Opinion
3:18-cv-02005-JE
05-24-2022
HOMER DAVID SARTIN, Petitioner, v. STATE OF OREGON, Respondent.
ANTHONY D. BORNSTEIN ASSISTANT FEDERAL PUBLIC DEFENDER ATTORNEY FOR PETITIONER ELLEN F. ROSENBLUM, ATTORNEY GENERAL SAMUEL A. KUBERNICK, ASSISTANT ATTORNEY GENERAL DEPARTMENT OF JUSTICE 1162 COURT STREET NE ATTORNEYS FOR RESPONDENT
ANTHONY D. BORNSTEIN
ASSISTANT FEDERAL PUBLIC DEFENDER
ATTORNEY FOR PETITIONER
ELLEN F. ROSENBLUM, ATTORNEY GENERAL
SAMUEL A. KUBERNICK, ASSISTANT ATTORNEY GENERAL
DEPARTMENT OF JUSTICE 1162 COURT STREET NE
ATTORNEYS FOR RESPONDENT
FINDINGS AND RECOMMENDATION
JOHN JELDERKS UNITED STATES MAGISTRATE JUDGE
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his Yamhill County convictions dated January 7, 2011. For the reasons that follow, the Amended Petition for Writ of Habeas Corpus (#7) should be denied.
BACKGROUND
On February 18, 2010, the Yamhill County Grand Jury indicted Petitioner on five counts of Sexual Abuse in the First Degree, two counts of Sexual Abuse in the Second Degree, one count of Rape in the Third Degree, and four misdemeanor counts of Invasion of Personal Privacy stemming from allegations of abuse by Petitioner's girlfriend's minor daughters, “M” (age 16) and “S” (age seven). Respondent's Exhibit 103. Petitioner proceeded to a jury trial where, in the absence of any physical evidence of abuse, the outcome largely turned on the credibility of the parties.
Prior to trial, the trial judge dismissed two counts of Sexual Abuse in the Second Degree and the count of Rape in the Third Degree on the State's motion. Trial Transcript, p. 13.
The jury acquitted Petitioner of the Sexual Abuse charges pertaining to M, but found him guilty of the misdemeanor Invasion of Personal Privacy charges. The jury also found Petitioner guilty of the two Sexual Abuse in the First Degree charges involving S. As a result, the trial court sentenced Petitioner to concurrent 75-month prison terms on the Sexual
The jury's guilty verdict on the Sexual Abuse counts as to S were non-unanimous, coming by a vote of 11-1. Trial Transcript, pp. 753-54.
Abuse convictions, and consecutive 60-day jail sentences on the Invasion of Privacy convictions.
Petitioner directly appealed, and the Oregon Court of Appeals remanded the case to the trial court to correct a sentencing error not relevant to this habeas corpus case but otherwise affirmed the trial court's decision. State v. Sartin, 248 Or.App. 748, 274 P.3d 259 (2012). Petitioner did not petition the Oregon Supreme Court for review.
Petitioner next filed for post-conviction relief (“PCR”) in Umatilla County where, among other claims, he alleged that trial counsel was ineffective for not objecting to testimony that amounted to impermissible vouching under Oregon law. The PCR court denied relief on all of Petitioner's claims. Respondent's Exhibit 133. The Oregon Court of Appeals affirmed the PCR court's decision in a written opinion, and the Oregon Supreme Court denied review. Sartin v. Taylor, 290 Or.App. 63, 414 P.3d 412, rev. denied, 363 Or. 283, 432 P.3d 1078 (2018).
On November 19, 2018, Petitioner filed this 28 U.S.C. § 2254 habeas corpus case and the Court appointed counsel to represent him. With the assistance of counsel, Petitioner argues that his trial attorney failed to adequately object to instances of implicit vouching. Respondent asks the Court to deny relief on the Amended Petition because: (1) Petitioner fails to sustain his burden of proof as to his unargued claims; (2) most of Petitioner's claims are procedurally defaulted and therefore ineligible for federal habeas corpus review; and (3) the state- courts denied Petitioner's argued claim in decisions that are not objectively unreasonable.
DISCUSSION
I. Standard of Review
An application for a writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court decision is "contrary to . . . clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant relief "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id at 413. The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. Id at 410. Twenty-eight U.S.C. § 2254(d) "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents. It goes no farther." Harrington v. Richter, 562 U.S. 86, 102 (2011).
Twenty-eight U.S.C. § 2254(d)(2) allows a petitioner to “challenge the substance of the state court's findings and attempt to show that those findings were not supported by substantial evidence in the state court record.” Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). A state court renders an unreasonable determination of the facts if it “plainly misapprehends or misstates the record in making its findings or where the state court has before it, yet apparently ignores, evidence that supports petitioner's claim.” Andrew v. Davis, 944 F.3d 1092, 1107 (9th Cir. 2019) (internal quotations omitted). A federal habeas court cannot overturn a state court decision on factual grounds “unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). This is a “‘daunting standard-one that will be satisfied in relatively few cases,' especially because we must be ‘particularly deferential to our state-court colleagues.'” Hernandez v. Holland, 750 F.3d 843, 857 (9th Cir. 2014) (quoting Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)).
II. Unargued Claims
In his Amended Petition, Petitioner raises various claims of ineffective assistance of both trial and appellate counsel, prosecutorial misconduct, insufficient evidence, actual innocence, and asserts that his conviction by a less-than-unanimous jury violates his rights to due process and equal protection of the laws. However, he limits his argument in this case to his Ground 1(A) claim that trial counsel was ineffective for failing to appropriately raise all available objections to vouching testimony. Petitioner does not argue the merits of his remaining claims, nor does he address Respondent's arguments as to why relief on these claims should be denied. As such, Petitioner has not carried his burden of proof with respect to these unargued claims. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (Petitioner bears the burden of proving his claims). Even if Petitioner had briefed the merits of these claims, I have examined them based upon the existing record and determined that they do not entitle him to relief.
III. Ineffective Assistance of Counsel - Vouching
It has long been the case that “in Oregon a witness ... may not give an opinion on whether he believes a witness is telling the truth.” State v. Middleton, 294 Or. 427, 657 P.2d 1215, 1221 (1983). More recently, the Oregon Supreme Court concluded that a medical diagnosis of sexual abuse in the absence of corresponding physical evidence of sexual abuse “does not tell the jury anything that it could not have determined on its own” such that the diagnosis is inadmissible under OEC 403 because its risk of prejudice outweighs the probative value of the diagnosis. State v. Southard, 347 Or. 127, 142218 P.3d 104 (2009). The following year, in State v. Lupoli, 348 Or. 346, 234 P.3d 117 (2010), the Oregon Supreme Court explicitly stated that an expert's diagnosis of child sexual abuse in the absence of supporting physical evidence constituted impermissible vouching because the testimony was “necessarily based on her assessment of the child's believability.” 348 Or. At 362-63.
In the wake of Southard and Lupoli, Petitioner began his trial proceedings. On November 24, 2010, the trial court judge conducted a preliminary hearing at which defense counsel moved to exclude any evidence that members of Juliet[te]'s House had diagnosed M and S as victims of sexual abuse. The prosecutor did not oppose the motion, and further stated that she did not intend to introduce evidence of the diagnoses or have the Juliette's House witnesses vouch for the credibility of the children. Trial Transcript, pp. 7-8. The judge therefore concluded that Petitioner's motions were moot.
Juliette's House is child abuse intervention center in Yamhill County that conducts forensic child interviews and provides medical and physical examinations. M and S disclosed sexual abuse during interviews conducted by Juliette's House personnel. Respondent's Exhibit 136, pp. 3-4.
Petitioner's case proceeded to trial on November 30, 2010. Among the evidence the State presented, it offered testimony from three workers associated with Juliette's House: (1) Caseworker Susan Dunfee testified that it appeared from statements S made during her evaluation that she had been coached to deny that any abuse had occurred; and (2) Nurse Practitioner Mary Montesano and Doctor John Sandberg both testified that their treatment recommendations included that M and S have no contact with Petitioner. Trial Transcript, pp. 309, 313, 500. Trial counsel unsuccessfully objected to Dunfee's testimony, but did not object to Nurse Montesano's or Dr. Sandberg's testimony regarding their treatment recommendations. Id at 271, 449.
The State also offered testimony from Julie Siepmann, a forensics interviewer and mental health therapist at Juliette's House, that whenever any child discloses abuse during an evaluation, she attempts to discern who the child identifies as the abuser in an effort to make sure the child is no longer in contact with that person. Trial Transcript, p. 246.
Approximately one year after the conclusion of Petitioner's trial, the Oregon Court of Appeals decided State v. Volynets-Vasylchenko, 246 Or.App. 632, 267 P.3d 206 (2011), holding “that a trial court plainly erred by admitting evidence that a nurse practitioner who evaluated a child had made treatment recommendations including that the child receive therapy from a therapist ‘skilled in working with children who have been victims of abuse.'” Respondent's Exhibit 136, p. 10. Petitioner primarily argues in this habeas corpus case that Volynets-Vasylchenko involved a straightforward application of Southard such that trial counsel was ineffective when she failed to object to the treatment recommendations of Montesano and Sandberg.
The Court uses the general two-part test established by the Supreme Court to determine whether Petitioner received ineffective assistance of counsel. Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). First, Petitioner must show that his counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 686-87 (1984). Due to the difficulties in evaluating counsel's performance, courts must indulge a strong presumption that the conduct falls within the "wide range of reasonable professional assistance." Id at 689.
Second, Petitioner must show that his counsel's performance prejudiced the defense. The appropriate test for prejudice is whether Petitioner can show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id at 694. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the trial. Id at 696. “The likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. 86, 112 (2011) (citing Strickland, 466 U.S. at 693). When Strickland's general standard is combined with the standard of review governing 28 U.S.C. § 2254 habeas corpus cases, the result is a "doubly deferential judicial review." Mirzayance, 556 U.S. at 122.
The Oregon Court of Appeals addressed Montesano's and Sandberg's testimony in a written opinion in which it concluded, “We do not agree that every trial lawyer exercising reasonable professional skill and judgment in late 2010 would have objected to the treatment-recommendation testimony that was admitted in this case on the ground that it constituted impermissible vouching.” Respondent's Exhibit 136, p. 14. It reasoned as follows:
Petitioner has not pointed to any appellate opinion issued before his late-2010 trial -and we are not aware of any - taking the Southard and Lupoli principles nearly as far as he argues his trial attorney should have taken them. Nothing about the treatment
recommendations in this case suggests that anyone at Juliet[te]'s House had diagnosed S or M as having been abused, and no opinion issued by the time of petitioner's trial would have suggested to every lawyer exercising reasonable professional skill and judgment that “no contact” treatment recommendations were inadmissible because they, like inadmissible diagnoses, “necessarily” were based on an assessment of the children's credibility. That is especially true in this case, given Siepmann's testimony suggesting that, when any child discloses abuse in a Juliet[te]'s House evaluation, Siepmann seeks to learn “who the child is identifying as the abuser” to ensure “the child is no longer having contact with that person.” One can conceive of many possible reasons to implement such a policy even before a determination has been made regarding whether the identified person in fact abused the child, including maintaining the investigation's integrity and protecting the child from further abuse if abuse has occurred. Particularly in light of that testimony, we are not persuaded that every lawyer exercising reasonable professional skill and judgment would have perceived the testimony about the “no contact” treatment recommendations in this case to necessarily be based on abuse diagnoses, to vouch for M's or S's credibility, and to therefore be objectionable.
Our opinion in Volynets-Vasylchenko does not change that analysis. The treatment recommendations on which we focused in that case more expressly related to an underlying diagnosis of abuse, specifically urging that the victim receive therapy with a therapist skilled in working with abuse victims. Neither Sandberg nor Montesano testified about that kind of recommendation, instead confining their testimony to the existence of “no contact” recommendations of a sort that Siepmann had suggested she made in
every case in which a child identified a purported abuser. Our holding in Volynets-Vasylchenko that far more suggestive treatment recommendations amounted to impermissible comments on credibility does not establish that every lawyer exercising reasonable professional skill and judgment in 2010, before our decision in that case, would have concluded that the treatment recommendations in this case were inadmissible.Id at 16-17 (italics in original, internal citations omitted).
Petitioner disagrees with the Oregon Court of Appeals' reasoning, and remains of the opinion that the testimony at issue was not materially distinguishable from that in Volynets-Vasylchenko. It is not the province of this habeas Court to disagree with the Oregon Court of Appeals' interpretation of Oregon state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[W]e reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."). Accordingly, not only was counsel not constitutionally obliged to anticipate the Oregon Court of Appeals' decision in Volynets-Vasylchenko, see Sophanthavong v. Palmateer, 378 F.3d 859, 870 (9th Cir. 2004), but where the testimony in Petitioner's case was qualitatively different than that at issue in Volynets-Vasylchenko, no objection was warranted even if one were to assume that counsel should have predicted the Volynets-Vasylchenko decision.
Petitioner also argues that counsel was ineffective for not objecting to Dunfee's testimony that S may have been coached to tell Juliette's House workers that no abuse had occurred.
However, as the Oregon Court of Appeals found, counsel did, in fact, object to this testimony. Respondent's Exhibit 136, p. 12 (“petitioner fails to acknowledge that his lawyer did object to the testimony at issue.”). It also determined that the trial judge had admitted the testimony “only for ‘a very limited purpose,' apparently to provide context about why DHS had removed the children from their mother's care.” Id. Where counsel could not have done more to exclude Dunfee's testimony, her performance did not fall below an objective standard of reasonableness.
Petitioner next argues that it was incumbent upon counsel to object to the trial court's admission of counseling records containing references to the children as sexual abuse victims in violation of Southard. Where the Oregon Court of Appeals did not address this issue in its written decision, this Court looks through to the PCR court's opinion as the last reasoned decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991). The PCR judge reasoned that “much of the ‘vouching' testimony came from either treatment or counseling records not considered inadmissible at the time of this trial” and found that “trial counsel did everything possible to preclude, or at least limit ‘vouching' testimony.” Respondent's Exhibit 133, p. 2. The finding that the counseling records were “not considered inadmissible” in Oregon is binding on this Court as a state court interpretation of state law. Where the counseling records were admissible, counsel's performance did not fall below an objective standard of reasonableness when she did not object to the records' admission.
Finally, counsel believes that the cumulative nature of the vouching necessitated a request for a mistrial or limiting instruction, and that the Oregon Court of Appeals' decision did not address the collective impact of the vouching testimony adduced at trial. As discussed above, much of what Petitioner characterizes as improper vouching was, in fact, permissible evidence in Oregon. This fact, coupled with counsel's diligent efforts to exclude impermissible vouching to the extent she could, lead me to conclude that counsel ably represented Petitioner such that he was not the victim of ineffective assistance of counsel. Petitioner has not established otherwise. For all of these reasons, Oregon's state-court decisions did not involve unreasonable applications of clearly established federal law, nor did they rest upon unreasonable factual determinations that would justify habeas corpus relief.
RECOMMENDATION
For the reasons identified above, the Amended Petition for Writ of Habeas Corpus (#7) should be denied and a judgment should be entered dismissing this case with prejudice. The Court should also decline to issue a Certificate of Appealability on the basis that Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2).
SCHEDULING ORDER
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 17 days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.