Eusebio-Noriega v. Cain

Filing 60

OPINION AND ORDER: The Petition for Writ of Habeas Corpus ( # 2 ) and the Motion for Counsel and Evidentiary Hearing (# 58 ) are denied. The Court declines to issue a Certificate of Appealability 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). Signed on 2/5/2020 by Judge Michael W. Mosman.**12 PAGE(S), PRINT ALL**(Raymundo Eusebio-Noriega, Prisoner ID: 18199007) (joha)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
RAYMUNDO EUSEBIO-NORIEGA,

Case No. 2:18-cv-00491-MO
Petitioner,
OPINION AND ORDER

v.
BRAD CAIN,

Respondent.
Raymundo Eusebio-Noriega
18199007
Snake River Correctional Institution
777 Stanton Blvd.
Ontario, Oregon 97914-8335
Petitioner, Pro Se
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

MOSMAN, District Judge.

Petitioner brings
U.S.C.

§

2254

convictions
Abuse.

this habeas

challenging

for

For the

Rape,

the

Unlawful

reasons

that

corpus

case pursuant
of

legality
Sexual

follow,

his

state-court

Penetration,

the

to 2 8

and Sexual

Petition for Writ of

Habeas Corpus (#2) is denied.
BACKGROUND

In response to reports that he had sexually abused a sixyear-old girl, the police contacted Petitioner at his apartment.
They advised him of his Miranda rights which Petitioner indicated
he understood,

and transported him to

the police

station for

questioning where he proceeded to make inculpatory statements.
Respondent's Exhibit 103, pp. 21-22. As a result, on October 30,
2009, the Washington County Grand Jury indicted Petitioner on six
counts of Rape in the First Degree, one count of Unlawful Sexual
Penetration in the First Degree, and three counts of Sexual Abuse
in the First Degree. Respondent's Exhibit 102.
Petitioner

filed

a

pretrial

motion

to

suppress

the

statements he made during his police interview, claiming that he
had

not

made

the

statements

voluntarily

due

to

the

coercive

nature of the interview. Respondent's Exhibits 132-134. The trial
court granted the motion in part as to statements Petitioner made
toward

the

end

of

the

interview

after

one

of

the

officers

indicated the charges could be reduced if he confessed. Id at 4243. As to the remainder of Petitioner's statements, however, the
trial court found them all to be admissible.
the

average

person

would

2 - OPINION AND ORDER

not

have

been

It concluded that
overborne

by

the

interview,
unique

and

about

that

nothing

Petitioner

in

that

the

led him

record
to

revealed

be

anything

overborne

by

the

officers' statements. Id at 42.
At the close of the State's case in chief,

the trial court

entered a judgment of acquittal as to two counts of Sexual Abuse
in the First Degree. A jury convicted Petitioner of the remaining
charges,

and

the

trial

court

sentenced him

to

250

months

in

prison. Respondent's Exhibit 107, pp. 13-17.
Petitioner took a direct appeal wherein he challenged the
partial denial of his motion to suppress, but the Oregon Court of
Appeals affirmed the
opinion.

State v.

trial court's decision without a

Raymundo-Noriega,

255 Or. App.

635,

written
298 P. 3d

1250 (2013). The Oregon Supreme Court subsequently denied review.
354 Or. 62, 308 P.3d 206 (2013).
Petitioner next filed for post-conviction relief

("PCR")

in

Malheur County where the PCR court denied relief on a variety of
ineffective assistance of
141.

The

decision

Oregon
without

Court

of

issuing

counsel
Appeals
a

claims.

Respondent's

affirmed

written

the

opinion,

lower

and

the

Exhibit
court's
Oregon

Supreme Court denied review. Noriega v. Nooth, 285 Or. App. 652,
402 P.3d 778, rev. denied, 361 Or. 885, 403 P.3d 766 (2017).
Petitioner filed this 28 U.S.C. § 2254 habeas corpus case on
March 22,

2018 alleging that he was the victim of ineffective

assistance of counsel in several particulars:
1.
Trial
counsel
failed
to
properly
litigate
the
motion
to
suppress
his
statements to the police, failing to call Dr.

3 - OPINION AND ORDER

Norvin Cooley as an expert witness in support
of the suppression motion;
2.
Trial counsel failed
testimony from Dr. Cooley
to undermine the validity
Petitioner made during the

to present expert
at trial in order
of the statements
police interview;

3.
Trial counsel failed to present Dr.
Cooley as an expert witness pertaining to
issues of child memory;
4.
Trial
counsel
failed
to
adequately
prepare for trial when he did not secure the
services of an interpreter;
5.
Trial
counsel
failed
to present
a
coherent
defense,
calling
witnesses
to
testify about the propriety of Petitioner's
conduct around children when those witnesses
were unable to present such testimony; and
6.
The
cumulative
nature
of
counsel's
errors violate Petitioner's right to due
process and effective assistance of counsel.
Respondent asks the Court to deny relief on the Petition
because:

(1) with the exception of Ground One, Petitioner did not

fairly present any of his claims in state court such that they
are now procedurally defaulted; 1

(2)

the PCR court's denial of

Ground One was not objectively unreasonable and, therefore, does
not entitle Petitioner to habeas corpus relief;

and

(3)

Ground

Six lacks merit where there are no individual errors on counsel's
part to justify relief.

Ill
1

Respondent does not assert that Petitioner procedurally defaulted Ground
Six. Instead, he asserts that "it is questionable whether petitioner was
required to exhaust any 'cumulative error' claim in Oregon state court, or
whether the denial of relief on such a claim would be contrary to United
States Supreme Court precedent." Response ( #21) , p. 7. Where Respondent has
not raised the affirmative defense of procedural default as to Ground Six, the
Court will evaluate it on its merits. See Gray v. Netherland, 518 U.S. 152,
165 (1996).

4 - OPINION AND ORDER

Ill
Ill
DISCUSSION
I.

Exhaustion and Procedural Default

A

habeas

petitioner

must

exhaust

his

claims

presenting them to the state's highest court,
direct appeal or collateral proceedings,

by

fairly

either through a

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 . . . in the manner required by the
state courts,

thereby

'affording the state courts a meaningful

opportunity to consider allegations of legal error.'"

Moore, 386 F.3d 896, 915-916 (9th Cir. 2004)
Hillery, 474 U.S. 254, 257,
If a

Casey v.

(quoting Vasquez v.

(1986)) .

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. Edwards v. Carpenter, 529 U.S. 446,
453
this

(2000);

Castille v.

respect,

defaulted"

his

a

Peoples,

petitioner
claim

if

he

489 U.S.

is

deemed

failed

to

346,

to

351

have

comply

(1989).

In

"procedurally
with

a

state

procedural rule, or failed to raise the claim at the state level
at all. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson,
501

U.S.

722,

750

(1991).

If

a

petitioner

has

procedurally

defaulted a claim in state court, a federal court will not review
5 - OPINION AND ORDER

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. Gray v.

Netherland, 518 U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S.
333, 337 (1992); Murray v. Carrier, 477 U.S. 478, 485 (1986).
In
which

this

case,

allege

Petitioner

discrete

raises

instances

of

five

grounds

ineffective

for

relief

assistance

of

counsel trial. Petitioner raised Grounds One through Five to the
PCR court, but he winnowed his claims down to a single question
on appeal:
motion

to

"Where
suppress

a

criminal
the

defense

defendant's

trial

attorney

statements

as

filed

a

involuntary,

would an attorney exercising reasonable professional skill and
judgment have offered available evidence witness testimony -

to support the motion,

specifically,

expert

where the defendant

was not going to testify that the statements were involuntary?"
Respondent's Exhibit 142, p.

7. He presented this same issue to

the Oregon Supreme Court. Respondent's Exhibit 144, p. 12.
The issue Petitioner fairly presented to the Oregon Supreme
Court mirrors his claim in Ground One. However, where he omitted
Grounds Two
present

through Five

them

including

the

to

Oregon's

claims

in his
state

in Grounds

appeals,
courts.
Two

he

failed to

Because

through

the

Five

in

fairly

time

for

the

PCR

appeals passed long ago, those claims are procedurally defaulted.
Petitioner makes no showing that would excuse this default.
II.

Standard of Review
An

application for a

writ of

habeas

corpus

shall not be

granted unless adjudication of the claim in state court resulted
6 - OPINION AND ORDER

in

a

decision

that

(1)

was:

"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

U.S.C.

evidence presented in the

State court proceeding."

28

§ 2254(d). A state court's findings of fact are presumed

correct,

and

Petitioner

bears

the

burden

of

rebutting

the

presumption of correctness by clear and convincing evidence. 28

u.s.c.

§

2254 (e) (1).

A state

court

decision

established precedent

if

is

the

"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

Williams

v.

Taylor,

529

"unreasonable application"

U.S.

362,

clause,

405-06

a

(2000).

federal

habeas

court may grant relief "if the state court identifies the correct
governing legal principle from

[the Supreme Court's]

but

principle

unreasonably

prisoner's
clause

case."

requires

applies

that

at

413.

Id

the

state

The

court

to

the

facts

"unreasonable
decision

to

decisions
of

the

application"

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.

7 - OPINION AND ORDER

It goes no farther."

Harrington v.

Richter,

562 U.S.

86,

102

(2011) .

Ill
III. Analysis

A.

Ground One: Failure to Call Dr. Cooley

As Ground One,
should

have

Petitioner asserts that his trial attorney

called

suppression hearing,
prejudice

to

him.

Dr.

Norvin

Cooley

to

testify

at

the

and that the failure to do so resulted in
The

Court

uses

the

general

two-part

test

established by the Supreme Court to determine whether Petitioner
received

ineffective

Mirzayance,
show

that

assistance

556 U.S. 111, 122-23
his

counsel's

686-87

(1984).

Due

counsel's performance,
that

the

conduct

counsel.

(2009).

performance

standard of reasonableness.
668,

of

First,

fell

the

v.

Petitioner must
an

objective

Washington,

Strickland v.
to

Knowles

below

466 U.S.

difficulties

in

evaluating

courts must indulge a strong presumption

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

Petitioner

probability that,

can

The appropriate
show

"that

test for prejudice is

there

is

a

reasonable

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
8 - OPINION AND ORDER

is a "doubly deferential judicial review." Mirzayance,

556 U.S.

at 122.
Petitioner argues that it was incumbent upon counsel to call
Dr.

Cooley as

an expert witness

to describe

how Petitioner's

personal characteristics made it more likely that his statements
were involuntary. He asserts that had Dr. Cooley testified to his
below average intelligence,
trial

shyness,

court would have granted the

and social insecurity,

the

suppression motion in its

entirety.
Although Dr.
his

testimony

Cooley could have testified to these issues,

could have

claim of coercion.

been quite

damaging

to

Petitioner's

Trial counsel explained this dynamic in an

affidavit he filed during the PCR proceedings:
I did not call Dr. Cooley as a witness for
several reasons. I conferred with both Dr.
Cooley and Petitioner's prior counsel .
regarding this issue.
My conclusion was
simple. Dr. Cooley clearly stated that at the
time of the interview, Petitioner had no
mental illness, no intoxication, and that
Petitioner was not significantly suggestible
to interrogation settings. Furthermore, Dr.
Cooley indicated that Petitioner understood
his Miranda warnings. These are facts that
would have come out during the proceedings if
Dr. Cooley would have been called as witness.
This
would
have
been
a
very
negative
consequence for Petitioner as the jury would
hear from an expert that my client understood
his rights and still made the statements. Dr.
Cooley said that Petitioner had a lower than
average IQ and that he was legally naive,
still the conclusion was that Petitioner made
statements understanding his rights. Add to
that the fact that Dr. Cooley would have
testified that Petitioner was not overly
suggestible, I think Dr. Cooley would have

9 - OPINION AND ORDER

been a bad witness for the defense at any
phase of the proceedings.
Respondent's Exhibit 131, pp. 1-2.
When

trial

counsel

realized

that

Dr.

would not be beneficial

to the defense,

another

denied

expert

but

was

funds

Cooley's

testimony

he attempted to hire

to

do

so.

Respondent's

Exhibit 131, p. 2. Counsel twice appealed the funding issue, but
those appeals were not successful. Based upon the nature of Dr.
Cooley's potential testimony, and the fact that he was unable to
secure funding to attempt to locate an expert more favorable to
the defense,

counsel

did not present

any expert

testimony in

PCR court

concluded as

support of the suppression motion.
After

evaluating

the

record,

the

follows:
Trial counsel was not ineffective for failing
to call Dr. Cooley as a witness to testify in
support of Petitioner's motion to suppress.
Counsel explained in his affidavit [] that he
concluded that the testimony of Dr. Cooley
would have been more harmful tha [n] helpful
to
Petitioner's
Motion
to
Suppress.
Petitioner presented no evidence to show that
this was an unreasonable strategic decision.
In
fact,
the
evidence
supports
trial
counsel's decision.
Respondent's Exhibit 141, pp. 1-2.
Where

Dr.

Cooley

understood his rights,

would

have

testified

was not suggestible,

that

Petitioner

and did not suffer

from mental illness or intoxication, his testimony would not have
been helpful to show that Petitioner was more easily overborn
than the average person. It was therefore a reasonable strategic
decision

for

counsel

to

refrain

from

calling

present potentially harmful expert testimony.
10 - OPINION AND ORDER

Dr.

Cooley

to

Because counsel's

performance

does

reasonableness,

not

fall

below

an

objective

standard

of

the PCR Court's decision denying relief on this

claim is neither contrary to, nor an unreasonable application of,
clearly established federal law.
B.

Ground Six: Cumulative Error

Where Petitioner fails to establish any error on counsel's
part

as

to

standard

Grounds

of

One
he

review,

through
cannot

Five,

even

prevail

under

upon

de

a

his

novo

claim

cumulative error. See Cone v. Bell, 556 U.S. 449 (2009)

of

(de novo

review appropriate where state courts have not passed upon the
merits of a properly raised claim).
IV.

Motion for Counsel and Bvidentiary Hearing (#58)

After briefing for this case closed, Petitioner submitted a
Motion in which he asks the Court to reconsider its denial of
appointed

counsel

Petitioner's

in

five

this

case.

motions

for

The

Court

appointment

of

previously
counsel

denied
in

this

case, and advised him it would not entertain any such motions.
His request for reconsideration on this issue is denied.
Petitioner also asks
hearing

in

this

action.

the Court to conduct an evidentiary
Because

the

record

in

this

case

is

sufficiently developed to resolve the issues before the Court,
Petitioner's request for an evidentiary hearing is denied.

See

Rhoades v. Henry, 638 F.3d 1027, 1041 (9 th Cir. 2011).
CONCLUSION

For the reasons identified above,
Habeas Corpus
Hearing

(#58)

( #2)
are

the Petition for Writ of

and the Motion for Counsel and Evidentiary
denied.

11 - OPINION AND ORDER

The

Court

declines

to

issue

a

Certificate of Appealability 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).
IT IS SO ORDERED.
DATED this ~ a y of February, 2020.

Judge

12 - OPINION AND ORDER