United States District Court, D. Oregon
OPINION AND ORDER
F. BECKERMAN UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
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.
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.
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”). 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).
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
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.
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.
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.
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. /// ///
UNARGUED GROUNDS FOR RELIEF
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).
Ineffective Assistance of Trial Counsel
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 ...