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Pearce v. Nooth

United States District Court, D. Oregon

April 13, 2017

MARK NOOTH, Respondent.



         Petitioner, an inmate at Snake River Correctional Institution, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons set forth below, this Court denies Petitioner's Habeas Corpus Petition (ECF No. 2).


         On October 28, 2009, a Grand Jury returned an Indictment charging Petitioner with two counts of Sexual Abuse in the First Degree. Resp't Exs. (ECF No. 31), Ex. 102. The charges were based on allegations by two young girls (FO, age 7, and MO, age 10) that Petitioner touched them inappropriately when applying sunscreen to their bodies.

         Prior to trial, the prosecutor filed a Notice of Intention to Rely on Child Hearsay as required by Oregon Evidence Code (OEC) 803(1 SaXb).[1] Resp't Ex. 112. Defense counsel did not object to the Notice. Consequently, the girls' mother (Antoinette O'Keefe), an investigating officer (Deputy Sheriff John Williams), and a child abuse examiner (Julie Siepmann) were permitted to testify to out-of-court statements made by FO and MO concerning the sexual abuse.

         O'Keefe testified that in July or August of 2009, her daughters disclosed the sexual abuse to her. Resp't Ex. 103 at 119-20. She testified that they told her that Petitioner filled two garbage cans with water for them to swim in, and rubbed sunscreen on their bodies. Id. at 117-18 According to O'Keefe, the girls told her that Petitioner rubbed the sunscreen on their "private parts" and they demonstrated how he touched them. Id. at 118-19, 125. O'Keefe did not immediately report the incident to police. O'Keefe testified that she reported the abuse to Deputy Williams three weeks later after her daughters repeated the same facts concerning the abuse. Id. at 121, 159; see Resp't Ex. 122.

         On September 30, 2009, Deputy Williams was dispatched to O'Keefe's house in response to her complaint of sexual abuse. Resp't Ex. 103 at 159; Resp't Ex. 122. On that same day, he interviewed MO at school. Resp't Ex. 103 at 160; see Resp't Ex. 122. According to Williams, MO stated that she saw Petitioner apply sunscreen to her sister and saw his fingers come from FO's behind to her front. Resp't Ex. 103 at 162, 171-74. MO told him that Petitioner made FO remove her underwear when he applied the sunscreen and a second time when he spanked her. Id. at 173-74; see Resp't Ex. 122. Williams testified that MO told him Petitioner also touched her, but she didn't "specifically say where." Resp't Ex. 103 at 164; see Resp't Ex. 122.

         On October 6, 2009, Siepmann, a child abuse interviewer with Juliette's House, interviewed FO and MO. Resp't Ex. 103 at 201. According to Siepmann, MO stated that her sister told her Petitioner touched her private parts and that she was not wearing underwear. Id. at 205-06. However, MO said that she did not see Petitioner touch FO. Id. Siepmann testified that during a physical examination, MO demonstrated how Petitioner touched her above her private area (but below her underwear waistband) and on her buttocks. Id. at 206-07. Siepmann testified that FO disclosed that Petitioner pulled down her underwear and put "lotion in her privates." Id. at 210-13. Siepmann testified that FO also stated that she saw Petitioner put lotion on MO underneath her panties. Id. at 212-13.

         On October 20, 2009, Deputy Williams and Deputy Sheriff Curtis Pitt interviewed Petitioner. Id. at 185, 193; Resp't Ex. 122. Pitt testified that Petitioner admitted to applying sunscreen to the girls and that he "pulled their panties down and [put] it on their buttocks, and then up in between their legs, to where it was by their crotch area." Resp't Ex. 103 at 190-91, 196; see Resp't Ex. 122. According to Pitt, Petitioner stated it was possible he touched their vaginas. Resp't Ex. 103 at 191. Petitioner was placed under arrest. Id. at 193.

         Both girls testified that Petitioner engaged in inappropriate touching. FO could not identify Petitioner in the courtroom, but testified that he put sunscreen on her arms, back, bottom, between her legs, and in her underwear. Id. at 42, 45-48. FO also testified that Petitioner took off her underwear and spanked her. Id. at 51. FO testified that she saw Petitioner put sunscreen on her sister's back and arms, but she put her head underwater so she wouldn't see anything else. Id. at 61-62, 68. FO testified that her sister told her Petitioner put sunscreen "in her underwear." Id. at 68. FO testified that she told her mother about the abuse about two weeks after the incident. Id. at 66.

         MO refused to look at Petitioner in the courtroom. Id. at 106. MO testified that Petitioner put sunscreen on her "privates, " her bottom, and below the waistband of her underwear. Id. at 83-85, 92-93. MO testified that she saw Petitioner put his hands down FO's panties and put sunscreen "inside her." Id. at 85-86, 91-92. MO testified that Petitioner told her to "clap her knees, " and he made FO remove her underwear and spanked her. Id. at 87-88. MO testified that after lunch, Petitioner made them both pull down their panties, and he spanked them because they did not eat all their food. Id. at 89-90. MO first testified that they told their mother about the abuse "a middle time" after the incident, but on cross examination stated it was the next day. Id. at 90-91, 100-02.

         Petitioner's defense focused on his involvement in the community and his church, his reputation for being truthful, and O'Keefe's delay in reporting the alleged abuse to police. Petitioner sought to prove that O'Keefe made a false report of sexual abuse to police in order to avoid repayment of a $1, 800 loan from Petitioner. At trial, O'Keefe conceded that she owed Petitioner $1, 800. Resp't Ex. 103 at 146. Petitioner testified that he called O'Keefe several times about the loan, and one of the calls was on the day O'Keefe reported the abuse to police. Resp't. Ex. 104 at 18-20, 43-44.

         With regard to his application of sunscreen to FO and MO, Petitioner testified that the girls stripped down to their panties before playing in the water, and that he applied the sunscreen to their "arms, backs, and legs ... [a]nd then [he] swiped their butt...." Id. at 20, 60. He denied removing the girls' underwear or touching them in the front, explaining that he "just pulled the underwear.. . down a little bit, and . . . rubbed their butt." Id. at 21. Petitioner denied telling the investigating officers that he told FO and MO to pull down their panties, and clarified that he told the officers it was "highly unlikely" that he touched their vaginas. Id. at 55-56, 59-60. During closing arguments, defense counsel questioned why a mother would delay reporting the abuse to police, and stressed that everything was fine between Petitioner and O'Keefe until he sought repayment of the debt. Id. at 110-14.

         The trial judge found Petitioner guilty of both charges and sentenced him to a 120-month term of incarceration. Resp't Ex. 101 at 2-5. The judge explained his ruling as follows:

.... [W]e've had at least questions raised as to Mrs. O'Keefe's credibility and motives she might have had here. I agree with [Prosecutor] Gaddis, I don't see that that has anything to do with this case, for a number of reasons.
First, all she really testified to and could testify to is that the girls made a disclosure to her [S]o I suppose if she's a dishonest person maybe that disclosure didn't take place or maybe ... she's lying about what they disclosed.
But the fact is, the girls made the same disclosure to Deputy Williams, and they made the same disclosure to the staff at Juliette's House, and they made the same disclosure here. Certainly some of the details change, as you would expect, and as they do in every case like this. But that tells me that there's absolutely no doubt about whether the disclosure was made to Ms. O'Keefe. It was.
There's also some question about how long she delayed.... I think she told the officer three weeks... .
The bottom line is, she has consistently said, and I do find that she delayed. That, I think, was unwise. . . . But the testimony was that after the disclosure, the children were never around Mr. Pearce.
I don't think there's anything unusual or wrong to helping a child apply sun lotion... .
But... first it doesn't even need to be applied in the genital and anal areas. And secondly, if it needed to be applied, certainly a seven-year-old is capable of making an application at least as effective as the one Mr. Pearce claims he made, which is to get a little on his hand and swipe it over their butts...... So his explanation as to what he was doing down there makes no sense whatsoever.
[FO] testified credibly, and also going back a year, reported to the Juliette House that the application of the suntan lotion included, at the very minimum, applying over the top of her vaginal area, and perhaps even a slight penetration of that.
The facts are overwhelming with regard to [FO] that the incident occurred, and I do find beyond a reasonable doubt that they occurred for a sexual motive and defendant is guilty of that count.
The case regarding [MO] is a bit weaker because the touch wasn't quite as intimate. She described him coming down below where the panties - top of the panties would normally be, but did not describe as close a contact as [FO] did.
[I] f hers was the only case and if this was the only evidence, it would be a difficult case for me to decide because, again, the only issue is the intent and purpose of the contact. But given what clearly happened to [FO], the similar acts with regard to [MO], I am convinced beyond a reasonable doubt that the intent there was also sexual arousal or gratification, and that the State has proven beyond a reasonable doubt that the defendant is guilty of that count as well. So I'll enter findings of guilty in both counts.

Resp't Ex. 104 at 120-25.

         Petitioner subsequently sought state post-conviction relief (PCR) on the basis that his trial counsel rendered ineffective assistance by, among other things, failing to (1) move in limine and object to the prosecutor's Notice of Intent to Introduce Hearsay on the basis that it lacked sufficient particularity; and (2) object to testimony by witnesses who vouched for the credibility of FO and MO. Resp't Exs. 107 at 12, 108 at 7-8. The PCR Court denied relief, the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Resp't Exs. 153, 157, 158.

         In the instant proceeding, Petitioner seeks federal habeas relief on the basis that trial counsel rendered constitutionally ineffective assistance when she failed to object to (1) the Notice of Intent to Rely on Child Hearsay; and (2) numerous instances of witness vouching. Habeas Pet. at 6.

         Respondent moves the Court to deny habeas relief on the basis that the state PCR Court's rejection of Petitioner's claims is neither contrary to, nor an unreasonable application of clearly established federal law.


         Pursuant to 28 U.S.C. § 2254(d), a petition for writ of habeas corpus filed by a state prisoner shall not be granted, with respect to any claim that was adjudicated on the merits in state court, unless the adjudication resulted in a decision that was "contrary to, or involved an unreasonable application of, clearly established Federal law;" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d)(1) & (2); Harrington v. Richter, 562 U.S. 86, 100 (2011); White v. Woodall, 134 S.Ct. 1697, 1702 (2014). A state court unreasonably applies clearly established federal law, if its decision is "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103; Woodall, 134 S.Ct. at 1702.

         It is clearly established federal law that a claim of ineffective assistance of counsel requires a habeas petitioner to prove that counsel's performance fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Williams v. Taylor, 529 U.S. 362, 390-91 (2000); Strickland v. Washington, 466 U.S. 668, 687-88 (1987). To prove deficiency of performance, a petitioner must show that counsel's representation fell below an objective standard of reasonableness. Taylor, 529 U.S. at 390-91; Strickland, 466 U.S. at 688. "A court considering a claim of ineffective assistance must apply a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance." Richter, 562 U.S. at 104, citing Strickland, 466 U.S. at 689. Every effort must be made to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel's perspective at the time. Strickland, 466 U.S. at 689.

         An attorney possesses wide latitude to make tactical decisions during trial. Strickland, 466 U.S. at 689. An attorney's "strategic decisions made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Strickland, 466 U.S. at 689-91; see Gresser v. Franke, 628 F.App'x 960, 962-63 (9th Cir. 2015) (concluding that defense counsel's failure to object to vouching testimony was strategic decision). "Once counsel reasonably selects a defense, it is not deficient performance to fail to pursue alternate defenses." Elmore v. Sinclair, 799 F.3d 1238, 1250 (9th Cir. 2015) (internal quotations omitted).

         In order to prevail on a claim of ineffective assistance of counsel for failure to raise an objection, a habeas petitioner must demonstrate that trial counsel's failure fell below an objective standard of reasonableness and that, had the objection been made, there is a reasonable probability that the objection would have been sustained and the outcome of the trial would have been different. Flournoy v. Small, 681 F.3d 1000, 1005-06 (9th Cir. 2012); Shackleford v. Hubbard, 234 F.3d 1072, 1079-80 (9th Cir. 2000); Gresser, 628 F.App'x at 962. Generally it is not constitutionally required that a defense attorney accurately predict developments in state law. Sophanthavong v. Palmateer, 378 F.3d 859, 870 (9th Cir.2004); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994); but see Burdge v. Belleque, 290 F.App'x 73, at *77-78 (9th Cir. 2008) (concluding that counsel was ineffective for failing to challenge application of ambiguous statute in light of case law from other states and secondary sources supporting challenge). Proof that defense counsel had "nothing to lose" in raising an objection does not suffice to prove that counsel was ineffective. Knowles v. Mirzayance, 556 U.S. 111, 122-23(2009).

         When a Petitioner's ineffective assistance of counsel claim involves an underlying state law issue, this Court defers to a state court's determination of state law. Woods v. Sinclair,764 F.3d 1109, 1138-39 (9th Cir. 2014); Romero v. Cal. Dep't of Corr. and Rehab., 405 F.App'x 208, 211 (9th Cir. 2010); Lopez v. Campbell, 408 F.App'x 13, 16 (9th Cir. 2010); see also Bradshaw v. Rickey,546 U.S. 74, 76 (2005) ("a state court's interpretation of state law . . . binds a federal court sitting in habeas corpus."). However, a federal habeas court must undertake its own analysis of state law if certain aspects of the embedded state law question have not been directly addressed either in the proceedings below or in any published Oregon opinions. Himes v. Thompson,336 F.3d 848, 854 (9th Cir. 2003). "In analyzing [an] embedded state law question, [the court must] vigilantly ...

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