United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI, MAGISTRATE JUDGE
brings this petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 and alleges the violation of his
constitutional right to the effective assistance of counsel.
Respondent argues that petitioner's claim was rejected by
a state court decision entitled to deference and his petition
should be denied. For the following reasons, I agree.
trial before the court in October 2006, petitioner was
convicted of Sexual Abuse in the First Degree. Resp't Ex.
101. Petitioner's conviction arose from disclosures made
by A.B., a girl who was twelve years old at the time of
trial. When A.B. was eight or nine years old, petitioner was
the boyfriend of A.B.'s mother and they lived in the same
household. Resp't Ex. 103 at 16-18. At trial, A.B.
testified that early one morning when she was sleeping in bed
with her mother, petitioner arrived home from work and laid
down in the same bed. A.B. testified that after her mother
got up and went into the kitchen, petitioner put his arm
around A.B. and touched her vaginal area outside of her
clothing. Id. at 20-24. Approximately two years
later, A.B. disclosed the abuse to a friend and family
members, who ultimately reported A.B.'s disclosures to
law enforcement authorities. Id. at 25, 47-50,
trial, Detective Kristina Knox testified about the
disclosures A.B. had made to her during an interview.
Id. at 85-93. A.B.'s disclosures to Detective
Knox about the alleged abuse differed from statements A.B.
had made to her father's girlfriend. Id. at
50-51. On cross-examination, Detective Knox also referenced
an interview she had with petitioner. Id. at 109-10.
testified in his own defense. He denied the allegations and
insisted that A.B. had never been in the same bed with him
and that he had never touched A.B. in a sexual manner.
Resp't Ex. 103 at 160-62. Petitioner also testified about
his interview with Detective Knox. Petitioner testified that
he had tried to be "as honest as possible" and
"answer all of her questions," but that Detective
Knox "misunderstood" what he was "trying to
say." Id. at 163-64.
cross-examination, petitioner admitted that he could have
told Detective Knox he was only 90 percent certain that
"nothing happened" with A.B. Id. at 166.
On redirect examination, petitioner explained that he made
this statement in response to Detective Knox's question
asking whether it was possible A.B. could have climbed in the
bed with him after he was sleeping, and perhaps he touched
A.B. inappropriately under those circumstances. Id.
at 178-80. Petitioner thought he could not be certain about
something that could have possibly occurred while he was
rebuttal case, the State recalled Detective Knox, who
acknowledged that petitioner had repeatedly denied touching
A.B. during his interview. Id. at 184-85. The State
then elicited the following testimony from Detective Knox:
Q: Does the nature of [petitioner's] denial change over
the progression of your interview?
Q: Can you describe how it changes?
A: Basically at the outset of our conversation he was very,
very adamant about how he would never have done anything like
what he was accused of doing; that he would never touch
[A.B.] or any other child. And then as - and then as I stated
before, that he never allowed the children to sleep with them
or never had slept with them. Then later he was making kind
of qualifying statements like I mentioned before about,
"I swear to God she was never in our bed that I know
of," and things of that nature.
Q: Okay. How many suspect interviews have you conducted
during the course of your ...