United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
BECKERMAN UNITED STATES MAGISTRATE JUDGE.
is 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, the district
judge should deny Petitioner's Amended Petition for Writ
of Habeas Corpus (ECF No. 45), and dismiss this proceeding
October 19, 2006, a grand jury indicted Petitioner on two
counts each of Rape in the First Degree and Sodomy in the
First Degree, stemming from allegations by his ten-year-old
cousin (“C.Y.”) that he penetrated her vagina
with his penis and tongue on two separate occasions.
Resp't Exs. (ECF No. 18), Ex.102.
waived his right to a jury trial and on March 18, 2008, the
court found him guilty of all charges and sentenced him to a
total of 200 months in prison. Resp't Exs. 101, 111.
Petitioner timely appealed his convictions, but his appellate
attorney could not identify “any arguably meritorious
issue on appeal” and therefore filed a Balfour
brief. Petitioner submitted a pro se
portion of the appellate briefing, alleging that the trial
court violated his due process rights by denying his Motion
for Judgment of Acquittal. Resp't Ex. 103. The Oregon
Court of Appeals affirmed without opinion, and the Oregon
Supreme Court denied review. State v. White, 240
Or.App. 563, rev. denied, 350 Or. 230 (2011).
next sought state post-conviction relief (“PCR”),
alleging trial counsel was ineffective by failing adequately
to investigate his case, failing to cross-examine C.Y.
regarding prior inconsistent statements, failing to call
witnesses on Petitioner's behalf (especially
Petitioner's grandmother, Juanita White), failing to
object to the hearsay notice, and failing to move to make the
alleged incident date more definite and certain. Resp't
Ex. 151. Following a hearing, the PCR court denied relief.
Resp't Ex. 167. Petitioner appealed, alleging the PCR
court erred when it determined that trial counsel was not
ineffective. Resp't Ex. 168 at 8-9. The Oregon Court of
Appeals affirmed without opinion, and the Oregon Supreme
Court denied review. White v. Nooth, 272 Or.App.
331, rev. denied, 358 Or. 249 (2015).
February 22, 2016, Petitioner filed a Petition for Writ of
Habeas Corpus, alleging seven grounds for relief. Pet. (ECF
No. 2). On September 8, 2017, after the one-year limitations
period expired, Petitioner filed an Amended Petition,
re-alleging all seven of his original grounds for relief, and
adding an eighth ground. Am. Pet. (ECF No. 45). Respondent
urges this Court to deny habeas relief because ground eight
is untimely and futile, grounds two, three, four, five, and
seven are procedurally defaulted, and grounds one and six
fail on their merits. Resp't Resp. (ECF No. 16) at 6;
Resp't Reply (ECF No. 39) at 4-9.
ground eight, Petitioner alleges trial counsel was
ineffective for failing to object to the testimony of Nurse
Gibson “who had examined the alleged victim in
connection with the allegation of abuse, ” found no
physical evidence of sexual abuse, yet recommended sexual
abuse counseling, thereby “improperly vouch[ing] for
the credibility of the alleged victim.” Am. Pet. at
7-8. According to Petitioner, this ground relates back to
ground seven in Petitioner's original petition, alleging
appellate counsel was ineffective for failing “to act
upon inadmissible comments and vouching testimony found
throughout [the] trial transcript, ” citing testimony
from Nurse Gibson as an example. Id. at 6-7.
Respondent argues that ground eight is untimely because
Petitioner filed it more than one year after the limitations
period expired and it does not relate back to any of the
claims in the original Petition. Resp't Reply at 4-5.
Respondent also contends the amendment is futile because it
lacks merit. Id. at 6.
one-year limitation period applies to a state prisoner's
federal habeas petition. 28 U.S.C. § 2244(d)(1). In
Mayle v. Felix, 545 U.S. 644, 657 (2005), the
Supreme Court held that a late-filed claim in an amended
petition relates back under Fed.R.Civ.P. 15(c) “if the
timely claim and the late-filed claim ‘are tied to a
common core of operative facts.'” Nguyen v.
Curry, 736 F.3d 1287, 1297 (9th Cir. 2013) (citing
Mayle, 545 U.S. at 664). “An amended habeas
petition . . . does not relate back . . . when it asserts a
new ground for relief supported by facts that differ in both
time and type from those the original pleading set
forth.” Mayle, 545 U.S. at 650. The Ninth
Circuit has clarified that the “time and type”
language of Mayle does not refer to when the ground
for relief arose, but rather “the facts that support
those grounds.” Id. at 1297.
Petitioner's ineffective assistance of trial and
appellate counsel claims arise out of a common core of
operative facts: the testimony of Nurse Gibson and whether
her testimony was objectionable as improper vouching. The
fact that the grounds are directed at different attorneys and
different proceedings relates to when the grounds for
relief arose, rather than the facts that support those
grounds. Accordingly, consistent with Nguyen, this
Court concludes that Petitioner's eighth ground for
relief relates back to ground seven, and is therefore not
untimely. See Nguyen, 736 F.3d at 1297 (holding that
petitioner's appellate counsel ineffective assistance
claim relates back to his related trial counsel ineffective
assistance claim); see also Crisp v. Davey, No.
2:15-cv-0938-KJN P, 2017 WL 3433204, at *7 (E.D. Cal. Aug.
10, 2017) (“Based on the Ninth Circuit's reasoning
in Nguyen, the undersigned finds that
petitioner's ineffective assistance of appellate counsel
claim relates back to the related ineffective assistance of
trial counsel claim. Accordingly, petitioner's
ineffective assistance of appellate counsel claim is
timely.”), adopted, 2017 WL 4181076 (Sept. 20,
2017); but see Easter v. Franke, No.
2:11-cv-00906-JE, 2016 WL 1276295, at *4 (D. Or. Jan. 20,
2016) (finding that ineffective assistance of appellate
counsel claim did not relate back to ineffective assistance
of trial counsel claim because they involved different
attorneys from different proceedings), aff'd on other
grounds, 694 Fed.Appx. 540 (9th Cir. 2017).
PROCEDURAL DEFAULT (GROUNDS TWO, THREE, FOUR, FIVE, SEVEN,
argues that grounds two, three, four, five, and seven are
procedurally defaulted because Petitioner failed to present
them to the Oregon Court of Appeals and the Oregon Supreme
Court and he can no longer do so. Resp't Resp. at 6-8.
Additionally, Petitioner concedes he procedurally defaulted
his state court remedies as to ground eight.
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 of cause and prejudice, or if the
failure to consider the defaulted claims will result in a
fundamental miscarriage of justice. Coleman v.
Thompson, 501 U.S. 722, 750 (1991).
Grounds Two, ...