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Taylor v. Franke

United States District Court, D. Oregon

September 22, 2017

REIS JARED TAYLOR, Petitioner,
v.
STEVE FRANKE, Respondent.

          OPINION AND ORDER

          Malcolm F. Marsh, United States District Judge

         Petitioner is currently in the custody of the Oregon Department of Corrections. He brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons set forth below, Petitioner's Habeas Corpus Petition (ECF No. 2) is DENIED, and this case is DISMISSED.

         PROCEDURAL BACKGROUND

         On April 27, 2006, a Multnomah County jury convicted Petitioner of one count of Sodomy in the First Degree and two counts of Sexual Abuse in the First Degree, involving his girlfriend's four-year-old daughter ("S.R."). Resp't Exs. (ECF No. 18) 101, 104. The court sentenced Petitioner to a total of 140-months imprisonment, pursuant to an amended judgment dated November 30, 2006. Resp't Ex. 101. He directly appealed his convictions, but the Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. Taylor, 230 Or.App. 579, rev. denied, 347 Or. 447 (2009). Petitioner then sought post- conviction relief ("PCR"), which the court denied. Umatilla County Circuit Court Case No. CV101718. On appeal, the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Taylor v. Franke, 270 Or.App. 600, rev. denied, 357 Or. 596 (2015).

         In his Petition for Writ of Habeas Corpus, Petitioner alleges twelve instances of ineffective assistance of trial counsel, and two instances of ineffective assistance of appellate counsel. Pet. (ECF No. 2) at 6-7. Respondent argues all grounds, save two, are procedurally defaulted because Petitioner failed to present them to the Oregon Supreme Court on appeal from denial of PCR relief. Resp't Resp. (ECF No. 18) at 8. With respect to the properly presented grounds alleging ineffective assistance of trial counsel, Respondent urges this Court to defer to the PCR court's decision, and deny relief. Id. at 9.

         FACTUAL BACKGROUND

         In November 2004, S.R. first revealed to her grandmother that Petitioner sexually abused her. When S.R.'s grandmother told her not to put things other than food in her mouth, S.R. responded, "Reis put his-he put his pee-pee in my mouth...[h]e put his potty-his pee-pee in my potty." Resp't Ex. 103 at 104-106. S.R.'s grandmother told S.R.'s father of the abuse, who in turn notified S.R.'s mother. However, none of these adults reported S.R.'s statements to the authorities. Id. at 113-14, 217, 285.

         A few months later, in February 2005, S.R. told a Head Start teacher about the abuse, and the Head Start teacher called Oregon Department of Human Services ("DHS"). Resp't Ex. 103 at 88, 90-91. Nobody answered the door when the DHS caseworker first visited the mother's residence. Id. at 118-120. When the DHS caseworker finally interviewed the child a few days later, the child said she had seen the caseworker on TV (via a security camera at her mother's residence) while Petitioner "was hiding in the attic and her mom and her were in a back bedroom." Id. at 122-24. S.R. told the DHS caseworker that her mother told her not to disclose the abuse to the DHS caseworker or DHS would "take her away." Id. at 125. Nevertheless, S.R. described what Petitioner had done to her. Id. at 125-128. The DHS caseworker then called the police, who took S.R. into protective custody. Id. at 129. While they waited to be seen in the emergency room, S.R. continued to volunteer information to the DHS caseworker about how Petitioner had abused her, including that "her favorite thing to watch is naked movies that she and Reis watch together.. .and that during that time her and Reis touch each other's potties." Id. at 129, 131 -32. She also volunteered that Petitioner told her not to tell her mom or she would be mad. Id. No physical abnormalities were detected during S.R.'s physical exam. Id. at 161.

         On March 1, 2005, S.R. was interviewed at CARES Northwest ("CARES") - a child abuse evaluation clinic. The interview was videotaped. Id. at 164. The video was played to the jury during Petitioner's trial, which took place more than a year later. Id. at 147. S.R. also testified at the trial. Her testimony was consistent with her prior reports, except that she denied Petitioner had put anything in her mouth or made her watch pornography. Id. at 62-87. The CARES interviewer, nurse practitioner Kathryn McCready ("McCready"), also testified at the trial. McCready testified that she was unable to say with medical certainty that the child had been sexually abused, so her diagnosis was "highly concerning for sexual abuse." Id. at 171. She explained:

[S.R.] was able to provide some history, but she's four and a half. And we try to be very cautious about drawing conclusions. The history she did provide was consistent over time, and the history she provided was - she used age-appropriate language and, you know, could provide some detail. It just wasn't as detailed as we often like to see.

Id. McCready explained that inconsistencies between S.R.'s trial testimony and CARES interview could be reasonably attributed to a combination of her young age, the lapse in time between the interview and the trial, the courtroom setting, and other potentially intimidating factors such as the presence in the courtroom of people who had threatened her. Id. at 172.

         DISCUSSION

         I. Procedural Default and Un-Argued Claims

         Generally, a state prisoner must exhaust all available state court remedies either on direct appeal or through collateral proceedings before a federal court may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1). A state prisoner satisfies the exhaustion requirement by "fairly presenting" his claim to the appropriate state courts at all appropriate stages afforded under state law. Castille v. Peoples,489 U.S. 346, 351 (1989); Baldwin v. Reese,541 U.S. 27, 29 (2004); Carrillo-Carrillo v. Coursey,823 F.3d 1217, 1220 (9th Cir. 2016); Casey v. Moore,386 F.3d 896, 915-16 (9th Cir. 2004). If the petitioner procedurally defaults his available state remedies, habeas relief is precluded absent a showing ...


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