United States District Court, D. Oregon
ANN AIKEN, District Judge.
Petitioner is in the supervisory custody of the State of Oregon pursuant to a conviction of Sexual Abuse in the First Degree. After a bench trial convicting petitioner, he was sentenced to 75 months imprisonment and a 45 month term of post-prison supervision, and required to register as a sex offender. Resp. Exhibit 101.
Petitioner appealed his conviction, but the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Resp. Exhibits 106-110.
Petitioner filed a petition for post-conviction relief, Resp. Exhibit 111, and the Malheur County Circuit Court denied relief. Resp. Exhibit 140. The Oregon Court of Appeals affirmed in a written opinion and the Oregon Supreme Court denied review. Resp. Exhibit 141-146.
Petitioner filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging various claims. Subsequently the Federal Public Defender was appointed to represent petitioner. Petitioner's attorney filed an Amended Petition (#58) alleging:
Petitioner's incarceration is illegal and contrary to the Constitution of the United States for the following reasons:
1. Trial counsel rendered ineffective assistance of counsel in violation of Sixth Amendment (sic). Counsel failed to investigate the case and failed to call important witnesses and introduce important defense evidence. This included evidence about his ex-wife's emotional and psychological instability, evidence that she made numerous allegations of sexual abuse against other indi victuals, and evidence that she threatened to accuse petitioner of sexual abuse, among other crimes.
2. Adams was denied his Fourteenth Amendment right to due process and his Eighth Amendment right to be free of cruel and unusual punishment when the state convicted and sentenced him for sexual abuse notwithstanding his innocence.
Amended Petition for Writ of Habeas Corpus (#58) p. 2-3.
In Petitioner's Brief in support of his petition petitioner requests in the alternative, "an evidentiary hearing on [petitioner's] claim of actual innocence." Brief in Support (#53) p 32.
Petitioner claims should be denied because: 1) Petitioner's amended petition is untimely and Ground Two does not relate back to the original petition; 2) The state court decision denying relief on Ground One is correct and entitled to deference; 3) Petitioner cannot establish that he is actually innocent; and 4) petitioner is not entitled to expand the record or an evidentiary hearing.
Reply to Amended Petition (#69) p. 2.
Ground One: Petitioner's Amended Petition for Post-Conviction Relief raised 18 claims of ineffective assistance of counsel. Resp. Ex. 111. Among these was a claim that his wife Cheryl had been sexually abused as a child and had accused other family members of molesting children. The trial court rejected all 18 claims. Exhibit 140.
Petitioner appealed the PCR trial court denial of his petition alleging only one of his original 18 claims: that his trial counsel was ineffective for failing to discover and present witnesses who would have testified (1) about Cheryl's emotional and psychological instability stemming from past sexual abuse; (2) that Cheryl had an unhealthy attachment to her children; (3) that Cheryl had made allegations of sexual abuse against other individuals; and (4) that Cheryl threatened to accuse petitioner of sexual abuse in order to keep custody of her daughters. Resp. Ex. 141, p. 5; Exhibit 143, p. 3.
The Oregon Court of Appeals denied petitioner's appeal, holding that defense counsel was not ineffective and petitioner had not demonstrated prejudice because the evidence petitioner claimed that his counsel should have introduced would have distracted form petitioner's theory of the case at trial, was not admissible or was unknown to petitioner and his counsel until after trial. Resp. Ex. 143.
Under the Antiterrorism and Effective Death Penalty Act of 1966 (AEDPA), habeas corpus relief may "not be granted with respect to any claim that was adjudicated on the merits in state court proceedings, " unless the adjudication:
1. resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
2. resulted in a decision that was based on an unreasonable determination of the facts in light of evidence presented at the State court proceeding.
28 U.S.C. § 2254(d).
The Supreme Court has explained that in passing the AEDPA, Congress intended to change the habeas corpus field by curbing delays, preventing "re-trials" on federal habeas, and giving effect to state convictions to the extent permissible under the law. Williams v. Taylor , 529 U.S. 362, 404 (2000). In addressing the deference requirements set forth in 28 U.S.C. § 2244(d) (1), the Court specifically found that the "contrary to" and "unreasonable application" clauses of the AEDPA have independent meanings. Id.
In Lockyer v. Andrade , 538 U.S. 63 (2003) the Supreme Court held that "a state court decision is contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases' or if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.'" Andrade , 538 U.S. at 73. (citations omitted).
The Court further held that:
Under the unreasonable application clause, ' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. The unreasonable application' clause requires the state court decision to be more than incorrect or erroneous. The state court's application of the clearly established law must be objectively unreasonable.
The Andrade Court further clarified that under 28 U.S.C. § 2254(d) a state court's decision is not necessarily objectively ...