Opinion
Case No. 2:14-cv-01852-SU
04-08-2019
MATTHEW REASON, Petitioner, v. JERI TAYLOR, Respondent.
Kristina Hellman Assistant Federal Public Defender 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 Attorney for Petitioner Ellen F. Rosenblum, Attorney General Kristen E. Boyd, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent
FINDINGS AND RECOMMENDATION Kristina Hellman
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner Ellen F. Rosenblum, Attorney General
Kristen E. Boyd, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent SULLIVAN, Magistrate Judge.
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his state-court convictions dated December 8, 2003. For the reasons that follow, the Petition for Writ of Habeas Corpus (#1) should be denied.
BACKGROUND
Petitioner repeatedly and severely sexually abused his two young step-children, something the trial judge believed to be "about the most extreme case of sexual abuse that I've ever seen." Sentencing Transcript, p. 15. Following Petitioner's trial, a jury convicted him of two counts of Sexual Penetration with a Foreign Object, two counts of Rape in the First Degree, four counts of Sexual Abuse in the First Degree, two counts of Sodomy in the First Degree, four counts of Using a Child in a Display of Sexually Explicit Conduct, and four counts of Coercion. Respondent's Exhibit 101. The trial court imposed sentences totaling 1180 months in prison.
Petitioner took a direct appeal, but the Oregon Court of Appeals affirmed the trial court's decision without opinion, and the Oregon Supreme Court denied review. State v. Reason, 299 Or. App. 170, 146 P.3d 1170 (2006), rev. denied, 342 Or. 344, 153 P.3d 123 (2007).
Petitioner next filed for post-conviction relief ("PCR") in Umatilla County where the PCR court denied relief. Respondent's Exhibit 125. As with Petitioner's direct appeal, the Oregon Court of Appeals affirmed that decision without opinion, and the Oregon Supreme Court denied review. Respondent's Exhibits 129 & 130.
Petitioner filed this 28 U.S.C. § 2254 habeas corpus case in 2014 raising seven grounds of ineffective assistance of trial counsel. Respondent asks the Court to deny relief on the Petition because: (1) Petitioner failed to fairly present Grounds Two, Three, Six, and Seven to Oregon's state courts, leaving them procedurally defaulted; and (2) the state courts denied Grounds One, Four, and Five in decisions that were neither contrary to, nor unreasonable applications of, clearly established federal law.
DISCUSSION
I. Standard of Review
An application for a writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court's findings of fact are presumed correct, and Petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
A state court decision is "contrary to . . . clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the "unreasonable application" clause, a federal habeas court may grant relief "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id at 413. The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. Id at 410. Twenty-eight U.S.C. § 2254(d) "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents. It goes no farther." Harrington v. Richter, 562 U.S. 86, 102 (2011).
II. Unargued Claims
As previously noted, Petitioner raises seven grounds for relief in his Petition. In his supporting memorandum, however, Petitioner chooses to brief three claims of ineffective assistance of trial counsel: (1) counsel failed to obtain and call a child sexual abuse expert (Ground One); (2) counsel failed to timely object and move for a mistrial after Detective Sweet improperly vouched for the credibility of the two child victims, KS and CS (Ground Four); and (3) counsel failed to object, move to strike, and move for a mistrial when Physician's Assistant Ryan improperly vouched for the credibility of KS (Ground Five).
Petitioner does not argue the merits of his remaining claims, nor does he address Respondent's arguments as to why relief on these claims should be denied. As such, Petitioner has not carried his burden of proof with respect to these unargued claims. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (Petitioner bears the burden of proving his claims). Even if Petitioner had briefed the merits of these claims, the court has examined them based upon the existing record and determined that they do not entitle him to relief.
III. Ground One: Failure to Obtain Expert
Petitioner first asserts that trial counsel failed to obtain an expert witness to assess issues of suggestibility stemming from the totality of the circumstances surrounding the victims' disclosures of abuse. The Court uses the general two-part test established by the Supreme Court to determine whether Petitioner received ineffective assistance of counsel. Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). First, Petitioner must show that his counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 686-87 (1984). Due to the difficulties in evaluating counsel's performance, courts must indulge a strong presumption that the conduct falls within the "wide range of reasonable professional assistance." Id at 689.
Second, Petitioner must show that his counsel's performance prejudiced the defense. The appropriate test for prejudice is whether Petitioner can 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. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the trial. Id at 696. When Strickland's general standard is combined with the standard of review governing 28 U.S.C. § 2254 habeas corpus cases, the result is a "doubly deferential judicial review." Mirzayance, 556 U.S. at 122.
During Petitioner's PCR proceedings, trial counsel submitted a supplemental affidavit that specifically addressed Petitioner's claim that she did not consult with an expert on the issue of child suggestibility. She provided as follows:
2. We involved Dr. Eric Johnson to evaluate petitioner's case for issues of suggestibility. Dr. Johnson went over the materials regarding the children's disclosures. I took notes during my telephone conference with Dr. Johnson on October 16, 2003. Of note, he told me: "Ouch, bad facts." Dr. Johnson stated that he did not see problems with suggestibility. He said that as the record[] stands, he did not see much to impeach. Dr. Johnson noted a remarkable level of detail and unusual types of description, including contextual imbedding. (As I understand it, contextual embedding is the description of background - which may include surrounding details - spontaneously provided by the person describing an event.) Dr. Johnson remarked on a victim speaking about spitting on the finger and making attempts to describe ejaculate. He thought that the record of [KS's] statements made her sound as if she would be a quite strong witness for the state. Dr. Johnson noted that when you add in background factors, the claims look pretty compelling. Dr. Johnson concluded by saying there was no favorable impression he could give. * * *
3. Given this report from Dr. Johnson, I concluded that it would be best to attack PA Ryan's diagnosis of sexual abuse through cross-examination, rather than to present Dr.
Johnson, who might be compelled on cross-examination to agree with most of the conclusions reached by PA Joeth Ryan. Based on my years of experience as a trial attorney, presenting a defense expert who is compelled on cross-examination to agree with many of the conclusions of the prosecution's expert is highly damaging to a defense case. In my professional opinion, the risks of putting Dr. Johnson on the stand significantly outweighed any benefit that would accrue from having him testify.Respondent's Exhibit 120.
The PCR court determined that counsel did, in fact, consult with a well-qualified expert who was unable to offer helpful testimony. The PCR court therefore concluded that trial counsel's strategy was a reasonable one. Respondent's Exhibit 124, p. 70. Petitioner argues that although trial counsel consulted with Dr. Johnson, it was not reasonable to only consult with one expert because it appears Dr. Johnson focused on the victims' statements to the exclusion of other, external factors that might have affected the reliability of the victims' accusations.
Counsel retained a qualified expert to assess Petitioner's case, and there is no indication that he limited Dr. Johnson's review solely to the victims' statements. It would be highly speculative to conclude that Dr. Johnson simply did not consider external factors that might have gone to the issues of reliability and suggestibility. The record shows that Dr. Johnson considered the facts of the case (including background factors), found the victims' statements to be reliable, and that counsel made an informed and reasonable decision not to call Dr. Johnson because he could not offer helpful testimony. The Constitution requires no more, and the PCR court's decision to deny relief is neither contrary to, nor an unreasonable application of, clearly established federal law.
IV. Ground Four: Detective Sweet's Testimony
Petitioner next claims that counsel was ineffective when she failed to object to, and move for a mistrial based upon, Detective Sweet's trial testimony. He argues that her testimony contained impermissible vouching prohibited by Oregon law where one witness may not comment on the truthfulness of another witness. See State v. Middleton, 294 Or. 427, 438 (1983).
During cross-examination, trial counsel posed to Detective Sweet that a child led down a path of suggestibility "may come to believe what they're led to believe, is that correct?" Trial Transcript, p. 172. In response, Detective Sweet began to explain how she could tell the difference between a child's false report and a truthful one. Counsel objected, "I'm going to object to this line Your Honor, it's been held inadmissible in prior cases, so any evidence of this, so." Trial Transcript, p. 172. It appears the trial judge cut off counsel's objection, overruled it by stating, "You asked the question, Ms. Nash[,]" and invited Detective Sweet to finish her answer if she wished to do so. Id. Detective Sweet then continued:
So I'm looking for—I'm looking for parallel statements the children may come and say exactly the same thing that their sibling said. If you know there's something going on here besides they're pulling information out [of] their memory banks, you look for—in asking open ended questions of these children what ends up happening is that it requires
that they pull memories out of their memory bank. It's memories of things they've seen, heard, experience. So you look—it has to—it has to come, you know it will come in a way that feels believable. The words will be believable and if they're hard line parallel to what the other child said, then you need to, you know, you want to look at that, you want to be a little concerned about that. I didn't see that [] with either one of those children. The questions that I asked them and the answers that they gave seemed to be legitimate, they seemed to respond quickly, it wasn't like they were making it up as they want. When you're talking to these kids you're also asking them specific details about the events that they've experienced, that perhaps they wouldn't be prepared to answer if they didn't have already the information here. They could answer questions about the experience, they could answer those detailed questions, whereas if it's just information someone gave them, all they can really answer to is what someone gave them.Id at 172-73.
Petitioner contends that an objection and motion for mistrial were warranted because Detective Sweet's testimony amounted to direct vouching for the credibility of the victims. As demonstrated above, counsel attempted to prevent Detective Sweet from testifying about credibility, lodged an objection, and specifically took the position that such testimony was not admissible. The trial court disagreed, overruled the objection, and invited Sweet to continue her answer. Even then, counsel attempted to strike Sweet's full answer on an alternate basis, asking that "this lengthy explanation be stricken as non-responsive to my question." Id at 173. The trial court overruled that objection as well.
Respondent contends that Petitioner only fairly presented the mistrial issue to Oregon's state courts, not the failure to otherwise object. The Court need not resolve this issue because it is apparent that Petitioner is not entitled to relief on the claims he argues. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state.").
Petitioner faults counsel for basing an objection on Sweet's non-responsiveness in lieu of arguing that it constituted impermissible vouching. However, counsel did, in fact, attempt to keep Detective Sweet's statements out on the basis that they were inadmissible vouching, but she was unsuccessful. Indeed, Petitioner recognized the propriety of counsel's objections in his PCR Memorandum when he conceded not only that counsel's examination "not invite the error occasioned by Sweet's testimony[,]" but also that "counsel's objections, although less explicit than they might otherwise have been, were appropriate although her motion or mistrial was not." Respondent's Exhibit 109, p. 36 n. 2 (bold added).
It was also reasonable trial strategy not to immediately raise the same objection the trial judge had just overruled. But even assuming counsel had not objected at any point to the testimony at issue, the PCR court specifically concluded that Sweet's testimony did not constitute impermissible vouching under Oregon law:
Detective Sweet's testimony was not vouching. It was a description of how the victim answered her various questions and what the detective looked for. This was not a straight credibility case, as some of the others that are cited in case law, since there was physical evidence.Respondent's Exhibit 124, p. 54.
Petitioner attempts to cast the PCR court's decision on the vouching issue as an unreasonable factual determination, but whether statements constitute impermissible vouching in Oregon is a question of state law. See, e.g., Easter v. Mills, 239 Or. App. 209, 243 P.3d 1212 (2010). The PCR court specifically concluded that Sweet's testimony did not constitute impermissible vouching, and the Oregon Court of Appeals affirmed that decision. This Court is bound by those interpretations of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[W]e reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."); Bains v. Cambra, 204 F.3d 964, 972 (9th Cir.) ("a federal court is bound by the state court's interpretations of state law."), cert. denied, 531 U.S. 1037 (2000), citing Wainwright v. Goode, 464 U.S. 78, 84 (1983); see also Mendez v. Small, 298 F.3d 1154, 1158 (9th Cir. 2002) ("A state court has the last word on the interpretation of state law."), citing McSherry v. Block, 880 F.2d 1049, 1052 (9th Cir. 1989), cert. denied, 499 U.S. 943 (1991); Peltier v. Wright, 15 F.3d 860, 862 (9th Cir. 1994) ("state courts are the ultimate expositors of state law."). Where the statements at issue did not constitute improper vouching under Oregon law, counsel was not obligated to object or move for a mistrial, and the PCR court did not unreasonably apply clearly established federal law. Sophanthavong v. Palmateer, 378 F.3d 859, 870 (9th Cir. 2004) ("Strickland does not mandate prescience, only objectively reasonable advice under prevailing professional norms.").
The PCR court's factual finding that there was physical evidence of abuse in this case is not unreasonable where KS's hymen was "concerning for possible sexual abuse," KS had discovered blood in her underwear, and she and her brother both suffered from involuntary urination and defecation approximately six months after they had moved in with Petitioner. Trial Transcript, pp. 143, 259, 264. As PA Joeth testified, problems with involuntary urination and defecation in an eight-year-old child signified significant trauma, and that while there can be a number of reasons for it, "[c]hild sexual abuse is one [of] those things that can cause it." Id at 270.
V. Ground Five: Physician's Assistant Ryan's Testimony
Finally, Petitioner asserts that trial counsel's performance fell below an objective standard of reasonableness when she failed to object, move to strike, and move for a mistrial in response to impermissible vouching testimony offered by Physician's Assistant Ryan. He contends that Ryan testified to a diagnosis of sexual abuse in the absence of physical evidence to support such diagnosis such that her testimony amounted to improper vouching under Oregon law.
During the State's case, the following exchange ensued between Ryan and the prosecuting attorney on direct examination:
Q. Now, after completing the physical exam . . . you made an assessment from your discussions with the child, all the material you reviewed and the examination, is that correct?Trial Transcript, p. 262.
A. Yes.
Q. What was your assessment regarding KS at this time?
A. Based on the information that she provided and the information that we had prior to her examination, as well as the medical findings, and the behaviors that we heard about, and the history that her mom gave, we diagnosed that it was our opinion that this child had been sexually abused by Matt Reason.
In State v. Southard, 347 Or. 127, 218 P.3d 104 (2009), the Oregon Supreme Court concluded that a medical diagnosis of sexual abuse in the absence of corresponding physical evidence of sexual abuse is impermissible. However, the Oregon Supreme Court did not decide Southard until 2009, almost six years after Petitioner's trial. Against this legal backdrop, the PCR court ultimately denied Petitioner's ineffective assistance of counsel claim as follows:
The medical findings here were that the exam was concerning for Sex Abuse. This isn't a diagnosis of Sex Abuse. It is a finding that is concerning for Sex Abuse, but not that it was sufficient to be diagnostic. The case law seems to distinguish between those things. This case is pre-Southard. There was physical evidence of abuse (inaudible, background noise).Respondent's Exhibit 124, p. 70.
It is evident from the foregoing that the PCR court determined that an objection was not warranted for three reasons. First, it concluded that an exam that is concerning for sex abuse, as was the case here, is not vouching in Oregon. The PCR court noted that state law views the two differently, the latter not constituting unlawful vouching. As discussed above, it is not the province of a federal habeas court to reinterpret state-court interpretations of state law.
Next, the PCR court concluded that Petitioner's case was pre-Southard. Prior to Southard, the Oregon Court of Appeals had repeatedly rejected the argument that ultimately prevailed in that case. State v. Sanchez-Cruz, 177 Or. App. 332, 33 P.3d 1037 (2001), rev. denied, 333 Or. 463, 42 P.3d 1245 (2002); State v. Trager, 158 Or. App. 399, 974 P.2d 750, rev. denied, 329 Or. 358, 994 P.2d 125 (1999); State v. Wilson, 121 Or. App. 460, 855 P.2d 657, rev. denied, 318 Or. 61, 865 P.2d 1267 (1993). Although Petitioner disagrees with the proposition that Southard amounted to a change in Oregon law, the Oregon Court of Appeals directly addressed that issue and concluded that the law did, in fact, change with Southard. Umberger v. Czerniak, 232 Or. App. 563, 565 (2009). This was also the obvious conclusion of the PCR court and, by affirmance, the Oregon Court of Appeals as to the specific facts underlying this case. Although Petitioner disagrees with this interpretation of state law, it is not permissible for a federal habeas court to engage in such an analysis.
Although Petitioner asks the Court to engage in such an analysis as was performed in Wells v. Howton, No. 07-1117-TC, 2011 WL 5999356 (D. Or. Aug. 22, 2011), adopted, 2011 WL 5999359 (D. Or. Nov. 29, 2011), the Court should decline to do so given applicable Supreme Court precedent on the issue of state-law interpretations as well as the substantial weight of authority in this District to the contrary. See, e.g., Hatchett v. Hill, No. 06-1023-TC, 2011 WL 7443755 (D. Or. Dec. 21, 2011), adopted, 2012 WL 673767 (D. Or. Feb. 29, 2012) and Balogh v. Kilmer, No. 3:10-cv-1283-AC, 2012 WL 7830039 (D. Or. Nov. 29, 2012), adopted, 2013 WL 1352400 (D. Or. Apr. 3, 2013) and Gresser v. Franke, No. 2:12-cv-02073-HZ, 2014 WL 1155229 (D. Or. Mar. 20, 2014) and Bowen v. Nooth, No. 2:13-CV-00748-KI, 2015 WL 1492728, *6 (D. Or. April 1, 2015), and Taylor v. Franke, No. 2:15-CV-01608-MA, 2017 WL 4227683, *5 (D. Or. Sept. 22, 2017). --------
Finally, the PCR court concluded that there was physical evidence of abuse, implying that the vouching concern underlying Southard was not present in this case. As discussed in FN2 above, that was a reasonable factual finding given the totality record. It is therefore difficult for Petitioner to argue that Ryan's testimony amounted to vouching such that trial counsel was obliged to object, move to strike, and seek a mistrial. Even if there had been no physical evidence of abuse in this case, given that the Oregon Court of Appeals had repeatedly rejected such claims prior to Petitioner's trial, counsel was under no constitutional obligation to make such an argument, and Petitioner could not demonstrate that such objections would have been successful so as to satisfy Strickland's prejudice component.
For all of these reasons, Petitioner's argued claims of ineffective assistance of counsel lack merit. At a minimum, the PCR trial court's decision to deny relief on these claims was not so unreasonable that no fairminded jurist could agree with it. Richter, 562 U.S. at 102.
RECOMMENDATION
For the reasons identified above, the Petition for Writ of Habeas Corpus (#1) should be denied and a judgment should be entered dismissing this case with prejudice. The Court should decline to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2).
SCHEDULING ORDER
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 14 days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 8th day of April, 2019.
/s/ Patricia Sullivan
Patricia Sullivan
United States Magistrate Judge