United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL J. MCSHANE UNITED STATES DISTRICT JUDGE
filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, alleging that his trial counsel rendered
ineffective assistance by failing to object to hearsay
testimony and failing to interview character witnesses.
Respondent contends that one of petitioner's claims is
procedurally defaulted and the remaining claim was denied in
a state court decision entitled to deference. For the reasons
explained below, the petition is denied and the case
April 2011, after trial by jury, petitioner was convicted of
Unlawful Sexual Penetration in the First Degree, Sodomy in
the First Degree, and three counts of Sexual Abuse in the
First Degree. Resp't Ex. 101.
convictions arose from the sexual abuse of G.T., his
wife's daughter, when she was between the ages of seven
and nine. On a camping trip in late July 2010, G.T disclosed
the abuse to M.S., her stepsister. Transcript of Proceedings
(Tr.) at 75 (ECF No. 27). M.S. reported those allegations,
and G.T.'s father eventually called the police. Tr. at
76, 88. Det. Jason Ball led the investigation and arranged
for G.T. to be examined at Liberty House, a child abuse
30, 2010, Dr. Oh, a medical provider at Liberty House,
conducted a physical examination of G.T. and asked her
“privates” had even gotten hurt. Tr. 153-54. G.T.
told Dr. Oh that petitioner sometimes “wants to poke
one of his fingers inside the hole where the baby comes out.
And sometimes he puts one whole finger in there and it
hurts.” Tr. 154. Dr. Meredy Golburg-Edelson, a clinical
psychologist for Liberty House, was present during the
examination and told G.T. that they would talk about her
disclosures in the interview room. Tr. 146-47, 154. After her
medical examination, G.T. was taken to an interview room and
Dr. Golburg-Edelson asked G.T. about the statement she made
during the medical examination. During this interview, G.T.
disclosed many other instances of abuse by petitioner. Tr.
118-122, 132-34, 139-41.
trial, G.T. recounted an uncharged occurrence of abuse by
petitioner (that occurred outside of the court's
jurisdiction) and testified that she could not remember the
other instances of abuse she revealed in the Liberty House
interview. Tr. 20-21, 62-63, 66-70, 72. G.T. also testified
that she did not remember talking to Dr. Golburg-Edelson,
though she remembered a place with a mirror and a camera. Tr.
State called Dr. Golburg-Edelson and Det. Ball to testify.
Dr. Golburg-Edelson described G.T.'s examination and
interview and testified about G.T.'s statements and
disclosures of abuse by petitioner. Tr. 118-122, 132-34,
139-41. During Dr. Golburg-Edelson's testimony, the State
offered a video recording of G.T.'s Liberty House
interview as Exhibit 1 and parts of the video were played for
the jury. Tr. at 123-30, 134-37, 141-44. Subsequently, Det.
Ball testified about G.T.'s assessment at Liberty House
and her statements made during the interview. Tr. 183-86.
Petitioner's trial counsel did not object to the
introduction of Exhibit 1 or to the testimony of Dr.
Goldburg-Edelson and Det. Ball on grounds of inadmissible
jury found petitioner guilty on all counts. Tr. 278-79. At
sentencing, the trial court imposed consecutive and
concurrent sentences totaling 420 months of imprisonment. Tr.
305-06; Resp't Ex. 101.
dismissing his direct appeal, petitioner filed a petition for
post-conviction relief (PCR) alleging several claims of
ineffective assistance of counsel, and the PCR trial court
denied relief. Resp't Exs. 103, 105, 121-22. The Oregon
Court of Appeals affirmed without opinion, and the Oregon
Supreme Court denied review. Resp't Exs. 123, 129-30.
January 9, 2017, petitioner filed this habeas petition under
28 U.S.C. § 2254.
Ground Two - Failure to Call Character Witnesses
Ground Two, petitioner alleges that trial counsel rendered
ineffective assistance by failing to interview and call
several character witnesses. Pet. at 6 (ECF No. 2).
Respondent argues that this claim is procedurally defaulted
and barred from review because petitioner failed to present
it to the Oregon Supreme Court. See 28 U.S.C. §
2254(b)(1)(A); Duncan v. Henry, 513 U.S. 364, 365
(1995) (per curiam) (before seeking federal habeas relief, a
petitioner must “fairly present” a federal claim
to the State's highest ...