Johnson v. State of Oregon et al, No. 3:2009cv00701 - Document 46 (D. Or. 2011)
Court Description: OPINION AND ORDER. Petitioner's amended petition for writ of habeas corpus 5 is GRANTED on ground one and DENIED on grounds two through eleven. Petitioner's convictions for Sodomy in the First Degree and Unlawful Sexual Penetration in the First Degree are vacated. Respondents are ordered to release petitioner from custody and discharge him from all other adverse consequences of his conviction unless petitioner is brought to retrial within 90 days of the date of the Judgment herein becomes final, plus any additional delay authorized by State law. IT IS SO ORDERED. Signed on 05/02/2011 by Judge Malcolm F. Marsh. (gw)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION RICHARD JOHNSON, Petitioner, v. OREGON BOARD OF PAROLE AND POST-PRISON SUPERVISION and KLAMATH COUNTY OREGON PAROLE OFFICER WILLIAM WILKENLOH, Respondents. TONIA L. MORO Assistant Federal Public Defender 15 Newtown Street Medford, OR 97501 Attorney for Petitioner JOHN KROGER Attorney General KRISTEN E. BOYD Assistant Attorney General Department of Justice 1162 Court Street Salem, OR 97301-4096 Attorneys for Respondents MARSH, Judge 1 - OPINION AND ORDER· CV. 09-701-MA OPINION AND ORDER Petitioner Richard Johnson, Oregon Department of an inmate in the custody of the Corrections, proceeding pursuant to 28 U.S.C. § brings 2254. this habeas corpus For the reasons set forth below, the petition is granted. FACTUAL BACKGROUND On November 20, 2000, petitioner was indicted on five counts of Sexual Abuse in the First Degree, one count of Unlawful Sexual Penetration in the First Degree, First Degree. and one count of Sodomy in the The charges arose out of three separate incidents occurring between January 1, 1998 and February 20, petitioner and the victim, 1999, between D.G., who was then eight years old. The incidents occurred when petitioner and his significant other, Judy Boren, were babysitting D.G. The alleged abuse came to light on or about February 20, 1999, after D.G. spent the night with petitioner and Ms. Boren at a motel room where petitioner was then residing. The following morning, D.G. reported to her mother, Diana Johnson, that petitioner entered the bathroom while she was showering and washed her breasts and genital area and that petitioner had put his hand in her shorts for about ten minutes. D. G. 's mother reported the incident to the police. Oregon State Trooper William Hakin interviewed D.G. at the Klamath Falls Patrol Office. Following Trooper Hakin's interview, Ms. Johnson 2 - OPINION AND ORDER scheduled an evaluation for D.G. at the Klamath Lake Child Abuse Response and Evaluation Services (CARES).l The CARES physical examination of D.G. was conducted by Gerri Britsch, M.D., and the CARES interview of D.G. Social Worker Robin Flagor. was conducted by Oregon State Police Sergeant Stephanie Gourley watched the interview from behind a one-way mirror. the videotaped CARES interview, D.G. During repeated her statement that petitioner had put his hand in her shorts for ten minutes and also that petitioner licked her vagina. two addi tional In the interview, D.G. revealed instances of abuse by peti tioner occurring at a house on Fargo street where D.G., her mother, lived. D. G. described the first and petitioner all incident occurring behind the house in a metal shed, and a second incident occurring inside the house. Officer Gourley arrested petitioner following the CARES interview. When confronted by Segeart Gourley with the charges by D.G., petitioner contended that it was a misunderstanding, and that a letter he planned to send to Ms. Johnson would resolve the issue. Peti tioner examination contended was for that he purposes had examined D. G., of determining if but D.G. that the had been lA CARES evaluation consists of two parts: (1) a physical examination performed by a medical provider specially trained in the area of child abuse, and (2) an interview conducted by a nurse or social worker specially trained in the area of child abuse. The interview is typically videotaped. 3 - OPINION AND ORDER sexually abused. (Resp. Ex. 120.) Petitioner facilitated Officer Gourley obtaining the letter. Petitioner waived his right to a jury trial and was tried before the court on March 13-14, 2001. The prosecution's primary witnesses were Trooper Hakin, trial. Ms. Flagor, and Dr. Britsch. D.G. D.G. did not testify at Hakin testified that he interviewed at the Klamath Lake Patrol Office. During that interview, Hakin testified that D.G. told him that while she was spending the night with petitioner, petitioner put his hand in her shorts for ten minutes. following the Hakin testified that D.G. described that immediately incident, she attempted to call her mother, but petitioner would not let her. Ms. Flagor testified that she conducted the CARES interview with D.G. and that the CARES interview was videotaped. Flagor also authenticated several anatomically correct drawings that Flagor used during her interview with D.G. to clarify what parts of the body D.G. was describing. The drawings and CARES videotape were admitted as evidence and viewed by the judge. Dr. Britsch testified that she performed the CARES physical examination on D. G. Dr. examination was normal sexual abuse. Britsch testified that D.G.'s genital in that it did not reveal any signs of Dr . Britsch also testified that D. G . . stated that petitioner had touched her "privates" or "cooter." Trial Transcript (Tr.) 4 - OPINION AND ORDER 79-80.) Dr . Britsch (Resp. Ex. 103, also offered her medical opinion that D.G. suffered "probable child sexual abuse." (Tr. 85.) The prosecution also admitted as evidence two letters written by petitioner describing the three incidents with D.G. Petitioner's trial counsel obj ected to the admission of D. G. ' s out-of-court statements to Hakin, the CARES videotape and unavailable for d~awings, Flagor and Britsch, as well as contending that because D.G. was cross-examination, admission of the statements violated the Confrontation Clause of the Sixth Amendment. 25-28, 51-52.) (Tr. at The trial court ruled that D.G. was unavailable, and that the statements' to Trooper Hakin and CARES personnel, as well as the videotape and drawings, were reliable under statutory exceptions to hearsay under the 803 (18a) (b) (sex abuse· Ore~on statements by Evidence Code child (OEC) witness) and Rules 804 (statements for medical treatment or diagnosis) . Petitioner testified in his own defense. Petitioner testified that he suspected that D.G. had been sexually abused, based on two previous instances where D.G. had grabbed his hand and placed it on her privates. Petitioner admitted to washing D.G. at the motel, but did so because the water in the shower could become quite hot unexpectedly. (Tr. 174.) Peti tioner admi tted that he touched petitioner's genitalia, but contended that he did so in order to determine whether her hymen was intact, and recalled that his chin may have touched D.G. (Tr. 189-90.) Petitioner denied licking D.G. or that his contact was for a sexual purpose. 5 - OPINION AND ORDER Petitioner was found guilty of one count of Unlawful Sexual Penetration in the First Degree and one count of Sodomy in the First Degree. Petitioner was acquitted of the remaining charges. Petitioner was sentenced to Penetration count, concurrently. a 20-year pursuant to 100 months and 100 months (Resp. Ex. 101.) term of O.R.S~ § on on the the Unlawful Sodomy count, Sexual to run Petitioner also was sentenced to post-prison supervision, less time served 144.103. Petitioner filed a direct appeal, raising a single issue that the trial court erred in admitting statements made by D.G. to Hakin and CARES personnel when D.G. was not made available at trial as a witness. (Resp. Ex. 104.) Petitioner argued, in part, that the statements did not have the requisite "indicia of reliability" to qualify as an exception to hearsay necessary to satisfy the Confrontation Clause under Ohio v. Roberts, 448 U.S. 56, 66 (1985). The Court of Appeals affirmed petitioner's conviction without opinion and the Oregon Supreme Court denied review on January 27, 2004. State v. Johnson, 190 Or. App. 398·, 79 P.3d 917 (2003), rev. denied, 336 Or. 377 (2004). Petitioner's appellate judgment issued on March 2, Ex. 2004. (Resp. 108.) . petition for writ of certiorari. Petitioner did not file a Petitioner's conviction became final on or about June 2, 2004, when his 90 day period within which to petition for writ of certiorari elapsed. 6 - OPINION AND ORDER Meanwhile, on March 8, 2004, the United States Supreme Court issued Crawford v. Washington, 541 u.S. 36 (2004), which partially overruled Ohio v. determined that out-of-court under the Roberts. Confrontation In Crawford, testimonial Clause, the Supreme statements unless the are Court barred wi tnesses are unavailable and the defendant had a prior opportunity to cross examine the wi tness, deemed reliable. regardless of whether such statements are 541 U.S. at 68. On October 21, 2004, petitioner filed a state post-conviction proceeding, counsel: D.G.; alleging three claims of ineffective assistance of (1) counsel failed to object to inadmissible hearsay from (2) counsel failed to object to the admission of portions of the letter written by petitioner; and (3) appellate counsel failed to anticipate and argue the Confrontation Clause issues set forth in Crawford. A week prior to the post-conviction hearing, petitioner filed a notice under Church v. Gladden, 244 Or. 308, 417 P.2d 993 (1966), attempting to amend one of his claims and asserttng that Crawford rendered his conviction "void." (Resp. Ex. 132.) Petitioner contended that he did not need to assert an ineffective assistance of counsel claim to obtain relief under Crawford. The conviction court denied relief without comment or citation. Ex. 129.) 7 - OPINION AND ORDER post(Resp. On appeal, petitioner asserted the PCR court erred in denying him relief because Crawford was issued before his conviction became final, and therefore, applied to his case. The Oregon Court of Appeals affirmed the PCR court's decision without opinion, and the Oregon Supreme Court denied review. Johnson v. Hill, 220 Or. App. 457, 187 P.3d 231, rev'. denied, 345 Or. 317 (2008). DISCUSSION In the current proceeding, in ground one, petitioner asserts that his Sixth Amendment right to Due Process was violated when out-of-court witness statements were Confrontation Clause under Crawford. admitted, violating the Petitioner also asserts ten grounds of ineffective assistance of counsel in grounds two through eleven. that the Respondents move to deny habeas corpus relief on the basis state court's deference under 28 U.S.C. denial § of 2254(d). ground one is entitled to Respondents also move to deny relief on the basis that peti tioner has not met his burden on grounds two through eleven, and that grounds two through eleven are procedurally defaulted. In the briefing to this court, petitioner discusses only the merits of ground one. I . Ground One. A. Standards. 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: 8 - OPINION AND ORDER (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly establishe¢ Federal law, as d~termined 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 the "contrary to" clause of § 2254 (d) (1), a federal habeas court may not grant relief unless the state court applied a rule of law that contradicts the governing law set forth in Supreme Court cases, or indistinguishable confronts from a a set of decision facts of the nevertheless arrives at a different result. 529 u.S. 362, 411 (2000). standard, a federal that are Supreme materially Court but Williams v. Taylor, Under the "unreasonable application" court may grant habeas relief if the state court identifies the correct governing legal principle, but applied those principles to the unreasonable" manner. facts of the L0 c kye r v. Andr a de , (2003); Williams, 529 U.S. at 409. be more than erroneous, case in an "obj ecti vely 53 8 u. S . 63 , 75- 7 6 The state court's decision must it must be "objectively unreasonable." Bell v. Cone, 535 U.S. 685, 694 (2002); Woodford v. Visciotti, 537 U . S. 1 9 , 2 4 - 2 5 ( 2 0 02) (p e r cur i am) . In Ground One, petitioner asserts that his rights under the Confrontatio'n Clause of the Sixth Amendment were violated when the trial court admitted out-court-statements by D.G. According to petitioner, D.G.'s statements to Britsch, Flagor, and Hakin are not 9 - OPINION AND ORDER admissible under Crawford. Peti tioner maintains that Crawford applies to his case on direct review and at post conviction because Crawford issued before his conviction became final. Respondents petitioner's acknowledge that Crawford was announced before direct review became final, but contends that Crawford was not "clearly established Federal law" for purposes of review under 28 U.S.C. "clearly established § 2254(d). Federal Respondents argue that what is law" under § 2254(d) should be assessed at the time of the relevant state court decision, and not when petitioner's direct review becomes final. In this case, on direct review, the trial court, the Oregon Court of Appeals and the Oregon Supreme Court each applied Ohio v. Roberts, which was then controlling federal announced March 8, review and the 2004, appellate law. Crawford was after the Oregon Supreme Court denied judgment had issued. According to respondents, because Ohio v. Roberts was the controlling law at the time of the state courts' decisions, the relevant state court decisions are neither contrary to, nor an unreasonable application of clearly established Federal law under 28 U.S.C. Therefore, § 2254(d) (1). the critical question in this case becomes what date should be used for assessing "clearly established Federal law" - the date the judgment of conviction becomes final, or the date of the relevant state court decision. 10 - OPINION AND ORDER As the parties correctly indicate, there is a conflict among the Circui t Courts of Appeal as to whether clearly established Federal law is examined as of the date of the relevant state court decision, or the date purposes. Compare Greene v. Palakovich, 606 F.3d 85, 95 (3d Cir. 2010) ("we now hold the that conviction the date of decision is the controlling date"); becomes the final relevant with Miller v. for AEDPA state-court Stovall, 608 F.3d 913, 919 (6th Cir. 2010) ("We conclude that when the governing law changes between a state court's ruling and the date on which a petitioner's reviewing controlled conviction the became state-court at the time final, judgment his a federal must apply state-court habeas the court law conviction that became final. ") (internal quotations and ci tation omitted); and Foxworth v. St. Amand, 570 F.3d 414, 430-32 (1st Cir. 2009) (determining that the date the conviction became final cert. denied, yet 130 S. Ct. 1710 spoken directly on the (2010). issue, is the correct approach), The Supreme Court has not and may soon provide needed guidance as the Court has recently granted certiorari in Greene. Greene v. Smith v. Fisher, 2011 WL 1225723 Spisak, 130 S. Ct. (U.S. Apr. 676, 681 4, 2011); see also (2010) (noting "some uncertainty" about which is the applicable date for purposes of determining clearly established federal law). Respondents rely on Greene. In Greene, a federal habeas petitioner wanted to apply the Supreme Court's determination in 11 - OPINION AND ORDER Gray v. Maryland, 523 The Gray decision u.s. 185 (1998) to his case. was announced while the 606 F.3d at 91. peti tioner' s direct appeal was pending with the Pennsylvania Supreme Court and before his time for petitioning for certiorari elapsed. court determined that for purposes of Id. The Greene 2254 (d) (1), the controlling § date for determining what constitutes "clearly established Federal law" is the "date of the relevant state-court decision." 94-95. Id. at Therefore, because Gray had not been determined at the time of the relevant state court decision, benefit from conviction Gray, was and an was unable "unreasonable established Federal law." the peti tioner could not to demonstrate application ~' of that his "clearly Id. at 105-06. Petitioner argues that to deny him the benefit of Crawford is contrary to the jurisprudence announced in Griffith v. Kentucky, 479 u.s. 314 (1987). In Griffith, the Court discussed that "the retroactivity analysis for convictions that have become final must be different from the analysis for convictions that are not final at the time the new decision is issued." Brecht v. Abrahamson, 507 479 u.s. at 321-22; see u.s. 619, 634 (1993) (noting that new rules always have retroactive application on direct review, but rarely have retroactive application on federal habeas review). The Griffith court concluded that "failure to apply a newly declared consti tutional rule to criminal cases pending, on direct violates basic norms of constitutional adjudication." 12 - OPINION AND ORDER review Griffith, 479 U.-S. at certiorari 322. Therefore, because Griffith's petition pending at the time Batson v. Kentucky, 476 wa~ u.s. for 79 (1986) was issued, it applied to Griffith's conviction. The Ninth Circuit has yet to definitively address which date should be used for established Federal purposes law" of under determining the AEDPA. what is However, "clearly the Ninth Circuit recently has noted the existing ambiguity about which date should be used for AEDPA purposes. Ninth Circui t In Thompson v. Runnel, applied new Supreme Court authority announced in Missouri v. Seibert, 542 petitioner's case where u. S. 600 (2004), Seibert was to the federal habeas announced before petitioner's time for petitioning for certiorari elapsed. 1007, 1015 (9th discussed that Cir. 2010). The the parties did not Thompson argue "clearly established" under the AEDPA, court that uncertainty' the 621 F.3d specifically Seibert was not and therefore declined to address whether Seibert was clearly established Federal law. at 1016 n.2. the Id. (stating that the Supreme Court has described "'some surrounding whether clearly established law is assessed by the date the state court conviction becomes final, or as of the date of the relevant state court decision") (quoting Smith v. Spisak, 130 S. Ct. at 681). Moreover, Judge Ikuta filed a dissenting opinion in Thompson, contending that the appropriate cutoff date should be "the time of the relevant state court decision." 13 - OPINION AND ORDER Thompson, 621 F.3d at 1023 ("the Supreme Court has never ignore the statutory command of held that a reviewing court may 2254(d) and grant habeas relief § when the state court's decision was consistent with then-applicable Supreme Court precedent") (Ikuta, J., dissenting). v. Payne, 4 14 peti tioner F . 3 d -1 02 5 , could have 1034 the ( 9t h benefi t of Ci r . But see Shardt 2 0 05) (f i n din g Apprendi because that it was announced six months before his case was final). Other district courts within the Ninth Circuit have used the date the conviction became final as the appropriate date for assessing whether Crawford applies to a petitioner's case. ~, 8, Benjamin v. Prosper, 2010 WL 4630252, *16 n.3 (E.D. Cal. Nov. 2010) (determining that because Crawford was petitioner's conviction became final under Caspari, not apply); Cal. Dec. Clause Livingston v. 10, Small, 2009) (applying claim because Crawford 2009 WL 4980336, Crawford was to decided habeas before decided after Crawford did *26 n.8 (C.D. Confrontation peti tioner' s direct review was final on June 28, 2004); James v. Marshall; 2008 WL 4601238, *15 & n.4 (C.D. Cal. Aug. 13, 2008) (applying Crawford because Crawford was announced while case on direct review before conviction became final); Gutierrez v. Yates, 2008 WL 4217865, *12 (C.D. Cal. Apr. 8, 2008), adopted, 2008 WL 4279600 (C.D. Cal. Sept. 11, 2008) (applying Crawford when evaluating petitioner's Confrontation Clause claim where petitioner's conviction became final on April 28, 2004, before Crawford) . 14 - OPINION AND ORDER In the absence of clear direction from the Supreme Court or the Ninth Circuit, I conclude that the appropriate date for determining what is nclearly established Federal law" is the date the petitioner's conviction becomes final. Using finality as the cutoff date provides a bright line and avoids having to assess which state court decision retroactivity purposes. is the nrelevant" decision for Additionally, I find that using the date of finali ty is most consistent with the prinCiples espoused in Griffith. Griffith, 479 U.s. at 322. Accordingly, I conclude that Crawford applies to petitioner's claim of trial court error that he asserted on direct review. Accord Riva v. Kirkland, 315 Fed. Appx. 667, 670 n. 3 (9th Cir. 2009) (not selected for publication) (finding that Crawford applied because Crawford issued before his case became final on direct review); see also Shaidt, 414 F.3d at 1033 (noting that n[iJf Mr. Shardt's case were still pending on direct appeal when Blakely was decided, we would be compelled to hold that Blakely was applicable"). B. Application of Crawford to petitioner's direct review. Ordinarily a court's decision. Cir. summary federal court disposi tion to n looks the through" a last reasoned higher state state court See Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th 2000), cert. denied, 534 U.S. 944 (2001). In the instant case, the trial court, the Oregon Court of Appeals, and the Oregon Supreme Court each applied Ohio v. 15 - OPINION AND ORDER Roberts on direct review. Because of the intervening change in the law, the state court decision is now "contrary to" clearly established Federal law as determined by the Supreme Court in,Crawford. See Frantz v. Hazey, 533 F.3d 724, 733-34 (9th Cir. 2008) (concluding that a decision by a state court is contrary to clearly established law if it applies a rule that contradicts governing law set forth in Supreme Court cases); Price Accordingly, v. Vincent, 538 u.S. 634, 640 (2003) (same). this court must examine petitioner's Confrontation Clause 'claim under Crawford de novo. Frantz, 533 F.3d at 735; Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). The Confrontation Clause of the Sixth Amendment provides that in criminal cases, the accused has the right to "be confronted with witnesses against him." 380 u.S. 400, 486 u.S. Const. amend. VI; Pointer v. Texas, (1965) . The "witnesses" to which the Confrontation Clause applies includes those testifying in court, as well as certain out-of-court declarants. 596, 599 (9th Cir.), cert. denied, Ponce v. Felker, 606 F.3d 131 S. Ct. 521 (2010). The Crawford Court ruled that the Confrontation Clause "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: examination." by testing in the Crawford, 541 u.S. at 61. crucible of cross- Thus, Crawford held that testimonial out of court statements are barred by the Confrontation Clause, unless the witness is unavailable and the defendant had a prior opportuni ty to 16 - OPINION AND ORDER cross-examine the witness, regardless of whether such statements are deemed reliable by the trial court. Crawford, 541 statements. u.s. The at 68. Cra~ford the Court said that Crawford applies to all testimonial opinion did not define testimonial ~testimonial" statements must include but ~prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Crawford, 541 u.s. at 68. Later, in Davis v. Washington, the Supreme Court described that: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the investigation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. 547 u.S. 813, 822 (2006). I examine whether D. G. 's statements to Hakin, Bri tsch and Flagor are testimonial. 1. statements to Trooper Hakin. With respect to Hakin, it is clear that D.G.'s statements to him are testimonial in nature, as they readily constitute police interrogation as that term is commonly understood. u.S. at 68. purpose of Crawford, 541 Hakin interviewed D.G. at the patrol office for the establishing or proving past facts potentially relevant to a later prosecution. 17 - OPINION AND ORDER which would be See State v. Mack, 337 Or. 586, should not 101 P.3d 349 D. G.' s (2004). have been admi tted because cross-examination. statements to Hakin D. G. was not subj ect to Consequently, admission of D.G.'s statements to Hakin violated the Confrontation Clause. Crawford, 541 U.S. at 68; Gutierrez, 2008 WL 4217865 at *13. 2. D.G.'s statements to Dr. Britsch and Ms. Flagor. The Oregon Supreme Court has concluded that statements given to physicians and social testimonial in nature. workers during CARES 400 F.3d are State ex. reI Juvenile Dept. of Multnomah County v. S.P., 346 Or. 592, 626-27,215 P.3d 847 Bordeaux, interviews 548, 557 (8th Cir. (2009); U.S. v. 2005) (finding forensic interview of child witness was testimonial, despite that statements were also for a medical purpose). that admission of D. G. ' s Accordingly, I must conclude statements to Flagor and Bri tsch and admission of the CARES videotape violate the Confrontation Clause. I disagree with respondents' suggestion that the admission of D.G.'s out of court statements were not an unreasonable application of Crawford as examined before the Davis decision in 2006. In this case, I find that the Oregon Supreme Court's decision in State v. Mack, is persuasive. 337 Or. at 588. In Mack, the court readily found that admission of out of court statements by a child sex abuse victim to a testimonial under Department of Human Services caseworker were Crawford. Id. Moreover, Mack was decided only a few months after Crawford, without the additional clarification 18 - OPINION AND ORDER supplied by Davis. I see no principled distinction between the DHS worker in Mack and the physician and social worker at issue in the present case. Accordingly, I conclude that admission of the statements violated the Confrontation Clause under Crawford. 3. Har.mless error analysis. Confrontation Clause analysis. Delaware errors v. Van are subj ect Arsdall, to harmless u.s. 475 error 673, 684 (1986) (Confrontation Clause violations are subject to a harmless error standard); United States v. Nielsen, 371 F.3d 574, 581 (9th Cir. 2004) (Crawford violations standard on direct review). are subj ect to a harmless error In the habeas context, the court must consider whether a Confrontation Clause error had a substantial and injurious effect or influence on the jury's verdict. Whelchel V. Washington, 232 F.3d 1197, 1206 (9th eire 2000). When assessing the harmlessness of a Confrontation Clause violation, courts consider the importance of the testimony, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony, the extent of crossexamination permitted, prosecution's case. and the Van Arsdall, overall strength of 475 U.S. at 684; Whelchel, the 232 F.3d at 1206. Petitioner argues that the admission of D.G.'s statements to Flagor, Britsch, and Hakin were not harmless, as there was no other independent corroborating 19 - OPINION AND ORDER evidence to support a conviction. Petitioner also contends that the overall strength of the state's case was weak, as evidenced by petitioner's acquittal on several other counts in the indictment. Petitioner is correct. Without D.G.'s out of court statements, the remaining evidence consisted of the testimony of Sergeant Gourley, petitioner's trial testimony, and petitioner's two handwritten letters. I examine that evidence in turn. a. Sergeant Sergeant Gourley Gourley, one of the officers investigating the allegations made by D.G., testified that shortly after petitioner was taken into custody, petitioner described how he had washed D.G. in the shower, and tried to do "the appropriate thing." (Tr. 115.) Gourley also testified that petitioner stated that D.G. had laid on the motel bed with her legs' open in an "inviting way" (Tr. 117). Gourley testified that petitioner said that he had placed his hand on D. G. ' s geni tal area and applied pressure. (Tr. 116-117.) Gourley stated that petitioner told him that petitioner believed someone else had abused D. G., and that peti tioner wanted determine how much someone else had sexually abused D. G. 118. ) to (Tr. Gourley testified that petitioner described how he then lowered his face to D.G.'s privates, and watched to see if D.G. would react, and when his chin touched D.G., petitioner stated that he moved his head away. 20 - OPINION AND ORDER (Tr. 118.) Gourley also testified that peti tioner insisted Gourley obtain a letter he D.G.'s mother explaining the incident at the motel. had wri tten to (Tr. 121-24.) Gourley also described a second letter written by petitioner explaining the motel incident that petitioner wrote while in jail. (Tr. 124.) On cross-examination, Gourley admitted that petitioner did not state that he placed his hand or finger in D.G.'s vagina, but that petitioner described putting his hand on the "hump" above D.G.'s vagina. b. (Tr. 127.) petitioner's testimony At trial, petitioner testified in his own defense. Petitioner admitted that he touched D.G.'s vagina for two seconds to "see if that membrane was still there" because he strongly suspected that someone else had sexually abused D.G. denied using his tongue on D.G. (Tr. 185-186.) Petitioner Although petitioner stated that he was looking for some kind of reaction from D.G., petitioner denied that he touched D.G. to arouse himself or D.G. sexually. (Tr. 188 90.) c. petitioner's letters In one of the letters that petitioner insisted would explain his actions, petitioner describes the incident in the motel room. In the letter, petitioner states that D.G. laid on the bed in an "invitational way" and that D.G. was "definitely inviting me to do something." (Resp. Ex. 120.) Petitioner wrote that he applied pressure on D.G.'s privates and stated that he was being "fatherly 21 - OPINION AND ORDER minded" and just "trying to find out how far somebody did go with her." (Id. ) . Peti tioner wrote that he wondered "how much can a grown man do with a kid this little." Petitioner wrote that he lowered his head, and when his chin touched something, he pulled away "because it was going in a direction I didn't like." (Id.) A second letter written by petitioner contains essentially the same information. (Resp. Ex. 127.) Both letters were admitted into evidence at trial. 4. analysis. With respect to the Sodomy in the First Degree charge, the state was required to establish that petitioner's mouth contacted D.G.'s genitals. O.R.S. §§ 163.305, 164.405. The only evidence to support the allegation that petitioner licked D. G. 's vagina is D.G.'s out-of-court statements to Britsch, Flagor and that on the CARES videotape. At trial, petitioner denied that he used his tongue on D.G., and his letters are devoid of any such admission. Wi thout D. G. 's statements to Britsch and Flagor, and the CARES videotape, there is insufficient evidence in the record to support the Sodomy charge. Clearly, admission of D. G. 's out of court statements had a substantial and injurious effect on the Sodomy verdict. Accordingly, I Clause error was harmless. cannot conclude that the Confrontation Van Arsdall, 475 u.S. at 684; Whelchel, 232 F.3d at 1206; see also Winzer v. Hall, 494 F.3d 1192, 1195 (9th Cir. 2007) (finding erroneous admission of hearsay statements had 22 - OPINION AND ORDER substantial and injurious effect on verdict as the hearsay was the only evidence of element of the crime). With respect to Unlawful Sexual Penetration charge, the state was required to prove that peti tioner intentionally penetrated D.G.'s vagina with an object other than his mouth or penis. § 163.411. O.R.S. At trial, petitioner admitted to briefly touching D.G. to assess whether her hymen was intact. However, I conclude that the state could not have demonstrated proof beyond a reasonable doubt without D.G.'s out of court statements. Although I find the letters written by petitioner to be disturbing, petitioner does not admit to digital penetration in the letters themselves. Exs. 120, 127.) (Resp. Petitioner also did not admit to penetration in his statements to Gourley, but said that he placed his hand on the "hump" above against the vagina. petitioner petitioner's was acquittal Moreover, the comparatively on five other remainder of the weak, as case demonstrated by Therefore, I charges. conclude that admission of D.G.'s out of court statements had a substantial injurious effect Unlawful Sexual Penetration. Whelchel, 232 F.3d at 1206. on Van petitioner's Arsdall, Accordingly, 475 conviction U.S. at for 684; I cannot conclude that the Confrontatiori Clause error was harmless. In sum, because the state court's rejection of petitioner's Confrontation Clause claim was 23 - OPINION AND ORDER obj ecti vely unreasonable under Crawford, and because the error was not harmless, petitioner is entitled to habeas corpus relief on ground one. C. Application of Crawford to Post-Conviction. Respondents assert that petitioner's Crawford claim on post conviction is barred by the state procedural rule which prevents re-litigation of issues previously raised on direct review. See (1984 ), rev. Reynolds denied, v. Cupp, 298 Or 597 71 Or. App. (1985); 571, O.R.S. 692 P.2d 648 138.550 (2) . § According to respondents, because petitioner failed to seek certiorari on direct review, he should not be entitled to assert his Crawford claim on collateral review. Petitioner asserts applicatio'n of Crawford, conviction proceeding that he is not seeking retroactive but that Crawford applies to his post because that decision conviction became final on direct review. issued before his And, petitioner submits that he could not have raised a Crawford claim on direct review because that case was not yet in existence, and therefore he is not precluded from asserting that claim at post-conviction. Petitioner is correct. First, it is not clear that the post-conviction court relied upon a state procedural rule to deny petitioner's Confrontation Clause claim. The PCR court offered no rationale for its denial of petitioner's claims. state rule, Because there was no express invocation of a I cannot conclude that the PCR court relied upon that 24 - OPINION AND ORDER basis for rejecting petitioner's PCR claims. 2 See Cone, 129 S. Ct. at 1780; Coleman, 501 u.S. at 729-30; Valerio v. Crawford, 306 F.3d 742, 773 (9th Cir. 2002), cert. denied, 538 u.S. 994) (finding that state court must actually rely on state rule to be an adequate state ground) .. Second, peti tioner correctly indicates that retroacti vi ty principles do not prevent application of Crawford to his claim on collateral review. (1989) . Teague See generally Teague v. Lane, 489 u.S. 288, 310 is a principle of non-retroactivity, which "prevents a federal court from granting habeas corpus relief to a state prisoner based on a rule announced after his conviction and sentence became final." (1994) (emphasis added). Caspari v. Bohlen, 510 u.S. "A state conviction becomes 383, 389 final for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely 21 also am not convinced that O.R.S. § 138.550(2) or Palmer should be used to bar consideration of petitioner's constitutional claim. Oregon courts have suggested that an intervening change in Constitutional law between petitioner's direct appeal and post-conviction proceeding does not prevent consideration of a claim based on the new constitutional principle where a timely post-conviction proceeding is pursued. See Long v. Armenakis, 166 Or. App. 94, 101, 999 P.2d 461, rev. denied, 330 Or. 361 (2000); cf. North v. Cupp, 254 Or. 451, 462, 461 P.2d 271 (1969) (discussing exception to post-conviction procedural bar where "the right subsequently sought to be asserted was not generally recognized to be in existence at the time of trial") . 25 - OPINION AND ORDER filed petition has been finally denied." Caspari, 510 u. S. at 390. See also Whorton v.Bocktino, 549 u.S. 406, 1181 (2007) (defining a ~new rule" as one that was not dictated by prec~dent ~'existing at the time the defendant's conviction became final''') (quoting Saffle v. Parks, 494 u.S. conviction was not 484, yet 495 final (1990)). at the Because time petitioner's Crawford retroacti vi ty principles do not bar this court's issued, review of his Confrontation Clause claim. Thus, I conclude that Crawford applies to petitioner's postconviction proceeding. And, for the reasons stated above concerning petitioner's claim on direct appeal, the state court's rejection of his Confrontation Clause claim on post-conviction is objectively unreasonable under Crawford. is not harmless, As noted above, the error and petitioner is entitled to habeas relief on ground one. II. Grounds Two Through Eleven. Respondents allege that petitioner has failed to sustain his burden of demonstrating that he is entitled to habeas corpus relief because petitioner through eleven. (9th Cir. wai ved I 2006), issues fails to agree. cert. where discuss the. merits of grounds two See Renderos v. Ryan, 469 F.3d 788, 800 denied, there was 551 no u.S. 1159 attempt to (2007) (petitioner set forth legal standards or an attempt to meet them); Silva v. Woodford, 279 F.3d 825, 835 (9th Cir.), 26 - OPINION AND ORDER cert. denied, 537 u. S. 942 (2002) (habeas petitioner bears burden of proof). In his briefing to this court, petitioner advises that he "proceeds with Ground One." Additionally, satisfied that defaulted. the court grounds Petitioner two has reviewed through presented the eleven several did not assert any grounds of ineffective are of assistance of counsel claims to the PCR court. record and is procedurally his ineffective However, petitioner assistance of trial counselor appellate counsel in his appeal to the Oregon Court of Appeals or in his petition for review to the Oregon Supreme Court. Accordingly, presented. grounds two through , eleven have not been fairly Casey v. Moore, 386 F.3d 896, 915-16 (9th Cir. 2004), cert. denied, 545 u.S. 1146 (2005) (exhaustion requires that habeas claims be fairly presented to all appropriate state courts at all appellate stages); Baldwin v. Reese, 541 u.S. 27, 24 (2004). Because the time for presenting grounds two through eleven has long passed, they are procedurally defaulted. Coleman, 501 u.S. at 735 n.1. Casey, 386 F.3d at 920; Petitioner offers no basis to excuse his procedural default, or contend that failure to consider grounds two through eleven will resul t in a miscarriage of justice. Therefore, habeas relief on grounds two through eleven is denied. 27 - OPINION AND ORDER CONCLUSION Based on the foregoing, petitioner's amended petition for writ of habeas corpus (#5) is grounds two through eleven. the First Degree GRANTED, ground one an DENIED on Petitioner's convictions for Sodomy in and Unlawful Degree are vacated. on Sexual Penetration in the First Respondents are ordered to release petitioner from custody and discharge him from all other adverse consequences of his conviction unless petitioner is brought to retrial within 90 days of the date of the Judgment herein becomes final, plus any additional delay authorized by State law. IT IS SO ORDERED. DATED this ;t day of MAY, 2011. ~~-1:b?~ F. Malcolm Marsh ~ United States District Judge 28 - OPINION AND ORDER
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