Acosta v. Mrrck et al

Filing 79

OPINION AND ORDER: The Court DENIES the Amended Petition for Writ of Habeas Corpus and DISMISSES this action. The Court DENIES a certificate of appealability. (See 23-page opinion for more information.) Signed on 8/7/2019 by Judge Anna J. Brown. (dsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
THOMAS P. ACOSTA,
Civil No. 2:16-cv-02031-BR
Petitioner,
OPINION AND ORDER

v.
BRIGETTE AMSBERRY, Superintendent,
Columbia River Correctional Institution,
Respondent.
TODD H. GROVER
Ward Grover & Ash
354 NE Irving Avenue
Bend, OR 97701
Attorney for Petitioner
ELLEN F. ROSENBLUM
Attorney General
JAMES M. AARON
Assistant Attorney General
Department of Justice
Salem, OR 97301
Attorneys for Respondent

1 - OPINION AND ORDER -

BROWN, Senior Jµdge.
Petitioner, an inmate in the custody of the Oregon Department
of Corrections,

brings this habeas corpus action pursuant to 28

U.S.C. § 2254.

For the reasons that follow, the Court DENIES the

Amended Petition for Writ of Habeas Corpus (ECF No. 34).
PROCEDURAL BACKGROUND

In

January

2012,

a

Lincoln

County

grand

jury

indicted

Petitioner on sixteen different charges, including forcible sexual
offenses and acts of domestic violence, all against Petitioner's
girlfriend.

Resp.

Exh.

101.

The charges were alleged to have

occurred on or about December 15, 2011, in Lincoln County.

Resp.

Exh. 101.
While Petitioner's case was awaiting trial, the victim died in
an unrelated car crash.

The prosecutor moved in limine to be

allowed to offer various hearsay statements made by the victim
before her death.

Following an extensive hearing on the matter,

the trial judge denied the motion except as to statements allowed
under Oregon Rule of Evidence 803 (18) (a),
complaint of

sexual misconduct

prohibition on hearsay.
sixteen charges,

which provides that a

is not excluded by the general

The state then moved to dismiss ten of the

leaving Count 1 -

Sodomy in the First Degree,

Count 5 - Sexual Abuse in the Second Degree, Count 8 - Coercion,
and Counts 11, 12, and 13 - Assault in the Fourth degree.

2 - OPINION AND ORDER -

The case was tried to a jury.

Following the state's evidence,

petitioner moved for a judgment of acquittal on all charges.

The

state conceded it had failed to prove Coercion, so the trial judge
granted a judgment of acquittal as to C6unt 8.

The trial judge

denied the motion as to the remaining charges.
The jury found Petitioner not guilty of one of the charges of
Assault in the Fourth Degree, but otherwise found him guilty of the
remaining counts.

The trial judge merged the verdicts of Sodomy in

the First Degree and Sexual Abuse in the Second Degree into a
single conviction for Sodomy, and merged the two counts of Assault
in the Fourth Degree into a single conviction for one count of
Assault.

The court sentenced Petitioner to one year in jail for

the Assault conviction and the mandatory minimum of 100 months of
imprisonment for the Sodomy count, to be served consecutively.
Petitioner appealed,
motion for

judgment of acquittal.

affirmed without
review.

assigning error to the denial of his

opinion,

State v. Acosta,

and

the

270 Or.

The Oregon Court of Appeals
Oregon
App.

Supreme

351,

Court

denied

350 P. 3d 234,

rev.

denied, 357 Or. 743, 361 P.3d 608 (2015)
Petitioner

then

filed

a

pro

se

petition

for

state

post-

conviction relief ("PCR'') alleging that his rights to confrontation
and a speedy trial were violated.

Resp. Exh. 108.

Appointed PCR

counsel concluded that the PCR petition could not be construed to
state a ground for relief and could not be amended to do so.

3 - OPINION AND ORDER -

Resp.

Exh.

109.

The

PCR

trial

court

conducted

Petitioner reiterated his allegations.

a

hearing,

where

Resp. Exh. 110, pp. 3-5.

The PCR trial judge noted that the issues Petitioner was raising
were ones ''that should have been raised on appeal to the direct
appeal after your case, not issues to be raised at post-conviction
relief."

Resp.

Exh.

110,

p.

5.

The

PCR court dismissed the

petition as meritless under Or. Rev. Stat. § 138.525.
111.

Such a judgment is not appealable under Oregon law.

Stat.

§

Resp. Exh.
Or. Rev.

138. 525 (3).

Petitioner then filed a habeas corpus action in this Court.
In his Amended Petition, he alleges twelve grounds for relief:
Ground One:
trial;

Petitioner was denied his right to a speedy

Ground Two: The state failed to offer constitutionally
sufficient evidence that Petitioner was the perpetrator,
that venue in Lincoln County was appropriate, and of the
essential elements of the crimes charges;
Ground Three: The admission of certain evidence violated
Petitioner's right to confront, cross-examine, and compel
witnesses;
Petitioner was denied the right to an
Ground Four:
impartial jury due to publicity before and during the
trial;
Ground Five:
Ineffective
appellate counsel;

assistance

of

trial

and

Ground Six: Petitioner was denied his right to be heard
when the trial court did not sufficiently inquire into
concerns Petitioner had with his attorney;
Ground Seven: The state knowingly proffered or failed to
correct false testimony;

4 - OPINION AND ORDER -

Ground Eight:
The state violated
process rights when the prosecutor
statements in closing argument;
Ground Nine:
evidence;

Petitioner's due
made prejudicial

The state failed to turn over exculpatory

Petitioner was denied his right to present
Ground Ten;
a complete defense;
Ground Eleven:

Petitioner is actually innocent; and

Ground Twelve: Petitioner was denied due process due to
"cumulative errors" during the trial.
Respondent argues Petitioner provides no argument in support
of some of his claims of ineffective assistance of counsel alleged
in Ground Five, and that Petitioner argues claims of ineffective
assistance

that

are

not

alleged

in

the

Amended

Petition.

Respondent also argues Petitioner procedurally defaulted the claims
alleged in Ground One,

part

of

Ground Two,

and Grounds

Three

through Ten, and that Petitioner has not established an excuse for
his

procedural

default.

Respondent

argues

"actual

innocence"

alleged in Ground Eleven is not a cognizable claim and that, in any
event,
that

Petitioner fails to meet the extraordinarily high burden
would

apply

if

such

a

claim were

cognizable.

Finally,

Respondent argues Petitioner has not established "cumulative error"
as alleged in Ground Twelve.

5 - OPINION AND ORDER -

DISCUSSION

I.

Claims Alleged in the Amended Petition But Not Addressed in
Petitioner's Brief and Claims Addressed in Petitioner's Brief
But Not Alleged in the Amended Petition

In Ground Five, Petitioner alleges eight claims of ineffective
assistance

of

trial

counsel

and

three

claims

of

ineffective

assistance of appellate counsel:
Petitioner was denied the effective assistance of
counsel as guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution when:
(a) trial counsel failed to:
(i) make appropriate
objections and challenges during voir dire and trial,
including, but not limited to, those based on concerns
relating to juror impartiality, pre-trial publicity, and
venue; (ii) investigate, including but not limited to
interviewing or engaging, and calling at trial, important
witnesses and experts, and failing to timely and
adequately obtain discovery, including medical records;
(iii) make timely and appropriate motions, including but
not limited to a motion pursuant to OEC 412, for judgment
of acquittal based on the State's failure to prove
Lincoln County was the appropriate venue, for change of
venue, and for dismissal; (iv) seek the admission of
relevant, admissible evidence and object to or exclude
inadmissible,
irrelevant
or
prejudicial
evidence
proffered by the State; (vi) [sic] maintain a coherent
defense
strategy;
(vii)
adequately
confer
with
Petitioner;
(viii)
effectively prepare for,
crossexamine, and impeach the State's witnesses at trial,
including failing to make effective use of impeachment
witnesses and investigation available at the time of
trial; and (ix) effectively perform at sentencing.
(b) appellate counsel failed.to raise on appeal that
the trial court erred in denying the motions for change
of venue and dismissal for pre-indictment delay, and in
ruling on evidentiary objections.
In his Memorandum of Law in Support of Habeas Corpus Relief,
Petitioner argues trial counsel was ineffective in failing to:

6 - OPINION AND ORDER -

(1)

confer with him and investigate hospital records;
change of venue;
to

admission

of

(2) press for a

(3) pursue a reasonable trial strategy; (4) object
the

vic;.j::irri' s

out-of-court

statements;

and

(5)

object to improper statements in the prosecutor's closing argument.
He also argues that appellate counsel was ineffective in failing to
raise:

(1)

the speedy trial issue;

(2)

the exclusion of defense

evidence; (3) the admission of statements Petitioner made to police
while officers seized his DNA; and (4)

alleged misconduct by the

prosecutor in the closing argument.
To the extent Petitioner argues claims that are not alleged in
the Amended Petition, the Court does not consider those claims as
they are not properly asserted.

Specifically, the Court declines

to consider Petitioner's argument that trial counsel should have
objected

to

improper

statements

in

the

prosecutor's

closing

argument and that appellate counsel should have assigned error to
the trial court's failure to strike those statements sua sponte.
Rule 2 of the Rules Governing Section 2254 cases provides that
a habeas corpus petition must "specify all the grounds for relief
which are available to the petitioner and of which he has or by the
exercise of reasonable diligence should have knowledge" and "the
Rule 2(c)

is clear that claims

for relief must be presented in the petition.

The claims described

which

not

facts supporting each ground[.]"

Petitioner

Petition;

argued

in

his

brief

are

alleged

in

his

they are separate claims of ineffective assistance of

7 - OPINION AND ORDER -

See Carriger v. Stewart, 971 F.2d 329, 333-34 (9th Cir.

counsel.
1992)

(en bane)

discrete).
v.

Henry,

(ineffective

assistance

of

counsel

As such, the claims need not be considered.
302 F. 3d 1067,

1070 n.

3

alleged in the petition need not
Demosthenes,

37 F.3d 504,

507

(9th Cir.
be

2002)

considered);

(9th Cir. 1994)

claims

are

See Green

(claims not
Cacoperdo

v.

(additional habeas

grounds for relief may not be included in supporting memorandum but
must instead be presented in an amended petition)
To

the

extent

Petitioner

alleges

claims

1

of

ineffective

assistance of trial and appellate counsel in his Petition which he
does not address in his brief in support thereof,

Petitioner has

not sustained his burden of demonstrating why he is entitled to
relief on his unargued claims.

See Lampert v. Blodgett, 393 F.3d

943, 970 n. 16 (9th Cir. 2004)

(petitioner bears burden of proving

his case); Davis v.

384 F.3d 628,

Woodford,

638

(9th Cir. 2003)

(same). Nevertheless, the Court has reviewed Petitioner's unargued
claims and is satisfied that Petitioner is not entitled to relief
on the remaining claims alleged in his Petition for Writ of Habeas
Corpus.
II.

Procedurally Defaulted Claims

As noted,

Respondent contends that

Petitioner procedurally

defaulted the claims alleged in Ground One, part of Ground Two, and

In any event, as discussed below,
defaulted these claims.
1

8 - OPINION AND ORDER -

Petitioner procedurally

Grounds Three through Ten.

In his Reply Brief, Petitioner concedes

that the three claims of trial error alleged in Grounds Three,
Eight,

and Ten are procedurally defaulted, but argues that those

defaults

should

be

excused

by

the

ineffective

assistance

of

appellate counsel.
A.

Legal Standards

A

habeas

petitioner

must

exhaust

his

claims

presenting them to the state's highest court,

by

fairly

either through a

direct appeal or collateral proceedings,

before a federal court

will consider the merits of those claims.

Rose v. Lundy, 455 U.S.

509, 519

(1982).

''As a general rule, a petitioner satisfies the

exhaustion requirement by fairly presenting the federal claim to
the appropriate state courts .
state courts,

thereby

. in the manner required by the

'affording the state courts a meaningful

opportunity to consider allegations of legal error.'"
386 F.3d 896,

Moore,

Hillery,

915-916 (9th Cir. 2004)

474 U.S. 254, 257,

Casey v.

(quoting Vasquez v.

(1986)).

If a habeas litigant failed to present his claims to the state
courts in a procedural context in which the merits of the claims
were actually considered, the claims have not been fairly presented
to the state courts and are therefore not eligible for federal
habeas corpus review.
(2000);

Castille v.

Edwards v.

Peoples,

Carpenter,

489 U.S.

346,

351

529 U.S.
(1989)

446,

453

In this

respect, a petitioner is deemed to have "procedurally defaulted"
9 - OPINION AND ORDER -

his claim if he failed to comply with a state procedural rule, or
failed to raise the claim at the state level at all.
529 U.S. 446, 451
(1991).

(2000); Coleman v.

Thompson,

Carpenter,

501 U.S.

722, 750

If a petitioner has procedurally defaulted a claim in

state court, a federal court will not review the claim unless the
petitioner shows "cause and prejudice" for the failure to present
the constitutional issue to the state court, or makes a colorable
showing of actual innocence.
(1996);

Sawyer v.

Whitley,

Gray v. Netherland, 518 U.S. 152, 162

505 U.S.

333,

337

(1992);

Murray v.

Carrier, 477 U.S. 478, 485 (1986).
B.

Grounds Three, Eight, and Ten

In Grounds Three, Eight and Ten, Petitioner alleges claims of
trial error:
evidence;

the trial court erred in admitting various pieces of

the state violated due process by making prejudicial

statements

in

Petitioner's

closing

right

to

argument;
present

a

and

the

complete

trial

court

defense.

denied

Petitioner

concedes these claims are procedurally defaulted, but argues the
defaults should be excused by the alleged ineffective assistance of
appellate counsel.

Petitioner acknowledges that, in order to serve

as cause and prejudice to excuse the defaults of his trial error
claims,

he

must

properly

exhaust

the

underlying

claims

of

ineffective assistance of appellate counsel, which he admittedly
failed to do.

Petitioner argues that the procedural default of his

10 - OPINION AND ORDER -

ineffective assistance of appellate counsel claims may be excused
under Martinez v. Ryan, 566 U.S. 1, 9 (2012)
the performance of PCR counsel could not be

Traditionally,
used

to

default.

Coleman,

cause

establish

and

prejudice

501 U.S. at 753-54

to

excuse

a

procedural

(only the constitutionally

ineffective assistance of counsel constitutes cause); Pennsylvania
v.

Finley,

481 U.S.

551,

556

(1987)

(there is no constitutional

right to counsel in a PCR proceeding).

However, in Martinez, the

. necessary to modify the unqualified

Supreme Court found "it .

statement in Coleman that an attorney's ignorance or inadvertence
in a postconviction proceeding does not qual.ify as cause to excuse
a procedural default."

Id at 8.

The Supreme Court

concluded,

"[i]nadequate 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.''

Id.

Martinez only applies, however, where the defaulted claim is

one of ineffective assistance of trial counsel; it does not apply
when a petitioner seeks to excuse a procedural default of any other
type

of

claim

for

relief,

including

assistance of appellate counsel.
Davila v.

Davis,

137 S.

Ct.

2058,

claims

Martinez,

2069

of

566 U.S.

(2017).

ineffective
at

17-18;

In Davila,

the

Supreme Court specifically noted the "domino effect" that could
occur if Martinez were extended:

"Prisoners could assert their

postconviction counsel's inadequacy as cause to excuse the default
11 - OPINION AND ORDER -

of their appellate ineffectiveness claims,

and use those newly

reviewable appellate ineffectiveness claims as cause to excuse the
default of their underlying claims of trial error."
such

"could

federal
error."

ultimately

habeas

review

knock
of

down

nearly

the

Id.

procedural

any defaulted

Allowing

barriers

claim

of

to

trial

Id.

Petitioner's argument is the exact "domino effect" rejected in
Davila.

Accordingly,

Petitioner has not established cause and

prejudice excusing his procedural default of the claims alleged in
Grounds Three, Eight, and Ten.
C.

Remaining Procedurally Defaulted Claims

Petitioner does not offer any argument why his procedural
default should be excused as to Grounds Two

(venue),

Four,

Six,

Seven,

or Nine,

Court.

Accordingly, Petitioner cannot obtain habeas corpus relief

on these claims.

and none is apparent on the record before the

See Murray, 477 U.S. at 494 (petitioner bears the

burden of proving both cause and prejudice).
Petitioner does

argue

that

the

procedural

default

of

his

ineffective assistance of trial counsel claims were caused by the
ineffective assistance of his

PCR counsel,

should therefore excuse the defaults
Ground Five under Martinez.

and that this Court

of the claims

alleged in

For the Martinez exception to apply,

a petitioner must show that PCR counsel "was ineffective under the
standards of Strickland v. Washington [466 U.S. 668 (1984)]," that
12 - OPINION AND ORDER -

the underlying ineffective-assistance-of-trial-counsel claim is a
"substantial" one,

i.e.,

that it has "some merit,'' and that the

petitioner suffered prejudice.
record

establishes

Martinez,

underlying

that

ineffective under Strickland,

566 U.S. at 14.

trial

counsel

If the
was

not

PCR trial counsel ''could not have

been ineffective for failing to raise the ineffective assistance of
counsel claim in state court."

Sexton v.

Cozner,

679 F.3d 1150,

1161 (9th Cir. 2012).
Under Strickland,
components:
performance

first,
was

a claim of ineffective assistance has two
a

petitioner

deficient,

and

performance prejudiced the defense.

must

second,

show
that

Strickland,

Under the first part of the Strickland test,

that

counsel's

the

deficient

466 U.S. at 687.

a petitioner must

demonstrate that "counsel's representation fell below an objective
standard of reasonableness."

Id. at 688.

The second part of the

test requires petitioner demonstrates that "there is reasonable
probability that, but for the counsel's unprofessional errors, the
result of the proceeding would have been different."
Here,

Id. at 694.

Petitioner has not established that any of his claims of

ineffective assistance of trial counsel are "substantial" or that
his PCR counsel was ineffective in failing to raise them.
Petitioner argues that his trial attorney did not adequately
consult with Petitioner prior to trial and did not obtain records
from a hospital in Redding, California, which allegedly would have
13 - OPINION AND ORDER -

demonstrated that the victim was not injured in late December 2011.
Petitioner does not, however, offer any evidence or argument as to
how further consultation could have affected the outcome of his
case, or any evidence of what the hospital records contained.
Petitioner also argues that trial counsel was ineffective in
failing to press for a ruling on his motion for change of venue
which was based on media coverage of the trial, particularly after
the victim died and the trial judge ruled he would exclude nearly
all of the victim's statements.
motion,

At a

pretrial hearing on the

trial counsel conceded that a ruling would not be proper

before voir dire, and the court left the issue open pending jury
selection.

Following extensive voir dire which included both panel

and individual examinations of the venire-persons by the trial
judge,

twelve jurors and four alternates were selected.

It does

not appear from the record that trial counsel renewed his motion
for change of venue but, in any event, his failure to do so was not
ineffective. 2
Under Oregon law, the decision whether to grant a change of
venue based upon pretrial publicity is left to the trial court's
discretion.
(1992).

State v.

Rogers,

313 Or.

356,

363,

836 P.2d 1308

When the trial is not a "media circus such as would have

prevented [a defendant] from receiving a fair trial" and the jury
is not exposed to information leading to "such fixed opinions that

2

The individual voir dire examinations were not transcribed.
14 - OPINION AND ORDER -

they could not judge impartially the guilt of the defendant," it is
not an abuse of discretion to deny a motion for change of venue.
Id.

at 364-65

(internal quotation marks omitted).

The federal

standard is comparable, as the Supreme Court has made clear that it
requires an exceptionally high showing of community prejudice for
a motion to change venue to be constitutionally required.

Skilling v. United States, 561 U.S. 358

(2010)

See

(holding that the

intense media coverage of Enron CEO Jeffrey Skilling's crimes and
subsequent trial did not rise to the level necessary to raise a
presumption of

juror prejudice

and

that

voir dire

effectively

assuaged any possibility of ''actual prejudice").
Here, Petitioner does not establish why a motion for change of
venue would have been granted had trial counsel renewed his request
following voir dire.

Petitioner has

not

established that

the

publicity was sufficient to raise a presumption of juror prejudice
or the existence of actual prejudice.

Accordingly, Petitioner has

not established that . this claim is a

"substantial" one for the

purposes of Martinez, and his procedural default is not excused.
Petitioner also argues that trial counsel's strategy to limit
the evidence available to jury and in an attempt to prevent the
jury

from

finding

beyond

a

reasonable

doubt

committed the charged offenses was unreasonable.
not,

however,

that

Petitioner

Petitioner does

identify any alternative strategy or explain why

trial counsel should have chosen it.

15 - OPINION AND ORDER -

In light of the evidence, as

discussed more fully below, challenging the state's burden of proof
was a plausible line of defense available to trial counsel,

and

petitioner has not established prejudice as a result of the failure
to choose an alternative strategy.

Accordingly, Petitioner has not

established a "substantial" claim to excuse his procedural default
under Martinez.
III. Relief on the Merits

In

Ground

evidence

to

Specifically,
sufficient

Two,
prove

Petitioner
his

alleges
beyond

guilt

Petitioner alleges

evidence

to

support

there

the
a

finding

insufficient

reasonable

a

state

was

doubt.·

failed to introduce
that

he

sexually

or

physically assaulted the victim, or that any such assault occurred
in Lincoln County. 3

As noted, the state courts denied relief on

this claim.
A.

Legal Standards

An application for writ of habeas corpus shall not be granted
unless

adjudication of the claim in state court

decision that was:

resulted in a

(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

In his Memorandum of Law Petitioner does not submit any
argument on this claim other than to note that he relies on the
arguments made to the trial and appellate courts.
3

16 - OPINION AND ORDER -

state court's findings of fact are presumed correct and a habeas
petition

bears

the

burden

of

rebutting

the

correctness by clear and convincing evidence.
§

presumption

of

See 28 u.s.c.

2254 (e) (1).
A

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 distinguishable from a decision of [the Supreme] Court
and

nevertheless

precedent."

arrives

Williams

v.

at

a

Taylor,

result

different

529 U.S.

362,

from

[that]

405-06

(2000).

Under the ''unreasonable application" clause, a federal habeas court
may grant relief only "if the state court identifies the correct
legal

principle

[the

from

Supreme

Court's]

decisions,

but

unreasonably 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.

The state court's application of clearly established
Id. at 409.

law must be objectively unreasonable.

"Determining whether a state court's decision resulted from an
unreasonable
there be

legal or

an opinion

court's reasoning."
Where

a

state

factual
from the

conclusion does not
state court

require

explaining the

that
state

Harringtonv. Richter, 562U.S. 86, 98 (2011).

court's

decision

17 - OPINION AND ORDER -

is

not

accompanied

by

an

explanation, "the habeas petitioner's burden still must be met by
showing there was no reasonable basis for the state court to deny
relief.''

Id.

Where, however, the highest state court decision on

the merits is not accompanied by reasons for its decision but a
lower state court's decision is so accompanied,

a federal habeas

court should ''look through'' the unexplained decision to the last
related state-court decision that provides a relevant rationale,
and presume the unexplained decision adopted the same reasoning.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

B.

Analysis

"[E]vidence is sufficient to support a conviction whenever,
'after

viewing

prosecution,
essential
Parker

v.

the

evidence

any rational

elements

of

Matthews,

trier

the

567

in

light
of

crime

U.S.

(quoting Jackson v. Virginia,

37,

most

fact

beyond
43

favorable

could
a

have

to

the

found

the

reasonable

(2012)

( emphasis

443 U.S. 307, 319 (1979));

v. Smith, 565 U.S. 1, 6 (2011).

doubt. '"
added)
Cavazos

This standard "gives full play to

the responsibility of the trier of fact fairly to resolve conflicts
in the testimony,

to weigh the evidence,

and to draw reasonable

inferences from basic facts to ultimate facts."

Jackson,

443 U.S.

at 319; see also Cavazos, 565 U.S. at 4 (holding that "[i]t is the
responsibility of the jury-not the court-to decide what conclusions
should be drawn from evidence admitted at trial"); Long v. Johnson,
736 F.3d 891,

896

(9th Cir.

18 - OPINION AND ORDER -

2013)

(holding that the court must

respect

the

exclusive

province

of

the

jury

to

determine

the

credibility of witnesses, resolve evidentiary conflicts, and draw
reasonable inferences from proven facts), cert. denied, 134 S. Ct.
2843 (2014).
"[Al state-court decision rejecting a sufficiency challenge
may

not

be

overturned

on

federal

habeas

'decision was objectively unreasonable.'"
(quoting Cavazos, 565 U.S. at 4).

[review]

unless

the

Parker, 567 U.S. at 43

This Court must resolve doubts

about the evidence in favor of the prosecution and examine the
state court decisions through the deferential lens of 28 U.S.C.
§

See Long,

2254 (d).

court owes a

736 F.3d at 896

(explaining that a habeas

"double dose" of deference when reviewing a state

court ruling on sufficiency of the evidence); Gonzales v. Gipson,
701 F.Appx.

558,

559

(9th Cir.

2017)

(same).

Under this doubly

deferential standard, to grant relief a court "must conclude that
the state court's determination that a rational jury could have
found that there was sufficient evidence of guilt, i.e., that each
required

element

was

proven

objectively unreasonable."

beyond

a

reasonable

Boyer v. Belleque,

doubt,

was

659 F. 3d 957

( 9th

Cir. 2011).
The evidence presented at trial, considered as a whole, would
readily allow a rational juror to find beyond a reasonable doubt
that

Petitioner

committed

the

crimes

charged.

Uncontradicted

evidence showed Petitioner was living with the victim in her loft
19 - OPINION AND ORDER -

above her store in Lincoln County on December 15 and 16,

2011.

Petitioner was seen in the victim's store the afternoon of December
15 while the victim was out with a friend, and Petitioner appeared
to

be

mad.

afternoon of

The

victim

and

her

shop

appeared

normal

on

the

December 15 when the victim's mother and another

witness were in the store.

The victim was physically and sexually

assaulted sometime later that day and night.

· On the morning of

December 16, the victim's mother arrived at the shop to find the
victim

battered

and

upset.

The

Petitioner upstairs in the loft

victim's

mother

could

hear

(although she did not see him at

that time) and she did not see anyone else in the store.
No evidence in the case suggested the victim was anywhere
other than her shop and loft between the afternoon of December 15
and the morning of December 16,

and no evidence

suggested the

victim was with anyone else during that period or that anyone other
than the Petitioner was with her or that Petitioner spent that
night elsewhere.

This evidence is more than sufficient to allow a

rational trier of fact to infer that Petitioner and the victim were
alone together at her shop/loft during that period, and a rational
trier of fact could readily deduce that Petitioner was the one who
assaulted the victim.
Moreover, shortly after the victim was assaulted, Petitioner
contacted two witnesses by phone and in text messages in an effort
to get them to ''tell [the victim] I'm sorry," and that he wanted to

20 - OPINION AND ORDER -

talk to the victim and tell her he "was sorry for what he had
done.''

Tr. 424-25, 428-34.

Petitioner handed his phone to one of

the witnesses, who noticed that Petitioner and his hands smelled
strongly of "sex,'' and "female parts," and "ass."

Tr. 580-81.

The

next day, that same witness saw the victim and noticed that she had
black eyes, was bruised,

"and it looked like she had been crying

all night."

In addition, two witnesses testifie'd that

Tr. 582-83.

the victim had told them that she had been "anally raped''
"raped in the butt."

and

Tr. 550, 611-13.

The evidence in the record is more than sufficient to allow a
rational trier of fact
December

15

and

the

to infer that between the afternoon of

morning

of

December

16,

that

Petitioner

The trial court's

sexually and physically assaulted the victim.

denial of Petitioner's motion for judgment of acquittal was not
objectively

unreasonable

and

is

entitled

to

deference.

Accordingly, Petitioner is not entitled to habeas corpus relief on
his insufficiency of the evidence claim.
IV.

Actual Innocence (Ground Eleven)

In Ground Eleven, Petitioner alleges a freestanding claim of
actual innocence.

The Supreme Court has left open the question

whether a freestanding claim of actual innocence is cognizable on
federal habeas review.

See District Attorney's Office v. Osborne,

557 U.S. 52, 71 (2009)

(whether federal constitutional right to be

released

upon

proof

of

"actual

21 - OPINION AND ORDER -

innocence"

exists

"is

an

open

question").

The Ninth Circuit has assumed without deciding that

freestanding actual innocence claims are cognizable in both capital
and non-capital cases.
Cir.

1997)

(en

Carriger v. Stewart, 132 F.3d 463, 476 (9th
A defendant

bane)

"asserting

a

freestanding

innocence claim must go beyond demonstrating doubt about his guilt,
and must affirmatively prove that he is probably innocent."
(citing Herrera v. Collins, 506 U.S. 390, 442-44 (1993)
J.,

dissenting))

"extraordinarily
persuasive."

Id.

The
high"

petitioner's
and

requires

(quoting Herrera,

burden
a

(Blackmun,

in

such

a

showing

that

is

506 U.S.

at 417);

Spivey v. Rocha, 194 F. 3d 971, 979 (9th Cir. 1999)

Id.

case

is

"truly

see also

(denying habeas

relief where "the totality of the new evidence [did] not undermine
the structure of the prosecution's case").
Here, Petitioner has not presented evidence establishing that
he is actually innocent of the crimes of conviction.

As discussed

above, the record demonstrates that a reasonable jury could readily
find Petitioner guilty of the crimes of conviction.

Accordingly,

Petitioner is not entitled to habeas corpus relief on the claim
alleged in Ground Eleven.
V.

Cumulative Error (Ground Twelve)

Finally, in Ground Twelve, Petitioner alleges that "cumulative
errors" during his trial denied him his right to due process.
some

cases,

although

no

single

trial

error

is

In

sufficiently

prejudicial to warrant reversal, the cumulative effect of several

22 - OPINION AND ORDER -

errors may still prejudice a petitioner so much that his conviction
must be overturned.

See Alcala v. Woodford,

334 F.3d 862, 893-95

(9th Cir. 2003) (reversing conviction where multiple constitutional
errors hindered petitioner's efforts to challenge every important
element of proof offered by prosecution) .
forth

above,

exists,

let

however,

the

Court

alone multiple

constitutional error,

finds

errors.

no

Where

For the reasons set
constitutional
there

is

no

error
single

nothing can accumulate to the level of a

constitutional violation.

Hayes v. Ayers, 632 F.3d 500, 524

(9th

Cir. 2011).
CONCLUSION

For these reasons, the Court DENIES the Amended Petition for
Writ of Habeas Corpus and DISMISSES this action.

The Court DENIES

a certificate of appealability.
IT IS SO ORDERED.
(J'\·\

DATED this

1

day of August, 2019.

ANNA J'; BROWN
United States Senior District Judge

23 - OPINION AND ORDER -