United States District Court, D. Oregon
DAVID G. VIDAL, Petitioner,
MARK NOOTH, Respondent.
Ahlemeyer Assistant Federal Public Defender Attorney for
F. Rosenblum, Attorney General, Samuel A. Kubernick,
Assistant Attorney General, Department of Justice, Attorneys
OPINION AND ORDER
A. Hernandez U.S. 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 Amended Petition for Writ of Habeas Corpus
(ECF No. 23) is DENIED, and this case is DISMISSED.
27, 2009, a Clackamas County jury convicted Petitioner of the
following charges stemming from sexual abuse of a minor
(“M.H.”): two counts of Rape in the First Degree,
three counts of Unlawful Sexual Penetration in the First
Degree, one count of Sodomy in the First Degree, and two
counts of Sexual Abuse in the First Degree. Resp't Exs.
(ECF No. 14), Resp't Ex. 101. The court imposed
concurrent and consecutive sentences totaling 600 months of
imprisonment, to be followed by lifetime post-prison
supervision. Id. At trial, Nurse Practitioner Vivian
O'Dell (“Nurse O'Dell”) testified that
she diagnosed M.H. as having been sexually abused based on
“the history available to [her] at the time, physical
examination findings, factors that may increase risk for
abuse, as well as [M.H.'s] clear, detailed
statements.” Resp't Ex. 103 at 125-26. The physical
findings included a decrease in hymenal tissue and
“angularities” in the posterior portion of
M.H.'s hymen, which Nurse O'Dell considered
significant, and suggestive of a “penetrating
injury.” Id. at 113-125.
directly appealed his convictions, but the Oregon Court of
Appeals affirmed, rejecting Petitioner's argument that
under State v. Southard, 347 Or. 127 (2009),
permitting Nurse O'Dell's diagnosis testimony was
plainly erroneous. State v. Vidal, 245 Or.App. 511
(2011). The court reasoned:
As noted, Southard itself announced a rule that
concerned an expert medical diagnosis of sexual abuse
“in the absence of any physical evidence of abuse,
” and it narrowly limited its holding to those
circumstances. The present case does not fall within the
court's narrow holding. [Nurse] O'Dell testified that
her physical findings concerning MH's hymen were
“significant.” Indeed, she listed those findings
as one of the four factors that contributed to her diagnosis
of sexual abuse.
Id. at 516. The Oregon Supreme Court denied review.
State v. Vidal, 351 Or. 761 (2012).
then sought post-conviction relief (“PCR”).
Following a hearing, the PCR court denied relief, noting that
at the time of Petitioner's trial, Southard had
not yet been decided, and finding that in any event a
Southard objection to Nurse O'Dell's
diagnosis testimony would not have been well taken because
her testimony was supported by physical evidence of
sexual abuse. Resp't Ex. 134 at 4. On appeal, the Oregon
Court of Appeals affirmed, and the Oregon Supreme Court
denied review. Vidal v. Nooth, 274 Or.App. 722
(2015), rev. denied, 358 Or. 449 (2015).
Petition for Writ of Habeas Corpus Petitioner alleges one
ground for relief, as follows:
[Petitioner] pleads on information, belief, and personal
knowledge that he did not receive effective assistance of
trial counsel, as guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution, when his trial
counsel failed to object to the admissibility of expert
medical testimony regarding a diagnosis of sexual abuse.
Am. Pet. (ECF No. 23) at ...