Hall v. Myrick, No. 3:2015cv00060 - Document 80 (D. Or. 2017)

Court Description: OPINION AND ORDER. The Amended Petition for Writ of Habeas Corpus 16 is denied. The court grants a Certificate of Appealability only as to the issues addressed in Section III (B) & III (C) of this Opinion. IT IS SO ORDERED. Signed on 8/30/2017 by Judge Michael W. Mosman. (gw)

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Hall v. Myrick Doc. 80 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON JEREMY SHANE HALL, Case No. 3:15-cv-00060-MO Petitioner, OPINION AND ORDER v. JOHN MYRICK, Respondent. Nell Brown Assistant Federal Public Defender 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 Attorney for Petitioner Frederick M. Boss, Deputy 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 Dockets.Justia.com MOSMAN, District Judge. Petitioner brings U.S.C. § this habeas corpus case pursuant to 28 2254 challenging the legality of his 2007 state-court convictions for Sexual Abuse and Unlawful Sexual Penetration. For the reasons that follow, the Amended Petition for Writ of Habeas Corpus (#16) is denied. BACKGROUND On September 2, 2005, 13-year-old LK was babysitting petitioner's children while he was out on a date. When petitioner returned home, he inappropriate touched LK several times. The next day, LK told a friend what had happened but did not disclose the abuse to her parents until October. When LK's father confronted petitioner with the allegations, petitioner initially denied any inappropriate conduct, but later admitted that he had a drinking problem, had taken off his pants and gotten into bed with LK, could not remember what he had done due to his heavy drinking that night, and asked for forgiveness. Trial Transcript, pp. 952-53. LK's parents reported the abuse to the police on December 9, 2005, and LK appeared for an interview the following month at the "Kids Center," a child advocacy organization. Glesne and physician Michelle Kyriakos Interviewer Paula conducted the interview where LK recounted the incidents of abuse. Dr. Kyriakos postponed the physical examination until May 2006 because LK was not feeling well on the day of her interview and indicated that she did not wish to continue. 2 - OPINION AND ORDER Id at 1255-56. When Dr. Kyriakos conducted the physical examination in May 2006, she found no abnormalities. Id at 1368. On January 18, 2006, the Deschutes County Grand Jury indicted petitioner on five counts of Sexual Abuse in the First Degree and one count of Unlawful Sexual Penetration in the First Degree. Respondent's testified that, able to reach Exhibit following a the diagnosis to 102. At January a trial, interview, reasonable Kyriakos Dr. she had been degree of medical certainty that LK had been sexually abused. Id at 1329. She based her diagnosis on the manner in which LK related the events during the course of the interview. Dr. (1) verbal description of events, a reference details; Id at and focused on LK's: (2) ability to use her body as to indicate (4) the consistency of her core details over time. 1333-34. She what Kyriakos admitted happened; on (3) use of cross-examination multiple that the validity of her diagnosis was "dependent upon the truthfulness of what [LK) said about whether she was sexually abused or not [.]" Id at 1368. Glesne testified that she looked to many of the same cues from LK to also conclude that LK was the victim of sexual abuse. Id at 1226-33. During closing argument, the prosecutor focused on the consistency of the victim's accounts, as well as the testimony of Glesne and Kyriakos. He also claimed that petitioner's behavior indicated a man with a guilty conscience and made the following statement about the circumstances of his arrest: And when he is arrested, how he is indifferent? Never denies. Talked about the 3 - OPINION AND ORDER jail tape. Talks to his mom. He talks to his ex-wife. Never once as he testified yesterday did he deny. He said it really wasn't my main focus because he was trying to get people not to talk. Wouldn't that have been the time that he would have said I didn't do this. This is a big misunderstanding. Id at 1876. By a count of 11-1 on petitioner on all counts, each charge, the jury convicted and the trial court sentenced him to 225 months in prison. Id at 1902-03, 1932. Petitioner took a direct appeal challenging the imposition of his consecutive sentences in the absence of specific jury findings. The State initially conceded this issue in light of the Oregon Supreme Court's decision in State v. Ice, 343 Or. 248, 170 P.3d 1049 (2007), when the U.S. Ice, 555 Appeals but later successfully sought reconsideration Supreme Court reversed that decision in Oregon v. U.S. 160 affirmed (2009). the As trial a result, court's the Oregon decision, and Court the of Oregon Supreme Court denied review. State v. Hall, 227 Or. App. 504, 206 P.3d 282, rev. 346 denied, Or. 364, 213 P.3d 578 (2008). Petitioner's Appellate Judgment became effective on September 18, 2009. Approximately two weeks later, on October 1, Oregon Supreme Court issued its decision in State v. 344 Or. 401, 164 P.3d 351 (2008), 2009, the Southard, wherein it concluded that a medical diagnosis of sexual abuse in the absence of corresponding physical evidence of sexual abuse "does not tell the jury anything that it could not have determined on its own" such that the diagnosis is inadmissible under OEC 403 because its risk of 4 - OPINION AND ORDER prejudice outweighs the probative value of the diagnosis. 347 Or. at 142. On June 4, 2010, the Oregon Supreme Court addressed how the admission of such a diagnosis, purposes of appeal, can even where not preserved for nevertheless result in a finding of improper vouching stemming from statements that might otherwise be admissible. State v. Lupoli, 348 Or. 346, 234 P.3d 117 (2010). On August 12, post-conviction alleged, 2010, relief in part, petitioner filed his petition seeking ("PCR") in Umatilla County where he that his trial attorney was constitutionally ineffective for failing to object to the testimony of Glesne and Kyriakos because the testimony contained improper vouching, and because not Dr. Kyriakos's diagnosis of sexual abuse was supported by any physical evidence. Respondent's Exhibit 111. The PCR court denied relief on all of his claims. Respondent's Exhibit 136. The Oregon Court of Appeals affirmed the PCR court's decision without opinion, and the Oregon Supreme Court denied review. Respondent's Exhibits 140, 141. Petitioner filed this 28 U.S.C. January 12, 2015. abuse statements in 2254 habeas corpus case on He argues that trial counsel was ineffective for failing to object to: sexual § the offered (1) Dr. Kyriakos' medical diagnosis of absence by Glesne of physical and findings; Kyriakos (2) the addressing the characteristics or attributes that a truthful child displays; and (3) the prosecutor's comments in closing on petitioner's exercise of his right to silence. He also argues that direct appellate counsel was ineffective for failing to assign as plain error on appeal a challenge to the court's admission of an expert medical 5 - OPINION AND ORDER diagnosis in the absence of corroborative physical evidence. Respondent asks the court to deny relief on these claims because the claim defaulted, pertaining to appellate counsel is procedurally and the state-court decisions denying relief on the claims regarding trial counsel's performance did not unreasonably apply clearly established federal law. DISCUSSION I. Unargued Claims With the assistance of appointed counsel, petitioner filed an Amended Petition in which he raises three grounds for relief containing 1 7 claims. In his supporting memorandum, petitioner chooses to argue the four claims pertaining to the performance of trial and appellate counsel correspond to Grounds 2(A), as 2(B), noted above. 2(C) (9), These claims and 3 in the Amended Petition. 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 carried unargued claims. Cir. 2002) II. his burden See Silva v. of proof with respect 279 F.3d 825, Woodford, to these 835 (9th (petitioner bears the burden of proving his claims). Exhaustion and Procedural Default A petitioner seeking habeas relief must exhaust his claims by fairly presenting them to the state's highest court, through a direct appeal or collateral proceedings, either before a federal court will consider the merits of habeas corpus claims pursuant to 28 U.S.C. § 2254. 6 - OPINION AND ORDER Rose v. Lundy, 455 U.S. 509, 519 (1982). A petitioner must also present his claims in a procedural context in which its merits can be considered. Peoples, 489 U.S. 346, 351 (1989). A petitioner is deemed to have Castille v. "procedurally defaulted" his claim if he failed to comply with a state procedural rule, or failed to raise the claim at the state level at all. Edwards v. 529 U.S. Carpenter, 446, 451 (2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). As Ground 3, petitioner asserts that his appellate attorney should have challenged the admission of Dr. Kyriakos' sexual abuse diagnosis where there was no physical evidence to support the diagnosis. claim in He concedes that he failed to raise his Ground 3 Oregon's state courts, but argues that his PCR attorney's failure to raise the claim of ineffective assistance of appellate counsel excuses his procedural default. assistance of excuse default trial the post-conviction counsel However, claim. the involving excuse Martinez of alleged errors the his substantial holding 137 S.Ct. Davis, of a counsel 2058 and of cause to ineffective assistance of Ryan, Martinez (2017). default, v. may establish Inadequate 566 U.S. does not appellate 1, 4 (2012). apply to claims counsel. Davila v. Petitioner is therefore unable to his alternative request for an evidentiary hearing is denied. III. The Merits A. 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: 7 - OPINION AND ORDER ( 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. u.s.c. 28 2254 (e) (1). A state court decision established precedent if is the "contrary state court to clearly applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent." Under the Williams v. 529 Taylor, "unreasonable U.S. application" 362, clause, 405-06 federal a (2000). habeas court may grant relief "if the state court identifies the correct governing legal principle from [the Supreme Court's] but principle unreasonably prisoner's clause case.'' requires applies that at 413. Id the incorrect or erroneous. state The court to the facts ''unreasonable decision to decisions of the application" be more Id at 410. Twenty-eight U.S.C. § than 2254(d) "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents. It goes no farther." Harrington (2011). 8 - OPINION AND ORDER v. Richter, 562 U.S. 86, 102 Grounds 2(A) & 2(B): Failure to Object to Expert Testimony B. Petitioner argues that his trial attorney was ineffective for failing to object to the testimony of Glesne and Kyriakos on two bases: sexual ( 1) Dr. abuse Kyriakos predicated her medical diagnosis of only upon disclosure, not Glesne Kyriakos and testified that attributes any the physical credibility evidence engaged in of improper of the victim's and (2) both when they abuse; vouching the victim displayed certain characteristics or that a truthful child displays. Al though petitioner argues these claims together, the court takes them in turn. 1. Sexual Abuse Diagnosis Absent Physical Evidence Because no Supreme Court precedent is directly on point that corresponds to the facts of this case, the court uses the general two-part whether test established petitioner Knowles v. by received Mirzayance, 556 the Supreme ineffective U.S. 111, Court to assistance 122-23 determine of counsel. (2009). First, petitioner must show that his counsel's performance fell below an objective standard of reasonableness. 466 U.S. 668, 686-87 (1984). evaluating counsel's performance, presumption that the conduct Due Strickland v. to the difficulties courts must falls within Washington, indulge a the "wide in strong range of reasonable professional assistance." Id at 689. Second, petitioner must show that his counsel's performance prejudiced whether the the defense. The appropriate petitioner can show probability that, but for 9 - OPINION AND ORDER "that counsel's test for there is unprofessional prejudice a is reasonable 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 outcome Strickland's general of the standard is trial. Id at 696. When combined with the standard of review governing 28 U.S.C. § 2254 habeas corpus cases, the result is a "doubly deferential judicial review." Mirzayance, 556 U.S. at 122. Petitioner's trial attorney testified during petitioner's PCR proceedings Kyriakos' and explained why he did not object to Dr. sexual abuse diagnosis where it was unsupported by any physical evidence. "[M]y understanding is that I tried the case according to the law as it existed in January of '07. If I'm wrong about that, please let me know. But I believe in January of 2007 you were allowed to do that." Respondent's Exhibit 135, p. 68. He "thought the law was bad" but "did not anticipate there was going to be anytime soon a change in that law." Id at 69. The PCR court resolved the issue as follows: The case was tried in 2007. State vs. Southard was decided in 2009. At the time of trial, case law allowed experts from Kids Care to testify to a diagnosis of child sexual abuse. Any objection to that testimony would have been overruled so it was not an error by the attorney not to make a useless objection. It would also have been allowed to examine and cross examine the witnesses as to the basis for the diagnosis. Respondent's Exhibit 136, p. 2. Petitioner asserts that Southard was simply an application of decades of prior Oregon Supreme Court precedent, but this is not the case. At the time of petitioner's trial, the Oregon Court 10 - OPINION AND ORDER of Appeals had clearly prevailed in Southard. rejected See, the argument e.g., State v. 460, 855 P. 2d 657, rev. denied, that Wilson, ultimately 121 Or. App. 318 Or. 61, 865 P. 2d 1267 (1993) (medical diagnosis of sexual abuse without physical evidence was an opinion "direct that might comment on sway the jurors, child's but did not credibility.") amount to (italics a in original). As the Oregon Court of Appeals explained in the wake of Southard, diagnosis of child regarding sexual absence abuse testimony was as to exemplified a in a medical expert's diagnosis of sexual abuse in of supporting permissible testimony in Oregon. Although Appeals' expert (2009), rev. denied, 348 Or. 13 (2010). That is to say, until Southard, the rule " Umberger v. Czerniak, 232 Or. App. 563, 564, 222 [Wilson]. P.3d 751 "the petitioner physical evidence constituted Id. asserts that the Oregon decisions pre-Southard were wrongly decided, Court of it is not the province of a federal habeas court to interfere with a statecourt interpretation of state law. U.S. 62, 67-68 See Estelle v. McGuire, 502 (1991). For this reason, the court is also not in a position to disagree with the PCR court's conclusion that an objection would have context of this case. been "overruled" and "useless" in the Given this state-court interpretation of state law, the PCR trial court's decision is neither contrary to, nor an unreasonable application of, law. Ill Ill 11 - OPINION AND ORDER clearly established federal 2. Impermissible Vouching Petitioner next asserts that trial counsel should have objected to various statements from Glesne and Kyriakos because they focused on whether LK's report of abuse displayed the characteristics of a reliable, credible disclosure. As recounted in the Background of this Opinion, these two experts both testified regarding the manner in which LK described the abuse she suffered, leading them to conclude that she had been the victim of sexual abuse. Counsel did not believe that the statements warranted an objection. Respondent's Exhibit 135, pp. 122-23. Dr. Kyriakos' detailed time, testimony that account and was counsel said, able consistent in to provide a her core "I don't like it at all, the laws that existed then, coming close to saying, truth. LK was With respect to highly details over but I think under it was probably admissible. She was 'I - I think this child is telling the '" Id at 126-27. Counsel stated that he understood that under Oregon law at the time of petitioner's trial, "clearly a witness could not vouch and say, telling the truth or they' re however, this 'I believe another witness is lying.'" Id at 127. He was not, of the opinion that the testimony at issue amounted to kind of direct statement on credibility, but was instead "sort of borderline" such that "an objection made in front of the jury, it would draw attention to this testimony and quite possibly make things worse." Id at 128. The PCR court found petitioner's strategy to be a reasonable one: 12 - OPINION AND ORDER Both sides questioned witnesses and argued how an abused child would behave. Pet's attorney argued that if really abused, Child would have gone to her grandmother's instead of spending the night, would have reported it immediately, wouldn't have babysat again for pet., would not have called him for a ride or accepted a ride. These were all necessary defense points. The attorney could not have objected to that line of questioning from the DA and then expected to get it in for the Pet. No inadequacy on the part of the attorney. Reasonable strategy. Respondent's Exhibit 136, p. 2. It is not clear that trial counsel needed to allow the expert statements at issue in order to make the defense points the PCR court identifies, expert sources. all of which were available from non- Nevertheless, given the state of the law at the time of petitioner's trial, counsel reasonably believed that an objection was not warranted. In State v. Middleton, 294 Or. Supreme Court stated, "We 427, expressly 438 hold (1983), the Oregon that in Oregon a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth." However, this holding did not constitute a total ban against expert testimony regarding the indicia of reliability of a victim's statements. In Middleton, the Oregon Supreme Court provided that "if a witness is accepted as an expert by the trial court, it is not error to allow victim victim testimony of describing familial sexual the reaction abuse and . reacted in the typical manner. 13 - OPINION AND ORDER of the whether typical a " Id. child testifying In the wake of Middleton, Oregon courts continued to allow indirect comments on the credibility of a victim in child sexual abuse cases. See, e.g., State v. 775 P.2d 876 Hilaire, (1989) (police officer testifying to typical behavior of child sex abuse victim); State (changing v. 874 Butterfield, explanations for P.2d injures 1339, a 1345-46 "classis diagnostic indicator"); State v. Arnold, 893 P.2d 1050, 1053 (1995) was "spontaneous" and "eager to disclose"); P.3d 374, 383 (2001) information drawn"). 2009 from Thus, (1994) State v. (victim Remme, 23 (expert could provide "useful, nonconclusive which inferences as to the Oregon Supreme Court's credibility may be Southard decision in constituted a significant shift in the law when it forbade the admission of medical diagnoses of sexual abuse based only on whether the expert believed the victim was telling the truth. One year after Southard, the Oregon Supreme Court went a step further when it again addressed the admissibility of expert statements touching on credibility in the context of a sexual abuse conviction. In Lupoli, the Oregon Supreme Court stated that it would ordinarily be proper for experts to testify as to: whether a victim's for her age; demeanor; and (2) ( 3) found the victim's demeanor and any changes in that details; suggestibility regarding her that developmentally appropriate whether the disclosure contained any spontaneous descriptive child's statements were (1) and or allegations. this kind of (4) circumstances the 348 possibility Or. testimony at 362. could indicating she was However, assist a the coached while it jury, it concluded that such testimony would not be proper where it was 14 - OPINION AND ORDER intertwined with an expert medical diagnosis of sexual abuse in the absence of corroborating physical evidence. In other words, in a post-Southard world, indirect comments on the credibility of the accuser that would ordinarily be proper would no longer be admissible in cases that also involved a medical diagnosis of sexual abuse in the absence of supporting physical evidence. Petitioner's claim of ineffective assistance of counsel must be viewed through a pre-Southard lens because "Strickland does not mandate prescience, only objectively reasonable advice under prevailing professional norms." F.3d 859, 870 (9th Cir. Sophanthavong v. Palma teer, 37 8 2004). Glesne and Kyriakos testified as to LK's verbal description of events, how she used her body as a reference, consistency the fact of the that she gave a detailed account, core details over time. Where and the the Oregon Supreme Court had not decided Southard, even in the context of a sexual abuse diagnosis without any supporting physical evidence, these were the kinds of permissible, properly pertained to credibility. indirect statements that As the Oregon Supreme Court recognized in Middleton, "Much expert testimony will tend to show that another witness is telling the truth. This, by itself, will not render evidence inadmissible." 294 Or. at 435 (internal citation omitted). Trial counsel testified that he believed these statements were admissible at the time of petitioner's trial, and his belief is supported by Oregon law. 1 Consequently, without the benefit of 1 As petitioner points out, counsel did object in one instance when Glesne testified that the victim's "verbal response adds to the reliability of the child's statement. 0 Trial Transcript, p. 1230. Counsel successfully objected 15 - OPINION AND ORDER the Southard and Lupoli decisions, counsel was under no duty to object. court's Accordingly, the PCR decision did not unreasonably apply clearly established federal law when it denied relief on this claim. C. Ground 2(C) (9): Prosecutors Comments During Closing As his final claim, petitioner alleges that the prosecutor's comments on his silence identified in the Background of this Opinion were improper insofar as they highlighted for the jury that petitioner did not assert his innocence at the time of his arrest. Petitioner faults trial counsel for not objecting or moving for a mistrial. Trial counsel testified as to this issue during petitioner's PCR hearing. He indicated that, as a general matter, whether he would object during a prosecutor's opening or closing arguments "depends on how egregious things are. I objected during final arguments in cases that were lost. And I sometimes try to analyze what happened. I thought that it hurt." Respondent's Exhibit 135, p. 83. With respect to the specifics of petitioner's case, counsel reviewed the relevant passage and explained as follows: Huh. That is close. My judgment is that it would have done more harm, to be effective at that point, than it would have helped us, especially - yeah, in that case. If we had let's say I were to object, and asked for a curative sustained I just think it would be instruction, harmful. "to this witness talking about the reliability of a person's statement." Id. This objection to a direct opinion pertaining to reliability is consistent with counsel's view of Oregon law at the time of petitioner's trial. 16 - OPINION AND ORDER It was -- this was sort of just -- the jury knew what had happened. They knew that, you know, there'd been these phone calls and said, "Round up [petitioner's daughter], don't let her talk to the police." Obviously, they knew he had made statements. So in my judgment, it would have underscored this. It would have made it look like it was something that we thought was powerfully damaging and had to control and therefore should in fact be more powerful and meaningful to the jury (inaudible). Id at 85-86. The PCR court agreed: The DA comment was that after his arrest, pet didn't deny the charges. This is much more likely to have been seen as a comment on his right to remain silent and would most likely have been sustained. Attorney testified that he did not wish to call attention to it by making an objection in front of the jury. That is more problematic, but if he had made the objection and it had been sustained, then what? A curative would have emphasized it to the jury. Attorney could have moved for a mistrial and it would have been arguable, but there is nothing to indicate that attorney wanted a mistrial in this case. It appears that he thought it was going well and there is no evidence to the contrary. His decision not to object then becomes a reasonable one. Respondent's Exhibit 136, p. 3. Petitioner claims comment on a U.S. 610 that where criminal defendant's (1976), improper comments downside to his a on successful his defense. it is silence, objection silence However, obviously improper to would Doyle to not counsel's the v. Ohio, 426 prosecutor's have posed decision not any to object was based, in part, on his perception of the prosecutor's 17 - OPINION AND ORDER comment as "one o f these th ings where it' s very mild . it obvious ly wasn ' t a direct comment on its way to (inaudible) such as what this guy got a lawyer or what innocent person wou l d do 135 , such a thing . u Respondent ' s Exhibit p. 83. Counsel therefore believed that even a s uccessful objection might have been amounted to a Pyrrh i c victory where it served to high l ight the issue of petitioner's silence for t he j ury . This court views counsel 's strategy as an appropriate one. Strickland, 466 U.S. at 689. At a minimum, petitioner has not shown that the PCR court's decision was so clea rl y erroneous that no f airminded jurist could agree with it. Richter, 562 U. S. at 102 . Accordingly , the PCR court ' s decis i on to deny relief on this c la im is neither contrary to, nor an unreas o nable appl i cation of, clearl y established fede ral law. CONCLUSION For the reasons i dentif i ed above, Writ of Habea s Corpus (#16) is the Amended Petition for d enied. The court grants a Certificate o f Appealability only as to the issues addressed in Secti on II I (B) & II I (C) of this Opinion . IT IS SO ORDERED . DATED this _]Q day of August , 2017 . Judge 18 - OPINION AND ORDER

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