United States District Court, D. Oregon
Anthony D. Bornstein Assistant Federal Public Defender
Attorney for Petitioner
F. Rosenblum, Attorney General Samuel A. Kubernick, Assistant
Attorney General Department of Justice Attorneys for
OPINION AND ORDER
brings this habeas corpus case pursuant to 28 U.S.C. §
2254 challenging the legality of his state-court convictions
for Sexual Abuse. For the reasons that follow, the Petition
for Writ of Habeas Corpus (#2) is denied.
and his girlfriend, Lynne Schreiber, lived together for
approximately eight years. The couple lived with their
natural son, Alec, as well as Schreiber's two daughters
from a previous relationship, ES and KS. The couple separated
in July 2006, with Petitioner living in an apartment a half
mile from Schreiber and the children. Petitioner retained
visitation rights with his son, and Alec would frequently
visit Petitioner at his new apartment.
developed a friendship with a 12-year-old girl in
Schreiber's apartment complex, KW. On several occasions,
KW visited with Alec at Petitioner's apartment where the
trio would eat dinner and watch a movie. On the last such
visit, Petitioner hugged KW, kissed her ear, licked her
earlobes, and kissed her neck and shoulders. He touched her
breasts over her clothing, touched her genital area under her
clothing, and touched her inner thighs.
returned home from Petitioner's apartment, her mother
could tell something was wrong and questioned her daughter.
KW told her mother that Petitioner had touched her
inappropriately, but asked her not to call the police.
KW's mother did not contact the police, and instead left
Petitioner a message instructing Petitioner to leave KW
alone. Ultimately, however, law enforcement personnel were
alerted to the abuse. When a police detective and a
Department of Human Services caseworker notified Schreiber of
KW s allegations, Schreiber was dismissive. Schreiber's
reluctance to believe KW s allegations angered ES because
she, herself, had been a victim of Petitioner's sexual
abuse in the past (but had not yet disclosed the abuse) .
This prompted ES to leave her mother a note telling her that
KW was likely being truthful because Petitioner had abused ES
when she was younger. The investigation expanded, and when
authorities questioned KS, she revealed that Petitioner had
sexually abused her as well.
Washington County Grand Jury indicted Petitioner on three
counts of Sexual Abuse in the First Degree as to KW (Counts
1-3 occurring in 2008), one count of Sexual Abuse in the
First Degree as to ES (Count 4 occurring between 1996 and
1998), and one count of Sexual Abuse in the First Degree as
to KS (Count 5 occurring between 1999 and 2000).
Respondent's Exhibit 102.
case proceeded to a jury trial where the defense reasoned
that ES and KS harbored animosity against Petitioner because
he had been a harsh disciplinarian during the years they
lived together. Petitioner testified that he also angered KW
when he became upset with her for refusing to allow Alec to
sit in the front seat of his car for the trip back to
Schreiber's apartment complex. He therefore theorized
that all three girls held grudges against him that would
cause them to fabricate their stories of abuse.
the trial, a question arose as to whether KS had made a prior
out-of-court statement denying that Petitioner had sexually
abused her. Kristin Griffey, a childhood friend of
Schreiber's, had taken Schreiber and her children into
her home for about two months during a particularly volatile
time in Petitioner's and Schreiber's
relationship. While KS lived in Griffey's home,
Griffey became concerned about KS because she witnessed
changes that led her to believe KS might have been sexually
abused. She observed that KS "became very just
sexualized" and "just became a completely different
person. Her persona was completely changed." Trial
Transcript, p. 519. KS went from someone who "would wear
cute appropriate, age appropriate clothing, to somebody who
absolutely changed looking like what I would consider a
street person or a streetwalker type of person."
offer of proof, Griffy testified that she asked KS if she had
ever been abused, careful to avoid asking a leading question
as to "sexual" abuse so as not to lead to a false
accusation. KS simply responded, "No." The trial
court refused to allow the testimony because: (1) the
question Griffey asked was "very vague" and
pertained to generic abuse, not sexual abuse, and KS could
have interpreted it in the context of domestic violence; and
(2) KS's statement amounted to inadmissible hearsay
because it was not inconsistent with her prior testimony.
Id. at 533-34.
jury convicted Petitioner on all Counts, and the trial court
sentenced him to 150 months in prison. Respondent's
Exhibit 101. Petitioner took a direct appeal raising
state-law issues not relevant to this habeas corpus case. The
Oregon Court of Appeals affirmed the trial court's
decision without opinion, and the Oregon Supreme Court denied
review. State v. Ramsey, 245 Or.App. 165, 259 P.3d
115, rev. denied, 351 Or. 403, 271 P.3d 115 (2011).
next filed for post-conviction relief ("PCR") in
Umatilla County. Among his claims, he alleged that his trial
attorney had been ineffective for failing to argue that
KS's denial of abuse was, in fact, admissible because it
amounted to a prior inconsistent' statement with respect
to her testimony that Petitioner abused her. The PCR court
agreed and remanded the case for a new trial only as to Count
5 (Sex Abuse I as to KS) . Respondent's Exhibit 137, pp.
2-3. The PCR court otherwise denied relief on
appeal, Petitioner argued that trial counsel's deficient
performance infected his entire trial with prejudice such
that the PCR court should have vacated all of his
convictions. Respondent's Exhibit 142, p. 8. The State
argued that such an argument was unpreserved where Petitioner
failed to raise it to the PCR court, and also argued that the
claim lacked merit. The Oregon Court of Appeals affirmed the
PCR court's decision without issuing a written opinion,
and the ...