United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL J. McSHANE, UNITED STATES DISTRICT JUDGE
filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, alleging trial court error and the
deprivation of his constitutional right to counsel.
Respondent argues that petitioner's claims are
procedurally defaulted and otherwise lack merit. Petitioner
did not file a brief in support of his petition or respond to
an Order to Show Cause why the petition should not be denied.
Based on this record, petitioner fails to establish
entitlement to federal habeas relief.
2010, petitioner was indicted on numerous counts of sexual
crimes, including Incest, Rape, Sodomy, Unlawful Sexual
Penetration, and Sexual Abuse, arising from the sexual abuse
of his daughter. Resp't Ex. 102 at 2-5. In September
2010, petitioner was indicated on one count of Tampering with
a Witness, based on petitioner's successful attempt to
convince his daughter to recant the allegations against him.
Resp't Ex. 102 at 1. In October 2010, petitioner
proceeded to a jury trial on all charges.
jury found petitioner guilty of two counts of Sexual Abuse in
the First Degree and the single count of Tampering with a
Witness. Resp't Ex. 104 at 482. The jury was unable to
reach a verdict on the remaining counts, and the trial court
declared a mistrial. Resp't Ex. 104 at 483-84. The trial
court imposed concurrent 75-month sentences on each of
petitioner's sexual abuse convictions and a consecutive,
24-month sentence on petitioner's tampering conviction,
for a total of 99 months of imprisonment. Resp't Ex. 104
February 2011, petitioner pled guilty to all remaining
charges against him. Resp't Ex. 103. The parties agreed
that petitioner would be sentenced to a total of 120 months,
with the sentenced to be served concurrent with the 99-month
sentence previously imposed. The trial court accepted
petitioner's guilty pleas and sentenced petitioner in
accordance with the plea petition. Resp't Ex. 104 at
subsequently filed a petition for post-conviction relief
(PCR) and alleged several claims against trial counsel and
the trial court. Resp't Exs. 111. After an evidentiary,
the PCR court denied relief on all claims. Resp't Exs.
125-26. Petitioner appealed the denial of his claims alleging
ineffective of counsel based on the failures to seek
severance of the witness tampering charge and to object to
the form of the hearsay notice issued by the prosecutor prior
to the trial. Resp't Ex. 127. The Oregon Court of Appeals
affirmed without opinion, and the Oregon Supreme Court denied
review. Resp't Exs. 129-31.
now seeks federal habeas relief.
federal habeas petition, petitioner alleges six grounds for
relief. Pet. at 7-14 (ECF No. 2). Although petitioner raised
all grounds in his PCR petition, he did not raise Grounds
One, Four, Five, or Six before the Oregon appellate courts
during his PCR appeal. Resp't Exs. 111, 127, 129. As a
result, these grounds are unexhausted and barred from federal
review. See 28 U.S.C. § 2254(b)(1)(A);
Duncan v. Henry, 513 U.S. 364, 365 (1995) (per
curiam) (before seeking federal habeas relief, a petitioner
must “fairly present” a federal claim to the
State's highest court “in order to give the State
the opportunity to pass upon and to correct alleged
violations of its prisoners' federal
Grounds Two, petitioner alleges that trial counsel was
ineffective by failing to object to a hearsay notice issued
by the prosecutor prior to trial, because the notice failed
to describe the substance of the proposed hearsay statements
with particularity. In Ground Three, petitioner alleges that
counsel was ineffective by failing to move for severance of
the witness tampering charge from the sexual abuse charges.
Respondent maintains that the PCR court decision rejecting
these claims is entitled to deference. I agree.
federal court may not grant a habeas petition regarding any
claim “adjudicated on the merits” in state court,
unless the state court ruling “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1). A state court
decision is “contrary to” federal law if it fails
to apply the correct Supreme Court authority, or if it
reaches a different result in a case with facts
“materially indistinguishable” from Supreme Court
precedent. Brown v. Payton, 544 U.S. 133, 141
(2005). A state court decision is an “unreasonable
application” of clearly established federal law if the
state court identifies the correct legal principle but
applies it in an “objectively unreasonable
manner.” Woodford v. Visciotti, 537 U.S. 19,
24-25 (2002) (per curiam).
well-established Supreme Court precedent, a habeas petitioner
alleging ineffective assistance of counsel must show that 1)
“counsel's performance was deficient, ” and
2) counsel's “deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S.
668, 687 (1984). To establish deficient performance,
petitioner “must show that counsel's
representations fell below an objective standard of
reasonableness.” Id. at 688. To demonstrate
prejudice, petitioner “must show that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. Unless
petitioner “makes both showings, it cannot be said that
the conviction...resulted from a breakdown in the adversary
process that renders the result unreliable.”
Id. at 687.
court rejected petitioner's claim that trial counsel was
deficient by failing to object to the notice of hearsay based
on its lack of particular information. Resp't Ex. 126 at
2. The PCR court explained that the “notice advised
Petitioner of who the witnesses [to the statements] were and
where statements could be found in the discovery material.
His trial attorney felt that notice was adequate. There is no
credible evidence that ...