Williams v. Cain

Filing 29

Opinion and Order: Petitioner's Petition for Writ of Habeas Corpus 2 is DENIED and this case is DISMISSED. Signed on 05/16/2018 by Judge Michael J. McShane. (jw)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

JIMMIE LEE WILLIAMS,

Case No. 2:17-cv-00040-MC

Petitioner,

OPINION AND ORDER

v.
BRAD CAIN, Superintendent,
Snake River Correctional Institution,
Respondent.
______________________________
MCSHANE, District Judge:
Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging
that his trial counsel rendered ineffective assistance by failing to object to hearsay testimony and
failing to interview character witnesses. Respondent contends that one of petitioner’s claims is
procedurally defaulted and the remaining claim was denied in a state court decision entitled to
deference. For the reasons explained below, the petition is denied and the case dismissed.
BACKGROUND
In April 2011, after trial by jury, petitioner was convicted of Unlawful Sexual
Penetration in the First Degree, Sodomy in the First Degree, and three counts of Sexual Abuse in
the First Degree. Resp’t Ex. 101.

Page 1

- OPINION AND ORDER

Petitioner’s convictions arose from the sexual abuse of G.T., his wife’s daughter, when
she was between the ages of seven and nine. On a camping trip in late July 2010, G.T disclosed
the abuse to M.S., her stepsister. Transcript of Proceedings (Tr.) at 75 (ECF No. 27). M.S.
reported those allegations, and G.T.’s father eventually called the police. Tr. at 76, 88. Det. Jason
Ball led the investigation and arranged for G.T. to be examined at Liberty House, a child abuse
assessment center.
On July 30, 2010, Dr. Oh, a medical provider at Liberty House, conducted a physical
examination of G.T. and asked her “privates” had even gotten hurt. Tr. 153-54. G.T. told Dr. Oh
that petitioner sometimes “wants to poke one of his fingers inside the hole where the baby comes
out. And sometimes he puts one whole finger in there and it hurts.” Tr. 154. Dr. Meredy
Golburg-Edelson, a clinical psychologist for Liberty House, was present during the examination
and told G.T. that they would talk about her disclosures in the interview room. Tr. 146-47, 154.
After her medical examination, G.T. was taken to an interview room and Dr. Golburg-Edelson
asked G.T. about the statement she made during the medical examination. During this interview,
G.T. disclosed many other instances of abuse by petitioner. Tr. 118-122, 132-34, 139-41.
At trial, G.T. recounted an uncharged occurrence of abuse by petitioner (that occurred
outside of the court’s jurisdiction) and testified that she could not remember the other instances
of abuse she revealed in the Liberty House interview. Tr. 20-21, 62-63, 66-70, 72. G.T. also
testified that she did not remember talking to Dr. Golburg-Edelson, though she remembered a
place with a mirror and a camera. Tr. at 64-65.
The State called Dr. Golburg-Edelson and Det. Ball to testify. Dr. Golburg-Edelson
described G.T.’s examination and interview and testified about G.T.’s statements and disclosures
of abuse by petitioner. Tr. 118-122, 132-34, 139-41. During Dr. Golburg-Edelson’s testimony,

Page 2

- OPINION AND ORDER

the State offered a video recording of G.T.’s Liberty House interview as Exhibit 1 and parts of
the video were played for the jury. Tr. at 123-30, 134-37, 141-44. Subsequently, Det. Ball
testified about G.T.’s assessment at Liberty House and her statements made during the interview.
Tr. 183-86. Petitioner’s trial counsel did not object to the introduction of Exhibit 1 or to the
testimony of Dr. Goldburg-Edelson and Det. Ball on grounds of inadmissible hearsay.
The jury found petitioner guilty on all counts. Tr. 278-79. At sentencing, the trial court
imposed consecutive and concurrent sentences totaling 420 months of imprisonment. Tr. 305-06;
Resp’t Ex. 101.
After dismissing his direct appeal, petitioner filed a petition for post-conviction relief
(PCR) alleging several claims of ineffective assistance of counsel, and the PCR trial court denied
relief. Resp’t Exs. 103, 105, 121-22. The Oregon Court of Appeals affirmed without opinion, and
the Oregon Supreme Court denied review. Resp’t Exs. 123, 129-30.
On January 9, 2017, petitioner filed this habeas petition under 28 U.S.C. § 2254.
DISCUSSION
A. Ground Two – Failure to Call Character Witnesses
In Ground Two, petitioner alleges that trial counsel rendered ineffective assistance by
failing to interview and call several character witnesses. Pet. at 6 (ECF No. 2). Respondent
argues that this claim is procedurally defaulted and barred from review because petitioner failed
to present it to the Oregon Supreme Court. See 28 U.S.C. § 2254(b)(1)(A); Duncan v. Henry, 513
U.S. 364, 365 (1995) (per curiam) (before seeking federal habeas relief, a petitioner must “fairly
present” a federal claim to the State’s highest court “in order to give the State the opportunity to
pass upon and to correct alleged violations of its prisoners’ federal rights”).

Page 3

- OPINION AND ORDER

The record reflects that petitioner did not raise counsel’s alleged failure to interview or
call witnesses in his PCR appeal. Resp’t Ex. 123. Petitioner does not dispute that Ground Two is
unexhausted and procedurally defaulted, and he does not allege cause and prejudice or a
fundamental miscarriage of justice to excuse the procedural default. See Edwards v. Carpenter,
529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). Moreover,
petitioner presents no argument to support the merits and fails to establish entitlement to habeas
relief on Ground Two. See Pet’r Br. in Support (ECF No. 28); Mayes v. Premo, 766 F.3d 949,
957 (9th Cir. 2014) (a habeas petitioner bears the burden of proving his claims).
B. Ground One – Failure to Object to Child Hearsay Statements
In Ground One, petitioner asserts that trial counsel rendered ineffective assistance by
failing to object to the admission of Exhibit 1 and the testimony of Dr. Goldburg-Edelson and
Det. Ball on hearsay grounds. Pet. at 6. The PCR court rejected this claim, finding that the trial
court would have admitted the testimony regardless of any objection and petitioner could not
establish prejudice resulting from counsel’s failure to object. Resp’t Exs. 121-22; Strickland v.
Washington, 466 U.S. 668 (1984). Respondent maintains that the PCR court’s decision is entitled
to deference.
A federal court may not grant a habeas petition regarding any claim “adjudicated on the
merits” in state court, unless the state court ruling “was contrary to, or involved an unreasonable
application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A state court decision is
“contrary to” established federal law if it fails to apply the correct Supreme Court authority, or if
it reaches a different result in a case with facts “materially indistinguishable” from relevant
Supreme Court precedent. Brown v. Payton, 544 U.S. 133, 141 (2005); Williams v. Taylor, 529
U.S. 362, 405-06 (2000). A state court decision is an “unreasonable application” of clearly

Page 4

- OPINION AND ORDER

established federal law if the state court identifies the correct legal principle but applies it in an
“objectively unreasonable manner.” Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per
curiam); Williams, 529 U.S. at 407-08, 413; see also Early v. Packer, 537 U.S. 3, 11 (2002) (per
curiam) (state court decisions that are not “contrary to” Supreme Court law may be set aside
“only if they are not merely erroneous, but ‘an unreasonable application’ of clearly established
federal law, or based on ‘an unreasonable determination of the facts.’”).
Under well-established Supreme Court precedent, 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.” Strickland, 466 U.S. at 687. To show deficient
performance, a petitioner “must show that counsel’s representations fell below an objective
standard of reasonableness.” Id. at 688. To establish prejudice, a petitioner “must 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. Unless a petitioner “makes both showings, it
cannot be said that the conviction...resulted from a breakdown in the adversary process that
renders the result unreliable.” Id. at 687.
The State introduced G.T.’s hearsay statements under Oregon Evidence Code (OEC)
803(18a)(b), which authorizes the admission of hearsay statements by child declarants regarding
sexual abuse “if the declarant either testifies at the proceeding and is subject to crossexamination, or is unavailable as a witness but was chronologically or mentally under 12 years of
age when the statement was made.” Or. Evid. C. 803(18a)(b); Resp’t Ex. 117 (Notice of State’s
Intention to Rely on Child Hearsay). A child “declarant shall be considered ‘unavailable’ if the
declarant has a substantial lack of memory of the subject matter of the statement.” Or. Evid. C.
803(18a)(b). If the child is “unavailable,” a hearsay statement is admissible “only if the…time,

Page 5

- OPINION AND ORDER

content and circumstances of the statement provide indicia of reliability, and in a criminal trial
that there is corroborative evidence of the act of abuse and of the alleged perpetrator’s
opportunity to participate in the conduct.” Id.
As he alleged in the PCR proceeding, petitioner argues that trial counsel’s performance
was deficient because counsel did not object to the admission of G.T.’s hearsay statements
presented through the testimony of Dr. Goldburg-Edelson and Det. Ball. See Pet’r Br. at 7-8;
Resp’t Ex. 105 at 4-5. Petitioner maintains that G.T. was “functionally unavailable” due to her
inability to remember numerous statements she made during her Liberty House interview, and
trial counsel should have objected to the admission of her statements on grounds that they lacked
sufficient indicia of reliability and were uncorroborated by other evidence.
The PCR court agreed with petitioner and found that counsel should have objected to the
admission of G.T.’s Liberty House statements because G.T. had “a substantial lack of memory,”
and “probably, the Court would have found her unavailable if a motion had been made.” Resp.
Ex. 121 at 38 (“a competent attorney would have asked the Court to make a determination about
indicia of reliability and those other factors if she is unavailable”). Nonetheless, the PCR court
found that petitioner failed to establish prejudice because the trial court would have admitted
G.T.’s statements, regardless of any objection, and “the outcome would have been the same.”
Resp’t Ex. 121 at 38-40. Specifically, the PCR found:
The question then is, if a motion had been made and the Court had reviewed it,
would the Court have allowed the Statements? And, because of what happened in
this trial, I think the Court would have allowed the statements because I think the
Court would have been able to make the findings. The findings that are necessary
are that the time, content and circumstances provide an indicia of reliability. And,
the indicia of reliability, I -- when you read the cases on that, factually, you just
look at the statement itself and the circumstances surrounding the statement. You
don’t look at outside evidence as a list of things that the judge looks at but
basically I think the most instructive case on that is State v. Reed at 173 Or App

Page 6

- OPINION AND ORDER

185. And, I think there was an indicia of reliability and I think the Court would
have found it.
Resp. Ex. 121 at 38. The PCR court emphasized that the trial court “would have looked at the
tape” of G.T.’s interview and found her statements to be reliable and corroborated under the
circumstances. Resp’t Ex. 121 at 40. In other words, based on Oregon caselaw and the evidence
presented and admitted at trial, the PCR court ruled that the trial court would have found G.T.’s
hearsay statements admissible under OEC 803(18a)(b).
Petitioner acknowledges the PCR court’s reliance on Oregon law and this Court’s wellestablished limitations on reviewing issues of state law. Pet’r Br. in Support at 8; see Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) (“it is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions”). Petitioner nonetheless maintains
that if counsel had objected, the trial court would have been required to evaluate G.T’s
statements for reliability, and “there is a reasonable probability that the trial court would have
found G.T.’s statements to be unreliable and insufficiently corroborated, given the
circumstances.” Pet’r Br. in Support at 8.
However, petitioner does not explain why the PCR court’s determination of prejudice is
unreasonable or why the trial court would have found G.T.’s statements to lack indicia of
reliability and corroborating evidence. Petitioner likewise cites no evidence in the record to
support his argument. Id. Regardless, as petitioner recognizes, this Court cannot review
evidentiary rulings of a state court that are based on state law. Id.; Estelle, 502 U.S. at 67 (an
“inquiry” into whether evidence was “incorrectly admitted” pursuant to state law “is no part of a
federal court’s habeas review of a state conviction”).
Accordingly, the PCR court’s ruling was not an unreasonable application of clearly
established federal law, and petitioner is not entitled to federal habeas relief.
Page 7

- OPINION AND ORDER

CONCLUSION
Petitioner’s Petition for Writ of Habeas Corpus (ECF No. 2) is DENIED and this case is
DISMISSED. A Certificate of Appealability is denied on the basis that petitioner has not made a
substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2).
DATED this 16th day of May, 2018.

s/ Michael J. McShane
Michael J. McShane
United States District Judge

Page 8

- OPINION AND ORDER