United States District Court, D. Oregon
OPINION AND ORDER
M. KING UNITED STATES DISTRICT JUDGE.
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).
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.
to trial, the prosecutor filed a Notice of Intention to Rely
on Child Hearsay as required by Oregon Evidence Code (OEC)
803(1 SaXb). 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.
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.
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.
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.
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.
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.
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.
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.
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.
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
.... [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
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
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
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
Resp't Ex. 104 at 120-25.
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.
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.
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.
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.
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.
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
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,
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 ...