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Smith v. Myrick

United States District Court, D. Oregon

March 19, 2017

TERRY DARREL SMITH, Petitioner,
v.
MR. J. MYRICK, Respondent.

          OPINION AND ORDER

          Ann Aiken United States District Judge

         Petitioner brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that his convictions and sentence arising from sexual abuse charges violated ins federal constitutional rights. For the reasons explained below, the petition is denied.

         BACKGROUND

         Petitioner, an inmate at Two Rivers Correctional Institution, is incarcerated pursuant to convictions for first-degree sodomy, first-degree sexual abuse, and using a child in a display of sexual conduct.

         The charges against petitioner arose from the sexual abuse of his eight-year-old daughter in 1999. Resp. Ex. 104, Transcript of Trial Proceeding (Tr.) 15-19. At the time, petitioner lived overseas and had not seen his two daughters for several years. Tr. 22, 38, 60, 75. He visited Oregon during the summer of 1999, and for two weeks his eight-year-old daughter stayed with him and his wife, Jane, in an RV park. Tr. 41-42, 51-52, 75. His eleven-year-old daughter also stayed with them for approximately one week. Tr. 52.

         A few weeks after returning from her visit with petitioner, the youngest daughter told her mother that petitioner had sexually abused her. Tr. 25-26, 83-84. According to testimony at trial, Jane had alerted the victim's mother to the potential abuse, and the victim eventually told her mother about the sexual abuse after being assured that her mother would not be angry with her. Tr. 25, 44, 83-84. The victim's mother reported the abuse to the police. By that time, petitioner had left the United States and local authorities could not locate him, Tr. 114-115.

         On July 20, 2000, a grand jury indicted petitioner on felony counts of Sexual Abuse in the First Degree, Using a Child in a Display of Sexual Conduct, and two counts of Sodomy in the First Degree. Petitioner was also indicted on two misdemeanor counts of Failure to Report as a Sex Offender. A warrant was issued for his arrest. Resp. Exs. 102, 120 at 31, In 2006, petitioner was arrested in Cambodia. Tr. 9, 116. To effectuate his arrest, federal authorities issued an arrest warrant against petitioner under 18 U.S.C, § 1073 and then revoked his passport due to the federal warrant. Resp. Ex. 120 at 1-5, 32-35. After his passport was revoked, petitioner was arrested in Cambodia and brought to Los Angeles, Petitioner then waived extradition proceedings and was brought to Oregon to stand trial on the sexual abuse charges. Resp. Ex. 120 at 30.

         Before the jury was selected and sworn, petitioner addressed the court and claimed that the U.S. Marshals Service arrested him in Cambodia without "any extradition papers, " prevented him from speaking with an attorney, and failed to provide him with medical treatment. Tr. 9. Petitioner argued that his removal from Cambodia violated his constitutional rights and questioned whether his trial was "legitimate" as a result. Tr. 10. Petitioner's trial counsel informed the court that he did not believe a valid legal basis existed for petitioner's argument, and the trial court allowed the case to proceed. Tr. 11.

         At trial, several witnesses testified for the prosecution, including the victim, who was 16 years old at the time of trial, and Lieutenant Maureen Bedell, who interviewed the victim in 1999 and 2000 as a detective assigned to the case. Tr. 73-103, 104-120, Lt. Bedell testified that the victim made several disclosures about the sexual abuse committed by petitioner. Tr. 106-112. Lt. Bedell also testified that the victim "demonstrated to my satisfaction that she knew what - what it was to tell the truth and what it was to tell a lie." Tr. at 110.

         After deliberating, the jury convicted petitioner of first-degree sexual abuse, using a child in a display of sexual conduct, and two counts of first-degree sodomy. Tr. 142-43; Resp. Ex 101.[1] At the sentencing hearing, petitioner again raised the issue of his removal from Cambodia. Tr. 149-50. Ultimately, the trial court sentenced petitioner to a total of 270 months imprisonment. Tr. 150-52; Resp. Ex. 101.

         Petitioner directly appealed his conviction and sentence. Resp. Ex. 106-07. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Resp. Ex. 111-12. Petitioner then filed a petition for post-conviction relief (PCR), and the PCR court denied relief. Resp. Ex. 115-17, 137-38. The Oregon Court of Appeals affirmed in a written opinion, and the Oregon Supreme Court denied review. Resp. Ex. 144-45.

         On April 20, 2015, petitioner filed the instant petition seeking federal habeas relief under 28 U.S.C. § 2254.

         DISCUSSION

         In his petition and subsequent amendments, petitioner raises sixteen grounds for relief, many of them overlapping and duplicative. See docs. 2, 32-1. Respondent argues that all claims lack merit and that several are unexhausted and barred from federal habeas review. I ...


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