United States District Court, D. Oregon, Portland Division
Erick W. Ward, Ward Grover, LLP, Bend, Oregon, Attorney for Petitioner.
Ellen F. Rosenblum, Attorney General. Kristen E. Boyd, Assistant Attorney General, Department of Justice, Salem, Oregon, Attorney for Respondent.
OPINION AND ORDER
GARR M. KING, District Judge.
Petitioner, currently incarcerated by the Oregon Department of Corrections, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons below, I deny his amended petition  and dismiss this proceeding with prejudice.
Petitioner Michael David Youravish and his wife, Margaret Youravish,  adopted nine children during their marriage. They separated in late 2006 and shared time with the children; petitioner had joint custody with 25 percent parenting time. Petitioner eventually moved to Bandon and mother remained in Eureka. After the camping trips described below, the four teenage children wanted, for a period of time, to move in with their father.
The incidents of abuse took place a few months after petitioner moved. In June 2007, daughter J,  age 14, and son R, age 16, visited petitioner in Bandon for two weeks. During the visit, petitioner took J and R camping overnight.
J and R both testified at trial. The details differed somewhat between J's and R's testimonies and between their trial testimonies and earlier statements. In general, they testified at trial that Petitioner allowed them to drink beer and Mike's Hard Lemonade on the trip, and Petitioner drank Mike's Hard Lemonade on the drive to the campsite. Once at the campsite, Petitioner told a neighboring camper, Josh, that it is okay if Josh has sex with J. Later in the evening around the campfire, Petitioner sat down behind J on the picnic bench, began to rub her stomach, and inserted his hand inside her bathing suit bottom, reaching very close to her vagina. She blocked his hand from going further, stood up, and walked away. Petitioner apologized to J, told her he did not mean to get that low, and asked her not to tell her mother or anybody else. The trip ended without any other inappropriate behavior.
Another group of the children visited petitioner over the July 4th weekend in 2007. Petitioner took his son M, age 15, daughter B, age 14, and daughter A, age 4, on another overnight camping trip. Again, M's and B's trial testimonies differed somewhat in the details from each other and from their own earlier statements. Generally, Petitioner again let his teenage children drink beer and Mike's Hard Lemonade on the trip. B went in the tent to change from the wet clothes she wore swimming. Petitioner followed B into the tent, tried to touch her breasts, performed oral sex on her, and eventually had sexual intercourse with her. At some point, M also came into the tent and saw Petitioner having intercourse with B.
Petitioner testified to deny he did anything inappropriate. The defense theorized mother caused the children to fabricate their reports of abuse because she did not want the children to move to their father's home after the divorce. Two motives support this theory. First, mother stayed at home and wanted to keep her large group of children together and living with her. Second, the family received about $7, 000 a month in adoption assistance for these children. If some of the children moved in with petitioner, the assistance associated with those children would be paid to him. Mother had no source of income other than the adoption assistance.
A jury convicted petitioner of:
Count One: Attempted Sexual Abuse in the Third Degree (ORS 163.415, ORS 161.405) in a twelve to zero vote;
Count Two: Rape in the First Degree (ORS 163.375) in a ten to two vote; and
Counts Four and Five: Sexual Abuse in the Third Degree (ORS 163.415), both in a ten to two vote.
The jury acquitted petitioner of Count Three, Sodomy in the First Degree (ORS 163.405), in a two to ten vote.
The court sentenced petitioner as follows:
Count One: 30 days in the county jail with credit for time served;
Count Two: 100 months' imprisonment followed by 140 months postprison supervision;
Count Four: 12 months in the county jail, concurrent with Count Two; and
Count Five: 12 months in the county jail, concurrent with Counts Two and Four.
On direct appeal, petitioner raised a single claim based on the lack of a unanimous verdict. The Oregon Court of Appeals granted respondent's request for summary affirmance after finding that petitioner's appeal failed to present a substantial question of law. The Oregon Supreme Court denied his petition for review.
Petitioner filed a petition for post-conviction relief ("PCR"). The amended petition alleged a claim of ineffective assistance of trial counsel on sixteen grounds. After a trial, the PCR court denied relief.
Petitioner appealed the PCR decision on the grounds of ineffective assistance of counsel when trial counsel (1) failed to object to mother's testimony that she believed the children; (2) failed to object to testimony that petitioner drank alcohol while driving; and (3) failed to stress during closing argument the inconsistencies between B's and M's testimony. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied his petition for review.
Petitioner then timely filed this petition for habeas corpus in federal court.
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) was "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). The state court's findings of fact are presumed correct, and a petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Section 2254(d) is a "guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.'" Hibbler v. Benedetti, 693 F.3d 1140, 1148 (9th Cir. 2012) (quoting Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770 (2011)) (additional internal quotation omitted). "[T]he question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.'" Id. at 1146 (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)).
A state court acts "contrary to" clearly-established federal law if it arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if it decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495 (2000).
A state court decision is an "unreasonable application" of clearly-established federal law if the court: (1) identifies the correct governing legal principle from Supreme Court decisions, but unreasonably applies that principle to the facts of the prisoner's case; or (2) either unreasonably refuses to extend the governing legal principle or unreasonably extends it to a new context where it should not apply. Id. at 407, 413. Under this standard of review, a federal court may not issue a writ of habeas corpus because it concludes the state court applied clearly-established federal law erroneously or incorrectly. The state court decision must be "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166 (2003).
Petitioner alleges four claims for relief: (1) petitioner was denied his Sixth Amendment right to a unanimous jury verdict; (2) petitioner was denied his Sixth Amendment right to effective assistance of counsel when trial counsel failed to object to mother's testimony to the effect that she believed her children's claims of abuse; (3) petitioner was denied his Sixth Amendment right to effective assistance of counsel when trial counsel failed to object to testimony that petitioner drank alcohol while driving; and (4) petitioner was denied his Sixth Amendment right to effective assistance of counsel when trial counsel failed during closing argument to draw the jury's attention to inconsistencies in the testimony of B and M. Am. Pet. for Writ of Habeas Corpus 6-7, ECF No. 22 [hereinafter Petition].
I. Right to a Unanimous Jury Verdict
Petitioner alleges he is entitled to habeas relief because the trial court denied his Sixth Amendment right to a unanimous jury verdict. Petitioner acknowledges, however, that existing United States Supreme Court precedent forecloses habeas relief. See Apodaca v. Oregon, 406 U.S. 404, 406, 92 S.Ct. 1628 (1972) (a state court criminal conviction by a less than unanimous jury does not violate the Sixth Amendment right to trial by jury made applicable to states by the Fourteenth Amendment); State v. Bowen, 215 Or.App. 199, 202, 168 P.3d 1208 (2007) (Apodaca remains good law after the rulings in Blakely v. Washington, 542 U.S. 296, 301, 124 S.Ct. 2531 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000)). Petitioner presents this ground to preserve his appeal rights and in a good-faith ...