United States District Court, D. Oregon
OPINION AND ORDER
Malcolm F. Marsh, United States District Judge
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.
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).
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.
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.
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
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
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.
Procedural Default and Un-Argued Claims
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 ...