Opinion
6:20-cv-00806-JE
11-22-2021
BRUCE EDWARD WALDORF, Petitioner, v. JEFF PREMO, 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 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
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 Benton County conviction for Sexual Abuse in the First Degree. For the reasons that follow, the Petition for Writ of Habeas Corpus (#1) should be denied.
BACKGROUND
I borrow a brief recitation of the facts of this case from the Oregon Court of Appeals' Opinion denying Petitioner post-conviction relief (“PCR”):
The underlying allegations of sexual abuse arose from an incident involving petitioner and J, the 10-year-old friend of one of petitioner's granddaughters. Petitioner drove two of his granddaughters and J from Springfield to Corvallis to watch a high school basketball tournament. According to J, while she and petitioner were alone in the car after the tournament, he tickled her leg. He then moved his hand up her leg until the back of his thumb touched her vagina on the outside of her clothing. J told him to stop, moved his hand away, and got out of the car. Shortly thereafter, all three girls returned to the car, and petitioner drove them home.Waldorf v. Premo, 301 Or.App. 752, 753 (2019).
J reported the touching to her mother who, in turn, contacted the authorities. The Benton County Grand Jury indicted Petitioner on one count of Sexual Abuse in the First Degree. Respondent's Exhibit 102. Jeffery Martin was the lead detective assigned to the case, and he interviewed Petitioner about J's allegations and later testified about that interview at trial.
Petitioner would later claim that three portions of Martin's testimony constituted impermissible comments on Petitioner's credibility such that counsel should have objected and/or moved to strike the testimony. First, Detective Martin testified during the prosecutor's direct examination as to his interpretation of what Petitioner meant by his references to “touching” the victim:
Q. Now, Detective Martin, when he said that if he touched her he had no recall of it was he aware based on your conversation of what touch would mean in the context of that?
A. Yes. Yes.
Q. And what would that - what would touch have meant in the context of your conversation that day?
A. A sexually motivated touch.
Respondent's Exhibit, p. 128.
Another portion of Martin's testimony that is relevant to Petitioner's argued claims in this case is the following exchange which occurred during the State's direct examination:
Q. Did you ask him if he remembered any behavior that included touching [J] in any way during the drive up, down, or at the high school?
A. I did. I asked him if there was any possibility that he had touched her and he said that he might have tickled her and that it was possible he touched her leg, but then again told me he could not remember and had no recall of the incident.
Q. What did you ask him about then?
A. Well, I found it curious that he had very detailed recall of the car he drove up, the times that he drove out of Springfield, arriving in Corvallis, the events that led to him leaving, the events that led to him when he returned home and had a confrontation or a discussion with his wife to return, and would not have recall of an issue that in my opinion he would have remembered, like touching a ten-year-old girl's vagina.
Q. How did he respond to that?
A. He began - he agreed with me that most people would remember touching a ten-year-old girl's vagina for sexual purposes.
Q. Did he do anything else at that time?
A. Yeah, he put his head in his hands and started exclaiming “Oh, god” repetitively.Id. at 129-30.
When defense counsel cross-examined Martin, he sought to cast doubt on Martin's interpretation of Petitioner's statements and body language, suggesting that Petitioner was distraught over being falsely accused. Martin's responses were not helpful to the defense:
Q. So, I mean touch - a person can use touched to mean, you know, they touched somebody in the ordinary sense of touching or touched in a sexual manner?
* * * * *
A. I was not inside his mind but I was confident in watching him with his head buried in his hands saying “Oh, god. Oh, god” that he was well aware of what we were talking about.
Q. Alright. Well, are you aware of whether or not perhaps he was just worried about what was going to happen to him regardless of whether he'd done something wrong or not?
A. Well, if he'd done nothing wrong I found his behavior to be completely out of character.
Q. Well, have you, for example-don't you think that anybody who is accused of something like this would have reason to be scared and upset?
A. If I had done nothing wrong I would not-I would not be asking for forgiveness, I would not be bargaining, I would be telling you I did nothing wrong.Id. at 141-42.
The jury ultimately found Petitioner guilty of the charged offense, and the trial court sentenced him to 75 months in prison. Respondent's Exhibit 101. The Oregon Court of Appeals affirmed the trial court's decision without issuing a written opinion, and the Oregon Supreme Court denied review. State v. Waldorf, 259 Or.App. 306, 315 P.3d 447 (2013), rev. denied, 354 Or. 840, 326 P.3d 77 (2014).
Petitioner next filed his PCR Petition in Marion County where he alleged that his trial attorney was ineffective for failing to challenge what Petitioner perceived to be Detective Martin's improper comments on his credibility. Respondent's Exhibit 113, p. 6. The PCR court denied relief. Respondent's Exhibit 127. The Oregon Court of Appeals affirmed that denial in written decision, and the Oregon Supreme Court denied review.
Waldorf v. Premo, 301 Or.App. 572, 457 P.3d 298 (2019), rev. denied, 366 Or. 451, 464 P.3d 421 (2020).
Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on May 15, 2020, and I appointed the Federal Public Defender to represent him. With the assistance of appointed counsel, Petitioner argues that trial counsel was ineffective for failing to object to and move to strike Detective Martin's testimony outlined above on the basis that it contained improper comments on Petitioner's credibility. Respondent asks the Court to deny relief on this claim because the state-court decisions were 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's findings of fact are presumed correct, and Petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
A state court decision is "contrary to . . . clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the "unreasonable application" clause, a federal habeas court may grant relief "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. Id. at 410. Twenty-eight U.S.C. § 2254(d) "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents. It goes no farther." Harrington v. Richter, 562 U.S. 86, 102 (2011).
II. Unargued Claims
Petitioner provides argument in support of the portion of his Ground One claim that trial counsel should have challenged certain portions of Detective Martin's testimony. He does not, however, argue his additional claims of ineffective assistance of counsel and trial court error raised within Grounds One, Two, and Three of his Petition. In this respect, he 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 do not find from my review of the record that the unargued claims would entitle him to relief.
III. Failure to Object/Move to Strike Martin's Testimony
“[I]n 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). Due to this broad prohibition on witness vouching, Oregon's state courts “reject testimony from a witness about the credibility of another witness. . . .” Id. Petitioner argues that Detective Martin's testimony as outlined above constituted impermissible opinion evidence to which counsel should have objected or moved to strike. He claims that this was especially important in this particular case where there was no physical evidence of abuse such that the jury was left to render its verdict based upon the credibility of the parties. He reasons that where Martin's testimony amounted to a negative credibility assessment by a law enforcement officer presenting himself as having expertise in the area of criminal sexual abuse, that testimony was improper and likely swayed the jury's verdict.
The Court uses the general two-part test established by the Supreme Court to determine whether Petitioner received ineffective assistance of counsel. Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). First, Petitioner must show that his counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 686-87 (1984). Due to the difficulties in evaluating counsel's performance, courts must indulge a strong presumption that the conduct falls within the "wide range of reasonable professional assistance." Id. at 689.
Second, Petitioner must show that his counsel's performance prejudiced the defense. The appropriate test for prejudice is whether Petitioner can show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the trial. Id. at 696. When Strickland's general standard is combined with the standard of review governing 28 U.S.C. § 2254 habeas corpus cases, the result is a "doubly deferential judicial review." Mirzayance, 556 U.S. at 122.
Petitioner's challenge to Martin's testimony focuses on three allegedly impermissible comments upon Petitioner's credibility: (1) Martin's statement during direct examination that Petitioner's reference to touching meant sexual touching; (2) Martin's statement during direct examination that he “found it curious” that Petitioner recalled so many details about the day in question, but not the touching involving J; and (3) Martin's statement during cross-examination that if Petitioner had done nothing wrong, his behavior was “completely out of character” and that Martin, himself, would not seek forgiveness or bargain with the authorities if he were an innocent man.
A. Interpretation of Touching
Petitioner's contention that Detective Martin's testimony was objectionable necessarily requires that the testimony at issue be objectionable, i.e., inadmissible under Oregon law. The PCR court specifically determined that Detective Martin's “testimony about what ‘touching' meant in the conversation was admissible.” Respondent's Exhibit 127, p. 3. The Oregon Court of Appeals did not disagree, and “reject[ed] that aspect of petitioner's assignment of error without [] discussion.” Waldorf, 301 Or.App. at 574 n. 2. This Court cannot revisit that issue and must accept the admissibility determination made in Oregon's state courts. 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."). Given that Martin's statements pertaining to Petitioner's understanding of the nature of the touching were admissible under Oregon law, no objection was warranted such that counsel's performance did not fall below an objective standard of reasonableness.
B. Failure to Recall Touching
Similarly, the Oregon Court of Appeals definitively determined that Martin's comments on what he believed to be Petitioner's inconsistent recollections from the day in question were admissible in Oregon:
As noted, petitioner's argument is that, when Martin testified that he had told petitioner that he found it curious that petitioner could recall the day in detail
but had no memory of sexually touching J, Martin was “essentially telling the jury that petitioner was a liar who should not be believed.” We disagree. Although, in isolation, Martin's testimony may appear to express his distrust of petitioner, the context belies petitioner's contention that it was offered as evidence that he should not be believed. Rather, it was offered to provide context for Martin's testimony as to how petitioner had responded during his interview and thereby enable the jury to assess petitioner's credibility for itself. Thus, it was not objectionable.
Waldorf, 301 Or.App. at 580 (internal citation omitted).
The Oregon Court of Appeals concluded that this portion of Martin's testimony was not a comment on credibility forbidden by state law and, therefore, did not call for an objection. Again, a federal court adjudicating a habeas corpus case must accept state-court findings regarding matters of state law. See Mendez v. Small, 298 F.3d 1154, 1158 (9th Cir. 2002)("A state court has the last word on the interpretation of state law."), citing McSherry v. Block, 880 F.2d 1049, 1052 (9th Cir. 1989), cert. denied, 499 U.S. 943 (1991). Where Detective Martin's testimony regarding Petitioner's recollection of the day's events was admissible under Oregon law, counsel's performance did not fall below an objective standard of reasonableness when he did not object to this testimony.
The Oregon Court of Appeals also concluded that, even if it was wrong and the statement had been offered as a comment on Petitioner's credibility, there was uncertainty as to whether the prohibition on vouching applied to out of court statements such that counsel could not have reasonably been expected to object to the testimony at issue. Waldorf, 301 Or.App. at 580-81.
C. Martin's Characterization of Petitioner's Behavior and Statements
Finally, with respect to Detective Martin's statements during cross-examination that Petitioner's behavior during his interrogation was out of character for an innocent man, defense counsel attempted to elicit testimony from Martin to characterize that behavior in a different light. When Martin testified that Petitioner put his head in his hands while exclaiming “Oh, god, ” counsel attempted to establish that an innocent person accused of sexual abuse could reasonably be distraught by such an accusation. This was a legitimate line of questioning, but Martin's responses that an innocent person would respond differently than Petitioner did were not helpful to the defense. Petitioner casts those responses as impermissible comments on credibility such that counsel was obliged to object to them.
The Oregon Court of Appeals framed the issue as “whether all reasonable counsel would have objected or moved to strike once the witness gave an undesirable response to an appropriate question assuming that there were justifiable grounds for doing so.” Respondent's Exhibit 130, p. 7. “Put another way, given that questions that ‘backfire' are an inherent risk of even the soundest cross-examination, does it follow that the only reasonable response to an unexpected answer is to object or move to strike?” Respondent's Exhibit 130, p. 7. The appellate court was unable to resolve the issue due to Petitioner's failure to brief it:
Petitioner's briefing sheds no light on these questions. That is, it may well be that all reasonable counsel under the circumstances would have done as petitioner suggests-object or move to strike the offending response-but it is petitioner's burden to persuade us that that is the case. In our view, petitioner has not satisfied that burden. Petitioner's entire argument as to how he received inadequate assistance is that Martin's responses constituted vouching and that all reasonable counsel would have objected or moved to strike on those grounds. The difficulty we have in assessing that contention is that it is simply a conclusory statement, rather than a developed argument, and does not assist us in assessing whether, in this case, the failure to respond constituted inadequate assistance of counsel. Under the circumstances, we are left to develop petitioner's arguments for him, which we decline to do.Id.
As a factual matter, the Oregon Court of Appeals determined that Petitioner failed to present any developed argument as to this claim. This Court accepts this finding as true in the absence of clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1). Petitioner not only fails to identify any evidence of this nature, but also declines to address the basis upon which the Oregon Court of Appeals' rejected this claim. Where the Oregon Court of Appeals denied Petitioner's claim based upon his failure to provide adequate briefing to allow it to meaningfully consider the issue, he cannot establish that its decision unreasonably applied clearly established federal law. Relief on the Petition should therefore be denied.
RECOMMENDATION
For the reasons identified above, the Petition for Writ of Habeas Corpus (#1) should be denied and a judgment should be entered dismissing this case with prejudice. The Court should 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.