Negash v. Franke

Filing 47

Opinion and Order. The Court DENIES the Petition for Writ of Habeas Corpus (ECF No. 2) and DISMISSES this action. The Court DENIES a certificate of appealability as Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). See attached 19 page Opinion and Order for full text. Signed on 12/16/2016 by Judge Anna J. Brown. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
SAMUEL MESGHENA NEGASH,
aka SAMUEL MESGINA NEGASH,
Civil No. 2:14-cv-00106-BR
Petitioner,
OPINION AND ORDER

v.
STEVE FRANKE, Superintendent,
Two Rivers Correctional Institution,
Respondent.
THOMAS J. HESTER
Assistant Federal Public Defender
101 SW Main Street
Suite 1700
Portland, OR 97204
Attorney for Petitioner
ELLEN F. ROSENBLUM
Attorney General
KRISTEN E. BOYD
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301
Attorneys for Respondent

1 - OPINION AND ORDER -

BROWN, Judge.
an

Petitioner,

inmate

at

the

Two

Rivers

Correctional

Institution, brings this habeas corpus action pursuant to 28 U.S.C.
§

2254.

For the reasons that follow,

the Petition for Writ of

Habeas Corpus (ECF No. 2) is DENIED.
BACKGROUND

On January 26, 2006, a Multnomah County grand jury indicted
Petitioner on 62 sex offense counts, including one count of Rape in
the First Degree, twelve counts of Sodomy in the Third Degree, and
fifty-nine counts of Sexual Abuse in the Third Degree.
102.

All of the charges involved the same victim,

daughter of Petitioner's cousin.

Resp. Exh.
who is the

The indictment alleged conduct

spanning from the time the victim was 14 years old (and recently
arrived from Ethiopia) until she was 17.
The case was tried to a jury.
state's motion

to

dismiss

30

The trial court granted the

counts,

and

subsequently granted

Petitioner's motion for a judgment of acquittal on seven additional
counts.

Ultimately,

a

jury found Petitioner not guilty on one

count, and guilty as charged on the remaining 24 counts, including
the single count of Rape in the First Degree.

The trial judge

sentenced Petitioner to 138 months of imprisonment, to be followed
by 20 years of post-prison supervision.
Petitioner filed a direct appeal,
Appeals affirmed without opinion,
2 - OPINION AND ORDER -

but the Oregon Court of

and the Oregon Supreme Court

denied review.

state

post-conviction

evidentiary hearing,
Exh.

156.

Appeals

230 Or. App. 248, 214 P.3d 853,

347 Or. 365, 222 P. 3d 1091 (2009).

rev. denied,

sought

State v. Negash,

relief

(''PCR").

Following

the PCR trial judge denied relief.

Petitioner appealed,

affirmed without

denied review.

Petitioner then
an

Resp.

but again the Oregon Court of

opinion

and the

Oregon

Supreme

Court

Negash v. Franke, 258 Or. App. 907, 313 P.3d 1148,

rev. denied, 354 Or. 597, 318 P.3d 749 (2013).
Petitioner then filed his Petition for Writ of Habeas Corpus
in this Court and alleged three claims for relief:

(1)

trial

counsel was ineffective for failing to obtain and present alibi
evidence in the form of Petitioner's work records;

(2) the trial

court erred in denying Petitioner's motion to strike the testimony
of an adverse witness on the basis that the court interpreter did
not accurately translate her testimony; and

(3)

the trial court

erred in admitting a tape-recording of prior testimony from an
unavailable

witness.

Respondent

acknowledges

that

Petitioner

exhausted his state remedies as to all three claims, but Respondent
contends that the state court decisions denying relief were not
contrary to nor an unreasonable application of clearly established
federal law.
LEGAL STANDARDS

An

application

for

a

writ

of habeas

corpus

shall

not

be

granted unless the adjudication on the merits in State court was:
3 - OPINION AND ORDER -

(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).

A state court

decision is an ''unreasonable application" of clearly-established
federal law if the court:
legal principle

(1)

identifies the correct governing

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.

Williams v. Taylor,

529 U.S. 362, 407, 413 (2000).

Under

this standard of review, a federal court may not issue a writ of
habeas

corpus

because

clearly-established
Instead,

the

unreasonable."

it

concludes

federal

state

court

law

the

state

erroneously

decision

must

court

applied

or

incorrectly.

be

"objectively

Lockyer v. Andrade, 538 U.S. 63, 75 (2003).

The last reasoned decision by the state court is the basis for
review by the federal court.

See Ylst v. Nunnemaker, 501 U.S. 797,

803-04 (1991); Comstock v. Humphries, 786 F.3d 701, 707 (9th Cir.
2015) .

Where the state court reaches a decision on the merits but

provides no reasoning to support its conclusion, a federal habeas
court independently reviews the record to determine whether habeas
corpus relief is available under§ 2254(d).
4 - OPINION AND ORDER -

Stanley v. Cullen, 633

F.3d 852, 860 (9th Cir. 2011); Himes v. Thompson, 336 F.3d 848, 853
(9th Cir. 2003).

"Independent review of the record is not de nova

review of the constitutional issue, but rather, the only method by
which we can determine whether a silent state court decision is
objectively unreasonable."

Himes,

336 F.3d at 853.

The habeas

petitioner still has the burden of "showing there was no reasonable
basis for the state court to deny relief."

Harrington v. Richter,

562 U.S. 86, 98 (2011). The Supreme Court has described the correct
analysis as follows:
[A] habeas court must determine what arguments or
theories . . . could have supporte[d] the state court's
decision, and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior
decision of this Court.

Cullen v. Pinholster, 563 U.S. 170, 188 (2011)

(citing Richter, 562

U.S. at 101).
DISCUSSION
I.

Ground One - Ineffective Assistance of Counsel

In

Ground

One,

Petitioner

alleges

his

trial

counsel

was

ineffective in failing to obtain and submit as evidence his work
records

to

establish

an

alibi

against

the

Rape

charge.

In

particular, Petitioner contends that his work records would have
supported a finding that he could not have been at his apartment
complex at the date and time that the victim testified he raped
her.
5 - OPINION AND ORDER -

A claim of ineffective assistance of counsel

requires

the

petitioner to prove that counsel performed deficiently and that the
petitioner suffered prejudice.
668,

687-88

(1987).

Strickland v. Washington, 466 U.S.

If there is a

failure of proof on either

prong, habeas relief is not warranted.
418, 457 (9th Cir. 2014).
claim of

strong

When reviewing a state prisoner's habeas

ineffective assistance,

doubly deferential

standard of

presumption

deferential

of

standard

Murray v. Schriro, 746 F.3d

federal
review

competence
of

review

courts must

taking

under
under

into

account

the

and

the

Strickland,

28

apply a

U.S.C.

2254(d).

§

Pinholster, 563 U.S. at 190.

To

show

counsel

performed

deficiently,

a

petitioner

must

establish that his counsel's representation fell outside the wide
range of professionally competent assistance.

Lafler v.

132 s.ct. 1376, 1384 (2012); Strickland, 466 U.S. at 688.

Cooper,

Counsel

is "strongly presumed to have rendered adequate assistance and made
all

significant

decisions

professional judgment."

in

the

exercise

of

reasonable

Pinholster, 563 U.S. at 189.

In order to establish prejudice, a petitioner must demonstrate
that there is a

reasonable probability that,

but

for counsel's

errors,

the result of the proceeding would have been different.

Lafler,

132

S.

Ct.

at

1384;

Harrington,

562

U.S.

at

112.

A

reasonable probability is a probability sufficient to undermine

6 - OPINION AND ORDER -

confidence in the outcome of the proceeding.

Strickland, 466 U.S.

at 694.
The indictment against Petitioner alleged one count of Rape in
the First Degree, as follows:
The said Defendant ( s) , SAMUEL MESGHENA NEGASH, on or
about February 27, 2005, in the County of Multnomah,
State of Oregon, did unlawfully and knowingly, by
forcible compulsion, engage in sexual intercourse with
[the victim], contrary to the statutes in such cases made
and provided and against the peace and dignity of the
State of Oregon.
Resp. Exh. 102, p. 1.

This was the only count in the indictment

that specified a date,

as all of the other counts alleged the

various crimes occurred "on or between September 11,
February 27, 2005."

2001,

and

Resp. Exh. 102.

The victim originally told the investigating officer that she
believed the rape occurred on February 27, 2005.

Tr. at 326.

At

trial, the victim testified that on the day of the rape, she took
the bus from school to Petitioner's apartment complex to speak with
a

tax

preparer 1 ,

and

that

Petitioner

did

not

apartment until after work.

Tr. at 218-19, 233.

27,

so

2005,

was

a

Sunday,

the

victim's

arrive

at

the

In fact, February
testimony

was

not

consistent with the date she originally reported that the rape
occurred.

In

closing

1

argument,

Petitioner's

trial

counsel

The tax preparer testified that while she knew Petitioner and
had prepared taxes for the victim's mother, she did not meet with
the victim on that or any other day. Tr. at 470-86.
7 - OPINION AND ORDER -

emphasized this discrepancy, characterizing the victim's account of
the rape as ''a total fabrication" because of the inconsistencies
between what

she

testified

to,

and

witness's

denial

told

the

between
that

they

investigating
her
met.

account
Tr.

officer
and
at

the

and

what

tax

preparer

739-42.

The

she

jury

nonetheless convicted Petitioner.
In his state PCR proceeding,

Petitioner submitted a letter

from his employer stating that between July 2004 and February 2006,
Petitioner worked as a Nurse's Aid on weekdays from 11:00 a.m. to
6: 00 p .m.

Resp.

Exh.

125.

Pe ti ti oner argues

that

his

trial

attorney was ineffective in failing to obtain and use this evidence
at trial because it would have corroborated the tax preparer's
testimony and undermined the victim's credibility.
The PCR trial judge rejected Petitioner's argument.

The PCR

trial judge did not explain his decision other that to state in a
General Judgment that Petitioner's trial attorney "made strategic
decisions that were competent and reasonable," and the judge found
''[n]o inadequacy by attorney, no prejudice."
p.

2.

As noted,

Resp. Exh. 156,

the Oregon Court of Appeals affirmed without

opinion and the Oregon Supreme Court denied review.

In the absence

of a reasoned decision, this Court must determine what arguments or
theories could have supported the state court's decision, and then,
pursuant to Strickland the Court must ask whether it is possible

8 - OPINION AND ORDER -

fairminded jurists could disagree that those arguments or theories
are inconsistent.
As discussed by Respondent on appeal from the denial of the
state PCR petition, Petitioner's work schedule did not provide an
alibi for two separate reasons.

First, the work schedule did not

establish that Petitioner could not have committed the rape on the
day and time alleged by the victim.

The victim initially reported

the rape occurred on a Sunday, which was not Petitioner's regularly
scheduled work day.

Second, an alibi for any given day would not

have been effective given that the state charged Petitioner with
committing the rape "on or about February 27, 2005."
At trial, the victim testified that she did not remember the
specific date of the rape, only that it happened after she took the
bus from school to Petitioner's apartment complex.

Tr. at 230-42.

At a previous restraining order hearing, the victim testified that
she was

unsure

of

the

date,

but

that

she

took

a

bus

to

the

apartment complex and that Petitioner was at work when she first
arrived, and raped her after he came home from work.

Thus, even

given the victim's differing account at trial as to the date he
raped her,
been

Petitioner's work schedule would not necessarily have

exculpatory

because

it

would

not

have

precluded

the

possibility that he met the victim after work.
Moreover, the state charged Petitioner with raping the victim
''on or about February 27, 2005," but also charged Petitioner with
9 - OPINION AND ORDER -

61 other sex offenses which were not pinned to a particular date.
In

the

PCR proceeding,

Petitioner's

trial

the

counsel

state

presented

explaining

an

that

affidavit

alibi

defenses

from
are

generally ineffective in cases in which multiple sex offenses are
charged as occurring ''on or about" a specific date:
[T]his was an indictment alleging multiple charges. The
complainant was unable to specify exact times that many
of these crimes occurred.
In a case such as this, if a
person can show that they were at work on one out of
twenty alleged occasions, all the complainant need to do
to correct that is to say that she made a mistake about
the exact date of the occurrence. Then by virtue of the
''on or about'' or "on or between" language, the alibi
becomes irrelevant.
Resp. Exh. 146, pp. 3-4.
Finally, in closing arguments counsel focused on the victim's
inconsistent statements about when the rape occurred, as well as
the testimony of the neutral tax preparer to refute the victim's
claim that she went to her for tax assistance on the day of the
rape.

In

light

of

all

of

the

evidence,

it

was

objectively

reasonable and within the bounds of constitutional adequacy for
counsel not to present an alibi defense because Petitioner's work
schedule did not establish a persuasive alibi.
Accordingly,
Petitioner's
contrary

to

the

state

ineffective
or

an

PCR

assistance

unreasonable

court's
of

decision

counsel

application

rejecting

claim
of

was

not

Strickland.

Petitioner has not established that the denial of this claim was
"so

lacking

in

justification

10 - OPINION AND ORDER -

that

there

was

an

error

well

understood and comprehended in existing law beyond any possibility
for fairminded disagreement."

Harrington, 131 S. Ct. at 786-87.

Accordingly, Petitioner is not entitled to habeas corpus relief on
his claim of ineffective assistance of counsel alleged in Ground
One.
II.

Grounds Two and Three - Confrontation Clause

In Ground Two, Petitioner alleges that the trial court erred
in failing to strike the testimony of the victim's mother when
Petitioner

asserted

inaccurate.

the

Petitioner

interpretation errors,
adverse

witness

Amendments.

as

interpretation
contends

he was

that,

denied the

guaranteed

by

of

the

her

testimony

because

right
Sixth

to
and

of

was
such

confront

an

Fourteenth

In Ground Three, Petitioner alleges his Confrontation

Clause rights were violated when the trial judge admitted testimony
at trial given by a witness at a prior restraining order hearing.
The Confrontation Clause of the Sixth Amendment to the United
States Constitution grants a criminal defendant the right ''to be
confronted with the witnesses against him."

U.S. Const. amend. VI.

"The 'main and essential purpose of confrontation is to secure for
the opponent the opportunity of cross-examination.'"

Fenenbock v.

Director of Corrections for California, 692 F.3d 910, 919 (9th Cir.
2012)

(quoting Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986)).

However,

''[t]he

Confrontation

11 - OPINION AND ORDER -

Clause

guarantees

only

'an

opportunity for effective cross-examination, not cross-examination

that is effective in whatever way,
defense might wish."
(1988)

(emphasis

and to whatever extent the

United States v.

in original;

Owen,

484 U.S.

554,

559

internal citations and quotation

marks omitted) .

A Confrontation Clause violation is harmless, and so does not
justify habeas

corpus

relief,

"unless

it

'had substantial

and

injurious effect or influence in determining the jury's verdict.'''
Ocampo v. Vail, 649 F.3d 1098, 1114 (9th Cir. 2011)
v. Abrahamson, 507 U.S. 619, 623 (1993))

citations omitted) .

In general,

the

(quoting Brecht

(footnote and additional
inquiry into whether

the

constitutionally erroneous introduction of a piece of evidence had
a substantial and injurious effect is guided by five factors:

"the

importance of the testimony, whether the testimony was cumulative,
the presence or absence of evidence corroborating or contradicting
the testimony, the extent of cross-examination permitted, and the
overall

strength

Washington,

232

of
F.3d

the
1197,

Arsdall, 475 at 684).

12 - OPINION AND ORDER -

prosecution's
1206

(9th

case.''
Cir.

2000)

Whelchel

v.

(citing

Van

A.

Inadequate

Ground Two
Testimony

Petitioner

contends

the

trial

Interpretation

judge

of

violated

Witness

Petitioner's

rights under the Confrontation Clause by allowing the testimony of
the victim's mother,

which

Pe ti ti oner contends was

translated by the interpreter.

incorrectly

Specifically, Petitioner contends

the interpreter's language skills were inadequate to interpret all
that the witness said.
''While

the

general

standard

for

continuous word for word translation,
standard

will

necessarily

not

constitutional rights."
(9th Cir. 2002)

interpreters

requires

occasional lapses in the

contravene

defendant's

a

United States v. Long, 301F.3d1095, 1105

(citation omitted).

Moreover, ''[e]ven if a trial

court's limitation upon cross-examination amounts to constitutional
error, a habeas petitioner is not entitled to relief unless such
error had a 'substantial and injurious effect' upon the verdict.''

Park v. Yates, Case No. CV 05-39570DW(JC), 2010 WL 5670788, at *8
(C.D. Cal. March 23, 2010)
619,

637-38

(1993)

(quoting Brecht v. Abrahamson, 507 U.S.

(additional

citations

recommendation adopted by 2011 WL 318880

omitted),
(C. D.

report

Cal.,

Jan.

and
25,

2011) .
At

trial,

Petitioner

asserted

that

the

interpreter's

translation of the victim's mother's testimony was inaccurate and
incomplete.

However,

13 - OPINION AND ORDER -

when

the

trial

judge

questioned

the

interpreter about the translation, the interpreter testified that
he translated the testimony to the best of his ability, and that he
did not change the meaning of anything the witness said.

Tr. 278.

The

witness]

interpreter

further

testified

that

he

"told

[the

everything that she'd been asked'' and told the jury ''in English
everything that she said.''

Tr. 278.

In the face of Petitioner's argument that the translation was
nonetheless

inaccurate,

the

trial

judge

noted

in

speaking

to

Pe ti ti oner that the witness's testimony "had very little to do with
what [the victim] testified you did."

Tr. at 529.

The judge found

the testimony really established that "[the witness] wasn't aware
of any difficulty . . . she didn't see her daughter trying to pull
away from you.

She didn't see any bad effects on her daughter's

personality because of this alleged thing."

Tr. at 529.

The witness's testimony did not provide much in substance and,
after

allowing

interpretation

Pe ti ti oner
was

to

inadequate

explain
or

ways

inexact,

in
the

which
trial

the
judge

reasonably concluded that Petitioner was not denied the right to
confront the witness and that he was not prejudiced.

The Court

concludes this was not contrary to or an unreasonable application
of clearly established federal law.
Accordingly,

Pe ti ti oner

relief on this claim.

14 - OPINION AND ORDER -

is

not

entitled

to

habeas

corpus

B.

Introduction
Ground Three
Restraining Order hearing

In Ground Three,

of

Petitioner raises

Testimony

a

from

Prior

second Confrontation

Clause challenge, this time against the introduction of testimony
at trial from a restraining order hearing involving the victim and
Petitioner.
the

victim

Prior to entry of the indictment against Petitioner,
sought

a

restraining

order

against

At

him.

the

restraining order hearing, a family friend of the victim appeared
and testified.

At the time of criminal trial, however, the witness

was not available to testify.

The prosecution moved to introduce

a recording of the witness's testimony from the restraining order
hearing, which the trial judge allowed over Petitioner's objection.
Petitioner contends that admission of the testimony violated his
sixth

amendment

Confrontation

Clause

rights

under

the

rule

established by Crawford v. Washington, 541 U.S. 36 (2004).
In

Crawford, the Supreme Court held that, before testimonial

hearsay evidence may be admitted, the Sixth Amendment "demands what
the common law

required,"

which is

opportunity for cross-examination.

unavailability and

a

Crawford, 541 U.S. at 68.

prior
The

witness statements at issue here are testimonial under Crawford, as
they were offered at the restraining order hearing.

Moreover, the

parties do not dispute that the witness was unavailable at trial. 2
2

At the time of the criminal trial, the witness lived byond
the state court's jurisdiction in Toronto, Canada.
Tr. at 412.
Despite the prosecution buying him an airline ticket to travel for
15 - OPINION AND ORDER -

Accordingly,

the only remaining questions are whether Petitioner

had a meaningful opportunity to cross-examine the witness and, if
not, whether any error in allowing the testimony had a substantial
and injurious effect or influence.
Petitioner was

present

and

represented by

counsel

at

the

restraining order hearing, and his attorney questioned the witness
under oath.

Resp.

Exhs.

105,

p.

26;

121,

p.

1.

3

Petitioner

argues, nonetheless, that the restraining order hearing was a "much
less serious proceeding," and that much of the testimony in that
proceeding was itself full of inadmissible hearsay that tended to
corroborate the victim's accusations.
Petitioner does not cite, and this Court could not locate, any
authority for the proposition that an accused must be afforded
another chance to cross-examine a witness on the basis that the
prior "testimony" was given in a proceeding that lacked equivalent
seriousness of a criminal trial.

To the contrary,

courts have

allowed the introduction of prior testimony under Crawford when the

travel, the witness ultimately concluded that he could not attend
the trial because he was caring for his wheelchair-bound father and
because he was not able to obtain permission to be absent from
work. Tr. at 412.
3

Respondent's brief on direct appeal from Petitioner's
conviction states that the full transcript submitted by Petitioner
at trial reflected that Petitioner's attorney called the witness in
question to testify at the restraining order hearing.
Resp. Exh.
105, p. 26 (citing Defendant's Exhibits 102 and 103, p. 34). The
full transcript is not before this Court, however, as Petitioner
submitted a truncated version in his state PCR proceeding.
16 - OPINION AND ORDER -

original testimony was offered under just such circumstances.
e.g.,

Beard v.

Grounds,

5508921, at *8
violation

Case No.

1:09-cv-01750-BAM(HC),

(E.D. Cal. Nov. 9, 2011)

where

Petitioner

was

See,

2011 WL

(no Confrontation Clause

afforded

opportunity

to

cross-

examine witness at preliminary hearing, despite witness's feigned
forgetfulness); Cogswell v. Beard, Case No. 11CV1559-MMA(WVG), 2014
WL

2116481,

preliminary

at

*2

(S.D.

hearing

of

Cal.

May

unavailable

21,

2014)

witness

(testimony

admitted

at

from
trial

despite Petitioner's argument that a preliminary hearing is a much
less searching exploration into the merits of a case then trial),
aff'd by 648

Fed.

App'x 624

(9th Cir.

Paling, 580 Fed. App'x 144 (3rd Cir. 2014)

2016);

United

States

v.

(admission of deposition

testimony of witness, who was unavailable to testify in defendant's
criminal trial,

from prior civil trial against defendant did not

violate defendant's confrontation rights where defendant's motive
in

developing

witness's

sufficiently similar to

testimony
the motive

at
she

civil
would

deposition
have

had

if

was
the

testimony was presented at the criminal trial).
Even if Petitioner had not been present at the restraining
order hearing and had not had the opportunity to cross-examine the
witness, however, Petitioner would still be required to establish
that introduction of the evidence had a substantial and injurious
effect on the

jury's verdict under the Brecht "harmless error"

17 - OPINION AND ORDER -

standard as applied with the Van Arsdall factors.
at 623; Van Arsdall, 475 U.S. at 673.

Brecht, 507 U.S.

Here, the witness testimony

at issue was cumulative as it merely echoed the testimony already
provided by the victim.

The testimony did not further either the

prosecution or the defense case,

and compared to other evidence

against Petitioner by the victim was of minimal importance.

In

particular, the witness could provide no information about whether
the abuse by Petitioner against the victim had actually occurred.
Finally, Petitioner had no less opportunity than the prosecution to
examine the witness.
the

prosecution

In light of the other evidence presented by

against

Petitioner,

Petitioner's

confrontation

rights were not violated by introduction of the testimony from the
restraining order, as any error in introducing that testimony was
harmless.

Accordingly, Petitioner is not entitled to habeas corpus

relief on the claim alleged in Ground Three.
CONCLUSION

For these reasons, the Court DENIES the Petition for Writ of
Habeas Corpus

(ECF No.

18 - OPINION AND ORDER -

2)

and DISMISSES this action.

The Court

DENIES a certificate of appealability as Petitioner has not made a
substantial showing of the denial of a constitutional right.
28

u.s.c.

§

2253(c) (2).

DATED this

~day

of December, 2016.

A~

United States District Judge

19 - OPINION AND ORDER -

See