Brummett v. Angelozzi - Document 20
OPINION AND ORDER. Petitioner's petition for habeas corpus relief 2 is DENIED, and this proceeding is DISMISSED. Because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability is DENIED. See 28 U.S.C. § 2253 (c) (2). IT IS SO ORDERED. Signed on 1/31/2012 by Judge Malcolm F. Marsh. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
GENE THOMAS BRUMMETT,
Case No. 3:11-cv-3045-MA
OPINION AND ORDER
ANTHONY D. BORNSTEIN
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, OR 97204
Attorney for Petitioner
JOHN R. KROGER
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301-4096
Attorneys for Respondent
Petitioner Gene Thomas Brummett, an inmate in the custody of
the Oregon Department of Corrections,
1 - OPINION AND ORDER
brings this habeas corpus
proceeding pursuant to 28 U.S.C.
For the reasons set forth
below, the petition is denied, and this proceeding is dismissed.
Petitioner was the manager of a trailer park in Coos Bay in
On April 26, 2005, petitioner was indicted on charges that
he sexually abused "AR," a thirteen year old girl who lived next
door to him in the trailer park.
The charges stemmed from an
incident occurring on January 18, 2005.
Petitioner was represented
by Carole Hamilton and Stacey Lowe at trial.
AR, who had turned fourteen by the time of trial, testified at
AR testified that sometime between 9:30 and 10 a.m. on
January 18, 2005, petitioner visited her at the trailer where AR
Ii ved with her family.
AR testified that petitioner gave her
cigarettes and sat by her on the couch.
she just broke up with her boyfriend.
AR told petitioner that
AR testified that petitioner
stuff their bras
grabbed her breast, and said "that's not stuffed."
that petitioner then lifted her shirt.
AR stated that petitioner
got up from the couch to put out his cigarette and walked around
AR stated that petitioner then came up behind her,
lifted her shirt, and attempted to take off her bra.
that petitioner asked AR if she would let him suck on her breasts.
2 - OPINION AND ORDER
AR testified that she said no, asked petitioner to leave, and that
AR testified that petitioner returned approximately 10 minutes
later with a marijuana pipe and asked whether she wanted to smoke
AR testified that they smoked marijuana together, and
that petitioner then asked whether they could go to her bedroom.
AR testified that she said no, and again asked petitioner to leave.
AR stated that petitioner then gave her $20 and asked her not to
tell because he would get in trouble.
AR told petitioner that she
would not tell.
petitioner called her
10 or 20
minutes later and asked how she would explain the money he gave
AR stated that she would say she earned it babysitting.
testified that when her sister and a
she told them what happened,
friend returned home from
and then the three of them
informed petitioner's wife about the incident.
When AR's mother
returned home, AR testified that she informed her mother,
turn told AR's step-father.
That evening, AR's family confronted
Later that evening,
AR's mother called the
AR testified that approximately one month later, she was again
interviewed by police, and that she assisted the police in making
3 - OPINION AND ORDER
During that pretext call, petitioner stated that he was
sorry the whole
thing went down,
"lesson real fucking quick."
and that he
(Resp. Ex. 107.)
had learned his
A recording of the
pretext call was played for the jury.
petitioner's children several weeks prior to the incident and was
AR admitted that on the morning of January 18, 2005, she
asked petitioner's wife for a cigarette.
AR also admitted that
during her first interview with the police officer,
she did not
tell the officer about smoking marijuana because she was afraid.
friend, mother, and step-father all testified,
and each relayed the disclosure of the incident by AR to them.
Their testimony was consistent with AR's testimony.
Officer Robert Scoville testified as to AR's disclosures to
him on January 18, 2005.
On cross-examination, Officer Scoville
testified that when he met with AR on January 18, AR did not tell
him that petitioner gave her cigarettes and marijuana.
petitioner on January 18,
Officer Robson testified that
petitioner admitted to paying AR $20 for watching his kids for 20
or 30 minutes, but denied touching AR's breasts.
Officer Hugo Hatzel testified that he interviewed AR at school
on February 22,
Officer Hatzel testified that he took a
4 - OPINION AND ORDER
inquired whether AR would be willing to assist with making a
Officer Hatzel testified that AR informed him about
petitioner bringing marijuana to AR's trailer,
petitioner smoked from a brown pipe.
and that AR and
Officer Hatzel stated that AR
made the pretext call to petitioner with his help.
testified that he interviewed petitioner on February 23, and that
petitioner denied that he touched AR's breasts, but admitted that
he had given AR cigarettes.
Officer Hatzel stated that petitioner
consented to a search of his home.
On cross examination,
Officer Hatzel stated that during a
search of petitioner's residence on February 23, he found marijuana
seeds, but no marijuana and no pipes fitting the description AR
advances towards her.
ever touched AR or made any sexual
Petitioner denied smoking marijuana with AR.
Petitioner testified that on the morning of January 18, he asked AR
to watch his front door so that he could respond to overflowing
laundry facility at the trailer park.
Petitioner stated that he paid AR $20 for watching the front door
Petitioner testified that the apology he gave during
5 - OPINION AND ORDER
the destruction of their
Petitioner also presented character witnesses who stated that
petitioner was an honest and truthful person.
testified, and said that AR had asked her for a cigarette on the
morning of January 18,
and that when AR's family disclosed the
incident to her, AR had a smirk on her face.
The jury convicted petitioner of one count of Sexual Abuse in
Substance to a Minor by votes of 11 to 1.
The court sentenced
petitioner to 75 months on the sex abuse charge, and a concurrent
term of two months on the delivery charge.
Petitioner directly appealed his convictions, and the Oregon
Court of Appeals dismissed his appeal on petitioner's own motion.
several claims of ineffective assistance of trial counsel.
post-conviction court (PCR court) denied relief, the Oregon Court
of Appeals summarily affirmed, and the Oregon Supreme Court denied
in petitioner's supporting memorandum, he affirmatively
6 - OPINION AND ORDER
limits his case to the issue of trial counsel's handling of Officer
Hatzel's testimony in Ground One.
For habeas relief under
(Brief in Support, #19, p. 12.)
2254(d), petitioner has the burden
of showing that the state court's adjudication of his claims was
contrary to or an unreasonable application of established Supreme
See Silva v. Woodford,
279 F.3d 825,
Cir. ), cert. denied, 537 U. S. 942 (2002) (petitioner bears burden of
proving his claims).
Petitioner has failed to meet his burden of
Id.; Renderos v. Rvan,
469 F.3d 788,
2006), cert. denied, 551 U.S. 1159 (2007) (petitioner waived federal
habeas corpus claims where he did not attempt to set forth the
legal standards or attempt to meet them).
relief is denied on the remaining ineffective assistance of counsel
claims in Ground One,
as well as Grounds Two,
which are not advanced in petitioner's memorandum.
Ground One-Officer Hatzel.
Petitioner contends that trial counsel rendered ineffective
assistance by inadvertently eliciting prejudicial testimony from
7 - OPINION AND ORDER
prejudicial that it undermines confidence in the outcome of the
Respondent argues that the post-conviction court's rejection
of petitioner's claim is reasonable and is entitled to deference.
Under 28 U.S.C. § 2254(d), federal habeas corpus relief may
not be granted on a claim that was adjudicated on the merits in
state court, unless the adjudication:
(1) resulted in a decision that was contrary to, or
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
Under Strickland v.
to prevail on a
ineffective assistance of counsel, petitioner must show that
his counsel's performance was deficient, and (2) that the deficient
performance prejudiced the defense.
466 U.S. 668, 687 (1984); Bell
v. Cone, 535 U.S. 685, 698-99 (2002); Williams v. Taylor, 529 U.S.
362, 390 (2000).
Failure to make the required showing on either
prong defeats the ineffectiveness claim.
To prove deficient performance,
petitioner must demonstrate
that counsel's performance fell below an objective standard of
8 - OPINION AND ORDER
result of the proceeding would have been different.
at 695; Williams, 529 U.S. at 390-91; Strickland,
Bell, 535 U.S.
466 U.S. at 687,
This court reviews the state court's ultimate conclusion to
ascertain whether it is contrary to or an unreasonable application
2254 (d) (1); Lambert v. Blodgett,
F.3d 943, 978 (9th Cir. 2004), cert. denied, 546 U.S. 963 (2005).
Section 2254(e) provides that a "determination of a factual
issue made by a State court shall be presumed to be correct," and
this presumption of correctness may be rebutted only by "clear and
Petitioner's argument before this court is twofold:
PCR court made an unreasonable determination of the facts in light
of the evidence presented at the post-conviction proceeding; and
(2) the PCR court unreasonably applied Strickland when it concluded
did not provide
address each argument separately below.
The PCR Court Did Not Make
Determination of the Facts.
In this proceeding,
petitioner argues that the PCR court's
determination that trial counsel did not elicit testimony from
Officer Hatzel that he found marijuana seeds in petitioner's home
9 - OPINION AND ORDER
counsel's questioning made it more likely that Officer Hatzel would
testify about what he found during the search of petitioner's home.
counsel Stacey Lowe and Officer Hatzel:
[Trial counsel): ... And on February 23rd, did you ask
[petitioner) to come to the station to be interviewed?
And he agreed to do so?
And did he also, at some point, consent to a search
of his residence?
And did you find the marijuana pipe that fit the
description [AR) gave you?
Trial Transcript p.
In his briefing to the peR court, petitioner argued that trial
counsel's questioning was ill-advised and unnecessary.
Petitioner argued that by asking Officer Hatzel
whether he found marijuana,
10 - OPINION AND ORDER
counsel opened the door for him to
from the presence of the seeds,
could conclude that marijuana was present in his home on the day of
Petitioner did not present any other evidence
to the PCR court on this point.
attested that she did not have a clear recollection of the exchange
between Officer Hatzel and Ms. Lowe.
(Resp. Ex. 114, p. 2.)
Hamilton averred that she reviewed an audio recording of the trial.
Ms. Hamilton attested that Officer Hatzel volunteered that he found
marijuana seeds, and that his testimony was non-responsive to Ms.
Lowe's question and potentially, an objection could have been made
to Officer Hatzel's answer.
(Id. at p.3.)
Ms. Hamilton thought an
attention to that testimony.
Ms. Hamilton further averred that Officer Hatzel's testimony
marijuana on January 18, 2005, because seeds are not smokeable.
Based on the foregoing,
PCR court made
relevant findings of fact:
11 - OPINION AND ORDER
Trial counsel did not elicit testimony from Officer
Hatzel that petitioner had marijuana seeds in his
(Resp. Ex. 120, p. 3-4.)
proceeding, thus the evidence is confined to the record presented
In conducting this
review, a federal court may not second-guess a state court's fact
unless it concludes that the state court was not merely
wrong, but actually unreasonable.
Taylor v. Maddox, 366 F.3d 992,
It is not
circumstances; I must be convinced that no court could reasonably
conclude that the findings are supported by the record.
Petitioner has failed to meet this burden.
that the PCR court's findings are at odds with the record because
it is obvious from the transcript that the questions asked made it
more likely that Officer Hatzel would testify as to what he found
during his search of petitioner's home.
In this case, the PCR court found Ms. Hamilton's affidavit to
reveals that Ms. Lowe did not specifically inquire about marijuana
seeds, or even generally as to what Officer Hatzel found during the
search of petitioner's home.
12 - OPINION AND ORDER
Rather, in response to the question
information about finding marijuana seeds.
I cannot conclude that
PCR court's finding that trial counsel did not elicit the
testimony is erroneous,
an objectively unreasonable
determination of the facts in light of the evidence presented under
2254 (d) (2).
Even if I were to conclude differently,
I am not
convinced that no court could reasonably conclude that counsel did
not elicit the allegedly damaging testimony.
Taylor, 366 F.3d at
Therefore, the PCR court's factual finding that trial counsel
did not elicit testimony from Officer Hatzel that marijuana seeds
in petitioner's home is entitled to deference,
petitioner is not entitled to habeas relief on that basis.
v. Palmateer, 455 F.3d 958, 965 (9th Cir. 2006), cert. denied, 552
U.S. 873 (2007).
The PCR Court's did not unreasonably apply Strickland.
Review of counsel's performance is highly deferential and
assistance and exercised reasonable professional judgment.
(9th Cir.) (en
denied, 552 U.S. 1009 (2007); Williams v. Woodford, 384 F.3d 567,
reasonableness of counsel's performance is evaluated from counsel's
perspective at the time of the alleged error and in light of all
the circumstances" and every effort must be made to eliminate the
13 - OPINION AND ORDER
distorting effects of hindsight.
365, 381 (1986); Strickland, 466
Kimmelman v. Morrison, 477
Petitioner contends that the peR court's conclusion that trial
counsel did not
render ineffective assistance of counsel is an
unreasonable application of Strickland.
Petitioner argues that
competent counsel would not have asked Officer Hatzel whether he
found marijuana in petitioner's home because it was obvious that
Hatzel would testify about the seeds.
First, petitioner has failed to present clear and convincing
evidence in this court to overcome the presumption of correctness
given to the PCR court's factual findings that trial counsel did
not elicit testimony from Officer Hatzel that he found marijuana
seeds in petitioner's home.
finding is entitled to deference.
2254 (e) (1).
As such, that
Miller-EI v. Cockrell, 537
322, 340 (2003).
Second, a review of the trial transcript does not reveal that
trial counsel's question to Officer Batzel was
phrased to render a simple yes or no response.
has failed to demonstrate that counsel's performance was not within
the wide range of reasonable professional assistance.
in light of all the evidence presented,
petitioner has failed to demonstrate that trial counsel rendered
14 - OPINION AND ORDER
Even if petitioner could establish deficient performance, he
is wholly unable to establish prejudice.
I reject petitioner's
suggestion that the testimony from Officer Hatzel about finding
impacted the outcome of the trial.
The state presented strong evidence of petitioner's guilt.
including AR's sister, AR's friend,
parents all testified that AR disclosed the incident to them on the
and the officers testified about those
The jury heard the pretext call in which petitioner
paying AR $20 to watch his front door for twenty minutes, simply
In short, petitioner has not established that trial counsel
rendered deficient performance or that he suffered prejudice.
cannot conclude that the PCR court's rejection of petitioner's
ineffective assistance claim is objectively unreasonable.
thorough review of the record, and considering the weight of the
evidence against petitioner and the testimony presented at trial,
conclude that the PCR court's
rej ection of the petitioner's
ineffective assistance of counsel claim was neither contrary to,
15 - OPINION AND ORDER
nor an unreasonable application of,
clearly established federal
2254 (d) (1).
corpus relief (#2) is DENIED, and this proceeding is DISMISSED.
Because petitioner has not made a substantial showing of the
denial of a constitutional right, a certificate of appealability is
See 28 U. S.C. § 2253 (c) (2) .
IT IS SO ORDERED.
DATED this -:; I
day of JANUARY, 2012.
Malcolm F. Marsh
United States District Judge
16 - OPINION AND ORDER