Hansen v. Franke, No. 2:2011cv01220 - Document 26 (D. Or. 2012)
Court Description: Opinion and Order. The petition for Writ of Habeas Corpus 1 is DENIED. The court declines to issue a Certificate of Appealability. Signed on 6/4/2012 by Judge Owen M. Panner. (dkj)
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Hansen v. Franke ·. Doc. 26 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PENDLETON DIVISION KENNETH M. HANSEN, Petitioner, Case No. 2:11-CV-1220-PA OPINION AND ORDER v. STEVE FRANKE, Respondent. Kenneth M. Hansen #5118567 Two Rivers Correctional Institution 82911 Beach Access Road Umatilla, OR 97882-9419 Petitioner, Pro Se John R. Kroger, Attorney General Nicholas M. Kallstrom, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent 1 - OPINION AND ORDER Dockets.Justia.com I I I PANNER, st Judge. r Pet U.S.C. § 2254 brings this corpus case pursuant to llenging the legality of his underlying Sexual convictions. Petition habeas For the reasons that 28 and llow, t Writ of Habeas Corpus (#1) is denied. BACKGROUND In 2005, petitioner was charged with sexually abusing a 13 leo year-old minor disclosed se to a friend from school. to a jury t im Petitioner proceeded al where he was convicted of two counts of Rape in Second and one count of Sexual Abuse in the First Respondent's pet The abuse came to light when the 101. As a result, the trial court sent r to 150 months in prison. Pet ioner took a direct appeal, but the Oregon Court of Appeals af the trial court without opinion, and the Oregon Supreme Court i review. State v. Hansen, 220 Or. App. 313, 185 P.d 1132, rev. denied 345 Or. 318, 195 P.3d 65 (2008). Pet Umatilla ioner next filed for post conviction relief County where Respondent's t affirmed the PCR t Court deni Petitioner the 124. PCR trial 1 relief. and the Oregon Supreme Respondent's Exhibits 128, 130. s Petition for Writ of Habeas Corpus on October 7, 2011 raising the following claims: 2 - OPINION AND ORDER denied in The Oregon Court of Appeals summarily al court's decision, ew. court ("PCR") I 1. 2. The physician who examined the victim one year after the sexual abuse took place affirmed that there was no physical evidence that the victim had ever had sexual intercourse, yet he improperly concluded that the victim had been sexually abused; and 4. I Trial counsel failed to cross-examine the victim and another minor witness as to contradictory or misleading testimony; 3. i Trial counsel failed to use the findings of her private investigator to support a character defense; Petitioner was convicted based only upon the allegations of abuse by the victim, supported by her friend's testimony. Respondent because: as ks the court to deny relief on the Petition (1) petitioner failed to fairly present Grounds One, Two, and Three to the Oregon state courts, procedurally defaulted; and (2) and those grounds are now petitioner's Ground Four is a freestanding claim of actual innocence which is not cognizable in a non-capital habeas corpus action. a supporting memorandum, nor has Petitioner has neither filed he otherwise responded to the State's arguments in any way. DISCUSSION I. Exhaustion and Procedural Default A habeas petitioner must exhaust presenting them to the state's highest his court, claims by fairly either through a direct appeal or collateral proceedings, before a will consider the merits of those claims. Rose v. Lundy, 455 u.S. 3 - OPINION AND ORDER federal court 509, 519 (1982). "As a general rule, a petitioner satisfies the exhaustion requirement by fairly presenting the appropriate state courts. state courts, . in the manner required by the 'affording the state courts a meaningful opportunity to cons allegations of legal error. '" Moore, 386 F.3d 896, Hillery, ral claim to 915-916 (9th Cir. 2004) 474 U.S. 254, 257, to present his cIa (1986)). Casey v. (quoting Vasquez v. If a habeas I igant failed to the state courts in a in which the merits of context claims were actually cons claims have not i therefore not elig for federal habeas corpus red, the Y presented to the state courts and are ew. Castille v. Peoples, 489 U.S. 346, 351 (1989). A petit r is deemed to have "procedurally claim if he il to comply with a failed to raise " his state pro I claim at the state level at all. rule, or Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). If a petitioner has procedurally claim in state court, unless the tit a federal court will not r shows "cause and prejudice" to present the const faulted a ew the claim r ilure utional 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). 4 - OPINION AND ORDER A review of the record in this case reveals that petitioner raised a single direct appeal claim challenging the exclusion of demonstrative evidence at trial. Respondent's Exhibit 105. Such a claim is not at issue in this habeas corpus action. During petitioner's state collateral review proceeding, he presented a single claim of ineffective assistance of counsel to the Oregon Supreme Court: whether trial counsel was ineffective when she failed to introduce evidence to impeach a statement by the victim that she petitioner's was sexually trailer. abused Respondent's behind Exhibit a curtain 125. in Respondent asserts that such a claim is not contained within the Petition for Writ of Habeas Corpus. Contrary to respondent's position, the court views this claim as contained in petitioner's Ground Two and will address it on its merits below. Three were The remainder of petitioner's Grounds One, Two, and not fairly Because the time presented to the Oregon State courts. for presenting these claims to Oregon's state courts has passed, they are now procedurally defaulted. II. Fundamental Miscarriage of Justice Exception to Procedural Default In actually Ground Four, innocent. petitioner A claim of appears actual to assert innocence that can he is excuse a procedural default where the petitioner introduces new evidence of his factual innocence such that, in light of that new evidence, no reasonable juror would have convicted him. 5 - OPINION AND ORDER Schlup v. Delo, 513 I I I I I I U.S. 298, 327 (1995). of his innocence, because Petitioner has not introduced new thus he cannot excuse his de itioner cannot make a gateway It. showing dence Moreover, of actual innocence under Schlup, he also cannot prevail on his cla of actual innocence in Ground Four.l 518, 555 (2006) tanding House v. 1, 547 U.S. (a freestanding claim of innocence res an even up) . stronger showing of innocence than a gateway showing III. The Merits sole remaining claim before the court Ground Two it is that trial counsel was ineffect offer iling to to impeach the victim's statements that itioner behind a curtain within his trailer. sexually A. r's Standard of Review An lication for a writ of habeas corpus s 11 not be granted unless adjudication of the claim in state court resulted in a that was: s (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as the Supreme Court of the United States;" unreasonable determination of the facts in the State court proceeding." state court's To is or (2) by "bas light of on an evi 28 U.S.C. § 2254(d). ndings of fact are presumed correct, and A ioner extent Ground Four is intended to constitute a due to the sufficiency of the evidence, s a claim defaulted. 6 - OPINION AND ORDER bears the burden of rebutting the presumption of correctness by clear and convincing evidence. A state established court 28 U.S.C. § 2254(e) (1) decision precedent if is the "contrary state court contradicts the governing law set forth in to clearly applies a rule that [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives Williams precedent." v. at a result Taylor, 529 different u.S. 362, from 405-06 [that] (2000). Under the "unreasonable application" clause, a federal habeas court may grant relief "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id at 413. The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. Id at 410. The state court's application of clearly established law must be objectively unreasonable. B. Id at 409. Analysis Because no Supreme Court precedent is directly on point that corresponds to the facts of this case, the court uses the general two-part test the whether peti tioner Kn owl e s v. Supreme received Mi r z a ya n c e , 12 9 Court has established ineffective S. Ct. 14 11 , assistance 14 1 9 to determine of counsel. ( 2 0 0 9) . First, petitioner must show that his counsel's performance fell below an 7 - OPINION AND ORDER objective 466 U.S. 668, 686-87 (1984). counsel's per that Due to the difficulties evaluating courts must indulge a strong presumption conduct Ils wi thin professional assistance." Second, the "wide range of reasonable Id at 689. ioner must show that his counsel's performance e. prej udiced the whether Strickland v. Washington, of reasonableness. the The appropriate test petitioner probability t can "that there is a reasonable counsel's unprofessional errors, but result of the show prej udice is ing would have been f rent." the at 694. A reasonable probability is one which is sufficient to undermine confidence in t Strickland's outcome of ral standard is review governing 28 U.S.C. is a "doubly § the trial. Id combined with t at 696. When standard of 2254 habeas corpus cases, the result ial judicial review." Mi ce, 129 S.Ct. at 1420. After the victim's abuse had been disclosed to authorities, she agreed to a sexual abuse evaluation with evaluation included an inte Advocacy Center. according to I abused his trial. s the victim stated that trailer behind a curta se statements were videotaped and Pet 8 - OPINION AND ORDER I wherein, itioner, her petitioner, Children's itioner had According to roduced during r contends that there is no curtain in his trailer, and trial counsel was constitutionally ineffective for failing to offer impeachment evidence on this point. The peR trial court considered this claim and made the following factual finding: 2. There was no basis for trial counsel to offer into evidence photographs of the inside of petitioner's trailer to establish that the trailer did not have a 'curtain.' Petitioner failed to establish that there was any testimony regarding an alleged 'curtain.' Petitioner, in his testimony, failed to prove what the testimony was in the case in chief which supported his claim. Respondent's Exhibit 123, p. 2. Not only correctness, is it this is finding also entitled supported by to a presumption petitioner's peR of trial attorney who informed the peR trial court as follows: It is petitioner' s position that his lawyer failed to offer evidence in the form of pictures and testimony about the inside of his trailer. As an officer of the court, I must state that I have read the trial transcript in this matter. I have not found any statement from the named victim or statement from any witness quoting the named victim that states she said the abuse occurred behind a curtain inside petitioner's trailer. Respondent's Exhibit 111, p. 2. Where petitioner failed to establish that the victim testified that she was sexually abused behind a curtain in his trailer, the court cannot conclude that counsel's performance fell below an objective standard of reasonableness when she did not attempt to impeach non-existent testimony. 9 - OPINION AND ORDER As a result, the peR trial court's sion is ne r contrary to, nor an unreasonable application y established federal law. 2 of, CONCLUSION For reasons identified above, Habeas Corpus Certi (#1) is DENIED. the Petition for The court declines cate of Appealability on the basis that petitioner made a substantial showing of the denial of a cons I I I to issue a pursuant to 28 U.S.C. § tut not right 2253(c) (2). IT IS SO ORDERED. DATED this l' day of June, 2012. a~K--Owen M. Pan er United States District Judge 2 The court also notes that in the pictures of petitioner's trailer appended to his Petition, while there is no dividing curtain within the ler, there are curtains designed to cover a window directly above what appears to be the bed within the trailer. 10 - OPINION AND ORDER
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