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Loveless v. State

United States District Court, D. Oregon

April 22, 2019

RICARDO ANGEL LOVELESS, Petitioner,
v.
STATE OF OREGON, Respondent.

          FINDINGS AND RECOMMENDATION

          MUSTAFA T. KASUBHAI, MAGISTRATE JUDGE

         Petitioner 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.

         BACKGROUND

         After 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, 63-64, 85-86.

         During 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.

         Petitioner 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.

         On 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 sleeping. Id.

         In its 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?
A: Yes.
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 ...

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