Bailey v. Myrick

Filing 71

OPINION AND ORDER: The Amended Petition for Writ of Habeas Corpus 14 is denied. The Court does, however, issue a Certificate of Appealability on the Ground Two(A-C) ineffective assistance of counsel claims he argues in his briefing. (See 16-page opinion for more information.) Signed on 6/16/2020 by Judge Marco A. Hernandez. (dsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DOMINIC BAILEY,
Case No. 2:15-cv-01423-HZ
Petitioner,
OPINION AND ORDER
v.
JOHN MYRICK,
Respondent.
Susan F. Wilk
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
Ellen F. Rosenblum, Attorney General
Samuel A. Kubernick, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent

1 – OPINION AND ORDER

HERNANDEZ, District Judge.
Petitioner brings this habeas corpus case pursuant to 28
U.S.C. § 2254 challenging the legality of his Marion County Rape
convictions. For the reasons that follow, the Amended Petition
for Writ of Habeas Corpus (#14) is denied.
BACKGROUND
Some of the pertinent background facts of this case are set
out by the post-conviction court’s General Judgment:
Until 8 years of age, LF lived with her
mother and siblings. Her mother, at that
point, was already neglecting the children,
doing drugs, not making them go to school,
and [had] become involved with Petitioner. LF
was removed at age 8, and returned to her
mother at 9 years of age. Her mother married
Petitioner. They moved to an apartment
complex off Salem Heights, and Petitioner’s
family also lived in the same complex, so he
was in and out of both apartments.
LF didn’t like Petitioner. On an afternoon
where she had earlier been at a friend’s
home, she came home, and the only other
person in the apartment was Petitioner. She
went to her room and was on her bed when
Petitioner came in, pushed her on the bed,
restrained her, and removed her underwear.
She cried and screamed, and he said to be
quiet or he’d hurt her. He had vaginal
intercourse with her, and told her not to
tell or he’d kill her and her mother. He then
left. She was 11 years old. She believed the
threat and didn’t tell anyone.
Weeks after this happened, she was placed
into foster care and never went back to live
with her mother. Her mother eventually
relinquished her parental rights. When [LF]
was in a good foster home and in counseling,
she disclosed the event. At that point,
Petitioner was in jail.

2 – OPINION AND ORDER

Respondent’s Exhibit 129, p. 1.
As a result of the foregoing, the Marion County Grand Jury
indicted Petitioner on two counts of Rape in the First Degree.
During

the

examined
Counsel’s

ensuing

the

trial,

detective

Petitioner’s

assigned

cross-examination

of

to

trial

the

Detective

attorney

case,
Kelly

Sean

crossKelly.

included

the

following exchange:
Q:
Now, October 12 of 2011, so last fall,
you interviewed [Petitioner], right?
A.

Yes, I did.

Q.

Did he confess that he did this?

A.

No.

Q.

Strongly disagreed with that, right?

A.

Yes, he did.

Q.

No further questions.

Respondent’s Exhibit 102, p. 130.
At this point, the prosecutor advised the judge that she had
a matter for the court. Once the judge excused the jury, and
after defense counsel interjected that she had no witnesses to
present, the State announced its intention to offer Petitioner’s
prior felony convictions for impeachment purposes pursuant to
State v. Dishman,1 148 Or. App. 404, 939 P.2d 1172 (1997), a case
with which defense counsel was unaware:
1 Pursuant to OEC 806, “When a hearsay statement . . . has been admitted in
evidence, the credibility of the declarant may be attacked, and if attacked,
may be supported by any evidence which would be admissible for those purposes
if the declarant had testified as a witness.” Dishman applied this rule to
out-of-court statements of criminal defendants even where those defendants
elected not to testify at their trials. 148 Or. App. at 406-07.

3 – OPINION AND ORDER

State:
Your
Honor,
it’s
the
State’s
intention to now offer the defendant’s prior
impeachable felony convictions and proffer to
the Court State v. Dishman which basically
indicates
that
if
the
defense
elicits
statements by the defendant, that those
statements are subject to the same type of
cross-examination and impeachment that they
would be subject to had the defendant chosen
to testify. And I’d like to give the Court an
opportunity to read State v. Dishman.
Court:
Do you have a copy for [defense
counsel]?
State:
No. I’m sorry, my trial notebook
just has the case.
Court:

Just has this. Okay.

State:
I’m sure you’re familiar with State
v. Dishman.
Defense:

No.

Id at 131-32.
The trial judge took a recess to review the applicable law
and, when he returned, allowed the parties to orally argue the
issue. Following argument, the judge expressed his concern “that
the

defendant

has

a

state

and

constitutional

right

not

to

testify, and that that one statement . . . is such a sliver when
you’re

balancing

the

two,

his

constitutional

right

with

the

State’s right, to impeach a witness with prior convictions it
seems like it’s so prejudicial.” Id at 136. The trial judge noted
that Petitioner had already entered a plea of not guilty, and
that the court had made the jury aware of the plea such that the
hearsay testimony at issue did not divulge information of which
the jury was otherwise unaware. Because the issue arose on a
Friday afternoon, the judge permitted the parties to develop
4 – OPINION AND ORDER

briefing on this “important issue” issue over the weekend. Id at
139. Before court adjourned, defense counsel reiterated that she
did not intend to present any witnesses. Id.
When the trial resumed on Monday morning, defense counsel
withdrew her objection to the admission of Petitioner’s prior
convictions for purposes of impeaching the hearsay testimony.
Specifically, counsel advised the Court, “We withdraw the motion
and believe that the prior conviction judgments can come in and
[Petitioner] is planning to testify so that would render the
whole issue moot anyway.”

Id at 147.

Accordingly, the

judge

allowed the State to admit Petitioner’s prior convictions for
purposes

of

impeachment

pursuant

to

OEC

609,

and

the

State

introduced Petitioner’s prior judgments for Failure to Register
as a Sex Offender, Theft in the Second Degree, Unauthorized Use
of a Vehicle, Felony Eluding, Felon in Possession of a firearm,
Assault in the Third Degree, and Burglary in the Second Degree.
Respondent’s Exhibit 103, pp. 7-8.
When the defense called Petitioner to testify, counsel noted
that one of his convictions was for failing to register as a sex
offender. She then asked, “how old were you when you became a sex
offender?” Id at 19. Petitioner estimated that he was 14 years of
age at the time, and stated that he was enrolled in middle school
at the time. Id. Counsel did not pursue that matter further, and
Petitioner flatly denied ever doing anything of a sexual nature
to LF. He stated, “It never happened, I didn’t do it. Never took
place.” Id at 20.

5 – OPINION AND ORDER

The jury convicted Petitioner on both counts, and the court
merged Petitioner’s convictions and imposed a 300-month sentence.
Petitioner

directly

appealed

his

sentence

asserting

that

it

amounted to cruel and unusual punishment. Respondent’s Exhibit
105. The Oregon Court of Appeals summarily affirmed the trial
court’s sentence, and the Oregon Supreme Court denied review.
Respondent’s Exhibits 115 & 116.
Petitioner next filed for post-conviction relief (“PCR”) in
Umatilla

County,

prejudice.

but

voluntarily

Respondent’s

dismissed

Exhibits

111-114.

that

case

without

Thereafter,

he

initiated the current action which the Court subsequently stayed
so Petitioner could proceed with a second PCR action in Umatilla
County where he alleged, in part, that his trial attorney was
ineffective with respect to her cross-examination of Detective
Kelly and her handling of the admission of his prior judgments.
The

PCR

court

denied

relief

on

all

of

Petitioner’s

claims.

Respondent’s Exhibit 129. The Oregon Court of Appeals affirmed
that decision without issuing a written opinion, and the Oregon
Supreme Court denied review. Respondent’s Exhibits 133 & 134.
On August 13, 2019, this Court lifted the stay in this 28
U.S.C.

§

2254

habeas

corpus

case

and

Petitioner,

with

the

assistance of appointed counsel, filed an Amended Petition that
raises two grounds for relief. Ground One consists of a claim of
trial court error based upon the admission of Petitioner’s prior
judgments of conviction. Ground Two contains 11 sub-claims and
faults the performance of trial counsel with respect to
admission

of

the

prior

6 – OPINION AND ORDER

conviction

evidence,

the

purported

deficiencies

with

the

voir

dire

proceedings

and

within

the

Indictment, counsel’s purported failure to properly investigate
the case, and her failure to move for a judgment of acquittal.
Respondent asks the Court to deny relief on the Petition because:
(1) Petitioner argues only a portion of Ground Two, and he has
not sustained his burden of proof with respect to his unargued
claims; and (2) the PCR court’s decision with respect to the
argued claims was not objectively unreasonable.
DISCUSSION
I.

Standard of Review
An application for a writ of habeas corpus shall not be

granted unless adjudication of the claim in state court resulted
in

a

decision

that

was:

(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) "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 "contrary to . . .
clearly established precedent if the state court applies a rule
that contradicts the governing law set forth in [the Supreme
Court's] cases" or "if the state court confronts a set of facts
that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different
from [that] precedent." Williams v. Taylor, 529 U.S. 362, 405-06
(2000).
Under the "unreasonable application" clause of § 2254(d)(1),
a federal habeas court may grant relief "if the state court
7 – OPINION AND ORDER

identifies
Supreme

the

correct

Court's]

governing

decisions

but

legal

principle

unreasonably

from

[the

applies

that

principle to the facts of the prisoner's case." Id at 413. The
"unreasonable

application"

clause

requires

the

state

court

decision to be more than incorrect or erroneous. Id at 410.
Twenty-eight U.S.C. § 2254(d) "preserves authority to issue the
writ in cases where there is no possibility fairminded jurists
could disagree that the state court's decision conflicts with
[the

Supreme]

Court's

precedents.

It

goes

no

farther."

Harrington v. Richter, 562 U.S. 86, 102 (2011).
Twenty-eight
“challenge
attempt

to

substantial

the

U.S.C.

§

substance

show

that

evidence

2254(d)(2)
of

those

in

the

the

state

findings
state

allows

a

court’s

were

court

not

petitioner

to

findings

and

supported

by

record.”

Hibbler

v.

Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). A federal habeas
court cannot overturn a state court decision on factual grounds
“unless

objectively

unreasonable

in

light

of

the

evidence

presented in the state-court proceeding.” Miller-El v. Cockrell,
537 U.S. 322, 340 (2003). This is a “‘daunting standard—one that
will be satisfied in relatively few cases,’ especially because we
must

be

‘particularly

deferential

to

our

state-court

colleagues.’” Hernandez v. Holland, 750 F.3d 843, 857 (9th Cir.
2014) (quoting Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.
2004)).
II.

Unargued Claims
In this case, Petitioner argues that his trial attorney was

constitutionally ineffective when, due to her ignorance of the
8 – OPINION AND ORDER

law, she allowed evidence of Petitioner’s prior convictions to be
admitted at trial and elicited damaging testimony from
Where Petitioner

him.2

does not argue the merits of his remaining

claims, he has not carried his burden of proof with respect to
these unargued claims. See Silva v. Woodford, 279 F.3d 825, 835
(9th Cir. 2002) (Petitioner bears the burden of proving his
claims). Even if

Petitioner had briefed the merits of these

claims, the Court does not find from its review of the record
that the unargued claims would entitle Petitioner to relief.
III. Ineffective Assistance of Counsel
Petitioner

argues

that

counsel’s

handling

of

the

prior

conviction evidence was not competent such that he is entitled to
a new trial. The Court uses the general two-part test established
by the Supreme Court to determine whether Petitioner received
ineffective assistance of counsel. Knowles v. Mirzayance, 556
U.S. 111, 122-23 (2009). First, Petitioner must show that his
counsel's

performance

fell

below

an

objective

standard

of

reasonableness. Strickland v. Washington, 466 U.S. 668, 686-87
(1984).

Due

to

the

difficulties

in

evaluating

counsel's

performance, courts must indulge a strong presumption that the
conduct falls within the "wide range of reasonable professional
assistance." Id at 689.
Second, Petitioner must show that his counsel's performance
prejudiced the defense. The appropriate test for prejudice is
2

Petitioner fails to identify in his briefing which of the claims from his
Amended Petition he chooses to argue. Respondent believes that Petitioner
argues Grounds Two(A-C), a characterization with which Petitioner does not
disagree. This leaves Grounds One and Two(D-K) unargued.

9 – OPINION AND ORDER

whether

Petitioner

can

show

"that

there

is

a

reasonable

probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Id at 694.
A reasonable probability is one which is sufficient to undermine
confidence

in

the

outcome

of

the

trial.

Id

at

696.

When

Strickland's general standard is combined with the standard of
review governing 28 U.S.C. § 2254 habeas corpus cases, the result
is a "doubly deferential judicial review." Mirzayance, 556 U.S.
at 122.
During Petitioner’s PCR proceedings, trial counsel submitted
a Declaration in which she explained her rationale surrounding
the admission of the criminal history evidence:
2.
Petitioner alleges that I erroneously
opened the door to evidence related to his
prior criminal history because I asked the
law enforcement officer about petitioner’s
denial that he committed the crimes for which
he was charged.
3.
When I asked that series of questions to
the officer, it was done in the heat of the
moment. I was just hoping to slip it in.
4.
When the court gave us time over the
weekend to brief the issue of whether or not
petitioner’s prior convictions should come
in, I was prepared to do that and to present
my argument on undue prejudice.
5.
However, petitioner decided that he did
want to testify, after all. Petitioner was a
challenging client. Prior to and during trial
he had gone back and forth on whether he
wanted
to
testify.
Ultimately,
after
considering it for the weekend, he decided
that he wanted to testify.
6.
In my discussions
with petitioner,
petitioner seemed to think the jury would not
10 – OPINION AND ORDER

hold his past against him, and that such a
concern was not something to worry about.
7.
This was similar to his thinking that
if, during the time frame of the charges, he
lived for part of that time with a woman
other than the child’s mother, and that part
of the time he was in custody, that that
would prove he could not have had contact
with the child. But there never was an alibi
for the whole time frame where contact with
the child was impossible, and that did not
seem to concern him, either.
8.
It
was
evident
to
me
from
our
conversations
that
petitioner
was
just
certain that if he said he did not do it, he
would be believed. It was like he thought the
jury would find him so charming they would
never doubt his word. He would get angry when
I tried to disabuse him of such ideas.
9.
Whether or not petitioner testified was
always up to the petitioner, and I informed
petitioner of his control over this choice. I
always tell my clients that if they testify,
their criminal history, as to felonies and
some misdemeanors, will come in. I tell them
that the purpose of the criminal history
coming in is to challenge their credibility,
so if they testify, they can explain the
circumstances if they want to, so the jury
might not think it is so bad.
10. I also tell my clients, including
petitioner, that juries often want to hear
from the defendant that they did not do the
thing they are accused of.
11. Because petitioner elected to testify, I
presented
no
argument
that
his
prior
impeachable convictions should not come in.
There was no reason to do so.
12. We had already agreed with the state to
stipulate to jail records showing that
petitioner was in custody at certain times.
This was part of the alibi defense that we
presented. The jury was going to know,

11 – OPINION AND ORDER

pursuant to that defense, that petitioner had
prior convictions.
13. Petitioner insisted on using these jail
records. He knew that doing so would mean
that the jury would know that he had a
criminal record. I told him that those times
in custody would not explain his whereabouts
on other times, and that the jury could think
he had access to the child when he was out of
custody. He still insisted on presenting to
the jury this evidence of his time in jail.
Respondent’s Exhibit 127, pp. 1-3.
The PCR court found counsel’s Declaration to be credible. It
concluded that given Petitioner’s intent to testify, “there was
no good reason for trial counsel to continue her objections to
the

prior

convictions

reasonably

in

evidence.”

Respondent’s

coming

withdrawing

her

Exhibit

in”

and

objection
129

p.

that
to
3.

counsel
the
With

“acted

impeachment
respect

to

counsel’s questions to Detective Kelly that potentially opened
the door to the admission of Petitioner’s criminal history, the
PCR court found:
Although it appears that trial counsel was
not
familiar
with
State
v.
Dishman,
Petitioner has not proven that a reasonable
attorney familiar with Dishman, would not
have asked the same questions. The state had
offered its case including the testimony of
LF. If Petitioner had not testified, as
originally indicated, there would have been
no evidence before the jury that Petitioner
was denying the
events unless it was
solicited from Detective Kelly. The trial
judge did not rule that the questions opened
the door to the introduction of Petitioner’s
criminal history and reserved ruling until
the parties could brief the issue over the
weekend.
The
issue
became
moot
when
Petitioner chose to testify.

12 – OPINION AND ORDER

Petitioner
has
also
failed
to
prove
prejudice.
Because
Petitioner
chose
to
testify, the issue of the admission of
Petitioner’s prior criminal history became
moot. They were admissible when Petitioner
testified. There is no evidence that the
potential
introduction
of
the
criminal
history had any impact o[n] Petitioner’s
decision to testify.
Id at 3-4.
Petitioner asserts that this decision not only contained an
unreasonable determination of the facts, but was contrary to, and
an unreasonable application of, clearly established Supreme Court
precedent. He contends that the PCR court “contrived” a strategic
reason for counsel’s questions by envisioning a scenario where an
attorney familiar with Dishman might have asked Detective Kelly
the same questions, and that it overlooked the fact that his
decision to testify was not knowing and voluntary because counsel
had already opened the door to the admission of his criminal
history. He maintains that counsel was ignorant of the Dishman
precedent

that

proceeded

to

despite

was

cover

twice

15

years

her

old

tracks

previously

by

advising

at

the

having
the

time
her

trial

of

trial,

client

and

testify

court

that

she

failed

the

defense would be presenting no witnesses.3
Counsel’s
understand

that

performance
eliciting

was

lacking

hearsay

where

statements

of

her

to

client’s

innocence potentially had the effect of opening the door to his
3

Petitioner also argues that counsel was ineffective for inquiring at what
age Petitioner became a sex offender, but he did not fairly present such a
claim during his PCR proceedings, leaving it procedurally defaulted. See Rose
v. Lundy, 455 U.S. 509, 519 (1982); see also Respondent’s Exhibits 118, 130,
132. Petitioner’s assertion that such a claim is somehow subsumed within the
claims he did argue is not persuasive because he did not give Oregon’s state
courts a fair opportunity to address this claim.

13 – OPINION AND ORDER

criminal history. The PCR court did not find to the contrary, and
instead concluded that Petitioner was not entitled to relief for
two reasons: (1) a reasonable attorney familiar with Dishman
might ask the same questions; and (2) Petitioner’s decision to
testify was a voluntary one, and mooted the evidentiary issue.
Even assuming (without deciding) that the PCR court was
wrong in its determination that an attorney familiar with Dishman
might ask the same questions of Detective Kelly,

the record

reveals that Petitioner testified voluntarily and without regard
to a potentially adverse evidentiary ruling. Petitioner’s primary
contention is that he could not have made his decision to testify
knowingly

and

voluntarily

where

his

attorney

had

potentially

opened the door to the admission of his criminal history through
her own error, and where the trial court had not yet issued a
ruling on the admissibility of his criminal history.4 The record
in

this

instead,

case,

however,

establishes

does

that

not

support

Petitioner

his

argument

elected

to

and,

testify

voluntarily.
Counsel’s Declaration

revealed that Petitioner had

“gone

back and forth” both before and during trial about whether to
testify,

ultimately

concluded

4

that

the

jury

would

find

him

The trial judge appeared skeptical that the prior conviction evidence would
be admissible because the statements elicited from Detective Kelly did not
appear to tell the jury anything it did not already know, while an evidentiary
ruling in the State’s favor would allow the admission of evidence that was “so
prejudicial” to the defense. Respondent’s Exhibit 102, p. 136. Despite the
judge’s clear reservations about the admissibility of the evidence, Petitioner
nevertheless elected to testify. These actions are consistent with counsel’s
Declaration that Petitioner did not believe the jury would hold his prior
convictions against him, especially in light of what he believed would be his
own compelling testimony.

14 – OPINION AND ORDER

credible despite his criminal history if he testified, and became
angry with counsel when she tried to disabuse him of what she
perceived to be overly optimistic thinking. Respondent’s Exhibit
127. Not only did the PCR court find this Declaration to be
credible, but Petitioner presented no countervailing evidence on
this point leading the PCR court to find that “[t]here is no
evidence that the potential introduction of the criminal history
had

any

impact

Respondent’s

o[n]

Exhibit

Petitioner’s

129,

p.

4.

decision

These

were

not

to

testify.”

unreasonable

findings, and the fact that counsel had advised the trial court
prior

to

the

presenting
findings.

weekend

any
Taking

recess

witnesses
the

is

findings

that

the

defense

insufficient
as

true,

to

would

not

overcome

Petitioner

be
the

fails

to

establish that he suffered prejudice where he voluntarily decided
to testify in his own defense, thereby opening the door to his
criminal

history

for

impeachment

purposes.

For

all

of

these

reasons, Petitioner is not entitled to habeas corpus relief.
///
///
///
///
///
///
///
///
///
///
15 – OPINION AND ORDER

CONCLUSION
For the reasons identified above, the Amended Petition for
Writ of Habeas Corpus (#14) is denied. The Court does, however,
issue

a

Certificate

ineffective

of

assistance

Appealability
of

counsel

on

claims

the
he

Ground
argues

Two(A-C)
in

his

briefing.
IT IS SO ORDERED.
DATED this

day of June, 2020.
_______________________________
Marco A. Hernandez
United States District Judge

16 – OPINION AND ORDER