Negash v. Franke
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
OPINION AND ORDER
STEVE FRANKE, Superintendent,
Two Rivers Correctional Institution,
THOMAS J. HESTER
Assistant Federal Public Defender
101 SW Main Street
Portland, OR 97204
Attorney for Petitioner
ELLEN F. ROSENBLUM
KRISTEN E. BOYD
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301
Attorneys for Respondent
1 - OPINION AND ORDER -
Institution, brings this habeas corpus action pursuant to 28 U.S.C.
For the reasons that follow,
the Petition for Writ of
Habeas Corpus (ECF No. 2) is DENIED.
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.
All of the charges involved the same victim,
daughter of Petitioner's cousin.
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.
The trial court granted the
Petitioner's motion for a judgment of acquittal on seven additional
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
230 Or. App. 248, 214 P.3d 853,
347 Or. 365, 222 P. 3d 1091 (2009).
State v. Negash,
the PCR trial judge denied relief.
but again the Oregon Court of
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:
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
the trial court
erred in admitting a tape-recording of prior testimony from an
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
granted unless the adjudication on the merits in State court was:
3 - OPINION AND ORDER -
clearly established Federal law as determined by the Supreme Court
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:
identifies the correct governing
from Supreme Court decisions,
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
Williams v. Taylor,
529 U.S. 362, 407, 413 (2000).
this standard of review, a federal court may not issue a writ of
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.
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
336 F.3d at 853.
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).
Ground One - Ineffective Assistance of Counsel
ineffective in failing to obtain and submit as evidence his work
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
5 - OPINION AND ORDER -
A claim of ineffective assistance of counsel
petitioner to prove that counsel performed deficiently and that the
petitioner suffered prejudice.
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).
When reviewing a state prisoner's habeas
Murray v. Schriro, 746 F.3d
Pinholster, 563 U.S. at 190.
establish that his counsel's representation fell outside the wide
range of professionally competent assistance.
132 s.ct. 1376, 1384 (2012); Strickland, 466 U.S. at 688.
is "strongly presumed to have rendered adequate assistance and made
Pinholster, 563 U.S. at 189.
In order to establish prejudice, a petitioner must demonstrate
that there is a
reasonable probability that,
the result of the proceeding would have been different.
reasonable probability is a probability sufficient to undermine
6 - OPINION AND ORDER -
confidence in the outcome of the proceeding.
Strickland, 466 U.S.
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."
Resp. Exh. 102.
The victim originally told the investigating officer that she
believed the rape occurred on February 27, 2005.
Tr. at 326.
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
preparer 1 ,
apartment until after work.
Tr. at 218-19, 233.
In fact, February
consistent with the date she originally reported that the rape
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
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.
Pe ti ti oner argues
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.
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."
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
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
apartment complex and that Petitioner was at work when she first
arrived, and raped her after he came home from work.
given the victim's differing account at trial as to the date he
Petitioner's work schedule would not necessarily have
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.
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
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
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.
Petitioner has not established that the denial of this claim was
10 - OPINION AND ORDER -
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
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
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.'"
Director of Corrections for California, 692 F.3d 910, 919 (9th Cir.
(quoting Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986)).
11 - OPINION AND ORDER -
opportunity for effective cross-examination, not cross-examination
that is effective in whatever way,
defense might wish."
and to whatever extent the
United States v.
internal citations and quotation
marks omitted) .
A Confrontation Clause violation is harmless, and so does not
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) .
(footnote and additional
inquiry into whether
constitutionally erroneous introduction of a piece of evidence had
a substantial and injurious effect is guided by five factors:
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
Arsdall, 475 at 684).
12 - OPINION AND ORDER -
rights under the Confrontation Clause by allowing the testimony of
the victim's mother,
Pe ti ti oner contends was
translated by the interpreter.
Specifically, Petitioner contends
the interpreter's language skills were inadequate to interpret all
that the witness said.
continuous word for word translation,
(9th Cir. 2002)
occasional lapses in the
United States v. Long, 301F.3d1095, 1105
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)
(quoting Brecht v. Abrahamson, 507 U.S.
recommendation adopted by 2011 WL 318880
translation of the victim's mother's testimony was inaccurate and
13 - OPINION AND ORDER -
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.
everything that she'd been asked'' and told the jury ''in English
everything that she said.''
In the face of Petitioner's argument that the translation was
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,
Pe ti ti oner
reasonably concluded that Petitioner was not denied the right to
confront the witness and that he was not prejudiced.
concludes this was not contrary to or an unreasonable application
of clearly established federal law.
Pe ti ti oner
relief on this claim.
14 - OPINION AND ORDER -
Restraining Order hearing
In Ground Three,
Clause challenge, this time against the introduction of testimony
at trial from a restraining order hearing involving the victim and
Prior to entry of the indictment against Petitioner,
restraining order hearing, a family friend of the victim appeared
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
established by Crawford v. Washington, 541 U.S. 36 (2004).
Crawford, the Supreme Court held that, before testimonial
hearsay evidence may be admitted, the Sixth Amendment "demands what
the common law
opportunity for cross-examination.
Crawford, 541 U.S. at 68.
witness statements at issue here are testimonial under Crawford, as
they were offered at the restraining order hearing.
parties do not dispute that the witness was unavailable at trial. 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 -
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.
restraining order hearing, and his attorney questioned the witness
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,
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.
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.
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.
5508921, at *8
(E.D. Cal. Nov. 9, 2011)
(no Confrontation Clause
examine witness at preliminary hearing, despite witness's feigned
forgetfulness); Cogswell v. Beard, Case No. 11CV1559-MMA(WVG), 2014
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
Paling, 580 Fed. App'x 144 (3rd Cir. 2014)
(admission of deposition
testimony of witness, who was unavailable to testify in defendant's
from prior civil trial against defendant did not
violate defendant's confrontation rights where defendant's motive
sufficiently similar to
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.
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.
In light of the other evidence presented by
rights were not violated by introduction of the testimony from the
restraining order, as any error in introducing that testimony was
Accordingly, Petitioner is not entitled to habeas corpus
relief on the claim alleged in Ground Three.
For these reasons, the Court DENIES the Petition for Writ of
18 - OPINION AND ORDER -
and DISMISSES this action.
DENIES a certificate of appealability as Petitioner has not made a
substantial showing of the denial of a constitutional right.
of December, 2016.
United States District Judge
19 - OPINION AND ORDER -
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