Nova v. Cain
Filing
57
Opinion and Order - Judge Stewart's F&R is hereby ADOPTED IN PART. The F&R is adopted, with the exception of the last paragraph of section III.B.1, which is replaced by the analysis herein. Petitioner's First Amended Petition for Wr it of Habeas Corpus (Dkt. 19 ) is DENIED and this proceeding is DISMISSED. The Court declines to issue a Certificate of Appealability on the basis that Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). Signed on 10/5/2015 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JAMES ALAN NOVA,
Petitioner,
v.
Case No. 2:13-cv-01085-ST
OPINION AND ORDER ADOPTING
FINDINGS AND
RECOMMENDATIONS
BRAD CAIN,
Respondent.
Michael H. Simon, District Judge.
United States Magistrate Judge Janice M. Stewart issued Findings and Recommendation
(“F&R”) in this case on September 8, 2015. Dkt. 53. Judge Stewart recommended that the First
Amended Petition for Writ of Habeas Corpus (Dkt. 19) be denied, the case dismissed with
prejudice, and the court decline to issue a Certificate of Appealability on the basis that Petitioner
has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C.
§ 2253(c)(2).
Under the Federal Magistrates Act (“Act”), the Court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C.
§ 636(b)(1). If a party files objections to a magistrate’s findings and recommendations, “the court
PAGE 1 – OPINION AND ORDER
shall make a de novo determination of those portions of the report or specified proposed findings
or recommendations to which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3).
For those portions of a magistrate’s findings and recommendations to which neither party
has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S.
140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to require
a district judge to review a magistrate’s report to which no objections are filed.”); United States.
v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court must
review de novo magistrate’s findings and recommendations if objection is made, “but not
otherwise”). Although in the absence of objections no review is required, the Act “does not
preclude further review by the district judge[] sua sponte . . . under a de novo or any other
standard.” Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed. R. Civ. P.
72(b) recommend that “[w]hen no timely objection is filed,” the Court review the magistrate’s
recommendations for “clear error on the face of the record.”
Petitioner timely filed objections to the F&R (Dkt. 55), to which Respondent responded.
Dkt. 56. In the response, Respondent objected to the finding that Petitioner alerted the postconviction relief (“PCR”) court to his Ground 8 claim. Respondent does not, however, object to
the conclusion denying Petitioner relief on Ground 8. Respondent asserts that the F&R
mistakenly pointed to the State’s closing argument as evidence that Ground 8 was before the
PCR court. The reference in the State’s closing to a claim of cumulative error, however, is
evidence that the claim was before the PCR court. Further, although Petitioner did not use the
word “cumulative” in his petition before the PCR court, he described the basic contours of the
claim, as did his counsel in closing argument. See Dkts. 31-1 at 89; 31-2 at 148. Accordingly,
Respondent’s objection the F&R is unavailing.
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Petitioner raises two objections to the F&R rejecting his claims for relief: (1) the denial
of Ground 7(C); and (2) the denial of Ground 8. Petitioner also objects to the recommendation
that no certificate of appealability be issued. Petitioner argues that the F&R erred in denying his
ineffective assistance of counsel claim on Ground 7(C) of his habeas petition because the F&R
contains a factual error. According to Petitioner, the F&R relies on an uncharged event in
concluding that the PCR court’s finding that there was a pause sufficient to justify separate
convictions and consecutive sentences under Or. Rev. Stat. (hereinafter “O.R.S.”) § 161.067(3)
was not an unreasonable determination of the facts. Petitioner also argues that the F&R erred in
denying his ineffective assistance of counsel claim on Ground 8 because the F&R failed to
consider the cumulative effect that Petitioner’s trial attorney’s missed impeachment opportunities
would have had on the credibility of the prosecution’s primary witness.
The Court has reviewed de novo the portions of the F&R to which Petitioner and
Respondent objected and has reviewed for clear error those portions to which no objection was
filed. The Court agrees with Judge Stewart’s analysis and adopts the F&R with the exception of
the last paragraph of section III.B.1. The Court agrees with Petitioner that the F&R made a
factual error by considering an uncharged act in concluding that the PCR court’s finding was not
an unreasonable determination of the facts.1 Accordingly, the Court replaces the last paragraph
of section III.B.1 of the F&R with the analysis below.
1
The F&R states, “The first rapes at issue occurred over the course of several
hours (between 11:00 p.m. and 5:30 a.m.) and involved multiple locations in the apartment.
Petitioner then returned to rape the victim again after he had gotten dressed and she had fallen
asleep.” Dkt. 53 at 11. Petitioner was not charged with rape for the sexual encounter that
occurred after the victim had fallen asleep. Petitioner was charged with three counts of rape for
events that occurred on the victim’s couch, bedroom chair, and bed between approximately
11:00 p.m. and 5:30 a.m. These three rapes are the acts between which the PCR court determined
there was “sufficient pause” under O.R.S. § 161.067(3).
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III.B.1 REPLACEMENT ANALYSIS
To obtain habeas relief under 28 U.S.C. § 2254(d)(2), a petitioner must show that the
state court’s adjudication of his claim “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.” The
Ninth Circuit has interpreted § 2254(d)(2) to mean that “a federal court may not second-guess a
state court’s fact-finding process unless, after review of the state-court record, it determines that
the state court was not merely wrong, but actually unreasonable.” Taylor v. Maddox, 366 F.3d
992, 999 (9th Cir. 2004). In conducting this review, a federal court “must be particularly
deferential to our state-court colleagues.” Id. at 1000. Although “deference does not imply
abandonment or abdication of judicial review,” the state court’s decision “will not be overturned
on factual grounds unless objectively unreasonable in light of the evidence presented in the statecourt proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 324 (2003).
If the state court’s decision survives this review, “the state court’s findings are dressed in
a presumption of correctness, which then helps steel them against any challenge based on
extrinsic evidence, i.e., evidence presented for the first time in federal court.” Taylor, 366 F.3d at
1000; see also 28 U.S.C. § 2254(e)(1) (providing that any “determination of a factual issue made
by a State court shall be presumed to be correct”). The habeas applicant may “rebut[] the
presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). The
Ninth Circuit has noted that “the presumption of correctness and the clear-and-convincing
standard of proof only come into play once the state court’s fact-findings survive any intrinsic
challenge; they do not apply to a challenge that is governed by the deference implicit in the
‘unreasonable determination’ standard of section 2254(d)(2).” Taylor, 366 F.3d at 1000.
Here, Petitioner raises only an intrinsic challenge to the PCR court’s decision. Petitioner
presents no new evidence for the first time in federal court. This Court must thus uphold the PCR
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court’s determination that there was a sufficient pause during Petitioner’s conduct unless the
Court finds that the decision was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
Petitioner was convicted on three counts of Rape in the First Degree. The three rapes
occurred on the night of March 14, 2004, between approximately the hours of 11:00 p.m. and
5:40 a.m. the next morning. Dkt. 32-1 at 9, 35, 59, 172. Petitioner raped his ex-girlfriend (“J.F”)
on her living room couch until she “squirmed on to the end of the couch.” Id. at 38. That rape
lasted approximately a minute, although the two were in the living room for five to ten minutes
while J.F. tried to convince Petitioner to stop or to leave the house. Id. at 38, 43; Dkt. 31-1 at
128. Petitioner may have allowed J.F. to use the bathroom after the encounter on the couch and
before continuing the attack. Dkt. 31-1 at 119-20. Petitioner then “pulled” J.F. into her bedroom
and raped her on a bedroom chair for between 30 and 60 minutes. Dkt. 32-1 at 48, 50. After the
encounter on the chair, Petitioner “took [J.F.] by [her] arms” and moved her to the bed, possibly
to “be more comfortable.” Id. at 56. He removed his clothes fully. Id. at 62. He also paused to
put a condom on and began to “chok[e] or kind of suffocate[e]” J.F. Id. at 51, 53; Dkt. 31-1 at
125. On the bed, Petitioner once again raped J.F. until he let her use the bathroom a second time
and fall asleep. Dkt. 32-1 at 57-62. Although Petitioner and J.F. had a fourth sexual encounter in
the morning of March 15, Petitioner was not charged with a fourth count of rape.
A sufficient pause requires “a temporary or brief cessation of a defendant’s criminal
conduct that occurs between repeated violations and is so marked in scope or quality that it
affords a defendant the opportunity to renounce his or her criminal intent.” State v. Huffman, 234
Or. App. 177, 184 (2010). There is such a cessation “only if one assault ended before the other
began. The mere passage of time, by itself, does not establish that one assault ended before the
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other began.” State v. Sanders, 185 Or. App. 125, 130, (2002), opinion adhered to as modified on
reconsideration, 189 Or. App. 107 (2003). A sufficient pause does not exist where there is “no
evidence of a pause in defendant’s conduct of any measurable duration.” State v. King, 261 Or.
App. 650, 654 (2014) (citing Sanders, 186 Or. App. at 130). It is not enough for the victim to
escape for “a span of three to four seconds” to pull an alarm before the defendant resumes the
attack. State v. Watkins, 236 Or. App. 339, 341, 236 P.3d 770, 771 (2010). There is, however, a
sufficient pause where “something of significance” occurs between assaults, such as when a
third-party intervenes. King, 261 Or. App. at 656.
Here, the three rapes occurred in three different locations in J.F.’s apartment. Petitioner
physically moved J.F. from the couch, to the chair, and finally to the bed. While on the couch,
the attack stopped temporarily as J.F. pleaded with him and possibly used the bathroom.
Petitioner then took J.F. into the bedroom and assaulted her on the chair. Between the chair and
the bed, the attack stopped temporarily while Petitioner put on a condom and fully removed his
clothes. These facts support a determination that Petitioner could have renounced his criminal
intent during any of the pauses or while moving locations from the couch to the chair and then to
the bed. Based on the factual record before the State court, the PCR court’s conclusion that a
sufficient pause occurred between the three attacks was not objectively unreasonable. Thus, the
record before the State court supports the PCR court’s conclusion that Petitioner was not
prejudiced by his counsel’s failure to object to the consecutive sentences.2 Ground 7(C) does not
entitle Petitioner to habeas corpus relief.
2
The evidence before the PCR court was less strong supporting a pause between the
rapes occurring on the chair and the bed. Even if, however, it was unreasonable in light of the
evidence presented for the PCR court to determine that there was a sufficient pause between
those two rapes, Petitioner fails to meet his burden to show ineffective assistance of counsel.
Petitioner fails to show prejudice from his trial counsel’s failure to argue against consecutive
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CONCLUSION
Judge Stewart’s F&R is hereby ADOPTED IN PART. The F&R is adopted, with the
exception of the last paragraph of section III.B.1, which is replaced by the analysis herein.
Petitioner’s First Amended Petition for Writ of Habeas Corpus (Dkt. 19) is DENIED and this
proceeding is DISMISSED. The Court declines to issue a Certificate of Appealability on the
basis that Petitioner has not made a substantial showing of the denial of a constitutional right
pursuant to 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
DATED this 5th day of October, 2015.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
sentences for the rapes occurring on the chair and the bed. Even assuming the rapes on the chair
and bed were one crime subject to one sentence, because it was not unreasonable for the PCR
court to conclude that there was a sufficient pause between the rapes occurring between the
couch and the chair/bed, Petitioner was subject to separate convictions and consecutive sentences
for those two rapes. Those two rapes carried a sentence of 100 months each, for a potential
sentence of up to 200 months. Petitioner received a sentence of only 140 months. See Dkt. 31-1
at 1-3.
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