Opinion
2:18-cv-01688-CL
08-05-2020
SHAWN GARY WILLIAMS, Petitioner, v. BRAD CAIN, Superintendent, Snake River Correctional Institution, Respondent.
FINDINGS AND RECOMMENDATION
MARK D. CLARKE United States Magistrate Judge
Petitioner brings this Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 and challenges his state court convictions on grounds that his trial counsel rendered ineffective assistance. Petitioner fails to show that the Oregon courts unreasonably applied clearly established federal law in rejecting his claims, and the Petition should be denied.
BACKGROUND
In February 2009, petitioner was charged with one count of Sodomy in the First Degree and one count of Sex Abuse in the First Degree. The charges arose from petitioner's abuse of CR, a four-year old girl, in Jackson County. Resp't Ex. 102.
In November 2008, after petitioner had been dating CR's mother for a few months, CR announced to her mother that petitioner had "licked [her] peepee." Resp't Ex. 106 at 33. CR then demonstrated what petitioner had done by spreading her legs apart and making a licking motion. Resp't Ex. 108 at 47. When interviewed by a police detective, petitioner admitted that his chin "accidentally" touched CR's vagina as he was dressing her after giving her a bath. Resp't Ex. 109 at 6-7. Petitioner told the detective that he had been tickling and play-biting CR as she was naked, and as he bit her inner thigh, his chin touched her vagina. Resp't Ex. 109 at 8-9.
At the time, petitioner was being investigated for sexual abuse arising from a separate incident involving a young girl in Josephine County. Resp't Ex. 120 at 2. In that case, petitioner befriended a young woman with a five-year old daughter, CB. In September 2008, CB disclosed that petitioner had "tickled [her] potty and made [her] touch his." Resp't Ex, 106 at 26. When interviewed by the police, petitioner admitted that he might have touched CB.'s vagina as they wrestled but claimed that any touching was accidental. Resp't Ex. 109 at 60-61. Petitioner was subsequently charged with and convicted of two counts of Sexual Abuse in the First Degree. Resp't Ex. 101 at 5-8.
In the Jackson County case involving CR, the State moved to introduce the facts of petitioner's Josephine County conviction as evidence of petitioner's intent and lack of mistake, or, alternatively, as evidence of his preparation or plan. Resp't Ex. 122; see Or. Evid. C. 404. Petitioner's counsel opposed admission of his prior convictions on grounds that it constituted impermissible character evidence. Resp't Ex. 106 at 2. The trial court allowed the State's motion, and petitioner waived his right to jury trial and proceed to trial by the court. Resp't Ex. 107 at 2-3; Resp't Ex. 123.
At trial, CR testified that petitioner had "licked [her] privates" as she was putting on her pajamas. Resp't Ex, 108 at 17, 25-27. CR's mother also testified about CR's disclosure that petitioner had "licked her peepee." Resp't Ex. 108 at 46-47. Petitioner took the stand and testified that his chin accidentally touched C.R.'s vagina while he was "wrestling around with" her and play-biting her legs as they were wrapped around his neck. Resp't Ex. 109 at 125-27. Petitioner admitted that CR was naked at the time.
In closing, the prosecutor made the following argument to the court:
I mean, just try and picture in your mind's eye, and I suppose you probably have by this point, when you listen to the interview with Mr. Williams, what - what he's saying, he's saying the child is naked with her legs spread. This is a kid he's known, I mean, for - for a month ... But yet here, his - his version of the events, is that yeah, it was just this play thing, that he's biting her inner thighs. I mean, who sticks their head between a four-year-old's legs, biting her inner thighs, next to her vagina?
How did they bring themselves to put their face in - in between a naked child's legs, and - and he specifically admits, there's one part, you'll see in the transcript, yet her - her legs spread.
And I've already gone on my little tirade about how bizarre this kind of behavior is, to . have your head and be biting the inner thighs of a four-year-old naked child, with her legs spread open, is - I would suggest, that even if that had happened, and nothing more, that there - there is something wrong, and - and probably inappropriate, if not criminal, about that. But when we get to the point of the - the vagina-licking, where's this child going to come up with - with - at four years old, where is the child going to come up with licking of-of a vagina?
And again, so all of what I've talked about here, that's just - if you just look at this case standing on its own. But as you know, and as you've ruled, case law from this state says that when a person raises that kind of argument, that - that no, the touching may have happened, but there was no intent, then we get to get into the - the other types of cases that have occurred. And here we have a conviction, from September 7th, so what is that? Less than two months, seven - seven weeks apart, that he - he committed this - where we know, as a matter of law, that he committed these - these acts of sexual abuse in the first degree.
And look at the similarities between the circumstances. He strikes up a relationship with a young woman in her twenties, who has a child. In one case, four, four-and-a-half, and in another one - another one who had just turned five. Strikes up a relationship with them, in oddly similar circumstances, I think both were in some kind of, if I remember right, some kind of eating establishment. Gives the phone number, and not too long after that, he's in their lives. There's a rafting trip, or - or some kind of fun they're having together, and in both cases, we're talking a few weeks apart, he is immediately saying, "You know, you work very hard, let me help with childcare. I raised a daughter, I know how to raise them. I know how to give them care." And specifically in both cases he offered to give them baths. In both cases, he put himself in a situation to have the child unclothed.
And in one situation, we already know, like I say, as a matter of law, that he was touching this girl, the Josephine County girl, with his hand... But in both circumstances, the approach is exactly the same. And in both circumstances, he talks about, well, it was accidental touching. So again, we've got quite a bit of case law from this state, saying when- when aperson claims it's accidental, we do get to look to the surrounding circumstances.Resp't Ex. 109 at 149-55. Petitioner's counsel did not object to the prosecutor's argument or his comments about petitioner's prior conviction.
The court found petitioner guilty of both charges. In issuing its ruling, the court stated:
I mean [the prosecutor], in his final argument yesterday afternoon, made a point that I found telling, which was how does a 4-year-old come up with a story like this? Which you know, she essentially repeats in Court yesterday. And it's a story that seemed to be one that was not subject to much coaching, or any coaching by her mother, by the authorities, or ~ you know - even by [the prosecutor], which was suggested by the defense.
And this is a story that - [CR]'s story was substantially corroborated by the Defendant himself, because he indicated that he was biting the lower part of her interior thigh, which ~ you know - I find is not normal adult behavior with a 4-year-old, let alone a little girl who is not your daughter or granddaughter, but a child that you barely know. It is far too intimate contact to even be doing that. And I find inconsistencies in Mr. Williams' testimony that were troublesome to me and difficult for me to reconcile.
And for me it is -- to me incomprehensible that Mr. Williams would even consider engaging in such admitted intimate, provocative behavior at a time when he was being accused and under investigation of sexual abuse involving a 5-year-old child.
And then it hard to overlook the fact that Mr. Williams was convicted under markedly similar circumstances, the incident that occurred up in Grants PasSj which allegedly occurred on the 7th of September of 2008, when our alleged crimes occurred in late November, 2008.Resp't Ex. 110 at 3-7.
At sentencing, the trial court merged the offenses and sentenced petitioner to the mandatory minimum sentence of 300 months, with the sentence to run concurrently to the sentence imposed for the Josephine County convictions. Resp't Ex. 101 at 9-11; Resp't Ex. 111 at 12-14.
After an unsuccessful direct appeal, petitioner sought post-conviction relief (PCR) and claimed that his trial counsel provided ineffective assistance in numerous respects. Resp't Exs. 116. The PCR court denied petitioner's claims, and petitioner appealed. Resp't Exs. 136-37. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Resp't Exs. 139-41.
On September 21, 2018, petitioner filed this action seeking federal habeas relief.
DISCUSSION
Petitioner asserts four grounds in support of his Petition. Pet. at 13-15 (ECF No. 2). However, in his supporting brief, petitioner presents argument to support only Ground Four. See generally Pet'r Br. (ECF No. 32). Accordingly, petitioner fails to sustain his burden to prove habeas relief is warranted on Grounds One through Three. See Mayes v. Premo, 766 F.3d 949, 957 (9th Cir. 2014) (stating that a habeas petitioner bears the burden of proving his case); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004) (accord).
In Ground Four, petitioner claims that trial counsel was ineffective in failing to object to the prosecutor's impermissible and prejudicial statements about petitioner's Josephine County conviction during closing argument. Petitioner maintains that the prosecutor's references to petitioner's prior conviction essentially rose to the level of an impermissible propensity argument. The PCR court rejected this claim, and respondent maintains that its ruling is entitled to deference.
Respondent also maintains that Ground Four was not fairly presented to'the Oregon appellate courts and is now procedurally defaulted and barred from federal review. Regardless of exhaustion and default, petitioner fails to establish that the PCR court unreasonably applied clearly established federal law in rejecting his claim. See .28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").
A federal court may not grant a habeas petition regarding any claim "adjudicated on the merits" in state court, unless the state court ruling "was contrary to, or involved an unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254(d)(1). A state court.decision is "contrary to" established federal law if it fails to apply the correct Supreme Court authority, or if it reaches a different result in a case with facts "materially indistinguishable" from relevant Supreme Court precedent. Brown v. Payton, 544 U.S. 133, 141 (2005); Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision is an "unreasonable application" of clearly . established federal law if the state court identifies the correct legal principle but applies it in an "objectively unreasonable" manner. Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam); Williams, 529 U.S. at 407-08, 413; see also Early v. Packer, 537 U.S. 3, 11 (2002) (per curiam) (state court decisions that are not "contrary to" clearly established Supreme Court law may be set aside only "if they are not merely erroneous, but 'an unreasonable application' of clearly established federal law, or are based on 'an unreasonable determination of the facts'").
Under the well-established precedent of Strickland v. Washington, 466 U.S. 668 (1984), a habeas petitioner alleging the ineffective assistance of counsel must show that 1) "counsel's performance was deficient," and 2) counsel's "deficient performance prejudiced the defense." Id. at 687. To establish deficient performance, petitioner "must show that counsel's representations fell below an objective standard of reasonableness." Id. at 688. To demonstrate prejudice, petitioner "must 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, Unless petitioner "makes both showings, it cannot be said that the conviction...resulted from a breakdown in the adversary process that renders the result unreliable." Id. at 687.
In rejecting petitioner's claims, the PCR court found:
There were enough similarities, in the two cases that [the] Josephine County episode was admissible as evidence of intent, preparation and plan. Because Petitioner chose to testify, the prior conviction, at a minimum, would have been admissible as impeachment. Because the evidence was admissible, it was proper for the prosecutor to include it in his argument.Resp't Ex. 136 at 5. This finding was not unreasonable.
As the PCR court noted, the trial court allowed the State to introduce evidence of petitioner's Josephine County conviction to establish intent, lack of mistake, and plan and preparation. In conformance with the trial court's ruling, the prosecutor referenced petitioner's Josephine County conviction to rebut petitioner's assertion that his contact with CR's vagina was accidental and without sexual intent. Given the court's ruling and the evidence admitted at trial, counsel had no grounds to object to the prosecution's closing argument, and the PCR reasonably found no deficiency on the part of counsel.
Further, petitioner fails to show prejudice arising from counsel's failure to object. To violate due process, a prosecutor's comments must more than simply improper; they must "so infect[] the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (internal quotation marks omitted). Here, the prosecutor's comments were not so egregious that they rendered petitioner's trial unfair. The prosecutor's argument "did not manipulate or misstate the evidence, nor did it implicate other specific rights of the accused such as the right to counsel or the right to remain silent." Id. at 182. Rather, the prosecutor made the reasonable and permissible argument that it was highly unlikely petitioner "accidentally" touched the genitalia of two young girls within a matter of weeks. Although the court noted the similarities between the Jackson and Josephine County pases, the court also emphasized that it found petitioner guilty based on the facts of the case, including CR's spontaneous disclosure of the abuse and petitioner's inconsistent statements and implausible testimony.
Accordingly, petitioner fails to show that the PCR unreasonably applied Strickland in rejecting Ground Four, and he is not entitled to federal habeas relief.
CONCLUSION
The Petition for Writ of Habeas Corpus (ECF No. 2) should be DENIED. This Court should decline to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing, of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2).
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due within (14) days from service of the Findings and Recommendation. If objections are filed, any response is due fourteen (14) days after being served with a copy of the objections. Petitioner is advised that the failure to file objections within the specified time may waive the right to appeal the District Court's final order. Martinez v.Ylst, 951 F.2D 1153 (9th Cir.1991).