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Glasscock v. Taylor

United States District Court, D. Oregon

April 25, 2017

CHARLES FRANKLIN GLASSCOCK Petitioner,
v.
JERI TAYLOR, Respondent.

          Anthony D. Bornstein, Assistant Federal Public Defender, Federal Public Defender's Office, Of Attorneys for Petitioner.

          Ellen F. Rosenblum, Attorney General, Kristen E. Boyd, Assistant Attorney General, Oregon Department of Justice, Of Attorneys for Respondent.

          AMENDED OPINION AND ORDER

          Michael H. Simon, United States District Judge

         Petitioner, an inmate at the Two Rivers Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Petition for Writ of Habeas Corpus (ECF No. 2) is DENIED.

         PROCEDURAL BACKGROUND

         On June 5, 2006, a Lane County grand jury indicted Petitioner on three counts of Rape in the First Degree, two counts of Unlawful Sexual Penetration in the First Degree, one count of Sexual Abuse in the First Degree, five counts of Felon in Possession of a Firearm, one count of PAGE 1 - AMENDED OPINION AND ORDER Felony Assault in the Fourth Degree, and one count of Menacing. Resp. Exh. 102. The case was tried to a jury, which convicted Petitioner on all counts. Resp. Exh. 101. The trial judge sentenced Petitioner to a total of 560 months of imprisonment. Resp. Exh. 101.

         Petitioner filed a direct appeal, asserting eight assignments of error:

FIRST ASSIGNMENT: The trial court erred in granting the state's motion in limine prohibiting the defense from exploring a past act of Bonnie Glasscock and prohibiting defense from calling Julie Willoughby as a witness to that act.
SECOND ASSIGNMENT: The trial court erred when it allowed the prosecutor to make improper remarks in closing and rebuttal arguments.
THIRD ASSIGNMENT: The trial court erred in refusing to give defendant's requested jury instruction on defense of others.
FOURTH ASSIGNMENT: The trial court erred by failing to instruct the jury that ten or more of its members must agree on the same set of underlying facts in order to convict defendant of any count in the indictment.
FIFTH ASSIGNMENT: The trial court erred in failing to merge counts 7-11.
SIXTH ASSIGNMENT: The trial court erred in imposing consecutive sentences on counts four and five.
SEVENTH ASSIGNMENT: The trial court erred in imposing a departure sentence on counts 8, 9, 10, and 11.
EIGHTH ASSIGNMENT: The trial court erred in imposing Measure 11 sentences.

Resp. Exh. 103, pp. B-D (summarized in the Table of Contents). The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. Glasscock, 226 Or.App. 604, 205 P.3d 102, rev. denied, 346 Or. 590, 214 P.3d 822 (2009).

         Petitioner then sought state post-conviction relief (“PCR”), alleging numerous claims of ineffective assistance of trial and appellate counsel, as well as claims of trial court error. Resp. Exh. 108. Following an evidentiary hearing, the PCR trial court denied relief. Resp. Exhs. 146, 147. Petitioner appealed, alleging five assignments of error:

FIRST ASSIGNMENT: The PCR court erred in denying relief where Petitioner established trial counsel failed to object to the admission of the victim's hearsay statements where the state failed to provide adequate notice of its intent to offer those statements under Ore. R. Evid. 803.
SECOND ASSIGNMENT: The PCR court erred in denying relief where Petitioner established that trial counsel failed to object to an out-of-court statement of a medical diagnosis.
THIRD ASSIGNMENT: The PCR court erred in denying relief where Petitioner established trial counsel was inadequate and ineffective for not offering testimony from an expert on the subject of the significance of the state expert's physical findings.
FOURTH ASSIGNMENT: The PCR court erred in denying relief where Petitioner established that trial counsel was inadequate and ineffective for not offering testimony from an expert on the subject of the reliability of children's memories.
FIFTH ASSIGNMENT: The PCR court erred in denying relief where Petitioner established that trial counsel failed to object to improper statements made by the prosecutor during closing arguments.

Resp. Exh. 149, pp. i-ii (summarized in the Table of Contents). The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied relief. Glasscock v. Franke, 258 Or.App. 534, 311 P.3d 527, rev. denied, 354 Or. 490, 317 P.3d 255 (2013).

         On January 3, 2014, Petitioner filed his pro se Petition for Writ of Habeas Corpus in this Court. Petitioner alleges eleven grounds for relief:

Ground One: Denial of Right to Counsel, witnesses in favor, and confrontation of adverse witnesses (6th Amnd.)
Supporting Facts: Petitioner was denied a fair opportunity to secure his counsel of choice, denied witnesses for his defense, and was subjected to hearsay of a declarant not at trial.
Ground Two: Insufficient evidence to sustain jury findings of guilty (14 Amend. Due Process).
Supporting Facts: The State of Oregon presented false material evidence and testimony and obtained a conviction based on false evidence denying petitioner due process and fundamental fairness.
Ground Three: Actual Innocence - Newly Discovered Evidence (14th Amend. Due Process)
Supporting Facts: Petitioner has newly discovered evidence of innocence that, if not reasonably considered by this court, “will result in a fundamental miscarriage of justice.”
Ground Four: Denial of a Meaningful Opportunity to Present a Complete Defense (14th Amend. Due Process).
Supporting Facts: The State moved to suppress/exclude defense evidence and witnesses. The trial court excluded defense evidence and allowed hearsay statements.
Ground Five: Trial court error - jury instructions (14th Amend. Due Process)
Supporting Facts: The court gave improper instructions and refused instructions that should have been allowed for the defense.
Ground Six: Denial of due process and a fair trial (14th Amend. Due Process)
Supporting Facts:
(a) [The prosecutor] used false evidence on material matters;
(b) [The prosecutor] engaged in improper conduct by making misrepresentations of material facts, vouched for the credibility of her witnesses, bolstered their testimony, gave unsworn testimony, referred to matters outside the record, denigrated the defense, verbally attacked defendant and called him a “liar, ” made burden shifting comments, commented on defendant's custody status, appealed to the passions/emotions of the jury and urged them to convict for an improper purpose, and misstated the law;
(c) [The prosecutor] withheld exculpatory evidence/Brady material.
Ground Seven: Denial of motion for a new trial (newly discovered evidence) (14th Amend. Due Process) Supporting Facts: The court denied petitioner's motion without reaching its merits.
Ground Eight: Denial of effective counsel on direct appeal (14th Amend. Due Process)
Supporting Facts: Appellate counsel failed to raise as error: (a) the state's expert testimony made comments on the credibility of the complainant;
(b) trial court error in allowing jury instructions “testimony false in part” against defendant;
(c) trial court's denial of petitioner's motion for new trial without reaching the merits.
Ground Nine: Violation of due process where the state obtained a judgment denying Petitioner's PCR claims by the use of false material evidence depriving Petitioner of due process and fundamental fairness (14th Amend. Due Process) Supporting Facts: The state used false evidence (again) ...

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