Galindo v. Cain, No. 2:2017cv00105 - Document 51 (D. Or. 2019)

Court Description: Opinion and Order: For the reasons identified above, the Amended Petition for Writ of Habeas Corpus 17 is denied. The Court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c) (2). Signed on 7/1/2019 by Judge Michael W. Mosman. (Mailed to Pro Se party on 7/1/2019.) (kms)

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Galindo v. Cain Doc. 51 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON ALFREDO P. GALINDO, Case No. 2:17-cv-00105-MO Petitioner, OPINION AND ORDER v. BRAD CAIN, Respondent. Nell Brown Assistant Federal Public Defender 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 Attorney for Petitioner Ellen F. Rosenblum, Attorney General Samuel A. Kubernick, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent 1 - OPINION AND ORDER Dockets.Justia.com MOSMAN, District Judge. Petitioner brings U.S. C. § 2254 this challenging habeas the corpus legality case pursuant of his Marion to 28 County convictions and resulting 300-month sentence dated June 2, 2010. For the reasons that follow, the Amended Petition for Writ of Habeas Corpus (#17) is denied. BACKGROUND Petitioner's business within stepdaughter, her apartment. Mandy, As part watched Kandra B.'s three children, operated of that a daycare business, she including her four-year-old daughter, J.B. One day J.B. informed Kandra that while Mandy was absent from the apartment, orally sodomized her. Marion County Grand Petitioner touched her vagina Kandra contacted law enforcement, Jury indicted Petitioner on one and and the count of Sodomy in the First Degree and one count of Sexual Abuse in the First Degree. Respondent's Exhibit 102. A jury unanimously convicted Petitioner of both charges, and the trial court imposed a 300-month prison sentence for the Sodomy conviction as well as a concurrent 75-month sentence for the Sexual Abuse conviction. 1 Respondent's Exhibit 106, p. 58. Petitioner took a direct appeal where he alleged that this 300-month sentence violated the Eighth Amendment. He conceded in his Appellant's Brief that the claim was unpreserved for appellate review because he did not object to the sentence at the 1 Both sentences were statutorily required pursuant to ORS 137,700. The 300month sentence for Sodomy in the First Degree was a result of Oregon's passage of "Jessica's Law" in 2006 which requires a 300-month sentence for crimes committed by adults who rape, sodomize, or sexually penetrate a child who is under 12 years of age. ORS 137.700(2) (b). 2 - OPINION AND ORDER trial level, but he asked the Oregon Court of Appeals to review the imposition of his 300-month sentence as "plain error. " 2 The Oregon Court of Appeals affirmed the without issuing a written opinion, denied review. Circuit Court's decision and the Oregon Supreme Court State v. Galindo, 249 Or. App. 334, 378 P.3d 141, rev. denied, 352 Or. 107, 284 P.3d 485 (2012). Petitioner next filed for post-conviction relief Malheur County. pro se trial in Petitioner's appointed PCR attorney amended the Petition to omit various counsel ("PCR") was ineffective claims, for including claims that failing to: present ( 1) mitigation evidence; and (2) and challenge the imposition of the mandatory counsel's minimum sentence. decision to Petitioner omit claims he This prompted him to file a "Church v. did not agree with initially raised pro se. Gladden" motion seeking their inclusion in his Amended PCR Petition. 3 The PCR court held a hearing on Petitioner's Church claims and determined that the claims were either procedurally deficient or lacked merit. Respondent's Exhibit 119. Accordingly, the PCR court did not substitute counsel or compel Petitioner's appointed attorney to present Petitioner's desired claims. The PCR court did, however, find in Petitioner's favor as to the claims counsel 2 ORAP 5.45(1) provides a mechanism whereby an unpreserved claim may still be considered on appeal--"the appellate court may consider an error of law apparent on the face of the record." This provision allows the Oregon Court of Appeals to consider unpreserved errors of law which are "obvious" and "not reasonably in dispute." Ailes v. Portland Meadows, Inc., 312 Or. 376, 381, 823 P.2d 956 (1991). 3 In Church v. Gladden, 244 Or. 308, 311-312, 417 P.2d 993 (1966), the Oregon Supreme Court held that a litigant must inform the court of an attorney's failure to follow a legitimate request, and that the litigant can ask to have counsel replaced or ask the court to require the attorney to comply with the litigant's request. 3 - OPINION AND ORDER raised in the Amended PCR Petition. Specifically, it found both trial and appellate counsel to be ineffective pertaining to the imposition of fees and fines. Respondent's Exhibit 120. The Oregon Court of Appeals affirmed that decision without opinion, and the Oregon Supreme Court denied review. Galindo v. Nooth, 279 Or. App. 336, 384 P.3d 544, rev. denied, 360 Or. 697, 388 P.3d 712 (2016). Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on January 23, him. 2017 and this Court appointed counsel to represent With the assistance of appointed counsel, Petitioner filed his Amended Petition in which he raises the following grounds for relief: 1. Trial counsel failed to conduct effective pretrial preparation and investigation, including failing to investigate and present witnesses, obtain records, conduct mitigation investigation, and consult with or retain experts; 2. Trial counsel failed to move to suppress evidence, including statements Petitioner allegedly provided to police; 3. Trial counsel failed to object at trial to improper vouching testimony by witnesses and statements by the prosecutor during closing argument, including statements made by the detective, the nurse, and the prosecutor that vouched for J.B.'s credibility or the credibility of her disclosures; 4. Trial counsel failed to object at sentencing: (a) to the denial of Petitioner's right to allocution; and (b) to the imposition of a 25-year sentence that was constitutionally disproportionate in violation of the Eighth Amendment; 4 - OPINION AND ORDER 5. The trial court erred in admitting prejudicial vouching evidence during trial and closing arguments in violation of the Fourteenth Amendment; 6. The trial court erred in imposing a sentence in violation of the Eighth Amendment's prohibition on cruel and unusual punishment; and 7. The prosecutor made improper statements during closing argument, including vouching for the credibility of the victim and using statements Petitioner made to officers knowing that they were taken in violation of his state and federal constitutional rights. Respondent because: ( 1) asks the Court to deny relief on the Petition with the possible exception of Ground Six, Petitioner's claims are procedurally defaulted; and (2) all of even if Petitioner could circumvent the procedural bar as to Ground Six where he failed to make a trial-level objection to the legality of his sentence, unreasonably the apply trial federal law court when did it not imposed contravene the or 300-month sentence for the Sodomy conviction. DISCUSSION I. Unargued Claims As noted above, Petitioner raises seven grounds for relief in his Amended Petition. In his supporting memorandum, however, Petitioner chooses to brief only two of his grounds for relief: (1) the Ground Four claims that trial counsel failed to move to suppress statements Petitioner allegedly made to law enforcement, failed to object to improper statements by the prosecutor in her closing arguments, and abandoned him at sentencing; and (2) the Ground Six claim that the trial court's imposition of a 300-month 5 - OPINION AND ORDER sentence is unconstitutional. Where Petitioner does not argue the remainder of his claims, he has not carried his burden of proof with respect to these unargued claims. See Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (Petitioner bears the burden of proving his claims). II. Exhaustion and Procedural Default A habeas petitioner must exhaust his claims presenting them to the state's highest court, direct appeal or collateral proceedings, by fairly either through a before a federal court will consider the merits of those claims. Rose v. Lundy, 455 U.S. 509, 519 (1982). "As a general rule, a petitioner satisfies the exhaustion requirement by fairly presenting the federal claim to the appropriate state courts . state courts, thereby . in the manner required by the 'affording the state courts a meaningful opportunity to consider allegations of legal error. '" Moore, 386 F.3d 896, Hillery, 915-916 (9th Cir. 2004) 474 U.S. 254, 257, If a habeas Casey v. (quoting Vasquez v. (1986)). litigant failed to present his claims to the state courts in a procedural context in which the merits of the claims were actually considered, the claims have not been fairly presented to the state courts and are therefore not eligible for federal habeas corpus review. Edwards v. Carpenter, 529 U.S. 446, 453 this (2000); Castille v. respect, defaulted" his a Peoples, petitioner claim if he is 489 U.S. deemed failed to 346, to have comply 351 (1989). In "procedurally with a state procedural rule, or failed to raise the claim at the state level at all. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 6 - OPINION AND ORDER 501 U.S. 722, 750 (1991). If a petitioner has procedurally defaulted a claim in state court, a federal court will not review the claim unless the petitioner shows "cause and prejudice" for the failure to present the constitutional 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). A. Ground Four: Ineffective Assistance of Counsel Respondent argues that although Petitioner raised his Ground Four ineffective assistance of counsel claims in his prose PCR Petition, the PCR court did not consider them because they were not included in his Amended PCR Petition. Petitioner claims that he did, in fact, fairly present his Ground Four claims because he followed all of the steps Oregon provided for him. He asserts that where he included the claims in his prose PCR Petition and filed a Church motion promoting their inclusion in the Amended PCR Petition, he could not reasonably have been expected to do more. Fair presentation required Petitioner to raise his claims to the Oregon Supreme Court in a context in which it would assess the merits of his claims. Four claims Court. in his Respondent's Petitioner did not include his Ground Petition for Exhibit 123. Review to the Consequently, Oregon where Supreme Oregon's highest court did not have an opportunity to pass on the merits of these claims, Petitioner failed to fairly Because he can no longer present these claims they are procedurally defaulted. 7 - OPINION AND ORDER present them. in state court, Inadequate State Process 1. As should an be alternative excused argument, from the Petitioner exhaustion contends requirement that he altogether because there was no viable way for him to raise his Ground Four issues in state court thereby rendering Oregon's state corrective process ineffective to protect his rights under See 28 U.S.C. 2254 (b) (1) (B) (ii). According to Petitioner, when the § PCR court refused to require counsel to include the desired prose claims or provide substitute counsel who would pursue them, there was no way to ever have the merits of the claims considered in Oregon's courts. As an initial matter, there is no indication that the PCR court required Petitioner to proceed with an appointed attorney despite his wishes to proceed prose. In this regard, had the pursue, option or proceed pro to proceed with se on appointed the counsel presumably believed were more meritorious ultimately prevailed. Accordingly, claims on he Petitioner wished to claims and which, counsel in fact, Petitioner did have an avenue by which to fairly present his Ground Four claims, and the state corrective process did not become ineffective due to the appointment of counsel for an indigent litigant. In addition, Petitioner's argument overlooks the fact that even with appointed counsel, he had an opportunity to raise his prose claims and advocate for their inclusion in his Amended PCR Petition by way of his Church motion. The fact that the PCR court concluded that his pro se claims did not merit inclusion for reasons both procedural and substantive does not render the state 8 - OPINION AND ORDER court process ineffective. Indeed, analogous to a motion to amend a a motion Church complaint, is most something which a court may deny if it finds that the claims to be added are not viable. Such rulings do not render the judicial process ineffective. Moreover, although Petitioner states that he could not have done anything more to fairly present his Ground Four claims to Oregon's state courts, he did not appeal the PCR court's Church ruling as to the Ground Four claims even though the entire basis of his appeal was to challenge the Respondent's Exhibit 121. Instead, PCR court's Church ruling. he his limited appeal to whether the PCR court erred in resolving the Church motion only by failing to require counsel to include a claim that Petitioner was factually innocent of his crimes. Id at 8. Nothing in the record suggests that Petitioner had a disagreement with appellate counsel over this issue and, even if he did, the record does not reflect that he sought leave of the Oregon Court of Appeals to file a supplemental prose appellant's so as to raise his desired claims. For all of these reasons, Oregon's state corrective process was not ineffective to protect Petitioner's rights. 2. In Conflict of Interest the second alternative, Petitioner maintains that Church procedure put him at odds with his PCR attorney, generating a conflict of interest that amounts to the thereby cause and prejudice to excuse his default. A habeas petitioner seeking to overcome a procedural default through a showing of cause and prejudice must show that some factor, external to the defense and 9 - OPINION AND ORDER not attributable to him, prevented him from complying with a state procedural rule, and that he suffered actual prejudice as a result. Murray v. States v. Frady, 477 Carrier, U.S. 478, 488 (1986); United 456 U.S. 152, 170 (1982). The strategic decision regarding which claims to advance is not a factor external to the defense. 3. In Ineffective Assistance of PCR Counsel the third alternative, Petitioner asserts that PCR counsel was ineffective for failing to understand the Ground Four sentencing claim and raise it to the PCR court. Traditionally, the performance of PCR counsel could not be used to establish cause and prejudice to excuse a procedural default. 501 U.S. Thompson, ineffective 722, 753-54 assistance Pennsylvania v. Finley, (1991) Coleman v. (only the constitutionally of counsel 481 U.S. 551, constitutes 556 (1987) cause); (there is no constitutional right to counsel in a PCR proceeding). However, in Martinez v. "it . Ryanr 566 U.S. necessary Coleman that an to 1, 4 (2012), modify attorney's the the Supreme Court found unqualified ignorance or statement inadvertence in in a postconviction proceeding does not qualify as cause to excuse a procedural default." assistance of counsel may establish cause at Id at for 8. It concluded, "Inadequate initial-review collateral proceedings a prisoner's procedural default of a claim of ineffective assistance at trial." Id. In order to establish cause to excuse his default pursuant to Martinez, Petitioner must show first that his underlying claim of ineffective assistance of trial counsel is substantial insofar 10 - OPINION AND ORDER as it has "some merit." Next, attorney was ineffective 466 U.S. Washington, he must demonstrate that his PCR under the 668 PCR counsel prejudiced of Strickland v. (1984), for failing to raise the claim. "[T] o fulfill this requirement, that standards performed petitioner, a petitioner must not only show deficiently, i.e. , that but there also was a that this reasonable probability that, absent the deficient performance, the result of the post-conviction Runningeagle v. proceedings 825 Ryan, would F.3d have been 982 (9 th 970, different." Cir. 2017) (quotation omitted). Such a finding would necessarily require the Court to conclude that there is a reasonable probability that the trial-level ineffective assistance claim would have succeeded had it been raised. Id. According to Petitioner, trial counsel effectively abandoned him at sentencing and abdicated his role as advocate, acquiescing to the imposition of a 300-month availability of mitigation arguments. sentence despite the Petitioner claims that his punishment is too severe for his conduct, and that Oregon case law issued prior to his trial gave counsel the opportunity to convincingly argue for a downward departure irrespective of the mandatory minimum nature of the Jessica's Law sentence. He directs the Court to State v. Rodriguez/Buckr 347 Or. 46 (2009), where the Oregon Supreme Court affirmed two different trial court decisions departing downward from mandatory minimum sentences one year prior to his trial. Rodriguez/Buck was defendants who were a consolidated convicted 11 - OPINION AND ORDER of appeal Sexual of Abuse two in criminal the First degree, a crime Oregon punishes under Measure 11 with a mandatory minimum sentence of 7 5 months in prison. Defendant Rodriguez's case a involved her holding the back of 12-year-old's head against her clothed breasts for about one minute while massaging the sides of his head. Defendant Buck let the back of his hand remain against the clothed buttocks of a 13-year-old girl when she leaned back against his hand several times, and he also twice wiped dirt off the back of her shorts. The Oregon Supreme Court concluded that the imposition of a mandatory minimum term of 75 months in each of those cases "shocked the conscience" and was unconstitutionally disproportionate under Article I, to the facts of the crimes section 16 of the Oregon Constitution. 347 Or. at 78-79. In stark contrast to Rodriguez/Buckr Petitioner in the case at bar digitally and orally contacted the four-year-old victim's bare vagina. his case Based upon the particulars of Petitioner's crime, is much more Alwinger 231 Or. modified recons., on App. analogous 11, 236 217 Or. to the situation in P.3d 692 (2009), App. 240 236 State v. adhered to as P.3d 755 (2010). Alwinger addressed a single instance of digital penetration that occurred while victim after the she defendant toweled had been playing in a off the three-year-old sprinkler. Court of Appeals determined that the imposition of a sentence pursuant to Jessica's Law proportionality clause of Article 12 - OPINION AND ORDER I, did not offend The Oregon 300-month either the section 16 of the Oregon Constitution or the Eighth Amendment of the U.S. Constitution. 4 231 Or. App. at 18-19. In light of this governing case law at the time of Petitioner's trial, and given the significant factual differences between Petitioner's case and that of Rodriguez/Buck, trial counsel was not on notice of a viable argument by which to obtain lesser a sentence for his client. Accordingly, Petitioner's claim of ineffective assistance of trial counsel is not substantial such that Martinez does not excuse his procedural default. 4. Actual Innocence Finally, in the fourth alternative, Petitioner argues that he is actually innocent of his underlying criminal conduct. Schlup v. Delo, 513 U.S. 298 In (1995), the Supreme Court addressed the process by which state prisoners may prove "actual innocence" so as to excuse a procedural default. The Court explained that in order to petitioner be credible, a support his to claim of actual allegations of innocence "requires constitutional error with new reliable evidence--whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence--that was not presented at trial." Id. at 324; Downs v. Hoyt, 232 S.Ct. 1665 F.3d 1031, (2001). 1040 (9 th Ultimately, Cir. 2000), cert. denied, 121 petitioner must prove that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. 4 Schlup, 513 U.S. at 327; In Alwinger, the Oregon Court of appeals also observed, "we have upheld a sentence of life imprisonment imposed on a recidivist offender 'for forcibly kissing a woman on the neck."' 231 Or. App. At 17 (quoting State v. Pardee, 229 Or. App. 598, 603, 215 P.3d 870 (2009)). 13 - OPINION AND ORDER Bousley v. F. 3d at assess 523 U.S. United States, 1040. In making the probative this force 614, 623 (1998); determination, of the this Downs, court 232 "must newly presented evidence connection with the evidence of guilt adduced at trial." in Schlup, 513 U.S. at 332. Petitioner offers an investigator's report from May of this year which investigator had provide new exculpatory scientific evidence, trustworthy eyewitness account, or critical However, physical details Mandy was evidence to a call the unable to refute the any evidence of with guilt Mandy. adduced at Petitioner's trial. At a minimum, in light of the investigator's conversation reasonable with juror Mandy, would Petitioner find him cannot establish guilty. 5 For all that of no these reasons, Petitioner is unable to excuse his procedural default. B. As violated unusual Ground Six: Sentence Prohibited by Eighth Amendment Ground the Six, Petitioner Eighth Amendment's punishment when it pursuant to Jessica's Law. direct appeal, argues that prohibition imposed the The State argues, the trial against 300-month as court cruel and sentence it did during that Petitioner made no such objection at trial, thereby failing to preserve his claim and rendering it ineligible for merits consideration by the Oregon Court of Appeals. As noted in the Background of this Opinion, Petitioner conceded the lack 5 Because petitioner is not able to meet the Schlup gateway showing of actual innocence to excuse his procedural default, he cannot meet the more demanding showing required by Herrera v. Collins, 506 U.S. 390, 417 (1993), for a freestanding claim of actual innocence. House v. Bell, 547 U.S. 518, 555 (2006) (Herrera requires more convincing proof of innocence than Schlup). 14 - OPINION AND ORDER of preservation during his direct appeal but asked the appellate court to adjudicate his claim on its merits as an issue of plain error. The Court need not constitutes fair decide whether this procedural history presentation of Petitioner's Eighth Amendment claim because the claim is clearly without merit. § 2254 (b) (2) denied on See 28 U.S.C. ("An application for a writ of habeas corpus may be the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state.") . Specifically, the Supreme Court has upheld the imposition of a mandatory sentence of life imprisonment without the possibility possession U.S. 957 where a of of 672 ( 1991), parole grams upheld three-strikes $150. 00 worth of Andrade, 538 U.S. for of a total videotapes 77 first-time cocaine, offender 63, a Harmelin sentence stole during ( 2003), offender a of years of a life approximately incidents, upheld to on 501 Michigan, 50 total two and v. based Lockyer v. three-strikes sentence of 25 years to life for the theft of three golf clubs. Ewing v. of California, Petitioner's 538 U.S. 11, 21-22 conduct in this case, (2003). Given the gravity and to the extent Oregon Court of Appeals addressed this claim on its merits, the it did not unreasonably apply Supreme Court precedent when it denied relief on Petitioner's Eighth Amendment challenge to his 25-year sentence. See 28 U.S.C. § 2254(d) review for habeas corpus cases). Ill Ill 15 - OPINION AND ORDER (setting forth standard of CONCLUSION For the reasons identified above, Writ of Habeas Corpus (#17) is the Amended Petition for denied. The Court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing constitutional right pursuant to 28 U.S.C. of § the denial of 2253(c) (2). IT IS SO ORDERED. i y.f- DATED t h i s ~ - - day of July, 2019. Micha~l w ~ United States District Judge 16 - OPINION AND ORDER a

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