Gresser v. Franke, No. 2:2012cv02073 - Document 39 (D. Or. 2014)
Court Description: OPINION AND ORDER: The Petition for Writ of Habeas Corpus 2 is DENIED. The court grants a Certificate of Appealability Grounds B and C on the basis that petitioner has made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). See 20-page opinion and order attached. Ordered by Judge Marco A. Hernandez. (mr)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON ROBIN LYNN GRESSER, Case No. 2:12-cv-02073-HZ Petitioner, v. STEVE FRANKE, OPINION AND ORDER Respondent. Alisop M. Clark, Assistant Federal Public Defender 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 Attorney for Petitioner Ellen F. Rosenblum, Attorney General Kristen E. Boyd, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent 1 - OPINION AND ORDER HERNANDEZ, District Judge. Petitioner u.s.c. § 2254 brings this challenging habeas the corpus legality case of pursuant his to state-court convictions for Unlawful Sexual Penetration and Sexual Abuse. the reasons that follow, 28 For the Petition for Writ of Habeas Corpus (#2) is denied. BACKGROUND In September 2003, petitioner was indicted in Douglas County on charges of Unlawful Sexual Penetration with a Foreign Object in the First Degree and Sexual Abuse in the First Degree for crimes committed against a 10-year-old girl. Respondent's Exhibit 102. The charges arose out of two separate incidents: 2003, (1) ln mid-July, the victim spent the night at petitioner's home where she claimed he sexually abused her; August, and ( 2) in late July or early the victim contended that petitioner sexually abused her during a day trip to a local river. The victim in this case, FHG, complained to her mother after returning from the overnight stay at petitioner's house that she felt pain in her abdomen below her stomach and was expe vaginal bleeding. Trial Transcript, pp. 66. encing FHG's mother saw the blood on FHG's underwear and mistakenly believed her daughter's 2 - OPINION AND ORDER physical symptoms were the result of her first menstrual cycle. 1 Id at 166. Approximately a month and a half later, FHG told her mother that while she was at petitioner's house for the overnight stay in mid-July, "she woke up on the couch, and then [petitioner] was standing over her, and he carried her to his room and then pulled his pants down, and then just told her to pull her pants back up and go back out there on the couch." describe any touching, Id. FHG did not Id at 170. and the mother did not pursue the matter. In fact, petitioner continued to visit FHG's family residence even after FHG related this information to her mother. FHG later told a neighbor, inappropriately touched her. parents about this Tera Frost, Id at 171. that petitioner had This prompted Frost to tell FHG's conversation. Despite this, Frost petitioner at FHG's family residence again some days later. 35. saw Id at Frost was "dumbfounded" that petitioner had returned to the residence and took FHG to the home of Zena Delaney, Frost's mother, because Frost felt she needed advice. Id at 36-37. FHG told Frost and Delaney that petitioner had in appropriately touched her during the night that she spent at his house, and that it had also happened when she was alone with him during a family outing at the river. Id at 42-43. She also told Frost, "I want him to go to jail As of the time of petitioner's trial in 2005, FHG had still not begun menstruating. Trial Transcript, p. 67. 3 - OPINION AND ORDER because I don't want him to do it to my little sister. at 36. If Id Delaney called the police, thus bringing the incidents to the attention of the authorities. At petitioner's subsequent trial, the prosecutor asked Frost to comment on FHG's credibility: Prosecutor: Did [FHG] ever tell you things that sounded outlandish or like lies? Frost: No. Prosecutor: Did she ever try to get your attention in ways that were negative? Frost: No. Id at 35. Shortly thereafter, the following exchange occurred between Delaney and the prosecutor: Prosecutor: Okay. Now, after [FHG] told you what she did, what did you do? Delaney: I called the police, and first I called [FHG]'s mom, and then I called the police and told them there's a little girl here that needs to talk to them because I didn't know what to do. I knew this little girl had been-you could tell she was telling the truth. I mean she's[-]you could just tell. Prosecutor: What was her demeanor? I mean, was she crying, was she laughing, was she - while she was telling you this? Delaney: She was very solemn, just very no expression on her face, just like a scared little girl, and she was saying it how it was without skipping anything, without this little girl was flat 4 - OPINION AND ORDER telling the story like if you would see it on a television show. I mean that's how point blank this little girl was at telling her story. Id at 43. Counsel for petitioner did not object to either Frost's or Delaney's comments on FHG's credibility. Dr. Curtis Oddo, the State's medical expert, also testified at trial. He testified that FHG "was obviously troubled by her disclosure" which was evident from "her body position, and the way she disclosed, it was obviously uncomfortable somewhat painful for her to talk about." Id at or, you know, 152-53. His physical examination was normal, although he did note there was an indentation in her genital area that could have been the result of sexual abuse, or was something she could have been born with. at 151. Id In this regard, he could not rule out sexual abuse based upon the physical exam and he ultimately concluded that FHG had been the victim of sexual abuse based upon "the history from [FHG] herself and the physical exam." Id at 155-57. FHG testified that petitioner had touched her vagina with his hand when she spent the night at his home, but provided conflicting testimony as to whether petitioner had inserted his finger into her vagina (pertaining to the Sexual Penetration charge): Prosecutor: Okay. What did he do with his hand when it was on you, anything? FHG: No. Prosecutor: Okay. 5 - OPINION AND ORDER Did he touch you in any other way? FHG: No. Prosecutor: Okay. Besides touching your vagina, did he put anything in your vagina? FHG: No. Prosecutor: Did he put his finger in it? FHG: No. Prosecutor: No. FHG: If I did, accident. Prosecutor: If you said that you must have said it on an accident? FHG: Yeah. Prosecutor: Okay. You don't inside you? FHG: No. Prosecutor: Okay. You don't remember telling people that and telling people that it hurt it hurt it. I'm sorry. That it hurt when that happened? FHG: Yes, Prosecutor: Okay. And I don't want to try to pull teeth out of you because I'm not supposed to try to do that. Did he put his finger inside your vagina? FHG: No. Prosecutor: No. I thought you just said that you remembered he did? I'm sorry, [FHG], I'm not trying to make this hard, but . FHG: Well, he did. Prosecutor: He did what? Okay. Did you tell people that he did? I must have did it like on an remember his finger going I do remember. 6 - OPINION AND ORDER FHG: He put his fingers in my vagina. Prosecutor: And did that hurt? FHG: A little bit. Id at 62-64. Among petitioner's witnesses was his ex-wife, Ladonna Gresser ( "Ladonna") At the time petitioner was alleged to have molested FHG at his home during the sleep-over, the Gressers' divorce was She had, pending and Ladonna had moved into her mother's home. however, spent the night with petitioner on the night in question in part because it was their anniversary. Id at 188-92, 274-75. Ladonna testified that she slept with petitioner and did not think it was possible that petitioner could have molested FHG that night. Id at 207. At the conclusion of the trial, the jury convicted petitioner on both counts by votes of 10-2. Id at 4 0 9. As a result, the trial court sentenced him to concurrent prison sentences of 100 and 75 months, respectively. Petitioner took a direct appeal, and the Oregon Court Appeals affirmed the trial court's decision without opinion, the Oregon Supreme Court denied review. App. 213, 193 P.3d 629, rev. denied, of and State v. Gresser, 222 Or. 345 Or. 415, 197 P.3d 1104 ( 2008) . Petitioner next filed for post-conviction relief ("PCR") in Umatilla County where the PCR trial court denied relief on his 7 - OPINION AND ORDER claims. The Oregon Court of Appeals Respondent's Exhibit 150. affirmed the lower court without opinion, and the Oregon Supreme Court denied review. 896, rev. denied, Gresser v. Mills, 248 Or. App. 262, 274 P.3d 352 Or. 25, 281 P.3d 261 (2012) Petitioner filed this habeas corpus action on November 14, Respondent asks the court to 2012 raising 11 grounds for relief. deny relief on petitioner's claims because five of the claims are procedurally defaulted, and the PCR trial court's decision denying relief on the remaining six claims did not involve an unreasonable application of clearly established federal law. DISCUSSION I. Standard of Review An application for a writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or ( 2) "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. 2254(d). § A state court's findings of fact are presumed correct, and petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. A state established court decision precedent if the 8 - OPINION AND ORDER 28 U.S.C. is § "contrary state court 2254(e) (1) clearly to applies a rule that contradicts the governing law set forth ln [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 precedent." arrives Williams at v. a result 529 Taylor, 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. When a state court reaches a Id at 409. decision on the merits but provides no reasoning to support its conclusion, the federal habeas court must conduct an independent review of the record to determine whether the state court clearly erred in its application of Supreme Court law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). In such an instance, although the court independently reviews the record, it still decision. lends deference to the state court's ultimate Harrington v. Pirtle v. Morgan, Richter, 131 S.Ct. 770, 313 F.3d 1160, 1167 Ill Ill 9 - OPINION AND ORDER 784-85 (9th Cir. 2002). (2011); II. Unargued Claims The Petition for Writ of Habeas Corpus presents 11 grounds for relief which raise a va ety of ineffective assistance of counsel claims claim as well as one of trial court error. In his supporting memorandum, petitioner chooses to brief only the issues of whether he suffered from the ineffective assistance of trial counsel when counsel failed to: (1) object when witnesses Delaney and Frost vouched for the credibility of the victim (Grounds B & C); and (2) object when Dr. Oddo rendered his expert opinion that FHG was the victim of abuse based upon what she told him, thereby improperly commenting on her credibility (Grounds G & I). Petitioner does not argue the merits of his remaining claims, nor does he address any of respondent's arguments as to why relief on these claims should be denied. As such, petitioner has not ca ed his burden of proof with respect to these unargued claims. See Silva v. Woodford, (petitioner bears the 279 F.3d 825, 835 burden of proving his (9th claims) petitioner had briefed the merits of these claims, Cir. 2002) Even if the court has examined them based upon the existing record and determined that they do not entitle him to relief. III. Grounds B & C: Vouching by Frost and Delaney Petitioner alleges trial counsel was constitutionally ineffective when he failed to object to vouching testimony from Delaney and Frost. Because no Supreme Court precedent is directly 10 - OPINION AND ORDER on point that corresponds to the facts of this case, the court uses the general two-part test established by the Supreme Court to determine whether petitioner received ineffective assistance of counsel. First, below Knowles v. 556 Mirzayance, U.S. 111, 122-23 (2009). petitioner must show that his counsel's performance fell an objective Washington, standard of 668, 686-87 (1984). Strickland reasonableness. 466 U.S. v. Due to the difficulties in evaluating counsel's performance, courts must indulge a strong presumption that the conduct falls reasonable professional assistance." within the "wide range of Id at 689. Second, petitioner must show that his counsel's performance The appropriate test prejudiced the defense. whether the petitioner probability that, but can for show "that counsel's there for prejudice is is a reasonable unprofessional errors, the result of the proceeding would have been different." Id at 694. A reasonable probability is one which is sufficient to undermine confidence in the Strickland's general outcome of standard is review governing 28 U.S.C. § the trial. Id at combined with the 696. When standard of 2254 habeas corpus cases, the result is a "doubly deferential judicial review." Mirzayance, 129 S.Ct. at 1420. Petitioner asserts that when Delaney testified that ~you could just tell [ FHG] was telling the truth [,]" this constituted improper vouching for the victim's credibility in violation of Oregon law. 11 - OPINION AND ORDER He also claims the prosecutor invited vouching when she asked Frost, "Did [FHG] ever tell you things that sounded outlandish or like lies?" Petitioner argues counsel was obligated to object ln each of these instances, and that his failure to do so in a close case which turned on witness credibility violated the standard announced in Strickland. Counsel filed an affidavit with the PCR trial court wherein he stated the following: 16. I find it helpful to object only when there is a good reason to object and when I believe it will be likely to succeed. I do not want the jury to think that I am hiding information by constantly objecting. That irritates and alienates the jury. Therefore, I exercise discretion and moderation in my objections. 17. I did not object to Ms. Delaney testifying that she thought the victim was telling the truth when she reported her story. Ms. Delaney appeared to be further explaining her decision to call the police, and the testimony would have been admissible for that purpose, in my view. Moreover, I did not want to highlight that statement for the jury by objecting to it. Respondent's Exhibit 142, p. 4. The PCR trial court resolved all of petitioner's claims by adopting the reasoning from the State's trial memorandum: In this case Petitioner has set forth scores of claims, most containing multiple subclaims, alleging that his trial counsel was ineffective. I have spent many hours poring over the allegations, the trial transcript and 12 - OPINION AND ORDER the hodgepodge of exhibits, o"pinions, suppositions, erstwhile claims and sub-claims. I would have to spend many more hours writing findings in this case, only to end up with essentially the same analysis and conclusions as that provided in the Defendant's Trial Memorandum filed in the case. Rather than do that, I find that the analysis and conclusions contained in Defendant's memorandum clearly, cogently and accurately reflect my own analysis. Based upon that finding, I further find that the Petitioner has failed to prove any of his claims or sub-claims by a preponderance of the evidence and all of his claims and sub-claims fail. Respondent's Exhibit 150, p. 4. Petitioner first asserts that the PCR trial court's wholesale adoption of the analysis from the State's trial memorandum requires a more careful habeas corpus examination because it shows the perfunctory nature of the state court's review. To the contrary, the the trial judge spent many hours poring over incorporating the State's reasoning into his Judgment. case before This court will, of course, remain careful and vigilant in its analysis, but sees no reason to review this case differently based upon the style of the PCR trial court's decision. The PCR trial court's decision addressed petitioner's claims pertaining to Delaney and Frost in terms of their admissibility under based upon principles of relevance and hearsay. Exhibit 139, pp. 28-31. Respondent's It concluded that the introduction of the FHG's out of court statements via Frost and Delaney were proper under the Rules of Evidence. 13 - OPINION AND ORDER Id. It also determined that even assuming Delaney's testimony was improper, petitioner did not suffer any prejudice because "a wide variety of other witnesses testified to essentially the same evidence." Id at 30. The PCR trial court's decision did not, however, specifically address the central issue in this case: whether the statements constituted improper vouching for FHG's credibility, whether the improper petitioner's trial. vouching had a prejudicial at issue and if so, impact upon As a result, the court conducts an independent review of the record as to these claims. 223 Delgado v. Lewis, F.3d 976, 982 (9th Cir. 2000). "[I]n Oregon a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth." 294 Or. State v. Middleton, psychotherapist testimony, reaffirmed its 427, 438 (1982). In the context of the Oregon Supreme Court emphatically stance six years after Middleton: "We have said before, and we will say it again, but this time with emphasis - we really mean it no psychotherapist may render an opinion on whether a witness is credible in any trial conducted in this state. The assessment of credibility is for the trier of fact and not for psychotherapists." 629 (1988) State v. Milbrandt, 305 Or. 621, 756 P.2d 620, (emphasis in original). In 2010, the Oregon Supreme Court again revisited this topic and recognized, "This court has long held that one witness may not give an opinion on whether he or she believes another witness 14 - OPINION AND ORDER is telling the truth." State v. Lupoli, 348 Or. principle is a 346, 357 (2010) It instructed, straightforward matter when one "Applying that witness states directly that he or she believes another witness, or that the other witness is honest or truthful." Delaney testified that Id. one could tell FHG was telling the truth about the abuse, and Frost testified, essentially, that FHG was a truthful person. Under Oregon law, these are direct comments on the credibility of FHG and, therefore, strictly prohibited. 2 Counsel did not explain why he did not object to Frost's vouching, and claimed he made a strategic decision not to object to Delaney's comment on FHG's credibility because he feared highlighting that testimony to the jury. Frost testified examination, the prior prosecutor to Delaney. asked a During question Frost's that direct should have immediately raised red flags for counsel: "Did [FHG] ever tell you things that sounded outlandish or like lies." p. 35. Trial Transcript, This provided counsel with a clear opportunity to object before Frost answered, but he did not do so. 2 As a result, Frost's Respondent directs the court's attention to Easter v. 239 Or. App. 209 (2010) for the proposition that the statements at issue in this case did not constitute improper vouching. Easter is distinguishable from petitioner's case insofar as the statements at issue in that case did not involve a direct commentary on the credibility of the victim, but rather were aimed at determining whether the victim had any specific motive to lie where the defense theorized that the child victim was motivated to lie about the abuse because she was angry with the defendant and his daughter. Id at 214. Mills, 15 - OPINION AND ORDER improper comment evidence. on the Thereafter, victim's it was credibility was critical that entered counsel not into allow Delaney to reinforce this credibility testimony with additional, inadmissible testimony. As a result, the court finds counsel's performance fell below an objective standard of reasonableness when he failed to object to the improper vouching from Delaney and Frost. The court must prejudiced as a Respondent argues prejudice and, next result that determine of counsel's petitioner relies instead, whether does upon petitioner deficient not performance. sufficiently unargued, was prove procedurally defaulted claims based upon the prosecutor's allegedly improper closing argument which are ineligible for consideration. court must consider the prejudice, Strickland, argument is not, totality of the 466 U.S. itself, at 695, evidence. evidence While the in assessing a prosecutor's closing As such, and because petitioner's claims predicated on the prosecutor's closing argument 16 OPINION AND ORDER are not preserved for habeas corpus review, 3 the closing argument does not factor into the prejudice inquiry. Nevertheless, prejudice. counsel's petitioner's Where credibility failure to object to case was does of Frost's tend paramount and to indicate importance, Delaney's improper comments on FHG's credibility could be seen as very damaging. is especially pertaining to true the where: Unlawful ( 1) FHG Sexual gave conflicting Penetration charge This testimony when she repeatedly denied that it occurred before suddenly changing her testimony; (2) petitioner's then-estranged wife testified that she spent the night with him and he could not possibly have done what FHG alleged; and ( 3) despite the improper testimony on FHG' s credibility, petitioner was narrowly convicted on each charge by a vote of 10-2. There are, however, countervailing considerations that could have overcome any prejudice from the improper testimony pertaining to FHG's credibility. It was uncontroverted that FHG experienced In the PCR trial court, petitioner alleged that trial counsel was ineffective with respect to actions of the prosecutor, including when counsel: (1) failed to move for a mistrial during the State's closing when the prosecutor gave the impression that she had seen evidence not admitted at trial; (2) failed to object when the prosecutor vouched for witnesses for the State; and (3) failed to object when the prosecutor offered her personal opinion about the evidence offered at trial. Respondent's Exhibit 111. Petitioner did not pursue these claims on appeal, and they are now procedurally defaulted. Respondent's Exhibits 152-153. 17 -OPINION AND ORDER abdominal pain returned to and her vaginal home bleeding from on the petitioner's very residence ultimately alleged he had first abused her. morning she where she In addition, while Dr. Oddo testified that FHG's examination was normal, he did note that an unusual indentation in her genital area could have been the result of sexual abuse. 4 Moreover, the jury was given the opportunity to assess FHG's credibility both on the witness stand, and by viewing the brought FHG' s CARES videotape made allegations Trial Transcript, p. shortly after Delaney to the attention of the authorities. Given this evidence, 12 6. the outcome of petitioner's trial might not have changed regardless of counsel's failure to object to the improper comments on FHG's credibility. It is important to reiterate that in habeas corpus cases, the inquiry is not what this court would do if presented with petitioner's claims for a de novo review, but whether the PCR trial court's decision denying relief on them is not just wrong, but an unreasonable application of U.S. Supreme Court precedent. To prevail, petitioner must "show that the state court's ruling on the claim[s] being justification presented that in there was federal an court error was well so lacking understood in and comprehended in existing law beyond any possibility for fairminded 4 In fact, Dr. Oddo testified that the physical exam was one basis for his conclusion that FHG had been the victim of sexual abuse. Trial Transcript, p. 155. 18 - OPINION AND ORDER disagreement." Harrington v. Richter, 131 S.Ct. 770, 786-87 (2011). It lS debatable whether the comments on credibility failure under the resulted in prejudice to petitioner. the record, command a to object to circumstances two of improper this case Upon an independent review of because the prejudice inquiry in this case does not result that is beyond any possibility for fairminded disagreement, the court concludes that petitioner is not entitled to habeas corpus relief on Grounds B and C. IV. Grounds G & I: Dr. Oddo's Testimony Petitioner next alleges that trial counsel was ineffective for failing to object when the State's expert witness testified that FHG had been the victim of abuse despite categorizing her physical exam as "normal," credible. thereby implying that FHG' s allegations At the time of petitioner's trial in 2005, were Oregon law allowed a medical expert to testify to a diagnosis of sexual abuse even if that diagnosis was based entirely upon what the victim told the expert. State v. Wilson, 121 Or. App. 460, 462-67 (1993). Although the Oregon Supreme Court later determined in 2009 that this kind of testimony did, in fact, constitute an improper comment on witness credibility, State v. Southard, 347 Or. 127, 142 (2009), counsel was not constitutionally required to anticipate this result in 2005. Cir. See Sophanthavong v. 2004). Accordingly, Palmateer, 378 F.3d 859, 870 (9th the PCR trial court's decision denying 19 - OPINION AND ORDER relief upon this claim is neither contrary to, nor an unreasonable application of, clearly established federal law. CONCLUSION For the reasons identified above, Habeas Corpus (#2) is DENIED. the Petition for Writ of The court grants a Certificate of Appealability Grounds B and C on the basis that petitioner has made a substantial showing pursuant to 28 U. S.C. of § the denial of a constitutional 2253 (c) (2). IT IS SO ORDERED. DATED this day of March, 2014. Judge 20 - OPINION AND ORDER right
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