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Shreeve v. Frank

United States District Court, D. Oregon

February 27, 2017

STEVE FRANKE, Superintendent, Two Rivers Correctional Institution, Respondent.


          Michael McShane United States District Judge.

         Petitioner brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging prosecutorial misconduct and post-conviction trial court error. Petitioner also seeks to assert a claim of ineffective assistance of counsel. For the reasons explained below, the petition is denied.


         Defendant was charged with the criminal mistreatment and assault of M, his eight-week-old child. Defendant lived with M, her mother, Michelle Nelson, and Nelson's two other children in Klamath County. At trial, Nelson testified that she left M alone with defendant while she attended to her two older children, and she began to notice marks and bruises on M. Transcript of Trial Proceedings, Jan. 13, 2004 (Tr.) at 128-142. Eventually, M was taken to the hospital and examined. Dr. Calvert was the physician who reviewed M's x-rays. Dr. Calvert testified at trial that M had broken ribs, a linear skull fracture, and a chipped leg bone. Tr. 207-09, 213. He opined that the rib and leg injuries were consistent with a child who had been gripped by the torso and shaken, and that the skull fracture was likely caused by the use of blunt force against a hard surface. Tr. 210-218. Dr. Calvert did not believe the injuries to be accidental and he diagnosed M with “shaken baby syndrome.” Tr. 221-25.

         Petitioner's defense focused on whether Nelson, rather than petitioner, was responsible for M's injuries. Resp. Ex. 131. Trial counsel also challenged whether M's injuries supported the diagnosis of shaken-baby syndrome, though counsel did not consult or call any outside experts to counter Dr. Calvert's conclusions. Tr. 231-233, 241; Resp. Ex. 131 (affidavit of trial counsel indicating that he reviewed materials provided at a conference and did not consult medical experts).

         The jury found petitioner guilty of one count of Assault in the First Degree and three counts of Criminal Mistreatment in the First Degree. They acquitted petitioner of Assault in the Second Degree and a remaining count of criminal mistreatment. Tr. 352-53. At sentencing, the trial court imposed consecutive, upward departure terms for a total of 192 months' imprisonment. Transcript of Sentencing Proceedings, Mar. 16, 2004, at 11-14.

         Petitioner directly appealed his conviction and sentence. Resp. Ex. 102. The Oregon Court of Appeals affirmed in a written opinion, and the Oregon Supreme Court denied review. Resp. Ex. 105, 107-08. Petitioner also filed a petition for post-conviction relief (PCR) and alleged claims of ineffective assistance of trial counsel based on the failure to obtain and present expert testimony. Resp. Ex. 121 at 11-12.

         During the PCR proceedings, petitioner's PCR counsel retained experts to review the medical evidence and render opinions regarding M's injuries and the diagnosis of shaken-baby syndrome. PCR counsel encountered difficulty in obtaining some of M's medical records and the timely assistance of experts, and the PCR court denied counsel's request for a trial continuance to allow experts to review the evidence. Resp. Ex. 125-28; Resp. Ex. 135 at 4-6, 22. Ultimately, the PCR court denied relief and found that trial counsel was reasonable in choosing a trial strategy focused on the source of injury rather than the cause of injury. Resp. Ex. 135 at 32; Resp. Ex. 136.

         PCR counsel appealed the denial of the motion for continuance and did not appeal the substance of the PCR court's rulings. Resp. Ex. 137. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Resp. Ex. 145-46.

         On March 26, 2015, petitioner filed the instant petition seeking federal habeas relief under 28 U.S.C. § 2254.


         In Ground One of his federal pro se petition, petitioner asserts that his “conviction was obtained by unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant.” (ECF #2) Respondent argues that this claim is non-exhausted and procedurally defaulted, and petitioner agrees. Pet's Br. at 6, n.1; 28 U.S.C. § 2254(b)(1)(A); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004); Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam). Accordingly, federal habeas review of this claim is barred by procedural default. Coleman v. Thompson, 501 U.S. 722, 732, 735 n.1 (1991); Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002).

         In Ground Two of his federal petition, petitioner claims that “there are experts that we could use to help use in our defense” and his PCR attorney “wanted time to allow two (2) experts to help in my case. We just needed this time.” (ECF #2) Petitioner's claim seemingly challenges the PCR court's denial of his request for continuance to allow experts to review the medical evidence. Respondent maintains that a claim of PCR court error is not cognizable on federal habeas review. Cooper v. Neven, 641 F.3d 322, 331-32 (9th Cir. 2011) (holding that post-conviction court procedures cannot be asserted as a basis for relief in a federal habeas petition).

         Petitioner agrees that a procedural decision of a PCR court is not reviewable. However, petitioner argues that the court should construe Ground Two liberally as a claim of ineffective assistance of PCR counsel to excuse the procedural default of a claim for ineffective assistance of trial counsel. See Martinez v. Ryan, 566 U.S. 1 (2012). Petitioner argues that the ineffectiveness of his PCR counsel prevented him from fully developing his claim that trial counsel was ineffective for failing to present expert testimony. Petitioner maintains that he could have “demonstrated the inadequacy of the state's theories as to ‘shaken baby syndrome'” had PCR counsel conducted ...

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