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Bowen v. Nooth

United States District Court, D. Oregon

April 1, 2015

SCOTT DAVID BOWEN, Petitioner,
v.
MARK NOOTH, Superintendent, Snake River Correctional Institution, Respondent.

C. Renee Manes, Assistant Federal Public Defender, Portland, OR, Attorney for Petitioner.

Frederick M. Boss, Deputy Attorney General, Samuel A. Kubernick, Assistant Attorney General, Department of Justice, Salem, OR, Attorneys for Respondent.

OPINION AND ORDER

GARR M. KING, District Judge.

Petitioner Scott David Bowen, an inmate in the custody of the Oregon Department of Corrections, brings this habeas corpus proceeding pursuant to 28 U.S.C. ยง 2254. For the reasons set forth below, I deny the petition and dismiss this proceeding with prejudice.

PROCEDURAL BACKGROUND

In 2005, a jury convicted Bowen of five counts of first-degree sexual abuse, two counts of first-degree sodomy, and one count of first-degree rape as a result of Bowen's abuse of his minor step-daughter between 1991 and 2002. Ten jurors[1] voted to convict and two found him not guilty of all the charges. The trial court sentenced Bowen to 200 months' imprisonment.

T.H., Bowen's step-daughter who was 18 years old at the time of trial, testified that during the time she was six to eight years old, Bowen sexually abused her by touching her, asking her to touch him, and putting his penis in her mouth. She gave detailed testimony. Bowen called it playing make-you-feel-good. She testified that around the time she was eight, her mother found her crying in her bed. They began talking and her mother asked T.H. if Bowen had been touching her. When T.H. said yes, her mother took her to the living room to confront Bowen. T.H. testified that after this event, her mother started staying home. T.H. did not testify to any touching between the ages of 9 and 15.

T.H. also testified to drinking alcohol before the family moved in the summer prior to seventh grade. Toward the end of eighth grade, she began experimenting with methamphetamine she found in a toolbox in the basement of the family's home. She stopped going to school, began using drugs all of the time, and hung out with people who engaged in criminal activity. She became sexually active. She came home every few weeks and only stayed there for a day or two. At some point, she was reported as a runaway.

During one of the times T.H. was home, when she was about 15 years old, she was down in the basement with Bowen. Bowen asked her if she would "take a line" if he offered it to her. Resp't Ex. 104, Tr. Vol. 2, at 158. She agreed and snorted a line of methamphetamine. Pornography was on the television and they each began to masturbate. Bowen put his penis in T.H.'s mouth.

One other time when she was down in the basement doing laundry or getting a cigarette or smoking marijuana-she was not certain-Bowen took methamphetamine out of his toolbox and offered T.H. a line. Pornography was again playing on the television. T.H. sat on Bowen facing him and Bowen put his penis in her vagina.

At some point, T.H.'s parents told T.H. to move out. On cross-examination, T.H. agreed the last conversation she had with her parents consisted of an argument about her bringing boys into the house. T.H. told Bowen and her mother, "I will lay with whoever I want." Resp't Ex. 105, Tr. Vol. 3, at 179. Bowen told her not in his house. T.H. responded, "We'll see how long this is your house." Id . On December 4, 2002, police found T.H. when they served a warrant on a resident of a house where T.H. had been staying. Because T.H. had been reported as a runaway, police dropped her back at her parent's house. When she realized where she was going, she told police she was not any safer at her parents' house than anywhere else.

At the time of her testimony, T.H. had been clean and sober for a year and a half.

The state also called T.H.'s childhood friend, who testified that when she was about seven years old T.H. confided that Bowen had touched her vagina.

T.H.'s mother, Anna Bowen, testified that she, T.H. and another childhood friend of T.H.'s had a conversation about Bowen sexually touching T.H. She and T.H. then confronted Bowen. As a result of that conversation, Anna Bowen quit her job so she could stay home.

Dr. Arlene Ritzen, a pediatrician at CARES Northwest, [2] testified to her findings about T.H. based upon interviews and a physical examination that took place on February 5 and 12, 2003. Her testimony is the sole subject of Bowen's habeas petition. Dr. Ritzen's physical examination of T.H. revealed scars from intravenous drug use. There was a partial separation in T.H.'s hymen which could have been evidence of a penetrating trauma. Dr. Ritzen conceded, however, that the partial separation could also have been the result of T.H.'s consensual sexual activity. The prosecutor then asked Dr. Ritzen:

Q: Okay. Dr. Ritzen, based upon your medical evaluation of [T.H.] as well as the interviews, did you reach a diagnosis with a degree of medical certainty?
A: Yes.
Q: And what is that diagnosis?
A: I made a diagnosis of sexual abuse.
Q: And what is that based on?
A: The physical examination and our talking time and history gathering of [T.H.].
Q: And can you give us an outline of those findings during the evaluation -or I'm sorry, the ...

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