Shreeve v. Franks
OPINION AND ORDER: Petitioners Petition for Writ of Habeas Corpus 2 is DENIED and this case is DISMISSED. A Certificate of Appealability is denied 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 2/27/2017 by Judge Michael J. McShane. (kms)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
Case No. 2:15-cv-00499-MC
OPINION AND ORDER
STEVE FRANKE, Superintendent,
Two Rivers Correctional Institution,
Petitioner brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254
alleging prosecutorial misconduct and post-conviction trial court error. Petitioner also seeks to
assert a claim of ineffective assistance of counsel. For the reasons explained below, the petition
Defendant was charged with the criminal mistreatment and assault of M, his eight-weekold child. Defendant lived with M, her mother, Michelle Nelson, and Nelson’s two other children
in Klamath County. At trial, Nelson testified that she left M alone with defendant while she
attended to her two older children, and she began to notice marks and bruises on M. Transcript of
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Trial Proceedings, Jan. 13, 2004 (Tr.) at 128-142. Eventually, M was taken to the hospital and
examined. Dr. Calvert was the physician who reviewed M’s x-rays. Dr. Calvert testified at trial
that M had broken ribs, a linear skull fracture, and a chipped leg bone. Tr. 207-09, 213. He
opined that the rib and leg injuries were consistent with a child who had been gripped by the
torso and shaken, and that the skull fracture was likely caused by the use of blunt force against a
hard surface. Tr. 210-218. Dr. Calvert did not believe the injuries to be accidental and he
diagnosed M with “shaken baby syndrome.” Tr. 221-25.
Petitioner’s defense focused on whether Nelson, rather than petitioner, was responsible
for M’s injuries. Resp. Ex. 131. Trial counsel also challenged whether M’s injuries supported the
diagnosis of shaken-baby syndrome, though counsel did not consult or call any outside experts to
counter Dr. Calvert’s conclusions. Tr. 231-233, 241; Resp. Ex. 131 (affidavit of trial counsel
indicating that he reviewed materials provided at a conference and did not consult medical
The jury found petitioner guilty of one count of Assault in the First Degree and three
counts of Criminal Mistreatment in the First Degree. They acquitted petitioner of Assault in the
Second Degree and a remaining count of criminal mistreatment. Tr. 352-53. At sentencing, the
trial court imposed consecutive, upward departure terms for a total of 192 months’
imprisonment. Transcript of Sentencing Proceedings, Mar. 16, 2004, at 11-14.
Petitioner directly appealed his conviction and sentence. Resp. Ex. 102. The Oregon
Court of Appeals affirmed in a written opinion, and the Oregon Supreme Court denied review.
Resp. Ex. 105, 107-08. Petitioner also filed a petition for post-conviction relief (PCR) and
alleged claims of ineffective assistance of trial counsel based on the failure to obtain and present
expert testimony. Resp. Ex. 121 at 11-12.
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During the PCR proceedings, petitioner’s PCR counsel retained experts to review the
medical evidence and render opinions regarding M’s injuries and the diagnosis of shaken-baby
syndrome. PCR counsel encountered difficulty in obtaining some of M’s medical records and the
timely assistance of experts, and the PCR court denied counsel’s request for a trial continuance
to allow experts to review the evidence. Resp. Ex. 125-28; Resp. Ex. 135 at 4-6, 22. Ultimately,
the PCR court denied relief and found that trial counsel was reasonable in choosing a trial
strategy focused on the source of injury rather than the cause of injury. Resp. Ex. 135 at 32;
Resp. Ex. 136.
PCR counsel appealed the denial of the motion for continuance and did not appeal the
substance of the PCR court’s rulings. Resp. Ex. 137. The Oregon Court of Appeals affirmed
without opinion, and the Oregon Supreme Court denied review. Resp. Ex. 145-46.
On March 26, 2015, petitioner filed the instant petition seeking federal habeas relief
under 28 U.S.C. § 2254.
In Ground One of his federal pro se petition, petitioner asserts that his “conviction was
obtained by unconstitutional failure of the prosecution to disclose to the defendant evidence
favorable to the defendant.” (ECF #2) Respondent argues that this claim is non-exhausted and
procedurally defaulted, and petitioner agrees. Pet’s Br. at 6, n.1; 28 U.S.C. § 2254(b)(1)(A); see
also Baldwin v. Reese, 541 U.S. 27, 29 (2004); Duncan v. Henry, 513 U.S. 364, 365-66 (1995)
(per curiam). Accordingly, federal habeas review of this claim is barred by procedural default.
Coleman v. Thompson, 501 U.S. 722, 732, 735 n.1 (1991); Sandgathe v. Maass, 314 F.3d 371,
376 (9th Cir. 2002).
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In Ground Two of his federal petition, petitioner claims that “there are experts that we
could use to help use in our defense” and his PCR attorney “wanted time to allow two (2) experts
to help in my case. We just needed this time.” (ECF #2) Petitioner’s claim seemingly challenges
the PCR court’s denial of his request for continuance to allow experts to review the medical
evidence. Respondent maintains that a claim of PCR court error is not cognizable on federal
habeas review. Cooper v. Neven, 641 F.3d 322, 331-32 (9th Cir. 2011) (holding that postconviction court procedures cannot be asserted as a basis for relief in a federal habeas petition).
Petitioner agrees that a procedural decision of a PCR court is not reviewable. However,
petitioner argues that the court should construe Ground Two liberally as a claim of ineffective
assistance of PCR counsel to excuse the procedural default of a claim for ineffective assistance
of trial counsel. See Martinez v. Ryan, 566 U.S. 1 (2012). Petitioner argues that the
ineffectiveness of his PCR counsel prevented him from fully developing his claim that trial
counsel was ineffective for failing to present expert testimony. Petitioner maintains that he could
have “demonstrated the inadequacy of the state’s theories as to ‘shaken baby syndrome’” had
PCR counsel conducted an effective investigation. Pet. Br. at 8. Petitioner requests an
evidentiary hearing to present evidence of PCR counsel’s deficiency in presenting expert
testimony to the PCR court.
Under Martinez, the ineffective assistance of PCR counsel may serve as cause for the
procedural default of an ineffective assistance of counsel claim. For the Martinez exception to
apply, a petitioner must show that post-conviction counsel “was ineffective under the standards
of Strickland v. Washington” and that the underlying ineffective assistance of counsel claim is
“substantial” and “has some merit.” Martinez, 566 U.S. at 14; see also Strickland v. Washington,
466 U.S. 668 (1984) (ineffective assistance of counsel requires a showing of deficient
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performance and resulting prejudice); Runningeagle v. Ryan, 825 F.3d 970, 982 (9th Cir. 2016)
(“to find a reasonable probability that PCR counsel prejudiced a petitioner by failing to raise a
trial-level IAC claim, we must also find a reasonable probability that the trial-level IAC claim
would have succeeded had it been raised”). If a petitioner makes these showings, the federal
court may find cause to excuse the procedural default of an ineffective assistance of counsel
claim and review the claim on the merits. Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013);
Martinez, 566 U.S. at 13-14. The district court may hold an evidentiary hearing to assess whether
PCR counsel was ineffective and whether the underlying claim is substantial. See Dickens v.
Ryan, 740 F.3d 1302, 1321 (9th Cir. 2014) (en banc).
Assuming without deciding that Ground Two can be construed as liberally as petitioner
requests, petitioner does not meet the Martinez requirements. First, aside from asserting the
failure to conduct a “reasonable” investigation, petitioner does not explain how PCR counsel was
ineffective or deficient. Pet. Br. at 7-8. As recognized by petitioner, PCR counsel appreciated the
importance of expert assistance and retained medical experts to review the medical evidence.
Nonetheless, PCR counsel experienced difficulty in obtaining M’s x-rays, and the retained
experts were unable to review the medical evidence prior to the PCR trial date. The PCR court
denied counsel’s requests for additional subpoenas and a continuance of trial, and PCR counsel
had no additional medical evidence to present in the PCR proceeding. Resp. Ex. 125-28; Resp.
Ex. 135 at 23-27, 30. In light of this record, petitioner must specify how PCR counsel’s
investigation was unreasonable or what actions PCR counsel should have taken.
Second, petitioner fails to explain how he was prejudiced by the ineffective assistance of
either PCR or trial counsel. Petitioner contends that both PCR and trial counsel failed to obtain
and present expert testimony regarding whether M’s injuries were accurately diagnosed as
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shaken-baby syndrome. See Pet. Br. at 7-8; Resp. Ex. 121 at 11-12. However, as established by
the PCR record, the State’s case against petitioner relied primarily on the nature and extent of
M’s injuries and on Nelson’s testimony identifying petitioner as the only other person who cared
for M. Tr. 292-93, 297-304. As explained by the assistant district attorney who prosecuted
There was no dispute that the victim was injured. She was injured at different
times and those injuries included a skull fracture, broken leg, and broken ribs.
The main focus of my case was that these injuries were non-accidental injuries,
and Mr. Shreeve was the only one with access to the victim who could have
caused the injuries.
Dr. James Calvert testified that the victim’s injuries were intentionally caused,
and that is what was key to this case. It did not matter whether Dr. Calvert called
it Shaken Baby Syndrome. The point was that the injuries were intentionally
If [trial counsel] had cross-examined Dr. Calvert about the victim’s injuries not
being consistent with the triad of Shaken Baby Syndrome injuries, I probably
would have asked Dr. Calvert on re-direct, “Regardless of what you want to call
it, are the injuries consistent with accidental trauma or intentional trauma?”
Resp. Ex. 132.
Significantly, petitioner did not dispute the nature or extent of M’s injuries at trial.
Further, petitioner provided no explanation as to how M could have suffered a fractured skull,
broken ribs, or a chipped leg bone. Instead, petitioner’s defense focused on blaming Nelson for
M’s injuries. Tr. 310-14, 317-20. Even if trial counsel had presented expert testimony to counter
the diagnosis of shaken-baby syndrome, such testimony would not have supported his primary
defense theory and would not have diminished evidence of M’s injuries or the State’s theory of
who caused those injuries.
In sum, petitioner fails to establish ineffectiveness of PCR counsel or a “substantial”
claim of ineffective assistance of trial counsel to warrant an evidentiary hearing and federal
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habeas review of a procedurally defaulted claim under the Martinez exception. Dickens, 740 F.3d
at 1322 (“cause and prejudice” hearing on PCR counsel’s ineffectiveness requires a showing that
the underlying ineffective assistance claim is “substantial”).
Petitioner’s Petition for Writ of Habeas Corpus (#2) is DENIED and this case is
DISMISSED. A Certificate of Appealability is denied 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 __27th_ day of February, 2017.
_s/Michael J. McShane_______________
United States District Judge
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