Hicks v. Bartlett

Filing 47

Opinion and Order. Based on the foregoing, Hick's Second Amended Petition for Writ of Habeas Corpus 45 is GRANTED. Respondent shall release Hicks from custody and vacate his convictions unless the State retries him within 60 days. The Court notes Hicks has served 96 months in prison. Signed on 11/19/2009 by Judge Owen M. Panner. (dkj)

IN THE UNITED STATES D I S T R I C T COURT FOR THE D I S T R I C T OF OREGON

ROBERT B . H I C K S , Petitioner,

CV. 0 7 - 7 4 6 - P A

v.
NANCY HOWTON, Respondent.

OPINION AND ORDER

NELL BROWN Office of the Federal Public Defender 1 0 1 SW m a i n S t r e e t , S u i t e 1 7 0 0 P o r t l a n d , OR 9 7 2 0 4 Attorney for Petitioner

JOHN KROGER Attorney General JONATHAN W. DIEHL Oregon Department of Justice 1 1 6 2 C o u r t S t r e e t , NE S a l e m , OR 9 7 3 0 1 Attorneys for Respondent

1 - O P I N I O N AND ORDER

Panner, D i s t r i c t J u d g e . Petitioner, Institution,
u.S.C.
§

an

inmate this

at

Oregon corpus

State

Correctional to 28

brings He

habeas

action

pursuant his 2001

2254.

challenges for sexual

the

legality of

state

court

convictions of trial

abuse,

alleging counsel.

ineffective For the

assistance

counsel

and

appellate

reasons s e t f o r t h below, the Second Amended P e t i t i o n for Writ of H a b e a s C o r p u s ( # 4 5 ) i s GRANTED.
BACKGROUND

Robert

Hicks

("Hicks"),

an

individual

with

an

IQ

of

60,

lived in an apartment complex with his wife of 2 1/2 years, Vera, and three of her children. On o r a b o u t May 1 9 , 2 0 0 1 , H i c k s w a s

q u e s t i o n e d u p o n r e t u r n i n g home f r o m f i s h i n g r e g a r d i n g a r e p o r t o f sexually inappropriate touching. was what had he done wrong. His f i r s t question to officers Hicks was asked

(Respt. ' s Ex. 109.)

i f t h e r e w a s a n y t h i n g Amy c o u l d h a v e m i s t a k e n f o r s e x u a l t o u c h i n g and he r e p l i e d he had gone into Amy's room a couple of times and had rubbed her head, back, and stomach, and when she asked him t o stop, he did.
(Id.)

When a s k e d w h y h e h a d d o n e t h i s , h e s t a t e d Asked i f he regularly When a s k e d i f h e

h e d i d n o t know w h y , h e h a d j u s t d o n e i t .

massaged the other children Hicks said "no."

r u b b e d Amy u n d e r o r o v e r h e r c l o t h i n g H i c k s r e p l i e d i t w a s a l w a y s over her clothes.
(Id. )

Hicks told the officers that he had

2 - OPINION AND ORDER

taken s o m e s e x o f f e n d e r t r e a t m e n t a n d k n e w i t w a s w r o n g t o t o u c h kids so he would never touch Amy.
(Id. ) (Id. )

He

indicated

his

willingness to take a lie detector test.

Hicks was a r r e s t e d and indicted on three counts of Sexual A b u s e i n t h e F i r s t D e g r e e a l l e g i n g h e t o u c h e d Amy w i t h h i s h a n d , over her pajamas, in February, March, and April of 2001. Hicks

Although the State offered a plea deal of 20-22 months, went to t r i a l .

He w a s c o n v i c t e d b y a j u r y o n a l l c o u n t s , 1 1 - 1 . t r i a l counsel gave the court a

At the sentencing hearing,

d e t a i l e d i n t e l l e c t u a l a s s e s s m e n t r e v e a l i n g H i c k s h a d a V e r b a l IQ of 61, a P e r f o r m a n c e IQ o f 6 5 , a F u l l S c a l e IQ o f 6 0 , reading

comprehension equivalent to a 3rd grade level - age equivalent to 8 years, 7 months, and an overall intellectual functioning in the deficient range in the 5th percentile of the population. scores

(Respt.'s Ex.

110 a t 9-10.)

The assessment noted "[IQ]

b e t w e e n 5 5 a n d 70 a r e c o n s i d e r e d i n t h e m i l d m e n t a l r e t a r d a t i o n range. sentencing

"
in

(Id. )

Counsel asked the court for of Hicks being he in the be 5th

concurrent percentile in of

light and

intellectually prison, but

the did

likelihood not

would raise

victimized findings

counsel

otherwise

the

Hicks's assessment for mitigation purposes. Trial Tr. at 127.) A court ordered pre-sentence

(Respt.'s Ex.

103,

investigation

report

(" PSI")

3 - OPINION AND ORDER

noted H i c k s I s h a d l a s t w o r k e d a s a d i s h w a s h e r i n a r e s t a u r a n t , for approximately one and a half months in 1996 or 1997; as of

1994 he was receiving Social Security d i s a b i l i t y b e n e f i t s ; he was previously convicted of Sexual Abuse I I in a plea in 1992, and

was s e n t e n c e d t o 3 y e a r s p r o b a t i o n , 70 d a y s i n j a i l , a n d a s s e s s e d a $170 fee.
(Id.

at

1-8.)

The

report also noted Hicks told

i n v e s t i g a t o r s a f t e r h i s a r r e s t i t was n o t uncommon f o r h i m t o wake the children in the morning and get them ready for school, and t h a t he sometimes rubbed Amy's head or stomach to wake her.
(Id. )

The report recommended consecutive sentencing noting "the

present offense involves continued sexually assaul t i ve behavior towards a 12-year-old female child
.[,]"

"persistent

involvement in similar o f f e n s e s [ , ] " and no mitigating factors. Adopting the PSI recommendation, the sentencing court

imposed three consecutive 75-month terms under Measure 11, for a total of 225 months imprisonment without the possibility of

parole or sentence reduction. Pre-trial investigation Police reports show investigating officers interviewed:

V e r a H i c k s , Amy N e l s o n , a n d R o b e r t H i c k s ; A m b e r F i f e , a n e i g h b o r ; Toni Dozier, a neighbor; and Amanda T e c p i l e , a former neighbor.

I n v e s t i g a t i n g o f f i c e r s a l s o r e c e i v e d "a four page l e t t e r w r i t t e n
by someone wishing to remain anonymous." The letter, "stating,

4 - OPINION AND ORDER

among o t h e r t h i n g s , framed by his

Robert Hicks was innocent and he was being [,]" was submitted into evidence.

wife.

(Respt. ' s Ex. 109.) Trial counsel met with Hicks for twice" prior to trial, and his legal l e s s than an hour "maybe assistant met with Hicks

b r i e f l y once when Hicks viewed Amy's videotaped interview by the director of the Lane County Child Advocacy Center. 114 at 11-16 & 24-25.) Trial counsel's file (Respt. ' s Ex. contained no

evidence witnesses were

investigated or

interviewed,

either by

counsel, his assistant, or an investigator.
5. )

(Respt. ' s Ex. 107 a t

The t r i a l In counsel pretrial told the discussions court there on was the "no morning way" the set for trial, go

case

would

beyond that day and the next "unless the sky f a l l s . " Ex. 103 a t 6.) testimony informing
(Id.

(Respt. 's

The State gave an opening statement d e t a i l i n g the jury jury would some hear about Hicks abusing Amy, and

the the

witnesses

were

cognitively

impaired.

at 7-14.)

In his opening,

defense counsel did not address

the S t a t e ' s characterization of the case and upcoming testimony. Counsel told the jury: This case will be somewhat unusual in t h a t you won't - you may hear l i t t l e or no evidence a t a l l . . from the defendant. I t ' s our position that the State will not be able to prove the case in these circumstances. 5 - OPINION AND ORDER

I understand that as persuasive as counsel's statements may b e , t h e r e i s n o e v i d e n c e i n t h e c a s e y e t a n d a l l t h e e v i d e n c e h a s t o come from t h e w i t n e s s s t a n d r i g h t here next to me. I'm only going to as k you to do two things in t h i s case. The f i r s t listen very critically to the evidence of the witnesses and don't accept without c r i t i c a l analysis what i s said as the gospel or that the interpretations are correct. Secondly, reserve your judgment until the actual end of the case I t h i n k t h e one o t h e r f a c t you may h e a r i s t h a t t h e defendant, too, is cogni t i vely disabled and also has d i f f i c u l t i e s in the same area as those t h a t counsel i n d i c a t e d for some of h i s witnesses. Tr. at 14-15. Three of Hicks's neighbors, Amber, Toni, and Amanda, and a

coffee house employee, Trisha Black were witnesses for the State. They testified to observing Hicks holding Amy's hand as they

walked,

putting his arm over her shoulder,

touching her on the

shoulder, or grabbing her bottom in the parking lot - a l l conduct they thought was inappropriate. A m b e r a l s o t e s t i f i e d t h a t Amy On c r o s s -

told her Hicks touched her at night, over her pajamas.

e x a m i n a t i o n c o u n s e l a s k e d o n e q u e s t i o n : i f Amy h a d t o l d A m b e r s h e wanted Hicks talked about out it. of the house. (Trial Tr. at Amber 23.) replied they had never Trisha testified to wife: a

conversation she overheard between Hicks

and his

" [H] e

m a d e a c o m m e n t a b o u t : O h , I ' m g o i n g t o s h a v e o f f my m u s t a c h e , a n d the other person said: No, you won't because I like you with

6 - OPINION AND ORDER

facial said:

hair.

And h e s a i d :

No,

the children don't.

And she

Because you're always hugging and kissing on that one I s (Trial Tr. at 63-64.) trial counsel Through a few questions on established only that the

[Amy's] neck."

cross-examination,

Hickses were customers at the coffee shop,

and the conversation (Trial Tr. at 64-

Trisha overheard occurred the summer of 2000. 66.)

T r i a l counsel did not cross-examine Toni or Amanda. Amy t e s t i f i e d H i c k s t o u c h e d h e r o v e r h e r p a j a m a s , w h e n s h e

was asleep,
(Id.

and that the touching stopped at the end of April. She was not able to say i f i t was morning or was touched.
(Id.

at 41-44.) when she

night

at

36.)

An

investigating

o f f i c e r t e s t i f i e d Amy t o l d h e r H i c k s t o u c h e d h e r i n t h e m o r n i n g .
(Id.

at

53-58.)

Police

reports

include

statements

from

Amy

indicating Hicks touched her in the morning. On c r o s s - e x a m i n a t i o n , statements to trial counsel did not officers and

(Respt. ' s Ex. 109.) a s k Amy a b o u t her testimony her with

investigating

respect t o when the touching occurred. the order in which she

C o u n s e l a s k e d Amy a b o u t people, and i f the

spoke with various

people she talked to were nice. 44. )

(Respt. ' s Ex. 103, Trial Tr. 41-

P o l i c e r e p o r t s i n c l u d e d s t a t e m e n t s f r o m A m b e r , r e p o r t i n g Amy told her Hicks touched her in the morning, but t r i a l counsel did not ask Amber about the differences in her statements to

7 - OPINION AND ORDER

investigating

officers

and

her

testimony

that

Amy

told

her

touching occurred at night. at 21.)

(Respt. ' s Ex. 109; R e s p t . ' s Ex. 103

Amber was r e - c a l l e d by the S t a t e and asked about the "Kim," had with Hicks at the

confrontation she and her friend, e n d o f A p r i l / e a r l y May. and abuse his daughter, 103 a t 49-50.)

S h e t e s t i f i e d t h e y t o l d H i c k s t o g o home and he got really upset. (Respt.'s Ex.

Vera's statement to investigators recalled the Go i n a n d

a l t e r c a t i o n s t a t i n g : "Kim s a i d 'He's a c h i l d molester. r a p e y o u r d a u g h t e r , Amy. ' " (Respt. ' s Ex. 109.)

Defense counsel

c r o s s - e x a m i n e d A m b e r a s k i n g o n l y how l o n g s h e h a d k n o w n H i c k s . (Respt.'s Ex. 103 a t 50.) Vera t e s t i f i e d about the family's living arrangements, daily life Amber and to schedule, talk to and her. about
(Id.

s p e a k i n g w i t h Amy b e f o r e 25-28.) On

asking

at

cross-examination, 1) who V e r a w a s

t r i a l counsel attempted to ask two questions: presently living with and, after Hicks left. The 2)

i f someone moved in immediately objected to both questions on

State

grounds of relevance.

Trial counsel did not attempt to overcome

the objections, nor did he make an o f f e r of proof. 1 Trial counsel called no witnesses after the court ruled

against his offer of proof to call Hicks's mother.

She was going

to t e s t i f y that Hicks did not work due to his mental d i s a b i l i t y , lHicks noted i n h i s peR appeal t h a t Vera had a boyfriend a t the time of t r i a l . (Respt.' s Ex. 120 a t 10). 8 - OPINION AND ORDER

not b e c a u s e h e w a s l a z y . Closing arguments began with the prosecutor stating: testimony in this case is uncontroverted."
(Id.

"The At

at

87.)

counsel's objection, the remark. The

the court instructed the jury to disregard proceeded, telling the jury "I'd

prosecutor

submit to you that the only evidence submitted during t h i s t r i a l -." Counsel again objected, and the court instructed the jury The prosecutor then t o l d the they "must find that Amy

to disregard the remark. jury that to find Hicks
(Id.

(Id. )

not

guilty

Nelson i s lying."

at 89.)

The court overruled counsel's

objections, and the State repeated, "[t]o find that the defendant i s n o t g u i l t y y o u m u s t f i n d t h a t Amy i s lying because what
(Id.

[she] told you happened i s Sex Abuse in the F i r s t Degree." at 89-90.) In his closing,

t r i a l counsel argued the State had

not proven i t s case with any physical corroboration but simply repeated accusations, that the witnesses described conduct that

h a d n o t b e e n c h a r g e d o r a l l e g e d b y Amy, a n d t h a t Amy m a d e u p t h e accusations because Hicks took privileges away. The State countered
(Id. (Id.

at 99-108.) its final

each

of

counsel r s

arguments

in

argument. After

at 108-115.) verdict, counsel asked that sentencing be

the

scheduled to allow him to obtain a psychological evaluation of his client. At the sentencing hearing, the court asked counsel

9 - OPINION AND ORDER

to c l a r i f y a criminal

several points worksheet.

in the
(Id.

PSI, at

notably regarding the 126.) Counsel then

history

presented Hicks's intellectual assessment to the court and asked for concurrent sentencing, he expressed surprise at the lack of

reasoning in the PSI, and he told the court "I believe the victim in the priors It were wasn't
(Id.

closer
a

in

age. as in

It

was

a

statutory is my

situation.

child

this

case

understanding."

at 127-28.)

The court asked Hicks i f there following exchanged

was anything he would l i k e t o say and the ensued: Hicks: W h a t am I s u p p o s e t o s a y ?

Counsel: There's nothing you need to say. He j u s t w a n t s t o know i f t h e r e ' s s o m e t h i n g y o u w a n t t o s a y . Hicks: What do I want t o say? I f you don't

Counsel: I d o n ' t know. I t ' s up to you. want to say anything, say, "No, s i r . " Hicks:
(Id.

No, s i r . The court then imposed three consecutive 75-months Measure the 11, for
a

at 128.)

sentences

under

total of

of

225 or

months sentence

imprisonment reduction.

without

possibility

parole

PROCEDURAL HISTORY Hicks directly appealed his convictions, with his appellate

1 0 - OPINION AND ORDER

attorney f i l i n g a B a l f o u r b r i e f c o m p r i s e d s o l e l y o f S e c t i o n A. 2 The Oregon Court of Appeals affirmed without opinion,
Hicks, Sta te v.

1 8 6 O r . A p p . 3 7 3 , 64 P . 3 d 5 8 4

(2003).

Hicks did not seek

review from the Oregon Supreme Court. Hicks f i l e d an Amended P e t i t i o n for Post-Conviction R e l i e f ( " PCR") , b u t t h e PCR c o u r t d e n i e d r e l i e f i n a g e n e r a l j u d g m e n t , with Findings of Fact, (Respt.'s Exs. 117, C o n c l u s i o n s o f Law d r a f t e d b y t h e S t a t e . Hicks appealed. Appellate counsel

118.)

filed Section A of a Balfour Brief.

H i c k s s u b m i t t e d a S e c t i o n B,

prepared by an inmate legal assistant, which detailed his mental retardation and its impact on the legal proceedings, and

presented claims of ineffective assistance of t r i a l and appellate counsel. (Respt. ' s Ex. 120 a t 6.) and the 209 The Oregon Court of Appeals Oregon Or. App. Supreme 378, Court 148 denied 925

affirmed without review.
Hicks

opinion,
v.

Bartlett,

P.3d

(2006); 342 Or. 416, 154 P.3d 722 (2007). Hicks filed the instant petition raising four grounds for

concluding that only frivolous issues e x i s t on d i r e c t appeal, a Balfour brief allows appointed counsel to meet constitutional requirement of "active advocacy" without violating rules of professional conduct. S e c t i o n A, s i g n e d b y c o u n s e l , contains a statement of the case, including a statement of facts, sufficient to apprise the court of the jurisdictional basis for the appeal, but contains no assignments of e r r o r or argument. S e c t i o n B, s i g n e d o n l y b y t h e a p p e l l a n t , i s a p r e s e n t a t i o n o f t h e issues that appellant seeks to raise but that counsel considers to be frivolous. Balfour v. State o f Oregon, 311 Or. 434, 45152, 814 P.2d 1069 (1991). 1 1 - OPINION AND ORDER

2U p o n

relief. for

His Memorandum
(1 )

(#40)

narrows his claims to two grounds assistance of counsel when t r i a l and cross-examine of appellate

relief:

ineffective to properly (2)

counsel witnesses

failed at

investigate

trial;

ineffective

assistance

counsel when counsel f a i l e d t o assign e r r o r t o the t r i a l c o u r t ' s decision statements to overrule during counsel's closing (2) objection to (#40, prosecutorial Mem. at 14.)

made

argument.

Hicks concedes Ground

was not r a i s e d in s t a t e courts and i s

procedurally defaulted, but seeks to excuse the default through a showing of actual innocence. Ground
(2)

(Id.

at 30.)

Hicks also concedes filed after the

was

first

r a i s e d i n h i s Memorandum,

one-year statute of limitations period for habeas claims of the Anti terrorism and Effective Death Penalty Act ("AEDPA"), but

again argues actual innocence to excuse the untimeliness i f the Court determines the claim does not relate back to claims

presented in the f i r s t amended p e t i t i o n . at 3-4.)
DISCUSSION

(#44, Petro ' s Sur-Reply

In light of Hicks clearly narrowing his claims for federal habeas relief to the two noted above, the Court considers all

other claims to have been withdrawn and limits i t s discussion to address only the two claims argued i n the Memorandum. /// 1 2 - O P I N I O N AND ORDER

I.

Procedural Default
Federal habeas review of procedurally defaulted claims is

precluded unless the prisoner can show "cause" for the procedural default and actual prejudice, failure to consider the or the prisoner demonstrates that will result in a fundamental 446, 451 The

claims

miscarriage of justice.
(2000);

Edwards v. Carpenter, 529
501

u.s.

Coleman

v.

Thompson,

u.s.

722,

750

(1991).

"miscarriage of justice" exception to procedural default applies to habeas petitioners who can show that "a constitutional

v i o l a t i o n h a s p r o b a b l y r e s u l t e d i n t h e c o n v i c t i o n o f o n e who i s actually innocent." ( c i t i n g Mu r r a y ,
477

Schlup v.

Delo,

513

u.s.

298,

327

(1995)

u. S · a t

4 9 6) ·

New r e l i a b l e e v i d e n c e m u s t

create a colorable claim of actual innocence, that the petitioner is innocent of the charge for which he is incarcerated, as

opposed to legal innocence as a result of legal error. at 321. As default evidence of Ground of his Two, innocence Hicks to excuse (1) the the

See Id.

procedural of

submits

affidavit

Kimberly Hicks, his former sister-in-law, stating Vera Hicks told her on January 30, 2009, that she had lied to police and to the

court regarding her ex-husband abusing her daughter because she hated him and didn't report want of an to live with him, and Melissa
(2)

an

investigator's

interview

with

Snow,

1 3 - OPINION AND ORDER

Petitioner's s t e p - b r o t h e r ' s g i r l f r i e n d ,

s t a t i n g Amy r e c a n t e d h e r

accusations of touching in a conversation with Melissa prior to trial. ( # 4 0 , Mem. E x . A a n d B . ) together, The Court finds the a f f i d a v i t

and report,

constitute sufficient evidence of Hicks's

actual innocence for t h i s Court to conclude no reasonable juror would vote to convict upon hearing all available evidence.

Petitioner, therefore, has met the standards for the miscarriage of justice exception to procedural default. T h e C o u r t a l s o f i n d s t h a t G r o u n d Two r e l a t e s b a c k t o H i c k s ' s Amended Petition, in which he alleged appellate counsel had

failed to raise meritorious claims. same core of operative f a c t s raise meritorious claims and, f i l e d Amended P e t i t i o n . 664 (2005).

G r o u n d Two a r i s e s o u t o f t h e

- appellate counsel's failure to thus, relates back to the timely
Felix,

See Mayle v.

545 U.S. be

644, on

663the

Accordingly,

G r o u n d Two w i l l

reviewed

merits.
II. The Merits

A. An

Standards and Scope of Review application for writ of habeas corpus shall not be

granted unless the adjudication in State court:
(1 ) r e s u l t e d in a decision t h a t was contrary to, or invol ved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States; or

(2)

resulted

in

a

decision

that

was

based

on

an

1 4 - OPINION AND ORDER

unreasonable d e t e r m i n a t i o n o f t h e f a c t s i n l i g h t o f t h e evidence presented in the State court proceeding. 28 U . S . C . § 2 2 5 4 ( d ) . '" C l e a r l y e s t a b l i s h e d F e d e r a l principle or principles set law' is the governing legal

forth by the Supreme Court at the
Lambert v. Blodgett,

time the state court renders i t s decision." 393 F.3d 943, (2005) . A 974 state (9th Cir. court 2004) decision
lS

cert.

denied,

126 S. to"

Ct.

484

is

"contrary

clearly "opposite

established Federal law i f i t to" or

"in conflict with", from" Supreme Court

"diametrically different
Taylor,

precedent.

Williams v.

529 u.S. 362, 388 (2000). when "the

H a b e a s r e l i e f may b e g r a n t e d u n d e r § 2 2 5 4 ( d ) ( 1 )

state court identifies the correct governing legal principle but unreasonably applies that principle to the facts of the case." court's
Lambert,

393 F . 3 d a t 974 of 529

(citing Williams).3 law must be

"The s t a t e
obj ecti vely

application

unreasonable."

Williams,

u . s . a t 411 (emphasis added).
§

Habeas

r e l i e f may be g r a n t e d under

2254 (d) (2)

when the

s t a t e court decision i s based on an unreasonable determination of the facts because the fact-finding process is flawed. of a flawed process include: holding a hearing, Examples

making evidentiary findings without ignoring the record,

misstating the record,

3 Ho l l a n d v . Jackson, 542 u . s . 649, 652 (2004) (per curiam) (may b e g r a n t e d w h e n t h e s t a t e c o u r t d e c i s i o n w a s o b j e c t i v e l y unreasonable in light of the record before the court) 1 5 - O P I N I O N AND ORDER

misapprehending t h e e v i d e n c e p r e s e n t e d . 3d 992, 1001 (9th Cir. 2004).

Taylor v. Maddox,

366 F.

It is well established that the principles articulated in
Strickland v. Washington,

466 u . s . of

668

(1984), Under

govern claims of
Strickland,

ineffective

assistance

counsel.

a

petitioner must prove that counsel's performance f e l l below an objective reasonable errors,
Bell v.

standard

of

reasonableness that, but for

and

that

there

is

a

probability

counsel's

unprofessional

the result of the proceeding would have been different.
Cone,

535 U.s. 466

685, U.s.

695 at

(2002); 687-88.

Williams,

529 U.s.

at for

390-91;

Strickland,

"The

benchmark

judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the t r i a l cannot be relied on as having produced a just result."
Id.

at

686.

"The

right

to

the

effective

assistance of counsel is the prosecution's case

[ ] the right of the accused to require to survive
v. Cronic, meaningful

adversarial 648, 656

testing."

Uni t e s

Sta tes

466

U.s.

(1984) (emphasis added). must be evaluated at in the

The reasonableness of counsel's conduct light of of the facts of the case and the
466

circumstances U.s. at 690.
/ /

time

representation.

Strickland,

/

1 6 - OPINION AND ORDER

B.

Ground One

Hicks a l l e g e s i n e f f e c t i v e a s s i s t a n c e of counsel when t r i a l counsel witnesses failed at to properly He investigate the state and cross-examine denial of

trial.

contends

court's

r e l i e f was an unreasonable a p p l i c a t i o n of Strickland. at 28.) At The Court agrees. the PCR t r i a l , the court informed Hicks of

( # 4 0 , Mem.

its

usual

practice: What I do i n advance of the t r i a l i s I review the t r i a l memos a n d I t r y t o r e v i e w s o m e o f t h e e x h i b i t s . I don't review the t r i a l transcript, just because i t ' s so voluminous and so I tend to wait until after the t r i a l to do t h a t . S o i t ' s a l w a y s my p r a c t i c e t o w a i t u n t i l the t r i a l to review the exhibits and to take the matter under advisement and notify counsel by l e t t e r opinion as to the decision. (Respt.'s Ex. 116 at 3.) Exhibits submitted to the PCR c o u r t

included police reports, the PSI and the I n t e l l e c t u a l Assessment, Appellant's Balfour Brief, and Hicks's peR deposition. letter denying relief, the the t r i a l and sentencing transcript, (Respt. ' s Ex. 108.) PCR court and stated In i t s opinion it found the

Defendant's

memorandum

persuasive

instructed

Defendant's and

counsel to incorporate the arguments conclusions. (Respt. ' s Ex. 117.)

in preparing findings

The Court i s compelled to begin i t s analysis by noting the record makes i t abundantly clear Hicks has s i g n i f i c a n t cognitive impairments which raise serious questions as to his a b i l i t y to 1 7 - OPINION AND ORDER

understand t h e

severity of the

charges

against

him,

the

risks the of

inherent with going to t r i a l , prospect of Measure 11

the option of a bench t r i a l , with the possibility

sentencing

consecutive terms, and the consequences of not taking the State's plea offer of 22-months. his cognitive impairment the H i c k s ' s PCR m e m o r a n d u m w a s s i l e n t a s t o and told is the set PCR court in "the best

evidence

supporting

claims

forth

[Hicks's]

deposition. meet his

(Respt. ' s Ex. 107 a t 5.) burden of proof, the PCR

In arguing Hicks could not Defendant stated Hicks's

deposition responses "bordered on the comical" and quoted a few of his responses. (Respt.' s E x . 112, at
4-5.)

Defendant'

memorandum f u r t h e r a s s e r t e d : " [ I ] t appears t h a t p e t i t i o n e r was completely apathetic during his months in j a i l and asked no question of . his defense attorney. In addition, i t appears that petitioner did not even bother to t e l l his attorney t h a t , a s h e now c l a i m s , h e d i d n o t k n o w w h a t a t r i a l w a s a n d h e d i d n o t know ( o r e v e n c a r e ) w h a t w o u l d happen i f he rejected the plea offer. Petitioner's apathy is unbelievable. The only reasonable conclusion to draw from [his] deposition testimony i s that he i s a thoroughly unreliable h i s t o r i a n . Hence, when p e t i t i o n e r a s s e r t s i n h i s t r i a l memorandum t h a t "the b e s t evidence" i n support of h i s claims is his deposition testimony, defendant can readily agree."
(Id.

at 6.)

T h e C o u r t f i n d s t h e PCR d e f e n d a n t ' s c h a r a c t e r i z a t i o n

of Hicks appalling and offensive given the record. The Intellectual Assessment in the PCR record describes

1 8 - OPINION AND ORDER

Hicks's

limited ability

to

read,

reason,

and

solve

previously

u n e n c o u n t e r e d p r o b l e m s , a n d s p e c i f i e s h e i s i n t h e l o w e s t 5% o f the population intellectually. exemplifies his limitations, H i c k ' s PCR d e p o s i t i o n t e s t i m o n y notably when the Defendant asked

about his understanding of the charges against him, the plea and his thoughts about going The to trial, is and the exclusion by, and of his

mother's

testimony.4

Court

offended

strongly

condemns the Defendant's inappropriate characterization of Hicks. Because the PCR the court found the Defendant's memorandum PCR

persuasive,

Court

concludes

the memorandum caused the

court to misapprehend or ignore the record. The t r i a l did not transcript provides the state's case clear evidence that to meaningful counsel

subject

adversarial

testing.

F i r s t , in Amy's statements to investigators she alleged Amber

that Hicks touched her over her pajamas in the morning.

a l s o t o l d i n v e s t i g a t o r s t h a t Amy t o l d h e r t h e t o u c h i n g o c c u r r e d in the morning. "when she was At t r i a l , asleep [, ]" Amy t e s t i f i e d t h e t o u c h i n g o c c u r r e d but she did not specify the timing so.

despi t e the prosecutor offering her the opportunity to do

A m b e r t e s t i f i e d a t t r i a l t h a t Amy t o l d h e r t h e t o u c h i n g o c c u r r e d c o m p l e t e r e v i e w o f t h e PCR d e p o s i t i o n a l l o w s t h e r e a d e r to appreciate the extent of Hicks's cognitive impairments. While Hicks repeats legal phrases and terminology he has heard used in reference to his case, his a b i l i t y to grasp their full meaning i s clearly questionable from his responses to questions requiring any sort of reasoning. 1 9 - OPINION AND ORDER
4A

at

night. or

Trial

counsel

never in the

raised

or

challenged accounts of

the the

ambigui ties touching. could not

discrepancies

witnesses

Having established the defense theory that the State prove its case, counsel's failure to challenge

ambiguous or contradictory statements by two key witnesses cannot be explained or justified in light of the importance of witness credibility to the State's case. Second, an essential element of the crimes charged, reasonable doubt, for the Rev. and to

be proven beyond a reported was done

w a s t h a t t h e t o u c h i n g Amy of
&

purpose Stat.

sexual

arousal

or

gratification.

See Or.

163.427

163.303(6)

While

Amy t e s t i f i e d t h a t H i c k s t o u c h e d h e r " w h e r e h e s h o u l d n ' t h a v e [ , ] " on her "front privates [, ]" over her paj amas, the State made no

attempt to e s t a b l i s h t h a t the touching was for sexual arousal or gratification. T r i a l counsel made no attempt to hold the S t a t e and failed to Hicks openly

to i t s burden of proving the touching was sexual, seize on an plausible alternative explanation:

a d m i t t e d t o i n v e s t i g a t o r s t h a t a t t i m e s h e c a r e s s e d Amy o n h e r head, her back and her stomach, sometimes doing so to wake her

for school. Third, Amber, Toni, and Amanda told investigators, and

t e s t i f i e d a t t r i a l about conversations they had among themselves about their suspicions regarding Hicks. 2 0 - O P I N I O N AND ORDER Toni told investigators

she

started

noticing

things

after

Amanda

suggested

Hicks

was

a b u s i n g Amy. Toni or

(Respt.'s Ex. 109.) and did nothing

Counsel did not cross-examine in cross-examining Amber to

Amanda,

discern i f the group's suspicions were fueled by gossip and/or bias against Hicks. Hicks did not attempt to hide his contact

w i t h Amy, a n d a n u m b e r o f t h e a c t s t h e w i t n e s s e s c h a r a c t e r i z e d a s inappropriate and sexual could have been perfectly innocent, for

e x a m p l e h o l d i n g h a n d s w i t h Amy o r p u t t i n g h i s a r m a r o u n d o r o n her shoulder. Given that no evidence was presented showing

Hicks acted for sexual gratification or arousal, t r i a l counsel's failure to challenge the witnesses' characterization of Hicks's

conduct was an abdication of his duty to subject the S t a t e ' s case to meaningful adversarial testing. The Court's review of the record leads to the conclusion

t h a t counsel performed l i t t l e cross-examination and much of the testimony background history nice, and elicited on cross-examination such as the established only

information, w h e t h e r Amy nothing

investigators' the people she

employment spoke with

considered to test the

and

did

State's

case.

Counsel's

failure to subject witness testimony to any semblance of testing f e l l below objective standards of reasonableness and below what is required of constitutionally adequate representation in light of counsel's defense theory that the State would be unable to 2 1 - OPINION AND ORDER

prove i t s c a s e . I n a d d i t i o n , t h e PCR r e c o r d e s t a b l i s h e s t h a t c o u n s e l f a i l e d t o make reasonable i n v e s t i g a t i o n i n preparation for t r i a l . counsel noted to that the trial counsel's of file contained by PCR

nothing

pertaining anyone else.

investigation

witnesses,

counselor

A file devoid of notes pertaining to investigation

in preparation for t r i a l i s clear evidence t h a t no investigation occurred. Trial counsel has a duty to conduct reasonable investigation and formulate 539 u.s the 510, defense 921 strategy accordingly. 466
Wiggins v.

Smith,

(2003);

Strickland,

u.s.

at

691;

Riggs v. Ga 1 a z a ,

Fairman,399

F.3d 1179, 918 - 1 0

1182 ( 9th

(9th Cir. Ci r .

2005);

Avila v.

2 97

F . 3d

911 ,

2002).

Here,

trial

counsel's failure to investigate caused him to f o r f e i t motive as a defense argument and prevented him from overcoming the S t a t e ' s obj ections when he attempted to elicit information from Vera

a b o u t who m o v e d i n w i t h h e r a f t e r H i c k s ' s a r r e s t .

Counsel's two

questions strongly suggest that the issue had potential for the defense. Hicks was The letter received by his by law enforcement, was a clear suggesting signal to

being

framed

wife,

counsel,

had he paid attention,

that motive could be at issue.

Kimberly Hicks's recent affidavit, stating Vera told her she had
lied to police and to the court regarding her ex-husband abusing

2 2 - OPINION AND ORDER

Amy b e c a u s e s h e h a t e d h i m a n d d i d n ' t w a n t t o l i v e w i t h h i m ,

and

t h e PCR i n v e s t i g a t o r ' s r e p o r t o f a n i n t e r v i e w w i t h M e l i s s a S n o w , i n w h i c h M e l i s s a s t a t e s Amy t o l d h e r t h e a c c u s a t i o n s w e r e n o t t r u e a n d s t e m m e d f r o m h e r mom w a n t i n g H i c k s o u t o f t h e a p a r t m e n t , are evidence t h a t Vera's motives should have, a t a minimum, been investigated. Counsel did absolutely nothing to investigate

Vera's motives, or those of the neighbors, raise the issue on cross-examination, State's case to meaningful clearly testing. fell below

leaving him unable to

and unable to subject the Counsel's objective failure standards to of

investigate

motive

reasonableness. I t was also below objective standards of reasonableness, and beyond comprehension, for t r i a l counsel to wait until after Hicks was convicted t o i n v e s t i g a t e h i s c l i e n t ' s cognitive impairments through an intellectual assessment. Hicks began receiving social

security disability benefits in 1994, which establishes that his cognitive before disabilities counsel's were pronounced and in recognizable 2001. Counsel years was

trial

representation

obviously aware there was an issue in t h a t he b r i e f l y mentioned Hicks was impaired in his opening statement and he sought t o have Hicks's mother impairments.
assessment

testify that Counsel's
to trial

Hicks

did not to
take

work due an
to

to mental

failure
and to

obtain

intellectual
ensure his

prior

measures

2 3 - OPINION AND ORDER

representation

and

advice

were

tailored

to

his

client's

circumstances i s inexcusable and reprehensible. Trial counsel's advice to Hicks to "think about" the plea offer, evidence without of further discussion complete or assistance, to account is for clear his

counsel's

failure

client's mental retardation.

Advising a client to "think about"

a plea presumes the client i s able to assess the situation he i s in, weigh the pros and cons of going to t r i a l - whether i t be a bench trial or a jury trial 11 and, in and Asking this the a case, take into of

consideration consecutive

Measure of

sentencing

possibility client to

terms

imprisonment.

think

about a plea i s only reasonable advice when the c l i e n t has the cogni t i ve a b i l i t y to do the necessary thinking, support. ability or is provided

The I n t e l l e c t u a l Assessment describes Hicks's limited to read, reason, and solve previously unencountered

p r o b l e m s , a n d s p e c i f i e s h e i s i n t h e l o w e s t 5% o f t h e p o p u l a t i o n intellectually. client's Because t r i a l counsel failed to investigate his so as to appreciate with the its significance he

impairment

utterly failed to provide Hicks

guidance and support In

necessary for him to "think about" the plea he was offered. h i s peR d e p o s i t i o n , the deal.

H i c k s w a s a s k e d why h e d e c i d e d n o t t o t a k e

The following exchange demonstrates Hicks's cognitive

limitations:
2 4 - O P I N I O N AND ORDER

Q: A: Q: A: Q: A:
Q:

A: Q: A:
Q:

A:
Q:

A: Q: A: Q: A: Q: A: Q: A:

And why d i d you decide not t o t a k e t h e d e a l ? Humm? B e c a u s e - - humm? B e c a u s e I w a s i n n o c e n t . Did you think - - did you ask [counsel] what your chances of being acquitted were? No. Do y o u k n o w w h a t I m e a n b y " a c q u i t t e d ? " Yes. Okay. Weren't you concerned about whether you were going to be convicted or acquitted? No. Why d i d n ' t t h a t c o n c e r n y o u ? At the time i t d i d n ' t r e a l l y c o n c e r n me a t t h a t time, because I was j u s t . Weren't you a f r a i d t h a t you might get Measure 11 time? Yes. Did you ever ask [counsel] what your chances of prevailing were? No. You j u s t w e r e n ' t t h a t c o n c e r n e d a b o u t i t ? Not not at the time. Are you concerned about i t now? No. Okay. What i s your t o t a l sentence, Mr. Hicks? Got - - i t ' s 18 years. Well, t h a t ' s a long b i t of time, i s n ' t i t ? Well, I ' v e already done two and half, and I ' v e got 16 to go.

(Respt. ' s Ex. 114 a t 24-26.) Under based on
Strickland,

counsel's in

performance existence

must at

be the

measured time of

the

circumstances

representation.

The circumstances of t h i s case required t h a t He

counsel investigate and effectively cross-examine witnesses.

f a i l e d to do so, and there i s a reasonable probability t h a t , but for counsel's unprofessional errors, the result of the proceeding would have been conduct different. so Moreover, the the record demonstrates of the

counsel's

undermined

proper

functioning

2 5 - O P I N I O N AND ORDER

adversarial p r o c e s s t h a t t h e t r i a l c a n n o t b e r e l i e d o n a s h a v i n g produced a just result. I n a d d i t i o n , t h e PCR c o u r t ' s r e l i a n c e o n

t h e PCR D e f e n d a n t ' s m e m o r a n d u m a n d g r o s s m i s c h a r a c t e r i z a t i o n o f Hicks's responses to the legal proceedings necessarily resulted in a misapprehension of the record. was an unreasonable of ineffective application assistance of of The Court thus concludes i t
Strickland to

deny Hicks's and habeas

claim

trial

counsel

r e l i e f o n G r o u n d One i s w a r r a n t e d . C. G r o u n d Two alleges ineffective to assistance error to of to appellate the trial counsel court's

Hicks for

counsel's

failure the

assign

decision

overruling

objection

prosecutorial

statements

made during closing argument.

The Strickland standards outlined representation by
259, 285 (2000).

above apply to reviewing claims of deficient appellate counsel. Appellate context counsel's of the
Smith v. Robbins,
528

u.s.
be at

representation circumstances

must

reviewed the

in time

the of

existing

r e p r e s e n t a t i o n , t h a t i s , he was charged with reviewing the record and filing an appeal for a client with documented cognitive

disabilities. In closing statements the prosecutor told the jury: S o t h e n t h e o n l y q u e s t i o n r e m a i n i n g i s w h a t Amy s a i d the defendant did, did he do i t ? I f you believe her, i f you believe her, he i s g u i l t y of the crimes for which he i s charged. He's not charged with rape, he's 2 6 - OPINION AND ORDER

not c h a r g e d w i t h s o d o m y , h e ' s c h a r g e d w i t h t o u c h i n g h e r in an intimate part. It doesn't matter if i t ' s underneath the clothing or outside the clothing if, when he did i t , he did i t with a sexual purpose. I ' d s u b m i t t o y o u i f y o u b e l i e v e Amy [ ] , t h e r e c a n b e no other explanation but that he touched her for sexual purpose. For the defendant to be found not guilty, you must find t h a t Amy [ ] i s l y i n g . (Respt. ' s Ex. 103 a t 89.) Trial counsel objected, but the court

overruled the objection, and the State continued:
To f i n d t h a t the defendant i s not g u i l t y you must f i n d t h a t Amy [ ] i s l y i n g b e c a u s e w h a t Amy [ ] t o l d y o u happened i s Sex Abuse in the First Degree.

***
And i f you b e l i e v e h e r , then i t i s your o b l i g a t i o n t o convict the defendant.
(Id.

a t 90) (emphasis added). The trial court's instructions to the jury included the

following: To p r o v e t h i s c h a r g e , t h e S t a t e m u s t p r o v e w h a t a r e called four material elements. Those must be proven beyond a reasonable doubt. The four elements are, first, that the act occurred in Lane County, Oregon; second, that the act occurred in the months of February, march, or April; third, that the defendant inappropriately I'm sorry. T h a t t h e d e f e n d a n t k n o w i n g l y s u b j e c t e d Amy [ ] t o s e x u a l c o n t a c t ; a n d f o u r , t h a t Amy [ ] w a s l e s s t h a n 14 y e a r s o f age a t t h e time. "Sexual contact" means any touching of the sexual or other intimate parts of a person for the purpose of arousing or gratifying the sexual desire of either party. You a r e i n s t r u c t e d t h a t t h e v a g i n a l a r e a i s a
sexual part as a matter of law.

2 7 - OPINION AND ORDER

(Respt. ' s E x . 1 0 3 a t 1 1 8 - 1 1 9 . ) The S t a t e ' s argument t e l l i n g the jury that to acquit they

m u s t f i n d Amy l i e d w a s o u t r a g e o u s a n d m u s t b e r e c o g n i z e d f o r i t s full potential to to mislead the for jury as to the The findings i t was jury single did

required

make

conviction.

trial

court's

instructions

on the elements of

Sexual Abuse,

with i t s

reference to "purpose" in the definition of sexual contact, li ttle to counter the State's forceful repetition that

Amy's

t r u t h f u l n e s s was determinative for conviction.

Under Oregon law,

w h a t Amy s a i d h a p p e n e d w a s s e x u a l a b u s e o n l y i f t h e j u r y f o u n d the touching was for sexual g r a t i f i c a t i o n or arousal, not i f the j u r y f o u n d Amy w a s t e l l i n g t h e t r u t h . In filing a
Balfour

brief,

appellate

counsel

advised the

Oregon Court of Appeals t h a t no meritorious issues existed for appeal. This was, in fact, not the case given the potential for

the prosecutor's statements to confuse the jury as to a required element for conviction: a finding beyond a reasonable doubt that the touching at issue was for the purpose of arousing or in with

gratifying the sexual desire of either party. filing a
Balfour

Moreover, put a client

brief,

appellate

counsel

significantly impaired reading,

writing and reasoning s k i l l s in

the position of having to formulate and write legal claims and supporting arguments for his appeal, 2 8 - OPINION AND ORDER something he was incapable

of.

This

in effect denied Hicks his

right

to appeal,

and the

Court i s l e f t to wonder i f appellate counsel bothered to review the Intellectual Assessment, or simply chose to ignore his

client's impairment. As with Ground One, the PCR court's reliance on the PCR

Defendant's memorandum and gross m i s c h a r a c t e r i z a t i o n of Hicks's responses to the legal proceedings record. necessarily resulted in a to

misapprehension of the

Appellate

counsel's

failure

raise an arguably meritorious claim, and his expectation that his cognitively impaired c l i e n t do so in Section B of a Balfour b r i e f was his below obj e c t i ve standards the of of reasonableness court's and prej udiced an on

client.

Accordingly, application

PCR

adj udication was habeas relief

unreasonable

Strickland,

and

G r o u n d Two i s w a r r a n t e d .

/// ///
/// ///

2 9 - O P I N I O N AND ORDER

CONCLUSION

Based on the foregoing,

Hicks's Second Amended P e t i t i o n for Respondent shall release

W r i t o f H a b e a s C o r p u s ( # 4 5 ) i s GRANTED.

Hicks from custody and vacate his convictions unless the State r e t r i e s h i m w i t h i n 60 d a y s . months in prison. I T I S SO ORDERED. DATED t h i s The Court notes Hicks has served 96

~

day of November,

3 0 - OPINION AND ORDER