Hicks v. Bartlett, No. 1:2007cv00746 - Document 47 (D. Or. 2009)
Court Description: Opinion and Order. Based on the foregoing, Hick's Second Amended Petition for Writ of Habeas Corpus 45 is GRANTED. Respondent shall release Hicks from custody and vacate his convictions unless the State retries him within 60 days. The Court notes Hicks has served 96 months in prison. Signed on 11/19/2009 by Judge Owen M. Panner. (dkj)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON ROBERT B. HICKS, CV. 07-746-PA Petitioner, v. OPINION AND ORDER NANCY HOWTON, Respondent. NELL BROWN Office of the Federal Public Defender 101 SW main Street, Suite 1700 Portland, OR 97204 Attorney for Petitioner JOHN KROGER Attorney General JONATHAN W. DIEHL Oregon Department of Justice 1162 Court Street, NE Salem, OR 97301 Attorneys for Respondent 1 - OPINION AND ORDER Panner, District Judge. an Petitioner, Institution, inmate brings this He 2254. u.S.C. § court challenges convictions assistance of habeas for trial corpus the sexual counsel and action pursuant legality of abuse, Correctional State Oregon at his 28 state ineffective alleging appellate 2001 to For counsel. the reasons set forth below, the Second Amended Petition for Writ of Habeas Corpus (#45) is GRANTED. BACKGROUND Robert Hicks ("Hicks"), an individual with an IQ of 60, lived in an apartment complex with his wife of 2 1/2 years, Vera, and three of her children. On or about May 19, 2001, Hicks was questioned upon returning home from fishing regarding a report of sexually inappropriate touching. was what had he done wrong. His first question to officers (Respt. 's Ex. 109.) Hicks was asked if there was anything Amy could have mistaken for sexual touching and he replied he had gone into Amy's room a couple of times and had rubbed her head, back, and stomach, and when she asked him to stop, he did. When asked why he had done this, he stated (Id.) he did not know why, he had just done it. Asked if he regularly massaged the other children Hicks said "no." When asked if he rubbed Amy under or over her clothing Hicks replied it was always over her clothes. (Id. ) 2 - OPINION AND ORDER Hicks told the officers that he had taken some sex offender treatment and knew it was wrong to touch kids so he would never touch Amy. He (Id. ) willingness to take a lie detector test. indicated his (Id. ) Hicks was arrested and indicted on three counts of Sexual Abuse in the First Degree alleging he touched Amy with his hand, of 2001. Although the State offered a plea deal of 20-22 months, Hicks over her pajamas, went to trial. in February, and March, April He was convicted by a jury on all counts, 11-1. At the sentencing hearing, trial counsel gave the court a detailed intellectual assessment revealing Hicks had a Verbal IQ of 61, a Performance IQ of 65, a Full Scale IQ of 60, reading comprehension equivalent to a 3rd grade level - age equivalent to 8 years, 7 months, and an overall intellectual functioning in the deficient in range (Respt.'s Ex. the 5th 110 at 9-10.) percentile of the population. The assessment noted "[IQ] scores between 55 and 70 are considered in the mild mental retardation range. " sentencing in intellectually prison, but Counsel asked the court for (Id. ) light and of the counsel did Hicks being likelihood not he otherwise in the would raise Hicks's assessment for mitigation purposes. 5th be concurrent percentile victimized the findings (Respt.'s Ex. in of 103, Trial Tr. at 127.) A court ordered pre-sentence 3 - OPINION AND ORDER investigation report (" PSI") noted Hicks I s had last worked as a dishwasher in a restaurant, for approximately one and a half months in 1996 or 1997; as of 1994 he was receiving Social Security disability benefits; he was previously convicted of Sexual Abuse II in a plea in 1992, and was sentenced to 3 years probation, 70 days in jail, and assessed a $170 fee. at (Id. 1-8.) The report also noted Hicks told investigators after his arrest it was not uncommon for him to wake the children in the morning and get them ready for school, and that he sometimes rubbed Amy's head or stomach to wake her. The report recommended consecutive sentencing noting "the (Id. ) present offense involves continued sexually assaul ti ve behavior towards a 12-year-old female child .[,]" "persistent involvement in similar offenses[,]" and no mitigating factors. Adopting the PSI recommendation, the sentencing court imposed three consecutive 75-month terms under Measure 11, for a total of 225 months imprisonment without the possibility of parole or sentence reduction. Pre-trial investigation Police reports show investigating officers interviewed: Vera Hicks, Amy Nelson, and Robert Hicks; Amber Fife, a neighbor; Toni Dozier, a neighbor; and Amanda Tecpile, a former neighbor. Investigating officers also received "a four page letter written by someone wishing to 4 - OPINION AND ORDER remain anonymous." The letter, "stating, among other things, framed by his Robert Hicks was innocent and he was being [,]" wife. was submitted into evidence. (Respt. 's Ex. 109.) Trial counsel met with Hicks for twice" prior to trial, and his legal less than an hour "maybe assistant met with Hicks briefly once when Hicks viewed Amy's videotaped interview by the director of the Lane County Child Advocacy Center. (Respt. 's Ex. 114 contained at 11-16 & 24-25.) evidence witnesses were Trial counsel's investigated or file interviewed, counsel, his assistant, or an investigator. no either by (Respt. 's Ex. 107 at 5. ) The trial In counsel pretrial discussions on told court was the there the "no morning way" set the for case beyond that day and the next "unless the sky falls." trial, would go (Respt. 's Ex. 103 at 6.) The State gave an opening statement detailing the testimony the jury would informing the jury some (Id. at 7-14.) hear about witnesses In his opening, Hicks were abusing cognitively Amy, and impaired. defense counsel did not address the State's characterization of the case and upcoming testimony. Counsel told the jury: This case will be somewhat unusual in that you won't - you may hear little or no evidence at a l l . . from the defendant. It's our position that the State will not be able to prove the case in these circumstances. 5 - OPINION AND ORDER I understand that as persuasive as counsel's statements may be, there is no evidence in the case yet and all the evidence has to come from the witness stand right here next to me. I'm only going to as k you to do two things in this case. The first listen very critically to the evidence of the witnesses and don't accept without critical analysis what is said as the gospel or that the interpretations are correct. Secondly, reserve your judgment until the actual end of the case I think the one other fact you may hear is that the defendant, too, is cogni ti vely disabled and also has difficulties in the same area as those that counsel indicated for some of his witnesses. Tr. at 14-15. Three of Hicks's neighbors, Amber, Toni, and Amanda, and a coffee house employee, Trisha Black were witnesses for the State. They testified walked, to observing Hicks holding putting his arm over her shoulder, Amy's hand as they touching her on the shoulder, or grabbing her bottom in the parking lot - all conduct they thought was inappropriate. Amber also testified that Amy told her Hicks touched her at night, over her pajamas. On cross- examination counsel asked one question: if Amy had told Amber she wanted Hicks out talked about it. of the house. (Trial Tr. Amber at replied they had never 23.) Trisha conversation she overheard between Hicks testified to and his wife: a " [H] e made a comment about: Oh, I'm going to shave off my mustache, and the other person said: 6 - OPINION AND ORDER No, you won't because I like you with No, And he said: the children don't. And she facial hair. said: Because you're always hugging and kissing on that one I s [Amy's] neck." Through a few questions on (Trial Tr. at 63-64.) cross-examination, trial counsel established Hickses were customers at the coffee shop, that the and the conversation Trisha overheard occurred the summer of 2000. 66.) only (Trial Tr. at 64- Trial counsel did not cross-examine Toni or Amanda. Amy testified Hicks touched her over her pajamas, when she was asleep, and that the touching stopped at the end of April. at 41-44.) (Id. night when She was not able to say if it was morning or she was touched. (Id. at 36.) An investigating officer testified Amy told her Hicks touched her in the morning. (Id. at 53-58.) Police reports include statements from Amy indicating Hicks touched her in the morning. (Respt. 's Ex. 109.) On cross-examination, ask Amy about statements to trial counsel did not investigating officers respect to when the touching occurred. the order in which she and testimony with Counsel asked Amy about spoke with various people she talked to were nice. her her people, and if the (Respt. 's Ex. 103, Trial Tr. 41- 44. ) Police reports included statements from Amber, reporting Amy told her Hicks touched her in the morning, but trial counsel did not ask Amber about 7 - OPINION AND ORDER the differences in her statements to investigating officers and her touching occurred at night. at 21.) testimony that Amy told her (Respt. 's Ex. 109; Respt.'s Ex. 103 Amber was re-called by the State and asked about the confrontation she and her friend, "Kim," had with Hicks at the end of April/early May. She testified they told Hicks to go home and abuse his daughter, and he got really upset. 103 at 49-50.) (Respt.'s Ex. Vera's statement to investigators recalled the altercation stating: "Kim said 'He's a child molester. rape your daughter, Amy. '" (Respt. 's Ex. 109.) Go in and Defense counsel cross-examined Amber asking only how long she had known Hicks. (Respt.'s Ex. 103 at 50.) Vera testified about the family's living arrangements, daily life and Amber to schedule, talk to and her. about speaking with Amy before at (Id. 25-28.) On cross-examination, trial counsel attempted to ask two questions: presently living with and, after Hicks left. The grounds of relevance. 2) State asking 1) who Vera was if someone moved in immediately objected to both questions on Trial counsel did not attempt to overcome the objections, nor did he make an offer of proof. 1 Trial counsel called no witnesses after the against his offer of proof to call Hicks's mother. court ruled She was going to testify that Hicks did not work due to his mental disability, lHicks noted in his peR appeal that Vera had a boyfriend at the time of trial. (Respt.' s Ex. 120 at 10). 8 - OPINION AND ORDER not because he was lazy. "The Closing arguments began with the prosecutor stating: testimony in this case counsel's objection, the The remark. is at (Id. uncontroverted." At 87.) the court instructed the jury to disregard prosecutor proceeded, telling the jury "I'd submit to you that the only evidence submitted during this trial - -." Counsel again objected, to disregard the remark. jury that to find Nelson is lying." (Id. ) Hicks (Id. and the court instructed the jury not The prosecutor then told the guilty at 89.) they "must find that Amy The court overruled counsel's objections, and the State repeated, "[t]o find that the defendant is lying because what is not guilty you must find that Amy [she] told you happened is Sex Abuse in the First Degree." at 89-90.) In his closing, (Id. trial counsel argued the State had not proven its case with any physical corroboration but simply repeated accusations, that the witnesses described conduct that had not been charged or alleged by Amy, and that Amy made up the accusations because Hicks took privileges away. The State argument. After countered (Id. the each of counsel r s (Id. arguments in at 99-108.) its final at 108-115.) verdict, counsel asked that sentencing be scheduled to allow him to obtain a psychological evaluation of his client. At the sentencing hearing, 9 - OPINION AND ORDER the court asked counsel to clarify a criminal several points history in the worksheet. PSI, notably regarding the at (Id. 126.) Counsel then presented Hicks's intellectual assessment to the court and asked for concurrent sentencing, he expressed surprise at the lack of reasoning in the PSI, and he told the court "I believe the victim in the were priors situation. It understanding." wasn't (Id. closer a in child at 127-28.) age. as It in was this a statutory case is my The court asked Hicks if there was anything he would like to say and the following exchanged ensued: Hicks: What am I suppose to say? Counsel: There's nothing you need to say. He just wants to know if there's something you want to say. Hicks: What do I want to say? Counsel: I don't know. It's up to you. want to say anything, say, "No, sir." Hicks: (Id. No, sir. at 128.) sentences If you don't The court then imposed three consecutive 75-months under imprisonment Measure without the 11, for total a possibility of of parole 225 or months sentence reduction. PROCEDURAL HISTORY Hicks directly appealed his convictions, with his appellate 10 - OPINION AND ORDER attorney filing a Balfour brief comprised solely of Section A. 2 The Oregon Court of Appeals affirmed without opinion, Hicks, 186 Or. App. 373, 64 P.3d 584 (2003). Sta te v. Hicks did not seek review from the Oregon Supreme Court. Hicks filed an Amended Petition for Post-Conviction Relief (" PCR") , but the PCR court denied relief in a general judgment, with Findings of Fact, (Respt.'s Exs. 117, Conclusions of Law drafted by the State. 118.) Hicks filed Section A of a Balfour Brief. appealed. Appellate counsel Hicks submitted a Section B, prepared by an inmate legal assistant, which detailed his mental retardation and its impact on the legal proceedings, and presented claims of ineffective assistance of trial and appellate counsel. (Respt. 's Ex. affirmed without review. Hicks 120 at 6.) opinion, v. and the Oregon Or. App. Supreme 378, Court 148 denied P.3d 925 instant petition raising four grounds for Bartlett, 209 The Oregon Court of Appeals (2006); 342 Or. 416, 154 P.3d 722 (2007). Hicks 2 Upon filed the concluding that only frivolous issues exist on direct appeal, a Balfour brief allows appointed counsel to meet constitutional requirement of "active advocacy" without violating rules of professional conduct. Section A, signed by counsel, contains a statement of the case, including a statement of facts, sufficient to apprise the court of the jurisdictional basis for the appeal, but contains no assignments of error or argument. Section B, signed only by the appellant, is a presentation of the issues that appellant seeks to raise but that counsel considers to be frivolous. Balfour v. State of Oregon, 311 Or. 434, 45152, 814 P.2d 1069 (1991). 11 - OPINION AND ORDER His Memorandum relief. for relief: witnesses at narrows his claims to two grounds ineffective (1 ) failed counsel (#40) assistance properly to (2) trial; of counsel when trial investigate ineffective cross-examine and assistance of appellate counsel when counsel failed to assign error to the trial court's decision statements to counsel's overrule made during Hicks concedes Ground closing (2) to objection (#40, argument. prosecutorial Mem. at 14.) was not raised in state courts and is procedurally defaulted, but seeks to excuse the default through a showing of actual innocence. Ground (2) was first (Id. at 30.) Hicks also concedes raised in his Memorandum, filed after the one-year statute of limitations period for habeas claims of the Anti terrorism and Effective Death Penalty Act ("AEDPA"), but again argues actual innocence to excuse the untimeliness if the Court determines the claim does not presented in the first amended petition. relate back to claims (#44, Petro 's Sur-Reply at 3-4.) DISCUSSION In light of Hicks clearly narrowing his claims for federal habeas relief to the two noted above, the Court considers all other claims to have been withdrawn and limits its discussion to address only the two claims argued in the Memorandum. / / / 12 - OPINION AND ORDER I. Procedural Default Federal habeas review of procedurally defaulted claims is precluded unless the prisoner can show "cause" for the procedural default and actual prejudice, failure to consider the claims v. Coleman will result in a Edwards v. Carpenter, 529 miscarriage of justice. (2000); or the prisoner demonstrates that Thompson, 501 u.s. 722, 750 fundamental u.s. 446, (1991). 451 The "miscarriage of justice" exception to procedural default applies to habeas petitioners who can show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." (cit in g Mu r ray, Schlup v. 477 u. S ¢ at Delo, 4 9 6) ¢ u.s. 513 298, 327 (1995) New reliable evidence must create a colorable claim of actual innocence, that the petitioner is innocent of the charge for which he is incarcerated, opposed to legal innocence as a result of legal error. as See Id. at 321. As default evidence of of Ground his innocence Two, Hicks to excuse submits (1) the the procedural affidavit of Kimberly Hicks, his former sister-in-law, stating Vera Hicks told her on January 30, 2009, that she had lied to police and to the court regarding her ex-husband abusing her daughter because she hated him and investigator's didn't report 13 - OPINION AND ORDER want of to an live with interview him, with and Melissa (2) an Snow, Petitioner's step-brother's girlfriend, stating Amy recanted her accusations of touching in a conversation with Melissa prior to The Court finds the affidavit (#40, Mem. Ex. A and B.) trial. and report, together, constitute sufficient evidence of Hicks's actual innocence for this Court to conclude no reasonable juror would vote to convict upon hearing all available evidence. Petitioner, therefore, has met the standards for the miscarriage of justice exception to procedural default. The Court also finds that Ground Two relates back to Hicks's Amended Petition, in which he alleged failed to raise meritorious claims. same core of operative facts raise meritorious claims and, filed Amended Petition. 664 (2005). counsel had Ground Two arises out of the - appellate counsel's failure to thus, relates back to the timely See Mayle v. Accordingly, appellate Felix, Ground Two will 545 U.S. be 644, reviewed 663- on the not be merits. II. The Merits A. Standards and Scope of Review An application for writ of habeas corpus shall granted unless the adjudication in State court: (1 ) resulted in a decision that was contrary to, or invol ved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States; or (2) resulted in 14 - OPINION AND ORDER a decision that 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). '" Clearly established Federal principle or principles set law' is the governing legal forth by the Supreme Court at the time the state court renders its decision." 393 F.3d 943, (2005) . (9th Cir. 2004) state A 974 court decision established Federal law if it to" or lS "diametrically different Williams v. Taylor, cert. is Lambert v. Blodgett, denied, 126 S. "contrary to" "in conflict with", from" Supreme Court Ct. 484 clearly "opposite precedent. 529 u.S. 362, 388 (2000). Habeas relief may be granted under § 2254 (d) (1) when "the state court identifies the correct governing legal principle but unreasonably applies that principle to the facts of the case." court's Lambert, 393 F.3d at 974 application unreasonable." Habeas of Williams, (citing Williams).3 law 529 must be "The state obj ecti vely u.s. at 411 (emphasis added). relief may be granted under § 2254 (d) (2) when the state court decision is based on an unreasonable determination of the facts because the fact-finding process is flawed. of a flawed process include: holding a hearing, Examples making evidentiary findings without misstating the record, ignoring the record, 3 Ho ll an d v. Jackson, 542 u.s. 649, 652 (2004) (per curiam) (may be granted when the state court decision was objectively unreasonable in light of the record before the court) 15 - OPINION AND ORDER misapprehending the evidence presented. Taylor v. Maddox, 366 F. 3d 992, 1001 (9th Cir. 2004). It is well established that the principles articulated in Strickland v. ineffective 466 u.s. Washington, assistance of 668 (1984), counsel. govern claims of Under Strickland, a petitioner must prove that counsel's performance fell below an objective standard reasonable probability errors, Bell of reasonableness that, but for and that counsel's there is a unprofessional the result of the proceeding would have been different. v. 390-91; Cone, 535 U.s. 466 Strickland, 685, 695 U.s. at (2002); 529 U.s. Williams, 687-88. "The benchmark at for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at assistance of counsel is the prosecution's testing." case Uni tes be evaluated circumstances at in the U.s. at 690. / / / 16 - OPINION AND ORDER "The right to the effective [ ] the right of the accused to require to survive Sta tes (1984) (emphasis added). must 686. v. meaningful Cronic, 466 U.s. adversarial 648, 656 The reasonableness of counsel's conduct light time of of the facts of representation. the case and the Strickland, 466 B. Ground One Hicks alleges ineffective assistance of counsel when trial counsel failed witnesses at to investigate properly trial. He contends the state cross-examine and court's denial (#40, Mem. relief was an unreasonable application of Strickland. at 28.) At of The Court agrees. the PCR trial, the court informed Hicks of its usual practice: What I do in advance of the trial is I review the trial memos and I try to review some of the exhibits . I don't review the trial transcript, just because it's so voluminous and so I tend to wait until after the trial to do that. So it's always my practice to wait until the trial to review the exhibits and to take the matter under advisement and notify counsel by letter opinion as to the decision. (Respt.'s Ex. 116 at 3.) Exhibits submitted to the PCR court included police reports, the PSI and the Intellectual Assessment, Appellant's Balfour Brief, the trial and sentencing transcript, and Hicks's peR deposition. letter denying Defendant's relief, memorandum the (Respt. 's Ex. 108.) PCR persuasive court and counsel to incorporate the arguments conclusions. stated In its opinion it instructed found the Defendant's in preparing findings and (Respt. 's Ex. 117.) The Court is compelled to begin its analysis by noting the record makes it abundantly clear Hicks has significant cognitive impairments which raise serious questions as to his ability to 17 - OPINION AND ORDER understand the severity of the inherent with going to trial, prospect of Measure 11 charges against him, the risks the option of a bench trial, sentencing with the possibility the of consecutive terms, and the consequences of not taking the State's plea offer of 22-months. his cognitive evidence meet impairment supporting deposition. his Hicks's PCR memorandum was silent as to the and told claims the is (Respt. 's Ex. 107 at 5.) burden of proof, the PCR set court forth "the best [Hicks's] in In arguing Hicks could not PCR Defendant stated Hicks's deposition responses "bordered on the comical" and quoted a few of his responses. (Respt.' sEx. 112, at 4-5.) Defendant' memorandum further asserted: "[I]t appears that petitioner was completely apathetic during his months in jail and asked no question of . his defense attorney. In addition, it appears that petitioner did not even bother to tell his attorney that, as he now claims, he did not know what a trial was and he did not know (or even care) what would happen if he rejected the plea offer. Petitioner's apathy is unbelievable. The only reasonable conclusion to draw from [his] deposition testimony is that he is a thoroughly unreliable historian. Hence, when petitioner asserts in his trial memorandum that "the best evidence" in support of his claims is his deposition testimony, defendant can readily agree." (Id. at 6.) The Court finds the PCR defendant's characterization of Hicks appalling and offensive given the record. The Intellectual 18 - OPINION AND ORDER Assessment in the PCR record describes Hicks's limited ability to read, reason, and solve previously unencountered problems, and specifies he is in the lowest 5% of Hick's PCR deposition testimony the population intellectually. exemplifies his limitations, notably when the Defendant asked about his understanding of the charges against him, the plea and his thoughts mother's about going testimony.4 The to trial, Court is and the offended exclusion by, and of his strongly condemns the Defendant's inappropriate characterization of Hicks. Because the persuasive, PCR the court Court found concludes the Defendant's memorandum the memorandum caused the PCR court to misapprehend or ignore the record. The trial did not testing. transcript provides subject the state's case clear evidence that to meaningful counsel adversarial First, in Amy's statements to investigators she alleged that Hicks touched her over her pajamas in the morning. Amber also told investigators that Amy told her the touching occurred in the morning. "when she was At trial, asleep [, ]" Amy testified the touching occurred but she did not specify the timing despi te the prosecutor offering her the opportunity to do so. Amber testified at trial that Amy told her the touching occurred 4A complete review of the PCR deposition allows the reader to appreciate the extent of Hicks's cognitive impairments. While Hicks repeats legal phrases and terminology he has heard used in reference to his case, his ability to grasp their full meaning is clearly questionable from his responses to questions requiring any sort of reasoning. 19 - OPINION AND ORDER at Trial night. ambigui ties never discrepancies in raised the or witnesses challenged accounts the of the Having established the defense theory that the State touching. could or counsel not prove its counsel's case, failure to challenge ambiguous or contradictory statements by two key witnesses cannot be explained or justified in light of the importance of witness credibility to the State's case. Second, an essential element of the crimes charged, be proven beyond a reported was gratification. done reasonable doubt, for See Or. the Rev. was that the touching Amy purpose Stat. and to of 163.427 sexual & arousal 163.303(6) or While Amy testified that Hicks touched her "where he shouldn't have[,]" on her "front privates [, ]" over her paj amas, the State made no attempt to establish that the touching was for sexual arousal or gratification. Trial counsel made no attempt to hold the State to its burden of proving the touching was sexual, seize on an plausible alternative explanation: and failed to Hicks openly admi tted to investigators that at times he caressed Amy on her head, her back and her stomach, sometimes doing so to wake her for school. Third, Amber, Toni, and Amanda told investigators, and testified at trial about conversations they had among themselves about their suspicions regarding Hicks. 20 - OPINION AND ORDER Toni told investigators she started noticing or after Amanda, and did Amanda suggested Hicks was Counsel did not cross-examine (Respt.'s Ex. 109.) abusing Amy. Toni things nothing in cross-examining Amber to discern if the group's suspicions were fueled by gossip and/or bias against Hicks. Hicks did not attempt to hide his contact with Amy, and a number of the acts the witnesses characterized as inappropriate and sexual could have been perfectly innocent, for example holding hands with Amy or putting his arm around or on her shoulder. Given that no evidence was presented showing Hicks acted for sexual gratification or arousal, trial counsel's failure to challenge the witnesses' characterization of Hicks's conduct was an abdication of his duty to subject the State's case to meaningful adversarial testing. The Court's review of the record leads to the conclusion that counsel performed little cross-examination and much of the testimony elicited background information, history nice, and and on whether Amy did nothing cross-examination such as the considered to test the established investigators' the people State's she case. only employment spoke with Counsel's failure to subject witness testimony to any semblance of testing fell below objective standards of reasonableness and below what is required of constitutionally adequate representation in light of counsel's defense theory that the State would be unable to 21 - OPINION AND ORDER prove its case. In addition, the PCR record establishes that counsel failed to make reasonable investigation in preparation for trial. counsel noted pertaining that to anyone else. the trial counsel's investigation of file contained witnesses, by PCR nothing counselor A file devoid of notes pertaining to investigation in preparation for trial is clear evidence that no investigation occurred. Trial counsel has a duty to conduct reasonable investigation and formulate the 539 u.s Smith, Riggs v. Ga 1 a z a, defense 510, 921 F . 3d (2003); F.3d 1179, Fairman,399 2 97 strategy 911 , 918 -1 0 accordingly. 466 Strickland, 1182 ( 9th (9th Cir. Ci r . Wiggins u.s. 2005); 2002). at v. 691; Avila v. Here, trial counsel's failure to investigate caused him to forfeit motive as a defense argument and prevented him from overcoming the State's obj ections when he attempted to elicit information about who moved in with her after Hicks's arrest. from Vera Counsel's two questions strongly suggest that the issue had potential for the defense. The Hicks being was counsel, letter received framed by his had he paid attention, by law wife, enforcement, suggesting was signal a clear to that motive could be at issue. Kimberly Hicks's recent affidavit, stating Vera told her she had lied to police and to the court regarding her ex-husband abusing 22 - OPINION AND ORDER Amy because she hated him and didn't want to live with him, and the PCR investigator's report of an interview with Melissa Snow, in which Melissa states Amy told her the accusations were not true and stemmed from her mom wanting Hicks out of the apartment, are evidence that Vera's motives should have, at a minimum, been Counsel investigated. did absolutely nothing Vera's motives, or those of the neighbors, raise the issue on cross-examination, State's case meaningful motive investigate to clearly investigate leaving him unable to and unable to subject the testing. fell to below Counsel's objective failure to standards of reasonableness. It was also below objective standards of reasonableness, and beyond comprehension, for trial counsel to wait until after Hicks was convicted to investigate his client's cognitive impairments through an intellectual assessment. Hicks began receiving social security disability benefits in 1994, which establishes that his cognitive before disabilities trial were counsel's pronounced representation and recognizable in 2001. years Counsel was obviously aware there was an issue in that he briefly mentioned Hicks was impaired in his opening statement and he sought to have Hicks's mother testify that impairments. Counsel's assessment prior to trial 23 - OPINION AND ORDER Hicks failure and to did not to take work due obtain an measures to mental intellectual to ensure his and representation advice tailored were his to client's circumstances is inexcusable and reprehensible. Trial counsel's advice to Hicks to "think about" the plea without offer, evidence of further counsel's discussion complete or assistance, failure to account is clear for his Advising a client to "think about" client's mental retardation. a plea presumes the client is able to assess the situation he is in, weigh the pros and cons of going to trial - whether it be a bench trial or consideration consecutive a jury Measure terms of trial 11 and, sentencing imprisonment. in this and the Asking a case, take into possibility client to of think about a plea is only reasonable advice when the client has the cogni ti ve ability to do the necessary thinking, support. ability or is provided The Intellectual Assessment describes Hicks's limited to read, reason, and solve previously unencountered problems, and specifies he is in the lowest 5% of the population intellectually. client's Because trial counsel failed to investigate his impairment so as to utterly failed to provide Hicks appreciate with the its significance guidance and support necessary for him to "think about" the plea he was offered. his peR deposition, the deal. he In Hicks was asked why he decided not to take The following exchange demonstrates Hicks's cognitive limitations: 24 - OPINION AND ORDER Q: A: Q: And why did you decide not to take the deal? Humm? Because - - humm? Because I was innocent. Did you think - - did you ask [counsel] what your chances of being acquitted were? No. Do you know what I mean by "acquitted?" Yes. Okay. Weren't you concerned about whether you were going to be convicted or acquitted? No. Why didn't that concern you? At the time it didn't really concern me at that time, because I was just . Weren't you afraid that you might get Measure 11 time? Yes. Did you ever ask [counsel] what your chances of prevailing were? No. You just weren't that concerned about it? Not not at the time. Are you concerned about it now? No. Okay. What is your total sentence, Mr. Hicks? Got - - it's 18 years. Well, that's a long bit of time, isn't it? Well, I've already done two and half, and I've got 16 to go. A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: (Respt. 's Ex. 114 at 24-26.) Under based on Strickland, the counsel's circumstances representation. in performance existence must at be the measured time of The circumstances of this case required that counsel investigate and effectively cross-examine witnesses. He failed to do so, and there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have counsel's been conduct different. so 25 - OPINION AND ORDER Moreover, undermined the the proper record demonstrates functioning of the adversarial process that the trial cannot be relied on as having produced a just result. In addition, the PCR court's reliance on the PCR Defendant's memorandum and gross mischaracterization of Hicks's responses to the legal proceedings necessarily resulted in a misapprehension of the record. The Court thus concludes it was Strickland to an claim unreasonable of application ineffective of assistance of trial deny Hicks's counsel and habeas relief on Ground One is warranted. C. Ground Two Hicks for alleges counsel's decision ineffective failure overruling to the assistance assign error objection made during closing argument. to of to appellate the Appellate context Smith v. counsel's of the trial prosecutorial court's statements The Strickland standards outlined above apply to reviewing claims of deficient appellate counsel. counsel Robbins, representation circumstances 528 must existing representation by u.s. be 259, 285 reviewed at the (2000). in the time of representation, that is, he was charged with reviewing the record and filing an appeal for a client with documented cognitive disabilities. In closing statements the prosecutor told the jury: So then the only question remaining is what Amy said the defendant did, did he do it? If you believe her, if you believe her, he is guilty of the crimes for which he is charged. He's not charged with rape, he's 26 - OPINION AND ORDER not charged with sodomy, he's charged with touching her in an intimate part. It doesn't matter if it's underneath the clothing or outside the clothing if, when he did it, he did it with a sexual purpose. I'd submit to you if you believe Amy [ ] , there can be no other explanation but that he touched her for sexual purpose. For the defendant to be found not guilty, you must find that Amy [ ] is lying. (Respt. 's Ex. 103 at 89.) Trial counsel objected, but the court overruled the objection, and the State continued: To find that the defendant is not guilty you must find that Amy [ ] is lying because what Amy [ ] told you happened is Sex Abuse in the First Degree. * * * And if you believe her, then it is your obligation to convict the defendant. (Id. at 90) (emphasis added). The trial court's instructions to the jury included following: To prove this charge, the State must prove what are called four material elements. Those must be proven beyond a reasonable doubt. The four elements are, first, that the act occurred in Lane County, Oregon; second, that the act occurred in the months of February, march, or April; third, that the defendant inappropriately I'm sorry. That the defendant knowingly subjected Amy [ ] to sexual contact; and four, that Amy [ ] was less than 14 years of age at the time. "Sexual contact" means any touching of the sexual or other intimate parts of a person for the purpose of arousing or gratifying the sexual desire of either party. You are instructed that the vaginal area is a sexual part as a matter of law. 27 - OPINION AND ORDER the (Respt. 's Ex. 103 at 118-119.) The State's argument telling the jury that to acquit they must find Amy lied was outrageous and must be recognized for its full potential required to instructions to mislead the make for jury as The conviction. on the elements of to the findings trial Sexual Abuse, it was court's with its jury single reference to "purpose" in the definition of sexual contact, li ttle to counter the State's forceful repetition truthfulness was determinative for conviction. that did Amy's Under Oregon law, what Amy said happened was sexual abuse only i f the jury found the touching was for sexual gratification or arousal, not if the jury found Amy was telling the truth. In filing a Balfour brief, appellate counsel advised the Oregon Court of Appeals that no meritorious issues existed for appeal. This was, in fact, not the case given the potential for the prosecutor's statements to confuse the jury as to a required element for conviction: a finding beyond a reasonable doubt that the touching at issue was for the purpose filing a Balfour brief, appellate significantly impaired reading, counsel put arousing or Moreover, gratifying the sexual desire of either party. of in a client with writing and reasoning skills in the position of having to formulate and write legal claims and supporting arguments for his appeal, 28 - OPINION AND ORDER something he was incapable of. This in effect denied Hicks his right to appeal, and the Court is left to wonder if appellate counsel bothered to review the Intellectual Assessment, or simply PCR chose court's to ignore his on PCR client's impairment. As with Ground One, the reliance the Defendant's memorandum and gross mischaracterization of Hicks's responses to the legal misapprehension of the proceedings necessarily Appellate record. resulted counsel's in failure a to raise an arguably meritorious claim, and his expectation that his cognitively impaired client do so in Section B of a Balfour brief was below obj ecti ve his client. unreasonable standards Accordingly, application Ground Two is warranted. / / / / / / / / / / / / 29 - OPINION AND ORDER of the of reasonableness PCR court's Strickland, and prej udiced adj udication was and habeas relief an on CONCLUSION Based on the foregoing, Hicks's Second Amended Petition for Writ of Habeas Corpus (#45) is GRANTED. Respondent shall release Hicks from custody and vacate his convictions unless the State retries him within 60 days. The Court notes Hicks has served 96 months in prison. IT IS SO ORDERED. DATED this ~ day of November, 30 - OPINION AND ORDER
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