Garcia v. Franke

Filing 51

OPINION & ORDER The petition for writ of habeas corpus 2 is denied. Thisproceeding is dismissed with prejudice. Because petitioner has not made a substantial showingof the denial of a constitutional right, a certificate of appealability is denied. See 28 U.S.C. §2253(c)(2). (See 15 page opinion for more information) Signed on 2/6/15 by Judge Garr M. King. (dsg)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

RUBEN LARA GARCIA,
Petitioner,
v.
STEVE FRANKE, Two Rivers Correctional
Institution,
Respondent.
Anthony D. Bornstein
Federal Public Defender’s Office
101 SW Main Street, Suite 1700
Portland, OR 97204
Attorney for Petitioner
Ellen F. Rosenblum
Attorney General
Nick M. Kallstrom
Assistant Attorney General
Department of Justice
1162 Court Street NE
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Case No. 2:13-cv-00229-KI
OPINION AND ORDER

Salem, OR 97301-4096
Attorneys for Respondent
KING, Judge:
Petitioner Ruben Lara Garcia, an inmate in the custody of the Oregon Department of
Corrections, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons
set forth below, I deny the petition and dismiss this proceeding with prejudice.
PROCEDURAL BACKGROUND
In July 2003, a jury in Multnomah County Circuit Court convicted Garcia of 42 counts
for his alleged sexual abuse of two victims, J.G. and Y.G. The first three counts relate to J.G. are
not at issue in this petition. The remaining counts can be summarized as follows:
Counts 4 and 5 each alleged that petitioner committed Rape 1 against Y.G. when
she was under 12 years of age between April 1, 1995 and January 30, 2000.
Counts 6-8 each alleged that petitioner committed Sodomy 1 against Y.G. when
she was under 12 years of age by having her mouth touch his sexual organs
between April 1, 1995 and January 30, 2000.
Counts 9-11 each alleged that petitioner committed Sodomy 1 against Y.G. when
she was under 12 years of age by having his mouth touch her sexual organs
between April 1, 1995 and January 30, 2000.
Counts 22-31 each alleged that petitioner committed Sexual Abuse 1 against Y.G.
when she was under 14 years of age by touching her breasts between April 1,
1995 and January 30, 2000.
Counts 32-41 each alleged that petitioner committed Sexual Abuse 1 against Y.G.
when she was under 14 years of age by touching her vagina between April 1, 1995
and January 30, 2000.
Counts 42-51 each alleged that petitioner committed Sexual Abuse 1 against Y.G.
when she was under 14 years of age by having her touch his penis between April
1, 1995 and January 30, 2000.

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Resp. Ex. 102.
The trial court sentenced Garcia to a total of 350 months in prison. Garcia appealed and
the Oregon Court of Appeals issued a written opinion affirming his conviction. Specifically, the
appellate court declined to find that the trial court committed plain error when it did not instruct
the jurors that they had to agree on a specific incident of abuse for each charge on which they
convicted Garcia. The Oregon Supreme Court denied Garcia’s petition for review.
In his petition for post-conviction relief (“PCR”), Garcia alleged ineffective assistance of
trial counsel. The PCR court denied relief. The Oregon Court of Appeals affirmed without
opinion, and the Oregon Supreme Court denied review.
LEGAL STANDARDS
A petition for writ of habeas corpus, filed by a state prisoner, shall not be granted unless
adjudication of the claim in state court resulted in a decision that was (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) was “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). The
state court’s findings of fact are presumed correct, and a petitioner bears the burden of rebutting
the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Section 2254(d) is a “‘guard against extreme malfunctions in the state criminal justice
systems, not a substitute for ordinary error correction through appeal.’” Hibbler v. Benedetti,
693 F.3d 1140, 1148 (9th Cir. 2012) (quoting Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770
(2011)) (other internal quotation omitted), cert. denied, 133 S. Ct. 1262 (2013). “‘[T]he question
. . . is not whether a federal court believes the state court’s determination was incorrect but
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whether that determination was unreasonable–a substantially higher threshold.’” Id. at 1146
(quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)).
A state court acts contrary to clearly-established federal law if it arrives at a conclusion
opposite to that reached by the Supreme Court on a question of law or if it reaches a result
contrary to the outcome arrived at by the Supreme Court on a set of materially indistinguishable
facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
A state court decision is an “unreasonable application” of clearly-established federal law
if the court: (1) identifies the correct governing legal principle from Supreme Court decisions,
but unreasonably applies that principle to the facts of the prisoner’s case; or (2) either
unreasonably refuses to extend the governing legal principle or unreasonably extends it to a new
context where it should not apply. Id. at 407, 413. Under this standard of review, a federal court
may not issue a writ of habeas corpus because it concludes the state court applied clearlyestablished federal law erroneously or incorrectly. The state court decision must be “objectively
unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
DISCUSSION
I.

Whether Petitioner’s Defense Counsel was Ineffective
In grounds for relief two and four, Garcia argues his defense counsel was ineffective for

failing “to request crucial limiting and/or cautionary jury instructions and/or to move to make the
charging indictment more clear[,] [d]efinite and certain,” and to “take any meaningful steps to
assure that appropriate jury instructions were given.” Petition 6-7. Petitioner argues his
counsel’s deficiency “allowed petitioner to be convicted of multiple felony counts without
assuring that the requisite number of jurors concurred as to each count and the factual predicates
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therefore.” Petition 6. In his third ground for relief, Garcia alleges he was convicted because his
counsel failed to hire a defense expert.
The “clearly-established federal law” for ineffective assistance of counsel claims is set
forth in Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To prevail on a claim of
ineffective assistance of counsel, petitioner must show both (1) that the attorney’s performance
fell below an objective standard of reasonableness; and (2) that the performance prejudiced the
defense. Id., 466 U.S. at 687, 688. There is a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance, or what “might be considered sound
trial strategy.” Id. at 689. Reasonableness is judged as of the time of counsel’s conduct, not in
hindsight. Id. at 689-90. A defendant is prejudiced by counsel’s poor performance if “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694.
“[A] ‘doubly deferential judicial review’ applies to Strickland claims rejected by the state
court.” Hibbler, 693 F.3d at 1150 (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).
Accordingly, a federal court reviews a state court’s application of Strickland for reasonableness,
not for correctness. Id. The federal court does not ask “‘whether counsel’s actions were
reasonable’” but “‘whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.’” Id. (quoting Harrington, 131 S. Ct. at 788).

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A.

Juror Concurrence

Garcia argues in support of grounds for relief two and four that his trial counsel was
ineffective for failing to ensure ten jurors1 agreed on the same specific act described by Y.G. to
convict Garcia of each count.
He argues, for example, that Y.G. testified Garcia touched her breasts between ten and
twenty times in the living room, and between five and ten times in the hallway while the family
was living at the Riviera Apartments. Y.G. testified the family moved to her grandmother’s
house on 82nd Avenue, where Garcia touched her breasts about twenty times in her mother’s
room, and kissed her on the lips or breasts three times in her room. The indictment, in Counts 22
through 31, alleged ten counts of sexual abuse by touching Y.G.’s breasts without distinguishing
between the Riviera Apartments and Y.G.’s grandmother’s house, and without distinguishing
between the rooms in each location. Because of the way the indictment was phrased, and the
way the prosecution presented the evidence, Garcia contends, it is possible each juror
contemplated a different alleged touching of Y.G.’s breast to convict him of Count 22.
Garcia contends the same problem arose with respect to the other counts. Y.G. described
Garcia touching her vagina about five times in the hallway at the Riviera apartment and, at her
grandmother’s house, about five times in the living room and ten or more times in her mother’s
room. Counts 32 through 41 (ten counts) alleged sexual abuse by touching of Y.G.’s vagina,
without discriminating between locations or rooms. Finally, Y.G. testified that Garcia made her
touch Garcia’s penis with her hands at her grandmother’s house in her mother’s room around ten
1

In Oregon, unanimity of only ten jurors is necessary to reach a verdict. ORS 136.450;
Or. Const., Art. I, § 11.

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times, less than five times in the living room, and more than once but fewer than five times in the
laundry room. The indictment charged, in Counts 42 through 51 (ten counts), Garcia with sexual
abuse by causing Y.G. to touch his penis.
Thus, Garcia argues, his trial counsel should have challenged the indictment, moved for
an order to require the state to elect which act it relied upon for each count, and requested
appropriate jury instructions to ensure at least ten jurors agreed on the same act to convict Garcia
of each count.
Garcia raised this argument in his direct appeal. The Oregon Court of Appeals issued a
written opinion declining to find the trial court plainly erred by not giving a Boots instruction– an
instruction to the jury about the need for unanimity of ten jurors as to the material elements of
each charge. State v. Garcia, 211 Or. App. 290, 295, 154 P.3d 730 (2007) (citing State v. Boots,
308 Or. 371, 780 P.2d 725 (1989)). The court commented that, at least in the context of plain
error review, the location in which the sexual offense occurred was not a material element of any
of the charges. Further, such an instruction is necessary “only when there is a real possibility of
juror confusion with respect to the evidence as it relates to each charge.” Id. at 296. In Garcia’s
case:
The victim testified in very general terms about the approximate number of times
the abuse took place, in various rooms in the house over the course of more than
four years, and the jury convicted defendant on every count that came before it.
We are unable to discern any plausible reason why a juror might have credited the
victim’s generalized testimony with respect to one incident or location versus
another; nor does defendant suggest any such basis.
Id. at 297.

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The Oregon Court of Appeals recently validated this analysis when it found no error in a
trial court’s refusal to instruct a jury on the need for concurrence as to the facts constituting the
offense. Specifically,
when the evidence supports multiple, separate occurrences for a single offense but
does not provide the jurors with enough specifics to distinguish one occasion from
another in a way that would allow them to draw conflicting conclusions regarding
the crime committed, a jury instruction requiring concurrence as to which factual
occurrence constituted the crime charged is not required. The factual details
suggesting separate incidents of the crimes in this case [multiple instances of
sexual abuse by the defendant] were not of the type–such as the identity of the
victim or the perpetrator–that have been held to be material facts requiring jury
concurrence, and those details did not create an impermissible risk that the jury
would be confused in distinguishing one occasion from another or would draw
conflicting conclusions regarding the crime committed. Therefore, the trial court
did not err by refusing to give defendant’s instruction because the instruction did
not correctly state the law as applied to the evidence in this case.
State v. Ashkins, 263 Or. App. 208, 224, 327 P.3d 1191 (2014). Indeed, “a jury concurrence
instruction is not required as to the precise location or circumstances of defendant’s various acts
of abuse.” Id. at 223. This is consistent with federal law. See Schad v. Arizona, 501 U.S. 624,
631-32 (1991) (plurality) (explaining “there is no general requirement that the jury reach
agreement on the preliminary factual issues which underlie the verdict” with respect to facts
making up particular element).
The PCR court concluded, given the state of the law, it was unlikely Garcia’s trial counsel
would have succeeded in obtaining a cautionary instruction, requiring the state to elect a separate
factual occurrence for each count, or making the indictment more definite and certain.
I conclude, consistent with Garcia, Ashkins, and Schad, the jury did not need to agree on
the location of the alleged sexual abuse. Additionally, given Y.G.’s general testimony about the
sexual abuse, and Garcia’s total denial that he had ever abused Y.G., the jurors would not have
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credited only a portion of Y.G.’s testimony about one incident or location and not another; thus, I
could not say there was an impermissible risk of jury confusion. Garcia’s trial counsel was not
ineffective, nor has Garcia demonstrated any prejudice by trial counsel’s performance. The PCR
court’s rejection of Garcia’s Strickland claim is neither contrary to, nor an unreasonable
application of, clearly-established law.
B.

Defense Expert

In his third ground for relief, Garcia alleges his trial counsel was deficient for failing to
retain an expert witness who could challenge the testimony of Pamela Avila, the nurse
practitioner who examined Y.G. at CARES Northwest2 and who testified for the state. Garcia
asserts his counsel’s failure to call a responsive expert was completely unjustifiable when such
evidence would have cast doubt on Y.G.’s testimony.
Avila testified that she examined Y.G. and noted “a couple of notches in the hymen,
which indicate some sort of trauma, some sort of penetrating trauma.” Tr. Vol. III, at 24. She
explained “notches” are “kind of like a tear in the hymen. And the hymen is a certain size or
depth and these were partial notches. They didn’t go all the way to the base of the hymen, they
went about halfway down, and there were two of them.” Id. at 25. She also explained that “it
was fairly clear evidence to me of penetrating trauma, like something went inside the vagina and
tore the hymen. So [this finding] played a fairly major role in my making the diagnosis [of
sexual abuse] in this case, although it doesn’t always, but in this case it did.” Id. She testified
that it was “actually fairly common” to find no evidence of penetration in the physical
examination even where there has been confirmed penetration. Id. at 27.
2

A clinic designed to diagnose and treat child abuse.

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On cross-examination, Garcia’s attorney questioned Avila in relevant part as follows:
Q: So your diagnosis of sexual abuse is based partially on what [Y.G.] said?
A: Yes.
Q: And partially on your physical examination?
A: Yes.
...
Q: If there had not been the scarring and or notching, you probably would have
concluded that there likely hadn’t been penetration?
A: No, I wouldn’t have concluded that there hadn’t been. I make the diagnosis
based on both history and physical exam, and there was a lot in her history,
meaning things that she said that were pretty compelling.
Garcia’s attorney asked if anything else could have caused the notching, besides sexual
penetration, and Avila agreed the notching could have been self-inflicted (i.e., masturbation with
an object) or possibly caused by an accidental penetrating injury. On re-direct, Avila confirmed
that she would have made the same diagnosis of sexual abuse even without her findings on
physical examination.
Garcia provided the PCR court with the affidavit of Joanne Miller, also a nurse
practitioner, who would have been available to testify on behalf of Garcia. After reviewing
Avila’s testimony, the CARES evaluation report, and Avila’s physical examination notes, Miller
pointed out the following discrepancy:
The CARES evaluation report of [Y.G.] indicates a partial notch of the hymenal
edge present at 8 o’clock and another at 9 o’clock. The report further finds a
“transected hymen” and provides a diagnosis of sexual abuse based, in part, upon
healed hymenal notches.

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However, in the physical examination section of the same report, the writer points
[to] a far less definitive determination of the presence of actual hymenal notches.
Here the writer references her observations as “possible notches.” Based upon my
review of the Colposcopic photographs, I would concur that there are “possible
notches” present in the hymen and would not, to a reasonable degree of medical
certainty, characterize them as actual hymenal notches.
If the hymenal defects are in fact notches, I would characterize them as
“superficial.” I would further have testified that such notches can occur from
trauma not related to sexual abuse and as a normal variant of the hymen. . . .
Resp. Ex. 120, at 3 (internal citations omitted).
Avila provided a responsive declaration in which she confirmed that her physical
examination revealed two partial notches. She explained that her “reference to possible notches
is a reference to the partial notches that I observed. After my examination of [Y.G.] with the
photocoloscopic [sic], my assessment was that she did have the two partial hymenal notches
which I noted in the narrative of my report, and which I testified to at the jury trial.” Resp. Ex.
124, at 2.
The PCR court denied Garcia’s claim because Garcia failed to produce any evidence to
explain why his counsel did not call an expert. The PCR court agreed Miller’s testimony “was
certainly not a huge weight, but I think certainly could have been helpful. But I just don’t think
that you get there, because I just don’t think the petitioner’s done enough to show that the lawyer
didn’t meet the standard of care[.]” Resp. Ex. 128, at 21.
To provide constitutionally adequate assistance of counsel, no particular tactic or
approach is required. Harrington, 131 S. Ct. at 788-89. “Criminal cases will arise where the
only reasonable and available defense strategy requires consultation with experts or introduction
of expert evidence . . . . There are, however, countless ways to provide effective assistance in any

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given case. Even the best criminal defense attorneys would not defend a particular client in the
same way.” Id. (quotation marks and citation omitted). However, “counsel cannot be said to
have made a tactical decision without first procuring the information necessary to make such a
decision.” Reynoso v. Giurbino, 462 F.3d 1099, 1112 (9th Cir. 2006).
Neither the PCR court nor I have any information as to the reason Garcia’s trial counsel
did not call an expert. Garcia argues Miller would have rebutted Avila’s testimony that the
notches could only have occurred from penetration and would have suggested that they were
natural variants of the hymen–evidence which Garcia characterizes as vital to his defense.
However, Garcia overvalues Miller’s testimony. Avila explained in her PCR affidavit the
discrepancy between the CARES report (“partial tears”) and Avila’s physical examination notes
(“possible tears”). Additionally, Miller’s testimony that notches can occur from trauma other
than sexual abuse is no different from Avila’s testimony on cross-examination, and Miller’s
assertion that such notches can be “a normal variant of the hymen” did not rule out notches as a
result of sexual abuse. Trial counsel could reasonably have concluded cross-examining Avila
would best support Garcia’s defense, and that any defense expert’s concession that the notches
could be caused by sexual trauma would be more harmful than helpful. Further, the persuasive
value of an expert is questionable here; any defense expert would be in a position of secondguessing Avila’s conclusion using photographs alone.
Garcia has also failed to demonstrate prejudice. Avila made it clear that her opinion was
based not only on the physical evidence but also on Y.G.’s reports, and that she would have come
to the same conclusion had the physical findings been different. Any defense expert could not

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have persuasively undermined Y.G.’s story. Avila herself testified that it was fairly common to
find no physical evidence of penetration even when penetration is otherwise confirmed.
After reviewing the evidence presented at the trial and to the PCR court, the PCR court’s
decision finding no ineffective assistance of counsel was not contrary to nor an unreasonable
application of Strickland.
II.

Unbriefed and Procedurally Defaulted Claims
Garcia did not brief his first ground for relief, which alleged his counsel was ineffective

for failing to move to sever the trial as to each victim. Because Garcia failed to sustain his
burden of demonstrating why he is entitled to relief on ground one, it is dismissed. See Davis v.
Woodford, 384 F.3d 628, 638 (9th Cir. 2004) (petitioner bears burden of proving he is entitled to
habeas relief); Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002).
Additionally, Garcia argued in his brief that his trial counsel was ineffective for failing to
challenge the indictment on the basis of lack of notice (as opposed to on the basis of factual
predicates to ensure juror concurrence), but he did not allege such a claim in his habeas petition.
The claim is not properly before me. See Rule 2(c), Rules Governing Section 2254 Proceedings
(habeas petition must “specify all the grounds for relief that are available to the petitioner”);
Green v. Henry, 302 F.3d 1067, 1070 n. 3 (9th Cir. 2002) (court need not consider claims not
raised in petition).
Even were I to view the claim as properly raised in his petition, Garcia failed to properly
present his claim to the state courts. Generally, a state prisoner must exhaust all available state
court remedies either on direct appeal or through collateral proceedings before a federal court
may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1)(A). A state prisoner
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satisfies the exhaustion requirement by “fairly presenting” his claim to the appropriate state
courts at all appellate stages afforded under state law, including a state supreme court with
powers of discretionary review. Baldwin v. Reese, 541 U.S. 27, 29 (2004); O’Sullivan v.
Boerckel, 526 U.S. 838, 845-47 (1999). When a state prisoner fails to exhaust his federal claims
in state court, and the state court would now find the claims barred under applicable state rules,
the federal claims are procedurally defaulted. O’Sullivan, 526 U.S. at 848; Coleman v.
Thompson, 501 U.S. 722, 735 n.1 (1991). Habeas review of procedurally defaulted claims is
barred unless the petitioner demonstrates cause for the procedural default and actual prejudice, or
that the failure to consider the claims will result in a miscarriage of justice. Coleman, 501 U.S. at
750.
Garcia’s claim in the PCR court was that his trial counsel should have “challenged
petitioner’s indictment” so as “to ensure jury unanimity.” Resp. Ex. 111, at 5-6; Resp. Ex. 128,
at 6 (arguing to the PCR court, “The failure to challenge the indictment really boils down to an
issue of concurrence.”). The two claims–notice versus juror concurrence–are not “‘sufficiently
related’ or ‘intertwined’ for exhaustion purposes . . . .” Wooten v. Kirkland, 540 F.3d 1019,
1925 (9th Cir. 2008); see State v. Hale, 335 Or. 612, 621, 627, 75 P.3d 448 (2003) (indictment
provided sufficient notice, but jury not sufficiently instructed to ensure concurrence).
In sum, either because he failed to articulate the notice claim in his habeas petition, or
because he failed to present it to the state courts and cannot do so now, Garcia’s notice claim is
denied.

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CONCLUSION
Based on the foregoing, the petition for writ of habeas corpus [2] is denied. This
proceeding is dismissed with prejudice. Because petitioner has not made a substantial showing
of the denial of a constitutional right, a certificate of appealability is denied. See 28 U.S.C. §
2253(c)(2).

IT IS SO ORDERED.
DATED this

6th

day of February, 2015.

/s/ Garr M. King
Garr M. King
United States District Judge

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