Gonzalez v. Nooth

Filing 32

OPINION AND ORDER. The Petition for Writ of Habeas Corpus 2 is denied. The court does, however, issue a Certificate of Appealability as to petitioner's argued claim of ineffective assistance of counsel. Signed on 1/25/2017 by Judge Michael H. Simon. (kms)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON GUADALUPE GONZALEZ, Case No. 3:15-cv-02126-SI Petitioner, OPINION AND ORDER v. MARK NOOTH, Respondent. Anthony D. Bornstein Assistant Federal Public Def ender 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 Attorney for Petitioner Frederick M. Boss, Deputy Attorney General Kristen E. Boyd, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent 1 - OPINION AND ORDER SIMON, District Judge. Petitioner u.s.c. 2254 § convictions brings this habeas challenging for Sexual the Abuse corpus case legality in the First of pursuant his to 28 state-court Degree. the the Petition for Writ of Habeas Corpus reasons that follow, For (#2) is denied. BACKGROUND In 2009, with five Petitioner pleaded Degree the Marion County Grand Jury charged petitioner counts of admitted guilty in to to the three exchange remaining charges Sexual for Abuse criminal counts the and cap of First the conduct Sexual State's its in and Abuse agreement to Degree. ultimately in the First dismiss the sentencing recommendation at 150 months. During petitioner's sentencing, the judge stated following without objection: I'm going to read you something and this is from a gentleman that was a former police chief, he was an FBI special agent, he was a member of the FBI's first SWAT team and he's chief of the FBI' s behavioral science unit. He has a substantial history and expertise in child abuse, and this is what he says about pedophiles. They are rational, sadistic, often intelligent and almost invariably narcissistic. They see themselves as living in a realm somewhere above the rest of us in a place where the rules of normal society do not apply. The depth of this psychopathic evil is beyond comprehension of most normal people. I've seen it many times. A pedophile is arrested, a man from a comfortable, upper class neighborhood, suddenly all of his neighbors express shock and [disbelief]. He was such a fine, 2 - OPINION AND ORDER the upstanding man, a doting father. He even coached Little League. He can't possibly have done what he's accused of. What those good people don't fully comprehend is that as a pedophile, this man is a sexual abuser of children. He hurts children. That is what he is at his core. He hurts children because, to him, their suffering is of no consequence. It is a meaningless byproduct of behavior that makes him feel good and his own pleasure is more important to him than anything or anyone else. Invariably, even from behind prison bars, he will never concede that what he did was damaging to a child. No, he insists what he did was done of love and it is the rest of the world that doesn't understand. Reality is that this man's wife, his nice house in the suburbs, his coaching job, even his own children are props, the artifice that covers up and facilitates what he truly is. He continues to do what he does because that is what he cherishes above all else. What is real about him is his evil. Respondent's Exhibit 105, pp. 23-24. The judge also stated that "experts tell me that people who abuse children there is no rehabilitation for them, don't get cured of it." was Id at 26. they He indicated that although he inclined to sentence petitioner consecutively on all three counts for a total sentence of 225 months, 1 he would follow the State's recommendation and sentence petitioner to 150 months in prison. Id at 29. Petitioner took a direct appeal wherein he challenged the proportionality of his sentence under the Oregon Constitution, but of the decision Oregon without Court opinion Appeals and the affirmed Oregon the Supreme trial Court court's denied Either the sentencing judge or the court reporter mistakenly cited the upward figure as 220 months. 1 3 - OPINION AND ORDER review. State v. Gonzalez, 242 Or. App. denied, 350 Or. 717, 260 P.3d 494 604, 255 P.3d 676, (2011). Petitioner next filed for post-conviction relief Malheur County. rev. ("PCR") in manner petitioner asserted that his attorney had performed in a trial Among his claims, constitutionally ineffective when he failed to object to the sentencing judge's reliance on an expert letter that neither party submitted. PCR court denied relief on this claim, The finding that while there appeared to be "some bias" on the part of the sentencing judge, he also relied upon petitioner's sentence. several other bases when Respondent's Exhibit 12 9, p. imposing 1 7. The Oregon Court of Appeals affirmed the PCR court's decision without opinion, and the Oregon Supreme Court denied review. Nooth, 271 Or. App. 377, 353 P.3d 618, rev. Gonzalez v. denied, 357 Or. 640, 360 P.3d 523 (2015). On November 12, 2015, petitioner filed his Petition for Writ of Habeas Corpus in which he raises three grounds for relief: 1. The sentencing court erred in imposing a mandatory minimum sentence; 2. Counsel at sentencing failed to: (a) object to the judge prosecuting the case; (b) object to an anonymous expert's opinion being read into the case; ( c) demand cross examination of the expert; and (d) verify credentials of the expert; and 3. The sentencing judge cornrni tted misconduct when he determined to practice law from the bench insofar as he introduced his own expert witness at the sentencing, thus taking on the role of a prosecutor. Respondent asks the court to deny relief on the Petition 4 - OPINION AND ORDER because: Three (1) to petitioner failed to fairly present Grounds One and Oregon's and defaulted; state the (2) courts, PCR leaving court's them denial of procedurally Ground Two is shall not be correct and entitled to deference. DISCUSSION I. Standard of Review An application for a writ of habeas corpus granted unless adjudication of the claim in state court resulted in a decision that was: involved an unreasonable application of, clearly established Federal law, as determined Court or (2) by the "contrary ( 1) Supreme of to, the or United States;" "based on an unreasonable determination of the facts in light of the u.s.c. evidence presented in the State court proceeding." § 2254(d). correct, and A state court's findings of fact are presumed petitioner bears the burden of rebutting presumption of correctness by clear and convincing evidence. U.S.C. A § 28 the 28 2254 (e) (1). state established court decision precedent if the is "contrary state court clearly to 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." Under the Wi 11 i ams v. "unreasonable Tay 1 or, 5 2 9 U. S . application" 5 - OPINION AND ORDER 3 62 , clause, a 4 0 5- 0 6 (2 0 0 0 ) . federal habeas court may grant relief "if the state court identifies the correct governing legal principle from [the but applies that principle at 413. unreasonably prisoner's clause case." requires incorrect § 2254 (d) or Id the state erroneous. Supreme Court's] The court the facts of the "unreasonable application" decision at Id to decisions 410. to be more Twenty-eight than U.S.C. "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 precedents. It goes no farther." [the Supreme] Harrington v. Court's Richter, 562 grounds for U.S. 86, 102 (2011). II. Unargued Claims As previously noted, relief in his Petition. petitioner raises three In his supporting memorandum, however, petitioner chooses to brief only his Ground Two claim that trial counsel failed to object to the sentencing court's reliance on an unidentified expert opinion concerning sexual offenders. Petitioner does not argue the merits of his remaining claims, nor does he address any of respondent's arguments as to why relief on these claims should carried his burden claims. See Silva v. be denied. of proof Woodford, As with such, respect petitioner to these has not unargued 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 has 6 - OPINION AND ORDER examined them based upon the existing record and determined that they do not entitle him to relief. III. Failure to Object at Sentencing With respect to petitioner's claim that counsel should have objected to the sentencing court's reliance upon the opinion of an unidentified expert, no Supreme Court precedent is directly on point that corresponds to the facts of this case. the court the Court Supreme uses general to two-part determine whether ineffective assistance of counsel. U.S. 111, counsel's 122-23 First, performance reasonableness. ( 1984) . (2009) Due performance, fell to the petitioner v. by the received Mirzayance, 556 petitioner must show that his an objective Washington, difficulties courts must established Knowles below Strickland v. test As a result, indulge a in standard 466 U.S. 668, evaluating of 686-87 counsel's 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. whether the petitioner probability that, but The appropriate test for prejudice is can for show "that counsel's there is a unprofessional reasonable errors, result of the proceeding would have been different." the Id at 694. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the proceeding. Strickland's general standard is 7 - OPINION AND ORDER Id at 696. When 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, he affidavit from his trial attorney on the issue. introduced Counsel stated as follows: . I would note that the Judge did express an opinion relating to recidivism in sex offenders and expressed his belief that no therapy would deter future conduct of this sort, however there was absolutely no opportunity at that point to call witnesses in rebuttal. Had I known in advance of [the Judge's] bias I certainly would have sought some rebuttal evidence with respect to his opinions and/or I would have moved to recuse him from the case prior to the plea. I sincerely feel that [the Judge's] predispositions in this case did seriously prejudice him in.imposing the sentences that he did. Respondent's Exhibit 120, p. 2. The PCR court resolved the issue in a reasoned decision: Well, it appears to me I read the sentencing transcript that was provided. Because this case arose out of Marion County it's unique in the sense that I know the people involved in the case. I'm very familiar with the defense counsel and also am very familiar with [the Judge]. It appeared to me that the Judge may have had a bit of preconceived bias towards offenders of [ pet it ion er ' s ] type , but that ' s a r is k, qui[te] candidly, that Defendants run when they come into court. [Petitioner's] memorandum dealt extensively with something that isn't part of post conviction relief, so counsel knows why he didn't bring it up, I just want to mention[] 8 - OPINION AND ORDER an it, the fact that [the Judge] should have recused himself, and maybe he should have. But certainly [defense counsel] was unaware of anything like that. I read over the transcript in light of the fact that it appeared there was some bias there on behalf of the Judge. [I] f that external report were the only basis upon which the Judge imposed the sentence he did, I might feel a little more strongly that your case would have greater impact. But I agree with [the State's PCR attorney], it is not the only thing that the Judge relied upon. There were a whole number of things, including arguments of the District Attorney and presentation of other victims, and notwithstanding Dr. Davis' report that there had been other victims of this gentleman, and I think clearly he was facing, as [the State's PCR attorney] just indicated, without the Plea Agreement, five counts of possibly 75 month[s] being all run consecutive. Even at sentencing he was potentially looking at 225 months, which both of you agree, the Judge indicated he wanted to impose, but because the District Attorney had stipulated to 150 months, that was what he imposed. I find from the evidence presented that Mr. Gonzalez failed to prove by a preponderance of the evidence that he received ineffective assistance of counsel. Respondent's Exhibit 129, pp. 16-18. Petitioner asserts that despite his attorney's surprise at the trial court's reliance on the unidentified expert, should have objected, to locate and call counsel requested a continuance to enable counsel rebuttal 9 - OPINION AND ORDER experts, and moved to recuse the trial Judge due to bias. 2 court's decision, because the counsel's sentencing expert opinion reasons that He claims that, failure Judge made just prior to the expert to a contrary to the PCR object point prejudiced recounting of him the imposing sentence. opinion formed a key He therefore basis for the Judge's view of the appropriate punishment in that case. The PCR court recognized the apparent bias of the sentencing Judge as well as the impropriety of considering the unidentified expert's opinion. It therefore focused upon the prejudice prong of Strickland, reasoning that the sentencing Judge's reference to the unidentified where the factors in Judge expert also imposing did relied the not affect upon a 150-month petitioner's variety of sentence other, A review sentence. proper of the record reveals that petitioner not only acknowledged abusing the minor victim between 20 polygrapher as well as and 30 times, but also told both a a psychosexual evaluator of additional, uncharged sexual abuse involving other minor children from his family leading petitioner within his had own to a a psychosexual "long history family." of finding sexual Respondent's Respondent's Exhibit 116, p. of pedophilia contact Exhibit 111, where with minors pp. 18-19; 9; Respondent's Exhibit 124, p. 20. The sentencing Judge was also perturbed by the fact that many of the victim's family members appeared more concerned for 2 As the PCR court noted, recusal was not at issue in the PCR proceedings, Respondent's Exhibit 129, p. 17, and petitioner did not base his ineffective assistance of counsel claim on any failure of counsel to move for recusal. Respondent's Exhibit 131; Respondent's Exhibit 133. 10 - OPINION AND ORDER petitioner's well-being at sentencing than that of his victim. Respondent's Exhibit 105, pp. 24-25. Given court, the totality including familial child of the petitioner's abuse, he record admitted failed before and to the lengthy establish sentencing history in his of PCR proceedings that he likely would have received a lesser sentence had counsel unidentified objected expert to the opinion. court's At a consideration minimum, the court of the cannot conclude that the PCR court's reasoned decision was so erroneous that no reasonable jurist could agree with it. As a result, the PCR court's decision is neither contrary to, nor an unreasonable application of, clearly established federal law. CONCLUSION For the reasons identified above, Habeas Corpus ( #2) is denied. the Petition for Writ of The court does, however, issue a Certificate of Appealability as to petitioner's argued claim of ineffective assistance of counsel. IT IS SO ORDERED. /'V DATED this -iS day of January, 201 7. ~~ United States District Judge 11 - OPINION AND ORDER

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