Dispennett v. Cook
Filing
319
OPINION AND ORDER. Petitioner (1) has not excused his procedural default as to his Sixth Amendment claims and his Fourteenth Amendment Claim for direct access to Murray's mental health records and (2) is not entitled to an in camera revie w of Murray's mental health records. Judge Stewart and I undertook a thorough review of the mental health records finding nothing that would help petitioner's cause. There is no dispute that the records contained evidence of the extent to which Murray suffers from a mental impairment, the records contained no evidence that Murray was not competent to testify as a witness. Petitioner has presented no evidence tending to show recantation or accusation and identification of a perpetrator other than the justly convicted petitioner. Petitioner's writ is denied. IT IS SO ORDERED. Signed on 4/8/2013 by Judge Robert E. Jones. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
RALPH DISPENNETT,
Petitioner
v.
DAVID COOK, Director, Oregon Department
of Corrections,
Respondent.
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C. Renee Manes
Barbara L. Creel
FEDERAL PUBLIC DEFENDER'S OFFICE
101 S.W. Main Street, Suite 1700
Portland, OR 97204
Attorneys for Petitioner
Thomas J. Castle
Douglas Park
DEPARTMENT OF JUSTICE
Trial Division, Co!1'ections Litigation
1162 Comt Street N.E.
Salem, OR 97301-6313
Attorneys for Respondent
Case No. 3:98-cv-1252-JO
OPINION AND ORDER
JONES, Judge:
Petitioner, who is currently in the custody of the Oregon Depmiment of Conections,
brings this action seeking a writ of habeas c01pus pursuant to 28 U.S.C. § 2254. He is
challenging his underlying convictions for Sodomy, Burglary, Assault and Attempted Rape on
the basis that they violate his rights under the Sixth and Fourteenth Amendments. On February
23, 2011, I held an evidentiary hearing so that petitioner could fmiher develop the factual basis
of his claims for relief and his claim of actual innocence. Both parties submitted post- hearing
briefs. For the reasons set fotih below, petitioner's mnended petition for a writ of habeas c01pus
(#55) is denied.
A.
Factual Background
The victim, Pamela Munay, is a mentally impaired woman who was 41 years old at the
time of the trial in this matter. In the early moming on September 2, 1993, a man entered her
apmiment through her open window and sexually assaulted her. Munay's neighbors, Kathy
RoUlldtree and Herman Andino, heard noises coming from her apmiment and called the police.
According to the 911 transcript, Murray did not know her attacker. After the police anived, she
told them that a man "tried to rape" and "huti" her, and she gave a generalized description of him
to the police. Munay described her assailant as a white male with blonde hair in a ponytail, blue
shiti, blue jeans, and white tennis shoes. The officer responding to the scene repmied that she
said that she knew the man but could not remember his name. She said that she thought he was
the smne one who worked at a nearby gas station. According to the officer's report, Ms.
Roundtree then asked MutTay if she meant "Butch" and Munay responded that she did. From
that point onward, the report refers to the suspect as "Butch," which was a nickname of the
2- OPINION AND ORDER
petitioner, Ralph Dispennett. Mr. Andino gave the police Mr. Dispennett's address, and
petitioner became the only suspect.
During the course of the investigation, police found a baseball cap with the words
"Ferrell Gas" on it, and Munay confirmed that her attacker was wearing the cap when he entered
her apa1iment. Munay also submitted to a sexual assault kit examination. The police obtained a
search wanant to retrieve samples of petitioner's hair, blood, and fingerprints, as well as his
hiking boots to compare with footprints found outside Munay' s apmiment. The sexual assault
kit, fingerprints found on the windowsill, and shoe imprints were submitted to the state
laboratory and compared with the samples taken from petitioner. None of the physical evidence
connected or disconnected petitioner to the crime.
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In preparation for trial, petitioner's attorney attempted to subpoena Munay' s mental
health records to detennine the full extent of her mental disabilities in order to provide a basis to
challenge her competency to testify or to exclude the identification she made as being overly
suggestive. Petitioner's attorney filed motions for discovery of the records, in camera review of
the records, authorization to hire a psychologist to evaluate the records, and to exclude improper
identification evidence. The trial court denied petitioner's motion for access to the Murray's
mental health records on the grounds that mental health records are confidential under Oregon
statutes and the statute allowed for no exceptions. Murray testified at trial, and her in-court
identification was the main evidence presented by the prosecution. The jury found petitioner
guilty of all charges, which included Sodomy, 1' 1 Degree; Burglary, 1' 1 Degree; Attempt to
Commit Crime-Rape I; and Assault, 2nd Degree. Petitioner, having previously been convicted
on Rape, 1' 1 Degree in a prior case, was sentenced to a total of 328 months of incarceration.
3 - OPINION AND ORDER
Based on Oregon Department of Con-ections ("ODOC") records, his projected release date is
June 28, 2020.
B.
Procedural Bacl
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