Opinion
3: 16-cv-01392-YY
02-25-2021
MARISOL RUIZ, Petitioner, v. NANCY HOWTON, Superintendent, Respondent.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You United States Magistrate Judge.
Petitioner Marisol Ruiz, an inmate at the Coffee Creek Correctional Facility, brings this habeas corpus action pursuant to 28 U.S.C. § 2254 challenging her convictions and sentence for murder and criminal mistreatment. For the reasons set forth below, the Amended Petition for Writ of Habeas Corpus [32] should be denied, and judgment should be entered dismissing this action with prejudice. Petitioner's Motion for Leave to File a Second Amended Petition [72] also should be denied.
I. Factual and Procedural Background
The victim in this case, petitioner's three-year-old stepson, B.R., was dead when petitioner and B.R.'s father, petitioner's husband Roberto Ruiz (“Roberto”), brought him to the Holy Rosary Hospital in Ontario, Oregon, at approximately 11:20 a.m. on June 27, 2006. B.R. 1 - FINDINGS AND RECOMMENDATIONS had massive bruising over his entire body, including on his head, chest, scrotum, back, and legs. The medical examiner determined that blunt force trauma to the back of B.R.'s head caused his death. In addition, the medical examiner noted that B.R. had fresh injuries to his face, abdomen, arms, legs, and scrotum/penis area that would have been sustained just before or, at most, within a few hours of his death. B.R. also had extensive older injuries that he likely incurred in the days and weeks before his death. Significantly, the medical examiner opined that a single accident or fall could not have caused all of B.R.'s fresh injuries. Rather, she concluded they were consistent with someone severely assaulting B.R. on the morning he died.
Petitioner never called for emergency help. Instead, she attempted to revive B.R. with water and then loaded him and the other children into the family vehicle and quickly drove to Roberto's work site at a nearby farm. From there, Roberto drove them all to the hospital.
Petitioner was indicted for murder on the theory that she caused B.R.'s death “by abuse, ” i.e., she “recklessly under circumstances manifesting extreme indifference to the value of human life, caus[ed] the death of a child under 14 years of age, by abuse . . . having previously engaged in a pattern or practice of assault” on B.R. Resp. Ex. 102 [20-1]; see O.R.S. 163.115(1)(c). She also was indicted for two counts of criminal mistreatment in the first degree on two different theories: (1) by knowingly withholding necessary and adequate food, physical care, or medical attention from B.R., see O.R.S. 163.205(1)(a); and (2) having assumed the care, custody, and responsibility for the supervision of B.R., a dependent person, knowingly caused physical injury to B.R., see O.R.S. 163.205(1)(b)(A). Resp. Ex. 102 [20-1].
Petitioner waived her right to jury trial and tried her case to the court. At trial, several witnesses testified about witnessing petitioner's physical abuse of B.R. and observing bruises on him. Other witnesses testified that B.R. was extremely active and would jump off things, often injuring himself, and several witnesses testified about incidents where Roberto abusively disciplined B.R.
Experts for both sides testified regarding whether B.R. could have sustained the fatal blow to the back of his head by falling off the kitchen counter. Petitioner's expert opined that, though it would be unusual, B.R. could have sustained the fatal injury from falling off the kitchen counter or even falling as he climbed up the counter. He conceded, however, that B.R.'s other fresh injuries such as bruising to the front of the head, trauma to the groin area, and internal bleeding would not be consistent with a fall from the counter, given the B.R.'s suffered an injury to the back of head.
On July 26, 2007, after a seven-day bench trial, the trial judge found petitioner guilty of murder and the charge of criminal mistreatment in the first degree pertaining to her physical injury of B.R., and acquitted her on the other count of criminal mistreatment in the first degree pertaining to the withholding of food, physical care, and medical attention from B.R. On the murder count, petitioner was sentenced to life with the possibility of parole after a minimum of twenty-five years. Resp. Ex. 101 [20-1]. Petitioner's conviction for criminal mistreatment in the first degree merged with the murder conviction. Id.
Petitioner directly appealed her convictions and sentence. The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Resp. Ex. 103-107 [20-1].
Petitioner thereafter filed a petition for post-conviction relief (“PCR”) in state court, which was denied. Ruiz v. Howton, Washington County Circuit Court No. C116341CV; Resp. Ex. 118 [20-1]. The Oregon Court of Appeals affirmed without opinion. Ruiz v. Howton, Oregon Court of Appeals No. A158465; Resp. Ex. 121 [20-3]. Petitioner did not pursue a petition for review with the Oregon Supreme Court, and an appellate judgment was issued on June 22, 2016. Id.
Petitioner filed this federal habeas action on June 20, 2016. Her grounds for relief as set forth in her Amended Petition [32] are as follows:
First Claim: Ineffective Assistance of Trial Counsel
1. Trial counsel failed to have petitioner examined by an appropriate psychological expert to confirm her mental state at the time of the alleged offense and during pretrial and trial proceedings. Claim (9)(A)(1)
2. Trial counsel failed to provide petitioner with all discovery prior to trial and negotiation proceedings so that she could evaluate her exposure in the case. Claim (9)(A(2)
3. Trial Counsel failed to adequately advise petitioner regarding her exposure, to ensure she understood her exposure and to apprise her of the benefits of the plea offer. Claim (9)(A)(3)
4. Trial counsel failed to adequately advise petitioner about pleas, including options of pleading no contest or agreeing to a stipulated facts trial. Claim (9)(A)(4).
5. Trial counsel failed to conduct necessary pretrial investigation, including failing to obtain evidence documenting the lack of injury to the child and obtaining witnesses regarding the bias of the witnesses against petitioner. Claim (9)(A)(5)
6. Trial counsel failed to adequately advise petitioner regarding her waiver of her right to a jury trial. Claim (9)(B)(1)
7. Trial counsel failed to call available and appropriate witnesses to substantiate the bias of the witnesses against petitioner, including: (1) evidence that members of her husband's family disliked her and would lie on his behalf; (2) evidence that witnesses lied in their grand jury statements and in their statements to police; (3) evidence that witnesses were not legally in the country and faced deportation if they did not testify in support of the prosecution's case; and (4) testimony from numerous witnesses that would have been exculpatory to petitioner and inculpatory to her husband. Claim (9)(B)(2)(a-d)
8. Trial counsel failed to obtain and present documentary evidence that would have proven that there was no visible evidence of assault to the child. Claim (9)(B)(3)
9. Trial counsel failed to appropriately examine prosecution witnesses on their bias against petitioner and their knowledge her husband had been physically violent with the child, was involved in drug trafficking and that he had been violent with petitioner. Claim (9)(B)(4)
10. Trial counsel failed to raise and preserve appropriate challenges and objections to the evidence including: (a) objections to evidence introduced in violation of petitioner's confrontation rights guaranteed by the Sixth and Fourteenth Amendments, as recognized in Crawford v. Washington, 541 U.S. 36 (2004); (b) counsel failed to seek competency hearings for the child witness; and (c) counsel failed to object to the introduction of other allegations of wrongdoing which should have been excluded under Oregon law and applicable federal constitutional holdings. Claim (9)(B)(5)(a-c)
11. Trial counsel failed to obtain and present appropriate experts and to ensure the expert called was able to testify in person. Claim (9)(B)(6)
12. Trial counsel failed to maintain their files for review by PCR counsel. Claim (9)(C)
Second Claim: Deprivation of the Right to a Jury Trial
1. Trial counsel failed to adequately advise petitioner regarding her right to a trial before an impartial jury that constituted a representative cross-section of the community. Claim (12)(A)
2. Petitioner's waiver of her right to a jury trial was not knowing, intelligent and voluntary, for reasons including the fact that she had been improperly advised regarding such rights. Claim (12)(B)
Third Claim: Violations of the Right to Confrontation
Petitioner's conviction and sentence violate her rights under the Sixth and Fourteenth Amendments because out of court statements obtained from witnesses were admitted into evidence in violation of her confrontation rights as recognized in Crawford v. Washington, 541 U.S. 36 (2004). Claim (15)
Fourth Claim: Violations of Due Process and Equal Protection
1. The trial court erroneously allowed the introduction of evidence that violated petitioner's confrontation rights guaranteed by the Sixth and Fourteenth Amendments, as recognized in Crawford v. Washington, 541 U.S. 36 (2004). Claim (19)(A)
2. The trial court erroneously allowed the introduction of the testimony of a child witness who was incompetent to testify. Claim (19)(B)
3. The trial court erroneously allowed introduction of other allegations of wrongdoing by petitioner which should have been excluded under Oregon law and applicable federal constitutional holdings. Claim (19)(C)
4. The trial court erroneously required petitioner's expert to testify by telephone, depriving her of the right to confront the evidence against her and present a defense in person, and precluding creation of a full and appropriate transcript of all testimony. Claim (19)(D)
5. The trial court erroneously denied the motion for judgment of acquittal on Counts 1 and 3, both at the close of the prosecution's case and the close of all evidence, because there was insufficient evidence to convict petitioner of those charges under applicable Oregon law. Claim (19)(E)
Fifth Claim: Ineffective Assistance of Appellate Counsel
1. Counsel failed to raise available and appropriate challenges to petitioner's trial and sentencing proceedings, including: (1) challenges regarding the evidence introduced in violation of petitioner's confrontation rights; (2) challenges regarding the introduction of the testimony of a child witness without adequate determination of competency; and (3) challenges regarding the introduction of other allegations of wrongdoing. Claim (22)(A)(1-3)
2. Counsel failed to maintain their files so that they could be obtained and reviewed by post-conviction counsel. Claim (22)(B)
Sixth Claim: Insufficient Evidence and Actual Innocence
Petitioner's conviction and sentence violate her rights under the Fifth and Fourteenth Amendments because there is insufficient evidence to convict her of Murder and the other charges against her under Oregon law, and she is actually innocent of that charge under the required elements of Oregon law. Claim (25)
Seventh Claim: Cumulative Error
While any particular error may not, when viewed individually, require a grant of relief, petitioner contends that the cumulative effect of the multiplicity of errors rendered her trial and revocation proceedings fundamentally unfair, had a substantial and injurious impact on the adjudication of guilt and sentencing, and requires relief from her conviction and sentence. Claim (28)
II. Unargued Claims
In her briefing, petitioner argues only two claims: (1) ineffective assistance of trial counsel for failing to object to the introduction of the STAR Center video of E.R. (B.R.'s older sister and Roberto's daughter from his first marriage) as a violation of petitioner's confrontation rights guaranteed by the Sixth and Fourteenth Amendments, and for failing to seek a competency hearing regarding E.R. (Claim (9)(B)(5)(a)(b)); and (2) ineffective assistance of trial counsel during pretrial plea negotiations based on counsel's failure to adequately advise petitioner about the plea offer, her options in the bargaining process, and the risk of conviction if she went to trial (Claim (9)(A)(3)).
Petitioner asserts other claims faulting the trial court and appellate counsel for their alleged failures vis-à-vis the introduction of E.R.'s STAR Center video and her competency to testify at trial. However, petitioner concedes these claims are procedurally defaulted, and she fails to develop her arguments alleging that Oregon's procedures for providing representation to indigent prisoners constitute cause and prejudice sufficient to excuse the default of these claims. Accordingly, these claims should be denied on the basis that they are procedurally defaulted and petitioner is unable to excuse the default.
Where petitioner does not support her remaining claims with argument, she has not carried her burden of proof with respect to those claims. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (holding petitioner bears the burden of proving his claims). And, even if petitioner had briefed the merits of these unargued claims, a review of the record indicates that they would not entitle her to relief. Accordingly, the unargued claims should be denied.
III. Procedural Default and the Martinez Exception
With respect to those claims that petitioner has briefed, respondent asserts that petitioner failed to fairly present them to the Oregon state courts, leaving them procedurally defaulted.
A habeas petitioner must exhaust her clams 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, 915-16 (9th Cir. 2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 257 (1986)). If a habeas litigant failed to present her claims to the state courts in a procedural context in which their merits were actually considered, the claims have not been fairly presented to the state courts. Edwards v. Carpenter, 529 U.S. 446, 453 (2000); Castille v. Peoples, 489 U.S. 346, 351 (1989). A petitioner is deemed to have “procedurally defaulted” her claim if she failed to comply with a state procedural rule or failed to raise the claim at the state level at all. Carpenter, 529 U.S. at 451; Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Where 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). Ordinarily, “cause” to excuse a default exists if a petitioner can demonstrate that “some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Coleman, 501 U.S. at 753. In Coleman, the Supreme Court held that ineffective assistance of counsel in post-conviction proceedings does not establish cause for the procedural default of a claim. Id. However, in Martinez v. Ryan, 566 U.S. 1, 17 (2012), the Supreme Court established a “narrow exception” to the rule announced in Coleman:
Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.See also Trevino v. Thaler, 569 U.S. 413, 423 (2013) (noting that Martinez may apply to a procedurally defaulted trial-phase ineffective assistance of counsel claim if “the claim . . . was a ‘substantial claim [and] the ‘cause' consisted of there being ‘no counsel' or only ‘ineffective' counsel during the state collateral review proceeding”).
The Ninth Circuit has held that to demonstrate cause and prejudice under Martinez sufficient to excuse the procedural default, a petitioner must make two showings. First, to establish cause, the petitioner must show that PCR counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984), which requires a showing that PCR counsel's performance was deficient and that there was a reasonable probability that, absent the deficient performance, the result of the PCR proceeding would have been different. Clabourne v. Ryan, 745 F.3d 362, 376-77 (9th Cir. 2014), overruled on other grounds by McKinney v. Ryan, 813 F.3d 798 819 (9th Cir. 2015). Determining whether there was a reasonable probability of a different outcome “is necessarily connected to the strength of the argument that trial counsel's assistance was ineffective.” Id. at 377-78. Second, to establish prejudice, the petitioner must show that the “underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.” Id.
With regard to a petitioner's claims of ineffective assistance of trial counsel, the Supreme Court has established a two-part test to determine whether the petitioner has received ineffective assistance of counsel. First, the petitioner must show that trial counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 686-87. Due to the difficulties in evaluating an attorney's performance, courts must indulge a strong presumption that the conduct falls within the “wide range of reasonable professional assistance.” Id. at 689.
Second, the petitioner must show that trial counsel's performance prejudiced the defense. The appropriate test for prejudice is whether the defendant can show “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 that is sufficient to undermine confidence in the outcome of the trial.
When considering ineffective assistance of counsel claims under 28 U.S.C. §2254(d), “it is the habeas applicant's burden to show that the state court applied Strickland to the facts of his case in an objectively unreasonable manner.” Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curium). Moreover, where a state court has adjudicated an ineffective assistance of counsel claim on the merits, a habeas court's review of a claim under the Strickland standard is “doubly” deferential. Harrington v. Richter, 562 U.S. 86, 105-06 92011); Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
A. Ineffective Assistance of Trial Counsel for Failing to Adequately Advise Petitioner During Pretrial Plea Negotiations (Claim (9)(A)(3))
Petitioner concedes that while she presented this claim to the PCR trial court, she failed to raise it on appeal. Because the time for appealing the PCR trial court's denial on the merits of this claim passed long ago, it is procedurally defaulted. Petitioner acknowledges, as she must, that this claim is defaulted per Coleman and Davila v. Davis , 137 S.Ct. 2058 (2017), but suggests Davila is unduly restrictive and preserves her right to continue to assert this claim.
Petitioner's arguments notwithstanding, Davila makes clear that the holding in Martinez only applies to the performance of PCR counsel during the initial level of collateral review and does not apply to claims involving alleged errors of PCR appellate counsel. 137 S.Ct. at 2065 (“Petitioner asks us to extend Martinez to allow a federal court to hear a substantial, but procedurally defaulted, claim of ineffective assistance of appellate counsel when a prisoner's state postconviction counsel provides ineffective assistance by failing to raise that claim. We decline to do so.”). Accordingly, this claim must be denied on the basis that it is procedurally defaulted and petitioner is unable to excuse its default. Moreover, even if the court considered this claim, given the PCR court's relevant findings of fact, including key credibility findings, this claim would be denied on the merits, even on de novo review.
Petitioner testified before the PCR trial court that, if she had known her chances of losing at trial were worse than the “50/50” odds her trial attorneys had given her, she would have accepted the offer to plead guilty to manslaughter with a ten-year sentence. Resp. Ex. 117, at 30 [20-3]. However, both of petitioner's attorneys submitted affidavits stating that they never told their clients percentage estimates for prevailing at trial. Id. at 37. The PCR trial judge rejected petitioner's testimony, stating, “[T]his Court does not believe that the attorneys predicted a 50/50 chance of prevailing, ” and “I believe the attorneys advised Petitioner to take the deal” but petitioner “wanted to go to trial and argue that it was the father who caused the death.” Id. at 38. The PCR trial judge observed that this was a “[v]ery, very difficult position to take in this case based on the long-term, significant damage to this child.” Id. The PCR trial judge further noted that the medical report was “terrible for the Petitioner” and that petitioner was at home with the child when he died. Id.
B. Ineffective Assistance of Counsel for Failing to Object to the Introduction of E.R.'s STAR Video as a Violation of Petitioner's Confrontation Rights Guaranteed by the Sixth and Fourteenth Amendments, and for Failing to Seek a Competency Hearing for E.R. (Claim (9)(B)(5)(a)(b))
Citing Wheeler v. United States, 159 U.S. 523, 524-25 (1895), petitioner faults trial counsel with failing to seek a hearing to ensure child-witness E.R., whom petitioner asserts was three at the time of the murder, was competent to testify at trial. In Wheeler, the Supreme Court examined whether the five-year-old son of a deceased victim was competent to testify at a homicide trial. The homicide took place on June 12, 1884, the child turned five on July 5, 1884, and the case was tried on December 21, 1884, when the child was nearly five and a half. In assessing the child's competency to testify, the Court noted that the child discussed the difference between the truth and a lie, stated he could be jailed for lying, and stated that his mother and the clerk had instructed him not to lie. The Court ultimately concluded the child was competent to testify.
Here, petitioner observes that E.R. was “three years old at the time of the incident, and only four years old at the time of trial.” Reply 2-3 [71]. Petitioner seizes on Wheeler's admonition that “no one should think of calling as a witness an infant two or three years old” to argue that her trial attorneys rendered ineffective assistance when they failed to seek a competency hearing for E.R.
Petitioner states that E.R. was the “step-sibling” to B.R. In fact, E.R. and B.R are Roberto's biological children from his first marriage to Crystal Ruiz, their mother, and therefore are full siblings. Tr. 337 [21-2].
However, the record establishes that E.R. was born on July 4, 2001, not in 2002 as petitioner states. At trial, Roberto testified that E.R. was older than B.R. and born the “4th of July of '03 . . . no, ‘02.” Tr. 337 [21-2]. However, in the context of the entire record, it is apparent he was mistaken about the year E.R. was born. Several places in the record, including in petitioner's direct appeal, in hospital records, and in investigative and agency reports, E.R.'s date of birth is recorded as July 4, 2001, or it is noted that she was four at the time of B.R.'s death. See Resp. Ex. 103, at 14 (petitioner's summary of facts on direct appeal, stating, “[Roberto] had a 4-year-old daughter”); Resp. Ex. 116, at 8 (Malheur County Sheriff Office Incident Report dated March 21, 2007, listing E.R.'s date of birth as July 4, 2001, and noting she is four years old); id. at 34 (“When Deputy Perkins finished talking with Roberto, he and Lana Davis from DHS briefly spoke with [E.R.], Roberto's four-year-old daughter.”); id. at 219 (Caldwell Supplemental Police Report dated October 12, 2005, listing E.R.'s date of birth as July 4, 2001); and id. at 255 (Oregon DHS records listing E.R.'s date of birth as July 4, 2001).
Roberto also was confused about the year that he and petitioner married. When asked what year they were married, he initially said “‘02” then answered, “‘03. ‘02. No. I think it was ‘05, somewhere around there.” Tr. 336 [21-2]. Upon further questioning, he agreed it was possible he and petitioner married in 2006. Id.
Moreover, in her STAR interview on June 29, 2006, two days after the murder, E.R. told Angela Sutton, her interviewer, that she was four years old, and E.R.'s date of birth is listed as July 4, 2001, in Sutton's summary of the interview. Id. at 182. Finally, given B.R.'s date of birth was July 27, 2003, it is fantastically improbable that these children were born to the same mother less than seven months apart-especially given the weight of contrary evidence as to E.R.'s true age.
Petitioner's daughter from a prior relationship, N.S., turned three in May 2006. Perhaps this is the source of confusion as to as to E.R.'s age and her relationship with B.R. Regardless, the record establishes that E.R. was four years old (less than one week shy of her fifth birthday) at the time of the murder and during her STAR interview, and five years old (approximately two weeks shy of her sixth birthday) at the time of trial. Notably, E.R.'s ages at the time of the murder, her interview, and the trial track closely with the respective ages of the child witness in Wheeler who was just under five at the time of the homicide and five and a half at the time of trial.
Notably, N.S. was not interviewed at the Star Center because of her age. Resp. Ex. 116, at 156 [20-2] (“A protocol interview was scheduled” at the STAR center for N.S., “but due to her age the interview was not conducted.”).
Having established E.R.'s true age, and guided by Wheeler, it is a straightforward matter to conclude that Martinez cannot excuse the default of this claim. Despite the Wheeler court's specific concern over two- or three-year-old witnesses, it made clear that there is no precise age when a child becomes competent to testify. Rather, competency depends on “the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former.” Wheeler, 159 U.S. at 524. Importantly, the Court found that “[t]he decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence, as well as his understanding of the obligations of the oath.” Id. at 524-25.
Here, while the formal process of qualifying E.R. as a witness was brief, it covered the key points discussed in Wheeler. In response to the trial judge's questions, E.R. recited her first and last name and indicated that she would carefully listen to the attorneys' questions and answer them as best as she could. Tr. 548-49 [21-2]. E.R. demonstrated that she knew the difference between a truth and a lie via her dialogue with the prosecutor about the true color of his shirt (pink is a lie, white is the truth), and she expressed her understanding that she had to tell the truth in court:
Q And are you allowed to tell lies in court?
A No.
Q Okay. So can you promise to tell only the truth today?
A Yes.Tr. 550-51 [21-2].
As for an assessment of E.R.'s “capacity and intelligence, ” the trial court had adequate opportunity and was in the best position to make this assessment. Indeed, while petitioner's trial counsel were conferring prior to their opportunity to cross-examine E.R., the trial judge engaged E.R. in further conversation by asking her about her dress, what color it was, where she got it, and how she selected it. Id. at 552. Even though this conversation occurred after E.R.'s direct testimony, it bolsters the conclusion that the trial court did not err in allowing E.R. to testify due to incompetency. See State v. Sullivan, 217 Or.App. 208, 212 (2007) (“OEC 601 provides that ‘any person who, having organs of sense can perceive, and perceiving can make known the perception to others, may be a witness.' The rule ‘establishes a liberal standard for competency of witnesses.'”) (quoting Laird C. Kirkpatrick, Oregon Evidence §601.03(1), Art. VI (4th ed. 2002)).
Petitioner takes issue with the fact that E.R.'s testimony was very brief and the majority of her statements “were admitted through a tape recorded statement made when she was three years old, and which was played at trial.” Reply 3 [71]; see Tr. 520 [21-2]. Again, as noted, E.R. was in fact just a few days shy of five years old when the tape was made. Also, notably, the trial judge and attorneys viewed the one-hour and 28-minute video recording of E.R.'s STAR interview prior to her testimony. Tr. 522 [21-2]. If anything, this provided petitioner's counsel and the trial judge with additional relevant context bearing on E.R.'s competency as a witness, including her ability to perceive, recall, and relate information.
At trial, E.R. testified she remembered the day B.R. died, he died at petitioner's house, and she was present. When asked, “Did you hear some stuff?, ” E.R. replied, “I can't remember, ” and her questioning ended shortly after that. Tr. 551 [21-2].
Finally, petitioner argues that trial counsel's failure to challenge E.R.'s competency was particularly harmful because the trial court relied so heavily on E.R.'s testimony to find petitioner guilty. Reply 5 [71]. But while the trial judge found E.R.'s statements to be the “[p]robably the most compelling evidence, ” the trial judge did not accept E.R.'s testimony without considering them “carefully.” The trial judge specifically acknowledged that “a statement of children in cases like this have to be viewed carefully; they tend to combine times and combine events, just as she did[.]” Tr. 865-66 [21-3]. The trial judge ultimately found E.R.'s statements convincing because they were consistent with the other evidence in the record. The trial judge recounted the substance of E.R.'s videotaped statement:
[A]t the time this happened her father was at work, that [B.R.] was in the kitchen and made a mess, that mommy, the defendant, in her words, spanked him. It's not clear whether she saw this or simply heard it but she was aware of it. That [B.R.] died in the kitchen. That mommy tried to revive him with water. That she then put [B.R.] and the kids in the car and drove to find dad. And that dad then drove them to the hospital.Id. at 866. The trial judge then explained that “[w]hat makes that convincing is that it is also consistent with the other evidence in case, ” specifically, the evidence that Roberto was in fact at work, and that other witnesses observed petitioner drive to Roberto's place of employment, pick him up, and proceed to the hospital. Id. These consistencies are what convinced the trial judge to believe E.R.'s statements, after “carefully” viewing her statements in light of her age, which was almost five at the time she made them, not three as petitioner argues.
In sum, neither E.R.'s age nor the record suggest petitioner's trial counsel's actions in failing to seek a competency hearing or in otherwise failing to challenge the trial court's decision to allow E.R. to testify, fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88. Also, petitioner cannot show prejudice because nothing in this record suggests that, even if petitioner's attorneys had asked for a competency hearing, the trial judge would have had any reason to preclude E.R.'s statements based on lack of competency. Petitioner cannot show either that the underlying ineffective assistance of trial counsel claim is a “substantial one” or that PCR trial counsel rendered ineffective assistance in failing to raise that claim. Accordingly, petitioner has failed to meet her burden under Martinez and is not entitled to relief on these defaulted claims.
IV. Motion for Leave to Amend
On the same day that petitioner filed her reply brief, she filed a motion for leave to file a second amended petition. Mot. Leave File Second Am. Pet. [72]. Petitioner seeks to add claims that: (1) her trial attorneys were ineffective in failing to object to the prosecution's facially deficient notice of intent to proffer hearsay, and the subsequent admission of such hearsay (Proposed Claim (9)(5)(d)); and (2) relatedly, that her direct appeal attorneys were ineffective for failing to raise challenges regarding the prosecution's failure to provide a statutorily sufficient notice of intent to present hearsay (Proposed Claim (22)(A)(4)). Respondent objects to petitioner's motion on grounds that: the claims are untimely and do not relate back to a timely-filed claim; there has been undue delay in raising these claims, which results in prejudice to respondent; and amendment is futile both because the notice did not violate Oregon law at the time it was filed and petitioner cannot overcome default of an ineffective assistance of appellate counsel claim. Resp. Obj. 3-4 [73] (citing Davila, 137 S.Ct. at 2066 (holding Martinez only excuses claims of trial counsel error)).
O.R.S 40.460(18a)(b) requires that, for statements made by a person concerning an act of abuse, no such statements may be admitted unless the “proponent of the statement makes known to the adverse party the proponent's intention to offer the statement and the particulars of the statement no later than 15 days before trial, except for good cause shown.”
Under Federal Rule of Civil Procedure 15(a), a party may amend a pleading once as a matter of course within 21 days of service, or if the pleading is one to which a response is required, 21 days after service of a motion under Rule 12(b), (e), or (f). “In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave.” Fed. R. Civ P. 15(a)(2).
Granting or denying leave to amend a complaint lies within the discretion of the court, Swanson v. United States Forest Service, 87 F.3d 339, 343 (9th Cir. 1996), though leave should be “freely give[n] when justice so requires.” Fed. R. Civ P. 15(a)(2). “In exercising this discretion, a court must be guided by the underlying purpose of Rule 15 to facilitate decision on the merits, rather than on the pleadings or technicalities.” United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981). Consequently, the policy to grant leave to amend is applied with extreme liberality. Id.
However, there is no abuse of discretion “in denying a motion to amend where the movant presents no new facts but only new theories and provides no satisfactory explanation for his failure to fully develop his contentions originally.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (citing Allen v. City of Beverly Hills, 911 F.2d 367, 374 (9th Cir. 1990)). After a defendant files an answer, leave to amend should not be granted where “amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, or creates undue delay.” Madeja v. Olympic Packers, LLC, 310 F.3d 628, 636 (9th Cir. 2002) (quoting Yakama Nation Indian Nation v. Washington Dep't of Revenue, 176 F.3d 1241, 1246 (9th Cir. 1999)).
Leave to amend may be denied based upon futility alone. See Bonin, 59 F.3d at 845 (“Futility of amendment can, by itself, justify the denial of a motion for leave to amend.”). Here, amendment would be futile because petitioner's proposed claims are untimely and she is not entitled to equitable tolling.
A. Timeliness and Relation Back
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) has a one-year statute of limitations. 28 U.S.C. § 2244(d)(1). Under Rule 15(c)(1)(B), which applies to habeas proceedings, “[a]n amendment to a pleading relates back to the date of the original pleading when . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out . . . in the original pleading.” See Mayle v. Felix, 545 U.S. 644 (2005) (applying Rule 15 to habeas proceedings pursuant to 28 U.S.C. § 2242, which provides that a habeas petition “may be amended . . . as provided in the rules of procedure applicable to civil actions”).
A new claim does not arise out of same “conduct, transaction, or occurrence” as claims in the original petition merely because the claims all challenge the same trial, conviction, or sentence. Id. at 655-64.
Congress enacted AEDPA to advance the finality of criminal convictions. . . . To that end, it adopted a tight time line, a one-year limitation period ordinarily running from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review, ” 28 U.S.C. § 2244(d)(1)(A). If claims asserted after the one-year period could be revived simply because they relate to the same trial, conviction, or sentence as a timely filed claim, AEDPA's limitation period would have slim significance.Id. at 662.
Rather, Rule 15(c) permits relation back of habeas claims “only when the claims added by amendment arise from the same core facts as the timely filed claims, and not when the new claims depend upon events separate in ‘both time and type' from the originally raised episodes.” Id. at 657. Otherwise stated, “relation back depends on the existence of a common ‘core of operative facts' uniting the original and newly asserted claims.” Id. at 659.
In petitioner's original and first amended petitions, which were timely filed on June 20, 2016, and September 22, 2017, respectively, petitioner did not present any claims related to the sufficiency of the prosecutor's notice of intent to offer hearsay statements under Oregon law. The new claims that petitioner proffers are discreet claims involving trial and appellate counsel's alleged failures to object to specific statutory notice requirements. They do not share the same common core of operative facts or legal theory as any of the claims set forth in the original or amended petitions. Mayle, 545 U.S. at 659. Therefore, they do not relate back.
B. Equitable Tolling
The one-year limitations period is intended to protect the federal judicial system from having to address stale claims. Guillory v. Roe, 329 F.3d 1015, 1018 (9th Cir. 2003). To effectuate that objective, the bar to achieve equitable tolling is set very high. Id. A habeas petitioner is entitled to equitable tolling of the one-year statute of limitations only if she shows that (1) she has been pursuing her rights diligently, and (2) some extraordinary circumstance prevented timely filing. See Holland v. Florida, 560 U.S. 631, 634 & 648 (2010); Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). The petitioner bears the burden of alleging facts sufficient to support equitable tolling. Pace v. Di Guglielmo, 544 U.S. 408, 418 (2005).
Here, petitioner asserts that she was unaware of the basis for her proposed amended claims until December 6, 2018, when respondents filed the Notice of Intent to Offer Statements as a supplemental exhibit in conjunction with their response to petitioner's brief in support of her petition for habeas corpus . See Supp. Resp. Ex. [61-1]. Petitioner contends she was unaware of the notice because her trial file was lost, and her appellate counsel is deceased. However, the notice bears a stamp indicating it was filed in Malheur County Circuit Court on May 25, 2007, so presumably it has been available for review as a public document in the court file. Id. Additionally, the trial transcript references petitioner's trial attorney's understanding that the prosecution had filed a “motion to allow that testimony [i.e., E.R.'s STAR interview] because she-the child is actually going to be here and testify tomorrow.” Tr. 519 [21-2]. Given the public filing of the document coupled with reference in the transcript to issues of notice pertaining to the statements, petitioner cannot demonstrate that she diligently pursued her rights and that some extraordinary circumstance prevented her from timely filing these proposed claims.
Because the proposed claims are untimely and do not warrant equitable tolling, amendment would be futile and the Motion [72] should be denied on that basis.
RECOMMENDATIONS
Petitioner's Motion for Leave to File an Amended Complaint [72] should be DENIED. The Amended Petition for Writ of Habeas Corpus [32] should be DENIED, and judgment DISMISSING this case with prejudice should be entered. A certificate of appealability should be DENIED.
28 U.S.C. § 2253(c)(2) provides that a certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” A substantial showing is made when the resolution of an issue of appeal is debatable among reasonable jurists, if courts could resolve the issues differently, or if the issue deserves further proceedings. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Those factors are not present here.
SCHEDULING ORDER
The Findings and Recommendations will be referred to a district judge. Objections, if any are due by March 11, 2021. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
A party may respond to another party's objections within 14 days after the objections are filed. If objections are filed, review of the Findings and Recommendation will go under advisement upon receipt of the response, or the latest date for filing a response.
This court must defer to the PCR trial court's relevant findings of fact absent clear and convincing evidence to the contrary. See Sharpe v. Bell, 593 F.3d 372, 378-79 (4th Cir. 2010) (citations omitted) (“While Section 2254(d) thus has no application in the context of a Schulp claim because it pertains only to a ‘claim that was adjudicated' in state court, Section 2254(e)(1) does come into play because it refers to the ‘determination of a factual issue'- that is, to a state court's finding of fact, rather than its conclusions of federal law.”).