Hansen v. Franke
Filing
26
Opinion and Order. The petition for Writ of Habeas Corpus 1 is DENIED. The court declines to issue a Certificate of Appealability. Signed on 6/4/2012 by Judge Owen M. Panner. (dkj)
·.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PENDLETON DIVISION
KENNETH M. HANSEN,
Petitioner,
Case No. 2:11-CV-1220-PA
OPINION AND ORDER
v.
STEVE FRANKE,
Respondent.
Kenneth M. Hansen
#5118567
Two Rivers Correctional Institution
82911 Beach Access Road
Umatilla, OR 97882-9419
Petitioner, Pro Se
John R. Kroger, Attorney General
Nicholas M. Kallstrom, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent
1 - OPINION AND ORDER
I
I
I
PANNER,
st
Judge.
r
Pet
U.S.C. § 2254
brings
this
corpus
case pursuant
to
llenging the legality of his underlying
Sexual
convictions.
Petition
habeas
For
the
reasons
that
28
and
llow,
t
Writ of Habeas Corpus (#1) is denied.
BACKGROUND
In 2005, petitioner was charged with sexually abusing a 13
leo
year-old minor
disclosed
se to a friend from school.
to a jury t
im
Petitioner proceeded
al where he was convicted of two counts of Rape in
Second
and one count of Sexual Abuse in the First
Respondent's
pet
The abuse came to light when the
101.
As a result, the trial court sent
r to 150 months in prison.
Pet
ioner
took a
direct
appeal,
but
the
Oregon Court
of
Appeals af
the trial court without opinion, and the Oregon
Supreme Court
i
review.
State v.
Hansen,
220 Or. App. 313,
185 P.d 1132, rev. denied 345 Or. 318, 195 P.3d 65 (2008).
Pet
Umatilla
ioner next filed for post conviction relief
County
where
Respondent's
t
affirmed the PCR t
Court deni
Petitioner
the
124.
PCR
trial
1
relief.
and the Oregon Supreme
Respondent's Exhibits 128, 130.
s
Petition for Writ of Habeas Corpus on
October 7, 2011 raising the following claims:
2 - OPINION AND ORDER
denied
in
The Oregon Court of Appeals summarily
al court's decision,
ew.
court
("PCR")
I
1.
2.
The physician who examined the victim one
year after the sexual abuse took place
affirmed that there was no physical
evidence that the victim had ever had
sexual intercourse, yet he improperly
concluded that
the victim had been
sexually abused; and
4.
I
Trial counsel failed to cross-examine the
victim and another minor witness as to
contradictory or misleading testimony;
3.
i
Trial counsel failed to use the findings
of her private investigator to support a
character defense;
Petitioner was convicted based only upon
the allegations of abuse by the victim,
supported by her friend's testimony.
Respondent
because:
as ks
the
court
to
deny relief
on
the
Petition
(1) petitioner failed to fairly present Grounds One, Two,
and Three to the Oregon state courts,
procedurally
defaulted;
and
(2)
and those grounds are now
petitioner's
Ground
Four
is
a
freestanding claim of actual innocence which is not cognizable in
a non-capital habeas corpus action.
a
supporting memorandum,
nor has
Petitioner has neither filed
he otherwise responded to the
State's arguments in any way.
DISCUSSION
I.
Exhaustion and Procedural Default
A
habeas
petitioner
must
exhaust
presenting them to the state's highest
his
court,
claims
by
fairly
either through a
direct appeal or collateral proceedings,
before a
will consider the merits of those claims.
Rose v. Lundy, 455 u.S.
3 - OPINION AND ORDER
federal court
509,
519 (1982).
"As a general rule, a petitioner satisfies the
exhaustion requirement by fairly presenting
the appropriate state courts.
state courts,
. in the manner required by the
'affording the state courts a meaningful
opportunity to cons
allegations of legal error. '"
Moore, 386 F.3d 896,
Hillery,
ral claim to
915-916 (9th Cir. 2004)
474 U.S. 254, 257,
to present his cIa
(1986)).
Casey v.
(quoting Vasquez v.
If a habeas I
igant failed
to the state courts in a
in which the merits of
context
claims were actually cons
claims have not
i
therefore not elig
for federal habeas corpus
red,
the
Y presented to the state courts and are
ew.
Castille
v. Peoples, 489 U.S. 346, 351 (1989).
A petit
r is deemed to have "procedurally
claim if he
il
to comply with a
failed to raise
" his
state pro
I
claim at the state level at all.
rule,
or
Edwards v.
Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S.
722,
750
(1991).
If a petitioner has procedurally
claim in state court,
unless the
tit
a federal court will not
r shows "cause and prejudice"
to present the const
faulted a
ew the claim
r
ilure
utional issue to the state court, or makes a
colorable showing of actual innocence.
Gray v.
Netherland,
518
U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992);
Murray v. Carrier,
477 U.S. 478, 485 (1986).
4 - OPINION AND ORDER
A review of the record in this case reveals that petitioner
raised a single direct appeal claim challenging the exclusion of
demonstrative evidence at trial.
Respondent's Exhibit 105.
Such
a claim is not at issue in this habeas corpus action.
During petitioner's state collateral
review proceeding,
he
presented a single claim of ineffective assistance of counsel to
the Oregon Supreme Court:
whether trial counsel was ineffective
when she failed to introduce evidence to impeach a statement by the
victim
that
she
petitioner's
was
sexually
trailer.
abused
Respondent's
behind
Exhibit
a
curtain
125.
in
Respondent
asserts that such a claim is not contained within the Petition for
Writ of Habeas Corpus.
Contrary to respondent's position, the court views this claim
as contained in petitioner's Ground Two and will address it on its
merits below.
Three
were
The remainder of petitioner's Grounds One, Two, and
not
fairly
Because the time
presented
to
the
Oregon
State
courts.
for presenting these claims to Oregon's state
courts has passed, they are now procedurally defaulted.
II. Fundamental Miscarriage of Justice Exception to Procedural
Default
In
actually
Ground
Four,
innocent.
petitioner
A claim of
appears
actual
to
assert
innocence
that
can
he
is
excuse
a
procedural default where the petitioner introduces new evidence of
his factual innocence such that, in light of that new evidence, no
reasonable juror would have convicted him.
5 - OPINION AND ORDER
Schlup v.
Delo,
513
I
I
I
I
I
I
U.S. 298, 327 (1995).
of his innocence,
because
Petitioner has not introduced new
thus he cannot excuse his de
itioner
cannot
make
a
gateway
It.
showing
dence
Moreover,
of
actual
innocence under Schlup, he also cannot prevail on his
cla
of actual innocence in Ground Four.l
518, 555 (2006)
tanding
House v.
1, 547 U.S.
(a freestanding claim of innocence
res an even
up) .
stronger showing of innocence than a gateway showing
III. The Merits
sole remaining claim before the court
Ground Two
it
is
that trial counsel was ineffect
offer
iling to
to impeach the victim's statements that
itioner
behind a curtain within his trailer.
sexually
A.
r's
Standard of Review
An
lication
for
a
writ
of
habeas
corpus
s
11
not
be
granted unless adjudication of the claim in state court resulted in
a
that was:
s
(1) "contrary to, or involved an unreasonable
application of, clearly established Federal law, as
the
Supreme
Court
of the
United States;"
unreasonable determination of the facts
in the State court proceeding."
state court's
To
is
or
(2)
by
"bas
light of
on an
evi
28 U.S.C. § 2254(d).
ndings of fact are presumed correct, and
A
ioner
extent Ground Four is intended to constitute a due
to the sufficiency of the evidence, s
a claim
defaulted.
6 - OPINION AND ORDER
bears the burden of rebutting the presumption of correctness by
clear and convincing evidence.
A
state
established
court
28 U.S.C. § 2254(e) (1)
decision
precedent
if
is
the
"contrary
state
court
contradicts the governing law set forth in
to
clearly
applies
a
rule
that
[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
Williams
precedent."
v.
at
a
result
Taylor,
529
different
u.S.
362,
from
405-06
[that]
(2000).
Under the "unreasonable application" clause, a federal habeas court
may
grant
relief
"if
the
state
court
identifies
the
correct
governing legal principle from [the Supreme Court's] decisions but
unreasonably applies that principle to the facts of the prisoner's
case."
Id at 413.
The "unreasonable application" clause requires
the state court decision to be more than incorrect or erroneous.
Id at 410.
The state court's application of clearly established
law must be objectively unreasonable.
B.
Id at 409.
Analysis
Because no Supreme Court precedent is directly on point that
corresponds to the facts of this case, the court uses the general
two-part
test
the
whether
peti tioner
Kn owl e s
v.
Supreme
received
Mi r z a ya n c e ,
12 9
Court
has
established
ineffective
S.
Ct.
14 11 ,
assistance
14 1 9
to
determine
of
counsel.
( 2 0 0 9) .
First,
petitioner must show that his counsel's performance fell below an
7 - OPINION AND ORDER
objective
466 U.S. 668, 686-87 (1984).
counsel's per
that
Due to the difficulties
evaluating
courts must indulge a strong presumption
conduct
Ils
wi thin
professional assistance."
Second,
the
"wide
range
of
reasonable
Id at 689.
ioner must show that his counsel's performance
e.
prej udiced the
whether
Strickland v. Washington,
of reasonableness.
the
The appropriate test
petitioner
probability t
can
"that
there
is
a
reasonable
counsel's unprofessional errors,
but
result of the
show
prej udice is
ing would have been
f
rent."
the
at 694.
A reasonable probability is one which is sufficient to undermine
confidence
in
t
Strickland's
outcome
of
ral standard is
review governing 28 U.S.C.
is a "doubly
§
the
trial.
Id
combined with t
at
696.
When
standard of
2254 habeas corpus cases, the result
ial judicial review."
Mi
ce, 129 S.Ct.
at 1420.
After the victim's abuse had been disclosed to authorities,
she agreed to
a sexual abuse evaluation with
evaluation included an inte
Advocacy Center.
according to
I
abused
his trial.
s
the victim stated that
trailer
behind
a
curta
se statements were videotaped and
Pet
8 - OPINION AND ORDER
I
wherein,
itioner,
her
petitioner,
Children's
itioner had
According
to
roduced during
r contends that there is no curtain in his
trailer,
and trial counsel was constitutionally ineffective for
failing to offer impeachment evidence on this point.
The
peR
trial
court
considered
this
claim
and
made
the
following factual finding:
2.
There was no basis for trial counsel to offer into
evidence photographs of the inside of petitioner's
trailer to establish that the trailer did not have
a 'curtain.'
Petitioner failed to establish that
there was any testimony regarding an alleged
'curtain.' Petitioner, in his testimony, failed to
prove what the testimony was in the case in chief
which supported his claim.
Respondent's Exhibit 123, p. 2.
Not
only
correctness,
is
it
this
is
finding
also
entitled
supported
by
to
a
presumption
petitioner's
peR
of
trial
attorney who informed the peR trial court as follows:
It is petitioner' s position that his lawyer
failed to offer evidence in the form of
pictures and testimony about the inside of his
trailer.
As an officer of the court, I must
state that I have read the trial transcript in
this matter.
I have not found any statement
from the named victim or statement from any
witness quoting the named victim that states
she said the abuse occurred behind a curtain
inside petitioner's trailer.
Respondent's Exhibit 111, p. 2.
Where petitioner failed to establish that the victim testified
that she was sexually abused behind a curtain in his trailer, the
court cannot
conclude that
counsel's performance fell
below an
objective standard of reasonableness when she did not attempt to
impeach non-existent testimony.
9 - OPINION AND ORDER
As a result, the peR trial court's
sion is ne
r contrary to, nor an unreasonable application
y established federal law. 2
of,
CONCLUSION
For
reasons identified above,
Habeas Corpus
Certi
(#1)
is
DENIED.
the Petition for
The court declines
cate of Appealability on the basis that petitioner
made a substantial showing of the denial of a cons
I
I
I
to issue a
pursuant to 28 U.S.C.
§
tut
not
right
2253(c) (2).
IT IS SO ORDERED.
DATED this
l'
day of June, 2012.
a~K--Owen M. Pan er
United States District Judge
2
The court also notes that in the pictures of petitioner's
trailer appended to his Petition, while there is no dividing
curtain within the
ler, there are curtains designed to cover
a window directly above what appears to be the bed within the
trailer.
10 - OPINION AND ORDER
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