Opinion
2:17-cv-00763-MK
12-01-2021
EMMIT JOHN SULLIVAN, Petitioner, v. JERI TAYLOR, Superintendent, Eastern Oregon Correctional Institution, Respondent.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI, United States Magistrate Judge.
Petitioner brings this Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 and challenges his sodomy convictions on Sixth Amendment grounds. Petitioner contends that his trial counsel provided constitutionally ineffective assistance by failing to object to the prosecutor's closing argument and the trial court's jury instructions. Petitioner's claims are procedurally defaulted, and he fails to show cause and prejudice to excuse the default and permit federal court review. Accordingly, the Petition should be denied.
BACKGROUND
Petitioner was charged by indictment with two counts of Sodomy in the First Degree and two counts of Sodomy in the Second Degree. Resp't Ex. 102 at 6. The charges arose from the sexual assault of BF, a thirteen-year-old girl who was petitioner's neighbor for several months in 2007.
At trial, BF testified that she met petitioner when he moved into the trailer park where she lived. Transcript of Proceedings (Tr.) at 137. BF would visit petitioner's trailer to play video games, and one night petitioner began to touch her “privates” and told her to “suck his privates.” Tr. at 137-39. BF testified that petitioner unzipped his pants and she began to scream. Tr. at 140, 171. Petitioner placed his hand over BF's mouth and threatened to kill her if she did not comply. Tr. at 140, 185. BF did comply, and petitioner told BF that she could not tell anybody what had happened. Tr. at 140-41, 172. BF testified that, a few days later, petitioner told BF to pull down her pants and petitioner then put his “privates” in her “butt, ” making it bleed. Tr. at 141, 143-46, 183-84. BF testified that petitioner did not threaten her with violence during the second assault, but she was still afraid of petitioner because of his previous threat. Tr. at 146; see also State v. Sullivan, 253 Or.App. 103, 104-05 (2012) (describing the allegations and evidence against petitioner).
Citations to transcript page numbers indicate page numbers in the bottom right corner.
In January 2009, BF told her brother that petitioner had assaulted and raped her. Her brother said, “You're gonna tell Dad or I am.” Tr. at 149. BF then told her father, who notified law enforcement authorities. Tr. at 149-150, 193-94, 232. During the subsequent investigation, BF underwent a recorded, forensic interview at the Child Advocacy Center. Tr. at 232-33.
Petitioner was charged with four counts of sodomy and proceeded to trial. After trial by jury in June 2009, petitioner was convicted on all charges and sentenced to consecutive and concurrent terms of imprisonment totaling 200 months. Resp't Ex. 101.
After an unsuccessful direct appeal, petitioner sought post-conviction relief (PCR) in state court. Resp't Exs. 102-08. Petitioner's PCR counsel could not certify a meritorious claim for relief, and upon motion by the State, the PCR court dismissed the PCR petition for failure to state a claim. Resp't Exs. 109-14. Under Oregon law, a PCR petition dismissed for failure to state a claim is considered “meritless” and “a judgment dismissing a meritless petition is not appealable.” See Or. Rev. Stat. § 138.525(2), (3). Nonetheless, petitioner appealed the dismissal of his PCR petition and filed a Motion to Determine Jurisdiction. Resp't Ex. 115.
The Appellate Commissioner for the Oregon Court of Appeals found that Or. Rev. Stat. § 138.525(3) “renders the judgment non-appealable” and dismissed petitioner's appeal. Resp't Exs. 117-18. The Oregon Supreme Court dismissed the petition for review. Resp't Ex. 120.
On March 30, 2017, petitioner signed his federal Petition. Subsequently, this action was stayed to allow petitioner the opportunity to exhaust his state court remedies, and on February 20, 2020, petitioner's second PCR petition was dismissed on summary judgment. Resp't Exs. 122-23, 149, 154-55.
On October 22, 2020, petitioner filed an Amended Petition in this action and alleged that his trial counsel provided constitutionally ineffective assistance.
DISCUSSION
Petitioner raises two grounds for relief. In Ground One, petitioner alleges that trial counsel was ineffective by failing to object or seek curative action when “the prosecutor engaged in serial instances of misconduct” during closing argument and by failing to object or take exception to the jury instruction reciting the elements of Sodomy in the First Degree. Am. Pet. at 3-4. In Ground Two, petitioner claims that he received ineffective assistance of counsel due to the cumulative errors alleged in Ground One. Id. at 4-5.
Respondent maintains that petitioner did not fairly present his federal claims to the Oregon courts and they are unexhausted and barred from federal review through procedural default. See 28 U.S.C. § 2254(b)(1)(A); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004); Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Coleman v. Thompson, 501 U.S. 722, 732, 735 n.1 (1991). Petitioner concedes that his claims are procedurally defaulted. See Pet'r Brief at 5, 26. However, petitioner argues that the default should be excused pursuant to Martinez v. Ryan, 566 U.S. 1 (2012), because his PCR counsel was constitutionally ineffective in failing to certify and pursue “substantial” claims of ineffective assistance of trial counsel.
In Martinez, the Supreme Court held that “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.” Martinez, 566 U.S. at 17. To satisfy Martinez, a habeas petitioner must show that: 1) the underlying ineffective assistance of trial counsel claim is substantial; 2) the petitioner had ineffective counsel during the state collateral proceeding; 3) the state collateral proceeding was the initial review proceeding for the claim; and 4) state law required the petitioner to bring the claim in the initial review proceeding. Id. at 14; Trevino v. Thaler, 569 U.S. 413, 423 (2013).
Under Oregon law, a PCR proceeding is the first designated proceeding in which a petitioner must raise claims asserting the ineffective assistance of counsel. See State v. Robinson, 25 Or.App. 675 (1976) (holding that ineffective assistance claims generally must be resolved in a PCR proceeding). To meet the remaining two elements of the Martinez exception, petitioner must demonstrate that 1) his PCR counsel's performance was constitutionally deficient under the standards of Strickland v. Washington, 466 U.S. 668 (1984); and 2) his underlying ineffective assistance of trial counsel claims are “substantial” and have “some merit.” Martinez, 566 U.S. at 14. A claim has “some merit” if “reasonable jurists” would find the claim “debatable.” Miller-El v. Cockrell, 537 U.S. 322, 336, 338 (2003).
To establish a substantial claim of ineffective assistance under Strickland, a petitioner must show that 1) “counsel's performance was deficient” and 2) the “deficient performance prejudiced the defense.” 466 U.S. at 687. To establish deficiency and prejudice, a petitioner “must show that counsel's representation fell below an objective standard of reasonableness” and “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different” to Id. at 688, 694. Judicial review of an attorney's performance is “highly deferential” and counsel must be afforded “wide latitude … in making tactical decisions” during trial. Id. at 689-90.
Based on the record before the Court, trial counsel's performance was neither deficient nor prejudice and PCR counsel was not ineffective by failing to raise claims alleging the ineffective assistance of trial counsel.
A. Failure to Object to Improper Prosecutorial Statements
Petitioner first contends that the prosecutor made improper and egregious statements during closing argument and trial counsel was deficient in failing to object to them.
Generally, prosecutors and defense attorneys are given “reasonable latitude to fashion closing arguments” and make “reasonable inferences based on the evidence.” United States v. Molina, 934 F.3d 1440, 1445 (9th Cir. 1991). Accordingly, to violate a criminal defendant's constitutional rights, “it ‘is not enough that the prosecutors' remarks were undesirable or even universally condemned.'” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation omitted). Rather, “the relevant question is whether the prosecutors' comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” Id. (citation omitted). In making this assessment, courts should consider “(1) whether the prosecutor's comments manipulated or misstated the evidence; (2) whether the trial court gave a curative instruction; and (3) the weight of the evidence against the accused.” Tak Sun Tan v. Runnels, 413 F.3d 1101, 1115 (9th Cir. 2005).
Petitioner argues that the prosecutor impermissibly accused trial counsel of trying to “confuse” BF about the year in which the assaults occurred and vouched for BF's credibility in doing so. Although evidence at trial established that petitioner lived near BF for approximately six months in 2007, petitioner's counsel asked BF whether petitioner lived there in 2004, 2005, 2006, or 2008. Tr. 158-59, 198. BF responded, “Like I said, I don't know. I was there - I moved in before [petitioner] moved in.” Tr. 159. During closing argument, the prosecutor remarked that “the defense counsel did a very good job of trying to confuse [BF] as to the times, could it have been in 2004, five, six, she was just agreeing with him.” Tr. 321. The prosecutor also told the jury, “Do you remember when [BF] was being cross-examined by defense counsel and she was giving out dates it could have been 2004, 2005, 2005…Do not believe that [BF] has less credibility because she was not able to fully understand what defense counsel was getting at. She had already testified it was in 2007.” Tr. 324-25.
Petitioner's counsel did not object. Instead, counsel referred to the prosecutor's statements about the “timeline” in his own closing and argued that BF was “unclear whether it happened in 2008, 2007, 2006, 2005. That's relevant for two reasons. If you don't believe it happened in 2007, [petitioner]'s not guilty. But more importantly, it goes to her credibility.
These are important events, you would think she would remember when it happened.” Tr. 338-39. Counsel's decision to highlight BF's inability to recall the year petitioner moved near her, rather than object to the prosecutor's statements, was not unreasonable. See also United States v. Ruiz, 710 F.3d 1077, 1086 (9th Cir. 2013) (holding that the prosecutor's characterization of the defense's case as “smoke and mirrors” was directed at the strength of the defense and was not misconduct).
Petitioner also argues that trial counsel should have objected to the prosecutor's statements that the “only issue” was “did these acts occur?” and “if you believe [BF], the testimony of her rendition regarding the sexual assaults, the oral sex and the anal sex, if you believe that fact happened that she testified to, this trial is over. He is definitely guilty.” Tr. 320, 322. Petitioner argues that these statements misstated the law by omitting necessary elements of the offenses and “abrogated the presumption of innocence.” Pet'r Brief at 11. I disagree.
The prosecutor made the challenged comments in the context of discussing the elements of Sodomy in the First degree as charged against petitioner: 1) the act occurred in Jackson County; 2) the act occurred on or between January 1, 2007 and December 31, 2007; 3) petitioner knowingly had deviate sexual intercourse with BF; and 4) BF was subjected to forcible compulsion by petitioner. Tr. 318-319.
The prosecutor noted that issue of venue was not disputed and that numerous witnesses testified petitioner had moved into the trailer park in 2007, meaning that the abuse would have occurred in that year. Tr. 321. The prosecutor then argued that the only remaining issues were whether petitioner committed the sexual acts as BF had testified, and, if the jury found that the sexual acts had occurred, “whether or not forcible compulsion was used.” Tr. 322. Given BF's testimony that petitioner threatened her with violence, the prosecutor did not impermissibly argue that the primary issue before the jury was whether the acts, as alleged by BF, had occurred. See United States v. Young, 470 U.S. 1, 11 (1985) (stating that a prosecutor's allegedly improper comments “must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial”). The prosecutor's comments did not misstate the evidence or suggest that the presumption of innocence no longer applied. Rather, the prosecutor simply stated the obvious: if the jury believed BF's testimony and found that petitioner forced BF to engage in sexual acts by threatening her with violence, then petitioner was guilty of the charged offenses.
Next, petitioner argues that the prosecutor impermissibly vouched for the State's case when he made the following statements:
1) “[BF] did not bring this case, I did. I represent the state of Oregon.” Tr. 347;
2) “She didn't ask for this. She's had to go through this process because we have a child abuse reporting system. We follow through on the investigation, we got the evidence together, and we thought absolutely this guy did this and that's why we're here. The State's convinced beyond a reasonable doubt or we wouldn't be here in the first place.” Tr. 348;
3) “So the State's convinced you're gonna find him guilty on all four counts.” Tr. 333; and
4) “Maybe [petitioner's closing argument] will create reasonable doubt for you. If you do, you haven't paid attention to a word I've said and I'm lost. I might as well just sit down, because there's nothing else I can say to convince you differently. If you're not willing to use your common sense and reason and listen to the evidence as presented, he's walking.” Tr. 347.
“[P]rosecutorial vouching, which consists of either placing the prestige of the government behind the witnesses through personal assurances of their veracity or suggesting that information not presented to the jury supports the witnesses' testimony, is improper.” Molina, 934 F.2d at 1445. An exception to this prohibition is the “invited response” rule, which permits prosecutors to respond reasonably to “defense counsel's attacks” in closing argument. Young, 470 U.S. at 12. In other words, no constitutional violation occurs if defense counsel's argument or assertion clearly “invites” the allegedly improper comment.
The prosecutor's comments were not improper in the context of the evidence presented and petitioner's asserted defense. Petitioner's entire defense rested on the premise that then-thirteen-year-old BF “fabricated” the allegations against petitioner and “turned on him” because he “rejected” her during a camping trip with her family in the summer of 2008. Tr. 157, 341-42. In that context, the prosecutor permissibly explained that the case was pursued because BF's father, not BF, reported the abuse and the State believed the evidence and BF's testimony supported the charges against petitioner. See United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993) (“The prosecutor merely argued that Gibson was telling the truth, an argument the prosecutor had to make in order to convict Necoechea.”). After discussing the evidence rebutting petitioner's defense theory and referring to the strength of such evidence, the prosecutor commented that the State was “convinced” petitioner would be found guilty. Tr. 332-33, 346-48. Given that petitioner accused BF of lying, these comments were not egregious. See Darden, 477 U.S. at 182 (noting that “[m]uch of the objectionable content was invited by or was responsive to the opening summation of the defense” and less likely to render the trial unfair).
Further, the prosecutor merely told the jury that petitioner would be acquitted, or “walking, ” if the jurors had not “paid attention” to the evidence presented at trial. Tr. 347. It is not impermissible for prosecutors to argue that the evidence presented should result in a conviction, and trial counsel reasonably chose not to object. Molina, 934 F.3d at 1445 (prosecutors may make “reasonable inferences based on the evidence”). “Because 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.” Necoechea, 986 F.2d at 1281.
Finally, petitioner contends that the prosecutor inappropriately commented on petitioner's right to remain silent by arguing that the evidence was “uncontroverted” and “[t]he only person who testified about those physical acts that occurred is [BF], and she's believable.” Tr. 348. Petitioner argues that these comments were an “impermissible attack and comment” on his constitutional right to not testify.
It is well established that the Fifth Amendment prohibits a prosecutor from commenting on a defendant's decision not to testify, because such a comment would violate a defendant's Fifth Amendment privilege against self-incrimination. Griffin v. California, 380 U.S. 609, 615 (1965); United States v. Tarazon, 989 F.2d 1045, 1051 (9th Cir. 1993). However, “courts have maintained a distinction between comments about the lack of explanation provided by the defense, and comments about the lack of explanation furnished by the defendant, ” and prosecutors may “call attention to the defendant's failure to present exculpatory evidence more generally.” United States v. Mayans, 17 F.3d 1174, 1185 (9th Cir. 1994); see also Demirdjian v. Gipson, 832 F.3d 1060, 1068-69 (9th Cir. 2016). In contrast, a “prosecutor's comment is impermissible if it is manifestly intended to call attention to the defendant's failure to testify or is of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify.” Tarazon, 989 F.2d at 1051-52.
In this case, the prosecutor's challenged comments were made in response to defense counsel's argument that BF was lying about being sexually assaulted by petitioner. Before making these comments, the prosecutor reminded the jury of BF's recorded forensic interview in January 2009 and argued that she did not “fabricat[e] something from six months ago because [petitioner] rejected her. That makes no sense whatsoever.” Tr. 348. The prosecutor also explained that the State, not BF, brought the charges against petitioner based on the evidence and remarked that such evidence was “uncontroverted” and BF was “believable.” Id. The prosecutor's comments were not directed at petitioner or his silence, and in context, the jury would not have necessarily understood them to reference petitioner's decision not to testify as opposed to the strength of petitioner's defense. An objection would have highlighted the prosecution's comment, and counsel was not deficient by not objecting to it.
Finally, even if the comments were improper, the trial court instructed the jury that it could not infer guilt or any negative consequence from petitioner's decision to not testify: “A Defendant has an absolute constitutional right not to testify. Therefore, a Defendant's decision not to testify cannot be considered as an indication of guilt. It should not be commented on or in any way considered by you in your deliberations.” Tr. 315-16. The court further instructed that “opening and closing arguments of the lawyers are intended to help you understand the evidence[, ] although their statements and arguments are not part of the evidence, ” Tr. 115, and that jurors must base their “verdict on the evidence and these instructions. The lawyers' statements are not evidence.” Tr. 349; see Darden, 477 U.S. at 182 (noting that the “trial court instructed the jurors several times that their decision was to be made on the basis of the evidence alone, and that the arguments of counsel were not evidence”).
In sum, the prosecutor's comments were not egregious in the context of petitioner's asserted defense and the evidence presented, and the court's instructions diminished any improper effect they might have had. Accordingly, petitioner fails to show any deficiency or resulting prejudice arising from counsel's failure to object, and PCR counsel was not deficient in failing to raise related claims in petitioner's PCR proceeding.
B. Failure to Object to Erroneous Jury Instruction
Petitioner also alleges that trial counsel was ineffective by failing to object to the jury instruction that recited the elements of Sodomy in the First Degree, because the instruction failed to include a mens rea requirement. Specifically, the trial court instructed the jury that the State must prove BF “was subjected to forcible compulsion” by petitioner and did not instruct the jury that petitioner must have done so knowingly. Tr. 319.
Petitioner relies on State v. Nelson, in which the Oregon Court of Appeals held that the element of “forcible compulsion” is a material element requiring proof of a culpable mental state. 241 Or.App. 681, 688-89 (2011). However, the Oregon Court of Appeals decided Nelson in 2011, and petitioner went to trial in 2009. At that time, no Oregon court had held or suggested that a mental state applied to the element of forcible compulsion, and the Court of Appeals noted in Nelson that the “the task of determining whether an element of a crime is a material one ‘that necessarily requires a culpable mental state . . . has long vexed Oregon courts.'” Id. at 686 (citations omitted). In these circumstances, petitioner's trial counsel was not deficient in failing to anticipate the ruling in Nelson.
Moreover, even if trial counsel was deficient, petitioner cannot show prejudice arising from counsel's failure to object. The jury found that petitioner subjected BF to forcible compulsion, and he would have been prejudiced only if the jury could have found that he did so unknowingly. However, petitioner did not contend that he unknowingly subjected BF to forcible compulsion and instead argued that BF had fabricated the allegations altogether. Thus, petitioner's asserted defense theory did not depend on a mens rea element. See O'Hara v. Premo, 291 Or.App. 419, 424 (2018) (finding that the petitioner was not prejudice by counsel's failure to request the jury instruction required by Nelson because “we are aware of no theory by which the jury in this case could have found beyond a reasonable doubt that petitioner subjected the victim to forcible compulsion - as the jury did - while also finding that petitioner did so unknowingly”).
Accordingly, PCR counsel was not deficient in failing to raise an ineffective assistance of counsel claim based on trial counsel's lack of objection to the jury instruction.
CONCLUSION
For the reasons explained, the Amended Petition for Writ of Habeas Corpus (ECF No. 75) should be DENIED. A Certificate of Appealability should be denied on the basis that petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The parties may file specific written objections within fourteen (14) days from the date of service of a copy of this recommendation. If an objection is filed, any response to the objection is due within fourteen (14) days from the date of the objection. See Fed. R. Civ. P. 72. The parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).