Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Pickett v. Coursey

United States District Court, D. Oregon

September 26, 2019

RICHARD PICKETT, Petitioner,
v.
RICK COURSEY, Superintendent, Eastern Oregon Correctional Institution, Respondent.

          OPINION AND ORDER

          STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE

         Petitioner Richard Pickett (“Pickett”), an individual in custody at the Eastern Oregon Correctional Institution, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, this Court denies Pickett’s habeas petition and grants a certificate of appealability on ground one, subpart six, and ground two, subpart one.

         BACKGROUND

         On July 29, 2008, Micah Persons, a special agent at the Oregon Department of Justice (“DOJ”), executed a search warrant at Pickett’s home for the purpose of locating evidence pertaining to the depiction of children engaged in sexually explicit conduct. Resp’t Exs. (ECF No. 22), Ex. 104 at 63-64, 70; Pet’r’s Br. in Supp. (ECF No. 38), Ex. A; see Or. Rev. Stat. § 163.665(3) (defining sexually explicit conduct). Persons was assisted by Ben Hicks, a DOJ special agent, Jonathan Farrester, a Madras Police detective, and several other police officers. Resp’t Ex. 104 at 17-18, 64-65, 96. During the search, Persons spoke to Pickett outside of his home. Id. at 65-68. Pickett admitted to Persons that he had received images of child pornography on his computer and had discussed sexual fantasies online, including a sexual relationship with his stepdaughter “C, ” but denied ever touching C in a sexual manner. Id. at 66-70. Officers subsequently seized journals and letters written by C that revealed she had been sexually abused by Pickett. Id. at 19-20, 58, 70-72, 97-99. Persons and Farrester transported Pickett to the police station for further questioning. Id. at 72. Pickett admitted to sexually abusing C, stating that she had coerced him into having a sexual relationship when she was eight years old. Id. at 75-76, 79. Pickett detailed the sexual abuse at length, stating that it happened about three times a month over the course of nine years. Id. at 76-79. He also admitted taking pictures of C that were sexual in nature. Id. at 78. Hicks found nine images on Pickett’s computer depicting children engaged in sexually explicit conduct. Id. at 27-28, 31-33.

         Detective Farrester contacted C at her school and transported her to the Department of Human Services where she was interviewed by Christina Spitz. Id. at 85, 97-98. During the interview, C revealed that Pickett had put his penis in her mouth, touched her buttock, vagina, and breasts, and put his mouth on her vagina and breasts. Id. at 90-91. On August 26, 2008, physician assistant Jill Hartley interviewed C at the KIDS Center. Resp’t Ex. 105 at 69, 72-79. C again revealed details of the sexual abuse but refused to identify her abuser. Id. at 76-80. Hartley diagnosed child sexual abuse, but she did not find physical evidence of abuse. Id. at 82-83, 86.

         On December 17, 2008, a grand jury returned a sixty-count indictment charging Pickett with sodomizing and sexually abusing C, taking sexually explicit photographs of her, and downloading child pornography on his computer. Resp’t Ex. 102 at 1-29. Prior to trial, defense counsel moved to suppress C’s letters and journals, Pickett’s statements to police, and police interviews of C and her mother. Resp’t Ex. 103 at 16-17, Ex. 133. After a hearing, the trial court denied the motion. Resp’t Ex. 103 at 154-58, Ex. 135.

         Pickett’s two-day bench trial commenced on July 13, 2009. Resp’t Ex. 104 at 1, 5, Ex. 105 at 1. At the time of trial, C was eighteen years old. Resp’t Ex. 106 at 4. C testified consistently with her prior interviews and identified Pickett as her abuser. Id. at 12-22. She estimated that Pickett sexually abused her a minimum of three times per month from age eight to fourteen. Id. at 15-16, 20, 27-28. The prosecution presented the testimony of the law enforcement officials involved in the search of Pickett’s home and to whom Pickett admitted the abuse, and the mental health providers who interviewed C and diagnosed child sexual abuse. Resp’t Exs. 104-06. Pickett did not testify in his defense.

         The trial judge convicted Pickett of five counts of Sodomy in the First Degree, ten counts of Sexual Abuse in the First Degree, nine counts of Encouraging Child Sexual Abuse in the First Degree, nine counts of Encouraging Sexual Abuse in the Second Degree, and two counts of Using a Child in a Display of Sexually Explicit Conduct. Resp’t Ex 101 at 7-32. The judge imposed a sentence totaling 460 months. Id.

         Pickett filed a direct appeal arguing that the trial court committed plain error under State v. Southard, 347 Or. 127 (2009), when it admitted Hartley’s diagnosis of child sexual abuse, without corroborating physical evidence of abuse, in violation of Oregon Rule of Evidence 403 (“Rule 403”).[1] Resp’t Ex. 107 at 7, 10-12. The Oregon Court of Appeals affirmed Pickett’s conviction, holding that although the admission of the diagnosis was plain error under Southard, the testimony “did not likely affect the court’s verdict” because the uncontroverted evidence showed that Pickett sexually abused C. State v. Pickett, 246 Or.App. 62, 64-66 (2012). The Oregon Supreme Court denied review. State v. Pickett, 351 Or. 541 (2012).

         Pickett sought state post-conviction relief (“PCR”) alleging that trial and appellate counsel rendered ineffective assistance of counsel (“IAC”). Resp’t Ex. 113. The PCR court denied relief, holding that Pickett failed to demonstrate “any error on the part of trial or appellate counsel” and failed to show that if an error occurred “that any different outcome was even possible, yet alone likely.” Resp’t Ex. 154 at 2. Pickett appealed and filed a counseled and supplemental pro se brief. Resp’t Exs. 155, 156. The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Pickett v. Coursey, 271 Or.App. 862, rev. denied, 358 Or. 70 (2015).

         In the instant proceeding, Pickett raises multiple claims of ineffective assistance of trial and appellate counsel, and one claim of trial court error. Pet’r’s Habeas Pet. (ECF No. 2) at 4-6.

         In his supporting memoranda, Pickett addresses only two grounds. First, Pickett argues that trial counsel rendered ineffective assistance when she failed to object to Hartley’s diagnosis of child sexual abuse in the absence of corroborating physical evidence of abuse. Pet’r’s Br. in Supp. at 1, 13-26. Second, Pickett argues that appellate counsel provided ineffective assistance when she failed to challenge the trial court’s denial of Pickett’s motion to suppress. Id. at 1, 26-35.

         LEGAL STANDARDS

         Pursuant to 28 U.S.C. § 2254(d), a federal court shall not grant a petition for writ of habeas corpus filed by an individual in state custody, with respect to any claim that was adjudicated on the merits in state court, unless the adjudication resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented. Harrington v. Richter, 562 U.S. 86, 100 (2011). A state court unreasonably applies clearly established federal law under § 2254(d)(1), if its decision is so lacking in justification that there is an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement. Id.; Woods v. Sinclair, 764 F.3d 1109, 1121 (9th Cir. 2014).

         DISCUSSION

         Respondent urges the Court to deny habeas relief because Pickett procedurally defaulted all of his claims except ground one, subpart six, by failing fairly to present them on appeal from the denial of post-conviction relief. Resp’t Resp. (ECF No. 20) at 1-2, 8-13. Additionally, Respondent argues that (1) Pickett waived all grounds for relief that were not addressed in his supporting memoranda, (2) the state court’s denial of his claim that trial counsel was ineffective for failing to object to Hartley’s diagnosis is correct and entitled to deference, and (3) the PCR court’s denial of his claim that appellate counsel was ineffective for failing to assign error to the trial court’s denial of Pickett’s motion to suppress is correct and entitled to deference. Id. at 1-2, 13-19; Resp’t Reply (ECF No. 51) at 1. /// ///

         I. UNARGUED GROUNDS FOR RELIEF

         Pickett’s habeas petition includes twenty-one grounds of ineffective assistance of trial and appellate counsel and one trial court error. Pet’r’s Habeas Pet. at 4-6. This Court has reviewed Pickett’s unargued grounds and concludes that he has failed to sustain his burden of proving that habeas relief is warranted. Accordingly, the Court denies habeas relief on those grounds. See Mayes v. Premo, 766 F.3d 949, 957 (9th Cir. 2014) (holding that a petitioner bears the burden of proving his claims under § 2254(d)(1) and (2)); Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004) (same).

         II. THE MERITS

         A. Ineffective Assistance of Trial Counsel

         At the time of Pickett’s trial, a medical diagnosis of child sexual abuse was admissible despite the absence of corroborating physical evidence of abuse. Jackson v. Franke,364 Or. 312, 317 (2019) (citing State v. Trager,158 Or.App. 399 (1999)); Umberger v. Czerniak, 232 Or.App. 563, 564 (2009). Shortly after Pickett’s trial, however, the Oregon Supreme Court held in Southard that, in the absence of some physical evidence of abuse, a diagnosis of child sexual abuse ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.