Ros v. Laney

Full title: RUSSELL ROS, Petitioner, v. GARRETT LANEY, Superintendent, Two Rivers…

Court: United States District Court, District of Oregon

Date published: Jul 1, 2022

2:17-cv-00616-SB (D. Or. Jul. 1, 2022)

Opinion

2:17-cv-00616-SB

07-01-2022

RUSSELL ROS, Petitioner, v. GARRETT LANEY, Superintendent, Two Rivers Correctional Institution, Respondent.

HON. STACIE F. BECKERMAN, United States Magistrate Judge.

FINDINGS AND RECOMMENDATION

HON. STACIE F. BECKERMAN, United States Magistrate Judge.

Petitioner Russell Ros (“Petitioner”) filed this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the following reasons, the district judge should deny the Third Amended Petition for Writ of Habeas Corpus (ECF No. 74) and decline to issue a certificate of appealability.

BACKGROUND

I. PROCEDURAL HISTORY

At approximately 10:00 p.m. on March 8, 2008, Petitioner walked into the Salem Hospital emergency room carrying his girlfriend's two-year old daughter, “N.L.”, who was “nonresponsive” on arrival. Medical personnel subsequently discovered that N.L. had several injuries consistent with physical and sexual abuse, including blunt force trauma to her abdomen and a grievous injury to her anus. Despite extensive efforts to resuscitate her, N.L. died.

The Salem Police Department began an investigation and uncovered evidence that suggested Petitioner was responsible for N.L.'s injuries. Police investigators further discovered that N.L.'s brother, three-year old “J.L.”, had several injuries in various stages of healing and that Petitioner likely was responsible for those as well.

In July 2008, a Marion County grand jury returned an indictment charging Petitioner with numerous crimes against N.L. and J.L. (together, the “children”). (Resp't Exs. (ECF No. 23), Ex. 102 at 1-2.) The indictment later was amended and charged Petitioner with one count each of Murder by Abuse, Felony Murder, Unlawful Sexual Penetration in the First Degree, and Sexual Abuse in the First Degree with respect to N.L.; and two counts each of Criminal Mistreatment in the First Degree and Assault in the Fourth Degree with respect to J.L. (Id. at 3-4.) The case was tried to a jury, which returned guilty verdicts on all counts.¹ In a separate proceeding, the trial judge sentenced Petitioner to, among other things, life imprisonment, with the possibility of parole after serving a mandatory minimum of 538 months.² (Resp't Ex. 101 at 5.)

1 The jury's verdicts on Counts 3 and 4-sexual penetration and sexual abuse with respect to N.L.-were not unanimous.

2 After Petitioner's trial, the Oregon Court of Appeals held that the maximum sentence that may be imposed on a murder conviction is life, with the possibility of parole after 300 months of incarceration. See State v. Ambill, 282 Or.App. 821 (2016), rev. denied, 361 Or. 524 (2017). In 2019, the trial court entered an amended judgment imposing a life sentence with the possibility of parole after 300 months on Counts 1 and 2. (Pet'r's Exs. in Supp. of Second Am. Pet. (ECF No. 69), Ex. 3.)

Petitioner appealed, raising as error the trial court's denial of three pretrial defense motions. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. Ros, 246 Or.App. 577 (2011), rev. denied, 351 Or. 586 (2012). Petitioner then sought postconviction relief, raising myriad claims that challenged nearly every aspect of his trial. (Resp't Ex. 108.) After an evidentiary hearing, the postconviction court denied relief. (Resp't Exs. 116 at 10-22; 117.) The Oregon Court of Appeals affirmed the postconviction court's judgment without opinion and the Oregon Supreme Court denied review. Ros v. Myrick, 282 Or.App. 72 (2016), rev. denied, 360 Or. 851 (2017).

On April 17, 2017, Petitioner filed a pro se Petition for Writ of Habeas Corpus in this Court. (ECF No. 2.) Appointed counsel filed an Amended Petition but later withdrew. (ECF No. 41.) Petitioner's second appointed counsel filed a Second Amended Petition, raising eleven claims for relief, with numerous subclaims, based on trial court error, ineffective assistance of trial and appellate counsel, prosecutorial misconduct, actual innocence, and cumulative error. (ECF No. 59.) Petitioner subsequently filed a Third Amended Petition (the “Petition”) to add three additional claims for relief based on Petitioner's conviction by a non-unanimous jury.³

3 Petitioner filed his Third Amended Petition in response to the Supreme Court's decision in Ramos v. Louisiana, 140 S.Ct. 1390 (2020), which held that the Sixth Amendment right to jury trial, as incorporated against the States by the Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a serious offense. Ramos, 140 S.Ct. at 1397. However, on May 17, 2021, the Supreme Court decided Edwards v. Vannoy, 141 S.Ct. 1547 (2021), holding that the jury unanimity rule announced in Ramos does not apply retroactively on federal collateral review. Edwards, 141 S.Ct. at 1559. Petitioner appears to concede in his Reply that Edwards forecloses relief on his non-unanimous jury claims. (Pet'r's Resp. to Resp't Reply (ECF No. 86), at 1-2.) The Court thus notes without further discussion that habeas relief is not warranted with respect to Grounds Twelve, Thirteen, and Fourteen.

Petitioner addresses in his supporting brief only a fraction of the claims raised in the Petition. (Pet'r's Br. in Supp. (ECF No. 68), at 2-4.⁴) Respondent nevertheless urges the Court to deny the Petition in its entirety, arguing that the state court decisions denying relief are entitled to deference; that to the extent Petitioner failed fairly to present his remaining claims to the Oregon courts they are procedurally defaulted; and that Petitioner cannot establish cause and prejudice to overcome the default. In the alternative, Respondent argues that Petitioner has failed to sustain his burden of demonstrating entitlement to habeas relief on all unaddressed claims. (Resp. to Third Am. Pet. (ECF No. 92), at 10.) II. THE TRIAL

4 The Court cites to the ECF-assigned pagination when citing to the parties' briefing in this case.

A. The State's Case

The State asserted at trial that Petitioner physically and sexually abused N.L., causing serious injury and death, and physically abused J.L., causing serious injury. The State developed its case around a variety of investigative and medical evidence, including a detailed history of the events preceding N.L.'s death, Petitioner's statements to the police, forensic evidence, and expert medical testimony.

1. The Events Preceding N.L.'s Death i. Despite A History of Abuse, the Children Often are Left in Petitioner's Exclusive Care

Amanda Burciaga⁵ (“Burciaga”) met Petitioner in the summer of 2006 and began a romantic relationship with him soon thereafter. (Tr. at 387.⁶) Their relationship progressed quickly, and they planned to move in together, get married, and become a family with Burciaga's children, J.L. and N.L., who were a year-and-a-half and six months-old.⁷ (Id. at 395-96.) Burciaga testified that she did not notice anything unusual or inappropriate about the way Petitioner interacted with the children at that time, and that he appeared to enjoy spending time with them. (Id. at 394-96.)

5 Burciaga was married shortly before Petitioner's trial. (Tr. (ECF Nos. 24, 25), at 386.) She often is referred to in the record by her maiden name, Amanda Ingram.

6 The transcripts of the trial court proceedings are not organized chronologically. The Court thus cites the sequential pagination printed on the bottom right corner of each page to avoid confusion.

7 Burciaga gave birth to J.L. and N.L. when she was fifteen and sixteen, respectively. (Tr. at 387.) The children's biological father was not involved in their care and did not provide financial support. (Id. at 388.)

In March 2007, Burciaga asked Petitioner if he would babysit the children for approximately six hours while she was at work. (Id. at 399.) Petitioner agreed. (Id.) The next morning, Burciaga noticed a handprint-shaped bruise on the side of J.L.'s face. (Id. at 401, 412.) When Burciaga asked Petitioner about the bruise, he claimed to have “no idea what [she] was talking about” and suggested that J.L. could have fallen while he was playing. (Id. at 402.) Later that day, the children's paternal grandmother reported the bruise to the police. (Id. at 404.) Petitioner eventually admitted to police investigators that he had hit J.L. and later was convicted on charges stemming from the assault. (Id. at 411-12, 416.) As part of his sentence, Petitioner was prohibited from contacting J.L. (Id. at 416.) Although Burciaga initially ended their relationship, they reconciled a few months later, in May 2007. (Id.) Burciaga testified that she knew Petitioner had been ordered to have no contact with J.L. but renewed the relationship after Petitioner convinced her “that he really was a different man” who could be trusted with the children. (Id.)

In July 2007, Burciaga, Petitioner, and the children began sharing an apartment in Tualatin, Oregon. (Tr. at 420.) They were evicted a month later and moved in with Petitioner's parents, who lived in a house on Nando Street in Salem, Oregon. (Id.) Burciaga supported the family by dancing in Portland strip clubs and traveling out of state to work as a “party promoter” and as an escort. (Id. at 419, 422-25.) Burciaga also enrolled at a local community college. (Id. at 426.)

By January 2008, Burciaga was attending school during the week and traveling to Las Vegas to work on the weekends. (Id.) Petitioner, who was unemployed, was responsible for watching the children while Burciaga was away. (Id. at 427.) Burciaga testified that this arrangement put stress on their relationship and caused their sex life to suffer, which bothered Petitioner. (Id.) Burciaga nevertheless continued leaving the children in Petitioner's care after the family moved into their own apartment on Beverly Street in early February 2008. (Id. at 430.)

ii. J.L. Suffers Serious Injuries While in Petitioner's Care

On February 8, 2008, Burciaga was bathing J.L. when she discovered that he had two strips of missing hair on each side of his head and red spots on his chest that later aged into bruises. (Id. at 431.) Burciaga testified that Petitioner “acted surprised like he didn't know what happened” and suggested that J.L. might be sick. (Id. at 434.) Burciaga photographed the injuries and took J.L. to the hospital. (Id. at 435.) After tests revealed that his “liver levels” were high, medical personnel asked Burciaga and Petitioner if it was possible that anyone had been hitting J.L. (Id. at 436.) Burciaga and Petitioner both denied it and the hospital “didn't push it any further after that[,]” ultimately releasing J.L. to Burciaga's care. (Id.) The hospital sent J.L. home without reporting his injuries to child welfare officials or police. (Id.)

Burciaga left for Las Vegas the next day, and Petitioner cared for the children while she was away. (Id. at 437.) Soon after Burciaga returned, on February 13, 2008, she undressed J.L. for a bath and discovered that he had several new injuries. (Id. at 438, 444.) Specifically, she observed significant swelling to J.L.'s left arm and shoulder and bruising on his back and on his ribcage underneath his left arm. (Id. at 438-39, 442.) Burciaga testified that Petitioner “pretended to be shocked” about the injuries but later suggested that J.L. had hurt himself when he fell off a play structure at the park the day before. (Id. at 445.) Burciaga reluctantly believed Petitioner after he insisted that a friend, Anthony Kern (“Kern”), had been at the park and would confirm his story.⁸ (Id. at 446.) Petitioner persuaded Burciaga that J.L. did not need to go to the hospital by demonstrating that J.L. did not cry or otherwise exhibit signs of pain when Petitioner pushed on his bruises. (Id. at 447-48.) J.L.'s injuries thus remained untreated until several weeks later, after N.L.'s death.

8 Kern testified at trial that although he was friends with Petitioner, he had never gone to the park with Petitioner and the children. (Tr. at 380.)

iii. N.L. Suffers Fatal Injuries While in Petitioner's Care

Burciaga left for Las Vegas on the evening of March 6, 2008, again leaving the children in Petitioner's care. (Id. at 452, 455.) Before she left, Burciaga gave Petitioner several phone numbers where she could be reached, including the number of the individual with whom she was staying. (Id. at 455-56.) Petitioner also knew how to contact Burciaga on social media in the event of an emergency. (Id. at 456.)

Two days later, on March 8, 2008, Petitioner called a longtime friend, Don Luong (“Luong”), and asked for help, explaining that “[t]he baby wasn't breathing.” (Tr. at 475-76.) Luong arrived at Petitioner's apartment a short time later and found N.L. pale and motionless on the floor with Petitioner “watching over her” from a “couple of feet” away. (Id. at 478-80, 482.) Petitioner told Luong that N.L. had choked on a piece of food and that he had not performed CPR or called 9-1-1. (Id. at 485, 487-88.) Luong attempted to perform CPR and convinced Petitioner to take N.L. to the hospital after realizing that there was “nothing [he] could do for her.” (Id. at 492-93.) Luong estimated that he was in the apartment for approximately five minutes before Petitioner drove them to the hospital,⁹ which took eight to ten minutes. (Id. at 493-95.) When they arrived, Petitioner took N.L. inside and Luong waited in the car with J.L. (Id. at 496.) Luong testified that he became “nervous” and drove away when police arrived, and that he subsequently left J.L. at a friend's house. (Id. at 499-500.)

9 Luong insisted that he was in Petitioner's apartment “a little less than five minutes.” (Tr. at 493.) However, Petitioner's neighbor, Ann Marie Lacy (“Lacy”), testified that she saw Luong pull into a neighbor's assigned parking space at approximately 9:30 p.m. (Tr. at 524.) Lacy testified that the neighbor usually returned home from work at 10 p.m. and did so that evening. (Id.) The neighbor honked his horn until Luong came downstairs from Petitioner's apartment and they chatted for a few minutes before Luong moved his car to a parking spot in the back of the complex. (Id. at 525-27.) Lacy then observed Petitioner carrying the children to a different car and securing them into child restraint seats. (Id. at 527.) Lacy estimated that Luong was in Petitioner's apartment for at least fifteen to thirty minutes before they left. (Id. at 533.)

Petitioner carried N.L. into the emergency room (“ER”) at approximately 10:00 p.m. (Tr. at 145, 147.) She was “nonresponsive” on arrival. (Id. at 147.) Medical staff immediately began trying to stabilize her by administering medication and fluids and using a bag-valve mask and a ventilator to revive her breathing. (Id. at 147-48.) To faster and more effectively treat N.L., the attending ER physician, Dr. Robert Kelly (“Dr. Kelly”), tried to gather information about her injuries from Petitioner, who “seemed indifferent, nonchalant . . . [and] even smiled at one point.” (Id. at 190.) Petitioner told Dr. Kelly that he had gone to use the restroom while N.L. was eating and that she was having trouble breathing when he returned ten minutes later. (Id. at 191.) Petitioner claimed that N.L. then “coughed a piece of pork out of her throat[,]. . . went unresponsive[,] and stopped breathing.” (Id.) Dr. Kelly testified that Petitioner had no discernable reaction when he told him that he did not expect N.L. to survive. (Id. at 190.)

As medical personnel continued their efforts to revive N.L., the ER charge nurse, Hattie Lowrie (“Lowrie”), removed N.L.'s diaper to insert a catheter and discovered that she had “a lot of bruising and other things around [her] perineum and rectal area[.]” (Id. at 151-52, 193.) Suspecting that N.L. had been abused, Lowrie contacted Jennifer Stephens (“Stephens”), the sexual assault nurse examiner, to document the injury. (Id. at 161, 163, 165.) Stephens observed that N.L.'s anus was “dilated pretty significantly” and “not closing at all[,]” allowing stool and blood to spill out.¹⁰ (Id. at 163, 165.) Acknowledging the “significant amount of trauma [that] would have to be instilled to the anus to maintain that dilation[,]” Stephens concluded that N.L. had suffered a penetrative injury consistent with sexual abuse. (Id. at 165-66.)

10 Photographs documenting the severity of this injury are part of the record. (Resp't Ex. 115.)

Dr. Kelly conducted a secondary examination and observed that N.L.'s abdomen “appeared quite distended” and was “bloated or bulging out.” (Id. at 186.) A computed tomography (CT) scan revealed that N.L. suffered from “massive intraabdominal bleeding[,] . . . problems with the liver[,] . . . [and] bleeding from the spleen[.]” (Id. at 193.) Because it requires “a significant amount of force”-such as the force resulting from “a high-speed energy transfer from an auto accident [or] a fall from a height”-to injure a solid organ, Dr. Kelly concluded that such injuries could not have been caused by an accidental trip and fall or by the administration of CPR. (Id. at 200-02.) Dr. Kelly also observed that N.L. had several fractured ribs, which are uncommon in children because their “bones are not fully calcified” and tend to be “very plastic and pliable[.]” (Id. at 193.) Dr. Kelly thus explained that because “[i]t takes a significant blunt force injury or deceleration-type injury to break ribs in a person [N.L.]'s age[,]” the presence of such injuries also was indicative of “a high degree of energy transfer to [her] internal organs.” (Id. at 194.) Dr. Kelly noted that despite the apparent severity of her condition, N.L.'s blood work indicated that Petitioner did not bring her into the ER immediately after she suffered her injuries. (Id. at 196.)

Efforts to revive N.L. ultimately proved unsuccessful and she was pronounced dead at around midnight. (Id. at 197-98.) Dr. Kelly testified that N.L. likely would have survived if she had received immediate medical attention and that the injury to her anus would have healed if it had been surgically repaired. (Id. at 202-04.)

2. The Investigation i. Petitioner's Statements to Police

Salem police officer Mark Croll (“Croll”) was dispatched to Salem Hospital at approximately 10:40 p.m. on March 8, 2008, where he found a team of emergency medical personnel “feverishly” working to revive N.L. (Tr. at 211-12.) After viewing the injury to N.L.'s anus, Croll called his supervisor, Sergeant Benton Bales (“Bales”), for assistance, and then spoke with Petitioner, who calmly was sitting nearby. (Id. at 213-15.) Petitioner falsely identified himself as “Kyle Ros,” stated that he lived on Nando Street, and represented that he was “simply [N.L.'s] babysitter” while her mother was out of town. (Id. at 217, 231, 251.) Petitioner told Croll that he had not contacted N.L.'s mother because her cell phone was dead, and that he had no other way to contact her. (Id. at 216.) Once Bales arrived, Croll asked Petitioner if he would accompany them to a “quiet room” where they could speak privately, and Petitioner agreed. (Id. at 218, 245.)

In the room, Croll advised Petitioner of his Miranda rights and asked him questions about what happened. (Id. at 222, 246.) Petitioner told the officers that he had cooked pork for dinner and that N.L. was “eating like a pig.” (Id. at 222.) He claimed that he then went to the restroom for approximately ten minutes and returned to find N.L. unconscious on the floor. (Id. at 223.) Petitioner stated that he revived N.L. by performing CPR and that, in a panic, he called a friend, “Don,” who suggested that N.L. needed to go to the hospital. (Id. at 223-24.) Petitioner did not disclose that he had waited for “Don” to drive to his apartment before taking N.L. to the hospital or that another child had been present. (Id. at 224-26, 249-50.) At the end of the interview, Petitioner spontaneously commented, “Just a typical day. Go to take a crap and look what happens.” (Id. at 226.)

Petitioner subsequently agreed to accompany the officers to the Salem Police Department for further questioning. (Id. at 230.) There, Petitioner met with Detective Kristina Knox (“Knox”) and again identified himself as “Kyle Ros.” (Id. at 270.) Petitioner told Knox that he had been babysitting N.L. at his residence on Nando Street when she choked on a piece of food and quit breathing. (Id. at 270-71.) Petitioner stated that he had “pushed” on N.L.'s chest and dislodged a piece of meat from her throat before rushing her to the hospital. (Id. at 272-73.) Petitioner did not tell Knox about Luong's involvement or J.L.'s presence at the scene.

Knox left the interview room to verify Petitioner's information. (Id. at 274.) Knox searched various databases but did not find information matching the birthdate Petitioner provided and the name “Kyle Ros.” (Id. at 274-75.) However, she eventually located a DMV photo of “Russell Ros” that resembled Petitioner. (Id. at 275-76.) When Knox presented Petitioner with the photo, he “nonchalantly” admitted that he had lied about his identity and promised to start telling the truth. (Id. at 277.) He nevertheless continued to claim that he lived on Nando Street and that the incident preceding N.L.'s hospitalization had occurred there. (Id. at 278.) Petitioner also continued to imply that he merely was N.L.'s babysitter, telling Knox that he no longer was in a relationship with Burciaga and had no way to contact her in Las Vegas. (Id. at 281-83.)

At some point, the hospital informed police that their records showed that N.L. had a sibling, a three-year-old boy, who had been seen in the emergency room approximately one month earlier. (Id. at 283.) Knox asked Petitioner about J.L. and where she could find him, and Petitioner again gave her the Nando Street address. (Id. at 284.) After Knox dispatched officers to Nando Street and learned that neither Petitioner nor the children had been there that night, Petitioner admitted that he “temporarily” was residing with the children and their mother in an apartment on Beverly Street. (Id. at 285-86, 289-90.) Petitioner also admitted that the night's events had occurred at the Beverly Street apartment and that J.L. had been present. (Id. at 290.)

Recognizing that Petitioner “had lied . . . multiple times” during their conversation, Knox told him that it was “time to cut out all of [the] lies and games and . . . get to the truth.” (Id. at 290-91.) Petitioner acknowledged that he had been lying and recounted the events preceding N.L.'s hospitalization, eventually admitting to Knox for the first time that he had called Luong for advice before taking N.L. to the hospital. (Id. at 291-97.) Knox asked Petitioner where J.L. had been during these events and Petitioner admitted that he had waited for Luong to arrive at the apartment before taking N.L. to the hospital. (Id. at 299.) Petitioner told Knox that Luong had accompanied them to the hospital, that he had left J.L. in Luong's care when he took N.L. inside, and that he had instructed Luong to take J.L. to his parents' home on Nando Street. (Id.)

After briefing the other investigators on Luong's involvement, Knox asked Petitioner whether the children had suffered any health issues or injuries since Burciaga had left town. (Id. at 306.) Petitioner confirmed that the children had been “their normal healthy selves” and that Burciaga had left no “special instructions for him to be attentive to anything in particular” with respect to their health. (Id.) Knox also asked Petitioner if the children had been “pottying okay” and whether he had noticed anything unusual while changing their diapers. (Id. at 307.) Petitioner confirmed that “everything had been normal” and that he had not noticed anything “out of the ordinary.” (Id.) Knox then informed Petitioner that N.L. had suffered “some pretty serious traumatic injur[i]es” and that “it appeared that something had been inserted into her rectum and had caused significant trauma.” (Id. at 308.) Petitioner responded, “Oh, hell, no[,]” insisting that he was not a sex offender and denying having “penetrated [N.L.] in that way.” (Id. at 308-09.)

Knox reviewed Petitioner's previous statements, noting that he had claimed that he was “the only one” with the children that afternoon and that he had changed N.L.'s diaper at approximately 6:30 p.m. after waking from a nap. (Id. at 294, 310.) Petitioner confirmed that he had changed N.L.'s diaper that evening and acknowledged that “if she had had an injury like that . . . he would have seen it.” (Id. at 310.) After additional discussion concerning “the fact that there were no other adults there” when N.L. sustained her injuries, Petitioner asked Knox “what kind of evidence . . . would [be] use[d] to prove how [the injury to N.L.'s anus] happened and who had done it.” (Id.) When Knox told Petitioner that they “would use every type of evidence that [they] had access to[,]” including DNA evidence, Petitioner stated that police would not find his DNA. (Id. at 310-11.)

Petitioner thereafter agreed to give a recorded statement¹¹ and recounted “from start to finish” the most recent version of events he had given Knox. (Id. at 311, 313.) Knox noted that while discussing the injury to N.L.'s anus, Petitioner “had a grin or a smirk on his face[.]” (Id. at 313.) When she asked Petitioner why he was smiling, Petitioner told her that the allegations against him were “absurd” and while photographs could prove that something had happened to N.L.'s anus, “they [would] have to prove [he] did [it].” (Id. at 313-14.) Petitioner then offered possible explanations for N.L.'s injury, first stating that he had seen N.L. fall in the apartment and that “her bottom landed on [a hexagon-shaped] dumbbell” on the living room floor. (Id. at 314-15.) He acknowledged, however, that N.L. had not cried or otherwise had any “remarkable reaction” after the alleged fall. (Id. at 316-17.) Petitioner next stated that the injury could have occurred at the park that afternoon because N.L. had been “running forward and fell and landed on her bottom.” (Id. at 319.) Petitioner again acknowledged, however, that he had changed N.L.'s diaper that evening and had not noticed any signs of injury, which would have been obvious. (Id.)

11 A transcript of Petitioner's first recorded statement was introduced at trial (Tr. at 66162), and is included in the record (Resp't Ex. 114 at 186-208).

After Knox terminated the recording, Petitioner again questioned how the State would prove its case. (Id. at 320.) Knox told Petitioner that they would “use every available piece of evidence[,]” some of which would “come from [N.L.]'s autopsy because she had passed away.”¹² (Id. at 321.) Upon learning of N.L.'s death, Petitioner “sat back . . . put his hands up by his head” and stated “Oh, no. I did not do this.” (Id.) At that point, Knox excused herself from the room. (Id. at 322.) When she returned fifteen to twenty minutes later, Petitioner had his feet up and had the hood of his sweatshirt pulled up over his head. (Id. at 323.) Knox testified that Petitioner appeared to be sleeping and that she did not disturb him until awhile later, when she woke him to give him an update on the progress of the investigation. (Id. at 323-24.) At that time, Petitioner asked to use the restroom and Knox briefly stepped out to find a male detective who could escort him. (Id. at 324-25.) When she returned a short time later, Petitioner again appeared to be asleep. (Id. at 325.)

12 Petitioner implies in his supporting brief that Knox waited to inform him of N.L.'s death until he was giving his recorded statement. (Pet'r's Br. at 15.) Although Knox's trial testimony is unclear on this point, the transcript of Petitioner's first recorded statement demonstrates that Knox did not disclose N.L.'s death while Petitioner was being recorded. (Resp't Ex. 114 at 186-208.)

While Petitioner slept, Detective Mark Williamson (“Williamson”) interviewed Luong and learned where he could find J.L. (Tr. at 326.) Williamson retrieved J.L. and took him to Salem Hospital. (Id. at 327.) Williamson then returned to the police station, roused Petitioner, and escorted him to the restroom. (Id. at 329.) Afterward, Petitioner asked to speak with Knox because “he still had more stuff he wanted to talk about.” (Id. at 668.) Williamson told Petitioner that Knox was busy, that they “were tired of listening to his different lies[,] and [that] it was time for him to be truthful about what had happened.” (Id. at 669.) Petitioner insisted that he had described what happened as “best [as] he remembered it” and told Williamson that they did not “have anything on [him]” like “forensics . . . DNA, or that kind of stuff.” (Id. at 670-71.) Petitioner then asked whether Williamson wanted him to lie and say that he had kicked N.L. (Id. at 672.) After Williamson reiterated that he wanted the truth, Petitioner admitted that he had kicked N.L. (Id. at 673-74.)

After informing Knox of Petitioner's statements, Williamson again interviewed Petitioner and recorded their conversation.¹³ (Id. at 679.) During the second interview, Petitioner admitted that he had kicked N.L. twice: first in the back when she did not follow instructions, causing her to fly “a few feet” and fall to the ground, and then again “on the butt” while she still was laying on the ground. (Id. at 679-80, 682.) Petitioner acknowledged that he had kicked N.L. “pretty hard” but stated that he had not “felt . . . it was life-threatening” and that he “must have got it really good in the right spot for that.” (Id. at 680, 685.)

13 A transcript of Petitioner's recorded statement to Williamson was introduced at trial (Tr. at 661-62), and is included in the record (Resp't Ex. 114 at 232-246).

While Williamson was interviewing Petitioner, Knox received an update on J.L.'s condition. (Id. at 330.) The hospital reported that J.L. had a broken arm, a broken collarbone, and a broken shoulder blade, all of which were on his left side. (Id. at 331.) The hospital estimated the injuries to be “somewhere between [twenty-four] hours and [thirty] days old.” (Id.) When Knox asked Petitioner about the injuries, he stated that J.L. had fallen off “a bridge-type play structure” at the park between a week and a week and a half earlier.¹⁴ (Id. at 332.) Knox acknowledged the difficulty of caring for two young children and asked Petitioner if he ever hit them “out of frustration, anger, [or] discipline.” (Id. at 332-33.) In response, Petitioner admitted that he had “smacked” J.L. on numerous occasions and sometimes had done so out of anger. (Id. at 333-34.) Petitioner elaborated that he previously had slapped J.L. on the back of the head, hit him on his arms and back, and punched him in the stomach. (Id. at 334.) Although Petitioner admitted that he sometimes “left marks” when he hit J.L., he denied having caused the severe injuries to J.L.'s arm and shoulder.¹⁵ (Id. at 336.)

14 Petitioner told Knox that Kern had been at the park and would verify his story. (Tr. at 341.) However, as explained in note 8, supra, Kern testified at trial that he had never gone to the park with Petitioner and the children and was “never with [Petitioner] when [J.L.] fell off a play structure and hurt himself.” (Id. at 380.) Knox testified that she later went to the park to see the play structure and its surroundings, noting that the bridge Petitioner had described was only two feet, seven and a half inches from the ground at its lowest point, and three feet, two inches from the ground at its highest point. (Id. at 343.) Knox also noted that the ground beneath the bridge was covered with three to four inches of a “very soft kind of cushiony-type material” known as “hog fuel.” (Id. at 344-45.)

15 Knox discussed J.L.'s injuries with Petitioner in a second recorded interview. (Resp't Ex. 123.) The transcript was admitted into evidence at trial. (Tr. at 661-62.)

Detective Dan Tallan (“Tallan”) attended N.L.'s autopsy and called a short time later to give Knox the results. (Id. at 337-38.) Based on N.L.'s cause of death, N.L.'s other injuries noted by the medical examiner, and Petitioner's statements during the investigation, Knox placed Petitioner under arrest on charges of murder and sexual abuse. (Id. at 338-39.)

While waiting to be transported to jail, Petitioner asked to smoke a cigarette. Knox granted Petitioner's request and Tallan escorted him outside to smoke. (Id. at 339-40; 699-700.) Once outside, Petitioner told Tallan that he was “more comfortable with one charge than the other” and asked if they could talk. (Id. at 701.) Tallan agreed but reminded Petitioner that he was entitled to have an attorney present while they talked or that he could “just remain silent.” (Id.) Petitioner confirmed that he wanted to talk and then stated: “[N.L.] obviously passed away because of me . . . [b]ut I didn't penetrate her sexually.” (Id. at 701-03.) When Tallan attempted to clarify whether Petitioner could have penetrated N.L. in a non-sexual manner, Petitioner changed the subject and reiterated that he “must be responsible for [N.L.]'s passing” because he had “kicked her two times in the butt.” (Id. at 704.) Tallan told Petitioner that he did not believe that two kicks to the butt had caused N.L.'s death, and Petitioner admitted “that maybe it could have been mistaken as a stomp but it was his intention to kick her.” (Id. at 705-06.) Petitioner finished smoking and was transported to the Marion County Jail. (Id. at 706-07.)

ii. Petitioner's Statements During a Jail Phone Call

The morning after his arrest, Petitioner made a phone call from the jail to an unidentified male. (Tr. at 707.) The call was recorded, interpreted, transcribed, and read to the jury at trial. (Id. at 707-08.) During the call, Petitioner told the man that he had been charged with murder and acknowledged that “it might have been [his] fault[.]” (Id. at 709.) Petitioner also told the man that he had been charged with sexually abusing N.L., explaining:

They're saying that I raped her, but I didn't. I just kicked her. But they're saying that I did, that they have pictures, but they've not collected all [the] evidence[], [like] my hair and sperm. That's what they need, you know, but the lawyers here, they don't want to help me.

(Id. at 710, 712.) Petitioner then instructed the man to ask Burciaga's father for money to hire an attorney. (Id. at 711-12.) Petitioner also instructed the man to assure Burciaga and her family that N.L.'s death was accidental, and that Petitioner had not sexually abused her, stating:

I said that I kicked her. That's what happened you know. I kicked her two or three times, but, you know, I didn't see any blood....and then she passed because of what I did on accident. I accept it, you know, but the raping, hell no! That is what I'm saying, fuck it. I said I want a lawyer, because if they want to know the truth, then they need to do that for me. Because if I can get a lawyer, it will help me beat that case. I know that the causing of death part . . . I probably can't do it. But for the raping part, there's enough evidence to support me, you know....‘Cause you gotta find my DNA, you know, my whatever, you know....And they won't find it. So -- but, yeah, I need, I need you to at least do that -- at least talk to [Burciaga] and say hey, you know. I'd like to at least have your daughter rest in peace, to have the family know the truth[.]

(Id. at 715-16.)

iii. Forensic Evidence

Police searched the Beverly Street apartment and discovered a purple dildo sitting in the drawer of a television stand located in a room that appeared to be used as an office. (Id. at 50910.) Burciaga testified that for hygienic purposes, she normally kept the dildo in its packaging in her nightstand and never kept it loose in a drawer as police had found it. (Id. at 421-22.)

Burciaga testified that she had not used the dildo since moving into the Beverly Street apartment.

(Id.)

Marla Kaplan (“Kaplan”), a forensic scientist for the Oregon State Police, conducted

DNA testing on the dildo, which revealed a “mixed profile” of at least three contributors. (Tr. at 608, 616, 629.) Petitioner, Burciaga, and N.L. could not be excluded as contributors to the mixture. (Id. at 629-30.) Kaplan acknowledged that due to the number of contributors, the profile was not very specific, explaining:

The frequency of plucking a random person out of anywhere who would be included in that DNA mixture at the level of [Petitioner] or [Burciaga] or

[N.L.] . . . would be 1 in 60 Caucasians, 1 in 210 African Americans, and 1 in 110 in the Hispanic population.

(Id. at 630-31.)

Kaplan also tested a semen stain found on the dress that N.L. had been wearing when she arrived at the hospital. (Tr. at 616, 621.) The semen had a DNA profile that matched Petitioner. (Id. at 633.) Kaplan noted the strength of the match, explaining that the frequency of “plucking somebody at random out of the population” that would share the profile “is less than 1 in 10 billion[,]” a number exceeding the total population of people alive on earth. (Id. at 633-34.)

3. Medical Evidence

i. J.L.'s Injuries

Shortly after N.L.'s death, Williamson located J.L. and took him to the hospital, arriving in the ER at approximately 6:00 a.m. on March 9, 2008. (Id. at 540.) The physician on duty, Dr. Lewis Sayre (“Dr. Sayre”), examined J.L. and observed that he had strips of hair that appeared to have “been traumatically removed” weeks earlier. (Id. at 546.) X-rays revealed that J.L. also had a broken left clavicle (collarbone), a broken left scapular (shoulder blade), and a broken left humerus (upper arm). (Id. at 547-48.) Dr. Sayre noted that the fractures already had begun to heal and estimated that they were approximately three weeks old. (Id. at 548.)

Dr. Sayre noted the unusual nature of J.L.'s injuries, explaining that a broken clavicle is relatively common and may be caused by a simple fall, but that a significant amount of force- like that associated with a car wreck or a baseball bat attack-is needed to break the scapular. (Id. at 551.) Dr. Sayre testified that falling three and a half feet from playground equipment onto soft mulch would not generate enough energy to break the scapular bone. (Id. at 552.) He further explained that a broken humerus is an injury generally seen in older adults and not in very young children like J.L. (Id. at 551.) Based on his observations, Dr. Sayre believed that J.L.'s “very unusual trifective fractures” occurred at the same time and likely were the product of abuse. (Id. at 552.)

J.L. subsequently was referred to Liberty House, a child abuse assessment center in Salem, where he was evaluated by Dr. Lauren McNaughton (“Dr. McNaughton”). (Id. at 564, 567-68.) Dr. McNaughton testified that because J.L. “spoke very little” during his time at Liberty House, she could not “ask him questions or take a history” to determine what happened. (Id. at 572.) She conducted a thorough physical examination, noting that J.L. allowed “passive movement” of his left wrist and elbow, but “fuss[ed] and tr[ied] to get away” when she attempted to move his shoulder. (Id. at 575.) She also noted that he was missing strips of hair, had “a few scattered bruises” on his skin, and had scars on the top of his right foot consistent with cigarette burns. (Id. at 573-74, 576.)

Dr. McNaughton also reviewed J.L.'s medical records, including reports and lab work from J.L.'s hospital visits on February 8 and March 9, 2008. (Id. at 581.) She noted that J.L.'s liver enzyme levels had been “very, very high” when Burciaga brought him to the ER on February 8,¹⁶ but had returned to normal when he was seen in the ER on March 9. (Id. at 58283.) Dr. McNaughton emphasized the significance of this finding to the jury, explaining that heightened liver enzyme levels are indicative of damage to the liver and could be caused by disease, trauma, or exposure to certain medications and toxins. (Id. at 582-83.) Because J.L.'s liver apparently “self-corrected” without medical intervention and returned to normal enzyme levels within a short period of time, Dr. McNaughton concluded that trauma to the liver-such as might result from “a punch, kick, or stomp”-had caused the heightened enzyme levels reported on February 8. (Id. at 583, 585.)

16 Dr. McNaughton explained that a normal range for liver enzymes is “20 or 25 to 40” and that J.L.'s enzyme levels ranged from 1,000 to 1,500. (Tr. at 582.)

Finally, Dr. McNaughton reviewed the photographs Burciaga had taken of J.L.'s injuries on February 8, 2008, and found that they, too, were indicative of abuse, explaining: “It's my opinion that there are too many bruises and too many injuries for those to be the usual kinds of accidental injuries that kids get.” (Id. at 595.) She explained that children routinely sustain bruises to their limbs and extremities while running and playing, but that the location, number, and size of the bruises pictured on J.L.'s torso were “very uncommon without a history of some kind of accident that people would be able to explain[.]” (Id. at 595-96.) Based on her examination of J.L. and her review of his medical records and photographs, Dr. McNaughton diagnosed J.L. as having been physically abused. (Id. at 594.)

ii. N.L.'s Injuries

As noted above, N.L. died after suffering significant injuries while in Petitioner's care. Dr. Larry Lewman (“Dr. Lewman”), a forensic pathologist with the Oregon State Medical Examiner's office, performed an autopsy the next day. (Id. at 738, 745.) Dr. Lewman first noted that N.L.'s abdomen “was very distended” and felt “pressurized and tense[.]” (Id. at 745-46.) He testified that “blood just gushed forth under pressure” when he made an incision to N.L.'s belly, and that the blood primarily was from N.L.'s liver, which had been “crushed . . . through and through from front to the back[.]” (Id. at 750-52, 754, 756.) He explained that such an injury was consistent with “a powerful blow” from a punch, kick, or stomp that “smashe[d] [and] pin[ned] [N.L.'s] liver up against the backbone[,]” causing it to tear down the middle. (Id. at 754-56.) Dr. Lewman testified that the severity of the injury would have been “readily apparent” to someone without medical knowledge or training because N.L. “would have [had] extreme abdominal pain and would [have] be[en] unconscious very quickly as she loses blood.” (Id. at 757.)

In addition, Dr. Lewman observed that N.L. had several fractured ribs-four on the left that had sustained nondisplaced fractures, and two on the right that had sustained complete breaks, meaning the “bones were actually separated.” (Id. at 760.) Dr. Lewman opined that such fractures were “very unlikely” to have been caused by chest compressions during CPR and instead were consistent with recent blunt force trauma. (Id. at 761-62.)

Dr. Lewman also discovered three “good-sized bruises” to the back of N.L.'s head. (Id. at 762.) He noted that the bruises were consistent with N.L. having “slammed [her head] back against the ground or some object” and were “very consistent with a mechanism of abuse[.]” (Id. at 763.)

Finally, Dr. Lewman observed the injury to N.L.'s anus, noting that the “anal canal . . . was dilated . . . [and] bruised” with “several small tears around the margins . . . and a small amount of blood coming out.” (Id. at 748.) He conducted an internal examination of N.L.'s rectum and discovered additional hemorrhaging extending upward “[a]pproximately [three] inches from the anus[.]” (Id. at 764, 768.) Based on his observations, Dr. Lewman concluded that the injuries were caused by penetration with an object. (Id. at 764.) He explained that the object had stretched and torn N.L.'s anus and “was shoved up another [three] to [four] inches[,] . . . caus[ing] additional injury on the inside.” (Id. at 764-65.) Dr. Lewman opined that the prolonged dilation of N.L.'s anus indicated that she likely suffered a tear to the anal sphincter muscle. (Id. at 765.)

Although Dr. Lewman could not identify the object used to penetrate N.L., he testified that N.L.'s anal-rectal injury was too deep to have been caused by the insertion of a finger. (Id. at 766, 769.) He further testified that it “would be totally impossible” for N.L. to have sustained her injury by falling on a dumbbell as Petitioner suggested. (Id. at 770.) When the prosecutor asked if the injuries to N.L.'s anal-rectal area were consistent with having been caused by the purple dildo recovered from the Beverly Street apartment, Dr. Lewman replied: “They are consistent with that. I'm not saying [definitively that] it is [what caused the injuries, but] [i]t's certainly consistent with it.” (Id. at 767.)

B. The Defense Theory

At trial, the defense acknowledged Petitioner was responsible for N.L.'s death but sought to persuade the jury to consider convicting Petitioner of lesser-included crimes, such as manslaughter or criminally negligent homicide, rather than murder by abuse and felony murder. (Id. at 976-77.) The defense also pursued a theory of reasonable doubt with respect to the charges concerning J.L., attacking the conclusions of the State's experts, the sufficiency of the investigation, and Burciaga's credibility.

Notably, the defense sought to refute the sexual abuse charges by establishing an alternative cause of N.L.'s rectal injuries and shifting the blame for such injuries to Burciaga. (Id. at 1014.) In support of this theory, the defense introduced the testimony of Jennifer Foley (“Foley”), a child protective services worker for the Oregon Department of Human Services. (Tr. at 801-02.) Foley testified that she interviewed Burciaga shortly after N.L.'s death, and that Burciaga “randomly” disclosed that N.L. sometimes suffered from constipation that required her to “utilize a glove and . . . insert her finger [into N.L.'s rectum] to help break up the bowel movements.” (Id. at 805.) Burciaga testified at trial, however, that she never inserted her finger into N.L.'s rectum, that “there was some confusion about that” with respect to her comments to Foley, and that she had “cleared up” the issue in conversations with Knox and the prosecutor. (Id. at 469-70.)

The defense also presented the testimony of Dr. Raymond Grimsbo (“Dr. Grimsbo”), who testified that he is a forensic scientist with a PhD in Philosophy and not a medical doctor. (Id. at 819, 883.) Dr. Grimsbo conducted a file review and testified that N.L.'s anal-rectal injuries could have been caused by the insertion of a finger. (Id. at 878-80.) Specifically, Dr. Grimsbo opined that the internal lacerations to N.L.'s rectum and the various external injuries could have been caused by a fingernail. (Id. at 880-81.) He acknowledged, however, that his opinion was based, at least in part, on Burciaga's alleged statement to Foley; that he had not performed any of his own tests or conducted his own investigation; and that he could offer an opinion only as to whether a finger could have caused N.L.'s anal-rectal injury and not whether a finger actually had caused the injury. (Id. at 841-42, 858-60.) Dr. Grimsbo explained:

What [Burciaga] said [about relieving N.L.'s constipation] . . . just alerted me that normally everything comes out of the rectum, it doesn't go back in. And so, my thought was perhaps digital penetration could cause [N.L.'s anal-rectal injury]. I can't say whether it did or did not cause it and my opinion was it could have. Not saying more likely than not or anything -- anything else. I wouldn't have thought of digital penetration until that was brought to my attention that's a potential [cause].

(Id. at 913.)

Petitioner elected not to testify. (Id. at 810-12.)

C. Verdict and Sentencing

The jury returned guilty verdicts on all counts. (Resp't Ex. 101.) In a separate proceeding, the trial court followed the State's recommendations and sentenced Petitioner to life in prison, with the possibility of parole after a minimum of 538 months, for N.L.'s murder.¹⁷ The trial court also imposed consecutive custodial terms on the remaining charges, adding another 396 months of incarceration to Petitioner's sentence. (Resp't Ex. 101.) The trial court explained her reasoning, as follows:

17 As noted above, Petitioner's sentence in connection with the murder charges later was amended to reflect life with the possibility of parole after 300 months.

It is my intention through this sentence to get as close I possibly can to a true life sentence. If I had the legal option to impose a true life sentence, that is what I would be imposing. This case is not ‘just'-and I'm using air quotes around just-a murder. Obviously, just a murder is a horrific enough act. But this case is far more than that.

This Case is a series of cruel, violent, brutal, horrific crimes against the most innocent, the most helpless victims that you could find. And if we, as a society, are not able to ensure that someone who perpetrates these kind[s] of crimes will never walk free again, then I do not see how we, as a society, can be safe. So to the best of my ability, it is my intention that [Petitioner] never be free from prison.

(Tr. at 1151.)

DISCUSSION

I. EXHAUSTION AND PROCEDURAL DEFAULT

A. Legal Standards

A habeas petitioner generally must exhaust all remedies available in state court, either on direct appeal or through collateral proceedings, before a federal court may consider granting habeas relief. See 28 U.S.C. § 2254(b)(1)(A) (instructing that a court may not issue a writ of habeas corpus on an individual in state custody's behalf unless “the applicant has exhausted the remedies available in the courts of the State”); see also Smith v. Baldwin, 510 F.3d 1127, 1137 (9th Cir. 2007) (noting that an individual in custody must first exhaust available remedies before a federal court may consider a habeas petition on the merits). Generally, a petitioner satisfies the exhaustion requirement “by fairly presenting the federal claim to the appropriate state courts . . . in the manner required by the state courts, thereby ‘afford[ing] the state courts a meaningful opportunity to consider allegations of legal error.'” Case Casey v. Moore, 386 F.3d 896, 915-16 (9th Cir. 2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 257 (1986)) (alteration in original); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (holding that “[b]ecause the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, . . . state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the state's established appellate review process”).

If a petitioner failed to present his claims to the state courts in a procedural context in which the merits of those claims actually were considered, the claims have not fairly been presented to the state courts and therefore are not eligible for federal habeas corpus review. See Edwards v. Carpenter, 529 U.S. 446, 453 (2000) (explaining that the reasons for the exhaustion requirement would be frustrated if a habeas court “allow[ed] federal review to a[n] [individual in state custody] who had presented his claim to the state court, but in such a manner that the state court could not, consistent with its own procedural rules, have entertained it”). In this respect, a petitioner is deemed to have “procedurally defaulted” his claim if he failed to comply with a state procedural rule, or failed to raise the claim at the state level at all. See Case Carpenter, 529 U.S. at 451 (explaining that a “petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance[,]” and that the procedural default doctrine applies “whether the default in question occurred at trial, on appeal, or on state collateral attack”) (simplified); see also Coleman v. Thompson, 501 U.S. 722, 750 (1991) (noting that federal review is barred “[i]n all cases in which a[n] [individual in state custody] has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule”). An individual in state custody is barred from raising procedurally defaulted claims in federal court unless he “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law or demonstrate that failure to consider the claims will result in fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.

B. ANALYSIS

Petitioner asserts in his Sixth Claim for Relief that trial counsel was constitutionally ineffective in several respects. Petitioner argues in his supporting brief that trial counsel's deficient performance warrants habeas relief, as follows:

A. Counsel failed to adequately investigate and prepare this matter for trial, for reasons including but not limited to: ....

(vi) Trial counsel was present when the prosecution and trial court inappropriately threatened a witness, the mother of the child victims, and ordered her to cooperate with the prosecution. Trial counsel failed to object to the threatening of this witness or to request that the court appoint counsel for this material witness to protect her interests and those of [Petitioner].

C. Counsel failed to ensure that [Petitioner] was present at all critical stages of the pre-trial and trial proceedings.

D. Counsel provided ineffective assistance at the time of trial for reasons including but not limited to: ....

(iv) Counsel failed to object to the presentation of contentions that victim J.L. was autistic, when there was no diagnosis of autism presented and to the extent that there was any such diagnosis it post-dated the incidents at issue during the trial. As a result, [Petitioner] could not have been aware that J.L. suffered from any such disability.

(v) Counsel failed to object, move to strike and/or seek a curative instruction when the prosecution had a defense witness, an employee with the

Department of Health and Human Services, vouch for the work of another prosecution witness, a detective with the Salem Police Department, regarding a critical contested issue.

(Third Am. Pet. at 21-22.)

Petitioner did not raise any of the foregoing ineffectiveness claims to the Oregon appellate courts, and because he no longer can do so, they are procedurally defaulted. See OR. REV. STAT. § 138.510(3) (setting forth a two-year limitation period in which to file for postconviction relief); OR. REV. STAT § 138.550(3) (instructing that all grounds for relief must be asserted in the original or amended postconviction relief petition unless the grounds could not reasonably have been raised). Petitioner concedes that the ineffectiveness claims he raises here are procedurally defaulted but argues that the ineffective assistance of postconviction counsel should excuse the defaults pursuant to Martinez v. Ryan, 566 U.S. 1 (2012). (Pet'r's Br. at 51.) In the alternative, Petitioner argues that this Court may consider the merits of his ineffectiveness claims because he is “actually innocent” pursuant to Schlup v. Delo, 513 U.S. 298 (1995).¹⁸ The Court considers these arguments in turn.

18 Petitioner also asserts a freestanding claim of actual innocence that is addressed below.

1. Cause and Prejudice Under Martinez

i. The Martinez Standard

Although the ineffective assistance of postconviction counsel generally does not constitute “cause” to excuse procedural default, see Coleman, 501 U.S. at 752 (holding that because there is no constitutional right to counsel in postconviction proceedings, a petitioner “must ‘bear the risk of attorney error that results in procedural default'”) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)), the Supreme Court recognized a narrow exception to this rule in Martinez: “Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initialreview collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” 566 U.S. at 9; see also Detrich v. Ryan, 740 F.3d 1237, 1244 (9th Cir. 2013) (noting that under Martinez, “a procedural default by state [postconviction] counsel in failing to raise trial-counsel [ineffectiveness] is excused if there is ‘cause' for the default”). This narrow exception applies in Oregon where, by law, ineffective assistance claims must be raised and addressed in a proceeding for postconviction relief. See State v. Robinson, 25 Or.App. 675, 675 (1976) (holding that ineffective assistance claims are “properly resolved only in a postconviction proceeding”); see also Sexton v. Cozner, 679 F.3d 1150, 1159 (9th Cir. 2012) (acknowledging that Oregon requires claims for ineffective assistance to be raised in a collateral proceeding).

To establish cause to excuse procedural default under Martinez, Petitioner first must show that his underlying claim of ineffective assistance of trial counsel is substantial insofar as it has “some merit.” Martinez, 566 U.S. at 14. Next, he must demonstrate that his postconviction attorney was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 (1984), for failing to raise the claim. “[T]o fulfill this requirement, a petitioner must show not only that [postconviction] counsel performed deficiently, but also that this prejudiced petitioner, i.e. that ‘there was a reasonable probability that, absent the deficient performance, the result of the postconviction proceedings would have been different.'” Runningeagle v. Ryan, 825 F.3d 970, 982 (9th Cir. 2017) (quoting Pizzuto v. Ramirez, 783 F.3d 1171, 1178 (9th Cir. 2015)). Such a finding necessarily would require the Court to conclude that there is a reasonable probability that the trial-level ineffective assistance claim would have succeeded had it been raised. Id.

ii. Analysis

a. Sixth Claim for Relief, Subparts (A)(vi), (C)

In subparts (A)(vi) and (C) of his Sixth Claim for Relief, Petitioner alleges that the prosecutor and trial court “inappropriately threatened” Burciaga at a pretrial hearing, and that trial counsel failed to object “to the threatening of this witness[,]” failed to request counsel on her behalf, and failed to ensure Petitioner's presence at the hearing. (Third Am. Pet. at 21.) Petitioner argues that these failures constitute a “substantial” claim of ineffective assistance because trial counsel silently “stood by” during what “was-in application-a material witness hearing” while “the state openly used the trial court judge to coerce a key trial witness not merely to comply with a subpoena to appear at trial, but to cooperate pretrial with the state.” (Pet'r's Br. at 58.) Petitioner argues that had trial counsel objected, Burciaga's testimony would have differed at trial such that he could have been acquitted on some of the charges against him. (Id. at 60-63.)

The Court notes that the hearing at issue, and Petitioner's claim that his attorney was ineffective in connection with that hearing, cannot be viewed in isolation. The Court thus sets forth the following background information for context:

Investigators interviewed Burciaga on several occasions in connection with N.L.'s death and J.L.'s injuries. During the first interview on March 10, 2008, Burciaga told Knox and Williamson that N.L. and J.L. occasionally suffered severe constipation, and that she sometimes “put[] on a rubber glove and use[d] her finger to help break up the stool so the child [could] pass it.” (Resp't Ex. 114 at 159.) Burciaga stated that she thought N.L. had been constipated before she left for Las Vegas on March 6, 2008, and that she had directed Petitioner to “break up the poop with his fingers if he needed to” while she was away. (Id.)

Foley, a child welfare worker, interviewed Burciaga the next day. (Id. at 805.) Foley testified at trial that during that interview, Burciaga told her that N.L. suffered from constipation and that she sometimes “would utilize a glove and . . . insert her finger to help break up the bowel movements.” (Id.)

On April 2, 2008, Knox again interviewed Burciaga to “obtain additional information” regarding her method for relieving the children's constipation. (Id. at 176-77.) The prosecutor and Burciaga's attorney both were present. (Id. at 176.) Burciaga clarified that when the children were constipated, she would take “surgical type gloves . . . [and] take hold of the poop [the child] had been able to pass, and break it up to make it easier . . . to pass the remainder.” (Id. at 177.) Burciaga expressly stated that “she did not insert her finger or anything else into either of children's rectum, and . . . only broke up what they were trying to pass, as it came out of their rectum.” (Id.) Burciaga noted that she last had utilized this method with N.L. on March 5, 2008, the day before she left for Las Vegas, and that N.L. had “seemed fine” before her departure on March 6. (Id.)

Burciaga again met with Knox and the prosecutor on April 18 and May 2, 2008. (Id. at 213-23, 250-56.) During both meetings, Burciaga was advised of her Miranda rights from a prepared card and signaled her understanding of those rights by signing the card. (Id. at 214, 250.) Among other things, Burciaga described to the investigators her discovery of the “red spots” on J.L.'s chest in early February 2008. (Id. at 253.) Burciaga stated that the spots “didn't look like bruises” at the time and that J.L. did not cry when she pushed on them. (Id.) Burciaga also discussed her discovery of the swelling to J.L.'s arm and shoulder, explaining that he did not cry when she pushed on his arm “so she did not think he was hurt very bad.” (Id. at 223.) As in previous interviews, Burciaga was cooperative and readily spoke with investigators about several topics, including some that potentially exposed her to criminal liability.

Nearly a year later, on March 30, 2009, the trial court held a pretrial hearing at the State's request to “talk to [Burciaga] about [her] role as a witness” in Petitioner's case. (Tr. at 1165-66.) The prosecutor and defense counsel both were present. (Id. at 1165.) Petitioner was not. (Id.) It appears that, despite already having been subpoenaed as a witness, Burciaga had become elusive as the prosecutor began preparing for trial. (Id. at 1168, 1170.) Indeed, the record reflects that during this period, Buciaga failed to appear at a hearing at which her own parental rights to J.L. were terminated. (Id. at 470.)

During the March 30 hearing, the trial court explained to Burciaga that because she was an “important witness” in Petitioner's case, the State needed “to have her cooperation” and availability in advance of trial. (Id. at 1168.) The trial court advised Burciaga that she needed to appear for a meeting she had scheduled with the prosecutor's investigator, and informed her that more drastic measures were available to the State if there was reason to believe she would not comply with the trial subpoena:

. . . [J]ust to be clear, and I imagine that [the prosecutor] has told you this, or if he has not, he will, and that is that the state does have the power in this kind of case to ask that the Court order someone be declared a material witness and the Court can even order that someone be taken into custody and held as a material witness.

So, basically, if the state has any reason to be worried about whether you're going to show up or whether you're going to be there when they need you, they can come to court and ask for that material witness order and I will give it to them. And again, that includes the authority to actually have you taken into custody and held in jail pending the trial. So that's why it's very important that you make sure that you comply and that you're available when they need to get ahold of you.

(Id. at 1169.) Burciaga stated that she understood. (Id.)

Before adjourning, the trial court again told Burciaga that the State “[did not] have to wait until the day of trial to find out that you're not going to show up[,]” and warned that “if all of a sudden they can't reach you by phone or they can't get ahold of you at a number where they thought they could get ahold of you, they may start getting worried about whether you're going to cooperate and they may come to court and ask for that material witness order, and again, I will give it to them if they ask for it.” (Id. at 1170.) The trial court thus encouraged Burciaga to be “where [she was] supposed to be[,]” to ensure that she could be reached at the number she had provided, and to return the prosecutor's calls. (Id. at 1170-71.)

Petitioner fails to establish that trial counsel was ineffective in connection with the March 30, 2009 hearing. Based on a thorough review of the record, the trial court would not have sustained any of Petitioner's objections. See Juan H. v. Allen, 408 F.3d 1262, 1273-74 (9th Cir. 2005) (noting that counsel is not ineffective for failing to raise a meritless objection). Despite Petitioner's assertion to the contrary, the March 30, 2009 hearing was not a material witness hearing, but rather an impromptu status conference at which the prosecutor sought to have the trial court advise Burciaga that the State could request a material witness warrant if it had reason to believe that she would not comply with her subpoena, and what that might mean for her in advance of trial. Indeed, there is no evidence in the record that an application for a material witness order had been filed at that time.

Furthermore, Petitioner's defense relied, in large part, on Burciaga's statement to Foley that she inserted a gloved finger into N.L.'s rectum to relieve constipation, and it is unclear how that statement would have been admissible in Burciaga's absence. Trial counsel therefore had little reason to object to proceedings intended to encourage Burciaga's presence at trial. See Strickland, 466 U.S. at 689 (explaining that to establish an ineffective assistance claim, a petitioner “must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy'”). In addition, trial counsel had no obligation to object on behalf of Burciaga, a non-client witness, or otherwise advise of her rights.

Even if Petitioner could establish that trial counsel's representation at the March 30, 2009 hearing fell below an objective standard of reasonableness, Petitioner cannot establish prejudice. Petitioner argues that trial counsel's deficient performance prejudiced him because the hearing subsequently caused two shifts in Burciaga's testimony that fatally undermined his defense at trial-one concerning whether she inserted her finger into N.L.'s rectum to address constipation, and another concerning whether she or Petitioner had pushed on J.L.'s injuries. (Pet'r's Br. at 6063.) Petitioner offers no evidence to support this assertion but even if he did, the Court could not consider it. See Shinn v. Ramirez, 142 S.Ct. 1718, 1728 (2022) (holding that Martinez does not permit factual development outside the state court record to prove the underlying ineffective assistance claim unless the new evidence meets the strict requirements of 28 U.S.C. § 2254(e)(2)). Petitioner's argument that trial counsel's deficient performance at the March 30, 2009 hearing somehow caused Burciaga to change her testimony thus is conclusory, wholly speculative, and insufficient to establish prejudice.

For the reasons stated, Petitioner has not established that his underlying ineffective assistance of trial counsel claim is “substantial,” and postconviction counsel therefore “could not have been ineffective for failing to raise [it] in state court.” Sexton, 679 F.3d at 1161 (holding postconviction counsel could not have been ineffective for failing to raise an ineffective assistance of counsel claim where trial counsel was not ineffective). Accordingly, Petitioner fails to demonstrate that the procedural default of subclaims (A)(vi) and (C) of the Sixth Claim for Relief may be excused under Martinez.

b. Sixth Claim for Relief, Subpart (D)(v)

In subpart (D)(v) of his Sixth Claim for Relief, Petitioner alleges trial counsel was ineffective in failing to object “when the prosecution had one defense witness . . . vouch for the work of another prosecution witness . . . regarding a critical contested issue.” (Third Am. Pet. at 22.) Petitioner argues that this claim is “substantial” because “[c]ompetent counsel would have recognized that calling on one witness to verify that she relies on the credibility of another witness's assessments in conducting her work was the type of improper bolstering prohibited under Oregon law.” (Pet'r's Br. at 68-69.) Petitioner asserts that had trial counsel objected to the improper vouching, which “went to the core of [Petitioner's] defenses to Counts 3 and 4,” the trial court would have sustained those objections. (Id. at 66.)

As explained above, the defense called Foley, a child protective services worker, as a witness at trial. (Tr. at 801-02.) Foley testified that shortly after N.L.'s death, Burciaga told her that N.L. suffered from constipation and that she would insert a gloved finger into N.L.'s rectum to break up her bowel movements. (Id. at 804-05.)

During cross-examination, Foley had the following exchange with the prosecutor:

Q. So you spoke with [Burciaga] on the 11th of March?

A. Yes.

Q. So this was approximately the day after or two days after her return to the State of Oregon?

A. Yes.

Q. Okay. Did you have access to the police reports in this case?

A. I did.

Q. Okay. And -- and you know that [Burciaga] had multiple contacts with Salem Police. Correct?

A. Correct.

Q. That she was interviewed on a number of occasions by Detective Kris Knox?

A. Yes.

Q. Okay. And you've worked with Detective Knox on other cases besides this as well. Correct?

A. Yes.

Q. Many cases?

A. Yes.

Q. Is it fair to say you have confidence in her ability as an investigator?

A. Yes.

Q. And you rely in your course of work as a protective services worker a great deal on evidence that she uncovers in the course of her investigations. Correct?

A. Yes.

Q. Okay. Are you aware that they spoke about this constipation issue at great length?

A. Yes.

(Id. at 805-06.) The prosecutor then attempted to ask Foley if she knew whether Knox and Burciaga had “clarified . . . [whether there] was actually insertion” into N.L.'s rectum and trial counsel objected on hearsay grounds. (Id. at 806-07.) The prosecutor rephrased, asking if there was “any possibility that [Burciaga] might have misspoken” when she discussed “actually inserting her fingers” into N.L.'s rectum with Foley. (Id. at 807.) Foley agreed that Burciaga could have misspoken. (Id.)

Petitioner claims that Foley's comments impermissibly vouched for “Knox's effectiveness as an investigator” with respect to “one of the most critical issues” litigated at trial-whether Burciaga penetrated N.L.'s anus to relieve her constipation. (Pet'r's Br. at 66, 69.) Petitioner claims that Foley's testimony amounted to an assurance that Knox is “so skilled in the arena of investigation that [Burciaga's] statements secured during that investigation were, inferentially, more reliable than those made during the course of . . . Foley's own investigations.” (Id. at 68.) Petitioner thus asserts that Foley's testimony “undermined her own child welfare investigation into what happened to N.L.[,]” bolstered “Knox's differing investigation and testimony[,]” and “[sowed] seeds of doubt . . . in the jurors' minds as to an argument critical to [Petitioner's] defense[.]” (Id. at 69.)

Oregon's rule against vouching “is a judicially created rule of evidence” that bars witnesses “from expressing a view on whether another witness is ‘telling the truth.'” State v. Black, 364 Or. 579, 585, 585 (2019); State v. Murphy, 319 Or.App. 330, 335 (2022) (quoting State v. Middleton, 294 Or. 427, 438 (1983)). The rule is intended to safeguard the jury's role as “the sole arbiter of witness credibility” and therefore “prohibits a witness from making a direct comment, or one that is tantamount to a direct comment, on another witness's credibility.” Black, 364 Or. at 585 (first citing State v. Chandler, 360 Or. 323, 330 (2016), then citing State v. Beauvais, 357 Or. 524, 545 (2015)). The rule against vouching applies to “experts and lay witnesses alike” and extends to “credibility opinions about statements that a witness made either at trial or on some other occasion.” Black, 364 Or. at 585 (quoting Chandler, 360 Or. at 331).

Although “the exact contours of [the vouching rule] can be ‘difficult to trace[,]'” the Oregon Supreme Court has made clear that vouching testimony “is categorically inadmissible.” Black, 364 Or. at 587. “Whether proffered testimony constitutes impermissible vouching is measured by whether it conveys one witness's opinion of the truthfulness of another witness, or, instead, provides information that permits the jury to make that determination.” Black, 364 Or. at 587-88 (emphasis added). Thus, “when a party objects to testimony as improper vouching, a court must determine whether the testimony provides an opinion on truthfulness or, instead, provides a tool that the factfinder could use in assessing credibility.” Id. at 593.

Petitioner fails to establish that counsel's failure to raise a vouching objection to Foley's testimony amounts to ineffective assistance of counsel. Foley's comments did not express an opinion as to the truthfulness of a specific statement by Knox, nor did they express an opinion as to Knox's truthfulness generally. Instead, Foley simply agreed that she had confidence in Knox's ability as an investigator and acknowledged that she had relied in the course of her work on the evidence Knox uncovered in her investigations. As Respondent points out, such comments at most may have provided information that could have aided the jury in assessing the credibility of the statements Knox obtained during her investigation, cf. Black, 364 Or. at 593-94 (holding that testimony that an interviewer failed to follow proper protocols during child interview did not provide an opinion as to the child victims' truthfulness but instead “would have provided information that would have been helpful to the jury in assessing the credibility of those witnesses”), and Oregon's vouching rule does not extend to attributes other than truthfulness, such as competence in a chosen profession. Foley's comments therefore did not constitute impermissible vouching under Oregon law, and trial counsel's failure to object on that basis was not ineffective. See Juan H., 408 F.3d at 1273-74 (noting that counsel is not ineffective for failing to raise a meritless objection). Because the underlying ineffectiveness claim is not substantial, postconviction counsel was not ineffective in failing to raise it. Petitioner thus fails to demonstrate that the procedural default of subclaim (D)(v) of the Sixth Claim for Relief may be excused under Martinez.

c. Sixth Claim for Relief, Subpart (D)(iv)

In subpart (D)(iv) of his Sixth Claim for Relief, Petitioner challenges trial counsel's failure to object to “the presentation of contentions that victim J.L was autistic[.]” (Third Am. Pet. at 22.) Petitioner raised this claim during his postconviction proceedings, alleging that trial counsel was ineffective in failing to object to Burciaga's “statements that [J.L.] was ‘mildly autistic'” because “[t]here was no specialist or any documentation to support the statement that J.L. had a developmental disability attributable to autism.” (Resp't Ex. 108 at 24.) Postconviction counsel did not argue in support of this claim during the postconviction proceedings. The postconviction court nevertheless rejected the claim on the merits, explaining:

[Trial counsel] failed to object to Amanda Ingram's statements that [J.L.] was mildly autistic. Again, I'm not sure that makes any difference in the case.

[He] was clearly vulnerable, but the point is I don't think that matters. And I don't know that there's any proof that [he] wasn't [autistic].

(Resp't Ex. 116 at 11.) Petitioner did not raise this claim on appeal from the postconviction court's denial of relief.

Petitioner acknowledges that his pursuit of this claim on federal habeas review “is complicated by the reality that [he] . . . tried to pursue this claim [on postconviction review], . . . and, as a result, the [postconviction] trial court ruled upon it.” (Pet'r's Br. at 78.) Petitioner argues, however, that this Court should conclude that because postconviction counsel failed to “pursue the claim in any meaningful respect” during his postconviction proceedings, it “was not presented in a manner that would have resulted in the [postconviction] court substantively considering it on the merits and [therefore may] be considered on the merits through the Martinez gateway” in his federal habeas proceedings. (Id. at 79.)

Although Martinez allows a habeas petitioner to establish “cause” to excuse a procedural default where postconviction counsel “was ineffective . . . for failing to raise a substantial claim of ineffective assistance of trial counsel[,]” Whiley v. Mills, No. 3:10-cv-00365-JO, 2013 WL 840084, at *8 (D. Or. Mar. 4, 2013), where, as here, a claim was “raised in the initial postconviction proceeding, and [was] rejected by the state postconviction court on the merits, Martinez has no bearing on the resolution of [the claim].” Jones v. Franke, No. 2:11-cv-01527-KI, 2013 WL 4026368, at *2 (D. Or. Aug. 5, 2013); see also Whiley, 2013 WL 840084, at *8 (holding that “any alleged failure on [postconviction] counsel's part to thoroughly develop and support the subject ineffective assistance of trial counsel claim raised during petitioner's [] postconviction proceeding, does not bring it under Martinez's purview”). Because Petitioner fairly presented to the postconviction court his ineffectiveness claim concerning trial counsel's failure to object to statements that J.L. was autistic but abandoned it on appeal, Martinez does not apply. See Martinez, 566 U.S. at 16 (clarifying that its holding “does not concern attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings”). Accordingly, Petitioner cannot establish cause and prejudice to excuse the default of subpart (D)(iv) of his Sixth Claim for Relief based on postconviction counsel's alleged ineffectiveness.

2. Actual Innocence Under Schlup

i. The Actual Innocence Standard

“[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass” to overcome procedural default. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). A petitioner therefore may secure review of his procedurally barred claims if he “presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.” Schlup, 513 U.S. at 316. To be credible, a petitioner's claim of actual innocence must be supported with “new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Id. at 324.

In evaluating a claim of actual innocence, the Court must consider all the evidence, both old and new, and conclude that “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Id. at 327. This is an exacting standard that is satisfied “only in the extraordinary case.” House v. Bell, 547 U.S. 518, 538 (2006) (simplified). Indeed, cases in which the Schlup standard has been satisfied have “typically involved dramatic new evidence of innocence.” Larson v. Soto, 742 F.3d 1083, 1096 (9th Cir. 2013).

The Ninth Circuit has made clear, however, that a petitioner raising an actual innocence claim is not required affirmatively to prove that he is innocent of the crime for which he was convicted. See Sistrunk v. Armenakis, 292 F.3d 669, 673 (9th Cir. 2002) (noting that a petitioner may satisfy Schlup by casting doubt on the conviction in ways other than “affirmatively proving innocence”). Rather, evidence “undercutting the reliability of the proof of guilt . . . can be enough to pass through the Schlup gateway.” Id. A petitioner therefore may satisfy Schlup by providing evidence that “significantly undermines or impeaches the credibility of witnesses presented at trial, if all the evidence, including new evidence, makes it ‘more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'” Gandarela v. Johnson, 286 F.3d 1080, 1086 (9th Cir. 2002) (citation omitted). Speculative or collateral impeachment evidence “falls far short of showing actual innocence.” Id.

ii. Petitioner's Evidence

Petitioner alleges that he is “legally and factually innocent of the conduct alleged in Counts 3 through 6[.]” (Pet'r's Br. at 79.) Counts 3 and 4 are crimes associated with the injuries to N.L.'s anus and Counts 5 and 6 are crimes associated with the injuries inflicted to J.L. between January 1 and February 8, 2008. (Id. at 82-83.)

a. Counts 3 and 4

To support his actual innocence claim with respect to Counts 3 and 4, Petitioner presents his own declaration dated February 26, 2020. (Pet'r's Exs. (ECF No. 69), Ex. 4 at 1-15 (“Ros Decl.”).) In his declaration, Petitioner “acknowledge[s] physically abusing N.L. on the night she died . . . [but] emphatically den[ies]” sexually abusing her. (Pet'r's Br. at 82.) Petitioner's declaration purportedly refutes the State's evidence of sexual abuse and establishes an alternative version of events leading to N.L.'s hospitalization and death.

Petitioner attests that he has “come to believe” that before leaving for Las Vegas on March 6, 2008, Burciaga attempted to relieve N.L.'s severe constipation by inserting a finger into her rectum to manually break up her bowel movement. (Ros Decl. ¶¶ 19-20.) That night, Petitioner drove Burciaga to the airport and returned home to find “a small amount of blood” in N.L.'s diaper, but not enough to “appear serious.” (Id. ¶ 20.) Petitioner attests that over the next few days, N.L. “sometimes would grimace” when he wiped her and that blood “sometimes, but not always,” was present in N.L.'s stool. (Id.)

On March 8, 2008, Petitioner spent most of the day at home with the children. (Id. ¶ 10.) Petitioner states that there “was neither blood nor feces” in N.L.'s diaper when he changed it that evening between 5 and 6 p.m. (Id. ¶ 20.) Petitioner cooked dinner for the children and they sat down to eat at approximately 9:00 p.m. (Id. ¶ 11.) Between 9:30 and 10:00 p.m., Petitioner noticed that N.L. was not eating and, though “deeply ashamed to acknowledge it,” responded in a violent manner. (Id. ¶ 12.) Petitioner attests that “[n]one of [the] actions [he took against N.L.] were sexual” and that he “did not remove her clothes or penetrate her anus as part of those actions.” (Id.) Petitioner states that he tried to administer CPR when he noticed that N.L. was quiet except for “short gasps,” and called Luong for help “after five minutes or so[.]” (Id. ¶ 13.)

Petitioner did not tell Luong what he had done to N.L. and instead fabricated a story that she had choked on a piece of pork. (Id. ¶ 14.) After Luong's attempts to revive N.L. were unsuccessful, Petitioner rushed her to the hospital. (Id.) Because Petitioner feared that J.L. would be taken from Burciaga if police discovered that he knowingly violated the no-contact order, he left J.L. in Luong's care when he took N.L. into the emergency room and later lied to investigators about his identity and the nature of his relationship with Burciaga. (Id. ¶¶ 15-16.)

Petitioner attests that he did not “sexually penetrate N.L.'s anus or have any other sexual contact with N.L” and that he does not know “what exactly caused” the injury to her anus. (Id. ¶ 9.) Petitioner admits that he lied about what had occurred to avoid being taken into custody for assaulting N.L. but that he had “no idea” that she had injured her anus. (Id. ¶ 18.) Petitioner attests that he did not tell medical staff or the police about the blood in N.L.'s stool because police did not inform him about the injury until sometime between 3:00 and 5:00 a.m. on March 9, 2008. (Id. ¶ 21.) Petitioner asserts that because he “never touched N.L. in any sexual way, ever, it must be that [his] physical contact with N.L. on March 8, 2008, exacerbated existing injuries caused by Ms. Burciaga's technique” for addressing N.L.'s constipation. (Id. ¶ 22.) Petitioner insists that “[t]here is no other way that [N.L.'s injury] could have occurred.” (Id.)

In addition, Petitioner asserts that the presence of his semen on N.L.'s dress “could not and did not prove that [he] ejaculated on March 8, 2008.” (Id. ¶ 24.) Rather, Petitioner attests that after the children went to sleep on March 7, 2008, he “ordered pornography on [his] television, masturbated, and then ejaculated into the nearest thing [he] could find-whatever was at the top of the laundry hamper.” (Id.) He then placed the item back in the hamper and forgot about it. (Id.) Petitioner states that the next day, he dressed J.L. and N.L. in dirty clothes from the hamper and “must have put N.L. in a dress that [he] had ejaculated on.” (Id.)

Finally, Petitioner asserts that the DNA evidence recovered from the purple dildo “is not at all consistent with the state's theory.” (Id. ¶ 25.) Specifically, Petitioner states that there was “no blood [and] no cells but epithelial cells” on the device, that epithelial cells easily are transferable by touch, and that “epithelial cells would be left if N.L. picked up the device, which she could have done, as the TV stand [where the device was kept] was easily accessible to her.” (Id.) Petitioner denies using the device for any purpose on March 8, 2008, and claims that because “N.L. was not the main contributor of DNA . . . the device does not corroborate the state's unlawful sexual penetration allegation.” (Id.)

b. Counts 5 and 6

With respect to Counts 5 and 6, which concerned J.L.'s missing strips of hair and the bruises to his chest, Petitioner claims that he lacked “a meaningful opportunity to have committed the offenses between January 1, 2008, and February 8, 2008.” (Pet'r's Br. at 83.) He again relies on his own declaration and presents the affidavits of four witnesses who did not testify at trial, all of whom appear to be family members or friends.

In his declaration, Petitioner states that he “was almost never alone with the children” during the period in which the injuries allegedly were inflicted. (Ros Decl. ¶ 33.) Specifically, Petitioner attests that between January 1 and February 1, 2008, he lived with Burciaga and the children at his parents' home on Nando Street; that “[m]any other adults . . . [often] were present”; and that contrary to Burciaga's testimony that she worked out of town each weekend, “she never left the state and was not working” from November 2007 to February 21, 2008. (Id. ¶¶ 33-34, 43.) Because he did not have opportunity to inflict the injuries at issue, Petitioner asserts that he is actually innocent of Counts 5 and 6. (Id. ¶ 43.)

In the Affidavit of Dino Ros, dated September 13, 2018, the affiant attests that he attended a birthday party with Petitioner, Burciaga, and the children on Saturday, January 19, 2008; that Petitioner and Burciaga were present “every time” he was at the Nando Street home; and that he “never saw anything unusual that would raise concerns for the welfare of [J.L.] and [N.L.]” (Pet'r's Ex. 104 at 16-17.)

In the Affidavit of Keo Ratha Ros, dated November 19, 2018, the affiant attests that he stayed at the Nando Street house in December 2007; that Petitioner, Burciaga, and the children were present during his stay; and that he did not see anything that would raise concerns about J.L. and N.L.'s welfare. (Id. at 18-19.)

In the Affidavit of Chhan Ros, dated July 31, 2015, the affiant (“Chhan”), attests that Petitioner, Burciaga, and the children moved into her home on Nando Street in September 2007. (Id. at 20.) Chhan states that Petitioner quit his job in late December 2007 to attend the winter term at Chemeketa Community College with Burciaga, who did not work during December 2007 or January 2008. (Id.) Chhan states that she recommended a friend to babysit N.L. and J.L. while Petitioner and Burciaga attended class. (Id.) Chhan attests that various people helped Petitioner and Burciaga move into the Beverly Street apartment on February 2 and 3, 2008. (Id. at 21.)

Finally, in the Affidavit of Siena Ngin, dated March 13, 2013, the affiant (“Ngin”) states that in November 2007, Chhan asked her to watch N.L. and J.L. while Petitioner and Burciaga attended school, to which she agreed. (Id. at 22.) Ngin attests that she babysat J.L. and N.L. for five hours every Tuesday and Thursday in January and February 2008 and never noticed “any suspicious marks or bruising” on either child during those months. (Id.)

iii. Analysis

Petitioner seeks to establish actual innocence with respect to four of the eight counts for which he was convicted by presenting new evidence that purportedly refutes the State's evidence and demonstrates that Petitioner lacked opportunity to commit some of the crimes with which he was charged. Petitioner not only asserts that this evidence is enough to pass through Schlup's actual innocence gateway, but also argues that it is enough to warrant his full exoneration of Counts 3 through 6.

At the outset, the Court notes that evidence supporting an actual innocence claim must be new and reliable. Petitioner's evidence consists of only his own declaration and the affidavits of family and friends. The Ninth Circuit has confirmed that “[d]eclarations are not a strong form of evidence because ‘the affiants' statements are obtained without the benefit of cross-examination and an opportunity to make credibility determinations.'” Garcia v. Evans, 670 Fed.Appx. 622, 623 (9th Cir. 2016) (quoting Herrera v. Collins, 506 U.S. 390, 417 (1993)); see also Cotton v. Schriro, 360 Fed.Appx. 779, 780 (9th Cir. 2009) (stating that affidavits obtained after trial without the benefit of cross-examination should be “treated with a fair degree of skepticism”). The reliability of the affidavits is further undermined by the affiants' familial ties with Petitioner. Cf. Pearce v. Ryan, No. CV-06-2841-PHX-SMM (JR), 2015 Wl 1517519, at *16 (D. Ariz. Mar. 31, 2015) (finding evidence submitted in support of an actual innocence claim unreliable where it consisted of the testimonies of two witnesses who both were friends with the petitioner and had criminal histories).

In addition, Petitioner's declaration and the various affidavits submitted here were prepared and executed years after trial, with little explanation for the delay. See Schlup, 513 U.S. at 332 (explaining that when considering evidence in support of an actual innocence claim, “the court may consider how the timing of the submission . . . bear[s] on the probable reliability of that evidence”); see also Herrera, 506 U.S. at 423 (O'Connor, J., concurring) (stating that affidavits “produced . . . in the 11th hour with no reasonable explanation for the nearly decadelong delay” are suspect). Such delay is particularly notable with respect to Petitioner's declaration, which recounts yet another version of the events immediately preceding N.L.'s hospitalization, and claims, for the first time, that Petitioner observed blood in N.L.'s diaper and apparent tenderness when wiping her in the days before her death. Although Petitioner states that he did not disclose these facts to medical personnel or police because he was unaware of N.L.'s anal-rectal injury, Petitioner learned of the injury within hours of N.L.'s death and provides no explanation as to why he waited to share this information until more than a decade later while embarking on his last effort to appeal his conviction.

More importantly, however, Petitioner's declaration offers little more than self-serving denials that he committed the crimes alleged in Counts 3 through 6, his own assessments of the strength of the State's evidence, and speculation as to alternative theories of the case. Indeed, Petitioner's “new evidence” primarily attempts to relitigate the evidence presented at trial, which is insufficient to establish actual innocence. See Pearce, 2015 WL 1517519, at *2 (confirming that a fundamental miscarriage of justice did not occur where the petitioner “merely relitigate[d] the evidence presented at trial”).

Petitioner's evidence thus falls far short of “evidence of innocence so strong that [the] [C]ourt cannot have confidence in the outcome of the trial[.]” Schlup, 513 U.S. at 329. Even if the Court set aside its reservations about the reliability of Petitioner's evidence, it at most might show that some doubt exists with respect to certain aspects of this case. That is not enough. See Downs v. Hoyt, 232 F.3d 1031, 1040 (9th Cir. 2000) (noting that “[i]t is not enough that the evidence [submitted in support of an actual innocence claim] shows the existence of a reasonable doubt”); see also Lorensten v. Hood, 223 F.3d 950, 954 (9th Cir. 2000) (explaining that a petitioner must demonstrate actual innocence “by a preponderance of the evidence, and he must show not just that the evidence against him was weak, but that it was so weak that ‘no reasonable juror' would have convicted”) (simplified); Coon v. Nooth, Case No. 2:15-CV-02125-MO, 2019 WL 1118545, at *10 (D. Or. Mar. 11, 2019) (holding that even if the petitioner could present “expert forensic testimony” establishing an alternative cause of the victim's death, “this would fall far short of establishing that no reasonable juror would have voted to convict him”). The Court therefore concludes that the proffered evidence, when considered with the evidence presented at trial, is not such that no reasonable juror would have found Petitioner guilty beyond a reasonable doubt. Accordingly, Petitioner has not established that he is actually innocent, and the district judge should not excuse the procedural default.

To the extent Petitioner seeks to assert a freestanding claim of actual innocence, the Supreme Court has yet to hold that such a claim is cognizable in a federal habeas proceeding. See McQuiggin, 569 U.S at 392 (acknowledging that the Supreme Court “[has] not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence”). The Ninth Circuit has opined that relief pursuant to a freestanding actual innocence claim “would be available, if at all, only in very narrow circumstances[,]” Gimenez v. Ochoa, 821 F.3d 1136, 1146 (9th Cir. 2016), and would require a petitioner to “go beyond demonstrating doubt about his guilt . . . [to] affirmatively prove that he is probably innocent.” Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014) (quoting Case Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997)); see also House, 547 U.S. at 555 (noting that Supreme Court precedent implies that a freestanding claim of actual innocence requires more convincing proof of innocence than Schlup). The petitioner's burden under this standard is “extraordinarily high” and requires a showing that is “truly persuasive.” Case Carriger, 132 F.3d at 476 (quoting Herrera, 506 U.S. at 417). Assuming that such a claim is cognizable, Petitioner's failure to establish a “gateway” claim of actual innocence necessarily means he has failed to meet the “extraordinarily high” standard required to establish a freestanding claim of actual innocence. Accordingly, the district judge should deny habeas relief as to Petitioner's freestanding actual innocence claim.

3. Summary

Subclaims (A)(vi), (C), (D)(iv), and (D)(v) of Petitioner's Sixth Claim for Relief are procedurally defaulted. As explained above, Petitioner has failed to demonstrate cause and prejudice or actual innocence to overcome the default. Accordingly, the district judge should not excuse the default and should deny habeas relief as to subclaims (A)(vi), (C), (D)(iv), and (D)(v) of the Sixth Claim for Relief. II. THE MERITS

Petitioner challenged several pretrial rulings on direct appeal, assigning as error (1) the trial court's denial of his motion to suppress his statements to the police as involuntary; (2) the trial court's denial of his request to remove a sign from the courthouse entrance acknowledging National Child Abuse Prevention Month; and (3) the trial court's denial of his motion to sever the counts related to N.L. from those related to J.L. (Resp't Ex. 103 at 8-9.) The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. (Resp't Exs. 106-07.) Having properly exhausted these claims on direct appeal, Petitioner argues that he is entitled to habeas relief because the trial court unreasonably applied clearly established federal law in denying each of his pretrial motions. (Pet'r's Br. at 27-59.) The Court disagrees. /// ///

A. Legal Standards

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) prohibits relitigation of any claim adjudicated on the merits in state court unless such adjudication 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) was “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 decision is “contrary to” clearly established federal law if it “applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases,” or if it “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). An “unreasonable application” of clearly established federal law occurs if the state court correctly identifies the governing legal principle but misapplies that principle to the facts at hand. See Id. at 407 (holding that “a state-court decision involves an unreasonable application of this Court's precedent if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case”). The “unreasonable application” clause requires the state court's decision to be more than merely erroneous or incorrect. See Id. at 411 (noting that “a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly”). Rather, the state court's application of clearly established federal law must be objectively unreasonable. See Id. at 409 (instructing that “a federal habeas court making the ‘unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable”).

“Clearly established Federal law” under the AEDPA “refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412; see also Thaler v. Haynes, 559 U.S. 43, 47 (2010) (noting that “[a] legal principle is ‘clearly established' within the meaning of [28 U.S.C. § 2254(d)(1)] only when it is embodied in a holding of [the Supreme] Court”). To be “clearly established,” a Supreme Court precedent must “‘squarely address[] the issue' in the case before the state court, or ‘establish[] a legal principle that clearly extends' to the case before the state court[.]” Andrews v. Davis, 798 F.3d 759, 773 (9th Cir. 2015) (citations omitted). If no “clearly established Federal law” governs the issue at bar, the federal habeas court “must defer to the state court's decision.” Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009).

“Determining whether a state court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning.” Harrington v. Richter, 562 U.S. 86, 98 (2011). Where a state court decision is issued without explanation, “the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Id. However, where, as here, the highest state court issues a decision on the merits unaccompanied by its reasons for the decision, a federal habeas court “should ‘look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale . . . [and] should then presume that the unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).

The AEDPA thus imposes “a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (simplified); see also White v. Wheeler, 577 U.S. 73, 76-77 (2015) (acknowledging that the “AEDPA, by setting forth necessary predicates before a state-court judgment may be set aside, erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court”) (simplified). “The petitioner carries the burden of proof.” Pinholster, 563 U.S. at 181.

B. Analysis

1. Second Claim for Relief and Fifth Claim for Relief, Subpart (A)

In his Second Claim for Relief, Petitioner asserts that his statements to police “were involuntary and obtained in violation of [his] rights as protected by the Fifth Amendment.” (Third Am. Pet. at 11.) Specifically, Petitioner asserts that he was “improperly deprived of his privilege against self-incrimination” when he made incriminating statements to police after being “deprived of appropriate food, restroom breaks, or other relief” during a lengthy and “coercive” interrogation. (Id.) Petitioner alleges that the trial court “failed to suppress . . . the unconstitutionally obtained statements” at trial. (Third Am. Pet. at 11-12.)

i. State-Court Proceedings Concerning the Motion to Suppress

Before trial, Petitioner moved to suppress his statements to police, arguing that they were not voluntary. The trial court held a hearing on the motion on January 12, 2009, at which several police officers testified for the State and Petitioner testified on his own behalf. (Tr. at 12291472.) In a letter opinion dated January 16, 2009, the trial court denied the motion to suppress, setting forth extensive findings of fact and conclusions of law. (Resp't Ex. 103 at 54-65.) The trial court concluded that Petitioner knowingly and voluntarily waived his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and that his subsequent statements to police were voluntarily given. (Resp't Ex. 103 at 62-65.)

At the suppression hearing, the testimonies of the State's witnesses paralleled their subsequent testimonies at trial. The trial court summarized the testimony received at the hearing, as follows:

At approximately 10:40 p.m. on March 8, 2008, Croll responded to Salem Hospital to investigate reports of suspicious injuries to a child, later identified as N.L. (Id. at 54.) Upon arrival, Croll viewed and photographed N.L.'s injuries and called his supervisor, Bales, for assistance. (Id. at 55.)

After Bales arrived, Petitioner agreed to speak with the officers in a private room nearby. (Id.) In the room, Croll read Petitioner his Miranda rights from a prepared card which “thoroughly covered the customary Miranda warnings.” (Id.) Petitioner stated that “he understood his rights and had no questions about them, and signed the card.” (Id.) When Petitioner asked why he was read his Miranda rights when he merely had brought N.L. to the hospital, Croll stated that “sometimes what looked like an accident turn[s] out not to be an accident.” (Id.) Petitioner indicated that he understood. (Id.) The trial court expressly found that Petitioner was aware that “when you are getting Miranda warnings, ‘you are in trouble' for something.” (Id.)

Petitioner told the officers that he was babysitting N.L. while her mother was in Las Vegas. (Id.) Petitioner claimed that N.L. had choked on a piece of food after he left the room to use the restroom, and that he found her unresponsive on the floor when he returned. (Id.) Petitioner stated that he attempted CPR and called a friend for advice before driving N.L. to the hospital from his residence on Nando Street, where he claimed the choking incident had occurred. (Id.) At some point during the interview, Petitioner spoke with someone on the phone in a language the officers “later learned was Cambodian” and, concerned that the conversation potentially could compromise their investigation, the officers took Petitioner's cell phone. (Id.)

A trauma nurse subsequently informed Bales “that it was obvious that [N.L.] had been sexually assaulted,” and the officers asked Petitioner if he would be willing to go to the police department for further interviews. (Id. at 55-56.) Petitioner agreed but asked for and was granted an opportunity to smoke before they left. (Id. at 56.) Petitioner was not handcuffed or formally detained at that time, but Croll and Bales both testified that Petitioner would not have been free to leave. (Id.)

They arrived at the station at approximately 11:40 p.m., roughly one hour after the officers first contacted Petitioner. (Id.) Petitioner requested and was permitted to use the restroom. (Id.) Croll then asked Petitioner if he would like anything to drink and provided coffee upon Petitioner's request. (Id.)

Knox arrived at the police station shortly after 11:30 p.m. (Id.) Croll briefed her on the information gathered at the hospital, including the name Petitioner had given-Kyle Ros-and the Nando Street address. (Id.) Just before she entered the interview room to speak with Petitioner, Knox learned that N.L. had died. (Id.)

Knox began her interview with Petitioner at approximately 12:30 a.m. on March 9, 2008. (Id.) Knox did not disclose N.L.'s death but instead told Petitioner that she wanted to find out “what had happened so that medical care could be provided and to see if [N.L.'s] injuries were preventable in the future.” (Id.) Petitioner largely repeated the story he gave to Croll and Bales but “did not mention calling anyone or anyone else being present.” (Id.) Petitioner also gave Knox the name Kyle Ros and told her that he lived at the Nando Street address. (Id.)

Knox stepped out of the interview room and through further investigation discovered Petitioner's true identity and current address. (Id. at 56-57.) After reminding Petitioner of the Miranda warnings Croll had given and confirming that Petitioner understood his rights and had no questions, Knox confronted Petitioner, who admitted to lying about his name. (Tr. at 1306-07; Resp't Ex. 103 at 57.) Petitioner claimed that he had lied because he had a no contact order “with the police.” (Id.) Petitioner still did not mention J.L. and denied having a romantic relationship with Burciaga. (Id.)

Knox again stepped out of the interview room and learned from another officer that Burciaga had a second child, J.L., who had been seen at Salem Hospital approximately one month earlier. (Id.) Petitioner told Knox that J.L. was at his parents' home on Nando Street and Knox dispatched officers to that address. (Id.) The officers did not find J.L. at the Nando Street address and learned that neither Petitioner nor the children had been there that night. (Id.)

After Knox told Petitioner that officers had not found J.L. at his parents' home, he admitted that he “temporarily” lived at the Beverly Street apartment and that the night's events had occurred there. (Id.) Petitioner insisted that J.L. should be at the house on Nando Street and asked about N.L. (Id.) Knox told Petitioner that she had not been to the hospital to check on N.L. and then “said something to the effect of ‘look, you've been lying to me, you need to come clean.'” (Id.) Petitioner agreed to tell Knox what happened. (Id.)

Petitioner again claimed that N.L. had choked on a piece of pork and explained that he had called his friend, Don, for help when N.L. began having difficulty breathing. (Id. at 57-58.) Petitioner told Knox that Don had come over and accompanied them to the hospital, and that he had given Don instructions to take J.L. to his parents' home on Nando Street. (Id. at 58.) Petitioner stated, however, that he did not know Don's last name or where he lived. (Id.)

Petitioner also told Knox that the children had not been sick or injured and “had been completely normal until he found [N.L.] on the floor.” (Id.) When Knox told Petitioner that it appeared someone had inserted something into N.L.'s anus that had caused significant damage, Petitioner “stated multiple times that he had not done anything sexual to [N.L.] . . . [and] that he was confident his DNA would not be found inside her.” (Id.)

Petitioner then agreed to make a recorded statement, which began at 4:50 a.m. (Resp't Ex. 103 at 58.) Between approximately 12:30 a.m., when Knox first began her interview with Petitioner, and 4:50 a.m., when the recorded statement began, Knox estimated that she was out of the interview room for approximately one-third to one-half of the time to check on the progress of the investigation and to issue instructions. (Id.) Knox instructed Petitioner to knock on the door if he needed anything while she was out of the room. (Id.) The trial court found that during this four-and-a-half-hour window, Petitioner had been allowed to smoke, had napped intermittently, and “[had] not asked for food or beverages, which would have been provided had he requested them.” (Id.)

At the beginning of the recorded statement, Knox reminded Petitioner of his Miranda rights and Petitioner stated that he understood and had no questions. (Id.) Petitioner told Knox that he had taken the children to the park, that they all had napped from about 4:30 to 6:00 p.m., and that he then had made dinner. (Id. at 58-59.) Petitioner repeated that he had found N.L. unresponsive after returning from the restroom and speculated that N.L. had sustained the injury to her anus by falling at the park or by falling on a dumbbell in his apartment. (Id. at 59.) Knox terminated the taped interview at 5:15 a.m. (Id.)

Soon thereafter, Petitioner asked what kind of evidence the police would use and Knox “informed [him] that, unfortunately, one of the forms of evidence would be an autopsy as [N.L.] had died.” (Id.) Petitioner put his hands on his face and stated, “No, I did not do this.” (Id.) Knox then briefly left the room and returned to find Petitioner asleep. (Id.) When Knox woke him and explained the next steps in the investigation, Petitioner asked to use the restroom. (Id.) Knox told Petitioner that she would find a male detective to escort him, but when she returned a short time later, Petitioner again had fallen asleep, and Knox did not disturb him. (Id.) The trial court noted that “[t]his would have been shortly after the taped interview ended at 5:15, and was the last police contact with [Petitioner] until approximately 10:00 AM.” (Id.) The trial court “[drew] the reasonable inference that [Petitioner] slept at least some of that time[.]” (Id.)

Police, meanwhile, located J.L. and discovered that he had numerous injuries that were not present when he was seen at the hospital approximately thirty days earlier. (Resp't Ex. 103 at 59-60.) At approximately 10:00 a.m., Williamson returned to the station and escorted Petitioner to the restroom. (Id. at 60.) When Williamson returned Petitioner to the interview room, Petitioner asked to speak with Knox. (Id.) Williamson told Petitioner that Knox was on the phone and that “he needed to tell the truth instead of all the stories about [N.L.'s injuries] happening while he was cooking.” (Id.) Petitioner asked whether Williamson wanted him to lie and say that he had kicked N.L. (Id.) After Williamson reiterated that he wanted Petitioner to be truthful, Petitioner admitted that he had kicked N.L. when she disobeyed a command. (Id.) At that point, Williamson asked Petitioner if he wanted a glass of water and Petitioner responded that he did. (Id.) Williamson retrieved the water and continued speaking with Petitioner, who then stated that he had kicked N.L. twice. (Id.) Williamson's second interview concluded at 10:30 a.m. (Id.)

Knox returned to interview Petitioner about J.L.'s injuries. (Id.) Knox could not remember when the interview began but the trial court noted that it “culminated with the second taped interview which began at 12:15 PM on [March] 9th.” (Id.) Knox again reminded Petitioner of his Miranda rights before he “admitted [to] hitting, punching, and slapping [J.L.] on various occasions, . . . sometimes out of anger or frustration when [J.L.] did not behave as [Petitioner] thought he should.” (Id.) The second recorded interview concluded at 12:35 p.m. (Id. at 61.) Knox then placed Petitioner under arrest for murder and sexual abuse, explained the charges against him, and arranged to have him transported to the jail. (Id.)

Shortly after his arrest, Petitioner asked to use the restroom. (Id.) Tallan escorted Petitioner to the restroom and then, at Petitioner's request, outside to smoke a cigarette. (Id.) Once outside, Petitioner stated that “he was more comfortable with one charge than the other” and asked Tallan if they could talk. (Id.) Tallan told Petitioner that it was his choice if they talked, and Petitioner asked if he could hire his own attorney instead of having an attorney appointed by the court. (Id.) Tallan told Petitioner that as far as he knew, Petitioner could retain his own attorney. (Id.) Tallan also reminded Petitioner of his right to an attorney and asked if he wanted an attorney present before they continued the conversation. (Id.) Petitioner declined, stating that “they could talk right there.” (Id.) Petitioner then denied that he “sexually penetrated” N.L. but admitted that he had kicked her twice, agreeing that the second kick “was maybe more like a stomp.” (Id.) Petitioner smoked two or three cigarettes before being transported to the jail. (Id.)

Petitioner's testimony largely tracked that of the State's witnesses with a few minor exceptions. Notably, Petitioner testified that he did not remember Croll reading the Miranda warnings, but acknowledged that his Miranda rights had been reviewed with him “in some form[,]” that he had understood those rights when he signed the card, and that he had known that he “did not have to talk if [he] did not want to.” (Tr. at 1452, 1458-59.) A short time later, however, Petitioner changed his testimony, stating that he had not understood that he did not have to talk to the officers because he did not remember reading the prepared card, nor did he remember Croll “going over it with [him].” (Id. at 1461.)

Based on the testimony received at the suppression hearing, the trial court made the following factual findings:

At no time were any promises of leniency (or anything else; e.g., food, restroom breaks) in exchange for statements made to the defendant. At no time were any threats of potential consequences or harm made to defendant if he refused to make statements. Defendant was not physically assaulted, threatened, or harmed in any way by police officers. No handcuffs or restraints were used until after defendant was actually placed under arrest. Defendant did not ask to terminate questioning, to speak to a lawyer, to sleep, or for food.

Defendant's testimony as to how events unfolded after he brought [N.L.] to the hospital differed in only a few minor details from that of the officers (for example, he testified that before he first went to the interview room at the hospital with Corporal Croll and Sgt. Bales he asked if they could go outside and talk so he could smoke and that this request was denied; Sgt. Bales and Cpl. Croll testified that defendant's first request to smoke was as they were leaving the hospital for the police station, and that they allowed this request.)

However, to the extent defendant's factual testimony differs from that of the officers, I find defendant's testimony not credible. Defendant gave the officers a false name upon his initial contact (which he admitted in his testimony at the hearing). He gave the officers shifting and implausible explanations for the children's injuries (I base this finding not only on the officers' testimony but on listening to his taped interviews). In testifying at the hearing he first admitted that he knew he did not have to talk to the officers and then contradicted himself, saying he did not know that he was not required to talk to the officers. His testimony at the hearing regarding when he had last eaten and slept prior to going to the hospital differed from what he had told the officers that night.

(Resp't Ex. 103 at 61.)

After considering several factors, the trial court concluded that Petitioner's statements were voluntary (Id. at 62.) Specifically, the trial court found that Petitioner's cell phone reasonably had been confiscated given the possibility that Petitioner, speaking in a language unknown to the officers, covertly could have been “asking confederates to destroy evidence or even to harm the [children's] mother” and did not appear to be using the phone to seek legal advice. (Id. at 63.) The trial court also found that Petitioner's lengthy detainment was offset by the fact that he “clearly was not under continuous interrogation[;]” that he had “napped several times, including a stretch where he may have slept as much as four to five hours[;]” that he had not asked to discontinue his conversations with police; and that he had not been subject to “threats promises, intimidation, or physical coercion.” (Id.) The trial court further found that the officers “would not have had any reason to think about offering [Petitioner] food before breakfast” because Petitioner told them that he had eaten around 9 p.m., shortly before his first contact with police. (Id. at 64.) The officers did, however, meet Petitioner's requests for cigarettes, coffee, bathroom breaks, and water, and told Petitioner to “knock on the door if he needed anything[,]” which apparently he did not. (Id.) The trial court thus concluded that Petitioner's statements were not the product of “coercive police activity” or “police overreaching” and therefore had been made voluntarily. (Id.)

The trial court further concluded that Petitioner had waived his Miranda rights, noting that Petitioner had been advised of his Miranda rights at the very beginning of his interview with police and subsequently reminded of those rights several times thereafter, including at the beginning of both taped statements. (Id. at 65.) The trial court also noted that Petitioner had initiated the conversations with Williamson, who advised Petitioner that it was his choice whether they talked, and Tallan, who reminded Petitioner of his right to an attorney and asked if he wanted an attorney present. (Id.) Despite these warnings, Petitioner declined to consult an attorney and elected to continue speaking with both officers. (Id.) The trial court thus determined that under the circumstances, Petitioner knowingly, intelligently, and voluntarily waived his Miranda rights. (Id.)

ii. Analysis

Petitioner contends that the trial court unreasonably applied federal law in denying his motion to suppress because “a totality of circumstances . . . rendered [his] statements [to police] involuntary” under the Fifth and Fourteenth Amendments.¹⁹ (Pet'r's Br. at 27, 34.) Specifically, Petitioner argues that he was advised of his Miranda rights too infrequently; that he was not provided adequate food, drink, opportunities to smoke, or restroom breaks during the fourteen hours he was detained; that his cell phone was confiscated; that he was deprived of sleep; and that the police engaged in deception by withholding that N.L. had died. (Id. at 28-32.) Given these circumstances, Petitioner argues that the trial court's decision to deny his motion to suppress his statements to Williamson, Knox, and Tallan was objectively unreasonable. (Id. at 32-34.)

19 Petitioner does not appear to challenge the trial court's conclusion that he knowingly and voluntarily waived his Miranda rights. This Court thus addresses the sufficiency of the Miranda warnings provided Petitioner only as relevant to the voluntariness inquiry.

The admissibility of a confession turns on whether it was voluntarily given. See Colombe v. Connecticut, 367 U.S. 568, 602 (1961) (explaining that the “test of voluntariness” governs whether a confession may be used against the accused). A confession is involuntary if “the defendant's will was overborne at the time he confessed” such that “the confession cannot be deemed ‘the product of rational intellect and a free will.'” Lynumn v. Illinois, 372 U.S. 528, 534 (1963) (citing Chambers v. Florida, 309 U.S. 227 (1940)). In determining the voluntariness of a confession, a court must consider the “totality of all the surrounding circumstances-both the characteristics of the accused and the details of the interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Factors to be considered include “the crucial element of police coercion; the length of the interrogation, its location, [and] its continuity; the defendant's maturity, education, physical condition, and mental health[;] . . . [and] the failure of police to advise the defendant of his rights to remain silent and to have counsel present during custodial interrogation.” Withrow v. Williams, 507 U.S. 680, 693-94 (1993) (citations omitted).

In the context of evaluating on federal habeas review a state court's determination as to the voluntariness of a confession, the Ninth Circuit recently noted that “the ‘totality of the circumstances' test for voluntariness as established by the Supreme Court is a fact-based analysis that inherently allows for a wide range of reasonable application.” Cook v. Kernan, 948 F.3d 952, 969 (9th Cir. 2020). The Ninth Circuit thus warned that “‘[a]pplying a general standard to a specific case can demand a substantial element of judgment,' [and therefore] federal courts must provide even ‘more leeway' under AEDPA in ‘evaluating whether a rule application was unreasonable . . . in case-by-case determinations.'” Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

Petitioner fails to demonstrate how the trial court's conclusion that his incriminating statements to Knox, Williamson, and Tallan were voluntary under the totality of the circumstances is “inconsistent with the holding in a prior decision of [the Supreme] Court.” Richter, 562 U.S. at 102. Indeed, several circumstances attendant to Petitioner's interrogation, when taken together, reasonably could support the trial court's voluntariness determination.

As an initial matter, the record makes clear that Petitioner was advised of and understood his Miranda rights when he first was contacted by police, and repeatedly was reminded of those rights over the course of his detainment. As Respondent points out, the Supreme Court has acknowledged that “giving [the Miranda] warnings and getting a waiver has generally produced a virtual ticket of admissibility[,]” Missouri v. Seibert, 542 U.S. 600, 608-09 (2004), and Petitioner does not dispute that he voluntarily waived his Miranda rights. Although Petitioner takes issue with the amount of time that elapsed between the initial Miranda warnings and the subsequent reminders, the timing of the various warnings given Petitioner cannot overcome his waiver. See Berghuis v. Thompkins, 560 U.S. 370, 386 (2010) (explaining that the petitioner's statement three hours after receiving a Miranda warning did not overcome a course of conduct indicative of waiver and that “[p]olice are not required to rewarn suspects from time to time”)

Furthermore, the trial court found, and the record confirms, that none of the circumstances Petitioner grieves here constitute coercive police activity. As noted, Petitioner was detained for approximately fourteen hours before his arrest, but he was not subject to continuous interrogation, he had ample breaks from questioning, and he was not handcuffed or physically restrained. Petitioner also was not physically harmed or threatened, nor was he promised anything in return for talking with the police. At various points, Petitioner was given water, coffee, smoke breaks and restroom breaks, and Petitioner was advised to knock on the door of the interview room if he needed anything. Although there was a significant delay before Petitioner was escorted to the restroom after his first recorded statement, the delay was because Petitioner was asleep and there is nothing in the record to suggest otherwise. Notably, Petitioner at no point asked to terminate questioning, to speak to a lawyer, to sleep, or for food, and he initiated two of the three conversations he now insists should have been suppressed. Given his previous conviction and the numerous lies he told police to avoid being taken into custody, Petitioner clearly had a sufficient understanding and “familiarity with the justice system” to appreciate the gravity of his situation.

In light of these circumstances, this Court cannot say that the trial court's determination that Petitioner's statements were voluntary fell outside the “wide range of reasonable application.” Cook, 948 F.3d at 969. Indeed, based on the record, no reasonable jurist would disagree that Petitioner's statements were voluntary. See Richter, 562 U.S. at 103 (explaining that in order to obtain habeas relief, a petitioner must demonstrate that the state-court ruling being presented in federal court was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement”). Accordingly, the trial court's denial of Petitioner's motion to suppress is entitled to deference, and the district judge should deny habeas relief as to the Second Claim for Relief and subpart (A) of the Fifth Claim for Relief.

3. Fifth Claim for Relief, Subpart (B)

In subpart (B) of his Fifth Claim for Relief, Petitioner asserts that the trial court “erroneously failed to sever the trial of Counts 1 through 4, which alleged crimes against victim N.L., from the trial of Counts 5 through 8, which alleged crimes against victim J.L.” (Third Am. Pet. at 16.) Petitioner alleges that the trial court's decision to proceed on joined counts “denied [his] due process right to a fair trial on the counts relating to J.L.” (Pet'r's Br. at 43.)

i. State Court Proceedings Concerning the Motion to Sever

Before trial, Petitioner moved to sever the counts relating to J.L. from the counts relating to N.L., arguing that “the evidence pertaining to one alleged victim is not relevant to any issues [concerning] the other alleged victim's counts” and that “try[ing] these matters together would be highly prejudicial.” (Resp't Ex. 103 at 37.)

At a hearing on the motion on January 12, 2009, the prosecutor argued that the counts properly were joined pursuant to Oregon Revised Statute (“ORS”) § 132.560 because they concerned “acts of the same or similar character[.]”²⁰ (Tr. at 1234.) The prosecutor noted that Count 4-Murder by Abuse-required the State to “prove that there was a pattern or practice of abuse or torture against either the victim of the murder charge, [N.L.], or any other child[,]” and therefore “the prior abuse of [J.L] would come in necessarily even if there were separate trials.” (Id. at 1235.) The prosecutor further noted that evidence of N.L's murder would also be admissible in separate trials “to show why police were conducting any investigation into the health and well-being of [J.L.]” (Id.) The prosecutor thus argued that joinder of the charges “comport[ed] with the legislative intent of economizing and not having two separate but virtually identical trials” and did not “substantially prejudice” Petitioner. (Id. at 1236.)

20 ORS 132.560(2) provides that the trial court may consolidate “two or more charging instruments” where they are: (A) Of the same or similar character; (B) Based on the same act or transaction; or (c) Based on two or more acts or transactions connected together or constituting parts of a common scheme or plan. However, “[i]f it appears, upon motion, that the state or defendant is substantially prejudiced by a joinder of offenses . . ., the court may order an election or separate trials of counts or provide whatever other relief justice requires.” OR. REV. STAT. § 132.560(3).

Petitioner's trial counsel acknowledged that “very similar evidence” would be presented in both cases if the trial court severed the charges. (Id. at 1237.) He argued, however, that trying the charges together in one trial improperly could deter Petitioner from testifying in his own defense and could prejudice the jury's consideration of the less serious charges concerning J.L. due to “the gravity” of the charges concerning N.L. (Id. at 1237-38.)

After considering the parties' arguments, the trial court denied Respondent's motion to sever, holding “that counts 1-6 and 7-10 of the indictment are properly joined and that denial of severance does not substantially prejudice [Petitioner].” (Id. at 1240; Resp't Ex. 104 at 40.)

ii. Analysis

Petitioner argues that the trial court's denial of his motion to sever “denied his due process right to a fair trial on the J.L. counts[.]” (Pet'r's Br. at 48.) Petitioner argues that the evidence of the horrific abuse suffered by N.L. unfairly tainted the “less compelling” evidence of abuse presented with respect to J.L., rendering the trial fundamentally unfair. (Pet'r's Br. at 48-50.) Petitioner fails, however, to demonstrate that the trial court's rejection of his motion to sever contradicted or unreasonably applied clearly established federal law as determined by the Supreme Court.

The Supreme Court stated in a footnote in United States v. Lane that “misjoinder [will] rise to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial.” 474 U.S. 438, 446 n.8 (1986). The Ninth Circuit has declared that this comment is non-controlling dicta. See Collins v. Runnels, 603 F.3d 1127, 1132 (9th Cir. 2010) (stating that the “language [in the footnote] . . . is dicta” because “no constitutional issue was before the Court”); see also Young v. Pliler, 273 Fed.Appx. 670, 672 n.1 (9th Cir. 2008) (noting that because “Lane considered only the effect of misjoinder under Federal Rule of Criminal Procedure 8, and expressly stated that no constitutional claim had been presented . . . [the] broad statement-found in a footnote without citation to any legal authority-that misjoinder could only rise to the level of a constitutional violation if it was so prejudicial as to violate due process, was probably dictum”).

The Supreme Court has made clear that “[t]he phrase ‘clearly established Federal law, as determined by the Supreme Court of the United States' . . . refers to the holdings, as opposed to the dicta, of [its] decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412 (emphasis added). “In other words, ‘clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).

The Supreme Court has never held that the improper joinder of charges violates the Constitution. See Lane, 474 U.S. at 446 n.8 (noting that “[i]mproper joinder does not, in itself, violate the Constitution”). As the Ninth Circuit recognized, the dicta in Lane “did not set forth [a] governing legal principle” to constitute clearly established federal law under the AEDPA. Collins, 603 F.3d at 1132; see also Martinez v. Yates, 585 Fed.Appx. 460, 460 (9th Cir. 2014) (noting that “[t]here is no clearly established Supreme Court precedent dictating when a trial in state court must be severed”) (citing Runningeagle v. Ryan, 686 F.3d 758, 774 (9th Cir. 2012)); see also Hollie v. Hedgpeth, 456 Fed.Appx. 685, 685 (9th Cir. 2011) (explaining that “[t]he Supreme Court has never held that a trial court's failure to provide separate trials on different charges implicates a defendant's right to due process”). In the absence of clearly established federal law, this Court cannot grant habeas relief. See Wright v. Van Patten, 552 U.S. 120, 126 (2008) (explaining that “it cannot be said that the state court unreasonably applied clearly established Federal law” when Supreme Court precedent “give[s] no clear answer to the question presented”). Accordingly, the trial court's denial of Petitioner's motion to sever is entitled to deference, and the district judge should deny habeas relief as to subpart (B) of the Fifth Claim for Relief.

2. Fifth Claim for Relief, Subpart (D)

In subpart (D) of his Fifth Claim for Relief, Petitioner asserts that the trial court violated his right to a fair trial when it “erroneously failed to require removal of a large display on the courthouse grounds regarding National Child Abuse Month.” (Third Am. Pet. at 17.) Petitioner asserts that the display, which presumably was seen by the jurors each day during his trial, was “inherently prejudicial” given the nature of the charges against him. (Id.)

i. State Court Proceedings Concerning the National Child Abuse Prevention Month Display

During a pretrial telephone conference on April 7, 2009, Petitioner's trial counsel raised concerns about a display in the northwest corner of the courthouse grounds. The display consisted of a sign reading “This is National Child Abuse Prevention Month” that was placed beneath a large tree that had numerous ribbons tied to its branches. (Tr. at 1180, 1215.) Trial counsel expressed his worry that, because the jurors would have to walk by it every day during trial, the display ultimately could “work some kind of an effect” on the jury's handling of the case. (Id. at 1215.)

Neither the prosecutor nor the trial court knew who sponsored or controlled the display. (Id. at 1216-19.) The trial court noted, however, that the issue at trial would be whether “the state [can] prove beyond a reasonable doubt that the defendant is guilty of these charges” and not whether child abuse is a “bad thing.” (Id. at 2019.) The trial court thus opined that any issues arising from the display reasonably could be addressed during voir dire by “inquiring very thoroughly of the jurors as to whether they are able to separate their feelings about child abuse from making [a] decision as to whether the case is proven.” (Id. at 1219-20.) The trial court nevertheless indicated that it would consider a “concrete proposal” as to what, if anything, should be done about the display, provided trial counsel could identify its owner. (Id. at 1219.)

Trial counsel suggested that the sign should be removed or concealed until after the jurors were seated each day and noted that he would consult with the sheriff's office to determine whether it controlled the display. (Tr. 1221-22.) The trial court also stated that it would investigate whether the jurors could enter the courthouse through a back or side entrance. (Id.) Although trial counsel believed that the only perfect solution was “getting rid of [the sign]” altogether, he emphasized that he was “not asking for that” and agreed to revisit the issue at a later date. (Id. at 1223-24.)

At a hearing on April 10, 2009, trial counsel renewed his argument that the jurors' repeated viewing of the National Child Abuse Prevention Month display would unfairly affect their deliberations. (Id. at 1180.) Trial counsel reiterated that he was not asking for the ribbons to be removed from the tree nor “the sign removed completely,” but merely requesting to “take the sign out of the visibility of the public arriving at the courthouse” until after the jury was seated each day. (Id. at 1181, 1183.) Trial counsel reported that he had discussed the issue with the sheriff, who had stated that the Marion County Sheriff's Office would comply with a court order to remove the sign for any amount of time specified in the order.²¹ (Id. at 1181-82.) The sheriff estimated that it would take two men ten minutes to disassemble the sign and ten minutes to reassemble the sign each day, which trial counsel felt would not be a “huge imposition.” (Id. at 1182.)

21 Although the Sheriff stated that his office would comply with an order to remove the sign, it still is unclear on the record who sponsored the display.

The prosecutor argued in response that the sign did not reference Petitioner's case and that it was unlikely the jury would convict someone of serious crimes like murder and sexual abuse “solely because of a sign sitting on a lawn[.]” (Tr. at 1184.) Echoing the trial court's previous comments, the prosecutor argued that neither side would be arguing in favor of child abuse at trial, and that the issue would be “whether [the State] can prove that the defendant committed the acts with which he is charged.” (Id. at 1185.)

After considering the parties' arguments, the trial court ruled, as follows:

Okay. Well, as I indicated to counsel, one thing -- in our previous discussions, one thing that occurred to the Court was that perhaps we could have the jurors enter through a different entrance. I did inquire into that, and indeed, the issue there is that, basically, any entrance that allows someone into the courthouse, those folks need to be screened for security purposes and we just do not have the staff available to screen that entrance for the amount of time that we would need to do that.

I am going to deny the motion to do anything about that sign. And again, this will repeat to some degree comments that I made earlier on the record. Certainly, nobody is going to be in favor of child abuse. This trial will be like many trials that involve allegations of acts that most people would condemn. And that is that it will be a trial in which the jury is to be reminded repeatedly and

certainly will be that the issue in this case is not how they feel about someone who has committed these acts but rather whether in this case the state can meet its burden of proving beyond a reasonable doubt that the defendant, in fact, committed the acts that are charged.

So certainly, the jury will be cautioned repeatedly that the state must prove its case beyond a reasonable doubt; that the defendant is presumed innocent unless and until the state meets that burden of proof; that they are to decide this case solely on the evidence that is received here in court, and the attorneys will have ample opportunity to inquire of the jurors during voir dire as to whether that sign has any influence on them.

From a practical standpoint, I would also point out that even if we removed that sign for a little bit in the morning, the jurors are going to be free to go out at lunch. So there's a possibility that they are going to see it there. I assume -- and I assume that this goes without stating but I'm going to state it nevertheless, that the state will not in any way be referring to that sign or suggesting to the jurors that one of those ribbons has anything to do with this case, or anything like that. I'm sure that won't occur.

(Id. at 1186-87.)

ii. Analysis

Petitioner argues that the trial court “committed reversible error” by failing to address during trial “the emotional and compelling” display recognizing National Child Abuse Prevention Month. (Pet'r's Br. at 40.) Petitioner claims that the “jarring” display “served as a call to action to jurors, reminding them at each break in the trial of a significant social problem and their ability-as jurors-to address it immediately.” (Id. at 41.) Petitioner thus argues that the display “invited the jury to base its verdict on impermissible factors” rather than the evidence adduced at trial and therefore should have been removed for the duration of trial. (Id.)

“The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment[,]” Estelle v. Williams, 425 U.S. 501, 503 (1976), and guarantees “that ‘one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.'” Holbrook v. Flynn, 475 U.S. 560, 567 (1986) (quoting Taylor v. Kentucky, 436 U.S. 478, 485 (1978)). Although a fair result ordinarily may be obtained “[w]hen defense counsel vigorously represents his client's interests and the trial judge assiduously works to impress jurors with the need to presume the defendant's innocence[,]” the Supreme Court has recognized that “certain practices pose such a threat to the ‘fairness of the factfinding process' that they must be subjected to ‘close judicial scrutiny.'” Flynn, 475 U.S. at 567-68 (quoting Williams, 425 U.S. at 503-04). An “inherently prejudicial practice”-such as requiring a defendant to appear before the jury in shackles, for example-“should be permitted only where justified by an essential state interest” specific to the trial. Flynn, 475 U.S. at 568-69.

Petitioner fails to establish that the trial court was objectively unreasonable in declining to require the removal of the sign acknowledging National Child Abuse Prevention Month during trial. As an initial matter and despite Petitioner's assertion to the contrary, the display was not an “inherently prejudicial practice” as contemplated by Williams and Flynn. In Williams, the Supreme Court noted the inherently prejudicial nature of compelling a defendant to appear at trial in prison-issued clothing, explaining that “the constant reminder of the accused's condition implicit in such distinctive, identifiable attire” likely would “be a continuing influence throughout the trial” and therefore presented “an unacceptable risk” of undercutting the presumption of innocence and encouraging the jury to consider “impermissible factors” in reaching its verdict. 425 U.S. at 505.

In contrast, the Supreme Court determined in Flynn that the “conspicuous . . . deployment of security personnel in a courtroom during trial”-to wit, four uniformed officers seated directly behind the defendant-is not an inherently prejudicial practice, explaining that “[w]hile shackling and prison clothes are unmistakable indications of the need to separate a defendant from the community at large, the presence of guards at a defendant's trial need not be interpreted as a sign that he is particularly dangerous or culpable.” 475 U.S. at 468-69. The primary difference between the practice of using identifiable security officers and other practices that are considered inherently prejudicial, the Flynn court explained, was the “a wider range of inferences that a juror might reasonably draw from the officers' presence.” Id. at 569.

Unlike the practices at issue in Williams and Flynn, the display acknowledging National Child Abuse Prevention Month had no tangible connection to Petitioner's trial. The display, which was located outside on the courthouse grounds and not inside the courtroom, did not reference Petitioner, his case, or his victims, nor did the parties mention or draw attention to the display at any point during the trial. Indeed, there is no evidence in the record that any of the jurors took note of the display on their way in or connected the straightforward acknowledgment of National Child Abuse Prevention Month to Petitioner and the charges against him. Because the display was not such that it had a “continuing influence” on the jury's perception of Petitioner like the prison clothes at issue in Williams, and in no way suggested that Petitioner was “particularly dangerous or culpable” as discussed in Flynn, the display was not inherently prejudicial.

The trial court reached a similar conclusion, finding that the sign acknowledging National Child Abuse Prevention Month would have little bearing on the issues presented at Petitioner's trial. The trial court noted, however, that as in other cases involving universally condemned conduct, it planned to repeatedly caution the jury that the State must prove its case beyond a reasonable doubt, that Petitioner is presumed innocent until that burden is met, and that the case must be decided based solely on the evidence received in court. The trial court also noted that the attorneys would have “ample opportunity” to explore the sign's impact on the attitudes of potential jurors during voir dire. The trial court reasonably concluded that in the absence of inherent prejudice, such measures, in combination with defense counsel's zealous advocacy, were sufficient to preserve Petitioner's due process rights at trial. See Flynn, 475 U.S. at 567-68 (explaining that under ordinary circumstances, a fair result may be obtained “[w]hen defense counsel vigorously represents his client's interests and the trial judge assiduously works to impress jurors with the need to presume the defendant's innocence”). For these reasons, the trial court's decision to leave the display intact was not objectively unreasonable and is entitled to deference. Accordingly, the district judge should deny habeas relief as to subpart (D) of Petitioner's Fifth Claim for Relief.

III. CUMULATIVE ERROR

In his Ninth Claim for Relief, Petitioner alleges that “[w]hile any one particular error may not, when viewed individually, require a grant of relief . . . the cumulative effect of the multiplicity of errors rendered his trial and sentencing proceedings fundamentally unfair, had a substantial and injurious impact on the adjudication of guilt and sentencing, and requires relief from his convictions and sentences.” (Third Am. Pet. at 27-28.)

In some cases, although no single trial error is sufficiently prejudicial to warrant reversal, the cumulative effect of several errors may still prejudice a petitioner so much that his conviction must be overturned. See Alcala v. Woodford, 334 F.3d 862, 893-95 (9th Cir. 2003) (reversing conviction where multiple constitutional errors hindered the petitioner's efforts to challenge every important element of proof offered by the prosecution). For the reasons set forth above, however, the court finds no constitutional error, let alone multiple errors. Where there is no single constitutional error, nothing can accumulate to the level of a constitutional violation. See Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011) (concluding that where “no error of constitutional magnitude occurred, no cumulative prejudice is possible”). Accordingly, the district judge should deny habeas relief as to Petitioner's Ninth Claim for Relief.

IV. UNARGUED CLAIMS

Petitioner does not argue the merits of the First, Third, Fourth, Seventh, Eighth, Twelfth, Thirteenth, or Fourteenth Claims for Relief, nor does he argue subparts (E)-(G) of the Fifth Claim for Relief or subparts (A)(i)-(v), (B), (D)(i)-(iii), (vii)-(viii), and (E) of the Sixth Claim for Relief. Petitioner thus has failed to sustain his burden of demonstrating entitlement to habeas relief on those claims. See 28 U.S.C. § 2248 (instructing that “[t]he allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true”); see also Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (recognizing that a habeas petitioner carries the burden of proving his case). Accordingly, the district judge should deny habeas relief as to Petitioner's First, Third, Fourth, Seventh, Eighth, Twelfth, Thirteenth, and Fourteenth Claims for Relief, and as to subparts (E)-(G) of the Fifth Claim for Relief and subparts (A)(i)-(v), (B), (D)(i)-(iii), (vii)-(viii), and (E) of the Sixth Claim for Relief.

CONCLUSION

For the reasons stated, the district judge should DISMISS the Third Amended Petition for Writ of Habeas Corpus (ECF No. 74), with prejudice, and decline to issue a Certificate of Appealability because Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).

SCHEDULING ORDER

The Court will refer its Findings and Recommendations to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due fourteen (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.

IT IS SO ORDERED.