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Galindo v. Cain

United States District Court, D. Oregon

July 1, 2019

ALFREDO P. GALINDO, Petitioner,
v.
BRAD CAIN, Respondent.

          Nell Brown Assistant Federal Public Defender Attorney for Petitioner

          Ellen F. Rosenblum, Attorney General Samuel A. Kubernick, Assistant Attorney General Attorneys for Respondent

          OPINION AND ORDER

          Michael W. Mosman, United States District Judge.

         Petitioner brings this habeas corpus case pursuant to 28 D.S.C. § 2254 challenging the legality of his Marion County convictions and resulting 300-month sentence dated June 2, 2010. For the reasons that follow, the Amended Petition for Writ of Habeas Corpus (#17) is denied.

         BACKGROUND

         Petitioner's stepdaughter, Mandy, operated a daycare business within her apartment. As part of that business, she watched Kandra B.'s three children, including her four-year-old daughter, J.B. One day J.B. informed Kandra that while Mandy was absent from the apartment, Petitioner touched her vagina and orally sodomized her. Kandra contacted law enforcement, and the Marion County Grand Jury indicted Petitioner on one count of Sodomy in the First Degree and one count of Sexual Abuse in the First Degree. Respondent's Exhibit 102. A jury unanimously convicted Petitioner of both charges, and the trial court imposed a 300-month prison sentence for the Sodomy conviction as well as a concurrent 75-month sentence for the Sexual Abuse conviction.[1]Respondent's Exhibit 106, p. 58.

         Petitioner took a direct appeal where he alleged that this 300-month sentence violated the Eighth Amendment. He conceded in his Appellant's Brief that the claim was unpreserved for appellate review because he did not object to the sentence at the trial level, but he asked the Oregon Court of Appeals to review the imposition of his 300-month sentence as "plain error."[2] The Oregon Court of Appeals affirmed the Circuit Court's decision without issuing a written opinion, and the Oregon Supreme Court denied review. State v. Galindo, 249 Or.App. 334, 378 P.3d 141, rev. denied, 352 Or. 107, 284 P.3d 485 (2012).

         Petitioner next filed for post-conviction relief ("PCR") in Malheur County. Petitioner's appointed PCR attorney amended the pro se Petition to omit various claims, including claims that trial counsel was ineffective for failing to: (1) present mitigation evidence; and (2) and challenge the imposition of the mandatory minimum sentence. Petitioner did not agree with counsel's decision to omit claims he initially raised pro se. This prompted him to file a "Church v. Gladden" motion seeking their inclusion in his Amended PCR Petition.[3]

         The PCR court held a hearing on Petitioner's Church claims and determined that the claims were either procedurally deficient or lacked merit. Respondent's Exhibit 119. Accordingly, the PCR court did not substitute counsel or compel Petitioner's appointed attorney to present Petitioner's desired claims. The PCR court did, however, find in Petitioner's favor as to the claims counsel raised in the Amended PCR Petition. Specifically, it found both trial and appellate counsel to be ineffective pertaining to the imposition of fees and fines. Respondent's Exhibit 120. The Oregon Court of Appeals affirmed that decision without opinion, and the Oregon Supreme Court denied review. Galindo v. Nooth, 279 Or.App. 336, 384 P.3d 544, rev. denied, 360 Or. 697, 388 P.3d 712 (2016) .

         Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on January 23, 2017 and this Court appointed counsel to represent him. With the assistance of appointed counsel, Petitioner filed his Amended Petition in which he raises the following grounds for relief:

1. Trial counsel failed to conduct effective pretrial preparation and investigation, including failing to investigate and present witnesses, obtain records, conduct mitigation investigation, and consult with or retain experts;
2. Trial counsel failed to move to suppress evidence, including statements Petitioner allegedly provided to police;
3. Trial counsel failed to object at trial to improper vouching testimony by witnesses and statements by the prosecutor during closing argument, including statements made by the detective, the nurse, and the prosecutor that vouched for J.B.'s credibility or the credibility of her disclosures;
4. Trial counsel failed to object at sentencing: (a) to the denial of Petitioner's right to allocution; and (b) to the imposition of a 25-year sentence that was constitutionally disproportionate in violation of the Eighth Amendment;
5. The trial court erred in admitting prejudicial vouching evidence during trial and closing arguments in violation of the Fourteenth Amendment;
6. The trial court erred in imposing a sentence in violation of the Eighth Amendment's prohibition on cruel and ...

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