Aust v. Seeley

Filing 38

Opinion and Order. Based on the foregoing, Petitioner's Amended Petition for Writ of Habeas Corpus 26 is DENIED. Signed on 11/11/2009 by Judge Owen M. Panner. (dkj)

FlLED'09 NOV 1212:56IJSOC-ORt1

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

BRIAN MATTHEW AUST, Petitioner, v. CHUCK S E E L E Y , Respondent.

CV. 0 7 - 1 2 8 4 - P A

O P I N I O N AND ORDER

K R I S T I N A S . HELLLMAN 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, an inmate at Warner Creek Correctional Facility, b r i n g s t h i s habeas corpus a c t i o n pursuant t o 28 U.S.C. § 2254. challenges the legality of his 2000 state court He

conviction,

alleging violation of his due process rights and violation of his right to the effective assistance of counsel. For the reasons set

f o r t h below, the Amended P e t i t i o n for Writ of Habeas Corpus (#26) i s DENIED.
BACKGROUND

I n May, 2000, P e t i t i o n e r was i n d i c t e d on one count o f Rape i n the F i r s t Degree based on a l l e g a t i o n s by his 19 year old housemate, Betty Warner ("Warner") Petitioner and Warner
1

Following a t r i a l by jury, at which both Petitioner was convicted and

testified,

sentenced, under Measure 11, to 100 months imprisonment without the possibility of parole or sentence reduction. Peti tioner' s consensual sex. defense at trial was that he and Warner had

In his opening statement, the prosecutor stated:

"Detective Kipp w i l l t e l l you t h a t the defendant was given every opportunity to, to t e l l him about any kind of consensual sex, but he never did. In fact, he denied i t . " (Trial Tr. at 24.) Trial

counsel moved for a m i s t r i a l on the basis t h a t the prosecutor had
1 Warner was P e t i t i o n e r ' s e x - g i r l f r i e n d ' s daughter. P e t i t i o n e r had been a f a t h e r figure t o her from the time she was about 6. He o f f e r e d h e r a n d h e r 3 m o n t h o l d a n d a l m o s t 4 y e a r old children housing approximately 4-6 weeks prior to the incident leading to his conviction.

2 - OPINION AND ORDER

improperly i n f e r r e d t o t h e j u r y t h a t P e t i t i o n e r i n v o k e d h i s r i g h t to remain s i l e n t under Miranda. argued Petitioner provided all
(Id.

at 25-26.)

The prosecutor

kinds

of information during the

interview, but never s a i d i t was consensual sex despite Detective Kipp t e l l i n g him t h a t there was no problem i f i t was consensual since Warner was over eighteen.
(Id. 25-27.)

The t r i a l court

sought to discern what Petitioner's response had been to Detective Kipp t e l l i n g him that consensual sex wasn't a crime.
(Id. at 29.)

Detective Kipp explained to the court that during his interview with P e t i t i o n e r he t r i e d to make c l e a r t h a t the primary issue was whether there was force used, and t h a t consensual intercourse would be legal.
(Id.

at 29-30.)

The following exchange ensued:

The Court: [T]he representation was t h a t , somewhere i n the process of the interview with [ P e t i t i o n e r ] , he was a s k e d o r , I d o n ' t e v e n know i f h e w a s a s k e d , b u t i n f e r e n t i a l l y , he was asked t h a t i f t h i s involved sexual intercourse with a female over the age of eighteen and i t was consensual, t h a t t h a t was not a crime. Now w h a t y o u t o l d me i n d i r e c t l y , a n d I d o n ' t k n o w w h e t h e r t h i s was asked multiple times or the statement was made mul t i p l e times. I think what you're inferentially are saying i s t h a t there was an i n i t i a l introductory statement made t o [ P e t i t i o n e r ] t h a t deals with t h a t . I d o n ' t know i f y o u f o l k s h a v e a t r a n s c r i p t o f t h i s interview or not, but - - what, what you've indicated i s that, repeatedly through the statement, that [Petitioner] indicated t h a t no sexual act occurred. Detective Kipp: Yes.

[ T r i a l Counsel]: And I d i s a g r e e , Your Honor. I, I t h i n k the question was, did he have, did he have forceful intercourse, and he said "no." He n e v e r d i d s a y , " I never had sex with her," he never did on the tape.

3 - OPINION AND ORDER

The C o u r t : [W] e l l , I h a v e n ' t l i s t e n e d t o t h e t a p e , Counsel and you folks apparently have. So you're p u t t i n g me i n a n u n f a i r d i s a d v a n t a g e b e c a u s e y o u ' r e a s k i n g me t o make r u l i n g s on voluntariness and a d m i s s i b i l i t y or inadmissibility of particular statements without listening to the tape, without having a transcript to consult and not knowing what the exact verbiage t h a t was made by the p a r t i e s . And a p p a r e n t l y t h e r e was a t a p e d interview. So i n r e l a t i o n s h i p to your request f o r m i s t r i a l a t t h i s point, deny i t . I f you want to make any f u r t h e r foundation of a record you're welcome to do i t

(Id. at 31.)

Neither party introduced the tape or a transcript of and n e i t h e r party made a motion for the judge to

the interview,

review the interview. The prosecution presented i t s case through testimony from

W a r n e r , f r o m t h e f a t h e r o f h e r y o u n g e s t c h i l d w i t h whom s h e l i v e d p r i o r t o m o v i n g i n w i t h P e t i t i o n e r a n d whom W a r n e r c a l l e d f r o m t h e police department to care for her children, from the three law

e n f o r c e m e n t o f f i c e r s who i n t e r a c t e d w i t h W a r n e r t h e m o r n i n g s h e r e p o r t e d t h e r a p e , f r o m t h e S e x u a l A s s a u l t N u r s e E x a m i n e r ("SANE") who c o n d u c t e d W a r n e r ' s e x a m , f r o m t h e p h y s i c i a n a d v i s o r t o t h e SANE n u r s e s , a n d f r o m t h e l a b t e c h n i c i a n who c o l l e c t e d a DNA s a m p l e f r o m Petitioner. Numerous photographs, as well as physical evidence and

lab reports were also presented. At the close of the prosecution's case, counsel renewed his motion for m i s t r i a l , again based on the prosecution's reference in opening statements to Petitioner failing to t e l l the investigating o f f i c e r the contact was consensual. prosecutor argued his opening (Trial Tr. wasn't at 188.) to The the

statement

limited

4 - OPINION AND ORDER

State's e v i d e n c e , b u t c o u l d a d d r e s s a l l t h e e v i d e n c e , i n c l u d i n g t h e defendant's consensual. anticipated
(Id.

testimony

that

the

encounter

was

at 188-189.)

The t r i a l court noted t h a t , while

a defendant's invocation of the right to remain silent cannot be commented on, the content of a voluntary statement prior to the The court s t a t e d :

invocation can be"commented on.

So when somebody i n a voluntary statement asks another person as to, or brings up, and then a person makes a r e a c t i o n p r i o r t o an invocation or d o e s n ' t make an a reaction to t h a t , then t h a t probably can be f a i r game. But at this point, I simply don't have enough information, based on the nature of the statement t h a t was taken by Detective Kipp because i t wasn't gone i n t o in the case in chief. I'm going to deny the motion for mistrial.
(Id.

at 190.) Petitioner testified in his own defense, and on cross-

examination the prosecutor asked a series of questions relating to Petitioner's taped interview with Detective Kipp. objected when the prosecutor asked: Trial counsel

"Isn't i t a fact that several

times Detective Kipp said, hey, i f t h i s was, Better Warner i s over eighteen, and i f you had consensual sex with her, t h e r e ' s nothing illegal about that. objection. recall that. several times (Trial Isn't that true?" but the court overruled the Tr. 222-23.) Petitioner replied he didn't Petitioner acknowledged

During cross-examination,

that he had not told Detective Kipp that he and (Trial Tr. 223, 226-27.)

Warner had consensual sex.

5 - OPINION AND ORDER

Detective K i p p w a s r e c a l l e d a s a r e b u t t a l w i t n e s s , trial court overruled trial counsel's objection. 01.) Detective Kipp testified that in the

and the

(Trial Tr. 300taped interview and

Petitioner never told him he had consensual sex with Warner,

t h a t he had explained to P e t i t i o n e r several times there was a big difference between consensual sex with someone over eighteen - even i f i t involved rough sex encounter.
(Id. at 302-303.)

versus using force to have a

sexual

In closing arguments, the prosecutor

reminded the jury that Petitioner had not told Detective Kipp the encounter was consensual, despite the o f f i c e r t e l l i n g P e t i t i o n e r a consensual encounter would not be i l l e g a l . (Trial Tr. 349-50.) with appellate

Petitioner directly appealed his conviction,

counsel filing Section A of a Balfour brief and Petitioner filing S e c t i o n B, r a i s i n g as e r r o r t h e t r i a l c o u r t denying h i s motion f o r mistrial based on the prosecution's opening statement. The Oregon

Court of Appeals affirmed without a written opinion, and the Oregon Supreme Court denied review. (Respt. ' s Exs. 105, 107.)

Petitioner filed for Post Conviction Relief ("PCR"), but the PCR c o u r t d e n i e d r e l i e f . (Respt. ' s Ex. 118.) Petitioner appealed,

w i t h PCR a p p e l l a t e c o u n s e l f i l i n g S e c t i o n A o f a B a l f o u r b r i e f a n d Peti tioner affirmed review. filing Section opinion, B, and but the the Oregon Court of Appeals denied

without

Oregon

Supreme

Court

(Respt. ' s Exs. 121, 122.) Petitioner raises two grounds for

In the instant petition, relief:

Ground One, alleging violation of P e t i t i o n e r ' s r i g h t to

6 - O P I N I O N AND ORDER

due p r o c e s s o f l a w w h e n t h e t r i a l c o u r t d e n i e d P e t i t i o n e r ' s m o t i o n for mistrial after "the prosecutor improperly commented on

[ P e t i t i o n e r ' s ] silence and urged the jury to i n f e r g u i l t based on t h a t s i l e n c e ; a n d G r o u n d Two, a l l e g i n g i n e f f e c t i v e a s s i s t a n c e o f t r i a l counsel when counsel "failed to present the court with a

videotape of the police interview which was the c r i t i c a l evidence needed for the trial court to grant his motion for mistrial."

(#26, Amended P e t i t i o n a t 3.)
DISCUSSION

I.

Standards and Scope of Review Under 28 U.S.C. §2254(d): An a p p l i c a t i o n f o r w r i t o f h a b e a s c o r p u s . . shall not be granted with respect to any claim t h a t was adjudicated on the merits in State court proceedings unless the adjudication of the claim(1) r e s u l t e d i n a decision t h a t was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States; or 2 ) r e s u l t e d in a decision t h a t was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court

construed this provision. federal judges to

"[ I] t seems clear that Congress intended the utmost care to state court

attend with

decisions, including all of the reasons supporting their decisions, before concluding that those proceedings were infected by

constitutional error sufficiently serious to warrant the issuance 7 - OPINION AND ORDER

of

the

writ."

Id.

at

386.

"We

all

agree

that

state

court

judgments must be upheld unless, after the closest examination of the state court judgment, a federal court is firmly convinced that a federal constitutional right has been violated."
Id.

at 389.

The l a s t reasoned decision by the s t a t e court i s the basis for review by the federal court. 803-04
See Y l s t v. Nunnemaker, 501 U.S. 797,

(1991); Franklin v. Johnson,

290 F.3d 1223, 1233 n. 3 (9th

Cir. 2002). Contrary to, or unreasonable established Federal law application of clearly when "the

Habeas r e l i e f may be granted under

§

2254 (d) (1)

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

Blodgett,

393 F.3d 943,

974

(9th Cir.

2004)

(citing Williams 2 ) established

c e r t . denied, 126 S. Ct. 484 (2005).

"'Clearly or

Federal

law'

is

the

governing

legal

principle

principles set forth by the Supreme Court a t the time the s t a t e court renders its decision."
Id.

A state

court

decision

is

"contrary to" clearly established Federal law i f i t i s "in conflict wi th" , "opposite to" or "diametrically different 529 U.S. a t 388. from" Supreme

Court precedent.

Williams,

An " u n r e a s o n a b l e a p p l i c a t i o n " o f c l e a r l y e s t a b l i s h e d S u p r e m e Court law occurs when "the state court identifies the correct

2Holland v. Jackson, 542 U.S. 649, 652 (2004) (per curiam) ( r e l i e f may be granted when the s t a t e court d e c i s i o n was objectively unreasonable in light of the record before the court)

8 - OPINION AND ORDER

governing

legal

principle

but

unreasonably

applies

that

principle to the facts of the [ ] case."
Williams. )

Lambert a t 974

(citing must be

The

state

court's

application

of

law

objectively unreasonable.

Id. (emphasis added).

"Under §2254 (d) ' s

' u n r e a s o n a b l e a p p l i c a t i o n ' c l a u s e , a f e d e r a l h a b e a s c o u r t may n o t issue the writ simply because that court concludes ln its [the

independent judgment that the state court decision applied law] incorrectly.

Rather, i t is the habeas applicant's burden to to the facts of his
Woodford v.

show t h a t the s t a t e court applied [the law] case in an objectively unreasonable

manner."

Visciotti,

537 U.s. 19, 24,25

(2002), rehearing denied, 537 U.s.

1149 (2003), II.

(internal citations omitted).

The Merits A. G r o u n d One alleges his right to due process of law was

Petitioner

v i o l a t e d when the t r i a l court denied h i s motion for m i s t r i a l a f t e r the prosecutor "improperly commented on [ P e t i t i o n e r ' s ] silence and urged the jury to infer g u i l t based on that silence." argues i t was a v i o l a t i o n of Doyle v. Ohio, for the trial court to have allowed the Petitioner (1976), raise

426 U.s. 610 prosecutor to

P e t i t i o n e r ' s f a i l u r e t o d i s c l o s e h e h a d c o n s e n s u a l s e x w i t h Ms. Warner to Detective Kipp. contends the trial (#27, Memorandum a t 25-30.) denial of Petitioner's Respondent motion for

court's

m i s t r i a l was consistent with Doyle and with Anderson v. Charles,

9 - OPINION AND ORDER

447 U . S . 4 0 4 ( 1 9 8 0 )

(Doyle does not apply to cross-examination that

inquires into prior inconsistent statements). 8.) err

(#32,

Response at

Respondent further asserts that, even i f the t r i a l court did in its ruling
(Id.

on

the

motion

for

mistrial,

the

error

was

harmless.

at 12.)

The t r i a l court record i s the basis for

this Court's review. Established Supreme Court Precedent
Doyle v. Ohio,

established

that

"the

use

for

impeachment

purposes of [a] p e t i t i o n e r [ ' s ] silence, a t the time of a r r e s t and a f t e r r e c e i v i n g M i r a n d a w a r n i n g s , v i o l a t e [ s ] t h e Due P r o c e s s C l a u s e of the Fourteenth Amendment." defendants statements. were At arrested, trial, 426 U.S. 610, 619. In Doyle, and made impeach the no the

given

Miranda

warnings, used to

their

silence

was

exculpatory explanation of events they gave in court.

The Supreme

C o u r t h e l d t h a t t h e Due P r o c e s s C l a u s e p r o h i b i t s u s i n g a d e f e n d a n t ' s silence a f t e r Miranda warnings purpose of impeachment, are given, even for the limited

on the theory t h a t the Miranda warnings

carry an i m p l i c i t promise t h a t no use w i l l be made of a defendant's silence. In 426 U.S. a t 619. subsequent decisions, the Supreme Court ruled on the

application of Doyle under varying circumstances.
Anderson,

In Jenkins v.

447 U.S. 231, 238-240

(1980), the defendant surrendered

to government a u t h o r i t i e s approximately two weeks a f t e r a k i l l i n g . He t e s t i f i e d a t h i s t r i a l f o r m u r d e r t h a t h e a c t e d i n s e l f - d e f e n s e .

1 0 - OPINION AND ORDER

During c r o s s - e x a m i n a t i o n , t h e p r o s e c u t o r u s e d t h e d e f e n d a n t ' s t w o week, pre-arrest silence to impeach his c r e d i b i l i t y , suggesting the defendant would have spoken out e a r l i e r i f he had in fact acted in self-defense. The Supreme Court held t h a t impeachment with pre"Common l a w t r a d i t i o n a l l y

arrest silence is permissible, stating:

has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. E a c h j u r i s d i c t i o n m a y f o r m u l a t e i t s own r u l e s

of evidence t o determine when p r i o r s i l e n c e i s so i n c o n s i s t e n t with present statements that impeachment by reference to such silence i s probative." 447 u.S. a t 239 ( i n t e r n a l c i t a t i o n omitted). 447 u.S. 404 (1980) (per curiam), the

In Anderson v. Charles,

defendant was a r r e s t e d and given Miranda warnings, but he t o l d law e n f o r c e m e n t o f f i c e r s o n e v e r s i o n o f how h e c a m e t o b e i n p o s s e s s i o n of a murder victim's car. a different version of On c r o s s - e x a m i n a t i o n a t t r i a l , h e g a v e events. The prosecutor challenged the

defendant's c r e d i b i l i t y based on his f a i l u r e to t e l l law enforcement the version of events he had just t e s t i f i e d to. The Supreme Court

held Doyle does not apply to cross-examination that inquires into p r i o r i n c o n s i s t e n t s t a t e m e n t s b e c a u s e a d e f e n d a n t who v o l u n t a r i l y speaks a f t e r receiving Miranda warnings has not been induced to remain silent. The court noted the p e t i t i o n e r had not been induced

to remain s i l e n t and "[t]he questions were not designed to draw meaning from silence, but to e l i c i t an explanation for a prior 447 u.S. a t 409.

inconsistent statement." 1 1 - OPINION AND ORDER

In

F 1 e t ch e r v .

We i r ,

4 5 5 u. S .

60 3

( 1 9 8 2) (p e r

cur i am),

the

defendant t e s t i f i e d at his t r i a l for intentional murder that he acted in self-defense. The prosecutor questioned the defendant as

t o why h e f a i l e d t o a s s e r t s e l f - d e f e n s e a n d d i s c l o s e t h e l o c a t i o n of the knife when he was a r r e s t e d . absence of the sort of The Supreme Court held: "In the assurances embodied in the

affirmative

M i r a n d a w a r n i n g s , we d o n o t b e l i e v e t h a t i t v i o l a t e s d u e p r o c e s s o f
law for a State to permit cross-examination as to post-arrest
A

s i l e n c e when a defendant chooses t o take the stand.

State is

entitled, in such situations, to leave to the judge and jury under i t s own r u l e s o f e v i d e n c e t h e r e s o l u t i o n o f t h e e x t e n t t o w h i c h p o s t a r r e s t s i l e n c e may be deemed t o impeach a criminal d e f e n d a n t ' s own t e s t i m o n y . "
Id.

at 606-607. that no

The Court noted the absence of governmental action induced the

Miranda

warnings,

and

petitioner to remain silent. In Brecht v. Abrahamson, 507 u.S. 619, 638 (1993), the Supreme Court held t h a t when a habeas court determines on c o l l a t e r a l review that a Doyle violation occurred, the court must conduct an analysis to determine i f the constitutional error had a substantial and

injurious effect or influence in determining the jury's verdict. The Court e s t a b l i s h e d t h a t the Kotteakos v. United States, 328 u.S. 750 (1946) harmless-error standard applies on c o l l a t e r a l review in determining whether habeas relief trial must type. be granted because of the

consti tutional

error of the

Kotteakos places

1 2 - OPINION AND ORDER

burden o n p r o s e c u t o r s t o e x p l a i n w h y t h o s e e r r o r s w e r e h a r m l e s s , requires a habeas court to review the e n t i r e record de novo in determining whether the error influenced the jury's deliberations, and leaves considerable latitude for the exercise of judgment by federal courts.

Brecht,

507

U. S.

at

641

(Stevens,

J. ,

concurring) (what Kotteakos review requires) . Analysis P e t i t i o n e r argues i t was a v i o l a t i o n of Doyle, for the t r i a l court to have allowed the prosecutor to raise Petitioner's failure to disclose he had consensual sex with Warner to the investigating officer. (#27, Memorandum a t 25-30.) In considering Petitioner's

renewed request for a mistrial at the close of the prosecution's case, the trial court stated: Again, the issue that I raised before is that i f he's advised of his Miranda rights, he agrees to talk to the police officers, and he issues a voluntary statement, t h a t the, the S t a t e i s permitted to go i n t o t h a t . I mean, there's not, defendant's statements are not excluded prior to them invoking t h e i r right against s e l f incrimination. His invocation of the right against selfincrimination certainly i s something that cannot be covered and you get into a dicey area. But i t i s n ' t in the area t h a t ' s without a f a i r amount of case law and, and some f a i r l y complex r u l i n g s both by the United States Supreme Court, the Oregon Supreme Court, and the Oregon Court of Appeals. So when somebody i n a voluntary statement asks another person as to, or bings up, and then a person makes a reaction prior to an invocation or d o e s n ' t make an [sic] a r e a c t i o n t o t h a t , then t h a t probably can be f a i r game. But at this point, I simply don't have enough information, based on the nature of the statement t h a t was taken by Detective Kipp because i t wasn't gone i n t o 1 3 - O P I N I O N AND ORDER

in t h e c a s e i n c h i e f . mistrial. (#17, Trial Tr. at 190.) to conclude that the

I'm going to deny the motion for A review of the record leads this Court court's determination was neither

trial

contrary to nor an unreasonable application of established Supreme Court precedent. Petitioner voluntarily went to the Oregon State Police office where an interview could be held in private. 301; Respt's Ex. 115 a t 33.) (#17, Trial Tr. at

At the outset of the interview, "Not at

P e t i t i o n e r asked i f he was under a r r e s t and he was t o l d ,

t h i s time, but I do need to t a l k to you about what happened between you and Betty l a s t night." (Respt. ' s Ex. 115 a t 1.) Petitioner

was given Miranda warnings and when Detective Kipp asked i f he was willing to talk, Petitioner replied, "kind of."
(Id.

at 4-5.)

D e t e c t i v e K i p p l e t P e t i t i o n e r know h e c o u l d e n d t h e i n t e r v i e w a t any time. questions,
(Id.)

The interview proceeded with P e t i t i o n e r answering selectively and without an admission of any

albei t

sexual c o n t a c t , for approximately 30 minutes. 301-302.)

(#17, Trial Tr. at

P e t i t i o n e r requested an attorney when he was t o l d Warner (Respt. 's

had undergone an exam and there was physical evidence. Ex. 115 a t 22.) Kipp times, raised but the

Before Petitioner requested an attorney, Detective legality did of consensual contend sex he approximately and Warner had four had

Petitioner

not

consensual sex.

(Respt.' s E x . 115 a t 8-9, 10, 12, 19.)

1 4 - OPINION AND ORDER

Once P e t i t i o n e r a s k e d f o r a n a t t o r n e y , D e t e c t i v e K i p p c l e a r l y s t a t e d P e t i t i o n e r should answer no further questions, but he did not immediately end the interview. Instead, Detective Kipp

reviewed the purpose of the interview, reminded Petitioner he had not provided the detective with his version of events and that Warner had undergone an exam, a n d h e l e t P e t i t i o n e r know h e w a s
(Id. at

willing to hear his story i f Petitioner wanted to t e l l i t . 23-36.)

The interview t r a n s c r i p t ends without a determination on
(Id.

arrest being stated.

at 36.)

The f a c t s in P e t i t i o n e r ' s case are d i f f e r e n t from those in
Doyle and i t s progeny, notably t h a t P e t i t i o n e r was c l e a r l y t o l d he

was not under a r r e s t a t the outset of the interview.

He w a s a l s o

told he could end the interview at any point, and he spoke with the detective for approximately 30 minutes a f t e r receiving Miranda Petitioner cites to United 2008) his to support his silence is not

warnings before requesting an attorney.
States v. Caruto,

532

F.3d 822

(9th Cir. use of

argument

that

the

prosecution's

permissible.

However, the p e t i t i o n e r in Caruto was under a r r e s t ,

and invoked her right to counsel a f t e r five to seven minutes of questioning. Omissions from her post-arrest statement existed
Id.

solely because she invoked her right to counsel.

at 824.

Petitioner's omissions in the 30-minute interview with Detective Kipp cannot be attributed solely to his counsel. invoking his right to

Rather, P e t i t i o n e r ' s p r e - a r r e s t silence i s more akin to

1 5 - OPINION AND ORDER

the p r e - a r r e s t s i l e n c e i n J e n k i n s ,
Fletcher

or the post-arrest silence in legality of consensual sex

because

in

raising

the

Detective Kipp was prompting a consensual.

response t h a t the encounter was

The f a c t P e t i t i o n e r was in a p r e - a r r e s t interview and

had received Miranda warnings does, however, distinguish his case from Jenkins and Fletcher, and also from Doyle and Anderson. Even i f t h i s Court assumes a violation of Doyle occurred, a review of the record leads to the conclusion that the prosecutor's reference to Petitioner's failure to tell the investigating officer the encounter was consensual did not have a substantial and

injurious effect or influence in determining the jury's verdict. Petitioner t e s t i f i e d that he and Warner had consensual sex, but

under cross-examination he acknowledged he did not t e l l Detective Kipp during his interview. Petitioner testified to (#17, the Trial Tr. At 226-227.) he objected to Thus, the

information

prosecutor raising. and

Moreover, prosecution witnesses were credible version of events, and photographic

corroborated Warner's

evidence supported her contention the encounter was not consensual. Petitioner has not shown, nor does the record reveal that the t r i a l c o u r t ' s decision to deny a m i s t r i a l was contrary to or an unreasonable application of established Federal law as determined by the Supreme Court of the United States. r e l i e f on Ground One i s n o t w a r r a n t e d . Accordingly, habeas

///

1 6 - OPINION AND ORDER

B.

G r o u n d Two

P e t i t i o n e r contends i t was contrary to and an unreasonable application of Strickland v. Washington, the state PCR court to deny relief 466 U.S. 668 (1984), for on his claim alleging

i n e f f e c t i ve a s s i s t a n c e of t r i a l counsel when counsel " f a i l e d t o present the court with a videotape of the police interview which was the c r i t i c a l evidence needed for the t r i a l court to grant his motion for mistrial." The PCR trial court's adj udication of

Petitioner's claim is the basis for this Court's review. Under
Strickland,

a

petitioner

must

prove

his

counsel's

performance f e l l below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. U.S.
Bell v. Cone, 535 U.S. 685, 695 (2002); Williams, Strickland, 529

at 390-91;

466 U.S.

at 687-88.

"A r e a s o n a b l e

probability is a probability sufficient to undermine confidence in the outcome." conceivably reliabili ty Moreover,
Strickland 466 U.S. a t 694.

"Not every error that outcome undermines
Id.

could of the

have

influenced of the

the

the 693.

results

proceeding."

at

"[j] udicial scrutiny of counsel's performance must be
Id. at 689.

highly deferential."

The reasonableness of counsel's

conduct must be evaluated in light of the facts of the case and the circumstances at the time of representation.
Id.

at

690.

A

1 7 - OPINION AND ORDER

failure t o p r o v e e i t h e r d e f i c i e n t p e r f o r m a n c e o r p r e j u d i c e w i l l cause the claim to fail.
Id. at 697.

D u r i n g t h e PCR t r i a l p r o c e e d i n g , t h e c o u r t h e a r d a r g u m e n t b y both parties regarding the significance of the videotaped

interview, (Respt.'s

and discussed portions of the transcript with them. Ex. at 2-13.) The PCR court found "[ Peti tioner' s]

r e f u s a l t o say t h a t th[e] sex was consensual was f a i r game for the - for the prosecutor to argue." (Id. at 13.) T h e PCR c o u r t d e n i e d

relief finding Petitioner had "failed to prove the allegations of the complaint."
(Id.; Respt. ' s Ex. 118.)

T h e PCR c o u r t ' s f a c t u a l

findings are presumed to be correct absent Petitioner presenting clear
§

and

convincing

evidence

to

the

contrary.

28

U.S.C.

2254 (e)

(1) .

P e t i t i o n e r emphasizes the t r i a l c o u r t ' s statements when i t denied his motion for m i s t r i a l t h a t the court was a t a disadvantage because it had not seen the video taped interview, or the

transcript.

However, the t r i a l court clearly stated the basis for

denying the motion for mistrial in i t s ruling at the close of the prosecutions case: "[W]hen somebody in a voluntary statement asks another person as to, or brings up, and then a person makes a

r e a c t i o n p r i o r t o an invocation or d o e s n ' t make a r e a c t i o n to t h a t , then that probably can be f a i r game."
(Id. at 189-190.)

This court's review of the interview transcript leads to the conclusion P e t i t i o n e r made voluntary statements i n h i s p r e - a r r e s t interview with Detective Kipp, 1 8 - OPINION AND ORDER and that Detective Kipp mentioned

the l e g a l i t y o f c o n s e n s u a l s e x t o P e t i t i o n e r f o u r d i f f e r e n t t i m e s before Petitioner requested an attorney but Petitioner did not t e l l the detective his encounter with Warner was consensual. Nothing in

the interview conflicts with or undermines the t r i a l court's basis for denying P e t i t i o n e r ' s motion and there i s no reason to believe the t r i a l court would have ruled differently upon reviewing either the video or the transcript. Thus, even i f this court were to

conclude t r i a l counsel was d e f i c i e n t in not presenting the t r i a l court with the video or transcript of the interview, Petitioner has not shown prejudice. Under deficient
Strickland,

a or

petitioner's prejudice is

failure cause

to for

prove a

either of

performance

claim

ineffective assistance of counsel to fail.

Accordingly,

i t was

neither contrary to, nor an unreasonable application of Strickland f o r t h e PCR c o u r t t o r e j e c t P e t i t i o n e r ' s c l a i m . therefore, precluded. Habeas r e l i e f i s ,

CONCLUSION
Based on the foregoing, P e t i t i o n e r ' s Amended P e t i t i o n for Writ o f H a b e a s C o r p u s ( # 2 6 ) i s DENIED. I T I S SO ORDERED. DATED t h i s

/J!

day of

United States District Judge

1 9 - OPINION AND ORDER