United States District Court, D. Oregon
Kristina Hellman Assistant Federal Public Defender Attorney
F. Rosenblum, Attorney General Kristen E. Boyd, Assistant
Attorney General Department of Justice Attorneys for
FINDINGS AND RECOMMENDATION
PATRICIA SULLIVAN, UNITED STATES MAGISTRATE JUDGE
brings this habeas corpus case pursuant to 28 U.S.C. §
2254 challenging the legality of his state-court convictions
dated December 8, 2003. For the reasons that follow, the
Petition for Writ of Habeas Corpus (#1) should be denied.
repeatedly and severely sexually abused his two young
step-children, something the trial judge believed to be
“about the most extreme case of sexual abuse that
I've ever seen.” Sentencing Transcript, p. 15.
Following Petitioner's trial, a jury convicted him of two
counts of Sexual Penetration with a Foreign Object, two
counts of Rape in the First Degree, four counts of Sexual
Abuse in the First Degree, two counts of Sodomy in the First
Degree, four counts of Using a Child in a Display of Sexually
Explicit Conduct, and four counts of Coercion.
Respondent's Exhibit 101. The trial court imposed
sentences totaling 1180 months in prison.
took a direct appeal, but the Oregon Court of Appeals
affirmed the trial court's decision without opinion, and
the Oregon Supreme Court denied review. State v.
Reason, 299 Or.App. 170, 146 P.3d 1170 (2006), rev.
denied, 342 Or. 344, 153 P.3d 123 (2007).
next filed for post-conviction relief (“PCR”) in
Umatilla County where the PCR court denied relief.
Respondent's Exhibit 125. As with Petitioner's direct
appeal, the Oregon Court of Appeals affirmed that decision
without opinion, and the Oregon Supreme Court denied review.
Respondent's Exhibits 129 & 130.
filed this 28 U.S.C. § 2254 habeas corpus case in 2014
raising seven grounds of ineffective assistance of trial
counsel. Respondent asks the Court to deny relief on the
Petition because: (1) Petitioner failed to fairly present
Grounds Two, Three, Six, and Seven to Oregon's state
courts, leaving them procedurally defaulted; and (2) the
state courts denied Grounds One, Four, and Five in decisions
that were neither contrary to, nor unreasonable applications
of, clearly established federal law.
Standard of Review
application for a 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 Petitioner bears the burden of rebutting the
presumption of correctness by clear and convincing evidence.
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 indistinguishable 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 "if the state court identifies
the correct governing 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. Twenty-eight
U.S.C. § 2254(d) "preserves authority to issue the
writ in cases where there is no possibility fairminded
jurists could disagree that the state court's decision
conflicts with [the Supreme] Court's precedents. It goes
no farther." Harrington v. Richter, 562 U.S.
86, 102 (2011).
previously noted, Petitioner raises seven grounds for relief
in his Petition. In his supporting memorandum, however,
Petitioner chooses to brief three claims of ineffective
assistance of trial counsel: (1) counsel failed to obtain and
call a child sexual abuse expert (Ground One); (2) counsel
failed to timely object and move for a mistrial after
Detective Sweet improperly vouched for the credibility of the
two child victims, KS and CS (Ground Four); and (3) counsel
failed to object, move to strike, and move for a mistrial
when Physician's Assistant Ryan improperly vouched for
the credibility of KS (Ground Five).
does not argue the merits of his remaining claims, nor does
he address Respondent's arguments as to why relief on
these claims should be denied. As such, Petitioner has not
carried his burden of proof with respect to these unargued
claims. See Silva v. Woodford, 279 F.3d 825, 835
(9th Cir. 2002) (Petitioner bears the burden of proving his
claims). Even if Petitioner had briefed the merits of these
claims, the court has examined them based upon the existing
record and determined that they do not entitle him to relief.
Ground One: Failure to Obtain Expert
first asserts that trial counsel failed to obtain an expert
witness to assess issues of suggestibility stemming from the
totality of the circumstances surrounding the victims'
disclosures of abuse. The Court uses the general two-part
test established by the Supreme Court to determine whether
Petitioner received ineffective assistance of counsel.
Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009).
First, Petitioner must show that his counsel's
performance fell below an objective standard of
reasonableness. Strickland v. Washington, 466 U.S.
668, 686-87 (1984). Due to the difficulties in evaluating