decision to move on, trusting the court's “ability as the legally-trained finder of fact to separate out inadmissible from admissible testimony in reaching his decision.” He was not unreasonable in the choice he made. It did not reflect an absence of reasonable skill and judgment.
Petitioner also failed to prove prejudice. The judge's comment appears to indicate his awareness that the testimony was improper. Neither attorney addressed the comment during argument and the judge made no mention of it during his explanation of his verdict. Petitioner has failed to prove that the introduction of the comment by Deleon had a tendency to affect the outcome of the trial.Respondent's Exhibit 132, p. 4.
It was the trial judge who posed a question to DeLeon that, while unforeseeable, ultimately led DeLeon to vouch for her daughter's credibility. Trial counsel tried to object, but the judge cut him off, apparently acknowledging that the testimony was improper but telling counsel, “That's all right. I asked the question.” Respondent's Exhibit 105, p. 88. Importantly, because the case was not being tried to a jury, there was no concern about striking the testimony or issuing a curative instruction. As trial counsel stated in his Affidavit, “this was a trial to the court . . . I had no reason to believe that Judge Hart considered any improper testimony in finding [Petitioner] guilty.” Respondent's Exhibit 115, p. 2. In this situation, it was perfectly reasonable for trial counsel not to press the issue further and, instead, to follow the judge's instruction to “go ahead and follow up.” Id. For these reasons, the PCR court's decision is neither contrary to, nor an unreasonable application of, clearly established federal law.
B. Dr. McNaughton's Diagnosis
As his second claim, Petitioner asserts that trial counsel should have objected to, or moved to strike, Dr. McNaughton's testimony about her diagnosis of “highly concerning for sexual abuse” in the absence of any physical evidence because it amounted to improper vouching. In trial counsel's Affidavit, he provided his reasoning for not objecting to this testimony:
I was aware of the 2009 holding in State v. Southard, 347 Or. 127 (2009), that a medical diagnosis of child sex abuse was ordinarily inadmissible in the absence of physical evidence of abuse. In [Petitioner's] case, however, I made a strategic decision to allow Dr. McNaughton's complete testimony into evidence. My cross-examination and closing argument reflect that the defense strategy was to emphasize the finding of a normal anal/genital exam that could not definitively establish any occurrence of sexual abuse, so that reasonable doubt existed. Based on my past experience in criminal trials with Judge Hart, and my personal observations of Judge Hart during Mr. Venecia's criminal trial, I had no reason to believe that Judge Hart improperly considered Dr. McNaughton's testimony. Instead, my professional assessment was that the totality of Dr. McNaughton's testimony, including her diagnosis without definitive, corroborating physical evidence, actually helped our defense.Respondent's Exhibit 115, p. 3.
The PCR court issued a reasoned denial as to this claim as well:
Petitioner has failed to prove that his trial attorney was ineffective in failing to object to the comment by Dr. McNaughton, that “Based on currently available information, a diagnosis of highly concerning for child sexual abuse is made.” There is no question that the comment would normally be inadmissible if an objection were made. State v. Lupoli, 348 Or 346 (2010). In this case, trial counsel solicited the testimony and did not object. He stated in his affidavit that “the defense strategy was to emphasize the finding of a normal anal/genital exam that could not definitely establish any occurrence of sexual abuse, so that reasonable doubt existed.” Here, trial counsel explains in his affidavit that his “professional assessment was that the totality of Dr. McNaughton's testimony, including her diagnosis without definitive, corroborating physical evidence, actually helped our case.” McNaughton's diagnosis of “highly concerning” in light of the lack of physical evidence was not a definitive diagnosis - and she immediately following this by stating what trial counsel wanted her to say: that the victim's exam was normal. Trial counsel elicited the testimony that he wanted and made a choice not to draw more attention or weight to the nonresponsive part of McNaughton's answer. This strategy seems to have worked because, just after Dr. McNaughton testified to the diagnosis and the normal exam, the court asked a follow-up question about the normal findings in the exam. This was consistent with the court's active participation during the trial.
The trial attorney also relied on McNaughton's testimony during argument. “And then we look at the opinion finally of Dr. McNaughton, in spite of what she says, well, it could have happened, the fact is, she concluded that the evidence that I have gained through an anal/genital exam and other examination and the medical examination, as well as everything else about [the victim], I can neither give an opinion that supports or rules out sexual abuse. There is no clearer expression of reasonable doubt.” This was a reasonable trial strategy, particularly in a case tried to a judge who is less likely than a jury to accept an expert's opinion based solely on the statements of the victim. The strategy did not indicate an absence of reasonable skill and judgment.
Petitioner also failed to prove prejudice. Importantly, the prosecutor did not rely on McNaughton's diagnosis in his opening or closing arguments, and the court did not rely on it either in explaining its verdict. Instead, the court relied on the fact that the victim and petitioner's testimonies were “remarkably parallel” and that the “real difference only” was that the victim “says that it did [happen] and Mr. Venecia says it did not.” The court focused on the words the victim used to describe what petitioner did to her and the effect it had on her. Petitioner did not prove that Dr. McNaughton's opinion had a tendency to affect the court's ultimate verdict.Respondent's Exhibit 132, p. 5 (citations to record omitted).
During his PCR action, Petitioner argued that the admission of Dr. McNaughton's diagnosis served no strategic purpose where counsel could simply have solicited testimony that the victim's physical exam was normal. However, this overlooks the fact that counsel based his defense strategy on the lack of any definitive diagnosis of abuse. Well before Dr. McNaughton testified to her diagnosis, counsel highlighted in his opening statement that Dr. McNaughton's opinion was not a conclusive one, and that the language of her opinion would be important in the case.
Respondent's Exhibit 105, p. 10. Counsel revisited this issue during closing argument when he stressed that the victim's physical exam was not only normal, but Dr. McNaughton was unable to give an opinion that supported or ruled out sexual abuse. Id. at 212. In counsel's words (and as noted by the PCR court), “[t]here is no clearer expression of reasonable doubt.” Id.
This was a sound strategic decision on counsel's part where Petitioner's trial was to the court, not a jury. Counsel was able to stress that reasonable doubt must exist where the State's own expert could not render a definitive diagnosis. He was able to do so all the while knowing that the judge was not likely to consider the improper vouching evidence in reaching a decision. See Lupoli, 348 Or at 362 (diagnosis of sexual abuse is inadmissible in the absence of physical evidence); see also State v. Fulmer, 229 Or.App. 386, 395 (2009) (in the absence of contrary evidence in the record, a trial court is deemed to have disregarded any inadmissible evidence).
Even assuming trial counsel's decision not to object or move to strike Dr. McNaughton's testimony was not reasonable, Petitioner suffered no prejudice from any such error. Without any evidence of physical abuse, and where Dr. McNaughton's diagnosis was not admissible evidence, the case came down to a credibility contest between the victim and Petitioner. This is exactly how the trial judge viewed the case. He noted that it amounted to a credibility contest and said he would “look at what else I have in order to help me make my decision based on the evidence that I have.” Respondent's Exhibit 105, p. 212. He never once mentioned Dr. McNaughton's diagnosis and, instead, focused exclusively upon the victim's demeanor, description of what took place, and how it made her feel. Id. at 212-14. It is apparent the trial court did not give Dr. McNaughton's diagnosis any weight in making its credibility determination. For all of these reasons, Petitioner's ineffective assistance of counsel claim lacks merit. At a minimum, the PCR court's thorough decision was not so unreasonable that no fairminded jurist could agree with it. Richter, 562 U.S. at 102.
RECOMMENDATION
For the reasons identified above, the Petition for Writ of Habeas Corpus (#2) should be denied and a judgment should be entered dismissing this case with prejudice. Where Petitioner's trial was to the bench and not to a jury, the Court should decline to issue a Certificate of Appealability on the basis that he has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2).
SCHEDULING ORDER
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 14 days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 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.