United States District Court, D. Oregon
MERVIN R. BARTEAUX, Petitioner,
JEFF PREMO, Superintendent, Oregon State Penitentiary, Respondent.
W. LOEWY Assistant Federal Public Defender, Attorney for
F. ROSENBLUM Attorney General, KRISTEN E. BOYD Senior
Assistant Attorney General Department of Justice, Attorneys
OPINION AND ORDER
J. BROWN UNITED STATES SENIOR DISTRICT JUDGE.
an inmate at the Oregon State Penitentiary, brings this
habeas corpus action pursuant to 28 U.S.C. § 2254. For
the reasons that follow, the Court DENIES the First Amended
Petition for Writ of Habeas Corpus (ECF No. 25).
28, 2002, a Multnomah County grand jury indicted Petitioner
on two counts each of Sodomy in the First Degree and Sexual
Abuse in the First Degree, and six counts of Unlawful Sexual
Penetration in the First Degree. The charges arose from
Petitioner's sexual acts against his developmentally
disabled cousin over the course of a year. In particular,
Petitioner, then married and nearly 61 years old, would take
his developmentally disabled 46-year-old cousin out to fast
food restaurants for lunch and then engage in sexual acts
with her in his van. The victim ultimately disclosed the
sexual acts to her mother, and Petitioner confessed.
Petitioner provided an apology letter to the victim and
outlined the nature of the sexual abuse to the investigating
was appointed to represent Petitioner. After two judicial
settlement conferences, and after Petitioner rejected the
prosecution's offer of a plea agreement for eight years
of imprisonment, the case proceeded to a jury trial. On
December 2, 2002, the case was called for trial. At the start
of the proceeding, court-appointed counsel alerted the trial
judge that Petitioner wanted to retain a different attorney
to represent him. Petitioner explained to the trial judge
that he had been in touch with the proposed retained counsel
"a few months" earlier, but at that time was
financially unable to hire him. Now in a different financial
position, however, Petitioner wished to retain the private
attorney in place of his court-appointed attorney. Following
a lengthy colloquy and an in-chambers meeting among the trial
judge, counsel, and Petitioner, the trial nevertheless
proceeded with court-appointed counsel remaining on the case.
sole issue at trial was whether the victim was capable of
consent under Oregon -law. The jury ultimately found
Petitioner guilty on all counts by a 10-2 vote. The trial
judge imposed consecutive and concurrent sentences totaling
180 months of imprisonment.
filed a direct appeal, asserting as error the trial
judge's denial of Petitioner's motion for judgment of
acquittal on all counts based upon an argument that the
victim was capable of consent. The Oregon Court of Appeals
issued a written opinion affirming the conviction and
sentence. State v. Barteaux, 212 Or.App. 118, 157
P.3d 225 (2007) . The Oregon Supreme Court denied a petition
for review. State v. Barteaux, 343 Or. 160, 164 P.3d
then filed a petition for state post-conviction relief
("PCR"). Following an evidentiary hearing, the
state PCR trial judge denied relief. On appeal, the Oregon
Court of Appeals reversed and remanded the case in light of
the United States Supreme Court's then-recent decisions
Lafler v. Cooper, 566 U.S. 156');">566 U.S. 156 (2012) and
Missouri v. Frye, 566 U.S. 134');">566 U.S. 134 (2012). Barteaux
v. Mills, 250 Or.App. 767, 281 P.3d 661 (2012). The
state sought reconsideration, which the Court of Appeals
allowed, and the court then adhered-to its original opinion.
Barteaux v. Mills, 252 Or.App. 313, 286 P.3d 1243
(2012). On remand, the PCR trial court held another
evidentiary hearing and again denied relief. Resp. Exh. 14 6.
On appeal, the Oregon Court of Appeals affirmed without
opinion and the Oregon Supreme Court denied review.
Barteaux v. Taylor, 273 Or.App. 820, 362 P.3d 1215
(2015), rev. denied, 358 Or. 550, 368 P.3d 25
5, 2016, Petitioner filed a pro se Petition for Writ
of Habeas Corpus with this Court. The Court appointed
counsel, who filed a First Amended Petition for Writ of
Habeas Corpus alleging the following claims for relief:
CLAIM I: Petitioner was denied his choice of counsel, in
violation of his right to counsel, as guaranteed by the Sixth
and Fourteenth Amendments.
CLAIM II: The trial evidence was insufficient to prove guilty
beyond a reasonable doubt, in violation of Petitioner's
Fourteenth Amendment right to due process.
CLAIM- III: The "incapable of consent by reason of
mental defect" element of the offenses of conviction is
vague in violation of Petitioner's -Fourteenth Amendment
right to due process, CLAIM -IV: Petitioner's convictions
violate his Fourteenth Amendment right to due process because
he is actually innocent of the offenses of the conviction.
CLAIM V: Trial counsel rendered ineffective assistance of
counsel, in violation of Petitioner's Sixth and
Fourteenth Amendment right to effective assistance of
A. Trial counsel failed to adequately assert Petitioner's
right to counsel of choice.
B. Direct appeal counsel failed to raise the claim that the
trial court had violated Petitioner's Sixth and
Fourteenth Amendment right to be "represented by counsel
of his choice.
C. Trial counsel failed to adequately advise Petitioner
regarding the advantages, disadvantages, and risks in
rejecting or accepting the State's plea offer.
D. Trial and direct appeal counsel failed to adequately
assert and argue that the "incapable of consent by
reason of mental defect" element of the offenses of
conviction is unconstitutionally vague.
E. Trial and direct appeal counsel failed to adequately
assert and argue that the trial evidence was insufficient to
prove guilt beyond a reasonable doubt.
F. Trial and direct appeal counsel failed to adequately
assert and argue that Petitioner's conviction violated
his Fourteenth Amendment right to due process because he is
actually innocent of the offenses of conviction.
CLAIM VI: Based exclusively on-the written record, not on
hearing from witnesses at an evidentiary hearing, the state
circuit court judge in post-conviction proceedings made
credibility determinations adverse to Petitioner (which were
affirmed on "appeal) in violation of his right to due
"process guaranteed by the Fourteenth Amendment.
CLAIM VII: The cumulative effect of the prejudicial errors
made in Petitioner's case mandate that his convictions
and sentences be vacated.
argues that Petitioner procedurally defaulted the grounds
alleged in Claim I; Claim III; sub-parts A, B, D, and F, of
Claim V; Claim VI; and Claim VII. As to Claims II and
sub-claim D of Claim V, Respondent argues the state court
decisions denying relief on the merits are entitled to
concedes he procedurally defaulted, the grounds alleged in
Claims I, III, and sub-parts A, D, and E of Claim V, but
argues the procedural default should be excused. Petitioner
also argues that the state court decisions denying relief on
Claim II and sub-part D of Claim V are not entitled to
deference. Petitioner does not address the remaining claims
Deference to State Court Decisions
application for writ of habeas corpus shall not be granted
unless adjudication of the claim in state court resulted in a
decision that was: (1) "contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United
States," or (2) "based on an unreasonable
determination of the facts in light of the evidence presented
in the State Court proceeding." 28 U.S.C. §
2254(d). A state court's findings of fact are .presumed
correct and a habeas petition bears the burden of rebutting
the presumption of correctness by clear and convincing
evidence. See 28 U.S.C. § 2254 (e) (1) .
court decision is "contrary to clearly established
precedent if the state court. applies a rule that contradicts
the governing law set forth in [the Supreme Court's]
cases" or "if the state court confronts a set of
facts that are materially distinguishable from a decision of
[the Supreme] Court and nevertheless arrives at a result
different from [that] precedent." Williams v.
Taylor, 529 U.S. 362, 405-06 (2000). Under the
"unreasonable application" clause, a federal habeas
court may grant relief only "if the state court
identifies the correct legal principle from [the Supreme
Court's] decisions, but unreasonably applies that
principle to the facts of the prisoner's case."
Id. at 413. The "unreasonable application"
clause requires the state court decision to be more than
incorrect or erroneous. Id. at 410. The state
court's application of clearly established law must be
objectively unreasonable. Id. at 409.
whether a state court's decision resulted from an
unreasonable legal or factual conclusion does not require
that there be an opinion from the state court explaining the
state court's reasoning." Harrington v.
Richter, 562 U.S. 86, 98 (2011). Where a state
court's decision is not accompanied by an explanation,
"the habeas petitioner's burden still must be met by
showing there was no reasonable basis for the state court to
deny relief." Id. Where, however, the highest
state court decision on the merits is not accompanied by
reasons for its decision but a lower state court's
decision is so accompanied, a federal habeas court should
"look through" the unexplained decision to the last
related state-court decision that provides a relevant
rationale, and presume the unexplained decision adopted the
same reasoning'. Wilson v. Sellers, 138 S.Ct.
1188, 1192 (2018).
Claim II - Insufficient Evidence
Claim II, Petitioner alleges there was insufficient evidence
to prove his guilt beyond a reasonable doubt. Specifically,
Petitioner alleges the state failed to introduce sufficient
evidence to convince a rational juror that the victim was
incapable of consent by reason of mental defect. Petitioner
argues that the prosecution's ...