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)

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