Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Vidal v. Nooth

United States District Court, D. Oregon

February 2, 2018

DAVID G. VIDAL, Petitioner,
v.
MARK NOOTH, Respondent.

          Mark Ahlemeyer Assistant Federal Public Defender Attorney for Petitioner.

          Ellen F. Rosenblum, Attorney General, Samuel A. Kubernick, Assistant Attorney General, Department of Justice, Attorneys for Respondent.

          OPINION AND ORDER

          Marco A. Hernandez U.S. 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 Amended Petition for Writ of Habeas Corpus (ECF No. 23) is DENIED, and this case is DISMISSED.

         BACKGROUND

         On May 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.

         Petitioner directly appealed his convictions, but the Oregon Court of Appeals affirmed, rejecting Petitioner's argument that under State v. Southard, 347 Or. 127 (2009), [1] 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).

         Petitioner 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).

         In his 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.