Opinion
2:18-cv-1226-JR
12-01-2020
DONALD WAYNE HAMILTON, Petitioner, v. BRAD CAIN, Respondent.
FINDINGS AND RECOMMENDATION
JOLIE A. RUSSO, UNITED STATES MAGISTRATE JUDGE
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his state-court convictions for Sexual Abuse and Sodomy. For the reasons that follow, the Amended Petition for Writ of Habeas Corpus (#22) should be denied.
BACKGROUND
In 2009, Sarah Duncan's neighbor introduced her to Petitioner, and Duncan began a romantic relationship with him. Approximately two weeks after meeting Duncan, Petitioner moved into her apartment where she resided with her seven-year-old daughter, LW. Trial Transcript, p. 79. Duncan worked two jobs, one of which required her to be away from the apartment during daytime hours on Tuesdays, Wednesdays, and Thursdays. On these days, Duncan left LW alone with Petitioner for a two-week period in June 2009. Id at 80.
At the end of June, LW told Duncan that she needed to talk with her privately. The two went for a drive together and LW disclosed that Petitioner “had got into the shower with her, that he had laid in [Duncan's] bed with her with a towel on and put her hand on his genitalia.” Id at 82. LW also referenced another incident where Petitioner had come to LW's bedroom and touched her, or asked to touch her, but LW “didn't really go into much detail.” Id at 84. Duncan drove directly to the police station. While Duncan and LW were still in the parking lot of the police station, Petitioner happened to call. When Duncan confronted him with LW's accusations and told him where she was, Petitioner “swore he didn't do it, ” came right over to the police station before Duncan spoke to the police and convinced her to return home to discuss the issue. Id at 82-83.
When the trio returned to the apartment, Petitioner insisted LW was fabricating her accusations because he had been too strict with her and LW wanted him out of the home. Duncan “didn'[t] want to believe that [she] had let this person into [her] home to harm [her] child.” Id at 86. She decided to speak with family members and LW's father about it and resolved not to leave her daughter home alone with Petitioner again. Id at 84.
Approximately one week later, Duncan reported LW's accusations to the police. Officer Sandy Koberstein interviewed LW, and LW described how after she had taken a bath and was lying in her mother's bed watching television, Petitioner directed her hand to his genitals. Id at 126. The day after that interview, Petitioner called Officer Koberstein, told her that he wanted to clear his name, and agreed to an interview with Detective Tabor. Id at 132-33.
On July 24, 2009, Petitioner sat down with Detective Tabor and submitted to a polygraph examination. Petitioner initially denied LW's accusations. When Detective Tabor informed him that the polygraph revealed he was not being truthful and pointed out an inconsistency in his story, Petitioner began to change his story:
Hamilton then said it might be possible that he was sleeping and accidentally let [LW] touch his penis. I asked him to explain how [LW] could have accidentally touched his penis. Hamilton said that he slept until around 11:00am or 12:00pm and that [LW] sometimes comes into the room and will lay with him while he is sleeping, Hamilton said he could have accidentally grabbed her hand and placed it on his crouch area. His penis might have fallen out of his boxers thus [LW] could have accidentally touched his penis.
Respondent's Exhibit 128, pp. 5-6.
When Detective Tabor told Petitioner, he did not find this account to be credible, Petitioner changed his story again. He stated that he remembered LW touching his penis, but claimed it was an accident. Id at 6. Soon thereafter, Petitioner “completely changed his story” and said that LW put her hand on his penis and stroked it for about one minute before Petitioner told her to stop and left the room. Id.
After further questioning, Petitioner admitted that he had, in fact, actually moved LW's hand to his penis. According to Petitioner's final version of his story:
Around 12:00pm he told [LW] to take a shower because she had not bathed in several days. After [LW] finished showering she came into the bedroom where he was watching television. [LW] laid next to him only wearing a towel. He was wearing boxer shorts that did have a small hole in the front but he wasn't sure if he took his penis out of this hole or the manufactured hole. He reached over and placed [LW's] hand on his penis and moved it for a couple of strokes. [LW] then started stroking his penis on her own. The sexual touching lasted approximately one minute and then he realized what he was doing was wrong. He got up and left the room.Id at 6. Detective Tabor recorded Petitioner's confession, and Petitioner wrote a letter to Duncan in which he apologized for what he had done and asked for forgiveness. Respondent's Exhibit 127.
The Douglas County Grand Jury initially indicted Petitioner on one count of Sexual Abuse in the First Degree. Subsequent to that indictment, LW disclosed that Petitioner had also kissed her vaginal area. As a result, the State dismissed the original case and re-indicted Petitioner on one count of Sexual Abuse in the First Degree and one count of Sodomy in the First Degree. Respondent's Exhibit 102; Trial Transcript, pp. 87-88.
Two days before Petitioner's trial was scheduled to begin, he sent a letter to the trial judge informing her that he desired a continuance so as to replace his appointed attorney with retained counsel. The judge addressed this request on the morning of trial, and asked Petitioner why he sought new counsel. Petitioner responded that he did not feel his appointed attorney was “really on my side and she's kind of I guess you would say mean.” Id at 2. Earlier that same morning, Petitioner informed defense counsel that he had located an attorney who would take his case provided he could come up with a $250 payment, which a friend had allegedly agreed to provide to Petitioner later that day. Id.
The trial judge denied the request for a continuance. In doing so, she noted that: (1) the trial had originally been set for September 24, 2009; (2) Petitioner had already received two continuances prior to the scheduled May 26, 2010 trial date; (3) Petitioner had been out of custody since October 15, 2009; and (4) Petitioner's appointed attorney “is a very good lawyer, she is thorough, she is competent and she will do an excellent job.” Trial Transcript, p. 5.
Petitioner's jury trial began that same day. LW testified about the incident when she was in a robe on her mother's bed, and Petitioner moved her hand to his penis. Id at 39-43. She also testified that there had been another incident where Petitioner “kissed [her] privates.” Id at 49.
During Duncan's direct examination, she vouched for the credibility of her daughter without objection from defense counsel. Specifically, when the prosecutor asked Duncan why she allowed approximately one week to pass between LW's initial disclosure and Duncan's filing of the police report, the following exchange ensued:
A: Because [LW], we had taught [LW] that when she - to tell people if something like this ever happened, somebody didn't believe her to keep telling it until somebody did. And that's exactly what she did. And she never changed her story. She never - I sat her down. I said, baby girl, I need to know this is the truth because this is important, and people go away for a long time for stuff like this and I need to know that I'm telling the truth.
And she promised me. She said, mommy, I promise you that this -- (witness upset)
Q: Can you tell when [LW]'s lying to you?
A: For the most part, yes. I mean she's my daughter.Id at 87.
Later, during the State's closing rebuttal argument, the prosecutor referenced truth and veracity with respect to LW several times without objection from defense counsel:
“She was very honest with you, wasn't she?” Id at 203.
“She's not making anything up.” Id at 204.
“These are very honest statements from a little seven-year-old girl.” Id at 205.
She is very honest with you. * * * This isn't about [LW] making up stories....She's telling you the truth.” Id at 206.
She's not making this up. There's no reason for her to make it up at that point. All she's doing at that point is being completely honest with us.” Id at 214.
“She is not lying. She is not making this up. This happened to her. She would not still be going through this. She would not still be willing to come in here and do what she did the other day if this was a lie, if she was just telling stories. This happened to her, she knows she needs to tell you, and she came in here and she . . . told the truth.” Id at 216.
Petitioner did not testify, and the defense did not present any evidence. Instead, it attempted to: (1) gain credibility with the jury by not contesting the Sexual Abuse charge where Petitioner had confessed to that conduct in his interview with Detective Tabor; (2) demonstrate that LW had been inconsistent and untruthful regarding her accusations which were otherwise uncorroborated, including a prior allegation of sexual abuse as to Duncan's father; and (3) argue that the State failed to establish beyond a reasonable doubt that Petitioner committed the more serious crime of Sodomy which carried a 300-month mandatory minimum, as opposed to the month mandatory minimum associated with the Sexual Abuse charge. The jury, however, unanimously convicted Petitioner on both counts and the trial judge sentenced him to concurrent prison sentences of 75 and 300 months, respectively. Respondent's Exhibit 101, pp. 5-7.
Petitioner's appointed attorney filed a post-trial motion requesting a new trial on two grounds. First, she claimed that the denial of the continuance on the day of trial prevented Petitioner from hiring the attorney of his choice. She also asserted that approximately ten minutes after the judge read the verdict, an unidentified juror approach Petitioner's ex-wife and her mother in the parking lot of the courthouse. The juror was in tears “and said that she was sorry and stated that they didn't have much proof of anything, and to tell him that she was sorry and to take care of himself. She felt that the jury had acted very hastily.” Respondent's Exhibit 103, pp. 272. The trial court found insufficient evidence to justify a new trial. Id at 279-80.
Petitioner took a direct appeal where, with the assistance of counsel, he alleged that the trial court erred when it denied his motion for a continuance and prevented him from obtaining new counsel of his choice. Respondent's Exhibit 104. The Oregon Court of Appeals affirmed the trial court's decision without a written opinion, and the Oregon Supreme Court denied review. State v. Hamilton, 256 Or.App. 761, 302 P.3d 1218, rev. denied, 354 Or. 490, 317 P.3d 255 (2013).
Petitioner also filed a supplemental pro se brief, but the issues within it are not germane to this habeas case. Respondent's Exhibit 106.
Petitioner then filed for post-conviction relief (“PCR”) in Malheur County where he alleged that trial counsel had been ineffective in several particulars. The PCR court denied relief in a written decision. Respondent's Exhibit 130. During his PCR appeal, Petitioner narrowed his claims to assert that counsel had been ineffective when she failed to object to Duncan's vouching testimony and to vouching statements by the prosecutor during the State's closing rebuttal argument. Respondent's Exhibit 131. The Oregon Court of Appeals affirmed the PCR court's decision without opinion, and the Oregon Supreme Court denied review. Hamilton v. Nooth, 288 Or.App. 702406 P.3d 238 (2017), rev. denied, 362 Or. 699, 416 P.3d 1090 (2018).
Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on July 10, 2018. Two days later, this Court appointed counsel to represent him. With the assistance of appointed counsel, Petitioner filed an Amended Petition containing seven grounds for relief. Respondent asks the Court to deny relief on the Amended Petition because: (1) Petitioner has not met his burden with respect to his unargued claims; (2) Grounds 3(B) and 3(I), although argued, are procedurally defaulted; and (3) Oregon's state courts reasonably denied relief on Grounds 1, 3(D), and 3(F).
DISCUSSION
I. Unargued Claims
In his supporting memoranda, Petitioner argues six claims: (1) the trial court erred when it refused Petitioner the time he needed to retain counsel of his choice (Ground 1); (2) trial counsel failed to seek to exclude Petitioner's confession (Ground 3(B)); (3) trial counsel failed to object to Duncan's vouching testimony (Ground 3(D)); (4) trial counsel failed to object to the prosecutor's statements during rebuttal (Ground 3(F)); (5) trial counsel abandoned Petitioner when she failed to contest the Sexual Abuse charge during closing argument (Ground 3(I)); and (6) Petitioner is actually innocent of his crimes (Ground 7). Where Petitioner does not support his remaining claims with argument, he has not carried his burden of proof with respect to those 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, my review of the record indicates that the unargued claims would not entitle Petitioner to relief.
II. Exhaustion and Procedural Default
Respondent asserts that Petitioner failed to fairly present Grounds 3(B) and 3(I) to Oregon's state courts, leaving them procedurally defaulted. A habeas petitioner must exhaust his claims by fairly presenting them to the state's highest court, either through a direct appeal or collateral proceedings, before a federal court will consider the merits of those claims. Rose v. Lundy, 455 U.S. 509, 519 (1982). "As a general rule, 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 'affording the state courts a meaningful opportunity to consider allegations of legal error.'" Casey v. Moore, 386 F.3d 896, 915-916 (9th Cir. 2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 257, (1986)).
If a habeas litigant failed to present his claims to the state courts in a procedural context in which the merits of the claims were actually considered, the claims have not been fairly presented to the state courts and are therefore not eligible for federal habeas corpus review. Edwards v. Carpenter, 529 U.S. 446, 453 (2000); Castille v. Peoples, 489 U.S. 346, 351 (1989). 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. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). If a petitioner has procedurally defaulted a claim in state court, a federal court will not review the claim unless the petitioner shows "cause and prejudice" for the failure to present the constitutional issue to the state court or makes a colorable showing of actual innocence. Gray v. Netherland, 518 U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992); Murray v. Carrier, 477 U.S. 478, 485 (1986).
As to Ground 3(B), Petitioner alleges that counsel was ineffective for failing to move to suppress Petitioner's confession to Detective Tabor. Regarding Ground 3(I), he asserts that counsel abandoned him by essentially conceding guilt as to the Sexual Abuse charge. Although Petitioner raised both of these claims to the PCR court, he failed to raise them during his PCR appeal. Respondent's Exhibits 112, 131, 133. Because the time for appealing the PCR court's decision as to these claims passed long ago, Grounds 3(B) and 3(I) are procedurally defaulted.
III. Actual Innocence
Petitioner asks the Court to excuse his procedural default of Grounds 3(B) and 3(I) on the basis that he is actually innocent. In Schlup v. Delo, 513 U.S. 298 (1995), the Supreme Court addressed the process by which state prisoners may prove "actual innocence" so as to excuse a procedural default. The Court explained that in order to be credible, a claim of actual innocence "requires petitioner to support his allegations of constitutional error 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; Downs v. Hoyt, 232 F.3d 1031, 1040 (9th Cir. 2000), cert. denied, 121 S.Ct. 1665 (2001). Ultimately, petitioner must prove that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. Schlup, 513 U.S. at 327; Bousley v. United States, 523 U.S. 614, 623 (1998); Downs, 232 F.3d at 1040. In making this determination, this court "must assess the probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial." Schlup, 513 U.S. at 332.
As new evidence of his innocence, Petitioner submits four recordings of telephone conversations involving LW's father, Keith Woodring, who was incarcerated at the time LW initially accused Petitioner of abusing her. The conversations are between Woodring and each of the following: Duncan, LW's grandmother, and LW's aunt. Petitioner claims that the calls demonstrate that LW was known for making up stories when she did not get her way and that the people closest to her did not believe the allegation when she made it. Petitioner contends that the calls illustrate:
• LW had made sexual allegations against people with whom she was angry or perceived as disciplinarians
• LW described Petitioner as “strict” or “not nice” because he placed her on a diet, would not let her play outside when she wanted, and made her life “not perfect”
• LW alleged that her grandfather (Duncan's father), another strict man, had also sexually abused her
• LW's grandmother, mother, and aunt did not initially believe the accusations because LW was known for storytelling, and enjoyed the attention she received in the aftermath of her allegations against Petitioner
• LW had been “overexposed” to sexual content, including getting on adult websites, watching Sex and the City, being unusually curious for a seven-year-old, and talking about sex with other children in her neighborhood
• Duncan initially believed LW's disclosure was an attempt to have Duncan leave Petitioner and reunite with LW's natural father
• LW had heard Duncan and Petitioner having intercourse several times and told her mother she wanted it to stop
• LW told Petitioner that she and her natural father took showers together, and asked him to do the same
Petitioner's Exhibit's A-D; Respondent's Exhibits 137-140.
The State first asserts that because Petitioner did not develop the factual basis for his actual innocence argument in state court, this Court cannot consider it. A habeas court's review of a claim presented in state court is generally limited to the record before it. “If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state court." Cullen v. Pinholster, 563 U.S. 170, 185 (2011); see also Gulbrandson v. Ryan, 738 F.3d 976, 994 n. 6 (9th Cir. 2013), cert. denied, 134 S.Ct. 2823 (2014) (applying this limitation to § 2254(d)(2) as well). This limitation extends from the notion that a federal court should not find a state court's decision unreasonable based upon evidence the state court never heard. By contrast, where a habeas petitioner is attempting to establish his actual innocence to overcome a procedural default, no such limitation applies. See, e.g., Schlup, 513 U.S. at 328 (in assessing actual innocence, federal courts may even consider evidence that was affirmatively excluded at trial). In this respect, the Court is not barred from considering Petitioner's claim of innocence to excuse his procedural default.
Respondent also argues that the calls do not constitute new evidence because trial counsel presented the substance of them to the jury. He demonstrates that trial counsel was able to elicit the following during her cross-examination of Duncan based upon the phone calls: LW made up stories, Duncan was unsure as to whether LW was being truthful about the accusations, LW changed her story and Duncan initially doubted the abuse had occurred, LW was angry with Petitioner because he was very strict, Duncan believed LW's biological father bathed with LW when she was too old, LW did not like Petitioner and Duncan having sex, LW had been highly exposed to sex through TV and walking in on Petitioner and Duncan having sex, LW had searched for a band called “Naked Brothers” on the internet which led to graphic results, Duncan wondered if the allegations stemmed from LW wanting her to be with Woodring, LW had made a similar accusation against her strict grandfather, and LW had returned from a trip with “stories about scratches on her pee-pee” demonstrating to Duncan “a pattern when she's angry at somebody.” Trial Transcript, pp. 91-100, 114-16.
Although counsel also attempted to elicit that LW had watched Sex and the City, Duncan testified that LW had never seen the show and had only read the cover of the DVD case containing the discs. Trial Transcript, p. 116.
Where trial counsel was able to adduce the foregoing during trial, much of the evidence Petitioner submits is not “new” evidence eligible to support his claim of innocence. In addition, the jury unanimously convicted him on both counts despite hearing this evidence, making it difficult for him to rely on it to establish that no reasonable juror would have convicted him in light of the evidence.
Although Petitioner also contends that his interview with Detective Tabor was coercive in nature and must be put into its proper context given the pressure he felt in that interview, the fact remains that Petitioner confessed to putting LW's hand on his bare penis. When his confession to sexually abusing LW is considered with his shifting stories to Detective Tabor and his written letter of apology to Duncan, Petitioner has not shown that no reasonable juror would have voted to convict him in light of his new evidence. Accordingly, he is unable to excuse his procedural default as to Grounds 3(B) and 3(I).
Because petitioner is not able to pass through the Schlup gateway of actual innocence so as to excuse his procedural default, he is unable to meet the more demanding showing required by Herrera v. Collins, 506 U.S. 390, 417 (1993) for the freestanding claim of innocence he raises in Ground 7 of the Amended Petition. House v. Bell, 547 U.S. 518, 555 (2006) (Herrera requires more convincing proof of innocence than Schlup).
III. The Merits
A. 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 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)).
B. Ground One: Denial of Continuance
Petitioner asserts that the judge's denial of a continuance on the morning of trial deprived him of his fundamental right to the attorney of his choosing. The Supreme Court has determined that a state court must provide competent counsel to an indigent defendant in a trial for any serious crime. Gideon v. Wainwright, 372 U.S. 335 (1963). A criminal defendant who is financially able to afford his own attorney has the right to choose his own lawyer. United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006). With respect to attorney-client relationships, the Court has held that the right to counsel does not carry with it a guarantee of a "meaningful relationship." Morris v. Slappy, 461 U.S. 1, 13-14 (1983). "[W]hile the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." Wheat v. United States, 486 U.S. 153, 159 (1988). “[O]nly an unreasonable and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay violates the right to the assistance of counsel.” Slappy, 461 U.S. at 11-12 (internal quotation omitted).
Petitioner asserts that the trial court insisted upon expeditiousness and chose to deny his requested continuance based solely upon the capability of appointed counsel without considering Petitioner's right to counsel of his choosing. He maintains that the quality of counsel was an irrelevant consideration, especially where he had already selected counsel whom he could have retained later that day. He concludes that where there was no public interest at stake or prejudice to the State in allowing a continuance, the trial court's decision involved an unreasonable determination of the facts and also ran afoul of clearly established federal law.
Petitioner's request for a continuance and to release counsel raised two issues: (1) would the trial judge agree to further delay the case to allow Petitioner to retain a new attorney; and (2) if not, where Petitioner complained that his appointed attorney was “mean” and not on his side, could the case still proceed to trial that morning with the same attorney. The judge implicitly took these issues in turn. She first pointed out that the defense had already requested, and been granted, two prior continuances that delayed the trial from September 24, 2009 to May 26, 2010. She then noted that Petitioner had been out of custody since he posted $5,000 bail on October 15, 2009, implying that he had more than seven months to secure counsel of his choosing if he wished to do so. Trial Transcript, p. 5. It was only at this point, after appearing unreceptive to a third continuance, that the judge found that Petitioner enjoyed representation from a competent appointed attorney and that the case would proceed that day. Id.
Although Petitioner had been able to post $5,000 bail more than seven months before trial, he claimed that he was unable to produce the $250 required by the private attorney he identified and hoped to receive those funds from a friend.
None of the trial court's factual findings were unreasonable, and its decision to deny a continuance under these facts did not amount to an unreasonable insistence on expeditiousness in the face of a justifiable request for delay. This is especially true where Petitioner still did not have the funds to retain counsel on the morning of trial but was hoping that a friend would send him the necessary funds to do so later that day (after his trial was scheduled to begin). Id at 6. Petitioner put the trial judge in a difficult position when he claimed for the first time on the eve of trial, and after two continuances, that he wished to retain an attorney whom he still could not afford. No Supreme Court precedent required the judge to further delay Petitioner's trial under these circumstances. Accordingly, the state court decision denying relief did not involve an unreasonable determination of the facts, nor was it either contrary to, or an unreasonable application of, clearly established federal law.
C. Ground 3(D): Vouching by Duncan
Petitioner next asserts that he was the victim of ineffective assistance of trial counsel when his attorney failed to object to Duncan's testimony that improperly vouched for LW's credibility. 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.
The PCR court found that Duncan's testimony (previously identified in the Background section of this Findings and Recommendation) was, in fact, impermissible vouching under Oregon law. Although the PCR court determined that counsel should have objected to Duncan's vouching testimony, it also determined that Petitioner suffered no prejudice as a result:
In this case, the victim not only testified about what happened, but the Petitioner had confessed to at least the Sex Abuse charge and had written a letter of apology. Mother's comments about believing LW related to a time before LW made any disclosure related to the Sodomy charge. There is no reason to find that the vouching, which only related to the Sex Abuse charge had any tendency to [a]ffect the outcome of the trial. In fact, the evidence was so overwhelming regarding the Sex Abuse charge that Petitioner's trial attorney did not actively contest it, choosing to focus on defending against the Sodomy charge. In addition, given the series of events, the jurors would not have been surprised to hear that Mother believed LW was telling the truth when she reported to the police. Thus, Petitioner has failed to prove his first claim.
Respondent's Exhibit 130, pp. 3-4.
Petitioner argues that the PCR court's finding of no prejudice amounts to an unreasonable application of clearly established federal law. He relies on several facts to arrive at this conclusion: (1) there was no physical evidence of abuse in this case; (2) the entire case rested on LW's testimony and Petitioner's confession to only one of the two charges; (3) the State's only evidence in support of the Sodomy charge was LW's testimony; and (4) by the single question the jury asked the trial court during deliberations, the jury was focused on the absence of a confession to the Sodomy charge. He therefore reasons that when Duncan improperly bolstered LW's credibility, it necessarily resulted in prejudice on the Sodomy charge.
During its deliberations, the jury asked: “Why wasn't the Defendant interviewed a second time after [LW] disclosed the second incident. Sodomy?” Trial Transcript, p. 226. The court responded: “You may only consider the evidence that has been presented.” Id.
Duncan's vouching occurred in the context of her explanation as to her one-week delay in filing a police report. When the prosecutor asked why it took her so long, she responded that she wanted to be sure her daughter was telling the truth and that, as LW's mother, she could tell when her daughter was telling the truth. During this time frame, the only allegations LW made pertained to the conduct underlying Petitioner's Sexual Abuse charges; she had not made any accusations that would lead to the Sodomy charge. In this respect, Duncan vouched only for the veracity of LW's allegations as they pertained to the Sexual Abuse charge. Where Petitioner confessed to this conduct, he suffered no prejudice from the vouching.
In addition, the fact that Duncan believed her daughter's accusations would not have come as a surprise to the jury where Duncan not only testified that she refused to allow Petitioner to stay alone with LW following the disclosure of abuse, but also took LW to the police station to file an official report leading to Petitioner's prosecution. For all of these reasons, Duncan's vouching testimony had minimal, if any, impact on Petitioner's trial such that the PCR court's decision is a reasonable one. At a minimum, it is not so unreasonable that no fairminded jurist could agree with it. See Richter, 562 U.S. at 102.
D. Ground 3(F): Prosecutor's Rebuttal
As Ground 3(F), Petitioner alleges that the State's closing rebuttal argument improperly vouched for LW's credibility such that trial counsel was ineffective for failing to object. There are two basic types of improper prosecutorial vouching: (1) the prosecutor's personal assurances of the witness' veracity; and (2) the prosecutor's suggestion that evidence not presented to the jury establishes the credibility of a witness. Draper v. Rosario, 836 F.3d 1072, 1083 (9th Cir. 2016); see also State v. Parker, 235 Or. 366, 377-78, 384 P.2d 986 (1963). The ultimate question is whether the prosecutor's comments so infected “the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986).
The PCR court denied relief on this claim, finding that the prosecutor's statements did not amount to improper vouching:
Petitioner failed to prove his claim that his attorney was ineffective for failing to object to the district attorney vouching for LW during [her] argument to the jury. Petitioner has failed to point to any argument by the district attorney that constituted impermissible vouching. The district attorney was arguing to the jury that they should find LW's testimony believable. That is the proper role of the prosecutor. The prosecutor did not make statements regarding [her] personal belief or that the district attorney found her truthful. Had Petitioner's attorney made an objection to the district attorney's argument it would have been denied by the court. Thus, there is no showing of prejudice.
Respondent's Exhibit 130, p. 4.
A review of the transcript reveals that the prosecutor was not personally vouching for LW's credibility, nor was she attempting to insinuate that she possessed information to which the jury was not privy. Instead, she correctly stated that “what this has boiled down to is whether you believe [LW] is telling the truth.” Trial Transcript, p. 203. She then went into the details of the evidence and attempted to persuade the jury that LW's testimony was accurate and truthful based upon that evidence. Id at 204-16. The PCR court reasonably construed the rebuttal argument as permissibly inferring truthfulness from the totality of the record. See, e.g., United States v. Nash, 115 F.3d 1431, 1439 (9th Cir. 1997). Where the prosecutor's rebuttal argument was not improper, no objection was warranted, and counsel's performance did not fall below an objective standard of reasonableness.
Even assuming the prosecutor's comments amounted to improper vouching, Petitioner cannot demonstrate that he was prejudiced by counsel's failure to object. Petitioner confessed to sexually abusing LW and wrote a letter of apology for the same. The evidence of guilt was therefore overwhelming as to the Sexual Abuse charge. Even with respect to the Sodomy charge which post-dated Petitioner's confession, it would have been difficult to convince a jury that although it was clear that Petitioner was guilty of Sexual Abuse in a manner consistent with LW's allegations, LW was being untruthful with regard to her allegations pertaining to the Sodomy charge.
Finally, very shortly after the State's rebuttal argument, the trial court explicitly instructed the jury that attorneys' arguments did not constitute evidence. Trial Transcript, pp. 220-21. Thus, any “vouching that occurred during closing argument was effectively neutralized by the court's instruction that comments of counsel are not evidence.” United States v. Necoechea, 986 F.2d 1273, 1283 (9th Cir. 1993). For all of these reasons, and whether counsel's performance is assessed individually or collectively, the PCR court's decision is neither contrary to, nor an unreasonable application of, clearly established federal law.
IV. Evidentiary Hearing
In the caption of his supporting memorandum, Petitioner asks this Court to conduct an evidentiary hearing however fails to include any further elaboration on this request. Where the record in this case is sufficiently developed to resolve the issues before the Court, Petitioner's request for an evidentiary hearing should be denied. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011).
RECOMMENDATION
For the reasons identified above, the Amended Petition for Writ of Habeas Corpus (#22) should be denied and a judgment should be entered dismissing this case with prejudice. The Court should, however, issue a Certificate of Appealability limited to Grounds 1, 3(D), and 3(F).
SCHEDULING ORDER
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.