Reed v. Union County Community Corrections et al

Filing 48

OPINION AND ORDER: Petitioner's habeas corpus petition is DENIED, and this proceeding is DISMISSED, with prejudice. The Court declines to issue a Certificate of Appealability because 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 6/20/2017 by Judge Michael H. Simon. (kms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
KELLEYP. REED,
Case No. 2:15-cv-00813-SI
Petitioner,
OPINION AND ORDER
v.
UNION COUNTY COMMUNITY
CORRECTIONS, et al.,
Respondent.
ANTHONY D. BORNSTEIN
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
FREDERICK M. BOSS, Deputy Attorney General
SAMUEL A. KUBERNICK, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent

1 - ORDER AND OPINION

MICHAEL H. SIMON, District Judge.
Petitioner is currently under the post-prison supervision of Union County Community
Corrections. He brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the
reasons set forth below, Petitioner's Habeas Corpus Petition is DENIED, and this proceeding
DISMISSED.

BACKGROUND
In October 2004, a Union County grand jury charged Petitioner with one count of firstdegree rape, one count of attempted first-degree rape, two counts of first-degree sodomy, two
counts of first-degree unlawful sexual penetration, two counts of first degree sexual abuse, and
one count of tampering with a witness. The charges stemmed from his contact with the two
minor daughters of his former wife. A jury convicted Petitioner of Rape in the First Degree,
Sodomy in the First Degree, and Sexual Abuse in the First Degree as to the younger of the two
girls, and acquitted him of all other charges, including all charges related to the older of the two
girls.
The trial court sentenced Petitioner to 100 months of imprisonment, 140 months of postprison supervision, and a compensatory fine of $20,000. He directly appealed his convictions,
and the Oregon Court of Appeals vacated the compensatory fine. Upon resentencing, the trial
court changed the fine to an order of restitution, which Petitioner also appealed. The Oregon
Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review.
Petitioner sought post-conviction relief (PCR) on the basis that trial counsel was
ineffective, which the PCR court denied. PCR appellate counsel then filed "Section A" of a

2 - ORDER AND OPINION

Balfour Brief\ and Petitioner completed "Section B". The Oregon Court of Appeals affirmed

without opinion, and the Oregon Supreme Court denied review.
In his Petition for Writ of Habeas Corpus, Petitioner alleges the following grounds for
relief:
Ground One: Denial of effective assistance of counsel
Supporting Facts: Trial Counsel did not allow me to testify on my own behalf.
Trial Counsel did not call upon witnesses to testify on my behalf. Trial counsel
was provided with names of several witnesses but not make any attempt to contact
or interview them.
Ground Two: Conviction was based on no physical evidence and proof.
Conviction was coerced and forced to purger the allegations against the above
petitioner.
Supporting Facts: The victim has stated to many witnesses that she was forced
by her mother and sibling to make the claim that she abused the above petitioner.
Victim was promised monetary gifts by The Department of Children Services
agent, in exchange for saying she was abused by the petitioner. There are
recorded videotapes of the victim telling the DHS agent that she was making the
story up because she was instructed to do so by her Mother and Sibling. The
victim has told witnesses on several occasions that the DHS agent was giving her
gifts in exchange for saying she was abused, so she took the gifts and told the lies
as she was instructed.
Ground Three: Additional witnesses have come forward to advise they have
been told that the victim is admitting she was untruthful about the abuse.
Supporting Facts: Since 2005 to current date, the victim has told witnesses on
various occasions that she was never abused by the above petitioner and that her
Mother forced her to lie about the abuse. The victim has stated that the reason her
Mother was forcing her to lie, was due to the above petitioner, ending the
romantic relationship between himself and the victims Mother and she was angry
with him.

Respondent urges this Court to deny relief on the basis that Petitioner's claims are
procedurally defaulted. Petitioner acknowledges that his claims were not fairly presented to the

1 Balfour v. State of Oregon, 311 Or. 434, 452 (1991) (finding counsel may prepare a 'Section
A' statement of the facts, while appellant prepares a 'Section B' presentation of the issues,
allowing counsel who finds only frivolous issues exist on direct appeal to still meet constitutional
requirement of active advocacy without violating rules of professional conduct).
3 - ORDER AND OPINION

appropriate state courts, but argues that he is entitled to this Court's consideration of the merits
of his 6th Amendment ineffective assistance claim under the Martinez Exception. Martinez v.
Ryan, 566 U.S. 1 (2012). Petitioner also requests an evidentiary hearing.
DISCUSSION
I. Un-argued Claims

In his supporting brief, Petitioner does not argue the merits of any of the above claims
except ineffective assistance of counsel. As such, Petitioner has not met his burden of proof with
respect to the remaining claims in his petition, and the Court finds those claims to be waived. See
Renderos v. Ryan, 469 F. 3d 788, 800 (9th Cir. 2006) (holding that petitioner waived claims in
petition for writ of federal habeas corpus where counsel did not attempt to set forth the legal
standards for such claims or attempt to meet them).
II. Procedural Default

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. See 28 U.S.C. § 2254(d)(l); see also Or. Rev. Stat. § 138.550(3) (requiring all PCR
claims to be raised in first PCR proceeding). A state prisoner satisfies the exhaustion requirement
by "fairly presenting" his claim to the appropriate state courts at all appropriate stages afforded
under state law. Castille v. Peoples, 489 U.S. 346, 351 (1989); Baldwin v. Reese, 541
U.S. 27, 29 (2004). If the Petitioner procedurally defaults his available state remedies, habeas
relief is precluded absent a showing of cause and prejudice, or that the failure to consider the
defaulted claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501
U.S. 722, 750 (1991).

4 - ORDER AND OPINION

In his supporting brief, Petitioner concedes he failed to fairly present his claim that trial
counsel was ineffective for failing to call Joseph Dale Little to the stand. Nevertheless, he asks
the Court to grant habeas relief by finding cause for the default under the Martinez exception.
Martinez v. Ryan, 566 U.S. 1 (2012).

III. The Martinez Exception
"Inadequate assistance of counsel at initial-review collateral proceedings may establish
cause for a prisoner's procedural default of a claim of ineffective assistance at trial."
Martinez, 566 U.S. at 9. 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-trial-counsel claim is a substantial one, which is to say
that the prisoner must demonstrate that the claim has some merit." Martinez, 566 U.S. at 14.
Under the well-established Supreme Court precedent of Strickland v. Washington, a
prisoner alleging ineffective assistance of counsel must show that 1) "counsel's performance was
deficient," and 2) counsel's "deficient performance prejudiced the defense." 466 U.S. at 687.
"Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from
a breakdown in the adversary process that renders the result unreliable." Id. Judicial review of an
attorney's performance under Strickland is "highly deferential" and carries a "strong presumption
that counsel's conduct falls within the wide range of reasonable professional assistance." Id.
at 689. In particular, "strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable." Id. at 690.
A. PCR Counsel Was Not Ineffective Under Strickland

Petitioner argues PCR counsel was ineffective by failing to amend his petition for postconviction relief to include a claim that trial counsel's failure to call Joseph Dale Little as a

5 - ORDER AND OPINION

witness in his trial violated his Sixth Amendment rights. According to Petitioner, "There was no
valid strategic reason or justification to omit the claim in the first instance, and there certainly
was no acceptable justification for her failure to amend the petition to include it thereafter."
ECF 42 at 12.
The record does not contain an affidavit from PCR counsel that might assist in the
determination of whether she had a valid strategic reason for failing to amend the petition for
post-conviction relief, but it does contain enough other evidence to conclude that she did not.
The first reference to Joseph Dale Little in the PCR record appears two months after PCR
counsel filed a Formal Petition for Post-Conviction Relief on March 14, 2012. In "Petitioner's
Third Supplemental Exhibit List," dated May 24, 2012, PCR counsel submitted an Investigative
Report, as well as three new affidavits, including Joseph Dale Little's. Yet she did not file an
amended petition to add these new witnesses to the list of people Petitioner alleged trial counsel
was deficient for not calling to the stand. Nor did PCR counsel refer to Joseph Dale Little in her
"Memorandum in Support of Response to Defendant's Motion for Judgment on the Pleadings."
As a result of these failures, the PCR court sustained the state's objection to PCR counsel's
attempt to admit the Affidavit of Joseph Dale Little. See Or. Rev. Stat. 138.550(3) (grounds not
asserted in petition for post-conviction relief are "deemed waived").
Notwithstanding PCR counsel's error, Petitioner has not shown he was prejudiced by it
because, as discussed below, underlying trial counsel was not ineffective under Strickland. 466
U.S. at 687; see also Sexton v. Cozner, 679 F.3d 1150, 1159 (9th Cir. 2012), cert den, 133 S. Ct.
863 (2013) (holding that if petitioner cannot show ineffective assistance of underlying trial
counsel, PCR counsel could not have been ineffective for failing to raise the claim that
underlying trial counsel was ineffective).

6 - ORDER AND OPINION

B. Petitioner's Underlying Ineffective Assistance of Trial Counsel Claim is Not
Substantial

Petitioner argues trial counsel's failure to call Joseph Dale Little as a defense witness
amounted to "extreme Sixth Amendment ineffectiveness" because Joseph Dale Little would have
testified that the victim had a poor reputation for truthfulness, and that he heard her recant after
Petitioner was convicted. This argument is unpersuasive for several reasons.
First, trial counsel explained in his affidavit that he made a strategic decision to avoid
attacking the victim's reputation for truthfulness out of concern she may testify about other
occasions Petitioner had sexually abused her, thereby exposing Petitioner to additional criminal
charges. Trial counsel attested that he considered calling Joseph Dale Little's parents as defense
witnesses, but ultimately determined it was in Petitioner's best interest not to open the door on
cross examination to the fact Petitioner slept in the same bed as the victim inside the trailer home
he shared with the Little family. See Lordv. Wood, 184 F.3d 1083, 1095 (9th Cir. 1999) (holding,
"Few decisions a lawyer makes draw so heavily on professional judgment as whether or not to
proffer a witness at trial."); see also Davis v. Woodford, 384 F.3d 628, 650 (9th Cir. 2004)
(finding no ineffective assistance for failing to call mitigation witnesses where testimony would
have been negative or cumulative). This was a reasonable trial strategy, particularly given it
resulted in the jury acquitting Petitioner of all of the charges involving the older girl.
Second, the PCR court judge ruled that Joseph Dale Little's testimony regarding the
victim's poor reputation for truthfulness would not have been admissible at trial. Third, given the
chronological impossibility of proffering testimony at trial about events that allegedly happened
afterward, there is no merit to the argument that trial counsel should have called Joseph Dale
Little at trial for the purpose of establishing the victim recanted after Petitioner was convicted.

7 - ORDER AND OPINION

In conclusion, this Court rejects Petitioner's argument that trial counsel provided
ineffective assistance by failing to call Joseph Dale Little to the stand.

Because Plaintiffs

ineffective assistance of counsel claim is not a substantial one, he is unable to excuse his
procedural default.
IV. Evidentiary Hearing
Petitioner requests an evidentiary hearing to allow him to present expert testimony on the
standard of care necessary in post-conviction cases, and for Joseph Dale Little to testify, should
the Court deem it necessary. The written record--containing the entire transcript of Petitioner's
trial proceedings, as well as 35 post-conviction exhibits, and the parties' briefing-is sufficient to
conclude that Petitioner has failed to meet his burden of showing cause and prejudice to excuse
his procedural default. See Griffin v. Johnson, 350 F.3d 956, 966 (9th Cir. 2003) (finding no need
for evidentiary hearing where it would not produce evidence more reliable or probative than the
testimony and affidavits already presented). Accordingly, Petitioner's request for an evidentiary
hearing is denied.
CONCLUSION

Based on the foregoing, Petitioner's habeas corpus petition is DENIED, and this
proceeding is DISMISSED, with prejudice. The Court declines to issue a Certificate of
Appealability because 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.

v

DATED this'U? day of June, 2017

United States District Judge

8 - ORDER AND OPINION