Opinion
2:17-CV-01963-AC
08-02-2021
DON MITCHELL JUSTICE, Petitioner, v. BRAD CAIN, Superintendent, Snake River Correctional Institution, Respondent.
FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA, UNITED STATES MAGISTRATE JUDGE
Petitioner Don Mitchell Justice (“Petitioner”), an individual in custody at Snake River Correctional Institution, filed this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons that follow, the district judge should DENY the Amended Petition for Writ of Habeas Corpus (ECF No. 70) (the “Petition”), and should decline to issue a certificate of appealability.
Background
On May 18, 2009, a Marion County grand jury returned an indictment charging Petitioner with one count of Rape in the First Degree; one count of Sodomy in the First Degree; two counts of Unlawful Sexual Penetration in the First Degree; and three counts of Sexual Abuse in the First Degree. (Resp't Exs., ECF No. 21, Ex. 102.) The indictment alleged that Petitioner sexually abused B, a child under the age of twelve, on multiple occasions between August 2005 and August 2007. (Id.) Petitioner waived his right to a jury and proceeded to trial before a Marion County Circuit Court judge on May 18, 2010. (Resp't Ex. 103 (“Tr.”) at 3.)
The page numbers set forth in various documents in the record often are inconsistent with the pagination assigned in ECF. To avoid confusion, the court cites to the ECF page numbers when citing to the record and to the parties' briefing.
I. Trial Court Proceedings
A. The State's Case at Trial
The foundation of the State's case against Petitioner was the testimony of B, who was thirteen at the time of trial. (Tr. at 8.) B testified that she was nine or ten when her mother (“Westphal”) became romantically involved with Petitioner, a trucker who lived in the same Keizer, Oregon apartment complex as B's family. (Tr. at 14.) B testified that Westphal eventually moved their family - which included B, her two older brothers, and one younger brother - into Petitioner's apartment, and that Petitioner often would babysit the children while Westphal worked. (Tr. at 15, 17-18.) B stated that she did not like and feared Petitioner because he would slap them or pull their hair if they acted out. (Tr. at 16-17.)
B testified that Petitioner sexually abused her on multiple occasions throughout the one-year period that her family lived with Petitioner. (Tr. at 21.) B could not recall the specific date on which the abuse began, but testified that she had been in the apartment watching television when Petitioner sat down next to her on the living room couch and began touching her. (Tr. at 22.) B testified that during that incident, Petitioner placed her hand on his penis and touched her breasts for “maybe an hour or so.” (Tr. at 24.) Although B had trouble remembering certain contextual details such as the specific time of day during which the episode occurred, she recalled that her mother had been at work at the time, and that Petitioner had not removed any of his clothes. (Tr. at 24-25.)
B testified that Petitioner again abused her on a road trip to Texas with her older brother. (Tr. at 28.) Specifically, B testified that she had shared a bunk with Petitioner during that trip, and that he had removed her clothes, touched her breasts, and penetrated her vagina with his fingers and penis while her brother was asleep on the top bunk. (Tr. at 31, 33-34.)
B further testified that on a third occasion, she was in the apartment watching television on the living room floor when Petitioner came in and “just did what he did before.” (Tr. at 38.) B stated that she did not “really remember much” to distinguish the details of that encounter, but recounted an episode “where [Petitioner] was touching [her] butt.” (Tr. at 38.) Specifically, B testified that Petitioner had rubbed her bottom and then sodomized her, though she later wavered on how many times that particular type of abuse had occurred and whether it had occurred in the apartment or on a second out-of-state road trip with Petitioner. (Tr. at 40, 44, 46-49.) Despite B's difficulty distinguishing the details of the different encounters, she specifically confirmed that Petitioner had vaginally raped her in the apartment; that the abuse “happened almost every time [her] mom or nobody was home”; and that her testimony described separate incidents rather than fragments of one continuing episode. (Tr. at 41, 43-46.)
B testified that she first attempted to disclose the abuse to her aunt, Rebecca Chambers (“Chambers”), while the family still lived with Petitioner. B testified that she called Chambers and told her “that [Petitioner] was laying on top of [her] and that he was hurting [her.]” (Tr. at 5253.) B clarified that she reported that Petitioner “would get aggressive” and hit the children, but that she was too afraid to discuss the “sex stuff” with Chambers at that time. (Tr. at 52-54.) Although Chambers called the police, B testified that the responding officers did not ask her any questions, and simply told her “to go inside and watch movies.” (Tr. at 52.)
B testified that at some point after her initial attempt to disclose the abuse, Westphal and Petitioner ended their relationship. (Tr. at 56.) After splitting from Petitioner, Westphal moved the family to South Dakota, where they remained there for one or two years. (Tr. at 56-58.) The children then returned to the Salem/Keizer area, where they lived with Chambers until Westphal returned to Oregon. (Tr. at 58-60.)
B testified that soon after returning to Oregon, Chambers asked her “if anything was wrong or if anything happened” because her brother had “heard something during one of the nights in the truck[.]” (Tr. at 60.) In response to Chambers' questioning, B confirmed that Petitioner had given them beer during the trip to Texas, and revealed that Petitioner had sexually abused her on several occasions. (Tr.61-62.) B testified that Chambers immediately called Westphal, and later called the police. (Tr. at 62-63.)
The police referred B to Liberty House, a child abuse assessment center in Salem. (Tr. at 63-65.) B testified that she “told [the Liberty House investigator] everything” about the abuse, but that she inadvertently “might have left a couple of things out.” (Tr. at 64.) B further testified that she submitted to an invasive medical examination that included a thorough inspection of her private areas. (Tr. at 64-65.) The prosecutor then took B through her previous testimony, confirming each specific act that occurred in Petitioner's apartment. (Tr. at 65-66.)
The State also presented, among other things, the testimonies of Chambers and Westphal, both of whom corroborated portions of B's testimony. (See Tr. at 108-17; 174-84.) Specifically, Chambers recounted the circumstances giving rise to B's disclosures, and Westphal confirmed that the family had lived with Petitioner for “almost a year[;]” that he babysat the children “maybe fifteen hours” per week; and that B and her brother had accompanied him on a road trip to Texas in the Fall of 2005, and maybe on “one other one.” (See Tr. 108-17, 172-76, 183.)
Over defense objection, the trial court permitted Chambers to accompany B in the courtroom due to her minor status. (Tr. at 4-6.) Chambers thus was present for the duration of B's testimony, despite later serving as a witness in the same trial.
The State also presented the expert testimony of Dr. Lauren McNaughton (“Dr. McNaughton”), the medical director of Liberty house. (Tr. at 137.) Dr. McNaughton, who performed B's Liberty House medical examination in December 2007, testified that there were no abnormal physical findings with respect to B's genital area. (Tr. at 142.) Dr. McNaughton clarified that whether there are physical findings depends on several factors, including the type of abuse suffered, the degree of force used, and how much time had elapsed since the abuse occurred. (Tr. at 140-42.) Dr. McNaughton further explained that “[m]ost of the children . . . see[n] at Liberty House have a normal physical exam[, ]” and that the lack of physical findings is not uncommon where only the labia was touched. (Tr. at 140, 145.) Dr. McNaughton thus concluded that there was nothing unexpected about the results of B's medical examination - i.e., the lack of physical findings - based on the substance of B's reporting. (Tr. at 142.)
At the close of the State's evidence, the Defense moved for a judgment of acquittal on four of the seven counts alleged in the indictment, arguing that because the seven counts “are alleged in a manner of seven different incidents, the only incidents that are alleged to have occurred in Marion County to where the victim could potentially testify would be three separate incidents and, consequently, . . . four of the charges should be dismissed.” (Tr. at 186-87.)
Considering the motions, the trial court expressed concern as to the Sodomy charge, noting that “[B] vacillated on whether there was ever penetration of her anus - I believe she used the word butt - at the house, and finally sort of indicated it never happened.” (Tr. at 189.) The State acknowledged that B had “difficulty remembering the particulars, ” but pointed out that defense counsel had addressed the issue during cross-examination, and that B had “stated that she absolutely remembered [sodomy] happening in the truck, but then also she remembered it happening at least one time in the apartment.” (Tr. at 189-90.) The trial court stated that it was “still bothered by the evidence in that allegation, ” but nevertheless denied the motions for judgment of acquittal.
B. The Defense Theory at Trial
The Defense cultivated a theory of reasonable doubt that largely focused on B's credibility. During cross-examination, for example, defense counsel pressed B about her inconsistent or vague statements as to the number of times specific types of abuse occurred and where, her inability to recall the details of specific encounters, and the shifting circumstances giving rise to her disclosure to Chambers. (See , e.g., Tr. at 78-80, 87-89.)
Petitioner testified on his own behalf, contesting B's testimony in its entirety. Specifically, Petitioner testified that although he babysat the children “on occasion, ” he never watched B by herself, and never locked the door while he was alone with B in the apartment. (Resp't Ex. 104 at 6-7.) Petitioner also testified that he did not share a bunk with B during the trip to Texas, and that the trip took eight days, rather than two as B had stated. (Id. at 9-10.) Petitioner then flatly denied ever abusing B, in Oregon or on the road; expressly denied engaging in each of the specific acts alleged by B; stated that none of encounters described in B's testimony had happened and that B had “made it all up”; and alleged that B previously had falsely reported allegations of sexual abuse against “[a] girl named Brittany.” (Id.at 7, 10, 25.)
C. Closing Arguments, Verdict, and Sentencing
At the close of evidence, the trial court confirmed that the scope of its analysis would be limited only to “what occurred at the apartment, ” and would not include conduct alleged to have occurred on a trip out of state. (Id. at 26.) The parties then presented closing arguments.
On behalf of the State, the prosecutor argued that like many cases involving sexual abuse, “this case comes down to who this Court believes.” (Id.) The prosecutor then endeavored to explain “why the State believes that the Court should believe the victim rather than the defendant[, ]”arguing primarily that B lacked any reasonable motive to lie. (Id. at 27-30.) The prosecutor also offered the trial court alternative explanations for inconsistencies in B's reporting.(Id. at 30-33.) In summation, the prosecutor argued:
I would just like to point out that the two most important instructions that we would tell the jury in this case is, number one, that any witness whom this Court believes is sufficient to prove any fact in question. I'd submit to the Court that the absolute most credible witness who appeared before His Honor today was B[], a [fourteen] year old girl who has the very difficult job of explaining what happened when she was [nine] years old. Not only that, we would also tell the jury not to speculate, and Your Honor, there's absolutely zero evidence before this Court as to why she would say what she did. It's not an easy decision, not an easy case, but the bottom line is, she's got nothing to gain from this, absolutely nothing, and she's got everything to lose because she has to come in here and talk about the horrible thing that happened. She had to go to Liberty House and explain what happened.(Id. at 33.)
Defense counsel's closing argument largely took aim at B's credibility, highlighting that in several respects, “what she said to Liberty House is quite a bit different than what she says today.” (Id. 34-37.) Defense counsel also pointed out that although B reported to Liberty House that her brother may have been awake during the encounter on the Texas road trip, police had failed to interview him, and the State had not called him as a witness. (Id. at 35.) Finally, Defense counsel argued that it was unreasonable to believe that Petitioner took B's brother on the trip to Texas if he intended to abuse B on that trip. (Id. at 37.)
In rebuttal, the prosecutor renewed his argument that B lacked motive to fabricate the allegations against Petitioner, stating:
. . . Your Honor, after months now of the defendant being able to prepare for trial, he has still not been able to come up with a good motive as to why she would do this. I'd like to point out to the Court again that . . . this victim making up this story against the defendant, someone who's been out of her life for years and years when she has the rest of her life in front of her and it's a golden future, is just not credible. It is not reasonable to suggest that this victim made this up, [and] kept this inside until someone asked her[.](Id. at 42.)
The trial court then rendered its verdict, acquitting Petitioner on the sodomy charge, but finding him guilty on all remaining counts. (Resp't Ex. 104 at 43-46.) The trial court explained its verdicts, noting that the evidence was insufficient to support the sodomy charge because it was unclear from B's testimony that such conduct had occurred in Oregon. (Id. at 43.) As to the remaining charges, the trial court explained that it found “beyond a reasonable doubt that [B was] telling the truth about what happened to her[, ]” and that although her testimony was “not always as consistent as we would like, ” it was “consistent in the salient points[, ]” and established that Petitioner had abused her on numerous occasions. (Id. at 45.) The trial court subsequently sentenced Petitioner to a combined custodial term of 300 months. (Resp't Exs. 101; 105 at 17-18.)
III. Direct Appeal
Petitioner appealed, and with the assistance of appellate counsel, presented a single assignment of error, as follows:
ASSIGNMENT OF ERROR NO. 1: The trial court erred in denying defendant's motion to exclude a state witness from the courtroom.(Resp't Ex. 106 at 2.) Petitioner also filed a Pro Se Supplemental Brief, raising four additional assignments of error:
Pro Se ASSIGNMENT OF ERROR NO. 1: Did the trial court abuse its discretion by denying Mr. Justice's motion for judgment of acquittal?
Pro Se ASSIGNMENT OF ERROR NO. 2: Did the trial court abuse its discretion by allowing Dr. McNaughton and Murphy to present oral and written diagnosis of sexual abuse in the absence of physical evidence?
Pro Se ASSIGNMENT OF ERROR NO. 3: Did the court abuse its discretion to convict Mr. Justice for unlawful sexual penetration and rape?
Pro Se ASSIGNMENT OF ERROR NO. 4: Did the trial court abuse its discretion by allowing prosecutorial misconduct?(Resp't Ex. 107 at 4.) The Oregon Court of Appeals affirmed without opinion, State v. Justice, 252 Or.App. 750, 252 P.3d 75 (2012), and the Oregon Supreme Court denied review. (Resp't Ex. 110.)
IV. State Postconviction Proceedings
Petitioner then sought postconviction relief (“PCR”), alleging, among other things, that trial counsel provided ineffective assistance when he failed to object, in limine or at trial, to the introduction of evidence concerning an uncharged instance of sexual assault that occurred outside of the State of Oregon during the Texas road trip. (Resp't Exs. 112, 113 at 4.) In opposition, the State submitted the signed declaration of trial counsel, who explained that the allegations concerning out-of-state misconduct were integral to his overall strategy at trial:
I did not object to evidence regarding the out-of-state allegations as a matter of trial strategy because we wanted the facts regarding the initial reports of abuse, which occurred in Texas, to be admitted. Our trial strategy was largely focused on creating reasonable doubt about the alleged victim's allegations by impeaching her with inconsistencies between her initial statements, and her trial testimony, and the Liberty House reports. Furthermore, the alleged victim had initially reported that her brother was present in the truck sleeper cab when the abuse occurred. However, not only did the State [] not produce this key eyewitness, but the alleged victim's statements about whether or not her brother actually witnessed anything was inconsistent. Additionally, our trial strategy included that it was not reasonable that the alleged abuse in Texas occurred the way she reported, where her brother was allegedly in close proximity. Our trial strategy also included the fact that it was not reasonable that Mr. Justice would take the brother along if he intended to target the alleged victim. The details of the out-of-state allegations were important to our trial strategy.(Id. at 3-4.)
After an evidentiary hearing, the PCR court issued a written judgment denying relief on all claims. (Resp't Ex. 130.) The PCR court expressly noted that it found trial counsel's testimony credible, and concluded that Petitioner failed to prove his ineffectiveness claim because trial counsel had “purposely allowed the testimony [concerning out-of-state misconduct] at trial . . . [as] part of his reasonable trial strategy to show the discrepancies between the victim's original disclosure and later statements about the abuse.” (Id. at 2.) In addition, the PCR court noted that evidence of Petitioner's out-of-state misconduct “was admissible as evidence of an ongoing pattern of abuse against the same victim.” (Id.)
Petitioner appealed, presenting a single assignment of error, as follows:
ASSIGNMENT OF ERROR: The post-conviction court erred in denying petitioner relief on the claim that trial counsel was ineffective and inadequate for failing to object to inadmissible child hearsay.(Resp't Ex. 131 at 2.) Petitioner also filed a Pro Se supplemental brief, raising as error the PCR court's denial of relief on “the claim that trial counsel was ineffective and inadequate for failing to object to inadmissible out of state alleged misconduct.” (Resp't Ex. 132.) The Oregon Court of Appeals affirmed without opinion. (Resp't Ex. 136.)
Petitioner next petitioned the Oregon Supreme Court for review, presenting only the counseled claim presented to the Court of Appeals. (Resp't Ex. 134 at 11.) The Oregon Supreme Court denied review. (Resp't Ex. 135.)
V. Federal Habeas Proceedings
On December 11, 2017, Petitioner filed a Petition for Writ of Habeas Corpus (the “Petition”) in this court, raising twenty-four grounds for relief. (See Pet. at 6-14.) With the assistance of appointed counsel, Petitioner argues two grounds for relief:
(1) The prosecutor violated Petitioner's right to due process under the Fourteenth Amendment when he engaged in misconduct during closing arguments; and
(2) Trial counsel was ineffective when he failed to object to the admission of evidence regarding conduct that occurred outside the State of Oregon.
Respondent urges the court to deny relief, arguing that (1) the Petition does not contain the two claims argued, and therefore they are not properly before the court; (2) Petitioner's argued claims are procedurally defaulted; (3) the state court decisions denying relief on those claims are neither “contrary to” nor an “unreasonable application” of Supreme Court precedent; and (4) Petitioner declined to argue the remaining grounds for relief alleged in the Petition.
Discussion
I. Sufficiency of Pleading
Respondent asserts that the claims argued in Petitioner's supporting brief are not contained in the Petition, and therefore are not properly before this court. (Reply, ECF No. 56, at 2-3, 5.) A habeas petition must “specify all grounds for relief which are available to the petitioner” and must “state the facts supporting each ground.” Rule 2(c), Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254. “A court need not consider a claim that is not contained within the operative habeas corpus petition.” Harwood v. Hall, Case No. 6:15-CV-00970-HZ, 2017 WL 3709068, at *2 (D. Or. Aug. 28, 2017) (citing Greene v. Henry, 302 F.3d 1067, 1070 n.3 (9th Cir. 2002)).
Petitioner's supporting brief “focuses on his claims of prosecutorial misconduct and trial counsel's ineffectiveness[, ]” but does not identify the specific grounds for relief at which his arguments are directed. (Pet'r's Br., ECF No. 49, at 5, 17.) Petitioner acknowledges in his Sur-Reply, however, that his claims stem from Grounds Two and Five, which read as follows:
Ground Two: Petitioner was denied his federal rights to effect assistance of trial council [sic], see U.S. Constitution Amendments V, VL, XLV, (as explained in Strickland v. Washington, 466 U.S. 668, 204 S.Ct. 2052, 80 L.Ed.2d 674 (1984)):
when the prosecution committed prosecutorial misconduct when it vouched for the state's witnesses and point[ed] out that the aunt believed the alleged victim.”
Ground Five: Petitioner was denied his federal constitutional rights to effective assistance of council [sic], . . . when trial counsel failed to object in limine, or at trial, to the State's untimely notice to the introduction of evidence regarding an uncharged instance of sexual assault outside the state between the petitioner and the alleged victim.(Pet. at 7, 8.)
In his supporting brief, Petitioner argues claims that differ from those presented in the Petition. Petitioner asserts, for example, that he was denied his right to due process - not his right to the effective assistance of counsel - during closing arguments when the prosecutor “vouched for the victim's credibility and shifted the burden of proof to the defense to demonstrate that the victim had a motive to fabricate the allegations.” (Pet'r's Br., ECF No. 49, at 17.) Petitioner also asserts that counsel was ineffective, not for his failure to object to the evidence of out-of-state sexual misconduct as untimely, but for his failure to object to the introduction of such evidence as unduly prejudicial under the Oregon Evidence Code. Petitioner argues that the court should liberally construe Grounds Two and Five of the Petition to encompass these claims or, in the alternative, should grant him leave to amend the Petition to “clarify [his] claims” and add two new grounds for relief. (Pet'r's Sur-Reply, ECF No. 67, at 8-12.)
Although the court must liberally construe Pro Se habeas filings, Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006), the court appointed counsel to represent Petitioner in January 2018, shortly after he filed his Petition and prior to service on Respondent (See ECF No. 7). Petitioner thus has had “every opportunity to amend his Petition to clearly state any claims he and his attorney wished to argue” in the several years this case has been pending. Harwood v. Hall, Case No. 6:15-CV-00970-HZ, 2017 WL 3709068, at *2 (D. Or. Aug. 28, 2017). Under such circumstances, “it is doubtful that [Petitioner] is entitled to the liberal construction he seeks.” Severy v. Or. Bd. of Parole and Post-Prison Supervision, Case No. 6:16-cv-01482-MO, 2017 WL 3568399, at *2 (D. Or. Aug. 16, 2017); see also Harwood, 2017 WL 3709068, at *2 n.2 (countering counsel's argument that liberal construction should apply due to the Pro Se nature of the initial filing because “it was incumbent upon appointed counsel to review the Petition and file an amended pleading if appropriate so as to avoid the unnecessary confusion that has resulted”).
Furthermore, the untimeliness of Petitioner's request weighs heavily against amendment. As described above, Petitioner has had the benefit of counsel since the inception of this case, but still he waited to amend his pleading until briefing was nearly complete. Petitioner cites no reason for this delay, and he could have amended the Petition to assert his claims at any previous point in these proceedings. Nevertheless, because Respondent has addressed Petitioner's proposed claims and will not suffer prejudice by amendment, and because the court will reach the same conclusion whether or not leave to amend is granted, the court GRANTS Petitioner's request to amend, and proceeds to Respondent's additional arguments as applicable to Petitioner's Amended Petition (ECF No. 70).
II. 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 behalf of an individual in state custody 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 a prisoner must first exhaust available remedies before a federal court may consider the merits of a habeas petition). 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.'” 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 rounds 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 the claims were actually considered, the claims have not been fairly presented to the state courts and therefore are not eligible for federal habeas corpus review. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). 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). 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
1. Grounds Two and Twenty-Five
The substance of Petitioner's prosecutorial misconduct claim is now set forth in Grounds Two and Twenty-Five of the Amended Petition, as follows:
Ground Two: Petitioner was denied his federal constitutional rights to due process under the Fourteenth Amendment to the United States Constitution when, during closing argument, the prosecution vouched for the state's witnesses and pointed out that Ms. Chambers believed the alleged victim.
Ground Twenty-Five: Petitioner was denied due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution when the trial court allowed improper statements by the prosecutor during closing argument.(Am. Pet. at 8, 13.)
Respondent argues that to the extent Petitioner asserted a prosecutorial misconduct claim on direct appeal, he nevertheless failed fairly to present the claim to Oregon's highest court for review. (Reply at 3-4.) Because Petitioner can no longer assert his claims in state court, Respondent asserts that Grounds Two and Twenty-Five are procedurally defaulted. (Id.; Resp. to Am. Pet., ECF No. 71, at 3.) Petitioner argues that he exhausted Grounds Two and Twenty-Five on direct appeal, raising as error the trial court's allowance of prosecutorial misconduct, and subsequently carrying that issue forward in his petition for review to the Oregon Supreme Court. (Pet'r's Br. at 19; Pet'r's Sur-Reply at 10.)
On direct appeal, Petitioner raised in his Pro Se supplemental brief a claim of trial court error for allowing prosecutorial misconduct. (Resp't Ex. 107 at 4.) In support of that claim, Petitioner submitted the following argument:
The prosecution placed the prestige of the government behind witnesses, asked leading questions to elicit specific testimony, [and] instruct[ed] witnesses on what to say involving a disregard of ethical bounds to sway the trier of fact. The prosecution violated Justice's State and Federal Constitutional Rights in order to secure a conviction. United States v. Sanchez, 176 F.3d 1214 (9th Cir. 1999); OEC 611; 14th Amdt. Due Process, Article I, §11.(Resp't Ex. 107 at 8.) The State responded, arguing that Petitioner had failed to preserve this claim of error in the trial court, that he had failed to develop any argument in support on appeal, and that the prosecutor had not engaged in misconduct. (Resp't Ex. 108 at 2.) The Oregon Court of Appeals affirmed without opinion, (Resp't Ex. 111), and Petitioner raised the issue in his petition for review to the Oregon Supreme Court. (Resp't Ex. 109 at 8.) To support his claim, Petitioner argued that “[a] trial court errs when it allows prosecutorial misconduct[, ]” and referenced the argument set forth in his Pro Se supplemental brief. (Id.)
Generally, Oregon law requires an appellant to preserve his claims in the trial court before raising such claims to the Oregon Court of Appeals. See OR. R. APP. P. 5.45(1) (instructing that “[n]o matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court ....”). Petitioner, however, does not refute Respondent's contention that he failed to preserve his prosecutorial misconduct claims in the trial court, nor does he identify in the record where trial counsel raised objections to any instances of alleged prosecutorial misconduct at the time of trial. See OR. R. APP. P. 5.45(4)(a) (instructing that an appellant “must demonstrate that the question or issue presented by the assignment of error timely and properly was raised and preserved in the lower court”).
Moreover, Petitioner failed properly to develop his claims on appeal, arguing only that the trial court erred by allowing unidentified instances of vouching and misconduct. Oregon law required Petitioner to “identify precisely the legal, procedural, factual, or other ruling that is being challenged[, ]” and to set forth the pertinent portions of the record demonstrating when in the proceedings the issue arose, the manner in which it was raised, and the way it was resolved in the lower court. OR. R. APP. P. 5.45(3), (4)(a)(ii). Although Petitioner challenged the trial court's acquiescence to prosecutorial misconduct generally, Petitioner failed to identify any specific incidences of misconduct that went unremedied by the trial court, and otherwise failed to set forth the pertinent details of his claim for the appellate courts' review. Indeed, at no point did Petitioner raise the focused and refined prosecutorial misconduct claims he now advances in this court.
Because they were not properly preserved or developed on appeal, Petitioner's prosecutorial misconduct claims were not raised in a procedural context in which the merits of those claims would be considered, and therefore they are procedurally defaulted. See Farrar v. Thompson, No. Civ. 97-6042-AA, 2001 WL 34727918 (D. Or. Aug. 23, 2001) (holding that the petitioner's prosecutorial misconduct claims were procedurally defaulted “because petitioner's trial counsel failed to object to the [prosecutor's] alleged improper argument at the time of trial and therefore failed to preserve the alleged errors for appeal”). Habeas review thus is precluded as to Grounds Two and Twenty-Five, and the district judge need not reach the merits of those claims.
2. Grounds Five and Twenty-Six
The substance of Petitioner's ineffective assistance of counsel claim is now set forth in Grounds Five and Twenty-Six of the Amended Petition, as follows:
Ground Five: Petitioner was denied his federal constitutional rights to effective assistance of trial counsel under the Sixth and Fourteenth Amendments to the United States Constitution Amendments as explained by Strickland v. Washington, 466 U.S. 668, when trial counsel failed to object in limine or at trial to the State's introduction of evidence regarding [] uncharged incidents of sexual misconduct between the Petitioner and the alleged victim that allegedly occurred outside the State of Oregon on various road trips.
Ground Twenty-Six: Petitioner was denied the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution when trial counsel failed to object: (a) to evidence about uncharged other bad acts that occurred outside of Oregon, and (b) to improper statements by the prosecutor during closing argument. But for counsel's failures, there is a reasonable probability that the outcome of the proceedings would have been different.(Am. Pet. at 8-9, 14.)
Respondent argues that Petitioner did not include his ineffectiveness claims in his petition for review to the Oregon Supreme Court on post-conviction appeal, and because the time for doing so has lapsed, they are procedurally defaulted. (Reply at 5-7.) Petitioner disagrees, arguing that he fairly presented his claim that trial counsel was ineffective for failing to object to the introduction of prior-bad-acts evidence because “the petition for review [to the Oregon Supreme Court] incorporated the arguments in his briefing from the Court of Appeals[.]'” (Pet'r's Br. at 19 n.6.)
As explained above, Petitioner, with the assistance of counsel, appealed the post-conviction court's denial of his claim that trial counsel was ineffective and inadequate in failing to object to child hearsay. (Resp't Ex. 131 at 16.) In a Pro Se supplemental brief, Petitioner also raised as error the post-conviction court's denial of relief on his claim that trial counsel was ineffective and inadequate for failing to object to the introduction of inadmissible evidence of out-of-state misconduct. (Resp't Ex. 132 at 2.) The Oregon Court of Appeals affirmed without opinion, and Petitioner's post-conviction appellate counsel advanced only the counseled claim in the petition for review to the Oregon Supreme Court, as follows:
Question Presented: In a criminal case where the state provides notice pursuant to OEC 803 (18a)(b) that the state intends to offer hearsay statements from the victim that are included in discovery, is a criminal defense trial attorney ineffective and inadequate for failing to object on the basis that the state's notice is insufficient?
Proposed Rule of Law: OEC 803 (18a)(b) requires the state to provide a defendant with the “particulars” of the statements it intends to offer at trial. Merely stating that the statements are included in discovery is insufficient. In the absence of valid strategic reasons to not object to an insufficient notice, a criminal defense trial attorney fails to exercise reasonable professional skill and judgment for failing to assert a meritorious objection to an insufficient notice, which would likely have resulted in the exclusion of the statements from trial.(Resp't Ex. 134 at 11.) In the supporting “argument” section, post-conviction appellate counsel simply asserted that “Petitioner relies on the arguments presented in his brief in the Court of Appeals. Farmer v. Baldwin, 346 Or. 67, 73-74, 205 P.3d 817 (2009).” (Id. at 13.) The Oregon Supreme Court denied review. (Resp't Ex. 135.)
In Farmer, the Oregon Supreme Court noted that it “may consider briefs filed in the Court of Appeals to identify and evaluate a party's legal arguments on a question presented on review.” Farmer, 346 Or. at 73. Specifically, it explained that:
Briefs filed in the Court of Appeals are available to this court and will be reviewed at that stage if the court or any justice decides to do so. Nothing requires the court or any justice to consider only the petition for review in deciding whether to grant review. The Oregon rules of Appellate Procedures make that clear. ORAP 9.07(15) states that one of this court's criteria for granting review is [w]hether the issues are well presented in the briefs.Id. at 72-73 (internal citations omitted).
It appears Petitioner's post-conviction appellate counsel cited Farmer to direct the Oregon Supreme Court's attention to the arguments that were raised before the Court of Appeals in support of the single question presented for review. Petitioner, however, asks this court to construe counsel's citation to Farmer as incorporating by reference all arguments presented to the Oregon Court of Appeals, “including those relating both to his counseled claim and his Pro Se claim.”
Petitioner's request is not well taken. As an initial matter, Farmer is limited to cases involving Balfour briefs. See Donoghue v. Nooth, 2013 WL 5272809, at *6 (D. Or. Sept. 13, 2013) (finding that “Farmer was limited to situations involving Balfour briefs filed pursuant to ORAP 5.90 and did not speak at all to supplemental Pro Se briefs filed pursuant to ORAP 5.92”), aff'd, Donoghue v. Premo, 588 Fed.Appx. 599, 600 (9th Cir. 2014) (noting that “[w]hile the holding in Farmer may allow incorporation of part of a Balfour brief in a petition for review, it does not allow a non-Balfour pro se brief to incorporate any type of document a litigant may think helpful at any stage in an appeal”); see also Williams v. Nooth, No. 3:10-cv-00070-ST, 2013 WL 1703596, at *4 (D. Or. Mar. 21, 2013) (noting that “the issue presented in Farmer was specifically limited to cases involving Balfour briefing”); Williams v. Belleque, Civ. No. 03-1678-JO, 2010 WL 3603781, at *5 (D. Or. Sept. 13, 2010) (finding that “Farmer was specifically limited to the situation where appellate counsel filed a Balfour brief and, as the [individual in custody's] ‘Section B' portion of the brief, the individual attached a copy of the PCR petition”).
Under State v. Balfour, 311 Or. 434, 451-52, 814 P.2d 1069 (1991), counsel is not ethically bound to withdraw when faced with only non-meritorious issues on appeal. Rather, the attorney may file Section A of an appellant's brief setting forth a short statement of the case sufficient to “apprise the [appellate] court of the jurisdictional basis for the appeal.” The defendant then may file Section B of the brief identifying any assignments of error he wishes to raise.
In addition, Petitioner did not identify his Pro Se ineffectiveness claim as a question presented on review, nor did he explicitly incorporate by reference in his petition for review the Pro Se supplemental brief or any of his Pro Se claims. Indeed, Petitioner expressly limited his request for review to the counseled claim articulated in his petition, and made no reference to the Pro Se filing whatsoever. (See Resp't Ex. 134 at 4) (explaining that “Petitioner asks this court to allow review and address the circumstances in which a criminal defense trial attorney is constitutionally ineffective and inadequate for failing to object to a deficient notice of the intent to rely on hearsay statements pursuant to OEC 803(18a)(b).”) “While the Oregon Supreme Court Justices may choose to review the briefs filed in the lower courts, this choice does not satisfy the federal exhaustion requirement which places the burden on petitioner to raise his federal claims at each and every level of his state court review. [Baldwin v. Reese], 541 U.S. 27, 32 (2004) (a claim is not fairly presented if a state court ‘must read beyond a petition or brief . . . that does not alert it to the presence of a federal claim in order to find material . . . that does so').” Williams, 2013 WL 1703596, at *4 (emphasis added); see also Eckert v. Nooth, Case No. 2:13-cv-01451-MA, 2015 WL 6964177, at *4 (D. Or. Nov. 10, 2015) (rejecting the petitioner's assertion that the Oregon Supreme Court's access to the parties' appellate briefing constituted fair presentation under Farmer, in part, because the petition for review did not reference specific claims contained in his appellate briefing).
Petitioner failed to raise Grounds Five and Twenty-Six in his petition for review, and therefore failed fairly to present those claims to the Oregon Supreme Court. Because he can no longer do so, Grounds Five and Twenty-Six are procedurally defaulted, and habeas review is precluded as to Grounds Five and Twenty-Six.
3. Actual Innocence to Excuse Procedural Default
In his Sur-Reply, Petitioner argues for the first time that his procedural default should be excused because he is actually innocent. To be credible, a claim of actual innocence must be supported by new reliable evidence that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995). The actual innocence exception may excuse procedural default only if the court concludes that, considering all the evidence, “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 327. This is an exacting standard that is satisfied “only in the extraordinary case.” House v. Bell, 547 U.S. 518, 538 (2006) (internal quotation marks omitted). Indeed, those 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).
To support his actual innocence claim, Petitioner submits evidence that B's home life was difficult and chaotic, that Westphal misrepresented the length and nature of her relationship with Petitioner, and that Petitioner did not watch the children after school because often they went to the Boys and Girls Club. (See Pet'r's Exs. In Supp. of Pet. for Writ of Habeas Corpus, ECF No. 68.) As Respondent points out, however, it is questionable whether the evidence offered by Petitioner is new or reliable. (Resp. to Am. Pet. for Writ of Habeas Corpus, ECF No. 71, at 4-8.) More importantly, such evidence might show, at most, that a reasonable doubt exists as to one or more of the charges against petitioner, but falls far short of “evidence of innocence so strong that [the] court cannot have confidence in the outcome of the trial[.]” Schlup, 513 U.S. at 329; see also Downs v. Hoyt, 232 F.3d 1031, 1040 (9th Cir. 2000) (explaining that “[i]t is not enough that the evidence [submitted to support an “actual innocence” claim under Schlup] shows the existence of a reasonable doubt”). Accordingly, Petitioner has not established that he is actually innocent under Schlup, and the procedural default of his claims should not be excused.
III. The Merits
Respondent argues that even if Petitioner's claims are not procedurally defaulted, the state court decisions denying relief on those claims are neither “contrary to” nor an “unreasonable application of” Supreme Court precedent, and therefore fail on the merits. (Reply at 9.) For the reasons set forth below, the court agrees.
A. Legal Standards
Pursuant to 28 U.S.C. § 2254(d), a federal habeas court may not relitigate 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 unreasonably applies clearly established federal law if its decision is so lacking in justification that there is an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement. See Harrington v. Richter, 562 U.S. 86, 101 (2011) (noting that whether a state court decision involved an unreasonable application of federal law under § 2254 requires a habeas court to consider “whether it is possible fairminded jurists could disagree that [the] arguments or theories [underlying the state court's decision] are inconsistent with the holding in a prior decision of [the Supreme] Court”). Upon review, a federal habeas court must apply a presumption of correctness to the state court's findings of fact, and the habeas petitioner bears “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
B. Analysis
1. Prosecutorial Misconduct
In Grounds Two and Twenty-Five, Petitioner alleges that his right to due process under the Fourteenth Amendment was violated when the prosecutor engaged in misconduct, and when the trial court allowed improper statements by the prosecutor during closing arguments. (Am. Pet. at 8, 13.) Specifically, Petitioner argues that during closing argument, the prosecutor vouched for B's credibility, shifted the burden of proof to the defense to demonstrate that B had a motive to lie, and wrongly stated that Petitioner admitted to pulling B's hair when he explicitly testified to the contrary - all of which went unremedied by the trial court. (Pet'r's Br. at 21-18; Pet'r's Sur-Reply at 10.)
Prosecutorial misconduct warrants habeas relief only where the prosecutor's statements “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) (citation and internal quotation marks omitted). “[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982).
As discussed above, Petitioner did not contemporaneously object to the prosecutor's statements at trial, and thus failed to preserve the issue for appellate review. However, even if Petitioner's prosecutorial misconduct claims were not procedurally barred, he still would not be entitled to relief. The court's review of the record reveals that the prosecutor did not use the prestige of the government to bolster B's credibility, nor did he suggest that he was privy to information not presented at trial that supported B's testimony. See United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993) (explaining that “[v]ouching consists of placing the prestige of the government behind a witness through personal assurances of the witness's veracity, or suggesting that information not presented to the jury supports the witness's testimony”). Rather, the prosecutor attempted to persuade the trial court that B was telling the truth. (See Resp't Ex. 104 at 27) (stating “[s]o let me explain why the State believes the Court should believe the victim rather than the defendant[, ]” and offering argument in support). Moreover, the prosecutor's arguments that B lacked a motive to fabricate the allegations were based on inferences drawn from the evidence at trial, and cannot reasonably be construed as improperly shifting the burden of proof to Petitioner. See Nechoechea, 986 F.2d at 1276 (recognizing that “prosecutors must have reasonable latitude to fashion closing arguments, and thus can argue reasonable inferences based on the evidence, including that one of the two sides is lying”).
The court agrees that the prosecutor misstated the evidence when he argued that Petitioner admitted to pulling B's hair, even though Petitioner expressly testified that he had not. The court finds, however, that such misstatement was isolated and harmless in the context of the entire trial. See Trillo v. Biter, 769 F.3d 995, 1001 (9th Cir. 2014) (explaining that habeas relief for misconduct is appropriate “only when the misconduct prejudiced the petitioner[, ]” and that courts determine whether a petitioner was so prejudiced by “placing the improper comments in the context of the entire trial”). Whether Petitioner admitted to pulling B's hair does not speak to Petitioner's credibility in any appreciable way, and otherwise has little bearing on the question of whether or not he sexually abused her. The prosecutor's misstatement therefore did not so infect the trial with unfairness as to make the resulting conviction a denial of due process.
Finally, even if the prosecutor's arguments somehow were improper, there is nothing in the record to suggest that the prosecutor's statements had a substantial or injurious effect or influence on the trial court in reaching its verdict, and the trial court cannot reasonably be said to have “allowed” misconduct when no objections to the prosecutor's statements were asserted at trial. For these reasons, Grounds Two and Twenty-Five lack merit, and the district judge should deny habeas relief.
2. Ineffective Assistance of Counsel
In Grounds Five and Twenty-Six, Petitioner alleges that trial counsel was ineffective when he failed to object to the State's introduction of evidence regarding uncharged incidents of sexual misconduct that occurred outside of Oregon, and failed to object to the prosecutor's improper statements during closing arguments. (Am. Pet. at 8-9, 14.) Specifically, Petitioner argues that trial counsel (1) should have objected to the State's introduction of evidence concerning sexual misconduct that allegedly occurred out of state as unduly prejudicial under Oregon Evidence Code (“OEC”) 403; and (2) should have objected during closing argument to the prosecutor's statement that Petitioner had testified that he pulled B's hair when Petitioner expressly denied having done so. (Pet'r's Br. at 19-21; Pet'r's Sur-Reply at 12.) Petitioner asserts that had trial counsel raised these objections, the outcome of the trial would have been different.
An ineffective assistance of counsel claim is analyzed under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, the petitioner must show that counsel's performance fell below an objective standard of reasonableness. Id. at 686. Such a showing requires the petitioner to overcome a strong presumption the challenged conduct falls within the “wide range of reasonable professional assistance; that is the [petitioner] must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Id. at 689. The first prong of the Strickland test thus is satisfied only if the petitioner demonstrates “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed . . . by the Sixth Amendment.” Id. at 687.
Second, a petitioner must demonstrate prejudice: “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 “a probability sufficient to undermine confidence in the outcome.” Id. When the deficient performance alleged is counsel's failure to raise an objection, a habeas petitioner must establish that the decision to forego objection fell below an objective standard of reasonableness, and that if counsel had objected, there is a reasonable probability that the objection would have been sustained and the outcome of the trial would have been different. 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).
With respect to Petitioner's claim that trial counsel was ineffective for failing to object to the introduction of prior-bad-acts evidence - i.e., evidence of sexual misconduct that occurred outside of Oregon - the post-conviction court denied relief, holding that Petitioner failed to prove that trial counsel was ineffective because allowing testimony on the out-of-state misconduct “was part of [trial counsel's] reasonable trial strategy to show the discrepancies between the victim's original disclosure and later statements about the abuse.” (Resp't Ex. 130 at 2.) In addition, the post-conviction court expressly found trial counsel credible, and found that the evidence of out-of-state misconduct “was admissible as evidence of an ongoing pattern of abuse against the same victim.” (Id.)
Petitioner has not established that the post-conviction court unreasonably applied Strickland or denied his claim on an unreasonable determination of the facts. Indeed, the record before the post-conviction court supported its finding that trial counsel declined to object to the admission of the uncharged misconduct as part of a reasonable trial strategy - specifically, cultivating reasonable doubt by attacking B's credibility - and Petitioner has failed to rebut by clear and convincing evidence the post-conviction court's finding as to trial counsel's credibility on this point. See 28 U.S.C. § 2254(e)(1) (instructing that in a habeas proceeding, “a determination of a factual issue made by a State court shall be presumed to be correct[, ]” and that the petitioner “shall have the burden of rebutting the presumption of correctness by clear and convincing evidence”). The post-conviction court's determination that trial counsel was not deficient in his decision to forego objection therefore was not “so lacking in justification that there is an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 101; see alsoStrickland, 466 U.S. at 690-91 (instructing that “[s]trategic decisions made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable”). Accordingly, the post-conviction court's decision denying relief is entitled to deference, and habeas relief should be denied.
With respect to Petitioner's claim that trial counsel was ineffective for failing to object to improper statements by the prosecutor, failure to raise an objection during closing argument generally does not constitute deficient performance. Zapata v. Vasquez, 788 F.3d 1106, 1115 (9th Cir. 2015). Only where counsel remains silent in the face of “egregious” misconduct does the failure to object during closing argument fall below an objective standard of reasonableness. Id.; see also Necoechea, 986 F.2d at 1281 (explaining that “[b]ecause many lawyers refrain from objecting during opening statement and closing argument, absent egregious misstatements, the failure to object during closing argument and opening statement is within the ‘wide range' of permissible professional legal conduct”) (citing Strickland, 466 U.S. at 669). As explained above, the prosecutor's statements during closing argument did not rise to the level of misconduct, much less “egregious” misconduct warranting objection. See Zapata, 788 F.3d at 1112 (whether counsel's failure to object to a prosecutor's remarks during closing argument was deficient turns on whether the challenged remarks amount to objectionable misconduct). Accordingly, trial counsel's performance did not fall below an objective standard of reasonableness, and habeas relief should be denied.
IV. Unargued Claims
Petitioner does not argue the merits of the claims alleged in Grounds One, Three, Four, and Six through Twenty-four of the Amended Petition. Additionally, Petitioner does not attempt to refute Respondent's argument that those grounds are procedurally defaulted, nor has he demonstrated cause and prejudice to excuse the procedural default, or that a fundamental miscarriage of justice would occur if the Court declined to address his unargued claims. Accordingly, the district judge should deny habeas relief on Grounds One, Three, Four, and Six through Twenty-four because they are procedurally defaulted, and because Petitioner has failed to sustain his burden to demonstrate why he is entitled 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 the petitioner carries the burden of proving his case).
The court is unpersuaded by Petitioner's argument that the court should review all of his claims because the supporting brief merely “supplements” the arguments raised in his Pro Se petition. (Pet'r's Br. at 1; Pet'r's Sur-Reply at 16.) Even assuming a habeas petitioner can meet his burden by simply referencing arguments and exhibits submitted with his petition, the limited “supporting facts” and exhibits provided in this case do not adequately demonstrate that Petitioner is entitled to relief.
Conclusion
For the reasons stated, the district judge should DISMISS the Amended Petition for Writ of Habeas Corpus (ECF No. 70) 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 Findings and Recommendation will be referred to a district judge. Objections, if any, are due within fourteen 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 fourteen 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.